LEASE AGREEMENT
Exhibit 10.10
BUILDING: | 1098 Alta | |||
PROPERTY: | 1-0001 | |||
UNIT: | 1 | |||
LEASE ID: | 0001-SONI01-01 |
THIS “LEASE”, made this 1st day of October, 2004, between XXXX XXXXXXXXX, Trustee, or his
Successor Trustee, UTA dated 7/20/77 (XXXX XXXXXXXXX SURVIVOR’S TRUST) as amended, and XXXXXXX X.
XXXXX, Trustee, or his Successor Trustee, UTA dated 7/20/77 (XXXXXXX X. XXXXX SEPARATE PROPERTY
TRUST) as amended, hereinafter called Landlord, and SONICS, INC., a Delaware corporation,
hereinafter called Tenant.
Landlord hereby leases to Tenant and Tenant hereby hires and takes from Landlord those
certain premises (the “Premises”) outlined in Red on
Exhibit A, attached hereto and
incorporated herein by this reference thereto more particularly described as follows:
A portion
of that certain 61,290± square foot, two-story building (“Building”) located at 0000 Xxxx
Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000,
consisting of approximately 13,784± square feet
of space (on the first floor of the Building including Tenant’s Proportionate Share of the Common
Area of the Building) and the Personal Property of Landlord pursuant to Paragraph 46 (“Personal
Property of Landlord”). Said Premises is more particularly shown within the area outlined in Red on
Exhibit A attached hereto. The entire parcel, of which the Premises is a part, is shown
within the area outlined in Green on Exhibit A attached. The Premises shall be improved by
Landlord as shown on Exhibit B attached hereto, and, subject to Landlord making said
improvements and to Paragraph 6 (“As-Is Basis”), is leased on an “as-is” basis, in its present
condition, and in the configuration as shown in Red on Exhibit B attached hereto.
The word “Premises” as used throughout this Lease is hereby defined to include the
nonexclusive use of landscaped areas, sidewalks, parking areas and driveways in front of or
adjacent to the Premises, and the nonexclusive use of the area directly underneath or over such
sidewalks and driveways. The gross leasable area of the Building shall be measured from outside of
exterior walls to outside of exterior walls, and shall include any atriums, covered entrances or
egresses and covered Building loading areas.
Said letting and hiring is upon and subject to the terms, covenants and conditions hereinafter
set forth and Tenant covenants as a material part of the consideration for this Lease to perform
and observe each and all of said terms, covenants and conditions. This Lease is made upon the
conditions of such performance and observance.
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BUILDING: | 1098 Alta | |||
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security of said patio furniture or be liable in any manner whatsoever for said patio
furniture. Tenant shall not place anything or allow anything to be placed near the glass of any
window, door partition or wall which may appear unsightly from outside the Premises. No loudspeaker
or other device, system or apparatus which can be heard outside the Premises shall be used in or at
the Premises without the prior written consent of Landlord. Tenant shall not commit or suffer to be
committed any waste in or upon the Premises. Tenant shall indemnify, defend and hold Landlord
harmless against any loss, expense, damage, reasonable attorneys’ fees, or liability arising out of
failure of Tenant to comply with any applicable law for which Tenant is obligated to comply under
the terms of this Lease. Tenant shall comply with any covenant, condition, or restriction
(“CC&R’s”) affecting the Premises. There are no CC&R’s affecting the Premises at the time of Lease
execution. In the event CC&R’s are subsequently implemented (i) said CC&R’s shall be applicable to
all tenants within the Building, and (ii) Landlord shall provide a copy of said CC&R’s to Tenant.
The provisions of this paragraph are for the benefit of Landlord only and shall not be construed to
be for the benefit of any Tenant or occupant of the Premises.
(a) One day after a temporary Certificate of Occupancy or other Building signoff is granted by
the proper governmental agency, or, if the governmental agency having jurisdiction over the area in
which the Premises are situated does not issue certificates of occupancy, then the same number of
days after certification by Landlord’s architect or contractor that Landlord’s construction work
has been completed; or
(b) Upon the occupancy of the Premises by any of Tenant’s operating personnel; or
(c) When the Tenant Improvements have been substantially completed for Tenant’s use and
occupancy and Landlord has delivered the Premises to Tenant, in accordance and compliance with
Paragraph 6.B (“As Is: Tenant Improvements to be Constructed by Landlord”) and Exhibit B of
this Lease; provided, however, that in no event, except as noted in Paragraph 2.B(b) above, shall
the Term of the Lease commence before January 1, 2005; or
(d) As otherwise agreed in writing.
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commenced absent delay caused by Tenant. Provided the Lease is executed and delivered to
Landlord no later than 5:00 p.m. on November 2, 2004 and Tenant does not interfere with Landlord’s
work in the Premises, Landlord shall deliver early entry of the Premises to Tenant with carpet in
place and cubicles fully installed no later than December 20, 2004.
It is agreed in the event said Lease commences on a date other than the first day of the month
the Term of the Lease will be extended to account for the number of days in the partial month. The
Basic Rent during the resulting partial month will be pro-rated (for the number of days in the partial
month) at the Basic Rent rate scheduled for the projected Commencement Date as shown in Paragraph
4.A.
Basic Rent Abatement. From the Commencement Date through the date which is thirty-one (31)
days following the Commencement Date, (the “Basic Rent Abatement Period”), the monthly Basic Rent
of $15,162.40 shall be abated and no Basic Rent will be due (the “Basic Rent Abatement”) during the
Basic Rent Abatement Period; however, Tenant will be responsible for all Additional Rent expenses
as outlined in Paragraph 4.D and the fixed monthly Management Fee as outlined in Paragraph 4.E from
the Commencement Date of the Lease. Notwithstanding the foregoing, except for delays caused by
Tenant, it is the intent of the parties hereto that the total Basic Rent Abatement Period shall be
thirty-one (31) days. In the event that the Commencement Date is delayed beyond January 1, 2005,
the Basic Rent Abatement Period shall commence on the actual Commencement Date through the date
which is 31 days later (for example, if the Lease Commences on January 4, 2005 (and provided Tenant
did not cause the delay in the Commencement), the Basic Rent Abatement Period shall be January 4,
2005 through February 3, 2005 (31 days). If Tenant is responsible for the delay in the Lease
Commencement Date, the Basic Rent Abatement Period shall be decreased by one day for each day of
said delay caused by Tenant. The Basic Rent Abatement is conditioned upon Tenant not committing an
act of monetary default throughout the Term of the Lease. If Tenant commits an act of monetary
default at any time during the Term and fails to cure said monetary default after notice and within
the period allowed under this Lease, then (i) Tenant shall immediately pay to Landlord, upon
demand, a sum equal to the total amount of Basic Rent Abatement which has been used by Tenant as of
the date of the occurrence of such event of monetary default, and (ii) all of the Basic Rent
Abatement which has not been used by Tenant as of the date of the occurrence of such event of
monetary default shall thereby automatically terminate and become null and void, and Tenant shall
thereafter pay all Basic Rent when due under this Lease, without regard to the Basic Rent Abatement
provisions of this Lease. For example, if Tenant’s fails to cure a monetary default under the Lease
on April 11, 2005, Tenant shall pay to Landlord, upon demand, the Basic Rent Abatement for the
period of January 1, 2005 through January 31, 2005 in the amount of $15,162.40 (1 month x
$15,162.40 monthly Basic Rent).
Upon Tenant’s execution of this Lease, the sum of FIFTEEN THOUSAND ONE HUNDRED SIXTY-TWO
AND 40/100 DOLLARS ($15,162.40) shall be due, representing the Basic Rent for the month of
February 2005.
On March 1, 2005, the sum of FIFTEEN THOUSAND ONE HUNDRED SIXTY-TWO AND 40/100 DOLLARS ($15,162.40) shall be due, and a like sum due on the first day of each month
thereafter, through and including January 1, 2006.
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BUILDING: | 1098 Alta | |||
PROPERTY: | 1-0001 | |||
UNIT: | 1 | |||
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On
February 1, 2006, the sum of FIFTEEN THOUSAND EIGHT HUNDRED FIFTY-ONE AND 60/100
DOLLARS ($15,851.60) shall be due, and a like sum due on the first day of each month thereafter,
through and including January 1, 2007.
On February 1, 2007, the sum of SEVENTEEN THOUSAND TWO HUNDRED THIRTY AND NO/100 DOLLARS
($17,230.00) shall be due, and a like sum due on the first day of each month thereafter, through
and including January 1, 2008; or until the entire aggregate sum of FIVE HUNDRED SEVENTY-EIGHT
THOUSAND NINE HUNDRED TWENTY-EIGHT AND NO/100 DOLLARS ($578,928.00) has been paid (as said
Aggregate Basic Rent may be increased as noted above).
(a) All Taxes relating to the Premises as set forth in Paragraph 13, and
(b) All insurance premiums and deductibles relating to the Premises, as set forth in
Paragraph 17, and
(c) All charges, costs and expenses, which Tenant is required to pay hereunder, together with
all interest and penalties, costs and expenses including reasonable attorneys’ fees and legal
expenses, that may accrue thereto in the event of Tenant’s failure to pay such amounts, and all
damages, reasonable costs and expenses which Landlord may incur by reason of default of Tenant or
failure on Tenant’s part to comply with the terms of this Lease. In the event of nonpayment by
Tenant of Additional Rent, Landlord shall have all the rights and remedies with respect thereto as
Landlord has for nonpayment of Rent.
References to “Proportionate Share” herein and throughout the Lease shall mean the
Proportionate Share allocated to the Premises based on (a) the total square footage of Tenant’s
Premises as a percentage of the total square footage of the Building
(13,784± square foot Premises
divided by 61,290± square foot Building equals 22.49%) or (b) such other equitable basis as
reasonably calculated by Landlord.
The Additional Rent due hereunder shall be paid to Landlord or Landlord’s agent (i) within
five days for taxes and insurance and within thirty (30) days for all other Additional Rent items
after presentation of invoice from Landlord or Landlord’s agent setting forth such Additional Rent
(notwithstanding anything to the contrary herein, Landlord shall not be required to submit ongoing
monthly statements to Tenant reflecting amounts owed as Additional Rent) and/or (ii) at the option
of Landlord, Tenant shall pay to Landlord monthly, in advance, Tenant’s Proportionate Share of an
amount estimated by Landlord to be Landlord’s approximate average monthly expenditure for such
Additional Rent items, which estimated amount shall be reconciled (i) within one hundred twenty
(120) days of the end of each calendar year and (ii) within 120 days of the Termination Date (or as soon thereafter
as reasonably possible if, for whatever reason, the Landlord cannot complete the reconciliation
within said 120 day periods) or more frequently if Landlord elects to do so at Landlord’s sole and absolute
discretion as compared to Landlord’s actual expenditure for said Additional Rent items, with Tenant
paying to
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Landlord, upon demand, any amount of actual expenses expended by Landlord in excess of said
estimated amount, or Landlord crediting to Tenant (providing Landlord may withhold any amount
thereof required to cure Tenant’s default in the performance of any of the terms, covenants and
conditions of this Lease) any amount of estimated payments made by Tenant in excess of Landlord’s
actual expenditures for said Additional Rent Items. Within thirty (30) days after receipt of
Landlord’s reconciliation, Tenant shall have the right, at Tenant’s sole expense, to audit, at a mutually convenient time at
Landlord’s office, Landlord’s records specifically limited to the foregoing expenses. Such audit must be
conducted by Tenant or an independent nationally recognized accounting firm that is not being
compensated by Tenant or other third party on a contingency fee basis. Tenant shall submit to
Landlord a complete copy of said audit at no expense to Landlord and a written notice stating the
results of said audit, and if such notice by Tenant and the respective audit reveals that Landlord
has overcharged Tenant, and the audit is not challenged by Landlord, the amount overcharged shall
be credited to Tenant’s account within thirty (30) days after completion of Landlord’s review and
approval of said audit. The audit rights of Tenant under this Paragraph 4.D may be assigned by
Tenant in the event Tenant assigns its interest in the Lease, provided Tenant obtains Landlord’s
written consent to such assignment; however, the audit rights shall only be applicable to the
period that commences after the date of assignment and/or merger as the case may be.
Notwithstanding anything to the contrary herein, no subtenant shall have any right to conduct an
audit of Landlord’s books and/or records.
Landlord shall, upon request by Tenant, provide Tenant with copies of individual invoices
related to the foregoing actual expenses, either by facsimile or by U.S. mail; however, in no event
shall Landlord be obligated to provide duplicate copies of any invoice or other Lease documentation
to Tenant and/or Tenant’s representative (if any) for an audit of Tenant’s records outside of
Landlord’s office.
The reference to “Rent” in this Paragraph 4 includes Basic Rent, Additional Rent, and fixed
Management Fee. The respective obligations of Landlord and Tenant under this paragraph shall
survive the expiration or other termination of the Term of this Lease, and if the Term hereof shall
expire or shall otherwise terminate on a day other than the last day of a calendar year, the actual
Additional Rent incurred for the calendar year in which the Term hereof expires or otherwise
terminates shall be determined and settled on the basis of the statement of actual Additional Rent
for such calendar year and shall be prorated in the proportion which the number of days in such
calendar year preceding such expiration or termination bears to 365.
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without compensation to Tenant. Landlord may, upon termination of this Lease, remove all
moveable furniture and equipment so abandoned by Tenant, at Tenant’s sole cost, and repair any
damage caused by such removal at Tenant’s sole cost. Upon surrender of the Premises to Landlord,
Tenant shall provide Landlord with keys for all interior locking doors and Tenant agrees to pay to
Landlord the cost of Landlord re-keying (i) all exterior doors (including mechanical rooms) and
(ii) all interior doors with locks to which Tenant is not able to provide Landlord keys (provided
that Landlord provided keys to Tenant for said interior doors upon Lease commencement). Tenant may
utilize any existing security system located within the Premises, and Tenant shall not be required
to remove any such existing equipment or related wiring. If Tenant has installed a cardkey system
(which installation is subject to Landlord’s Consent pursuant to Paragraph 7 (“Alterations and
Additions”), Tenant shall also be responsible for the costs Landlord incurs in replacing the doors
and/or door frames in which such cardkey system was installed and removing any and all equipment
and wiring related thereto unless Landlord notifies Tenant in writing prior to the Lease
Termination Date that Landlord wants the cardkey system to remain in the Premises, in which event
the cardkey system shall remain on the Premises after the expiration of the Term and Tenant will
provide Landlord with the cardkeys and instructions for such system along with any other equipment
that is necessary for the operation of said cardkey system. For example, if software and/or
specialized computer systems are required to operate the cardkey system, Tenant shall leave the
cardkey pads, the software (hard copies and assignment of the license to Landlord should Landlord
so elect), the computer and the instructions thereto in place in the Premises. If the Premises is
not surrendered at the end of the Term or sooner termination of this Lease, Tenant shall indemnify
Landlord against loss or liability resulting from the delay by Tenant in so surrendering the
Premises including, without limitation, any claims made by any succeeding Tenant founded on such
delay. Nothing contained herein shall be construed as an extension of the Term hereof or as a
consent of Landlord to any holding over by Tenant. The voluntary or other surrender of this Lease
or the Premises by Tenant or a mutual cancellation of this Lease shall not work as a merger and, at
the option of Landlord, shall either terminate all or any existing subleases or subtenancies or
operate as an assignment to Landlord of all or any such subleases or subtenancies.
6. “AS-1S” BASIS.
1) | Remove the walls and related doors as shown in Purple dashed lines on Exhibit B attached hereto, and make any necessary adjustments and/or repairs to the VCT (if any), fire sprinkler system, HVAC supplies and returns, lighting, electrical, and ceiling tiles and grid required as a result of said wall and door removal; | ||
2) | Replace the existing VCT (with Landlord’s standard grade VCT) in the “Lunch Room” and the “Break Room” as shown in Green crosshatch on Exhibit B attached hereto; | ||
3) | Replace the existing carpet throughout the Premises with Landlord’s standard grade new carpet; | ||
4) | Remove the existing VCT and install Landlord’s standard grade new carpet in the rooms shown in Cyan Blue crosshatch on Exhibit B. and shall remove the existing power strip along the wall of one of the said rooms prior to painting the walls per item 5) below; | ||
5) | Paint the interior walls throughout the Premises; | ||
6) | Provide and install the Furniture listed on Exhibit F attached hereto, which Furniture is to be leased by Tenant pursuant to Paragraph 46 (“Personal Property of Landlord”) and ensure that each cubicle provided and installed by Landlord has (a) one (1) operational 4-port voice and data outlet (two (2) voice and two (2) data outlets) and |
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(b) one working duplex electrical outlet (Landlord shall have the wiring
and outlets tested upon installation to ensure that said wiring and outlets are
in working order); Landlord agrees that the existing server rack in the area
shown in Yellow Crosshatch on Exhibit B shall remain in the Premises and shall
be leased by Tenant per Lease Paragraph 46 (“Personal Property of Landlord”);
7) | Install Tenant’s Personal Property listed in Exhibit A of the Xxxx of Sale attached hereto as Exhibit G, which Tenant’s Personal Property is to be purchased by Tenant from Landlord pursuant to Paragraph 47 (“Tenant’s Personal Property”) and ensure that each cubicle of Tenant’s Personal Property has (a) one (1) operational 4-port voice and data outlet (two (2) voice and two (2) data outlets) and (b) one working duplex electrical outlet (Landlord shall have the wiring and outlets tested upon installation to ensure that said wiring and outlets are in working order); | ||
8) | Landlord will replace any damaged, stained and/or missing ceiling tiles throughout the Premises; | ||
9) | Landlord shall have the electrical system within the Premises inspected and any necessary repairs completed (including the replacement of any broken or non-functioning lights and ballasts); | ||
10) | Landlord shall have the HVAC system within the Premises inspected and any necessary repairs completed; | ||
11) | Landlord shall have the roof membrane and the balconies for the Building inspected and any necessary repairs completed; and | ||
12) | Landlord shall have the plumbing system within the Premises inspected and any necessary repairs completed. |
The Tenant Improvements referenced above shall become a part of the Premises upon installation
and Tenant shall not be required or allowed to remove said Tenant Improvements upon Lease
Termination (except as to Tenant’s Personal Property referenced in Paragraph 6.B.7) above). In the
event this Lease is terminated early due to an uncured default by Tenant and/or a written agreement
between Landlord and Tenant to terminate the Lease prior to the scheduled Termination Date, Tenant
agrees to reimburse Landlord for one hundred percent (100%) of the balance of the unamortized cost
of the Tenant Improvements previously paid for by Landlord that is outstanding as of the early
Termination Date. Said amount shall be paid by Tenant to Landlord by the Termination Date and/or
Landlord may, at its option, deduct part of all of said unamortized Tenant Improvement cost from
Tenant’s Security Deposit.
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Landlord an original 1/8” scaled sepia or an other electronic format as solely determined by
Landlord. Tenant shall retain title to all moveable furniture and trade fixtures placed in the
Premises. All heating, lighting, electrical, air conditioning, security systems, floor to ceiling
partitioning, drapery, carpeting, and floor installations made by Tenant, together with all
property that has become an integral part of the Premises, shall not be deemed trade fixtures.
Tenant agrees that it will not proceed to make such Alterations, without having obtained consent
from Landlord to do so, and until five (5) business days from the receipt of such consent, in order
that Landlord may post appropriate notices to avoid any liability to contractors or material suppliers for payment for Tenant’s Alterations. Tenant will at all times
permit such notices to be posted and to remain posted until the completion of work. As a condition
of Landlord’s Consent to Alterations to the Premises, after Landlord provides written Consent to
Alterations and prior to any work commencing on the Alterations, Landlord may, at its sole and
absolute discretion, require Tenant to secure and provide to Landlord at Tenant’s own cost and
expense, a completion and lien indemnity letters of credit, satisfactory to Landlord in the amount
of one hundred fifty percent (150%) of the cost to fund the original construction of any
Alterations (“Letter of Credit A”) and, if Landlord does not agree in the Consent to Alterations
that said Alterations are to remain at the end of the Lease Term, an additional letter of
credit in the amount of one hundred fifty percent (150%) of the cost to fund the subsequent
cost of the removal of said Alterations and the restoration of the Premises at the Termination Date
(“Letter of Credit B”). Said performance Letters of Credit shall be kept in place as follows: for
Letter of Credit A, for sixty (60) days after the completion of the original construction of said
Alterations; and for Letter of Credit B, the later of (a) sixty (60) days after the Termination
Date or (b) sixty (60) days after the completion of the restoration work and Tenant has provided
Landlord with proof of payment to respective vendors and copies of recorded full unconditional lien
release related to the Alterations and/or restoration work. Notwithstanding anything to the
contrary, Landlord hereby waives said performance Letters of Credit with regard to Tenant’s initial
installation of a security system within the Premises; PROVIDED, HOWEVER, that (1) Landlord has
given prior written approval for the security system to be installed by Tenant; and (2) by no later
than January 31, 2005, Tenant shall provide to Landlord (i) written proof of full payment to the
respective vendors for the installation of said approved security system; and (ii) a full
unconditional lien waiver to Landlord for the payment of said security system. Tenant further
covenants and agrees that any mechanic’s lien filed against the Premises for work claimed to have
been done for, or materials claimed to have been furnished to Tenant, will be discharged by Tenant,
by bond or otherwise, within ten (10) days after notice of filing thereof, at the cost and expense
of Tenant. Any exceptions to the foregoing must be made in writing and executed by both Landlord
and Tenant.
Landlord shall operate, manage and maintain the Common Area. The manner in which the Common Area
shall be maintained and the expenditures for such maintenance shall be at the discretion of
Landlord.
9. PARKING. Tenant shall have the right to the nonexclusive use of fifty
(50) parking spaces in the common parking area of the Building, which common parking
area may be used by Tenant in common with other tenants or occupants of the Building.
Tenant agrees that Tenant, Tenant’s employees, agents, representatives, and/or invitees
shall not use parking spaces in excess of said 50 parking spaces allocated to Tenant
hereunder. Landlord shall have the right, at Landlord’s sole discretion, to
specifically designate the location of Tenant’s parking spaces within the common
parking area of the Building, in which event Tenant agrees that Tenant, Tenant’s
employees, agents, representatives and/or invitees shall not use any parking spaces
other than those parking spaces specifically designated by Landlord for Tenant’s use.
Said parking spaces, if specifically designated by Landlord to Tenant, may be
reasonably relocated by Landlord at any time, and from time to time if necessary.
Landlord shall give Tenant written notice of any change in Tenant’s parking spaces.
Tenant shall not, at any time, park, or permit to be parked, any trucks or vehicles adjacent
to the loading area so as to interfere in any way with the use of
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such areas, nor shall Tenant, at any time, park or permit the parking of Tenant’s trucks and
other vehicles or the trucks and vehicles of Tenant’s suppliers or others, in any portion of the
common areas not designated by Landlord for such use by Tenant. Tenant shall not park nor permit to
be parked, any inoperative vehicles or equipment on any portion of the common parking area or other
common areas of the Building. Tenant agrees to assume responsibility for compliance by its
employees with the parking provision contained herein. If Tenant or its employees park in other
than designated parking areas, then Landlord may charge Tenant, as an additional charge, and Tenant agrees to pay Ten Dollars
($10.00) per day for each day or partial day each such vehicle is parking in any area other than that
designated. Tenant hereby authorizes Landlord, at Tenant’s sole expense, to tow away from the
Building any vehicle belonging to Tenant or Tenant’s employees parked in violation of these
provisions, or to attach violation stickers or notices to such vehicles; provided, however, that
unless any such vehicle is parked in a dangerous and/or designated no parking zone, Landlord will
attach a twenty-four (24) hour violation notice on said vehicle prior to having the vehicle towed
from the Property. Tenant shall use the parking area for vehicle parking only and shall not use the
parking areas for storage.
A. Maintenance of the Common Areas of the Parcel. Landlord shall operate, manage and maintain
the Common Areas of the Parcel. As Additional Rent and in accordance with Paragraph 4.D of this
Lease, Tenant shall pay to Landlord Tenant’s Proportionate Share of all expenses of operation,
maintenance and repair of the Common Areas of the Parcel including, but not limited to, license,
permit, and inspection fees; security; utility charges associated with exterior landscaping and
lighting (including water and sewer charges); all charges incurred in the maintenance and
replacement of landscaped areas, lakes, parking lots and paved areas (including repairs’,
replacement, resealing and restriping), sidewalks, driveways, maintenance, repair and replacement
of all fixtures and electrical, mechanical and plumbing systems; supplies, materials, equipment and
tools; the cost of capital expenditures which have the effect of reducing operating expenses,
provided, however, that in the event Landlord makes such capital improvements, Landlord shall
amortize its investment in said improvements (together with interest at the rate of fifteen (15%)
percent per annum on the unamortized balance if Landlord elects to allocate payment to Tenant
monthly over the Term of the Lease, rather than requiring Tenant to pay such amortized costs in one
lump sum) (“Amortized Cost”) as an operating expense in accordance with standard accounting
practices, provided, that such amortization is not at a rate greater than the anticipated savings
in the operating expenses.
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and elevators (if any); license, permit and inspection fees; security, supplies, materials,
equipment and tools; the cost of capital expenditures which have the effect of reducing operating
expenses, provided, however, that in the event Landlord makes such capital improvements, Landlord
shall amortize its investment in said improvements (together with interest at the rate of fifteen
percent (15%) per annum on the unamortized balance if Landlord elects to allocate payment to Tenant
monthly over the Term of the Lease, rather than requiring Tenant to pay such amortized costs in one
lump sum) (“Amortized Cost”) as an operating expense in accordance with standard accounting
practices, provided, that such amortization is not at a rate greater than the anticipated savings
in the operating expenses. Tenant hereby waives all rights hereunder, and benefits of, subsection 1
of Section 1932 and Sections 1941 and 1942 of the California Civil Code and under any similar law,
statute or ordinance now or hereafter in effect.
In the event the Term of the Lease is extended for any reason whatsoever, Tenant’s Proportionate
Share of the Amortized Cost of the earlier repair and/or replacement cost shall be increased to
include the additional amount payable to Landlord due to the Extended Term of the Lease. For
Example: In the event: (i) the roof structure was repaired as illustrated above; and (ii) this
Lease is extended for an additional one year period, Tenant would be liable for an additional
payment to Landlord equal to Tenant’s Proportionate Share of $112.44 ($9.37/month x 12 months) as
Additional Rent. Said payment would be due in full within thirty days of Tenant’s receipt of an
invoice from Landlord.
“Additional Rent” as used herein shall not include Landlord’s debt repayments; cost for the
installation of partitioning or any other tenant improvements for third party tenants; cost of
attracting third party tenants; depreciation; interest; or executive salaries.
Landlord shall not be liable for and Tenant shall not be entitled to any abatement or reduction of
rent by reason of any interruption or failure of utility services to the Premises when such
interruption or failure is
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caused by accident, breakage, repair, strikes, lockouts, or other labor disturbances or
labor disputes of any nature, or by any other cause, similar or dissimilar, beyond the reasonable
control of Landlord.
Landlord shall furnish to the Premises between the hours of 8:00 am and 6:00 pm, Mondays
through Fridays (holidays excepted) and subject to the Rules and Regulations of the Common Area
hereinbefore referred to, reasonable quantities of water, gas and electricity suitable for the
intended use of the Premises and heat and air-conditioning required in Landlord’s judgment for the
comfortable use and occupation of the Premises for such purposes. Tenant may, from time to time, have its staff and equipment operate
on a twenty-four (24) hour-a-day, seven (7) day-a-week schedule, and Tenant shall pay for extra
utilities, if any, used by Tenant. Tenant agrees that at all times it will cooperate fully with
Landlord and abide by all regulations and requirements that Landlord may prescribe for the proper
functioning and protection of the Building heating, ventilating and air-conditioning systems.
Whenever heat generating machines, equipment, or any other devices (including exhaust fans) are
used in the Premises by Tenant which affect the temperature otherwise maintained by the
air-conditioning system, Landlord shall have the right to install supplementary air-conditioning
units in the Premises and the cost thereof, including the cost of installation and the cost of
operation and maintenance thereof, shall be paid by Tenant to Landlord upon demand by Landlord.
Tenant will not, without the written consent of Landlord, use any apparatus or device in the
Premises (including, without limitation), electronic data processing machines or machines using
voltage in excess of 120 Volts which will in any way increase the amount of electricity, gas, water
or air-conditioning usually furnished or supplied to Premises being used as general office space,
or connect with electric current (except through existing electrical outlets in the Premises), or
with gas or water pipes any apparatus or device for the purposes of using electric current, gas, or
water. If (i) Tenant shall require water, gas, or electric current in excess of that usually
furnished or supplied to Premises being used as general office space, Tenant shall first obtain the
written consent of Landlord, which consent shall not be unreasonably withheld, or (ii) if Tenant is
found to be using water, gas and/or electrical current in excess of its Proportionate Share (as
such excess usage is confirmed by a study conducted by
Landlord’s contractor(s), Landlord may (a)
adjust the Proportionate Share allocated to Tenant based on Tenant’s actual or estimated use or (b)
cause an electric current, gas or water meter to be installed in the Premises in order to measure
the amount of electric current, gas or water consumed for any such excess use. In the event
Landlord questions Tenant’s usage, Landlord shall employ the services of a licensed electrical or
plumbing contractor to determine what Tenant’s actual use is and Tenant shall be responsible for
paying the cost related to said investigation by the licensed contractor or any other qualified
third party vendor that Landlord may employ to provide such service. The cost of any such meter and
of the installation, maintenance and repair thereof, all charges for such excess water, gas and
electric current consumed (as shown by such meters and at the rates then charged by the furnishing
public utility); and any additional expense incurred by Landlord in keeping account of electric
current, gas, or water so consumed shall be paid by Tenant, and Tenant agrees to pay Landlord
therefor promptly upon demand by Landlord.
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imposed by reason of environmental regulation or other governmental control of the Premises and
(iii) all costs and fees (including reasonable attorneys’ fees) incurred by Landlord in reasonably
contesting any Real Property Tax and in negotiating with public authorities as to any Real Property
Tax. If at any time during the Term of this Lease the taxation or assessment of the Premises
prevailing as of the Commencement Date of this Lease shall be altered so that in lieu of or in
addition to any Real Property Tax described above there shall be levied, assessed or imposed
(whether by reason of a change in the method of taxation or assessment, creation of a new tax or
charge, or any other cause) an alternate or additional tax or charge (i) on the value, use or
occupancy of the Premises or Landlord’s interest therein or (ii) on or measured by the gross
receipts, income or rentals from the Premises, on Landlord’s business of leasing the Premises, or
computed in any manner with respect to the operation of the Premises, then any such tax or charge,
however designated, shall be included within the meaning of the term “Real Property Taxes” for
purposes of this Lease. If any Real Property Tax is based upon property or rents unrelated to the
Premises, then only that part of such Real Property Tax that is fairly allocable to the Premises
shall be included within the meaning of the term “Real Property Taxes.” Notwithstanding the
foregoing, the term “Real Property Taxes” shall not include estate, inheritance, gift or franchise
taxes of Landlord or the federal or state net income tax imposed on Landlord’s income from all
sources.
Notwithstanding anything to the contrary above , it is agreed that if any special assessments for
capital improvements are assessed, and if Landlord has the option to either pay the entire
assessment in cash or go to bond, and if Landlord elects to pay the entire assessment in cash in
lieu of going to bond, the entire portion of the assessment assigned to Tenant’s Leased Premises
will be prorated over the same period that the assessment would have been prorated had the
assessment gone to bond (including interest) and Tenant shall pay its Proportionate Share over the
Term remaining in the Lease (including the Extended Lease Term if said Lease Term is extended for
any reason whatsoever) as Additional Rent on the first day of the remaining months in the Lease
Term (as may be extended).
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conduct or transactions of any of said persons in or about or concerning the Premises,
including any failure of Tenant to observe or perform any of its obligations hereunder; shall be
issued by an insurance company admitted to transact business in the State of California; and shall
provide that the insurance effected thereby shall not be canceled, except upon thirty (30) days’
prior written notice to Landlord. Tenant’s insurance shall be primary as respects to the Landlord
Entities, or if excess, shall stand in an unbroken chain of coverage. In either event, any other
insurance maintained by the Landlord Entities shall be in excess of Tenant’s insurance and shall not be called upon to contribute with any
insurance required to be provided by Tenant. The required insurance shall be reflected on a certificate
of insurance of said policy, which certificate shall be delivered to Landlord concurrently
with Tenant’s return of this executed Lease to
Landlord. If, during the Term of this Lease,
in the reasonable considered opinion of Landlord’s Lender, insurance advisor, or counsel, the amount
of insurance described in this Paragraph 15 is not adequate, Tenant agrees to increase said
coverage to such reasonable amount as Landlord’s Lender, insurance advisor, or counsel shall deem
adequate.
Tenant shall also maintain a policy or policies of xxxxxxx’x compensation insurance and any
other employee benefit insurance sufficient to comply with all laws.
In addition and notwithstanding anything to the contrary in this Paragraph 17, each party to
this Lease hereby waives all rights of recovery against the other party or its officer, employees,
agents and representatives for loss or damage to its property or the property of others under its
control, arising from any cause insured against under the fire and extended “special form” property
coverage (excluding, however, any loss resulting from Hazardous Material contamination of the
Property) required to be maintained by the terms of this Lease to the extent full reimbursement of
the loss/claim is received by the insured party. Each party required to carry property insurance
hereunder shall cause the policy evidencing such insurance to include a provision permitting such
release of liability (“waiver of subrogation endorsement”); provided, however, that if the
insurance policy of either releasing party prohibits such waiver, then this waiver shall not take
effect until consent to such waiver is obtained. If such waiver is so prohibited, the insured party
affected shall promptly notify the other party thereof. In the event the waivers are issued to the
parties and are not valid under current policies and/or subsequent insurance policies, the
non-complying party will provide, to the other party, thirty (30) days’ advance notification of the
cancellation of the subrogation waiver, in which case neither party will provide such subrogation
waiver thereafter and this paragraph will be null and void. The foregoing waiver of subrogation
shall not include any loss resulting from Hazardous Material contamination of the Property or any
insurance coverage relating thereto.
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whatsoever, accruing and/or occurring during the Term of this Lease. The provisions of
this Paragraph 18 shall survive the expiration or termination of this Lease.
Any non-conformance of the Premises and/or the improvements installed and paid for by Landlord as
detailed in Paragraph 6.B (“Tenant Improvements to be Constructed by Landlord”), required by the
governing agency to be corrected, shall be corrected at the cost and expense of Landlord if such
non-conformance exists as of the Commencement Date of the Lease and further provided that such
governing agency’s requirement to correct the non-conformance is not initiated as a result of: (i)
any future improvements made by or for Tenant; or (ii) any permit request made to a governing
agency by or for Tenant. Except as noted above, Landlord agrees that the Amortized Cost of capital
improvements necessitated by any new laws, statutes, ordinances or governmental rules,
regulations, or requirements that become effective after the Lease Commencement Date will be
amortized over the useful life of such improvement, and Tenant shall be required to pay its
Proportionate Share of the Amortized Cost as determined by (a) the full Term of subject Lease and
(b) any future extensions of subject Lease with the following exception: Notwithstanding anything
to the contrary above, Tenant will immediately pay 100 percent of the cost of required capital
improvements related to Tenant’s particular use of the Premises and resulting from (i) and (ii)
above.
Example 1: | Amortized Cost of capital improvement — $10,000 | |||
Useful life 15 years — $666.67 per year ($55.56 per month) | ||||
Lease Term — 37 months | ||||
Cost to Tenant — Proportionate Share of $462.50 ($55.56 x 22.49% = $12.50/month x 37 months = $462.50) | ||||
Due within thirty (30) days of Tenant’s receipt of an invoice from Landlord | ||||
Example 2: | Amortized Cost of improvement due to Tenant’s specific use of Premises — $10,000 | |||
Useful life 15 years | ||||
Lease Term — 37 months | ||||
Cost to Tenant—$10,000 | ||||
Due within thirty (30) days of Tenant’s receipt of an invoice from Landlord |
In the event the Term of the Lease is extended for any reason whatsoever, Tenant’s Proportionate
Share of the earlier Amortized Cost shall be increased to include the additional amount payable to
Landlord due to the Extended Term of the Lease. For Example: In the event: (i) the restrooms are
required to be enlarged due to ADA compliance; and (ii) this Lease is extended for an additional
one year period, Tenant would be liable for an additional payment to Landlord equal to Tenant’s
Proportionate Share of $150.00 ($12.50 x 12 months) as Additional Rent. Said payment would be due
within thirty (30) days of Tenant’s receipt of an invoice from Landlord.
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processing and administration of the consent documentation and Landlord’s attorneys’ fees (if
any), and Landlord shall require Tenant’s subtenant, assignee or transferee (or other assignees or
transferees) to assume in writing all of the obligations under this Lease and for Tenant to remain
liable to Landlord under the Lease.
B.
Grounds to Refuse Proposed Transfer. Notwithstanding the foregoing,
Landlord and tenant agree that it shall not be unreasonable for Landlord to refuse to consent to a
proposed assignment, sublease or other transfer (“Proposed Transfer”) if the Premises or any other portion
of the Property would become subject to additional or different Government Requirements as a
direct or indirect consequence of the Proposed Transfer and/or the Proposed Transferee’s use
and occupancy of the Premises and the Property. However, Landlord may, in its sole discretion, consent to such a
Proposed Transfer where Landlord is indemnified by Tenant and (i) the subtenant or (ii) the
assignee, in form and substance satisfactory to Landlord and/or to Landlord’s counsel, from and
against any and all costs, expenses, obligations and liability arising out of the Proposed Transfer
and/or the Proposed Transferee’s use and occupancy of the Premises and the Property.
C. Voluntary Termination of Lease — Required Sublease Language. Any and all sublease
agreement(s) between Tenant and any and all subtenant(s) (“Subtenant”) (which agreements must be
consented to by Landlord, pursuant to the requirements of this Lease) shall contain the following
language:
“If Landlord and Tenant jointly and voluntarily elect, for any reason whatsoever,
to terminate the Master Lease prior to the scheduled Master Lease termination date,
then, if Landlord so elects, this Sublease (if then still in effect) shall terminate
concurrently with the termination of the Master Lease. Subtenant expressly
acknowledges and agrees that (1) the voluntary termination of the Master Lease by
Landlord and Tenant and the resulting termination of this Sublease shall not give
Subtenant any right or power to make any legal or equitable claim against Landlord,
including without limitation any claim for interference with contract or interference
with prospective economic advantage, and (2) Subtenant hereby waives any and all
rights it may have under law or at equity against Landlord to challenge such an early
termination of the Sublease, and unconditionally releases and relieves Landlord, and
its officers, directors, employees and agents, from any and all claims, demands,
and/or causes of action whatsoever (collectively, “Claims”), whether such matters are
known or unknown, latent or apparent, suspected or unsuspected, foreseeable or
unforeseeable, which Subtenant may have arising out of or in connection with any such
early termination of this Sublease. Subtenant knowingly and intentionally waives any
and all protection which is or may be given by Section 1542 of the California Civil
Code which provides as follows: “A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his settlement with
debtor.
The term of this Sublease is therefore subject to early termination. Subtenant’s
initials here below evidence (a) Subtenant’s consideration of and agreement to this
early termination provision, (b) Subtenant’s acknowledgment that, in determining the
net benefits to be derived by Subtenant under the terms of this Sublease, Subtenant
has anticipated the potential for early termination, and (c) Subtenant’s agreement to
the general waiver and release of Claims above.
Initials: | Initials: | ” | ||||||||||
Subtenant | Tenant |
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consolidation, whichever is greater (collectively “Permitted Transfers” ), and (c) Tenant shall
give Landlord written notice at least thirty (30) days prior to the effective date of the proposed
purchase, merger, consolidation or reorganization; or (ii) any third party or entity to whom
Tenant, as an ongoing concern, sells all or substantially all of its assets; provided that (a) said
affiliate or successor owns all or substantially all of the assets of Tenant, (b) the net worth of
the resulting or acquiring corporation has a net worth after the merger, consolidation or
acquisition equal to or greater than the net worth of Tenant (x) at the time of Lease execution or
(y) at the time of such merger, consolidation or acquisition, whichever is greater (collectively “Permitted Transfers”), and (c) Tenant shall give Landlord
written notice at least thirty (30) days prior to the effective date of the proposed purchase,
merger, consolidation or reorganization; and (2) waive its right to terminate the Lease due to a
Permitted Transfer. No such assignment or subletting will release the Tenant from its liability and
responsibility under this Lease to the extent Tenant continues in existence following such
transaction. Notwithstanding the above, Tenant shall be required to (a) give Landlord written
notice prior to such assignment or subletting to any party as described in (i) and (ii) above, (b)
execute Landlord’s consent document prepared by Landlord reflecting the assignment or subletting
and (c) pay Landlord’s costs for processing said Consent prior to the effective date of said
assignment or sublease. Nothing herein shall be deemed to permit (i) any assignee to further assign
this Lease or sublet all or any portion of the Premises or (ii) any subtenant to assign its
interest in the sublease to any other party without Landlord’s prior written consent.
Within thirty (30) days after the court approval of the assumption of this Lease, the trustee
or receiver shall cure (or provide adequate assurance to the reasonable satisfaction of Landlord
that the trustee or receiver shall cure) any and all previous defaults under the unexpired Lease
and shall compensate Landlord for all actual pecuniary loss and shall provide adequate assurance of
future performance under said Lease to the reasonable satisfaction of Landlord. Adequate assurance
of future performance, as used herein, includes, but shall not be limited to: (i) assurance of
source and payment of Rent, and other consideration due under this Lease; (ii) assurance that the
assumption or assignment of this Lease will not breach substantially any provision, such as radius,
location, use, or exclusivity provision, in any agreement relating to the above described Premises.
Nothing contained in this section shall affect the existing right of Landlord to refuse to
accept an assignment upon commencement of or in connection with a bankruptcy, liquidation,
reorganization or insolvency action or an assignment of Tenant for the benefit of creditors or
other similar act. Nothing contained in this Lease shall be construed as giving or granting or creating an equity in the
demised Premises to Tenant. In no event shall the leasehold estate under this Lease, or any
interest therein, be
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assigned by voluntary or involuntary bankruptcy proceeding without the prior written
consent of Landlord. In no event shall this Lease or any rights or privileges hereunder be an asset
of Tenant under any bankruptcy, insolvency or reorganization proceedings.
The failure to perform or honor any covenant, condition or representation made under this
Lease shall constitute a default under this Lease by Tenant upon expiration of the
appropriate grace period hereinafter provided. Tenant shall have a period of five (5)
days from the date of written notice from Landlord within which to cure any default in the
payment of Rent or adjustment thereto. Tenant shall have a period of thirty (30) days
from the date of written notice from Landlord within which to cure any other non-monetary default
under this Lease; provided, however, that with respect to non-monetary defaults not involving
Tenant’s failure to pay Basic Rent or Additional Rent, Tenant shall not be in default
if (i) more than thirty (30) days is required to cure such non-monetary default and
(ii) Tenant commences cure of such default as soon as reasonably practicable after receiving
written notice of such default from Landlord and thereafter continuously and with due diligence
prosecutes such cure to completion. Upon an uncured default of this Lease by Tenant, Landlord shall
have the following rights and remedies in addition to any other rights or remedies available to
Landlord at law or in equity:
(a) The rights and remedies provided for by California Civil Code Section 1951.2
including but not limited to the right to terminate this Lease and/or the recovery of 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 rental loss for the same period that Tenant proves could be
reasonably avoided, as computed pursuant to subsection (b) of said Section 1951.2. Any
proof by Tenant under subparagraphs (2) and (3) of Section 1951.2 of the California Civil Code of the amount of rental loss that could be reasonably avoided
shall be made in the following manner: Landlord and Tenant shall each select a licensed real estate
broker in the business of renting property of the same type and use as the Premises and in the same
geographic vicinity. Such two real estate brokers shall select a third licensed real estate broker,
and the three licensed real estate brokers so selected shall determine the amount of the Rent loss
that could be reasonably avoided from the balance of the Term of this Lease after the time of
award. The decision of the majority of said licensed real estate brokers shall be final and binding
upon the parties hereto. As part of such damages, Landlord shall have the right to recover that
portion of any leasing commission paid by Landlord in connection with this Lease applicable to the
unexpired Term of this Lease.
(b) The rights and remedies provided by California Civil Code Section 1951.4, which allows
Landlord to continue the Lease in effect and to enforce all of its rights and remedies under this
Lease, including the right to recover Rent as it becomes due, for so long as Landlord does not
terminate Tenant’s right to possession; acts of maintenance or preservation, efforts to relet the
Premises, or the appointment of a receiver upon Landlord’s initiative to protect its interest under
this Lease shall not constitute a termination of Tenant’s right to possession.
(c) The right to terminate this Lease by giving notice to Tenant in accordance with applicable
law.
(d) To the extent permitted by law, the right and power to enter the Premises and remove
therefrom all persons and property, to store such property in a public warehouse or elsewhere at
the cost of and for the account of Tenant, and to sell such property and apply such proceeds therefrom pursuant to applicable California law. Landlord may from time to time
sublet the Premises or any part thereof for such term or terms (which may extend beyond the Term of
this Lease) and at such Rent and such other terms as Landlord in its reasonable sole discretion may
deem advisable, with the right to make alterations and repairs to the Premises. Upon each
subletting, (i) Tenant shall be immediately liable to pay Landlord, in addition to indebtedness
other than Rent due hereunder, the reasonable cost of such subletting, including, but not limited
to, reasonable attorneys’ fees, and any real estate commissions actually paid, and the cost of such
reasonable alterations and repairs incurred by Landlord and the amount, if any, by which the Rent hereunder for the period of such subletting (to the extent such period does not
exceed the Term hereof) exceeds the amount to be paid as Rent for the Premises for such period or
(ii) at the option of Landlord, rents received from such subletting shall be applied first to
payment of indebtedness other than Rent due hereunder from Tenant to Landlord; second, to the
payment of any costs of such subletting and of such alterations and repairs; third, to payment of
Rent due and unpaid hereunder; and the residue, if any, shall be held by Landlord and applied in
payment of future Rent as the same becomes due hereunder. If Tenant has been credited
with any Rent to be received by such subletting under option (i) and such Rent shall not be
promptly paid to Landlord by the subtenant(s), or if such rentals received from such subletting
under option (ii) during any month be less than that to be paid during the month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord. Such
deficiency shall be calculated and paid monthly. No taking possession of the Premises by Landlord shall be construed as an
election on its part to terminate this Lease unless a written notice of such intention be given to Tenant. Notwithstanding any such subletting without
termination, Landlord may at any time hereafter elect to terminate this Lease for such previous
breach.
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(e) The right to have a receiver appointed for Tenant upon application by Landlord, to take possession of the Premises and to apply
any rental collected from the Premises and to exercise all other rights and remedies granted to Landlord pursuant to subparagraph (d) above.
(a) Rebuild or restore the Premises to their condition prior to the damage or destruction,
or
(b) Terminate this Lease (providing that the Premises is damaged to the extent of thirty-three
and one third percent (33 1/3%) or more of the replacement cost, exclusive of footings, foundations
and floor slabs).
If Landlord does not give Tenant notice in writing within thirty (30) days from the
destruction of the Premises of its election to either rebuild and restore them, or to terminate
this Lease, Landlord shall be deemed to have elected to rebuild or restore them, in which event
Landlord agrees, at its expense except for any deductible, which is the responsibility of the
Tenant, promptly to rebuild or restore the Premises to their condition prior to the
damage or destruction. Tenant shall be entitled to a reduction in Rent from the date of such damage
or destruction, provided Tenant is not using any portion of such damaged area, while such repair is
being made in the proportion that the area of the Premises rendered untenantable by such damage
bears to the total area of the Premises. If Landlord initially estimates that the rebuilding or
restoration will exceed 180 days or if Landlord does not complete the rebuilding or restoration
within one hundred eighty (180) days following the date of destruction (such period of time to be
extended for delays caused by the fault or neglect of Tenant or because of Acts of God, acts of
public agencies, labor disputes, strikes, fires, freight embargos, rainy or stormy weather,
inability to obtain materials, supplies or fuels, acts of contractors or subcontractors, or delay
of the contractors or subcontractors due to such causes or other contingencies beyond the control
of Landlord) (the “Allowed Restoration Period”), then, provided the Premises is damaged to the
extent of 33 1/3% or more of the replacement cost (exclusive of footings, foundations
and floor slabs) and provided the damage or destruction does not result from routine maintenance
and repairs or damage or destruction caused by vandalism and accidents for which Tenant is
responsible under Paragraph 10 (“Tenant Maintenance”), Tenant shall have the right to terminate
this Lease by giving written notice to Landlord within five days following the date
Tenant receives Landlord’s written notice stating that the restoration will exceed the Allowed
Restoration Period. Regardless of whether Landlord and/or Tenant elects to terminate the Lease
early as provided herein, Tenant shall remain liable for the insurance deductible as it relates
to the Premises. Notwithstanding anything herein to the country, Landlord’s obligation to rebuild
or restore shall be limited to the Building and interior improvements constructed by Landlord as
they existed as of the Commencement Date of the Lease and shall not include restoration of
Tenant’s trade fixtures, equipment, merchandise, or any improvements, alterations or additions made
by Tenant to the Premises, which Tenant shall forthwith replace or fully repair at Tenant’s sole
cost and expense provided this Lease is not canceled according to the provisions above.
Unless this Lease is terminated pursuant to the foregoing provisions, this Lease shall remain
in full force and effect. Tenant hereby expressly waives the provision of Section 1932, Subdivision 2, in
Section 1933. Subdivision 4 of the California Civil Code.
In any event that the Building in which the Premises are situated is damaged or destroyed to
the extent of not less then thirty-three and one third percent (33 1/3%) of the replacement cost
thereof, Landlord may elect to terminate this Lease, whether the Premises be injured or not.
Notwithstanding anything to the contrary herein, Landlord may terminate this lease in the event of
an uninsured event or if insurance proceeds are insufficient to cover one hundred percent of the
rebuilding costs net of the deductible.
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Without regard to whether this Lease is terminated pursuant to the foregoing, Tenant,
upon demand by Landlord, shall pay to Landlord Tenant’s Proportionate Share of the deductibles from
any casualty policy Landlord carries pursuant to Paragraph 17 (“Property Insurance”).
If any action or proceeding is commenced for such taking of the Premises or any
part thereof, or if Landlord is advised in writing by any entity or body having the right or power
of condemnation of its intention to condemn the Premises or any part thereof, then Landlord shall
have the right to terminate this Lease by giving Tenant written notice thereof within sixty (60)
days of the date of receipt of said written advice, or commencement of said action or proceeding,
or taking conveyance, which termination shall take place as of the first to occur of the last day
of the calendar month next following the month in which such notice is given or the date on which
title to the Premises shall vest in the condemnor.
In the event of such a partial taking or conveyance of the Premises, if the portion of the
Premises taken or conveyed is so substantial that the Tenant can no longer reasonably conduct its
business, Tenant shall have the privilege of terminating this Lease within sixty (60) days from the
date of such taking or conveyance, upon written notice to the Landlord of its intention so to do,
and upon giving of such notice this Lease shall terminate on the last day of the calendar month
next following the month in which such notice is given, upon payment by Tenant of the Rent from the
date of such taking or conveyance to the date of termination.
If a portion of the Premises be taken by condemnation or conveyance in lieu thereof and
neither Landlord nor Tenant shall terminate this Lease as provided herein, this Lease shall
continue in full force and effect as to the part of the Premises not so taken or conveyed, and the
Rent herein shall be apportioned as of the date of such taking or conveyance so that thereafter the
Rent to be paid by Tenant shall be in the ratio that the area of the portion of the Premises
not so taken or conveyed bears to the total area of the Premises prior to such taking.
28. SALE OR CONVEYANCE BY LANDLORD. In the event of a sale or conveyance
of the Premises or any interest therein, by any owner of the reversion then constituting Landlord,
the transferor shall thereby be released from any further liability upon any of the terms,
covenants or conditions (express or implied) herein contained in favor of Tenant, and in such
event, insofar as such transfer is concerned, Tenant agrees to look solely to the responsibility of
the successor in interest of such transferor in and to the Premises and this Lease for any
obligations of Landlord first accruing after the date of such transfer, unless the successor in
interest has also agreed in writing to assume any prior obligations of Landlord, in which event
Tenant shall look to the successor in interest for any obligations of Landlord that may have
accrued prior to as well as after said sale or conveyance by Landlord. This Lease shall not be
affected by any such sale or conveyance, and Tenant agrees to attorn to the successor in interest
of such transferor.
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same terms and conditions herein specified insofar as applicable except that the monthly
Basic Rent shall be increased to an amount equal to one hundred seventy-five percent (175%)
of the monthly Basic Rent required during the last month of the Term (“Hold Over Basic Rent”);
provided, however, that the monthly Rent shall be prorated based on the actual number of days
in the month for any partial month of the holding over. Holding over conduct within the meaning of
the Lease and this Paragraph 30 shall also include the failure by Tenant to surrender the Premises on the Termination Date in the physical condition described in Paragraphs 5
(“Acceptance and Surrender of Premises”), 7 (“Alterations and Additions”) and 10 (“Tenant Maintenance”) for which conduct Tenant shall be subject to the Hold Over
Basic Rent under this paragraph until the Premises is restored to the condition required under this
Lease. If Landlord elects to receive a cash payment from Tenant in lieu of Tenant completing the restoration work pursuant to Paragraph 5 (“Acceptance and
Surrender of Premises”), and further provided that Tenant pays such sum by the due date, then
Landlord shall not be entitled to receive any Hold Over Basic Rent. However, in the event Landlord
does not elect to receive payment from Tenant and/or Tenant fails to pay Landlord said amount by
the due date (which date shall be determined by Landlord and in all events shall be a date prior to
the Termination Date), Tenant shall be liable to Landlord, at the Basic Rent rate for the last
month of the Term, for the estimated time it would take to complete said restoration, regardless of
whether or not Landlord elects to make such restoration to the Premises.
33. RIGHT OF LANDLORD TO PERFORM. All terms, covenants and conditions
of this Lease to be performed or observed by Tenant shall be performed or observed by
Tenant at Tenant’s sole cost and expense and without any reduction of rent. If Tenant shall fail to
pay any sum of money, or other Rent, required to be paid by it hereunder and such failure shall
continue for five (5) days after written notice thereof by Landlord or shall fail to
perform any other term or covenant hereunder on its part to be performed, and such failure shall
continue for thirty (30) days after written notice thereof by Landlord (or such longer grace period
as provided under Paragraph 24), Landlord, without waiving or releasing Tenant from any obligation
of Tenant hereunder, may, but shall not be obliged to, make any such payment or perform any such
other term or covenant on Tenant’s part to be performed. All sums so paid by Landlord and all
necessary costs of such performance by Landlord together with interest thereon at the rate of the
prime rate of interest per annum as quoted by the Bank of America from the date of such
payment or performance by Landlord, shall be paid (and Tenant covenants to make such payment)
to Landlord within five (5) days after demand by Landlord, and Landlord shall have (in
addition to any other right or remedy of Landlord) the same rights and remedies in the event of
nonpayment by Tenant as in the case of failure by Tenant in the payment of Rent
hereunder.
34. ATTORNEYS’ FEES.
A. In the event that either Landlord or Tenant should bring suit for the
possession of the Premises, for the recovery of any sum due under this Lease, or because of the
breach of any provision of this Lease, or for any other relief against the other party hereunder,
then all costs and expenses, including reasonable attorneys’ fees, incurred by the prevailing party
therein shall be paid by the other party, which obligation on the part of the other party shall be
deemed to have accrued on the date of the commencement of such action and shall be enforceable
whether or not the action is prosecuted to judgment.
B. Should Landlord be named as a defendant in any suit brought against
Tenant in connection with or arising out of Tenant’s occupancy hereunder, Tenant shall
pay to Landlord its costs and expenses incurred in such suit, including reasonable attorneys’ fees.
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35. WAIVER. The waiver by either party of the other party’s failure to perform or
observe any term, covenant or condition herein contained to be performed or observed by such
waiving party shall not be deemed to be a waiver of such term, covenant or condition or of any
subsequent failure of the party failing to perform or observe the same or any other
such term, covenant or condition therein contained, and no custom or practice which may develop
between the parties hereto during the Term hereof shall be deemed a waiver of, or
in any way affect, the right of either party to insist upon performance and observance by
the other party in strict accordance with the terms hereof.
36. NOTICES. All notices, demands, requests, advices or designations
which may be or are required to be given by either party to the other hereunder shall
be in writing. All notices, demands, requests, advices or designations by Landlord to Tenant shall
be sufficiently given, made or delivered if personally served on Tenant by leaving the
same at the Premises or if sent by United States certified or registered mail, postage prepaid or
by a reputable commercial carrier’s same day or overnight service addressed to Tenant at the
Premises; Attn: Chief Financial Officer. Notices to Tenant before the Commencement Date shall be
sent to: 0000 X. Xx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxx, XX 00000; Attn: Chief Financial Officer. All notices, demands, requests, advices or designations by Tenant to
Landlord shall be sent by United States certified or registered mail, postage prepaid, or by a
reputable commercial carrier’s same day or overnight service addressed to Landlord at its offices
at: XXXXX/XXXXXXXXX, 0000 XXXXXXX XXXXXXX XXXX., XXXXX 000, XXXXX XXXXX, XX 00000. Each notice,
request, demand, advice or designation referred to in this paragraph shall be deemed
received on the date of the personal service or receipt or refusal to accept receipt of the mailing thereof in the manner
herein provided, as the case may be. Either party shall have the right, upon ten (10)
days written notice to the other, to change the address as noted herein; however, Landlord
shall send Tenant notices to only one address of Tenant.
38. DEFAULT BY LANDLORD. Landlord shall not be in default unless Landlord
fails to perform obligations required of Landlord within a reasonable time, but in no event later
than (30) days after receipt of written notice by Tenant to Landlord and to the holder of any first
mortgage or deed of trust covering the Premises whose name and address shall have heretofore been
furnished to Tenant in writing, specifying wherein Landlord has failed to perform such obligations;
provided, however, that if the nature of Landlord’s obligations is such that more than thirty (30)
days are required for performance, then Landlord shall not be in default if Landlord commences
performance within such thirty (30) day period and thereafter diligently prosecutes the same to
completion. Landlord shall, however, make a reasonable effort to take immediate action on an
emergency situation that impairs (i) the safety of the Building and/or (ii) the occupancy of the
Building.
(a) the sole and exclusive remedy shall be against Landlord’s interest in the Premises leased
herein;
(b) no partner of Landlord shall be sued or named as a party in any suit or action (except as
may be necessary to secure jurisdiction of the partnership);
(c) no service of process shall be made against any partner of Landlord (except as
may be necessary to secure jurisdiction of the partnership);
(d) no partner of Landlord shall be required to answer or otherwise
plead to any service of process;
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(e) no judgment will be taken against any partner of Landlord;
(f) any judgment taken against any partner of Landlord may be vacated and set aside at any
time without hearing;
(g) no writ of execution will ever be levied against the assets of
any partner of Landlord;
(h) these covenants and agreements are enforceable both by Landlord and also by
any partner of Landlord.
Tenant agrees that each of the foregoing covenants and agreements shall be applicable to any
covenant or agreement either expressly contained in this Lease or imposed by statute or at common
law.
All approved signs and/or lettering on sign monuments and/or interior Common Area sign
directories, if any, shall be printed, painted, affixed or inscribed at the sole cost and expense
of Tenant by a licensed contractor approved of by Landlord.
Tenant shall not place anything or allow anything to be placed near the glass of any window,
door partition or wall which may appear unsightly from outside the Premises.
Notwithstanding anything to the contrary in this Paragraph 41 and subject to Landlord’s
approval of Tenant’s signage, Tenant shall be entitled to install, at Tenant’s sole cost and
expense, Tenant’s name on (i) Tenant’s Proportionate Share of the monument sign for the
Building in which the Premises are located (the exact placement and size of Tenant’s signage is to
be approved by Landlord), (ii) on the exterior glass adjacent to the entrance to the main lobby of
the Building (the exact placement and size of Tenant’s sign is to be approved by Landlord), and
(iii) on the entrance door to Tenant’s Leased Premises, with the understanding that Tenant shall be
liable for repairing any damage to said monument and door resulting from the installation and or
removal of said signs upon Lease Termination.
42. CONSENT. Whenever the consent of one party to the other is required
hereunder, such consent shall not be unreasonably withheld.
43. AUTHORITY TO EXECUTE. The parties executing this Lease hereby warrant
and represent that they are properly authorized to execute this Lease and bind the parties on
behalf of whom they execute this Lease and to all of the terms, covenants and conditions of
this Lease as they relate to the respective parties hereto.
A. As used herein, the term “Hazardous Materials” shall mean any material, waste,
chemical, mixture or by product which is or hereafter is defined, listed or designated under
Environmental Laws (defined below) as a pollutant, or as a contaminant, or as a toxic or hazardous
substance, waste or material, or any other unwholesome, hazardous, toxic, biohazardous, or
radioactive material, waste, chemical, mixture or byproduct, or which is listed, regulated or
restricted by any Environmental Law (including, without limitation, petroleum hydrocarbons or any
distillates or derivatives or fractions thereof, polychlorinated biphenyls, or asbestos). As used
herein, the term “Environmental Laws” shall mean any applicable Federal, State of California or
local government law (including common law), statute, regulation, rule, ordinance,
permit, license, order, requirement, agreement, or approval, or any determination, judgment, directive, or order of any executive or judicial authority at any
level of Federal, State of California or local government (whether now existing or
subsequently adopted or promulgated) relating to pollution or the protection of the environment,
ecology, natural resources, or public health and safety.
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B. Landlord hereby informs Tenant, and Tenant hereby acknowledges, that the
subsurface soil and groundwater of the Premises are contaminated by Hazardous Materials commonly
known as volatile organic compounds as more fully set forth in the environmental documents and
reports listed on Exhibit C (the “Contamination”), copies of which are available for
review at Landlord’s office, and that the Premises is subject to the California Regional Water
Quality Control Board’s (“Regional Board”) Site Cleanup Requirements Order No. 00-002 (the “Order”). The Order is attached hereto as Exhibit D,
and the Contamination is generally described in Section 6 of the Findings of the Order
entitled “Remedial Investigation.” Landlord’s costs with regard to the Contamination specifically
referenced in the Order shall be paid by Landlord and Tenant shall have no obligation to
pay any part thereof. In addition, the use of the Property is restricted pursuant to the
Covenant and Environmental Restriction on Property dated June 10, 2004 (“Deed
Restriction”), which, among other things, (i) restricts the development of the Property to
industrial, commercial or office uses and (ii) prohibits the drilling, boring or otherwise
constructing of a well for the purpose of domestic water supply, unless otherwise expressly
permitted in writing by the Regional Board. A copy of the Deed Restriction is attached
hereto as Exhibit E. Landlord shall indemnify, defend, and hold harmless Tenant against
any and all claims from third parties not related to Tenant, judgments, damages, suits, orders,
government directives, costs, and expenses arising from (i) the Contamination, or (ii) the Order as
may be further amended (“Landlord’s Environmental Indemnity”); provided, however, that Landlord’s
Environmental Indemnity shall be subject to the following limitations and conditions:
(a) | Landlord’s Environmental Indemnity shall not apply to any economic or consequential damages suffered by Tenant, including but not limited to loss of business or profits. | ||
(b) | Landlord’s Environmental Indemnity shall not apply to any releases of Hazardous Materials that are caused in connection with Tenant’s use of the Premises or as otherwise provided in Paragraph C above. | ||
(c) | Tenant acknowledges that Landlord must comply with the Order as may be amended and with directives of government entities including the Regional Board, with respect to the Contamination. Tenant further acknowledges that Contamination-related remediation treatment systems, groundwater monitoring xxxxx, and associated piping and equipment are located on the Premises and may be modified or added to during the term of the Lease (collectively, “Environmental Equipment”), and that Contamination-related environmental investigation and remediation activities (“Environmental Activities”) will be performed on the Premises during the term of the Lease. Tenant shall allow Landlord, and any other party named as a discharger under the Order as may be amended, and their respective agents and contractors to enter the Premises to access the Environmental Equipment and to perform Environmental Activities during the term of the Lease, provided that Tenant’s use and occupancy of the Premises shall not unreasonably be disturbed. | ||
(d) | Tenant and Landlord shall reasonably cooperate with each other regarding any Environmental Activities to be performed on the Premises during the Term of the Lease. | ||
(e) | Tenant shall be responsible at its expense for repairing any Environmental Equipment
damaged due to the negligence of Tenant or Tenant’s agents, contractors, or invitees (such
term “invitees” does not include Landlord, any other party named as a discharger under the
Order as may be amended, or their respective agents or contractors). |
||
(f) | Provided that Landlord is not in material breach of Landlord’s Environmental Indemnity, Tenant shall not perform any Environmental Activities regarding the Contamination without Landlord’s express written consent. |
Tenant acknowledges that the Regional Board will require Landlord to record a restrictive covenant
against the Property that will restrict the use of the Property in general to commercial uses.
Landlord represents that this restrictive covenant, when recorded, will not restrict Tenant in its
proposed use of the Premises pursuant to Paragraph 1 (“Use”).
C. Tenant shall obtain Landlord’s written consent, which may be withheld in Landlord’s
discretion, prior to the occurrence of any Tenant’s Hazardous Materials Activities (defined below)
(and Tenant shall first provide Landlord with a list of said materials used and specify
the location in the Premises where said materials are used and stored, the method of
storage and disposal of the same, and a copy of the related permits); provided, however, that Landlord’s consent shall not be required for normal use
in compliance with applicable Environmental Laws of customary household and office supplies,
such as mild cleaners, lubricants and copier toner. As used herein, the term “Tenant’s Hazardous
Materials Activities” shall mean any and all use, handling, generation, storage, disposal,
treatment, transportation, release, discharge, or emission of any Hazardous Materials on, in,
beneath, to, from, at or about the
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Property, or by Tenant or by any of Tenant’s agents, employees,
contractors, vendors, invitees, visitors or its future subtenants or assignees. Tenant
agrees that any and all Tenant’s Hazardous Materials Activities shall be conducted in strict, full
compliance with applicable Environmental Laws at Tenant’s expense, and shall not result in
any contamination of the Property or the environment. Tenant shall not discharge any Hazardous
Materials in the plumbing, sewer and/or storm drains in the Premises and/or Parcel. Tenant agrees
to provide Landlord with prompt written notice of any spill or release of Hazardous Materials at
the Property during the term of the Lease of which Tenant becomes aware, and further agrees to
provide Landlord with prompt written notice of any violation of Environmental Laws in connection
with Tenant’s Hazardous Materials Activities of which Tenant becomes aware. If Tenant’s Hazardous
Materials Activities involve Hazardous Materials other than normal use of customary household and
office supplies, Tenant also agrees at Tenant’s expense: (i) to install such Hazardous
Materials monitoring, storage and containment devices as required by applicable Environmental Law
(however, in no event shall Tenant discard any Hazardous Materials in the Building plumbing system
and/or the Building sewer system); (ii) provide Landlord with a written inventory of such Hazardous
Materials, including an update of same each year upon the anniversary date of the Commencement Date
of the Lease (“Anniversary Date”); and (iii) on each Anniversary Date, to retain a licensed,
qualified environmental consultant, approved by landlord, to evaluate whether Tenant is in
compliance with all applicable Environmental Laws with respect to Tenant’s Hazardous Materials
Activities. Tenant, at its expense, shall submit to Landlord a report from such environmental
consultant which discusses the environmental consultant’s findings within two (2)
months of each Anniversary Date. Tenant, at its expense, shall promptly undertake
and complete any and all steps necessary, and in full compliance with applicable Environmental
Laws, to fully correct any and all problems or deficiencies identified by the environmental
consultant, and promptly provide Landlord with documentation of all such corrections.
D. Prior to termination or expiration of the Lease, Tenant, at its expense, shall (i) properly
remove from the Property all Hazardous Materials which come to be located at the Property in
connection with Tenant’s Hazardous Materials Activities, and (ii) fully comply with and complete
all facility closure requirements of applicable Environmental Laws regarding Tenant’s Hazardous
Materials Activities, including but not limited to (x) properly restoring and repairing the
Property to the extent damaged by such closure activities, and (y) obtaining from the local Fire
Department or other appropriate governmental authority with jurisdiction a written concurrence that
closure has been completed in compliance with applicable Environmental Laws. Tenant shall promptly
provide Landlord with copies of any claims, notices, work plans, data and reports prepared,
received or submitted in connection with any such closure activities.
E. If Landlord, in its sole discretion, believes that the Property has become contaminated as
a result of Tenant’s Hazardous Materials Activities, Landlord in addition to any other rights it
may have under this Lease or under Environmental Laws or other laws, may enter upon the Property
and conduct inspection, sampling and analysis, including but not limited to obtaining and analyzing
samples of soil and groundwater, for the purpose of determining the nature and extent of such
contamination. Tenant shall promptly reimburse Landlord for the costs of such an investigation,
including but not limited to reasonable attorneys’ fees Landlord incurs with respect to such
investigation, that discloses Hazardous Materials contamination for which
Tenant is liable under this Lease. Notwithstanding the above, Landlord may, at its option and
in its sole and absolute discretion, choose to perform remediation and obtain reimbursement for
cleanup costs as set forth herein from Tenant. Any cleanup costs incurred by Landlord as the result
of Tenant’s Hazardous Materials Activities shall be reimbursed by Tenant within thirty (30) days of
presentation of written documentation of the expense to Tenant by Landlord. Such reimbursable costs
shall include, but not be limited to, any reasonable consultants’ and attorneys’ fees incurred by
Landlord. Tenant shall take all actions necessary to preserve any claims it has against third
parties, including, but not limited to, its insurers, for claims related to its operation,
management of Hazardous Materials or contamination of the Property. Except as may be required of
Tenant by applicable Environmental Laws, Tenant shall not perform any sampling, testing, or
drilling to identify the presence of any Hazardous Materials at the Property, without Landlord’s
prior written consent which may be withheld in Landlord’s discretion. Tenant shall promptly provide
Landlord with copies of any claims, notices, work plans, data and reports prepared, received or
submitted in connection with any sampling, testing or drilling performed pursuant to the preceding
sentence.
F. Tenant shall indemnify, defend (with legal counsel acceptable to Landlord, whose consent
shall not unreasonably be withheld) and hold harmless Landlord, its employees, assigns, successors,
successors-in-interest, agents and representatives from and against any and all claims (including
but not limited to third party claims from a private party or a government authority), liabilities,
obligations, losses, causes of action, demands, governmental proceedings or
directives, fines, penalties, expenses, costs (including but not limited to
reasonable attorneys’, consultants’ and other experts’ fees and costs), and damages, which
arise from or relate to: (i) Tenant’s Hazardous Materials Activities; (ii)
any Hazardous Materials contamination caused by Tenant prior to the Commencement
Date of the Lease; or (iii) the breach of any obligation of Tenant under this Paragraph 44
(collectively, “Tenant’s Environmental Indemnification”). Tenant’s Environmental
Indemnification shall include but is not
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limited to the obligation to promptly and fully reimburse Landlord for losses
in or reductions to rental income, and diminution in fair market value of the Property.
Tenant’s Environmental Indemnification shall further include but is not limited to the obligation
to diligently and properly implement to completion, at Tenant’s expense, any and all environmental
investigation, removal, remediation, monitoring, reporting, closure activities, or other
environmental response action (collectively, “Response Actions”). Tenant shall promptly provide
Landlord with copies of any claims, notices, work plans, data and reports prepared,
received or submitted in connection with any Response Actions.
It is agreed that the Tenant’s responsibilities related to Hazardous Materials will survive
the expiration or termination of this Lease and that Landlord may obtain specific
performance of Tenant’s responsibilities under this Paragraph 44.
45. BROKERS.Tenant represents and warrants that it has not dealt
with any real estate brokers, agents, or finders in connection with the original Term of this
Lease, and knows of no real estate broker, agent or finder who is entitled to a commission in
connection with this Lease (“Lease Commission”), except as follows: Xxxx Xxxxxx and Xxxxx Xxxxxx of
Colliers Xxxxxxx, whose Lease Commission shall be paid by Landlord in accordance with Landlord’s
standard commission policy and schedule. Tenant agrees to defend, protect, indemnify and hold
Landlord harmless from and against all claims for Lease Commissions, finder’s fees, and other
compensation made by any other broker, agent, or finder as consequence of the Tenant’s actions
or dealings with such other broker, agent or finder. The parties hereto acknowledge that
Landlord will not pay an additional Lease Commission to Xxxx Xxxxxx, Xxxxx Xxxxxx,
Colliers Xxxxxxx or to any other broker secured by Tenant in the event the original Term of this
Lease is extended or the square footage leased hereunder is increased for any reason whatsoever.
In the event this Lease is terminated early due to an uncured default by Tenant
and/or a written agreement between Landlord and Tenant to terminate the Lease prior to the
scheduled Termination Date, Tenant agrees to reimburse Landlord for one hundred percent (100%) of
the balance of the unamortized Lease Commission previously paid by Landlord, that is outstanding as
of the early Termination Date. Said amount shall be paid by Tenant to Landlord by the Termination
Date, and/or Landlord may, at its option, deduct part or all of said unamortized Lease Commission
from Tenant’s Security Deposit.
48. OPTION TO EXTEND LEASE FOR ONE (1) YEAR: Landlord hereby grants to
Tenant an Option to Extend this Lease Agreement for an additional one (1) year period (“Extended
Term”) upon the following terms and conditions:
B. Notice and Acceptance of Terms. In the event Tenant timely exercises Tenant’s
Option to Extend as set forth herein, Landlord shall, within fifteen (15) days after receipt of
Tenant’s exercise of its Option to Extend, advise Tenant of the terms and conditions, Basic Rent
(in no event shall the Basic Rent
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be lower than the Basic Rent due for the last month of the initial Lease Term) and
Security Deposit required for the Extended Term of the Lease. Tenant shall have five (5)
days after receipt from the Landlord of said new terms and conditions, Basic Rent and Security
Deposit in which to accept said new Basic Rent, Security Deposit and terms and conditions and enter
into written documentation confirming same. In the event Tenant fails to execute said written
documentation confirming said new terms and conditions, Basic Rent and Security Deposit for the
Extended Term of the Lease within said five (5) day period, Tenant shall have no further
Option to Extend this Lease, and this Lease shall continue in full force and effect for the full
remaining Term hereof absent of this Paragraph 48, with Landlord having no
further responsibility or obligation to Tenant with respect to Tenant’s Option to Extend.
A. Use of Building Name. Tenant shall not, without the written consent of
Landlord, use the name of the Building for any purpose other than as the address of the business
conducted by Tenant in the Premises.
B. Premises Address. It is understood that (i) the current address for the Premises is shown
on page 1 of this Lease, and that (ii) the address for the Premises is subject to
change at any time by the City in which the Premises are located (the “City”). In the
event the address assigned to the Premises is changed by the City, this Lease shall thereafter be
amended to reflect the assigned address for the Premises leased hereunder and Landlord shall not be
liable to Tenant for any costs or expenses incurred by Tenant as a result of said address change.
C. Choice of law/Venue; Severability. This Lease shall in all respects be governed by and
construed in accordance with the laws of the County of Santa Xxxxx in the State of California and
each party specifically stipulates to venue in Santa Xxxxx County. If any provision of
this Lease shall be invalid, unenforceable, or ineffective for any reason whatsoever, all other
provisions hereof shall be and remain in full force and effect.
D. Definition of Terms. The term “Premises” includes the space leased hereby and
any improvements now or hereafter installed therein or attached thereto. The term “Landlord” or any
pronoun used in place thereof includes the plural as well as the singular and the successors and
assigns of Landlord. The term “Tenant” or any pronoun used in place thereof includes the plural as
well as the singular and individuals, firms, associations, partnerships and corporations, and their
and each of their respective heirs, executors, administrators, successors and permitted assigns,
according to the context hereof, and the provisions of this Lease shall inure to the benefit of and
bind such heirs, executors, administrators, successors and permitted assigns.
The term “person” includes the plural as well as the singular and individuals, firms,
associations, partnerships and corporations. Words used in any gender include other genders.
If there be more than one Tenant the obligations of Tenant hereunder are joint and
several. The paragraph headings of this Lease are for convenience of reference only
and shall have no effect upon the construction or interpretation of any
provisions hereof.
E. Time Of Essence. Time is of the essence of this Lease and of each and all
of its provisions.
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F. Quitclaim. At the expiration or earlier termination of this Lease,
Tenant shall execute, acknowledge and deliver to Landlord, within ten (10) days after
written demand from Landlord to Tenant, any quitclaim deed or other document required by any
reputable title company, licensed to operate in the State of California, to remove the
cloud or encumbrance created by this Lease from the real property of which Tenant’s
Premises are a part.
G. incorporation of Prior Agreements; Amendments. This instrument
along with any exhibits and attachments hereto constitutes the entire agreement between Landlord and
Tenant relative to the Premises and this agreement and the exhibits and
attachments may be altered, amended or revoked only by an instrument in writing signed by both
Landlord and Tenant. Landlord and Tenant agree hereby that all prior or contemporaneous oral
agreements between and among themselves and their agents or representatives relative to the leasing
of the Premises are merged in or revoked by this agreement.
H. Recording. Neither Landlord nor Tenant shall record this Lease or a
short form memorandum hereof without the consent of the other.
I. Amendments for Financing. Tenant further agrees to execute any reasonable
amendments required by a lender to enable Landlord to obtain financing, so
long as Tenant’s rights hereunder are not substantially affected.
J. Clauses, Plats and Riders. Clauses, plats and riders, if any, signed by
Landlord and Tenant and endorsed on or affixed to this Lease are a part hereof.
K. Diminution of light, Air or View. Tenant covenants and agrees that no
diminution or shutting off of light, air or view by any structure which may be hereafter erected
(whether or not by Landlord) shall in any way affect this Lease, entitle Tenant to any reduction of
Rent hereunder or result in any liability of Landlord to Tenant.
LANDLORD: | TENANT: | |||||
XXXX XXXXXXXXX SURVIVOR’S TRUST | SONICS, INC. | |||||
a Delaware corporation | ||||||
BY
|
/s/ Xxxx Xxxxxxxxx | BY | /s/ Xxxxxx Xxxxxxxx | |||
Xxxx Xxxxxxxxx, Trustee | ||||||
Date:
|
11/03/04 | Title | CFO | |||
XXXXXXX X. XXXXX SEPARATE PROPERTY TRUST | Type or Print Name XXXXXX XXXXXXXX | |||||
Date: | 11/2/04 | |||||
By |
/s/ Xxxxxxx X. Xxxxx | |||||
Xxxxxxx X. Xxxxx, Trustee | ||||||
Date: |
11/03/04 | |||||
Initial: MMK
Multi Tenant/Single Parcel | Page 29 of 29 |
![(FLOOR PLAN)](https://www.sec.gov/Archives/edgar/data/1410629/000089161807000522/f32752ore3275201.gif)
![(FLOOR PLAN)](https://www.sec.gov/Archives/edgar/data/1410629/000089161807000522/f32752ore3275202.gif)
EXHIBIT C TO LEASE AGREEMENT DATED OCTOBER 1, 2004 BY
AND BETWEEN THE XXXX XXXXXXXXX SURVIVOR’S TRUST AND THE XXXXXXX X.
XXXXX SEPARATE PROPERTY TRUST, AS LANDLORD, AND SONICS, INC., AS TENANT.
0000 Xxxx Xxxxxx
Toxic Reports Available for Tenant’s Review at Landlord’s Office
Date | Consultant | Title of the Report/Investigation | ||
07/27/04
|
Streamborn | Quarterly Self-Monitoring Report 4/1/04-6/30/04 | ||
04/15/04
|
Streamborn | Quarterly Self-Monitoring Report 1/1/04-3/31/04 | ||
03/15/04
|
Streamborn | Letter Report for Groundwater Monitoring Conducted 2/18- 2/19/04 |
Initial: MMK
1
EXHIBIT F TO LEASE AGREEMENT DATED OCTOBER 1, 2004, BY
AND BETWEEN THE XXXX XXXXXXXXX SURVIVOR’S TRUST AND THE XXXXXXX X. XXXXX
SEPARATE PROPERTY TRUST, AS LANDLORD, AND SONICS, INC., AS TENANT.
PERSONAL PROPERTY OF LANDLORD TO BE LEASED BY TENANT:
Landlord shall provide and install the following furniture, which shall be leased by Tenant
pursuant to Lease Paragraph 46 (“Personal Property of Landlord”) and:
Quantity | Description | |
56
|
Pre-owned 7’ x 9’ cubicles (Landlord shall have the cabling and wiring for the cubicles tested in accordance with Lease Paragraph 6.B (“As Is Basis: Tenant Improvements to be Constructed by Landlord”) upon installation_ | |
56
|
Pre-owned Desk chairs | |
1
|
Pre-owned Server Rack (existing in Premises) | |
1
|
New Reception Desk, with one (1) pre-owned chair |
Initial: MMK