EXHIBIT 10.6
INDUSTRIAL LEASE
(MULTI-TENANT; NET)
BETWEEN THE IRVINE COMPANY
ALSIUS CORPORATION
INDEX TO LEASE
ARTICLE I. BASIC LEASE PROVISIONS................................................................................ 1
ARTICLE II. PREMISES............................................................................................. 3
SECTION 2.1. LEASED PREMISES................................................................................ 3
SECTION 2.2. ACCEPTANCE OF PREMISES......................................................................... 3
SECTION 2.3. BUILDING NAME AND ADDRESS...................................................................... 3
SECTION 2.4. LANDLORD'S RESPONSIBILITIES.................................................................... 3
ARTICLE III. TERM................................................................................................ 4
SECTION 3.1. GENERAL........................................................................................ 4
SECTION 3.2. DELAY IN POSSESSION............................................................................ 4
SECTION 3.3. RIGHT TO EXTEND LEASE.......................................................................... 5
ARTICLE IV. RENT AND OPERATING EXPENSES.......................................................................... 6
SECTION 4.1. BASIC RENT..................................................................................... 6
SECTION 4.2. OPERATING EXPENSES............................................................................. 7
SECTION 4.3. SECURITY DEPOSIT............................................................................... 10
ARTICLE V. USES.................................................................................................. 11
SECTION 5.1. USE............................................................................................ 11
SECTION 5.2. SIGNS.......................................................................................... 12
SECTION 5.3. HAZARDOUS MATERIALS............................................................................ 12
ARTICLE VI. COMMON AREAS; SERVICES............................................................................... 16
SECTION 6.1. UTILITIES AND SERVICES......................................................................... 16
SECTION 6.2. OPERATION AND MAINTENANCE OF COMMON AREAS...................................................... 16
SECTION 6.3. USE OF COMMON AREAS............................................................................ 17
SECTION 6.4. PARKING........................................................................................ 17
SECTION 6.5. CHANGES AND ADDITIONS BY LANDLORD.............................................................. 18
ARTICLE VII. MAINTAINING THE PREMISES............................................................................ 18
SECTION 7.1. TENANT'S MAINTENANCE AND REPAIR................................................................ 18
SECTION 7.2. LANDLORD'S MAINTENANCE AND REPAIR.............................................................. 19
SECTION 7.3. ALTERATIONS.................................................................................... 19
SECTION 7.4. MECHANIC'S LIENS............................................................................... 20
SECTION 7.5. ENTRY AND INSPECTION........................................................................... 20
SECTION 7.6. TENANT'S SELF-HELP............................................................................. 21
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ARTICLE VIII. TAXES AND ASSESSMENTS ON TENANT'S PROPERTY......................................................... 21
ARTICLE IX. ASSIGNMENT AND SUBLETTING............................................................................ 22
SECTION 9.1. RIGHTS OF PARTIES.............................................................................. 22
SECTION 9.2. EFFECT OF TRANSFER............................................................................. 24
SECTION 9.3. SUBLEASE REQUIREMENTS.......................................................................... 25
SECTION 9.4. CERTAIN TRANSFERS.............................................................................. 25
ARTICLE X. INSURANCE AND INDEMNITY............................................................................... 26
SECTION 10.1. TENANT'S INSURANCE............................................................................ 26
SECTION 10.2. LANDLORD'S INSURANCE.......................................................................... 26
SECTION 10.3. JOINT INDEMNITY............................................................................... 26
SECTION 10.4. LANDLORD'S NON LIABILITY...................................................................... 28
SECTION 10.5. WAIVER OF SUBROGATION......................................................................... 28
ARTICLE XI. DAMAGE OR DESTRUCTION................................................................................ 29
SECTION 11.1. RESTORATION................................................................................... 29
SECTION 11.2. LEASE GOVERNS................................................................................. 30
ARTICLE XII. EMINENT DOMAIN...................................................................................... 30
SECTION 12.1. TOTAL OR PARTIAL TAKING....................................................................... 30
SECTION 12.2. TEMPORARY TAKING.............................................................................. 31
SECTION 12.3. TAKING OF PARKING AREA........................................................................ 31
ARTICLE XIII. SUBORDINATION; ESTOPPEL CERTIFICATE; FINANCIALS.................................................... 31
SECTION 13.1. SUBORDINATION................................................................................. 31
SECTION 13.2. ESTOPPEL CERTIFICATE.......................................................................... 31
SECTION 13.3. FINANCIALS.................................................................................... 32
ARTICLE XIV. DEFAULTS AND REMEDIES............................................................................... 32
SECTION 14.1. TENANT'S DEFAULTS............................................................................. 32
SECTION 14.2. LANDLORD'S REMEDIES........................................................................... 34
SECTION 14.3. LATE PAYMENTS................................................................................. 35
SECTION 14.4. RIGHT OF LANDLORD TO PERFORM.................................................................. 36
SECTION 14.5. DEFAULT BY LANDLORD........................................................................... 36
SECTION 14.6. EXPENSES AND LEGAL FEES....................................................................... 36
SECTION 14.7. WAIVER OF JURY TRIAL.......................................................................... 37
SECTION 14.8. SATISFACTION OF JUDGMENT...................................................................... 37
SECTION 14.9. LIMITATION OF ACTIONS AGAINST LANDLORD........................................................ 37
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ARTICLE XV. END OF TERM.......................................................................................... 37
SECTION 15.1. HOLDING OVER.................................................................................. 37
SECTION 15.2. MERGER ON TERMINATION......................................................................... 38
SECTION 15.3. SURRENDER OF PREMISES; REMOVAL OF PROPERTY.................................................... 38
ARTICLE XVI. PAYMENTS AND NOTICES................................................................................ 38
ARTICLE XVII. RULES AND REGULATIONS.............................................................................. 39
ARTICLE XVIII. BROKER'S COMMISSION............................................................................... 39
ARTICLE XIX. TRANSFER OF LANDLORD'S INTEREST..................................................................... 39
ARTICLE XX. INTERPRETATION....................................................................................... 40
SECTION 20.1. GENDER AND NUMBER............................................................................. 40
SECTION 20.2. HEADINGS...................................................................................... 40
SECTION 20.3. JOINT AND SEVERAL LIABILITY................................................................... 40
SECTION 20.4. SUCCESSORS.................................................................................... 40
SECTION 20.5. TIME OF ESSENCE............................................................................... 40
SECTION 20.6. CONTROLLING LAW............................................................................... 40
SECTION 20.7. SEVERABILITY.................................................................................. 41
SECTION 20.8. WAIVER AND CUMULATIVE REMEDIES................................................................ 41
SECTION 20.9. INABILITY TO PERFORM.......................................................................... 41
SECTION 20.10. ENTIRE AGREEMENT............................................................................. 41
SECTION 20.11. QUIET ENJOYMENT.............................................................................. 41
SECTION 20.12. SURVIVAL..................................................................................... 41
ARTICLE XXI. EXECUTION AND RECORDING............................................................................. 42
SECTION 21.1. COUNTERPARTS.................................................................................. 42
SECTION 21.2. CORPORATE AND PARTNERSHIP AUTHORITY........................................................... 42
SECTION 21.3. EXECUTION OF LEASE; NO OPTION OR OFFER........................................................ 42
SECTION 21.4. RECORDING..................................................................................... 42
SECTION 21.5. AMENDMENTS.................................................................................... 42
SECTION 21.6. EXECUTED COPY................................................................................. 42
SECTION 21.7. ATTACHMENTS................................................................................... 42
ARTICLE XXII. MISCELLANEOUS...................................................................................... 42
SECTION 22.1. NONDISCLOSURE OF LEASE TERMS.................................................................. 42
SECTION 22.2. GUARANTY...................................................................................... 43
SECTION 22.3. CHANGES REQUESTED BY LENDER................................................................... 43
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SECTION 22.4. MORTGAGEE PROTECTION.......................................................................... 43
SECTION 22.5. [INTENTIONALLY DELETED]....................................................................... 43
SECTION 22.6. SECURITY MEASURES............................................................................. 43
SECTION 22.7. JAMS.......................................................................................... 43
SECTION 22.8. APPROVALS..................................................................................... 44
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INDUSTRIAL LEASE
(Multi-Tenant; Net)
THIS LEASE is made as of the day of 16th day of March, 1999, by and
between THE IRVINE COMPANY, hereafter called "Landlord," and ALSIUS CORPORATION,
a California corporation, hereinafter called "Tenant."
ARTICLE I. BASIC LEASE PROVISIONS
Each reference in this Lease to the "Basic Lease Provisions" shall mean
and refer to the following collective terms, the application of which shall be
governed by the provisions in the remaining Articles of this Lease.
1. Premises: The Premises are more particularly described in Section
2.1.
Address of Building: 00000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxx
2. Project Description (if applicable): Irvine Spectrum 6
3. Use of Premises: General office, light manufacturing, research and
development, warehousing, sales, distribution and other uses
permitted by law; provided, however, that in no event shall the
retail sale of products or services be permitted.
4. Estimated Commencement Date: July 1, 1999
5. Lease Term: Thirty-Six (36) months, plus such additional days as may
be required to cause this Lease to terminate on the final day of the
calendar month.
6. Basic Rent: Twenty Thousand One Hundred Fifty Dollars ($20,150.00)
per month, based on $.75 per rentable square foot.
Basic Rent is subject to adjustment as follows:
Commencing twelve (12)months following the Commencement Date, the
Basic Rent shall be Twenty Thousand Nine Hundred Fifty-Five Dollars
($20,955.00) per month, based on $.78 per rentable square foot.
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Commencing twenty-four (24) months following the Commencement Date,
the Basic Rent shall be Twenty-One Thousand Seven Hundred Sixty-One
Dollars ($21,761.00), based on $21 per rentable square foot.
7. Guarantor(s): None.
8. Floor Area of Premises: Approximately 26,866 rentable square feet.
9. Security Deposit: $67,459.00
10. Broker(s): CB Xxxxxxx Xxxxx, Inc.
11. Additional Insureds: Insignia\ESG of California, Inc.
12. Address for Payments and Notices:
LANDLORD TENANT
INSIGNIA\ESG OF CALIFORNIA, INC. ALSIUS CORPORATION
1 Ada, Suite 270 00000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000 Xxxxxx, XX 00000
with a copy of notices to:
IRVINE INDUSTRIAL COMPANY
X.X. Xxx 0000
Xxxxxxx Xxxxx, XX 926586370
Attn: Vice President, Industrial Operations
13. Tenant's Liability Insurance Requirement: $2,000,000.00
14. Vehicle Parking Spaces: Eighty-One (81)
15. Plan Approval Date: March 15, 1999
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ARTICLE II. PREMISES
SECTION 2.1. LEASED PREMISES. Landlord leases to Tenant and Tenant leases
from Landlord the premises shown in Exhibit A (the "Premises"), containing
approximately the floor area set forth in Item 8 of the Basic Lease Provisions
and known by the suite number identified in Item 1 of the Basic Lease
Provisions. The Premises consist of all the rentable square footage of, and are
located within the interior of, the building identified in Item 1 of the Basic
Lease Provisions (which together with the underlying real property, is called
the "Building"). The Building is a portion of the project shown in Exhibit Y
(the "Project"). Tenant understands that the floor area set forth in Item 8 of
the Basic Lease Provisions may include, at Landlord's option, a factor
approximating the total square footage of any common lobby or internal common
features of the Building times the ratio of the actual square footage of the
Premises to the total square footage of the Building.
SECTION 2.2 ACCEPTANCE OF PREMISES. Except as expressly provided in this
Lease, Tenant acknowledges that neither Landlord nor any representative of
Landlord has made any representation or warranty with respect to the Premises or
the Building or the suitability or fitness of either for any purpose, including,
without limitation, any representations or warranties regarding zoning or other
land use matters, and that neither Landlord nor any representative of Landlord
has made any representations or warranties regarding (i) what other tenants or
uses may be permitted or intended in the Building and the Project, or (ii) any
exclusivity of use by Tenant with respect to its permitted use of the Premises
as set forth in Item 3 of the Basic Lease Provisions. Tenant further
acknowledges that neither Landlord nor any representative of Landlord has agreed
to undertake any alterations or additions or construct any improvements to the
Premises except as expressly provided in this Lease. The taking of possession or
use of the Premises by Tenant for any purpose other than construction shall
conclusively establish that the Premises and the Building were in satisfactory
condition and in conformity with the provisions of this Lease in all respects,
subject to Landlord's responsibilities set forth in Section 2.4 below and except
for those matters which Tenant shall have brought to Landlord's attention on a
written punch list. The list shall be limited to any items required to be
accomplished by Landlord under the Work Letter attached as Exhibit X and shall
be delivered to Landlord within thirty (30) days after the term ("Term") of this
Lease commences as provided in Article III below. Nothing contained in this
Section shall affect the commencement of the Term or the obligation of Tenant to
pay rent. Landlord shall diligently complete all punch list items of which it is
notified as provided above.
SECTION 2.3. BUILDING NAME AND ADDRESS. Tenant shall not utilize any name
selected by Landlord from time to time for the Building and/or the Project as
any part of Tenants corporate or trade name. Landlord shall have the right to
change the name, address, number or designation of the Building or Project
without liability to Tenant.
SECTION 2.4. LANDLORD'S RESPONSIBILITIES. Notwithstanding anything to the
contrary contained in this Lease, Landlord agrees: (i) that the Premises
(including, without limitation, the "Tenant Improvements" constructed pursuant
to the Work Letter attached hereto) shall be in good and clean operating
condition and repair as of the Commencement Date, (ii) that the plumbing,
electrical and mechanical systems serving the Building, including, without
limitation, the HVAC systems, shall be in good operating condition as of the
Commencement
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Date, and to the extent such systems fail to operate properly, that Landlord
shall correct, repair or replace such systems during the initial six (6) months
of the Term at Landlord's sole cost and expense and not as a Project Cost, and
(iii) that Landlord, at its sole cost and expense, shall correct, repair or
restore the integrity of the slabs, foundations, footings, load-bearing walls
and structural components of the roof of the Building during the initial
36-month Term of the Lease. Landlord shall, promptly after receipt of the
written notice from Tenant setting forth the nature and extent of the need of
any repairs referred to in the foregoing, rectify same at Landlord's sole cost
and expense. Further, Landlord shall correct, repair or replace, at Landlord's
sole cost and expense and not as a Project Cost, any noncompliance of the
Building (including, without limitation, the Tenant Improvements constructed
therein) and/or the Common Areas of the Project with all applicable building
permits and codes in effect as of the Commencement Date, including, without
limitation, the provisions of Title III of the Americans With Disabilities Act
("ADA") in effect as of the Commencement Date. Subject to the provisions for
Landlord's construction and rehabilitation and the inclusion of the amortized
costs thereof in "Project Costs" as provided in Section 5.1 of this Lease, all
other ADA compliance issues regarding the Premises, including, without
limitation, Tenant's construction of any alterations or other improvements in
the Premises and in connection with the operation of Tenant's business and
employment practices in the Premises, shall be the responsibility of Tenant at
its sole cost and expense. The repairs, corrections or replacements required of
Landlord under this Section 2.4 in connection with noncompliance with permits
and codes shall be made promptly following notice of noncompliance from any
applicable governmental agency. Tenant shall promptly forward any such notice
that Tenant receives to Landlord.
ARTICLE III. TERM
SECTION 3.1. GENERAL. The Term shall be for the period shown in Item 5 of
the Basic Lease Provisions. Subject to the provisions of Section 3.2 below, the
Term shall commence ("Commencement Date") on the date by which all of the
following have occurred: (a) Landlord has substantially completed the Tenant
Improvements in accordance with Exhibit X, (b) Landlord has tendered delivery of
possession of the Premises to Tenant, and (c) Landlord has obtained all permits
and approvals required by the appropriate governmental authorities for the legal
occupancy of the Premises. Within ten (10) days after the Commencement Date has
occurred, the parties shall memorialize on a form provided by Landlord the
actual Commencement Date and the expiration date ("Expiration Date") of this
Lease. Tenant's failure to execute that form shall not affect the validity of
Landlord's determination of those dates.
SECTION 3.2. DELAY IN POSSESSION. If Landlord, for any reason whatsoever,
cannot deliver possession of the Premises to Tenant on or before the Estimated
Commencement Date, this Lease shall not be void or voidable nor shall Landlord
be liable to Tenant for any resulting loss or damage. However, Tenant shall not
be liable for any rent and the Commencement Date shall not occur until Landlord
delivers possession of the Premises and the Premises are in fact available for
Tenant's occupancy with any Tenant Improvements that have been approved as per
Section 3.l(a) above, except that if Landlord's failure to so deliver possession
on the Estimated Commencement Date is attributable to any "Tenant Delay" as
defined in the Work Letter attached to this Lease, then the Commencement Date
shall not be advanced to the date on which possession of the Premises is
tendered to Tenant, and Landlord
4
shall be entitled to full performance by Tenant (including the payment of rent)
from the date Landlord would have been able to deliver the Premises to Tenant
but for Tenant's delay(s). Notwithstanding anything to the contrary contained in
this Section 3.2, if for any reason other than Tenant Delays or other matters
beyond Landlord's reasonable control, the actual Commencement Date has not
occurred by the date that is one hundred fifty (150) days following the
estimated Commencement Date, then Tenant may, by written notice to Landlord
given at any time thereafter but prior to the actual occurrence of the
Commencement Date, elect to terminate this Lease. Notwithstanding the foregoing,
if at any time during the construction period, Landlord reasonably believes that
the Commencement Date will not occur on or before one hundred fifty (150) days
following the Estimated Commencement Date, Landlord may notify Tenant in writing
of such fact and of a new outside date on or before ten (10) days of receipt of
such notice to either terminate this Lease or waive its right to terminate this
Lease, provided the Commencement Date occurs on or prior to the new outside date
established by Landlord in such notice to Tenant. Tenant's failure to elect to
terminate this Lease within such ten (10) day period shall be deemed Tenant's
waiver of its right to terminate this Lease as provided in this paragraph as to
the previous outside date, but not as to the new outside date established by
said notice.
SECTION 3.3. RIGHT TO EXTEND LEASE. Provided that Tenant is not in Default
under any provision of this Lease, either at the time of exercise of the
extension right granted herein or at the time of the commencement of such
extension, and provided further that Tenant (and/or any "Tenant Affiliate," as
hereinafter defined) is occupying the entire floor area of these Premises,
Tenant may extend the Term of this Lease for one (1) period of thirty-six (36)
months. Tenant shall exercise its right to extend the Term by, and only by,
delivering to Landlord, not less than nine (9) months or more than twelve (12)
months prior to the expiration date of the Term, Tenant's irrevocable written
notice of its commitment to extend (the "Commitment Notice"). The Basic Rent
payable under the Lease during any extension of the Term shall be at the fair
market rental, including subsequent adjustments, for comparable industrial space
being leased by Landlord in the Project. In the event that the parties are not
able to agree on the fair market rental within one hundred twenty (120) days
prior to the expiration date of the Term, then said rental, including subsequent
adjustments, to be determined by appraisal as follows.
Within one hundred twenty (120) and ninety (90) days prior to the
expiration date of the Term, Landlord shall notify Tenant in writing of the
Basic Rent, including adjustments, that would reflect the prevailing market
rental rate for a 36-month renewal of comparable space in the Project as of the
commencement of the extension period ("Landlord's Determination"). Should Tenant
disagree with the Landlord's Determination, then Tenant shall, not later than
twenty (20) days thereafter, notify Landlord in writing of Tenant's
determination of those rental terms ("Tenant's Determination"). Within ten (10)
days following delivery of the Tenant's Determination, the parties shall attempt
to agree on an appraiser to determine the fair market rental. If the parties are
unable to agree in that time, then each party shall designate an appraiser
within ten (10) days thereafter. Should either party fail to so designate an
appraiser within that time, then the appraiser designated by the other party
shall determine the fair market rental. Should each of the parties timely
designate an appraiser, then the two appraisers so designated shall appoint a
third appraiser who shall, acting alone, determine the fair market rental for
the Premises. Any appraiser designated hereunder shall have an MA1 certification
with not less than
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five (5)years' experience in the valuation of commercial industrial buildings in
Orange County, California.
Within thirty (30) days following the selection of the appraiser and such
appraiser's receipt of the Landlord's Determination and the Tenant's
Determination, the appraiser shall determine whether the rental rate determined
by Landlord or by Tenant more accurately reflects the fair market rental rate
for the 36-month renewal of the Lease for the Premises, as reasonably
extrapolated to the commencement of the extension period. Accordingly, either
the Landlord's Determination or the Tenant's Determination shall be selected by
the appraiser as the fair market rental rate for the extension period. In making
such determination, the appraiser shall consider rental comparables for the
Project and for similarly improved space within the Irvine Spectrum with
appropriate adjustment for location and quality of project, but the appraiser
shall not attribute any factor for market tenant improvement allowances or
brokerage commissions in making its determination of the fair market rental
rate. Any time before the decision of the appraiser is rendered, either party
may, by written notice to the other party, accept the rental terms submitted by
the other party, in which event such terms shall be deemed adopted as the agreed
fair market rental. The fees of the appraiser(s) shall be borne entirely by the
party whose determination of the fair market rental rate was not accepted by the
appraiser.
Within twenty (20) days after the determination of the fair market rental,
Landlord shall prepare a reasonably appropriate amendment to this Lease for the
extension period and Tenant shall execute and return same to Landlord within ten
(10) days. Should the fair market rental not be established by the commencement
of the extension period, then Tenant shall continue paying rent at the rate in
effect during the last month of the initial Term, and a lump sum adjustment
shall be made promptly upon the determination of such new rental.
If Tenant fails to timely exercise its right to extend the Term as herein
provided, Tenant's right to extend the Term shall be extinguished and the Lease
shall automatically terminate as of the expiration date of the Term, without any
extension and without any liability to Landlord. Any attempt to assign or
transfer any right or interest created by this paragraph to any person or entity
other than a "Tenant Affiliate" (as hereinafter defined) shall be void from its
inception. Tenant shall have no other right to extend the Term beyond the single
thirty-six (36) month extension created by this paragraph. Unless agreed to in a
writing signed by Landlord and Tenant, any extension of the Term, whether
created by an amendment to this Lease or by a holdover of the Premises by
Tenant, or otherwise, shall be deemed a part of, and not in addition to, any
duly exercised extension period permitted by this paragraph.
ARTICLE IV. RENT AND OPERATING EXPENSES
SECTION 4.1. BASIC RENT. From and after the Commencement Date, Tenant
shall pay to Landlord without deduction or offset, Basic Rent for the Premises
in the total amount shown (including subsequent adjustments, if any) in Item 6
of the Basic Lease Provisions. Any rental adjustment shown in Item 6 shall be
deemed to occur on the specified monthly anniversary of the Commencement Date,
whether or not that date occurs at the end of a calendar month. The rent shall
be due and payable in advance commencing on the
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Commencement Date (as prorated for any partial month) and continuing thereafter
on the first day of each successive calendar month of the Term. No demand,
notice or invoice shall be required for the payment of Basic Rent An installment
of rent in the amount of one (1) full month's Basic Rent at the initial rate
specified in Item 6 of the Basic Lease Provisions shall be delivered to Landlord
concurrently with Tenant's execution of this Lease and shall be applied against
the Basic Rent first due hereunder.
SECTION 4.2 OPERATING EXPENSES.
(a) Tenant shall pay to Landlord, as additional rent, Tenant's Share of
"Operating Expenses," as defined below, incurred by Landlord in the operation of
the Building and Project. The term "Tenant's Share" means that portion of an
Operating Expense determined by multiplying the cost of such Item by a fraction,
the numerator of which is the floor area of the Premises and the denominator of
which is the total square footage of the floor area of the Building or the
Project, as applicable, as of the date on which the computation is made, to be
charged with such Operating Expense.
(b) Commencing prior to the start of the first full "Expense Recovery
Period" (as defined below) of the Lease, and prior to the start of each full or
partial Expense Recovery Period thereafter, Landlord shall give Tenant a written
estimate of the amount of Tenant's Share of Operating Expenses for the Expense
Recovery Period Tenant shall pay the estimated amounts to Landlord in equal
monthly installments, in advance, with Basic Rent. If Landlord has not finished
its written estimate for any Expense Recovery Period by the time set forth
above, Tenant shall continue to pay cost reimbursements at the rates established
for the prior Expense Recovery Period, if any; provided that when the new
estimate is delivered to Tenant, Tenant shall, at the next monthly payment date,
pay any accrued cost reimbursements based upon the new estimate. For purposes
hereof, "Expense Recovery Period" shall mean every twelve-month period during
the Term (or portion thereof for the first and last lease years) commencing July
1 and ending June 30.
(c) Within one hundred twenty (120) days after the end of each Expense
Recovery Period, Landlord shall furnish to Tenant a statement showing in
reasonable detail the actual or prorated Operating Expenses incurred by Landlord
during the period, and the parties shall within thirty (30) days thereafter make
any payment or allowance necessary to adjust Tenant's estimated payments, if
any, to the actual Tenant's Share as shown by the annual statement. Any delay or
failure by Landlord in delivering any statement hereunder shall not constitute a
waiver of Landlord's right to require Tenant to pay Tenant's Share of Operating
Expenses pursuant hereto. Any amount due Tenant shall be credited against
installments next corning due under this Section 4.2, and any deficiency shall
be paid by Tenant together with the next installment. If Tenant has not made
estimated payments during the Expense Recovery Period, any amount owing by
Tenant pursuant to subsection (a) above shall be paid to Landlord in accordance
with Article XVI. Should Tenant fail to object in writing to Landlord's
determination of actual Operating Expenses within one hundred eighty (180) days
following delivery of Landlord's expense statement, Landlord's determination of
actual Operating Expenses for the applicable Expense Recovery Period shall be
conclusive and binding on the parties and any future claims to the contrary
shall be barred.
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Provided Tenant is not then &Default hereunder, Tenant shall have the
right to cause a trained accountant to audit Landlord's Operating Expenses. In
no event, however, shall such accountant be compensated by Tenant on a
"contingency" basis, or on any other basis tied to the results of said audit.
Tenant shall give notice to Landlord of Tenant's intent to audit within one
hundred eighty (180) days after Tenant's receipt of Landlord's expense statement
which sets forth Landlord's actual Operating Expenses. Such audit shall be
conducted at a mutually agreeable time during normal business hours at the
office of Landlord or its management agent where the records are maintained. If
Tenant's audit determines that actual Operating Expenses have been overstated by
more than five percent (5%), then, subject to Landlord's right to review and/or
contest the audit results, Landlord shall reimburse Tenant for the reasonable
out of pocket costs of such audit. Tenant's rent shall be appropriately adjusted
to reflect any overstatement in Operating Expenses. In the event of a dispute
between Landlord and Tenant regarding the results of such audit, either party
may elect to submit the matter for binding arbitration with JAMS/ENDISPUTE or
its successor in Orange County, California.
All of the information obtained by Tenant and/or its auditor in connection
with such audit, as well as any compromise, settlement, or adjustment reached
between Landlord and Tenant as a result thereof (except to the extent that
Tenant shall prove that such information, compromise, settlement or adjustment
was otherwise available in the public domain), shall be held in strict
confidence and, except as may be required pursuant to litigation or court order
and except for inadvertent disclosures despite Tenant's reasonable efforts to
keep the disclosed information confidential, shall not be disclosed to any third
party, directly or indirectly, by Tenant or its auditor or any of their
officers, agents or employees. Landlord may require Tenant's auditor to execute
a separate confidentiality agreement in commercially reasonable form affirming
the foregoing as a condition precedent to any audit. In the event of a violation
of this confidentiality covenant in connection with any audit, then in addition
to any other legal or equitable remedy available to Landlord, Tenant shall
forfeit its right to any reconciliation or cost reimbursement payment from
Landlord due to said audit (and any such payment theretofore made by Landlord
shall be promptly returned by Tenant), and Tenant shall have no further audit
rights under this Lease.
(d) Even though the Lease has terminated and the Tenant has vacated the
Premises, when the final determination is made of Tenant's Share of Operating
Expenses for the Expense Recovery Period in which the Lease terminates, Tenant
shall, within ten (10) days after receiving notice, pay the entire increase due
over the estimated expenses paid. Conversely, any overpayment made in the event
expenses decrease shall be rebated by Landlord to Tenant within ten (10) days
following such final determination.
(e) If, at any time during any Expense Recovery Period, any one or more of
the Operating Expenses are increased to a rate(s) or amount(s) in excess of the
rate(s) or amount(s) used in calculating the estimated expenses for the year,
then the estimate of Tenants Share of Operating Expenses shall be increased for
the month in which such rate(s) or amount(s) become(s) effective and for all
succeeding months by an amount equal to Tenant's Share of the increase. Landlord
shall give Tenant written notice of the amount or estimated amount of the
increase, the month in which the increase will become effective, Tenant's Share
thereof and the month for which the payments are due. Tenant shall pay the
increase to Landlord as a part of
8
Tenant's monthly payments of estimated expenses as provided in paragraph (b)
above, commencing with the month in which effective.
(f) The term, "Operating Expenses" shall mean and include all "Project
Costs" (as hereafter defined) and "Property Taxes" (as hereafter defined).
(g) The term, "Project Costs" shall include all expenses of operation and
maintenance of the Building and the Project, together with all appurtenant
Common Areas (as defined in Section 6.2),and shall include the following charges
by way of illustration but not limitation: water and sewer charges; insurance
premiums or reasonable premium equivalents should Landlord elect to self-insure
any risk that Landlord is authorized to insure hereunder; license, permit, and
inspection fees; heat; light; power; janitorial services to any interior Common
Areas; air conditioning; supplies; materials; equipment; tools; the cost of any
environmental, insurance, tax or other consultant utilized by Landlord in
connection with the Building and/or Project; establishment of reasonable
reserves for replacements and/or repair of Common Area improvements, equipment
and supplies; costs incurred in connection with compliance of any Laws or
changes in laws applicable to the Building or the Project; the cost of any
capital investments (other than tenant improvements for specific tenants) to the
extent of the amortized amount thereof over the useful life of such capital
investments (in accordance with generally accepted accounting principles,
consistently applied) calculated at a market cost of funds, as reasonably
determined by Landlord, for each such year of useful life during the Term; costs
associated with the procurement and maintenance of an air conditioning, heating
and ventilation service agreement; labor, reasonably allocated wages and
salaries, fringe benefits, and payroll taxes for administrative and other
personnel directly applicable to the Building and/or Project, including both
Landlord's personnel and outside personnel; any expense incurred pursuant to
Sections 6.1, 6.2, 6.4, 7.2, and 10.2; and a reasonable and reasonably allocated
overhead management fee for the professional operation of the Project which
shall be competitive with fees charged for the management of similar projects in
the Irvine Spectrum area. It is understood that Project Costs shall include
competitive charges for direct services provided by any subsidiary or division
of Landlord.
Notwithstanding anything to the contrary in this Section 4.2(g), "Project
Costs" shall not include and Tenant shall not have any obligation to perform or
to pay for the following (collectively, "Costs"): (a) Costs occasioned by the
violation of any law by Landlord or its authorized agents, contractors or
employees; (b) Costs of repair or restoration as the result of damage to the
Building occasioned by a casualty governed by the provisions of Article XI of
this Lease, and Costs of restoration as the result of the exercise of the power
of eminent domain and governed by the provisions of Article XII of this Lease;
(c) Costs for which Landlord has received reimbursement from others; (d) Costs
for which Landlord is responsible pursuant to Section 2.4 of this Lease; (e)
fees, commissions, attorneys' fees, costs or other disbursements incurred in
connection with negotiations or disputes with any other occupant of the Project
or arising from the violation by Landlord or any occupant of the Project (other
than Tenant) of the terms and conditions of any lease or other agreement; (f)
depreciation or amortization; (g) interest, charges and fees incurred on debt,
payments on mortgages and rent under ground leases encumbering the Premises
and/or the Project; (h) Costs incurred in connection with the presence of any
Hazardous Material in, on, under or about the Project, except to the extent
9
Tenant is responsible for such Costs as provided in Section 5.3 of this Lease;
(i) Costs and expenses for which Tenant reimburses Landlord directly or which
Tenant pays directly to a third person; (j) any salaries or other compensation
payable by Landlord at the "executive" level; (k) the cost of any capital
investments to the Project and/or the Building except to the extent that such
costs are incurred either for the replacement or restoration of any existing
system or component of the Building and/or the Project or for a new system or
component that Landlord reasonably believes will reduce overall Project Costs
(provided that nothing contained in this subsection (k) shall amend or supersede
the provisions of Section 5.1 of this Lease, nor amend or supersede Tenant's
responsibility for capital costs resulting from its particular use of the
Premises); and (l) Costs relating exclusively to other buildings in the Project
other than the Building.
(h) The term "Property Taxes" as used herein shall include the following:
(i) all real estate taxes or personal property taxes, as such property taxes may
be reassessed from time to time; and (ii) other taxes, charges and assessments
which are levied with respect to this Lease or to the Building and/or the
Project, and any improvements, fixtures and equipment and other property of
Landlord located in the Building and/or the Project, except that general net
income and franchise taxes imposed against Landlord shall be excluded; and (iii)
all assessments and fees for public improvements, services, and facilities and
impacts thereon, including, without limitation, arising out of any Community
Facilities Districts, "Xxxxx Xxxx" districts, similar assessment districts, and
any traffic impact mitigation assessments or fees; (iv) any tax, surcharge or
assessment which shall be levied in addition to or in lieu of real estate or
personal property taxes, other than taxes covered by Article VIII; and (v) costs
and expenses incurred in contesting the amount or validity of any Property Tax
by appropriate proceedings. Notwithstanding anything to the contrary in this
Section 4.2(h), "Property Taxes" shall not include, and Tenant shall not be
required to pay, any portion of any tax or assessment expense or any increase
therein (a) levied on Landlord's rental income, unless such tax or assessment
expense is imposed in lieu of Property Taxes; (b) imposed on land and
improvements other than the Building or Project; or (c) attributable to
Landlord's net income, inheritance, gift, transfer, estate or state taxes; or
(d) taxes and/or assessments to the extent that such taxes or assessments were
paid in installments other than over the longest possible term.
SECTION 4.3. SECURITY DEPOSIT. Concurrently with Tenant's delivery of this
Lease, Tenant shall deposit with Landlord the sum, if any, stated in Item 9 of
the Basic Lease Provisions, to be held by Landlord as security for the full and
faithful performance of Tenants obligations under this Lease (the "Security
Deposit"). Upon any Default by Tenant, including specifically Tenant's failure
to pay rent or to abide by its obligations under Sections 7.1 and 15.3 below,
whether or not Landlord is informed of or has knowledge of the Default, the
Security Deposit shall be deemed to be automatically and immediately applied,
without waiver of any rights Landlord may have under this Lease or at law or in
equity as a result of the Default as a setoff for full or partial compensation
for that Default. If any portion of the Security Deposit is applied after a
Default by Tenant, Tenant shall, within five (5) days after written demand by
Landlord, deposit cash with Landlord in an amount sufficient to restore the
Security Deposit to its original amount. Landlord shall not be required to keep
this Security Deposit separate from its general funds, and Tenant shall not be
entitled to interest on the Security Deposit. The Security Deposit shall be
returned to Tenant (or, at Landlord's option, to
10
the last assignee of Tenant's interest in this Lease) within sixty (60) days
after the expiration of the Term, provided that Landlord may, in its reasonable
discretion, retain all or a portion of the Security Deposit to the extent, and
until such time as, all amounts due from Tenant in accordance with this Lease
have been determined and paid in full, with any balance of the Security Deposit
being returned to Tenant within sixty (60) days after the expiration of the
Term.
Provided that Tenant has not at any time been in default under this Lease,
and provided further that Tenant has not at any time been more than five (5)
days late with respect to any payments of rent due under this Lease more than
once during the Term, then Landlord shall return to Tenant a portion of the
Security Deposit in the form of a credit against Basic Rent in accordance with
the following schedule:
(a) Twenty-One Thousand Seven Hundred Sixty-One Dollars ($21,761.00)
credited against the Basic Rent due and payable for the thirty-fifth (35th)
month of the Term; and
(b) Twenty-One Thousand Seven Hundred Sixty One Dollars ($21,761.00)
credited against the Basic Rent due and payable for the thirty-sixth (36th)
month of the Term.
ARTICLE V. USES
SECTION 5.1. USE. Tenant shall use the Premises only for the purposes
stated in Item 3 of the Basic Lease Provisions, all m accordance with applicable
laws and restrictions and pursuant to approvals to be obtained by Tenant from
all relevant and required governmental agencies and authorities. The parties
agree that any contrary use shall be deemed to cause material and irreparable
harm to Landlord and shall entitle Landlord to injunctive relief in addition to
any other available remedy. Tenant, at its expense, shall procure, maintain and
make available for Landlord's inspection throughout the Term, all governmental
approvals, licenses and permits, if any, required for the proper and lawful
conduct of Tenant's business in the Premises. Tenant shall not do or permit
anything to be done in or about the Premises which will in any way interfere
with the rights of other occupants of the Building or the Project, or use or
allow the Premises to be used for any unlawful purpose, nor shall Tenant permit
any nuisance or commit any waste in the Premises or the Project. Tenant shall
not perform any work or conduct any business whatsoever in the Project other
than inside the Premises. Tenant shall not do or permit to be done anything
which will invalidate or increase the cost of any insurance policy(ies) covering
the Building, the Project and/or their contents (unless Tenant agrees to pay for
such increases), and shall comply with all applicable insurance underwriters
rules. Tenant shall comply at its expense with all present and future laws,
ordinances, restrictions, regulations, orders, rules and requirements of all
governmental authorities that pertain to Tenant or its use of the Premises,
including, without limitation, all federal and state occupational health and
safety requirements, whether or not Tenant's compliance will necessitate
expenditures or interfere with its use and enjoyment of the Premises.
Notwithstanding the foregoing or anything in this Lease to the contrary, to the
extent that construction or rehabilitation is required in connection with the
foregoing compliance, Landlord shall perform such construction or rehabilitation
and the costs thereof, subject to the limitations on capital investments
contained in Section 4.2(g), shall be considered as part of "Project Costs"
(except to the extent that such compliance results from Tenant's particular use
of the Premises [including, without limitation, ADA compliance by
11
Tenant in connection with its business and employment practices in the
Premises], in which event Tenant shall perform all required construction and/or
rehabilitation at its sole cost and expense). Tenant shall comply at its expense
with all present and future covenants, conditions, easements or restrictions now
or hereafter affecting or encumbering the Building and/or Project, and any
amendments or modifications thereto, including, without limitation, the payment
by Tenant of any periodic or special dues or assessments charged against the
Premises or Tenant which may be allocated to the Premises or Tenant in
accordance with the provisions thereof; provided that such compliance with
future covenants, conditions, easements or restrictions hereafter affecting the
Building and/or the Project, and/or compliance with amendments or modifications
) to existing covenants, conditions, easements or restrictions, do not
unreasonably interfere with Tenant's business operations on the Premises or
materially increase the obligations or materially decrease the rights of Tenant
under this Lease. Tenant shall, promptly upon demand, reimburse Landlord for any
additional insurance premium charged by reason of Tenant's failure to comply
with the provisions of this Section, and shall indemnify Landlord from any
liability and/or expense resulting from Tenant's noncompliance.
SECTION 5.2. SIGNS. Tenant shall have the right to one (1) exterior
"building top" sign on the facade of the Building facing Laguna Canyon Road and
one (1) exterior "eyebrow" sign on the Building, subject to Landlord's right of
prior approval that such exterior signage is in compliance with the Signage
Criteria (defined below). Except as provided in the foregoing or as otherwise
approved in writing by Landlord, in its sole discretion, Tenant shall have no
right to maintain identification signs in any location in, on or about the
Premises, the Building or the Project, and shall not place or erect any signs,
displays or other advertising materials that are visible from the exterior of
the Building. The size, design, graphics, material, style, color and other
physical aspects of any permitted sign shall be subject to Landlord's written
approval prior to installation (which approval may be withheld in Landlord's
discretion), any covenants, conditions or restrictions encumbering the Premises,
Landlord's signage program for the Project, as in effect from time to time and
approved by the City in which the Premises are located ("Signage Criteria"), and
any applicable municipal or other governmental permits and approvals. Tenant
acknowledges having received and reviewed a copy of the current Signage Criteria
for the Project. Tenant shall be responsible for the cost of any permitted sign,
including the fabrication, installation, maintenance and removal thereof. If
Tenant fails to maintain its sign, or if Tenant fails to remove same upon
termination of this Lease and repair any damage caused by such removal, Landlord
may do so at Tenant's expense.
SECTION 5.3. HAZARDOUS MATERIALS.
(a) For purposes of this Lease, the term "Hazardous Materials" includes
(i) any "hazardous materials" as defined in Section 25501(n) of the California
Health and Safety Code, (ii) any other substance or matter which results in
liability to any person or entity from exposure to such substance or matter
under any statutory or common law theory, and (iii) any substance or matter
which is in excess of permitted levels set forth in any federal, California or
local law or regulation pertaining to any hazardous or toxic substance, material
or waste.
(b) Tenant shall not cause or permit any Hazardous Materials to be brought
upon, stored, used, generated, released or disposed of on, under, from or about
the Premises (including, without limitation, the soil and groundwater
thereunder) without the prior written consent of
12
Landlord. Notwithstanding the foregoing, Tenant shall have the right, without
obtaining prior written consent of Landlord, to utilize within the Premises
standard office products that may contain hazardous materials (such as photocopy
toner, "White Out," and the like); provided, however, that (i) Tenant shall
maintain such products in their original retail packaging, shall follow all
instructions on such packaging with respect to the storage, use and disposal of
such products, and shall otherwise comply with all applicable laws with respect
to such products, and (ii) all of the other terms and provisions of this Section
5.3 shall apply with respect to Tenant's storage, use and disposal of all such
products. Landlord may, in its sole discretion, place such commercially
reasonable conditions as Landlord deems appropriate with respect to any such
Hazardous Materials, and may further require that Tenant demonstrate that any
such Hazardous Materials are necessary or useful to Tenant's business and will
be generated, stored, used and disposed of in a manner that complies with all
applicable laws and regulations pertaining thereto and with good business
practices. Tenant understands that Landlord may utilize an environmental
consultant to assist in determining conditions of approval in connection with
the storage, generation, release, disposal or use of Hazardous Materials by
Tenant on or about the Premises, and/or to conduct periodic inspections of the
storage, generation, use, release and/or disposal of such Hazardous Materials by
Tenant on and from the Premises, and Tenant agrees that any costs incurred by
Landlord in connection therewith shall be reimbursed by Tenant to Landlord as
additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant shall complete, execute
and deliver to Landlord an Environmental Questionnaire and Disclosure Statement
(the "Environmental Questionnaire") in the form of attached hereto. The
completed Environmental Questionnaire shall be deemed incorporated into this
Lease for all purposes, and Landlord shall be entitled to rely fully on the
information contained therein. On each anniversary of the Commencement Date
until the expiration or sooner termination of this Lease, Tenant shall disclose
to Landlord in writing the names and amounts of all Hazardous Materials which
were stored, generated, used, released and/or disposed of on, under or about the
Premises for the twelve-month period prior thereto, and which Tenant desires to
store, generate, use, release and/or dispose of on, under or about the Premises
for the succeeding twelve-month period. In addition, to the extent Tenant is
permitted to utilize Hazardous Materials upon the Premises, Tenant shall
promptly provide Landlord with complete and legible copies of all the following
environmental documents relating thereto: reports filed pursuant to any
self-reporting requirements; permit applications, permits, monitoring reports,
workplace exposure and community exposure warnings or notices and all other
reports, disclosures, plans or documents (even those which may be characterized
as confidential) relating to water discharges, air pollution, waste generation
or disposal, and underground storage tanks for Hazardous Materials; orders,
reports, notices, listings and correspondence (even those which may be
considered confidential) of or concerning the release, investigation of,
compliance, cleanup, remedy and corrective actions, and abatement of Hazardous
Materials; and all complaints, pleadings and other legal documents filed by or
against Tenant related to Tenant's use, handling, storage, release and/or
disposal of Hazardous Materials.
(d) Landlord and its agents shall have the right, but not the obligation,
to inspect, sample and/or monitor the Premises and/or the soil or groundwater
thereunder at any time to determine whether Tenant is complying with the terms
of this Section 5.3, and in connection therewith Tenant shall provide Landlord
with full access to all relevant facilities, records and personnel. If Tenant is
not in compliance with any of the provisions of this Section 5.3, or in the
event of a
13
release of any Hazardous Material on, under or about the Premises caused or
permitted by Tenant, its agents, employees, contractors, licensees or invitees,
Landlord and its agents shall have the right, but not the obligation, without
limitation upon any of Landlord's other rights and remedies under this Lease, to
immediately enter upon the Premises without notice and to discharge Tenants
obligations under this Section 5.3 at Tenant's expense, including, without
limitation, the taking of emergency or long-term remedial action. Landlord and
its agents shall endeavor to minimize interference with Tenant's business in
connection therewith, but shall not be liable for any such interference. In
addition, Landlord, at Tenant's expense, shall have the right, but not the
obligation, to join and participate in any legal proceedings or actions
initiated in connection with any claims arising out of the storage, generation,
use, release and/or disposal by Tenant or its agents, employees, contractors,
licensees or invitees of Hazardous Materials on, under, from or about the
Premises.
(e) If the presence of any Hazardous Materials on, under, from or about
the Premises or the Project caused or permitted by Tenant or its agents,
employees, contractors, licensees or invitees results in (i) injury to any
person, injury to or any contamination of the Premises or the Project, or (ii)
injury to or contamination of any real or personal property wherever situated,
Tenant, at its expense, shall promptly take all actions necessary to return the
Premises and the Project and any other affected real or personal property owned
by Landlord to the condition existing prior to the introduction of such
Hazardous Materials and to remedy or repair any such injury or contamination,
including, without limitation, any cleanup, remediation, removal, disposal,
neutralization or other treatment of any such Hazardous Materials.
Notwithstanding the foregoing, Tenant shall not, without Landlord's prior
written consent, take any remedial action in response to the presence of any
Hazardous Materials on, under or about the Premises or the Project or any other
affected real or personal property owned by Landlord, or enter into any similar
agreement, consent, decree or other compromise with any governmental agency with
respect to any Hazardous Materials claims; provided, however, Landlord's prior
written consent shall not be necessary in the event that the presence of
Hazardous Materials on, under or about the Premises or the Project or any other
affected real or personal property owned by Landlord (i) imposes an immediate
threat to the health, safety or welfare of any individual or (ii) is of such a
nature that an immediate remedial response is necessary and it is not possible
to obtain Landlord's consent before taking such action. To the fullest extent
permitted by law, Tenant shall indemnify, hold harmless, protect and defend
(with attorneys acceptable to Landlord) Landlord and any successors to all or
any portion of Landlord's interest in the Premises and the Project and any other
real or personal property owned by Landlord from and against any and all
liabilities, losses, damages, diminution in value, judgments, fines, demands,
claims, recoveries, deficiencies, costs and expenses (including, without
limitation, attorneys' fees, court costs and other professional expenses),
whether foreseeable or unforeseeable, arising directly or indirectly out of the
use, generation, storage, treatment, release, on or offsite disposal or
transportation of Hazardous Materials on, into, from, under or about the
Premises, the Building and the Project and any other real or personal property
owned by Landlord caused or permitted by Tenant, its agents, employees,
contractors, licensees or invitees, specifically including, without limitation,
the cost of any required or necessary repair, restoration, cleanup or
detoxification of the Premises, the Building and the Project and any other real
or personal property owned by Landlord, and the preparation of any closure or
other required plans, whether or not such action is required or necessary during
the Tem or after the expiration of this Lease. If Landlord at any time discovers
that Tenant or its agents, employees, contractors, licensees or invitees may
have
14
caused or permitted the release of a Hazardous Material on, under, from or about
the Premises or the Project or any other real or personal property owned by
Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to
Landlord a comprehensive plan, subject to Landlord's approval, specifying the
actions to be taken by Tenant to return the Premises or the Project or any other
real or personal property owned by Landlord to the condition existing prior to
the introduction of such Hazardous Materials. Upon Landlord's approval of such
cleanup plan, Tenant shall, at its expense, and without limitation of any rights
and remedies of Landlord under this Lease or at law or in equity, immediately
implement such plan and proceed to cleanup such Hazardous Materials in
accordance with all applicable laws and as required by such plan and this Lease.
The provisions of this subsection (e) shall expressly survive the expiration or
sooner termination of this Lease.
(f) Landlord hereby discloses to Tenant, and Tenant hereby acknowledges,
certain facts relating to Hazardous Materials at the Project known by Landlord
to exist as of the date of this Lease, as more particularly described in Exhibit
C attached hereto. Tenant shall have no liability or responsibility with respect
to the Hazardous Materials facts described in Exhibit C, nor with respect to any
Hazardous Materials which were not caused or permitted by Tenant, its agents,
employees, contractors, licensees or invitees. Notwithstanding the preceding two
sentences, Tenant agrees to notify its agents, employees, contractors,
licensees, and invitees of any exposure or potential exposure to Hazardous
Materials at the Premises that Landlord brings to Tenant's attention.
(g) To "Landlord's knowledge" (as hereinafter defined), except as
disclosed on Exhibit C attached hereto: (a) no Hazardous Material is present on
the Project or the soil, surface water or groundwater thereof, (b) no
underground storage tanks are present on the Project, and (c) no action,
proceeding or claim is pending or threatened regarding the Project concerning
any Hazardous Material or pursuant to any environmental law. As used herein,
"Landlord's knowledge" shall mean the actual knowledge, as of the Commencement
Date of this Lease, of the current employees of Landlord charged with
responsibility for the environmental compliance of the Project with Hazardous
Materials laws, but without obligation whatsoever for on- or off-site inquiry,
investigation or inspection.
(h) Landlord shall take responsibility, at its sole cost and expense, for
any governmentally ordered cleanup, remediation, removal disposal,
neutralization, monitoring or other treatment of the Hazardous Materials
conditions disclosed on Exhibit C attached hereto, and in connection with other
Hazardous Materials which were present in, on under or about any part of the
Project as of the Commencement Date. The foregoing obligation on the part of
Landlord shall include the reasonable costs (including, without limitation,
reasonable attorneys' fees) of defending Tenant (with attorneys reasonably
acceptable to Tenant) from and against any legal action or proceeding instituted
by any governmental agency in connection with such cleanup, remediation,
removal, disposal neutralization or other treatment of such conditions; provided
that Tenant promptly tenders such defense to Landlord. The obligation on the
part of Landlord contained in this Section 5.3(h) is personal to The Irvine
Company and shall not be binding on, nor inure against any successor in interest
to The Irvine Company as of the owner of the Premises, including, without
limitation, any lender acquiring the Premises by foreclosure of its mortgage or
deed of trust or deed in lieu of foreclosure. Subject to the foregoing, and to
the
15
limitations contained elsewhere in this Lease, the provisions of this subsection
(h) shall expressly survive the expiration or sooner termination of this Lease.
(i) The rights, obligations and duties of the parties contained in this
Section 5.3 shall supersede any contrary provisions contained in Sections 7.1,
7.2 and/or 10.3 of this Lease.
ARTICLE VI. COMMON AREAS; SERVICES
SECTION 6.1. UTILITIES AND SERVICES. Tenant shall pay promptly, directly
to the appropriate supplier, all charges for water, gas, electricity, sewer,
heat, light, power, telephone, refuse pickup, janitorial service, interior
landscape maintenance and all other utilities, materials and services furnished
directly to Tenant or the Premises or used by Tenant in, on or about the
Premises during the Term, together with any taxes thereon. If any utilities or
services are not separately metered or assessed to Tenant, Landlord shall make a
reasonable determination of Tenant's proportionate share of the cost of such
utilities and services and Tenant shall pay such amount to Landlord, as an item
of additional rent, within ten (10) days after receipt of Landlord's statement
or invoice therefor. Alternatively, Landlord may elect to include such cost in
the definition of Building Costs, in which event Tenant shall pay Tenant's
proportionate share of such costs in the manner set forth in Section 4.2.
Landlord shall not be liable for damages or otherwise for any failure or
interruption of any utility or other service furnished to the Premises, and no
such failure or interruption shall be deemed an eviction or entitle Tenant to
terminate this Lease or withhold or xxxxx any rent due hereunder. Landlord
shall, at all reasonable times, have free access to all electrical and
mechanical installations of Landlord; provided that Landlord shall interfere as
little as reasonably practicable with the conduct of Tenant's business in the
Premises. Notwithstanding the foregoing, if as a result of the actions of
Landlord, its authorized agents or employees, for more than three (3)
consecutive business days following written notice to Landlord there is no HVAC
or electricity services to all or a portion of the Premises, or such an
interruption of other essential utilities and building services, such as fire
protection or water, so that all or a portion of the Premises cannot be used by
Tenant, then Tenant's Basic Rent (or an equitable portion of such Basic Rent to
the extent that less than all of the Premises are affected) shall thereafter be
abated until the Premises are again usable by Tenant; provided, however, that if
Landlord is diligently pursuing the repair of such utilities or services and
Landlord provides substitute services reasonably suitable for Tenant's purposes,
as for example, bringing in portable air conditioning equipment, then there
shall not be an abatement of Basic Rent. Any disputes concerning the foregoing
shall be submitted to and resolved by JAMS arbitration pursuant to Section 22.7
of this Lease. The foregoing provisions shall not apply in case of damage to, or
destruction of, the Premises, which shall be governed by the provisions of
Article XI of the Lease.
SECTION 6.2. OPERATION AND MAINTENANCE OF COMMON AREAS. During the Term,
Landlord shall operate all Common Areas within the Building and the Project. The
term "Common Areas" shall mean all areas within the exterior boundaries of the
Building and other buildings in the Project which are not held for exclusive use
by persons entitled to occupy space, and all other appurtenant areas and
improvements provided by Landlord for the common use of Landlord and tenants and
their respective employees and invitees, including,
16
without limitation, parking areas and structures, driveways, sidewalks,
landscaped and planted areas, hallways and interior stairwells not located
within the premises of any tenant, common electrical rooms and roof access
entries, common entrances and lobbies, elevators, and restrooms not located
within the premises of any tenant.
SECTION 6.3 USE OF COMMON AREAS. The occupancy by Tenant of the Premises
shall include the use of the Common Areas in common with Landlord and with all
others for whose convenience and use the Common Areas may be provided by
Landlord; subject, however, to compliance with all rules and regulations as are
prescribed from time to time by Landlord. Landlord shall operate and maintain
the Common Areas in the manner Landlord may determine to be appropriate as a
"first-class" Project. All costs incurred by Landlord for the maintenance and
operation of the Common Areas shall be included in Project Costs unless any
particular cost incurred can be charged to a specific tenant of the Project.
Landlord shall, at all times during the Term, have exclusive control of the
Common Areas, and may restrain any use or occupancy, except as authorized by
Landlord's rules and regulations. Tenant shall keep the Common Areas clear of
any obstruction or unauthorized use related to Tenant's operations. Nothing in
this Lease shall be deemed to impose liability upon Landlord for any damage to,
or loss of the property of, or for any injury to, Tenant, its invitees or
employees. Landlord may temporarily close any portion of the Common Areas for
repairs, remodeling and/or alterations, to prevent a public dedication or the
accrual of prescriptive rights, or for any other reason deemed reasonably
sufficient by Landlord, without liability to Landlord.
SECTION 6.4. PARKING. Tenant shall be entitled to the number of vehicle
parking spaces set forth in Item 14 of the Basic Lease Provisions, which spaces
shall be unreserved and unassigned, on those portions of the Common Areas
designated by Landlord for parking. Tenant shall not use more parking spaces
than such number. All parking spaces shall be used only for parking by vehicles
no larger than full-size passenger automobiles, vans or pickup trucks. Tenant
shall not permit or allow any vehicles that belong to or are controlled by
Tenant or Tenant's employees, suppliers, shippers, customers or invitees to be
loaded, unloaded or parked in areas other than those designated by Landlord for
such activities. If Tenant permits or allows any of the prohibited activities
described above, then Landlord shall have the right, without notice, in addition
to such other rights and remedies that Landlord may have, to remove or tow away
the vehicle involved and charge the costs to Tenant. Parking within the Common
Areas shall be limited to striped parking stalls, and no parking shall be
permitted in any driveways, access ways or in any area which would prohibit or
impede the free flow of traffic within the Common Areas. There shall be no
overnight parking of any vehicles of any kind unless otherwise authorized by
Landlord, and vehicles which have been abandoned or parked in violation of the
terms hereof may be towed away at the owner's expense. Landlord shall have the
right to establish, and from time to time amend, and to enforce against all
users, all reasonable rules and regulations (including the designation of areas
for employee parking) that Landlord may deem necessary and advisable for the
proper and efficient operation and maintenance of parking within the Common
Areas. Landlord shall have the right to construct, maintain and operate lighting
facilities with the parking areas; to change the area, level, location and
arrangement of the parking areas and improvements therein; to restrict parking
by tenants, their officers, agents and employees to employee parking areas, to
enforce parking charges (by operation of meters or otherwise); and to do and
perform such other acts in and to the parking areas and improvements therein as,
in the use of good business judgment, Landlord shall
17
determine to be advisable. Notwithstanding the foregoing, in no event shall
Landlord enforce parking charges (by operation of meters or otherwise): (i)
during the initial 36-month Term of this Lease, or (ii) during an extension of
the Term if Tenant exercises its right to extend the Term as provided in Section
3.3 of this Lease, unless Landlord has expressly reserved the right to so
enforce parking charges as part of its "Landlord's Determination" (as provided
in said Section 3.3). Any person using the parking area shall observe all
directional signs and arrows and any posted speed limits. In no event shall
Tenant interfere with the use and enjoyment of the parking area by other tenants
of the Building or their employees or invitees. Parking areas shall be used only
for parking vehicles. Washing, waxing, cleaning or servicing of vehicles, or the
storage of vehicles for 24-hour periods, is prohibited unless otherwise
authorized by Landlord. Tenant shall be liable for any damage to the parking
areas caused by Tenant or Tenant's employees, suppliers, shippers, customers or
invitees, including, without limitation, damage from excess oil leakage. Tenant
shall have no right to install any fixtures, equipment or personal property in
the parking areas.
SECTION 6.5. CHANGES AND ADDITIONS BY LANDLORD. Landlord reserves the
right to make alterations or additions to the Building or the Project, or to the
attendant fixtures, equipment and Common Areas. Landlord may at any time
relocate or remove any of the various buildings, parking areas, and other Common
Areas, and may add buildings and areas to the Project from time to time. No
change shall entitle Tenant to any abatement of rent or other claim against
Landlord; provided that the change does not deprive Tenant of reasonable access
to or use of the Premises. Notwithstanding anything to the contrary in this
Section 6.5, Landlord shall not make any modifications to or use of the Common
Areas if such modifications or use would unreasonably interfere with Tenant's
business operations on the Premises or materially increase the obligations or
materially decrease the rights of Tenant under the Lease. Landlord shall use its
reasonable diligence to minimize any disruption to Tenant's business operations
in connection with any such modifications to the Common Areas.
ARTICLE VII. MAINTAINING THE PREMISES
SECTION 7.1. TENANT'S MAINTENANCE AND REPAIR. Except as expressly
otherwise provided in Sections 2.4, 5.1, 7.2 and in Articles XI and XII of this
Lease, Tenant at its sole expense shall make all repairs necessary to keep the
Premises in the condition as existed on the Commencement Date (or on any later
date that the improvements may have been installed), excepting ordinary wear and
tear, including, without limitation, all glass, windows, doors, door closures,
hardware, failures and fire extinguisher equipment. Any damage or deterioration
of the Premises shall not be deemed ordinary wear and tear if the same could
have been prevented by good maintenance practices by Tenant. As part of its
maintenance obligations hereunder, Tenant shall, at Landlord's request, provide
Landlord with copies of all maintenance schedules, reports and notices prepared
by, for or on behalf of Tenant. All repairs shall be at least equal in quality
to the original work, shall be made only by a licensed contractor approved in
writing in advance by Landlord. Any contractor utilized by Tenant shall he
subject to Landlord's reasonable requirements for contractors, as modified from
time to time. Landlord may impose reasonable restrictions and requirements with
respect to repairs, as provided in Section 7.3, and the provisions of Section
7.4 shall apply to all repairs. If Tenant fails to properly maintain and/or
repair the Premises as herein provided following Landlord's notice and the
expiration of the applicable cure period, then Landlord may elect to make any
repair or
18
maintenance required hereunder on behalf of Tenant and at Tenant's expense, and
Tenant shall promptly reimburse Landlord for all reasonable costs incurred
within ten (10) days following submission of an invoice.
SECTION 7.2. LANDLORD'S MAINTENANCE AND REPAIR. Landlord shall provide
service, maintenance and repair with respect to any air conditioning,
ventilating or heating equipment which serve the Premises, and shall maintain in
good repair the roof, foundations, footings, the exterior surfaces of the
exterior walls of the Building, and the structural, electrical, plumbing and
mechanical systems, except that Tenant at its expense shall make all repairs
which Landlord deems reasonably necessary as a result of the act or negligence
of Tenant, its agents, employees, invitees, subtenants or contractors. Landlord
shall have the right to employ or designate any reputable person or firm,
including any employee or agent of Landlord or any of Landlord's affiliates or
divisions, to perform any service, repair or maintenance function. Landlord need
not make any other improvements or repairs except as specifically required under
this Lease, and nothing contained in this Section shall limit Landlord's right
to reimbursement from Tenant for maintenance, repair costs and replacement costs
as provided elsewhere in this Lease. Except as expressly provided in Section 7.6
of this Lease, Tenant understands that it shall not make repairs at Landlord's
expense or by rental offset. Tenant further understands that Landlord shall not
be required to make any repairs to the roof, foundations, footings, structural,
electrical or mechanical systems unless and until Tenant has notified Landlord
in writing of the need for such repair and Landlord shall have a reasonable
period of time thereafter to commence and complete said repair, if warranted.
Subject to the provisions of Sections 2.4 and 4.2 of this Lease, all costs of
any maintenance and repairs on the part of Landlord provided hereunder shall be
considered part of Project Costs.
SECTION 7.3. ALTERATIONS. Tenant shall make no alterations, additions or
improvements to the Premises without the prior written consent of Landlord,
which consent may be given or withheld in Landlord's sole discretion.
Notwithstanding the foregoing, Landlord shall not unreasonably withhold its
consent to any alterations, additions or improvements to the Premises which cost
less than Sixty Thousand Dollars ($60,000.00); provided that such alterations,
additions or improvements do not (i) affect the exterior of the Building or
outside areas (or be visible from adjoining sites), or (ii) affect or penetrate
any of the structural portions of the Building, including, but not limited to,
the roof, or (iii) require any change to the basic floor plan of the Premises,
any change to any structural or mechanical systems of the Premises, or any
governmental permit as a prerequisite to the construction thereof, or (iv)
interfere in any manner with the proper functioning of or Landlord's access to
any mechanical, electrical, plumbing or HVAC systems, facilities or equipment
located in or serving the Building, or (v) diminish the value of the Premises.
Landlord may impose, as a condition to its consent, any requirements that
Landlord in its discretion may deem reasonable or desirable, including, but not
limited to, a requirement that any alteration project costing m excess of
Twenty-Five Thousand Dollars ($25,000.00) be covered by a lien and completion
bond satisfactory to Landlord, and requirements as to the manner, time, and
contractor for performance of the work. Tenant shall obtain all required permits
for the work and shall perform the work in compliance with all applicable laws,
regulations and ordinances, all covenants, conditions and restrictions affecting
the Project, and the Rules and Regulations (hereafter defined). Tenant
understands and agrees that Landlord shall be entitled to a supervision fee in
the amount of five percent (5%) of the cost of such work requiring a permit from
the City of Irvine. If any governmental entity requires, as a
19
condition to any proposed alterations, additions or improvements to the Premises
by Tenant, that improvements be made to the Common Areas, and if Landlord
consents to such improvements to the Common Areas, then Tenant shall, at
Tenant's sole expense, make such required improvements to the Common Areas in
such manner, utilizing such materials, and with such contractors (including, if
required by Landlord, Landlord's contractors) as Landlord may require in its
reasonable discretion. Under no circumstances shall Tenant make any improvement
which incorporates any Hazardous Materials, including, without limitation,
asbestos-containing construction materials, into the Premises. Any request for
Landlord's consent shall be made in writing and shall contain architectural
plans describing the work in detail reasonably satisfactory to Landlord. Unless
Landlord otherwise agrees in writing, all alterations, additions or improvements
affixed to the Premises (excluding trade fixtures, personal property and
furniture) shall become the property of Landlord and shall be surrendered with
the Premises at the end of the Term, except that Landlord may, by notice to
Tenant, require Tenant to remove by the Expiration Date, or sooner termination
date of this Lease, all or any alterations, decorations, fixtures, additions and
the like installed either by Tenant or by Landlord at Tenant's request, and any
"Non-Standard Improvements" installed by Landlord pursuant to the Work Letter,
and to repair any damage to the Premises arising from that removal. Any notice
to Tenant pursuant to the foregoing shall be given by Landlord concurrently with
its consent (following Tenant's request for such consent) for all or any
alterations, decorations, fixtures or additions and the like, and concurrently
with Landlord's consent (following Tenant's request for such consent) for any
Non-Standard Improvements installed by Landlord pursuant to the Work Letter. If
such consent for such alterations, decorations, fixtures, additions or
Non-Standard Improvements is either not requested by Tenant or given by
Landlord, then any such notice of removal may be given at any time prior to
sixty (60) days following the expiration or earlier termination of the Term of
this Lease. Except as otherwise provided in this Lease or in any Exhibit to this
Lease, should Landlord make any alteration or improvement to the Premises for
Tenant, Landlord shall be entitled to prompt reimbursement from Tenant for all
costs incurred.
SECTION 7.4. MECHANIC'S LIENS. Tenant shall keep the Premises free from
any liens arising out of any work performed, materials furnished, or obligations
incurred by or for Tenant. Upon request by Landlord, Tenant shall promptly cause
any such lien to be released by posting a bond in accordance with California
Civil Code Section 3143 or any successor statute. In the event that Tenant shall
not, within thirty (30) days following the imposition of any lien, cause the
lien to be released of record by payment or posting of a proper bond, Landlord
shall have, in addition to all other available remedies, the right to cause the
lien to be released by any means it deems proper, including payment of or
defense against the claim giving rise to the lien. All expenses so incurred by
Landlord, including Landlord's attorneys' fees, and any consequential or other
damages incurred by Landlord arising out of such lien, shall be reimbursed by
Tenant promptly following Landlord's demand, together with interest from the
date of payment by Landlord at the maximum rate permitted by law until paid
Tenant shall give Landlord no less than twenty (20) days' prior notice in
writing before commencing construction of any kind on the Premises so that
Landlord may post and maintain notices of non-responsibility on the Premises.
SECTION 7.5. ENTRY AND INSPECTION. Subject to Tenant's reasonable security
requirements, Landlord shall at all reasonable times, upon at least twenty-four
(24) hours' written or oral notice (except in emergencies, when no notice shall
be required) have the
20
right to enter the Premises to inspect them, to supply services in accordance
with this Lease, to protect the interests of Landlord in the Premises, and to
submit the Premises to prospective or actual purchasers or encumbrance holders
(or, during the last one hundred and eighty (180) days of the Term or when a
Default exists, to prospective tenants), all without being deemed to have caused
an eviction of Tenant and without abatement of rent, except as provided
elsewhere in this Lease. Landlord shall have the right, if desired, to retain a
key which unlocks all of the doors in the Premises, excluding Tenants vaults and
safes, and Landlord shall have the right to use any and all means which Landlord
may deem proper to open the doors in an emergency in order to obtain entry to
the Premises, and any entry to the Premises obtained by Landlord shall not under
any circumstances be deemed to be a forcible or unlawful entry into, or a
detainer of, the Premises, or any eviction of Tenant from the Premises.
SECTION 7.6. TENANT'S SELF-HELP. Notwithstanding anything to the contrary
contained in Section 7.2 of this Lease, if Landlord shall fail to perform any
repair obligations required under this Article VII within thirty (30) days
following Tenant's written request for such repairs, or if Landlord shall fail
to perform any repairs required under this Lease of an emergency condition
within forty-eight (48) hours' written notice from Tenant, then Tenant may elect
to make such repairs at Landlord's expense by complying with the following
provisions of this Section 7.6. Before making any such repair, Tenant shall
deliver to Landlord an additional notice for the need for such repair
("Self-Help Notice"), which notice shall specifically advise Landlord that
Tenant intends to exercise its self-help right hereunder. Should Landlord fail,
within ten (10) days following receipt of the Self-Help Notice (or within
forty-eight (48) hours following notice in the event of necessary emergency
repairs), to commence the necessary repair or to make other arrangements
reasonably satisfactory to Tenant, then Tenant shall have the right to make such
repair on behalf of Landlord. Landlord shall promptly reimburse Tenant for the
reasonable costs of such repairs, but in no event shall Tenant have the right to
offset rent against such costs. In the event that the work could affect the
Building's structural, mechanical, electrical, heating, ventilating, air
conditioning, life safety or plumbing components or systems, then Tenant shall
use only those contractors used by Landlord in the Project for such work. The
foregoing requirement shall not apply in cases of emergency if Tenant is unable
to obtain such contractors for emergency repair work. If those contractors are
unwilling or unable to perform the work, Tenant may retain the services of
qualified, reputable and licensed, bondable contractors with like experience in
similar building systems. Tenant shall be responsible for obtaining any
necessary governmental permits before commencing the repair work, and Tenant
shall assume the risk of any damage, loss or injury resulting from such work.
ARTICLE VIII. TAXES AND ASSESSMENTS ON TENANT'S PROPERTY
Tenant shall be liable for and shall pay, at least ten (10) days before
delinquency, all taxes and assessments levied against all personal property of
Tenant located in the Premises, against all improvements to the Premises made by
Landlord or Tenant which are above Landlord's Project standard in quality and/or
quantity for comparable space within the Project ("Above Standard Improvements")
and against any alterations, additions or like improvements made to the Premises
by or on behalf of Tenant. When possible Tenant shall cause its personal
property, Above Standard Improvements and alterations to be assessed and billed
separately from the real property of which the Premises form a part. If any
taxes on Tenant's personal
21
property, Above Standard Improvements and/or alterations are levied against
Landlord or Landlord's property and if Landlord pays the same, or if the
assessed value of Landlord's property is increased by the inclusion of a value
placed upon the personal property, Above Standard Improvements and/or
alterations of Tenant and if Landlord pays the taxes based upon the increased
assessment, Tenant shall pay to Landlord the taxes so levied against Landlord or
the proportion of the taxes resulting from the increase in the assessment. In
calculating what portion of any tax xxxx which is assessed against Landlord
separately, or Landlord and Tenant jointly, is attributable to Tenant's Above
Standard Improvements, alterations and personal property, Landlord's reasonable
determination shall be conclusive.
ARTICLE IX. ASSIGNMENT AND SUBLETTING
SECTION 9.1. RIGHTS OF PARTIES.
(a) Notwithstanding any provision of this Lease to the contrary, Tenant
will not, either voluntarily or by operation of law, assign, sublet, encumber,
or otherwise transfer all or any part of Tenant's interest in this Lease, or
permit the Premises to be occupied by anyone other than Tenant, without
Landlord's prior written consent, which consent shall not unreasonably be
withheld in accordance with the provisions of Section 9.1(b). No assignment
(whether voluntary, involuntary or by operation of law) and no subletting shall
be valid or effective without Landlord's prior written consent and, at
Landlord's election, any such assignment or subletting shall constitute a
material Default of this Lease. Landlord shall not be deemed to have given its
consent to any assignment or subletting by any other course of action, including
its acceptance of any name for listing in the Building directory. To the extent
not prohibited by provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et
seq. (the "Bankruptcy Code"), including Section 365(f)(1), Tenant on behalf of
itself and its creditors, administrators and assigns waives the applicability of
Section 365(e) of the Bankruptcy Code unless the proposed assignee of the
Trustee for the estate of the bankrupt meets Landlord's standard for consent as
set forth in Section 9.l(b) of this Lease. If this Lease is assigned to any
person or entity pursuant to the provisions of the Bankruptcy Code, any and all
monies or other considerations to be delivered in connection with the assignment
shall be delivered to Landlord, shall be and remain the exclusive property of
Landlord and shall not constitute property of Tenant or of the estate of Tenant
within the meaning of the Bankruptcy Code. Any person or entity to which this
Lease is assigned pursuant to the provisions of the Bankruptcy Code shall be
deemed to have assumed all of the obligations arising under this Lease on and
after the date of the assignment, and shall, upon demand, execute and deliver to
Landlord an instrument confirming that assumption.
(b) If Tenant desires to transfer an interest in this Lease, it shall
first notify Landlord of its desire and shall submit in writing to Landlord: (i)
the name and address of the proposed transferee; (ii) the nature of any proposed
subtenant's or assignee's business to be carried on in the Premises; (iii) the
terms and provisions of any proposed sublease or assignment, including a copy of
the proposed assignment or sublease form; (iv) evidence of insurance of the
proposed assignee or subtenant complying with the requirements of Exhibit D
hereto; (v) a completed Environmental Questionnaire from the proposed assignee
or subtenant; and (vi) any other information requested by Landlord and
reasonably related to the transfer. Except as provided in subsection (c) of this
Section, Landlord shall not unreasonably withhold its consent; provided: (1) the
use of the Premises will be consistent with the provisions of this Lease and
with
22
Landlord's commitment to other tenants of the Building and Project; (2) the
proposed assignee or subtenant has not been required by any prior landlord,
lender or governmental authority to take remedial action in connection with
Hazardous Materials contaminating a property arising out of the proposed
assignee's or subtenant's actions or use of the property in question and is not
subject to any enforcement order issued by any governmental authority in
connection with the use, disposal or storage of a Hazardous Material, (3) at
Landlord's election, insurance requirements shall be brought into conformity
with Landlord's then current leasing practice; (4) any proposed subtenant or
assignee demonstrates that it is financially responsible by submission to
Landlord of all reasonable information as Landlord may request concerning the
proposed subtenant or assignee, including, but not limited to, a balance sheet
of the proposed subtenant or assignee as of a date within ninety (90) days of
the request for Landlord's consent, statements of income or profit and loss of
the proposed subtenant or assignee for the two-year period preceding the request
for Landlord's consent, and/or a certification signed by the proposed subtenant
or assignee that it has not been evicted or been in arrears in rent at any other
leased premises for the 3-year period preceding the request for Landlord's
consent; (5) any proposed subtenant or assignee demonstrates to Landlord's
reasonable satisfaction a record of successful experience in business; (6) the
proposed assignee or subtenant is not an existing tenant of the Building or
Project or a prospect with whom Landlord is negotiating to become a tenant at
the Building or Project; and (7) the proposed transfer will not impose
additional burdens or adverse tax effects on Landlord. If Tenant has any
exterior sign rights under this Lease, such rights are personal to Tenant and
may not be assigned or transferred to any assignee of this Lease or subtenant of
the Premises without Landlord's prior written consent, which may be withheld in
Landlord's reasonable discretion, provided that such signage complies with the
provisions of Section 5.2 of this Lease, and provided that Landlord's sole and
absolute discretion shall apply to the assignee's or sublessee's name on said
signage.
If Landlord consents to the proposed transfer, Tenant may, within ninety
(90) days after the date of the consent, effect the transfer upon the terms
described in the information furnished to Landlord; provided that any material
change in the terms shall be subject to Landlord's consent as set forth in this
Section. Landlord shall approve or disapprove any requested transfer within
thirty (30) days following receipt of Tenant's written request, the information
set forth above, and the fee set forth below.
(c) Notwithstanding the provisions of subsection (b) above, in the event
that Tenant shall determine to assign this Lease, or to sublease any portion of
the floor area of the Premises, to any entity other than a Tenant Affiliate,
then Tenant shall give written notice of the basic economic terms upon which
Tenant purposes to so assign or sublet the Premises, including, without
limitation, the proposed consideration payable for such assignment or subrent
payable under such sublease, the proposed sublease term, and the amount of any
improvement allowances proposed by Tenant for such assignment or subletting
(collectively, the "Economic Terms"). Within thirty (30) days after the date of
such notice, Landlord shall elect whether or not to terminate this Lease in its
entirety if an assignment is proposed, or to terminate this Lease as to the
portion of the Premises proposed to be subleased with an abatement in the rent
payable under this Lease proportionate to the floor area proposed for sublease
to the entire floor area of the Premises. Any such termination shall be
effective on that date which is sixty (60) days following Landlord's notice of
its election to so terminate. Landlord's failure to so elect within said thirty
23
(30) days shall constitute Landlord's election not to so terminate. In the event
of any such termination, Landlord may thereafter, at its option, assign or relet
any space so recaptured to any third party, including, without limitation, any
party with whom Tenant is then negotiating to assign or sublet the Lease, and
Tenant shall tender the Premises (or the portion of the Premises recaptured) to
Landlord as provided in Section 15.3 as of the effective date of such
termination. In the event that Landlord shall elect not to terminate the Lease
as provided in the foregoing, then Tenant may assign the Lease, or sublet that
portion of the Premises set forth in its notice to Landlord, as applicable, upon
Economic Terms which are not more favorable to the assignee or sublessee than
those Economic Terms offered to Landlord. In the event that Tenant shall not
enter into a binding assignment agreement or sublease agreement with an assignee
or subtenant, as applicable, which shall be effective within one hundred eighty
(180) days following the original offer notice to Landlord, then Tenant shall
repeat the procedures set forth in this Subsection 9.l(c).
(d) Tenant agrees that fifty percent (50%) of any amounts paid by the
assignee or subtenant, however described, in excess of (i) the Basic Rent
payable by Tenant hereunder, or in the case of a sublease of a portion of the
Premises, in excess of the Basic Rent reasonably allocable to such portion, plus
(ii) Tenants direct out-of-pocket costs which Tenant certifies to Landlord have
been paid to provide occupancy related services to such assignee or subtenant of
a nature commonly provided by landlords of similar space, plus (iii) Tenant's
other reasonable out-of-pocket costs in connection with such assignment or
sublease including, without limitation, reasonable attorneys' fees, brokerage
fees and (subject to the provisions of Section 7.3 of this Lease) the
unamortized portion of improvements made to the Premises at the expense of
Tenant in connection with such assignment or sublease, shall be the property of
Landlord and such amounts shall be payable directly to Landlord by the assignee
or subtenant or, at Landlord's option, by Tenant. At Landlord's request, a
written agreement shall be entered into by and among Tenant, Landlord and the
proposed assignee or subtenant confirming the requirements of this subsection.
(e) Tenant shall pay to Landlord a fee of Five Hundred Dollars ($500.00)
if and when any transfer hereunder is requested by Tenant. Such fee is hereby
acknowledged as a reasonable amount to reimburse Landlord for its costs of
review and evaluation of a proposed assignee/sublessee, and Landlord shall not
be obligated to commence such review and evaluation unless and until such fee is
paid.
SECTION 9.2. EFFECT OF TRANSFER. No subletting or assignment even with the
consent of Landlord, shall relieve Tenant of its obligation to pay rent and to
perform all its other obligations under this Lease. Moreover, Tenant shall
indemnify and hold Landlord harmless, as provided in Section 10.3, for any act
or omission by an assignee or subtenant as provided in said Section 10.3. Each
assignee, other than Landlord, shall be deemed to assume all obligations of
Tenant under this Lease and shall be liable jointly and severally with Tenant
for the payment of all rent, and for the due performance of all of Tenant's
obligations, under this Lease. No transfer shall be binding on Landlord unless
any document memorializing the transfer is delivered to Landlord and both the
assignee/subtenant and Tenant deliver to Landlord an executed consent to
transfer instrument prepared by Landlord and consistent with the requirements of
this Article. The acceptance by Landlord of any payment due under this Lease
from any other person shall not be deemed to be a waiver by Landlord of any
provision of this
24
Lease or to be a consent to any transfer. Consent by Landlord to one or more
transfers shall not operate as a waiver or estoppel to the future enforcement by
Landlord of its rights under this Lease.
SECTION 9.3. SUBLEASE REQUIREMENTS. The following terms and conditions
shall apply to any subletting by Tenant of all or any part of the Premises and
shall be deemed included in each sublease:
(a) Any such subtenant's interest shall be subject to the terms and
provisions of this Lease.
(b) Tenant hereby irrevocably assigns to Landlord all of Tenant's interest
in all rentals and income arising from any sublease of the Premises, and
Landlord may collect such rent and income and apply same toward Tenant's
obligations under this Lease; provided, however, that until a Default occurs in
the performance of Tenant's obligations under this Lease, Tenant shall have the
right to receive and collect the sublease rentals. Landlord shall not, by reason
of this assignment or the collection of sublease rentals, be deemed liable to
the subtenant for the performance of any of Tenant's obligations under the
sublease. Tenant hereby irrevocably authorizes and directs any subtenant, upon
receipt of a written notice from Landlord stating that a Default exists in the
performance of Tenant's obligations under this Lease, to pay to Landlord all
sums then and thereafter due under the sublease. Tenant agrees that the
subtenant may rely on that notice without any duty of further inquiry and
notwithstanding any notice or claim by Tenant to the contrary. Tenant shall have
no right or claim against the subtenant or Landlord for any rentals so paid to
Landlord.
(c) In the event of the termination of this Lease, Landlord may, at its
sole option, take over Tenant's entire interest in any sublease and, upon notice
from Landlord, the subtenant shall attorn to Landlord. In no event, however,
shall Landlord be liable for any previous act or omission by Tenant under the
sublease or for the return of any advance rental payments or deposits under the
sublease that have not been actually delivered to Landlord, nor shall Landlord
be bound by any sublease modification executed without Landlord's consent or for
any advance rental payment by the subtenant in excess of one month's rent. The
general provisions of this Lease, including, without limitation, those
pertaining to insurance and indemnification, shall be deemed incorporated by
reference into the sublease despite the termination of this Lease.
SECTION 9.4. CERTAIN TRANSFERS. Notwithstanding anything to the contrary
contained in this Article IX, Landlord's consent shall not be required for the
assignment of this Lease, or to a subletting of the Premises, to (a) a
subsidiary, affiliate, division or corporation controlling, controlled by or
under common control with Tenant, (b) a successor corporation to Tenant by
merger, consolidation, non-bankruptcy reorganization, or government action, or
(c) a purchaser of substantially all of Tenant's assets located in the Premises
(collectively, a "Tenant Affiliate" herein), so long as (i) the net worth of the
successor entity after any such merger, consolidation, reorganization, action or
assignment, is at least equal to the net worth of Tenant immediately prior to
the date of such merger, consolidation, reorganization, action or assignment,
evidence of which, satisfactory to Landlord, shall be presented to Landlord
prior thereto, (ii) Tenant shall provide to Landlord, prior to such merger,
consolidation, reorganization, action or assignment, Written notice thereof and
such assignment documentation
25
and other information as Landlord may reasonably request in connection
therewith, and (iii) all of the other terms and requirements of this Article
shall apply with respect to such merger, consolidation, reorganization, action
or assignment, except for the terms and requirements of Section 9.1 which shall
not apply thereto.
ARTICLE X. INSURANCE AND INDEMNITY
SECTION 10.1. TENANT'S INSURANCE. Tenant, at its sole cost and expense,
shall provide and maintain in effect the insurance described in Exhibit D.
Evidence of that insurance must be delivered to Landlord prior to the
Commencement Date.
SECTION 10.2. LANDLORD'S INSURANCE. Landlord shall provide the following
types of insurance, with or without deductible and in amounts and coverages as
may be determined by Landlord in its discretion: "all risk" property insurance,
subject to standard exclusions (such as, but not limited to, earthquake and
flood exclusions), covering the full replacement cost of the Building, the
Tenant Improvements and the Common Areas (the "All-Risk Policy"). In addition,
Landlord may, at its election, obtain insurance for such other risks as Landlord
or its mortgagees may from time to time deem appropriate, including, without
limitation, coverage for earthquake, flood and commercial general liability.
Landlord shall not be required to carry insurance of any kind on Tenant's
property, including leasehold improvements, trade fixtures, furnishings,
equipment, plate glass, signs and all other items of personal property, and
shall not be obligated to repair or replace that property should damage occur.
All proceeds of insurance maintained by Landlord upon the Building and Project
shall be the property of Landlord, whether or not Landlord is obligated to or
elects to make any repairs. At Landlord's option, Landlord may self-insure all
or any portion of the risks for which Landlord elects or is required to provide
insurance hereunder.
SECTION 10.3. JOINT INDEMNITY.
(a) Tenant's Indemnity. To the fullest extent permitted by law, Tenant
shall defend (with attorneys reasonably acceptable to Landlord), indemnify,
protect, save and hold harmless Landlord, its agents, and any and all affiliates
of Landlord, including, without limitation, any corporations or other entities
controlling, controlled by or under common control with Landlord, from and
against any and all claims, liabilities, costs or expenses arising from Tenant's
use or occupancy of the Premises or the Building, or from the conduct of its
business, or from any activity, work, or thing done, permitted or suffered by
Tenant or its agents, employees, invitees or licensees in or about the Premises
or the Building, or from any Default in the performance of any obligation on
Tenant's part to be performed under this Lease, or from any act or negligence of
Tenant or its agents, employees, visitors, patrons, guests, invitees or
licensees; provided Tenant shall have no obligation to indemnify, save or hold
harmless Landlord for any claims, liabilities, costs or expenses to the extent
the same is caused by the negligence or willful misconduct on the part of
Landlord, or its authorized agents, contractors or employees, or for which
Tenant is otherwise indemnified hereunder. In cases of alleged negligence
asserted by third parties against Landlord which arise out of, are occasioned
by, or in any way attributable to Tenant's, its agents', employees',
contractors', licensees' or invitees' use and occupancy of the Premises or the
Building, or from the conduct of its business or from any activity, work or
thing done, permitted or suffered by Tenant or its agents, employees, invitees
or licensees on Tenant's
26
part to be performed under this Lease, or from any act of negligence of Tenant,
its agents, employees, licensees or invitees, Tenant shall accept any tender of
defense for Landlord and shall, notwithstanding any allegation of negligence or
willful misconduct on the part of the Landlord, defend Landlord and protect and
hold Landlord harmless and pay all costs, expenses and attorneys' fees incurred
in connection with such litigation, provided that Tenant shall not be liable for
any such injury or damage, and Landlord shall reimburse Tenant for the
reasonable attorney's fees and costs for the attorney representing both parties,
all to the extent and in the proportion that such injury or damage is ultimately
determined by a court of competent jurisdiction (or in connection with any
negotiated settlement agreed to by Landlord) to be attributable to the
negligence or willful misconduct of Landlord. Upon Landlord's request, Tenant
shall, at Tenant's sole cost and expense, retain a separate attorney selected by
Landlord to represent Landlord in any such suit if Landlord determines that the
representation of both Tenant and Landlord by the same attorney would cause a
conflict of interest; provided, however, that to the extent and in the
proportion that the injury or damage which is the subject of the suit is
ultimately determined by a court of competent jurisdiction (or in connection
with any negotiated settlement agreed to by Landlord) to be attributable to the
negligence or willful misconduct of Landlord, Landlord shall reimburse Tenant
for the reasonable legal fees and costs of the separate attorney retained by
Tenant. The provisions of this Subsection 10.3(a) shall expressly survive the
expiration or sooner termination of this Lease.
(b) Landlord's Indemnity. To the fullest extent permitted by law, but
subject to the express limitations on liability contained in this Lease
(including, without limitation, the provisions of Sections 10.4, 10.5 and 14.8
of this Lease), Landlord shall defend (with attorneys reasonably acceptable to
Tenant), indemnify, protect, save and hold harmless Tenant, its agents and any
and all affiliates of Tenant, including, without limitation, any corporations,
or other entities controlling, controlled by or under common control with
Tenant, from and against any and all claims, liabilities, costs or expenses
arising from the maintenance or repair of the Common Areas, the Project and/or
the Building by Landlord or its employees, authorized agents or contractors;
provided that Landlord shall have no obligation to indemnify, save or hold
harmless Tenant for any claims, liabilities, costs or expenses to the extent the
same is caused by the negligence or willful misconduct on the part of Tenant, or
its agents, employees, licensees or invitees, or for which Landlord is otherwise
indemnified hereunder. In cases of alleged negligence asserted by third parties
against Tenant which arise out of, are occasioned by, or in any way attributable
to the maintenance or repair of the Common Areas, the Project or the Building by
Landlord or its contractors, authorized agents or employees, Landlord shall
accept any tender defense for Tenant and shall, notwithstanding any allegation
of negligence or willful misconduct on the part of Tenant, defend Tenant and
protect and hold Tenant harmless and pay all cost, expense and attorneys' fees
incurred in connection with such litigation, provided that Landlord shall not be
liable for any such injury or damage, and Tenant shall reimburse Landlord for
the reasonable attorney's fees and costs for the attorney representing both
parties, all to the extent and in the proportion that such injury or damage is
ultimately determined by a court of competent jurisdiction (or in connection
with any negotiated settlement agreed to by Tenant) to be attributable to the
negligence or willful misconduct of Tenant Upon Tenants request, Landlord shall
at Landlord's sole cost and expense, retain a separate attorney selected by
Tenant to represent Tenant in any such suit if Tenant determines that the
representation of both Tenant and Landlord by the same attorney would cause
conflict of interest; provided, however, that to the extent and the proportion
that the injury or damage which is the subject of the suit is ultimately
27
determined by a court of competent jurisdiction (or in connection with any
negotiated settlement agreed to by Tenant) to be attributable to the negligence
or willful misconduct of Tenant, Tenant shall reimburse Landlord for the
reasonable legal fees and costs of the separate attorney retained by Landlord.
The provisions of this subsection 10.3(b) shall expressly survive the expiration
or sooner termination of this Lease.
SECTION 10.4. LANDLORD'S NONLIABILITY. Except as expressly provided by the
indemnity obligations contained in Section 10.3(b) of this Lease, Landlord shall
not be liable to Tenant, its employees, agents and invitees, and Tenant hereby
waives all claims against Landlord, for loss of or damage to any property, or
any injury to any person, or any other loss, cost, damage, injury or liability
whatsoever resulting from fire, explosion, falling plaster, steam, gas,
electricity, water or rain which may leak or flow from or into any part of the
Building or from the breakage, leakage, obstruction or other defects of the
pipes, sprinklers, wires, appliances, plumbing, air conditioning, electrical
works or other fixtures in the Building, whether the damage or injury results
from conditions arising in the Premises or in other portions of the Project.
Notwithstanding any provision of this Lease to the contrary, including, without
limitation, the provisions of Section 10.3(b) of this Lease, Landlord shall in
no event be liable to Tenant, its employees, agents, and invitees, and Tenant
hereby waives all claims against Landlord, for loss or interruption of Tenant's
business or income (including, without limitation, any consequential damages and
lost profit or opportunity costs), or any other loss, cost, damage, injury or
liability resulting from, but not limited to, Acts of God, acts of civil
disobedience or insurrection, acts of omissions (criminal or otherwise) of any
third parties, including without limitation any other tenants within the Project
or their agents, employees, contractors, guests or invitees. It is understood
that any such condition may require the temporary evacuation or closure of all
or a portion of the Building. Except as expressly provided in this Lease, there
shall be no abatement of rent and no liability of Landlord by reason of any
injury to or interference with Tenant's business (including, without limitation,
consequential damages and lost profit or opportunity costs) arising from the
making of any repairs, alterations or improvements to any portion of the
Building, including repairs to the Premises, nor shall any related activity by
Landlord constitute an actual or constructive eviction; provided, however, that
in making repairs, alterations or improvements, Landlord shall interfere as
little as reasonably practicable with the conduct of Tenant's business in the
Premises. Neither Landlord nor its agents shall be liable for interference with
light or other similar intangible interests. Tenant shall immediately notify
Landlord in case of fire or accident in the Premises, the Building or the
Project and of defects in any improvements or equipment.
SECTION 10.5. WAIVER OF SUBROGATION. Notwithstanding anything to the
contrary contained in this Lease, Landlord and Tenant each hereby waives all
rights of recovery against the other and the other's agents on account of loss
and damage occasioned to the property of such waiving party to the extent only
that such loss or damage is required to be insured against under any "all risk"
property insurance policies required by this Article X (including, without
limitation, the All-Risk Policy carried by Landlord, whether or not Landlord
chooses to self-insure such coverage); provided, however, that the foregoing
waiver shall not apply to the extent of Tenant's obligations to pay deductibles
under any such policies and this Lease. By this waiver it is the intent of the
parties that neither Landlord nor Tenant shall be liable to any insurance
company (by way of subrogation or otherwise) insuring the other party for any
loss or damage insured against under any "all risk" property insurance policies
required by this Article,
28
even though such loss or damage might be occasioned by the negligence of such
party, its agents, employees, contractors, guests or invitees. All of the
parties' repair and maintenance and indemnity obligations under this Lease shall
be subject to the waiver of subrogation contained in this Section 10.5. The
parties hereto shall cause each property insurance policy it obtains to include
a waiver of subrogation regarding the liabilities released hereby.
ARTICLE XI. DAMAGE OR DESTRUCTION
SECTION 11.1. RESTORATION.
(a) If the Building of which the Premises are a part is damaged, Landlord
shall repair that damage as soon as reasonably possible, at its expense, unless:
(i) Landlord reasonably determines that the cost of repair is greater than Fifty
Thousand Dollars ($50,000.00) and is not covered by Landlord's All-Risk Policy
(whether or not Landlord chooses to self-insure such coverage) or by Landlord's
other insurance coverages, plus such additional amounts Tenant elects, at its
option, to contribute; excluding, however, the deductible (for which Tenant
shall be responsible for Tenant's Share); (ii) Landlord reasonably determines
that the Premises cannot, with reasonable diligence, be fully repaired by
Landlord (or cannot be safely repaired because of the presence of hazardous
factors, including, without limitation, Hazardous Materials, earthquake faults,
and other similar dangers) within two hundred seventy (270) days after the date
of the damage; (iii) a Default by Tenant has occurred at the time of such
damage; or (iv) the damage costs more than Fifty Thousand Dollars ($50,000.00)
to repair and occurs during the final nine (9) months of the Term (unless Tenant
has validly exercised its option to extend the Term contained in Section 3.3 of
this Lease). Should Landlord elect not to repair the damage for one of the
preceding reasons, Landlord shall so notify Tenant in writing within sixty (60)
days after the damage occurs and this Lease shall terminate as of the date of
that notice. Tenant's responsibility for the reimbursement of deductibles
contained in this Lease shall be subject to the following limitations: (A)
Tenant shall have no responsibility for so-called "co-insurance" requirements
for any deficiencies in Landlord's All-Risk Policy coverage; and (B) in no event
shall Tenant's obligation for payment or reimbursement of any deductible exceed
the amount of One Hundred Thousand Dollars ($100,000.00) for any single
casualty. Further, in the event that Landlord terminates this Lease pursuant to
this Section 11.1(a), Tenant shall have no responsibility for reimbursement of
any deductible.
(b) Unless Landlord elects to terminate this Lease in accordance with
subsection (a) above, this Lease shall continue in effect for the remainder of
the Term; provided that so long as Tenant is not in Default under this Lease, if
the damage is so extensive that Landlord reasonably determines that the Premises
cannot, with reasonable diligence, be repaired by Landlord (or cannot be safely
repaired because of the presence of hazardous factors, earthquake faults, and
other similar dangers) so as to allow Tenant's substantial use and enjoyment of
the Premises, or are not in fact repaired by Landlord, within two hundred
seventy (270) days after the date of damage, then Tenant may elect to terminate
this Lease by written notice to Landlord either within the sixty (60) day period
stated in subsection (a), or within sixty (60) days following Landlord's failure
to so repair the Premises within two hundred seventy (270) days after the date
of damage.
29
(c) Commencing on the date of any damage to the Building, and ending on
the sooner of the date the damage is repaired or the date this Lease is
terminated, the rental to be paid under this Lease shall be abated in the same
proportion that the floor area of the Premises that is rendered unusable by the
damage from time to time bears to the total floor area of the Premises, provided
that Tenant is then carrying the business interruption insurance required in
Exhibit D.
(d) The provisions of this Section 11.1 shall not be deemed to require
Landlord to repair any improvements or fixtures that Tenant is obligated to
repair or insure pursuant to any other provision of this Lease.
(e) Tenant shall fully cooperate with Landlord in removing Tenant's
personal property and any debris from the Premises to facilitate all inspections
of the Premises and the making of any repairs. Notwithstanding anything to the
contrary contained in this Lease, if Landlord in good faith believes there is a
risk of injury to persons or damage to property from entering into the Building
or Premises following any damage or destruction thereto, Landlord may restrict
entry into the Building or the Premises by Tenant, its employees, agents and
contractors in a nondiscriminatory manner, without being deemed to have violated
Tenant's rights of quiet enjoyment to, or made an unlawful determination of, or
evicted Tenant from, the Premises. Upon request, Landlord shall consult with
Tenant to determine if there are safe methods of entry into the Building or the
Premises solely in order to allow Tenant to retrieve files, data in computers,
and necessary inventory; subject, however, to all indemnities and waivers of
liability from Tenant to Landlord contained in this Lease and any additional
indemnities and waivers of liability which Landlord may reasonably require.
SECTION 11.2. LEASE GOVERNS. Tenant agrees that the provisions of this
Lease, including, without limitation, Section 11.1, shall govern any damage or
destruction and shall accordingly supersede any contrary statute or rule of law.
ARTICLE XII. EMINENT DOMAIN
SECTION 12.1. TOTAL OR PARTIAL TAKING. If all or a material portion of the
Premises is taken by any lawful authority by exercise of the right of eminent
domain, or sold to prevent a taking, either Tenant or Landlord may terminate
this Lease effective as of the date possession is required to be surrendered to
the authority. In the event either: (i) title to a portion of the Building or
Project, other than the Premises, is taken or sold in lieu of taking, and if
Landlord elects to restore the Building in such a way as to alter the Premises
materially, or (ii) Landlord fails to restore the Building within two hundred
seventy (270) days following the effective date of such taking, then Tenant may
terminate this Lease, by written notice to Landlord given within thirty (30)
days thereafter, effective on the date of vesting of title. In the event neither
party has elected to terminate this Lease as provided above, then Landlord shall
promptly, after receipt of a sufficient condemnation award, proceed to restore
the Premises to substantially their condition prior to the taking, and a
proportionate allowance shall be made to Tenant for the rent corresponding to
the time during which, and to the part of the Premises of which, Tenant is
deprived on account of the taking and restoration. In the event of a taking,
Landlord shall be entitled to the entire amount of the condemnation award
without deduction for any estate or interest of Tenant; provided that nothing in
this Section shall be deemed to give Landlord any interest in, or prevent Tenant
from seeking any award against, the taking authority
30
for the taking of personal property and fixtures belonging to Tenant or for
relocation or business interruption expenses or loss of good will recoverable
from the taking authority.
SECTION 12.2. TEMPORARY TAKING. No temporary taking of the Premises shall
terminate this Lease or give Tenant any right to abatement of rent, and any
award specifically attributable to a temporary taking of the Premises shall
belong entirely to Tenant. A temporary taking shall be deemed to be a taking of
the use or occupancy of the Premises for a period of not to exceed one hundred
eighty (180) days.
SECTION 12.3. TAKING OF PARKING AREA. In the event there shall be a taking
of the parking area such that Landlord can no longer provide parking to comply
with this Lease, Landlord may substitute reasonably equivalent parking in a
location reasonably close to the Building; provided that if Landlord fails to
make that substitution within sixty (60) days following the taking and if the
taking materially impairs Tenant's use and enjoyment of the Premises, Tenant
may, at its option, terminate this Lease by written notice to Landlord. If this
Lease is not so terminated by Tenant, there shall be no abatement of rent and
this Lease shall continue in effect.
ARTICLE XIII. SUBORDINATION; ESTOPPEL CERTIFICATE; FINANCIALS
SECTION 13.1. SUBORDINATION. At the option of Landlord, this Lease shall
be either superior or subordinate to all ground or underlying leases, mortgages
and deeds of trust, if any, which may hereafter affect the Building, and to all
renewals, modifications, consolidations, replacements and extensions thereof;
provided, that so long as Tenant is not in Default under this Lease, this Lease
shall not be terminated or Tenant's quiet enjoyment of the Premises disturbed in
the event of termination of any such ground or underlying lease, or the
foreclosure of any such mortgage or deed of trust In the event of a termination
or foreclosure, Tenant shall become a tenant of and attorn to the
successor-in-interest to Landlord upon the same terms and conditions as are
contained in this Lease, and shall execute any instrument reasonably required by
Landlord's successor for that purpose. Tenant shall also, upon written request
of Landlord, execute and deliver all instruments as may be required from time to
time to subordinate the rights of Tenant under this Lease to any ground or
underlying lease or to the lien of any mortgage or deed of trust (provided that
such instruments include the nondisturbance and attornment provisions set forth
above), or, if requested by Landlord, to subordinate, in whole or in part, any
ground or underlying lease or the lien of any mortgage or deed of trust to this
Lease. Prior to the Commencement Date, Landlord shall obtain from any lenders or
ground lessors of the Building or Project a written agreement, in form
reasonably satisfactory to Tenant, providing that Tenant's rights and interest
shall not be disturbed in the event of any foreclosure of any such ground or
underlying lease, mortgage or deed of trust.
SECTION 13.2. ESTOPPEL CERTIFICATE.
(a) Tenant shall, at any time upon not less than fifteen (15) days prior
written notice from Landlord, execute, acknowledge and deliver to Landlord, in
any form that Landlord may reasonably require, a statement in writing (i)
certifying that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of the modification and certifying that this Lease,
as modified, is in full force and effect) and the dates to which the rental,
additional rent
31
and other charges have been paid in advance, if any, and (ii) acknowledging
that, to Tenant's knowledge, there are no uncured defaults on the part of
Landlord, or specifying each default if any are claimed, and (iii) setting forth
all further information that Landlord may reasonably require. Tenant's statement
may be relied upon by any protective purchaser or encumbrancer of all or any
portion of the Building or Project.
(b) Notwithstanding any other rights and remedies of Landlord, Tenant's
failure to deliver any estoppel statement within the provided time shall be
conclusive upon Tenant that (i) this Lease is in full force and effect, without
modification except as may be represented by Landlord, (ii) there are no uncured
defaults in Landlord's performance, and (iii) not more than one month's rental
has been paid in advance.
SECTION 13.3. FINANCIALS.
(a) Tenant shall deliver to Landlord, prior to the execution of this Lease
and thereafter at any time upon Landlord's request Tenant's current tax returns
and financial statements, certified true, accurate and complete by the chief
financial officer of Tenant, including a balance sheet and profit and loss
statement for the most recent prior year (collectively, the "Statements"), which
Statements shall accurately and completely reflect the financial condition of
Tenant. Landlord agrees that it will keep the Statements confidential, except
that Landlord shall have the right to deliver the same to any proposed purchaser
of the Building or Project (provided that any such purchaser shall be required
to keep such Statements confidential), and to any encumbrancer of all or any
portion of the Building or Project (provided that Landlord shall request that
any such encumbrancer keep such Statements confidential).
(b) Tenant acknowledges that Landlord is relying on the Statements in its
determination to enter into this Lease, and Tenant represents to Landlord, which
representation shall be deemed made on the date of this Lease and again on the
Commencement Date, that no material change in the financial condition of Tenant,
as reflected in the Statements, has occurred since the date Tenant delivered the
Statements to Landlord. The Statements are represented and warranted by Tenant
to be correct and to accurately and may reflect Tenant's true financial
condition as of the date of submission by any Statements to Landlord.
ARTICLE XIV. DEFAULTS AND REMEDIES
SECTION 14.1. TENANT'S DEFAULTS. The occurrence of any one or more of the
following events, following notice by Landlord and the expiration of the
applicable cure period, if any, without cure by Tenant, shall constitute a
default by Tenant (a "Default" as used in this Lease):
(a) The failure by Tenant to make any payment of rent or additional rent
required to be made by Tenant, as and when due, where the failure continues for
a period of five (5) days after written notice from Landlord to Tenant;
provided, however, that any such notice shall be in lieu of, and not in addition
to, any notice required under California Code of Civil Procedure Section 1161
and 1161(a) as amended, provided such notice is served in the manner required
under Code of Civil Procedure Section 1162. For purposes of these default and
remedies
32
provisions, the term "additional rent" shall be deemed to include all amounts of
any type whatsoever other than Basic Rent to be paid by Tenant pursuant to the
terms of this Lease.
(b) Assignment, sublease, encumbrance or other transfer of the Lease by
Tenant, either voluntarily or by operation of law, whether by judgment,
execution, transfer by intestacy or testacy, or other means, without the prior
written consent of Landlord.
(c) The discovery by Landlord that any financial statement provided by
Tenant, or by any affiliate, successor or guarantor of Tenant, was materially
false.
(d) The failure of Tenant to timely and fully provide any subordination
agreement, estoppel certificate or financial statements in accordance with the
requirements of Article XIII, where the failure continues for a period of ten
(10) days after written notice from Landlord to Tenant; provided, however, that
any such notice shall be in lieu of, and not in addition to, any notice required
under California Code of Civil Procedure Section 1161 and 1161(a) as amended,
provided such notice is served in the manner required under Code of Civil
Procedure Section 1162.
(e) The failure or inability by Tenant to observe or perform any of the
express or implied covenants or provisions of this Lease to be observed or
performed by Tenant, other than as specified in any other subsection of this
Section, where the failure continues for a period of thirty (30) days after
written notice from Landlord to Tenant or such shorter period as is specified in
any other provision of this Lease; provided, however, that any such notice shall
be in lieu of, and not in addition to, any notice required under California Code
of Civil Procedure Section 1161 and 1161(a) as amended, provided such notice is
served in the manner required under Code of Civil Procedure Section 1162.
However, if the nature of the failure is such that more than thirty (30) days
are reasonably required for its cure, then Tenant shall not be deemed to be in
Default if Tenant commences the cure within thirty (30) days, and thereafter
diligently pursues the cure to completion.
(f) (i) The making by Tenant of any general assignment for the benefit of
creditors; (ii) the filing by or against Tenant of a petition to have Tenant
adjudged a Chapter 7 debtor under the Bankruptcy Code or to have debts
discharged or a petition for reorganization or arrangement under any law
relating to bankruptcy (unless, in the case of a petition filed against Tenant,
the same is dismissed within thirty (30) days); (iii) the appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, if possession is
not restored to Tenant within thirty (30) days; or (iv) the attachment,
execution or other judicial seizure of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where the seizure
is not discharged within thirty (30) days, Landlord shall not be deemed to have
knowledge of any event described in this subsection unless notification in
writing is received by Landlord, nor shall there be any presumption attributable
to Landlord of Tenant's insolvency. In the event that any provision of this
subsection is contrary to applicable law, the provision shall be of no force or
effect.
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SECTION 14.2. LANDLORD'S REMEDIES.
(a) In the event of any Default by Tenant, or in the event of the
abandonment of the Premises by Tenant, then in addition to any other remedies
available to Landlord, Landlord may exercise the following remedies:
(i) Landlord may terminate Tenant's right to possession of the
Premises by any law means, in which case this Lease shall terminate and Tenant
shall immediately surrender possession of the Premises to Landlord. Such
termination shall not affect any accrued obligations of Tenant under this Lease.
Upon termination, Landlord shall have the right to reenter the Premises and
remove all persons and property. Landlord shall also be entitled to recover from
Tenant:
(1) The worth at the time of award of the unpaid rent and
additional rent which had been eared at the time of termination;
(2) The worth at the time of award of the amount by which the
unpaid rent and additional rent which would have been earned after termination
until the time of award exceeds the amount of such loss that Tenant proves could
have been reasonably avoided;
(3) The worth at the time of award of the amount by which the
unpaid rent and additional rent for the balance of the Term after the time of
award exceeds the amount of such loss that Tenant proves could be reasonably
avoided;
(4) Any other amount necessary to compensate Landlord for all
the detriment proximately caused by Tenant's failure to perform its obligations
under this Lease or which in the ordinary course of things would be likely to
result from Tenant's Default, including, but not limited to, the cost of
recovering possession of the Premises, refurbishment of the Premises, marketing
costs, commissions and other expenses of reletting, including necessary repair,
the unamortized portion of any tenant improvements and brokerage commissions
funded by Landlord in connection with this Lease, reasonable attorneys' fees,
and any other reasonable costs; and
(5) At Landlord's election, all other amounts in addition to
or in lieu of the foregoing as may be permitted by law. The term "rent" as used
in this Lease shall be deemed to mean the Basic Rent and all other sums required
to be paid by Tenant to Landlord pursuant to the terms of this Lease. Any sum,
other than Basic Rent, shall be computed on the basis of the average monthly
amount accruing during the twenty-four (24) month period immediately prior to
Default, except that if it becomes necessary to compute such rental before the
twenty-four (24) month period has occurred, then the computation shall be on the
basis of the average monthly amount during the shorter period. As used in
subparagraphs (A) and (B) above, the "worth at the time of award" shall be
computed by allowing interest at the rate of ten percent (10%) per annum. As
used in subparagraph (C) above, the "worth at the time of award" shall be
computed by discounting the amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of award plus one percent (1%).
(ii) Landlord may elect not to terminate Tenant's right to
possession of the Premises, in which event Landlord may continue to enforce all
of its rights and remedies under this Lease,
34
including the right to collect all rent as it becomes due. Efforts by the
Landlord to maintain, preserve or relet the Premises, or the appointment of a
receiver to protect the Landlord's interests under this Lease, shall not
constitute a termination of the Tenant's right to possession of the Premises. In
the event that Landlord elects to avail itself of the remedy provided by this
subsection (ii), Landlord shall not unreasonably withhold its consent to an
assignment or subletting of the Premises subject to the reasonable standards for
Landlord's consent as are contained in this Lease.
(b) The various rights and remedies reserved to Landlord in this Lease or
otherwise shall be cumulative and, except as otherwise provided by California
law, Landlord may pursue any or all of its rights and remedies at the same time.
(c) No delay or omission of Landlord to exercise any right or remedy shall
be construed as a waiver of the right or remedy or of any Default by Tenant. The
acceptance by Landlord of rent shall not be a (i) waiver of any preceding breach
or Default by Tenant of any provision of this Lease, other than the failure of
Tenant to pay the particular rent accepted, regardless of Landlord's knowledge
of the preceding breach or default at the time of acceptance of rent, or (ii) a
waiver of Landlord's right to exercise any remedy available to Landlord by
virtue of the breach or default. The acceptance of any payment from a debtor in
possession, a trustee, a receiver or any other person acting on behalf of Tenant
or Tenant's estate shall not waive or cure a default under Section 14.1. No
payment by Tenant or receipt by Landlord of a lesser amount than the rent
required by this Lease shall be deemed to be other than a partial payment on
account of the earliest due stipulated rent, nor shall any endorsement or
statement on any check or letter be deemed an accord and satisfaction and
Landlord shall accept the check or payment without prejudice to Landlord's right
to recover the balance of the rent or pursue any other remedy available to it.
No act or thing done by Landlord or Landlord's agents during the Term shall be
deemed an acceptance of a surrender of the Premises, and no agreement to accept
a mender shall be valid unless in writing and signed by Landlord. No employee of
Landlord or of Landlord's agents shall have any power to accept the keys to the
Premises prior to the termination of this Lease, and the delivery of the keys to
any employee shall not operate as a termination of the Lease or a surrender of
the Premises.
SECTION 14.3. LATE PAYMENTS.
(a) Any rent due under this Lease that is not received by Landlord within
five (5) days of the date when due shall bear interest at the maximum rate
permitted by law from the date due until fully paid. The payment of interest
shall not cure any Default by Tenant under this Lease. In addition, Tenant
acknowledges that the late payment by Tenant to Landlord of rent will cause
Landlord to incur costs not contemplated by this Lease, the exact amount of
which will be extremely difficult and impracticable to ascertain. Those costs
may include, but are not limited to, administrative, processing and accounting
charges, and late charges which may be imposed on Landlord by the terms of any
ground lease, mortgage or trust deed covering the Premises. Accordingly, if any
rent due from Tenant shall not be received by Landlord or Landlord's designee
within five (5) days after the date due, then Tenant shall pay to Landlord, in
addition to the interest provided above, a late charge in a sum equal to the
greater of five percent (5%) of the amount overdue or Two Hundred Fifty Dollars
($250.00) for each delinquent payment. The
35
foregoing late charge shall not be charged, however, in connection with the
initial payment of rent not paid by Tenant within five (5) days after the date
due. Acceptance of a late charge by Landlord shall not constitute a waiver of
Tenant's Default with respect to the overdue amount, nor shall it prevent
Landlord from exercising any of its other rights and remedies.
(b) Following each second consecutive installment of rent that is not paid
within five (5) days following notice of nonpayment from Landlord, Landlord
shall have the option (i) to require that beginning with the first payment of
rent next due, rent shall no longer be paid in monthly installments but shall be
payable quarterly three (3) months in advance and/or (ii) to require that Tenant
increase the amount, if any, of the Security Deposit by one hundred percent
(100%). Should Tenant deliver to Landlord, at any time during the Term, two (2)
or more insufficient checks, the Landlord may require that all monies then and
thereafter due from Tenant be paid to Landlord by cashier's check.
SECTION 14.4. RIGHT OF LANDLORD TO PERFORM. All covenants and agreements
to be performed by Tenant under this Lease shall be performed at Tenant's sole
cost and expense and without any abatement of rent or right of setoff except as
specifically set forth in this Lease. If Tenant fails to pay any sum of money,
other than rent, or fails to perform any other act on its part to be performed
under this Lease, and the failure continues beyond any applicable grace period
set forth in Section 14.1, then in addition to any other available remedies,
Landlord may, at its election make the payment or perform the other act on
Tenant's part. Landlord's election to make the payment or perform the act on
Tenant's part shall not give rise to any responsibility of Landlord to continue
making the same or similar payments or performing the same or similar acts.
Tenant shall, promptly upon demand by Landlord, reimburse Landlord for all sums
paid by Landlord and all necessary incidental costs, together with interest at
the maximum rate permitted by law from the date of the payment by Landlord.
Landlord shall have the same rights and remedies if Tenant fails to pay those
amounts as Landlord would have in the event of a Default by Tenant in the
payment of rent.
SECTION 14.5. DEFAULT BY LANDLORD. Landlord shall not be deemed to be in
default in the performance of any obligation under this Lease unless and until
it has failed to perform the obligation within thirty (30) days after written
notice by Tenant to Landlord specifying in reasonable detail the nature and
extent of the failure; provided, however, that if the nature of Landlord's
obligation is such that more than thirty (30) days are required for its
performance, then Landlord shall not be deemed to be in default if it commences
performance within the thirty (30) day period and thereafter diligently pursues
the cure to completion. Except as expressly provided in this Lease, no delay or
omission of Tenant to exercise any right or remedy shall be construed as a
waiver of the right or remedy or of any default by Landlord.
SECTION 14.6. EXPENSES AND LEGAL FEES. All sums reasonably incurred by
Landlord in connection with any Default by Tenant under this Lease or holding
over of possession by Tenant after the expiration or earlier termination of this
Lease, including, without limitation, all costs, expenses and actual
accountants, appraisers, attorneys and other professional fees, and any
collection agency or other collection charges, shall be due and payable by
Tenant to Landlord on demand, and shall bear interest at the rate of ten percent
(10%) per annum. Should either Landlord or Tenant bring any action in connection
with this Lease, the prevailing party shall be entitled to recover as a part of
the action its reasonable attorneys' fees, and all
36
other costs. The prevailing party for the purpose of this paragraph shall be
determined by the trier of the facts.
SECTION 14.7. WAIVER OF JURY TRIAL. LANDLORD AND TENANT EACH ACKNOWLEDGES
THAT IT IS AWARE OF AND HAS HAD THE ADVICE OF COUNSEL OF ITS CHOICE WITH RESPECT
TO ITS RIGHTS TO TRIAL BY JURY, AND EACH PARTY DOES HEREBY EXPRESSLY AND
KNOWINGLY WAIVE AND RELEASE ALL SUCH RIGHTS TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER
(AND/OR AGAINST ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUBSIDIARY OR
AFFILIATED ENTITIES) ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY
CONNECTED `WITH THIS LEASE, TENANT'S USE OR OCCUPANCY OF THE PREMISES, AND/OR
ANY CLAIM OF INJURY OR DAMAGE.
SECTION 14.8. SATISFACTION OF JUDGMENT. The obligations of Landlord and
Tenant under this Lease do not constitute the personal obligations of the
individual partners, trustees, directors, office or shareholders of Landlord or
Tenant, or their respective constituent partners. Should Tenant recover a money
judgment against Landlord, such judgment shall be satisfied only out of the
proceeds of sale received upon execution of such judgment and levied thereon
against the right, title and interest of Landlord in the Project and out of the
rent or oh income from such property receivable by Landlord or out of
consideration received by Landlord from the sale or other disposition of all or
any part of Landlord's right, title or interest in the Project and no action for
any deficiency may be sought or obtained by Tenant.
SECTION 14.9. LIMITATION OF ACTIONS AGAINST LANDLORD. Any claim or demand
arising in tort or in contract against Landlord based upon or arising in
connection with this Lease (except those arising in connection with Sections
10.3(b), 5.3(g) and 5.3(b) of this Lease) shall be barred unless Tenant
commences an action thereon within twelve (12) months after the date that the
occurrence of the act, omission, event or default upon which the claim, demand
or right arises is discovered by Tenant. Nothing contained in this Section 14.9,
however, shall extend the operation of any applicable statute of limitations
binding on Tenant.
ARTICLE XV. END OF TERM
SECTION 15.1 HOLDING OVER. This Lease shall terminate without further
notice upon the expiration of the Term, and any holding over by Tenant after the
expiration shall not constitute a renewal or extension of this Lease, or give
Tenant any rights under this Lease, except when in writing signed by both
parties. If Tenant holds over for any period after the expiration (or earlier
termination) of the Term without the prior written consent of Landlord, such
possession shall constitute a tenancy at sufferance only; such holding over with
the prior written consent of Landlord shall constitute a month-to-month tenancy
commencing on the first (1st) day following the termination of this Lease. In
either of such events, possession shall be subject to all of the term of this
Lease, except that the monthly Basic Rent shall be the greater of (a) one
hundred fifty percent (150%) of the Basic Rent for the month immediately
preceding the date of termination for the initial month of hold over and one
hundred seventy-five percent (175%) of the Basic Rent for the month immediately
preceding the date of termination for each
37
month of hold over thereafter, or (b) the then currently scheduled Basic Rent
for comparable space in the Project. If Tenant fails to surrender the Premises
upon the expiration of this Lease despite demand to do so by Landlord, Tenant
shall indemnify and hold Landlord harmless from all loss or liability,
including, without limitation, claims made by any succeeding tenant relating to
such failure to surrender. Acceptance by Landlord of rent after the termination
shall not constitute a consent to a holdover or result in a renewal of this
Lease. The foregoing provisions of this Section are in addition to and do not
affect Landlord's right of reentry or any other rights of Landlord under this
Lease or at law.
SECTION 15.2. MERGER ON TERMINATION. The voluntary or other surrender of
this Lease by Tenant, or a mutual termination of this Lease, shall terminate any
or all existing subleases unless Landlord, at its option, elects in writing to
treat the surrender or termination as an assignment to it of any or all
subleases affecting the Premises.
SECTION 15.3. SURRENDER OF PREMISES; REMOVAL OF PROPERTY. Upon the
Expiration Date or upon any earlier termination of this Lease, Tenant shall quit
and surrender possession of the Premises to Landlord in as good order, condition
and repair as when received or as hereafter may be improved by Landlord or
Tenant, reasonable wear and tear, casualty, Hazardous Materials (except to the
extent Tenant is responsible []herefore as provided in Section 5.3 of this
Lease) and repairs which are Landlord's obligation excepted, and shall, without
expense to Landlord, remove or cause to be removed from the Premises all
personal property and debris, except for any items that Landlord may by written
authorization allow to remain. Tenant shall repair all damage to the Premises
resulting from the removal, which repair shall include the patching and filling
of holes and repair of structural damage, provided that Landlord may instead
elect to repair any structural damage at Tenant's expense. If Tenant shall fail
to comply with the provisions of this Section, Landlord may effect the removal
and/or make any repairs, and the cost to Landlord shall be additional rent
payable by Tenant upon demand. If Tenant fails to remove Tenant's personal
property from the Premises upon the expiration of the Term, Landlord may remove,
store, dispose of and/or retain such personal property, at Landlord's option, in
accordance with then applicable laws, all at the expense of Tenant. Upon the
expiration of the Term, if requested by Landlord, Tenant shall execute,
acknowledge and deliver to Landlord an instrument in writing releasing and
quitclaiming to Landlord all right, title and interest of Tenant in the
Premises.
ARTICLE XVI. PAYMENTS AND NOTICES
All sums payable by Tenant to Landlord shall be paid, without deduction or
offset, in lawful money of the United States to Landlord at its address set
forth in Item 12 of the Basic Lease Provisions, or at any other place as
Landlord may designate in writing. Unless this Lease expressly provides
otherwise, as for example in the payment of rent pursuant to Section 4.1, all
payments shall be due and payable within twenty (20) days after demand. All
payments requiring proration shall be prorated on the basis of a thirty (30) day
month and a three hundred sixty (360) day year. Any notice, election, demand,
consent, approval or other communication to be given or other document to be
delivered by either party to the other may be delivered in person or by courier
or overnight delivery service to the other party, or may be deposited in the
United States mail, duly registered or certified, postage prepaid, return
receipt requested, and
38
addressed to the other party at the address set forth in Item 12 of the Basic
Lease Provisions, or if to Tenant, at that address or, from and after the
Commencement Date, at the Premises (whether or not Tenant has departed from,
abandoned or vacated the Premises). Either party may, by written notice to the
other, served in the manner provided in this Article, designate a different
address. If any notice or other document is sent by mail, it shall be deemed
served or &livered three (3) business days after mailing. If more than one
person or entity is named as Tenant under this Lease, service of any notice upon
any one of them shall be deemed as service upon all of them.
ARTICLE XVII. RULES AND REGULATIONS
Tenant agrees to observe faithfully and comply strictly with the Rules and
Regulations, attached as Exhibit E, and any reasonable and nondiscriminatory
amendments, modifications and/or additions as may be adopted and published by
written notice to tenants by Landlord for the safety, care, security, good
order, or cleanliness of the Premises, Building, Project and Common Areas.
Landlord shall not be liable to Tenant for any violation of the Rules and
Regulations or the breach of any covenant or condition in any lease by any other
tenant or such tenant's agents, employees, contractors, guests or invitees. One
or more waivers by Landlord of any breach of the Rules and Regulations by Tenant
or by any other tenant(s) shall not be a waiver of any subsequent breach of that
rule or any other. Tenant's failure to keep and observe the Rules and
Regulations following notice from Landlord and the expiration of the applicable
cure period, shall constitute a Default under this Lease. In the case of any
conflict between the Rules and Regulations and this Lease, this Lease shall be
controlling. Notwithstanding anything to the contrary in this Article XVII,
Tenant shall not be required to comply with any rule or regulation unless the
same applies non-discriminatorily to all occupants of the Project
ARTICLE XVIII. BROKER'S COMMISSION
The parties recognize as the broker(s) who negotiated this Lease the
firm(s), if any, whose name(s) is (are) stated in Item 10 of the Basic Lease
Provisions, and agree that Landlord shall be responsible for the payment of
brokerage commissions to those broker(s) unless otherwise provided in this
Lease. Tenant warrants that it has had no dealings with any other real estate
broker or agent in connection with the negotiation of this Lease, and Tenant
agrees to indemnify and hold Landlord harmless from any cost, expense or
liability (including reasonable attorneys' fees) for any compensation,
commissions or charges claimed by any other real estate broker or agent employed
or claiming to represent or to have been employed by Tenant in connection with
the negotiation of this Lease. The foregoing agreement shall survive the
termination of this Lease. If this Lease terminates prior to the Expiration Date
as the result of failure of performance by Tenant, Landlord shall be entitled to
recover from Tenant the unamortized portion of any brokerage commission funded
by Landlord in addition to any other damages to which Landlord may be entitled.
ARTICLE XIX. TRANSFER OF LANDLORD'S INTEREST
39
In the event of any transfer of Landlord's interest in the Premises, the
transferor shall be automatically relieved of all obligations on the part of
Landlord accruing under this Lease from and after the date of the transfer,
provided that the transferee assumes in writing all of such obligations and any
funds held by the transferor in which Tenant has an interest shall be turned
over, subject to that interest, to the transferee and Tenant is notified of the
transfer as required by law. No holder of a mortgage and/or deed of trust to
which this Lease is or may be subordinate, and no landlord under a so-called
sale-leaseback, shall be responsible in connection with the Security Deposit,
unless the mortgagee or holder of the deed of trust or the landlord actually
receives the Security Deposit. It is intended that the covenants and obligations
contained in this Lease on the part of Landlord shall, subject to the foregoing,
be binding on Landlord, its successors and assigns, only during and in respect
to their respective successive periods of ownership. Nothing contained in the
foregoing sentence, however, shall be deemed to release The Irvine Company from
any obligation under Section 5.3(h) of this Lease from and after its period of
ownership.
ARTICLE XX. INTERPRETATION
SECTION 20.1. GENDER AND NUMBER. Whenever the context of this Lease
requires, the words "Landlord" and "Tenant" shall include the plural as well as
the singular, and words used in neuter, masculine or feminine genders shall
include the others.
SECTION 20.2. HEADINGS. The captions and headings of the articles and
sections of this Lease are for convenience only, are not a part of this Lease
and shall have no effect upon its construction or interpretation.
SECTION 20.3. JOINT AND SEVERAL LIABILITY. If more than one person or
entity is named as Tenant, the obligations imposed upon each shall be joint and
several and the act of or notice from, or notice or refund to, or the signature
of, any one or more of them shall be binding on all of them with respect to the
tenancy of this Lease, including, but not limited to, any renewal, extension,
termination or modification of this Lease.
SECTION 20.4. SUCCESSORS. Subject to Articles IX and XIX, all rights and
liabilities given to or imposed upon Landlord and Tenant shall extend to and
bind their respective heirs, executors, administrator, successors and assigns.
Nothing contained in this Section is intended, or shall be construed, to grant
to any person other than Landlord and Tenant and their successors and assigns
any rights or remedies under this Lease.
SECTION 20.5. TIME OF ESSENCE. Time is of the essence with respect to the
performance of every provision of this Lease.
SECTION 20.6. CONTROLLING LAW. This Lease shall be governed by and
interpreted in accordance with the laws of the State of California.
40
SECTION 20.7. SEVERABILITY. If any term or provision of this Lease, the
deletion of which would not adversely affect the receipt of any material benefit
by either party or the deletion of which is consented to by the party adversely
affected, shall be held invalid or unenforceable to any extent, the remainder of
this Lease shall not be affected and each tem and provision of this Lease shall
be valid and enforceable to the fullest extent petted by law.
SECTION 20.8. WAIVER AND CUMULATIVE REMEDIES. One or more waivers by
Landlord or Tenant of any breach of any term, covenant or condition contained in
this Lease shall not be a waiver of any subsequent breach of the same or any
other term, covenant or condition. Consent to any act by one of the parties
shall not be deemed to render unnecessary the obtaining of that party's consent
to any subsequent act No breach by Tenant of this Lease shall be deemed to have
been waived by Landlord unless the waiver is in a writing signed by Landlord The
rights and remedies of Landlord under this Lease shall be cumulative and in
addition to any and all other rights and remedies which Landlord may have.
SECTION 20.9. INABILITY TO PERFORM. In the event that either party shall
be delayed or hindered in or prevented from the performance of any work or in
performing any act required under this Lease by reason of any cause beyond the
reasonable control of that party, then the performance of the work or the doing
of the act shall be excused for the period of the delay and the time for
performance shall be extended for a period equivalent to the period of the
delay. The provisions of this Section shall not operate to excuse Tenant from
the prompt payment of rent. Further, the provisions of this Section 20.9 shall
not operate to extend the time at which Tenant is entitled to an abatement of
rent as provided by the express terms of this Lease, nor to extend by more than
ninety (90) days in the aggregate Tenant's right to terminate this Lease as
provided by the express terms of Articles XI and XII of this Lease.
SECTION 20.10. ENTIRE AGREEMENT. This Lease and its exhibits and other
attachments cover in full each and every agreement of every kind between the
parties concerning the Premises, the Building, and the Project, and all
preliminary negotiations, oral agreements, understandings and/or practices,
except those contained in this Lease, are superseded and of no further effect.
Tenant waives its rights to rely on any representations or promises made by
Landlord or others which are not contained in this Lease. No verbal agreement or
implied covenant shall be held to modify the provisions of this Lease, any
statute, law, or custom to the contrary notwithstanding.
SECTION 20.11. QUIET ENJOYMENT. Upon the observance and performance of all
the covenants, terms and conditions on Tenant's part to be observed and
performed, and subject to the other provisions of this Lease, Tenant shall
peaceably and quietly hold and enjoy the Premises for the Term without hindrance
or interruption by Landlord or any other person claiming by or through Landlord.
SECTION 20.12. SURVIVAL. All covenants of Landlord or Tenant which
reasonably would be intended to survive the expiration or sooner termination of
this Lease, including, without limitation, any warranty or indemnity hereunder,
shall so survive and continue to be binding upon and inure to the benefit of the
respective parties and their successors and assigns.
41
ARTICLE XXI. EXECUTION AND RECORDING
SECTION 21.1. COUNTERPARTS. This Lease may be executed in one or more
counterparts, each of which shall constitute an original and all of which shall
be one and the same agreement.
SECTION 21.2. CORPORATE AND PARTNERSHIP AUTHORITY. If Tenant is a
corporation or partnership, each individual executing this Lease on behalf of
the corporation or partnership represents and warrants that he is duly
authorized to execute and deliver this Lease on behalf of the corporation or
partnership, and that this Lease is binding upon the corporation or partnership
in accordance with its terms. Tenant shall, at Landlord's request, deliver a
certified copy of its board of directors' resolution or partnership agreement or
certificate authorizing or evidencing the execution of this Lease.
SECTION 21.3. EXECUTION OF LEASE; NO OPTION OR OFFER. The submission of
this Lease to Tenant shall be for examination purposes only, and shall not
constitute an offer to or option for Tenant to lease the Premises. Execution of
this Lease by Tenant and its return to Landlord shall not be binding upon
Landlord, notwithstanding any time interval, until Landlord has in fact executed
and delivered this Lease to Tenant, it being intended that this Lease shall only
become effective upon execution by Landlord and delivery of a fully executed
counterpart to Tenant.
SECTION 21.4. RECORDING. Tenant shall not record this Lease without the
prior written consent of Landlord Tenant, upon the request of Landlord, shall
execute and acknowledge a "short form" memorandum of this Lease for recording
purposes.
SECTION 21.5. AMENDMENTS. No amendment or termination of this Lease shall
be effective unless in writing signed by authorized signatories of Tenant and
Landlord, or by their respective successors in interest. No actions, policies,
oral or informal arrangements, business dealings or other course of conduct by
or between the parties shall be deemed to modify this Lease in any respect.
SECTION 21.6. EXECUTED COPY. Any fully executed photocopy or similar
reproduction of this Lease shall be deemed an original for all purposes.
SECTION 21.7. ATTACHMENTS. All exhibits, amendments, riders and addenda
attached to this Lease are hereby incorporated into and made a part of this
Lease.
ARTICLE XXII. MISCELLANEOUS
SECTION 22.1. NONDISCLOSURE OF LEASE TERMS. Tenant acknowledges and agrees
that the terms of this Lease are confidential and constitute proprietary
information of Landlord. Disclosure of the terms could adversely affect the
ability of Landlord to negotiate other leases and impair Landlord's relationship
with other tenants. Accordingly, Tenant agrees that it, and its partners,
officers, directors, employees and attorneys, shall not intentionally and
voluntarily disclose the terms and conditions of this Lease to any other tenant
or apparent prospective tenant of the Building or Project, either directly or
indirectly, without the prior written consent of Landlord, provided, however,
that Tenant may disclose the terms to
42
prospective subtenants or assignees under this Lease, and as required for any
security filings, financings or sales, reorganizations or consolidations of
Tenant's business.
SECTION 22.2. GUARANTY. As a condition to the execution of this Lease by
Landlord, the obligations, covenants and performance of the Tenant as herein
provided shall be guaranteed in writing by the Guarantor(s) listed in Item 7 of
the Basic Lease Provisions, if any, on a form of guaranty provided by Landlord.
SECTION 22.3. CHANGES REQUESTED BY LENDER. If, in connection with
obtaining financing for the Project, the lender shall request reasonable
modifications in this Lease as a condition to the financing, Tenant will not
unreasonably withhold or delay its consent, provided that the modifications do
not materially increase the obligations of Tenant or materially and adversely
affect the leasehold interest created by this Lease.
SECTION 22.4. MORTGAGEE PROTECTION. No act or failure to act on the part
of Landlord which would otherwise entitle Tenant to be relieved of its
obligations hereunder or to terminate this Lease shall result in such a release
or termination unless (a) Tenant has given notice by registered or certified
mail to any beneficiary of a deed of trust or mortgage covering the Building
whose address has been furnished to Tenant in writing and (b) such beneficiary
is afforded a reasonable opportunity to cure the default event shall be less
than sixty (60) days), including, if necessary to effect the cure, time to
obtain possession of the Building by power of sale or judicial foreclosure
provided that such foreclosure remedy is diligently pursued. Tenant agrees that
each beneficiary of a deed of trust or mortgage covering the Building is an
express third party beneficiary hereof, Tenant shall have no right or claim for
the collection of any deposit from such beneficiary or from any purchaser at a
foreclosure sale unless such beneficiary or purchaser shall have actually
received and not refunded the deposit, and Tenant shall comply with any written
directions by any beneficiary to pay rent due hereunder directly to such
beneficiary without determining whether an event of default exists under such
beneficiary's deed of trust.
SECTION 22.5. [INTENTIONALLY DELETED]
SECTION 22.6. SECURITY MEASURES. Tenant hereby acknowledges that Landlord
shall have no obligation whatsoever to provide guard service or other security
measures for the benefit of the Premises or the Project. Tenant assumes all
responsibility for the protection of Tenant, its agents, invitees and property
from acts of third parties. Nothing herein contained shall prevent Landlord, at
its sole option, from providing security protection for the Project or any part
thereof, in which event the cost thereof shall be included within the definition
of Project Costs.
SECTION 22.7. JAMS. Should a dispute arise between the parties regarding
any matter which is expressly authorized by a provision hereof to submit to
arbitration, then either party may cause the dispute to be submitted to
Jams/Endispute or its successor ("JAMS")in Orange County, California for binding
arbitration before a single arbitrator. However, each party reserves the right
to seek any equitable remedy by judicial action. No arbitration election by
either party pursuant to this subsection shall be effective if made later than
thirty (30) days following service of a judicial summons and complaint by or
upon such party concerning the
43
dispute. The arbitration shall be conducted in accordance with the rules of
practice and procedure of JAMS and otherwise pursuant to the California
Arbitration Act (Code of Civil Procedure Sections 1280 et seq.). Notwithstanding
the foregoing, the arbitrator is specifically directed to limit discovery to
that which is essential to the effective prosecution or defense of the action,
and in no event shall such discovery by either party include more than one
non-expert witness deposition unless both parties otherwise agree. The
arbitrator shall apportion the costs of the arbitration, together with the
attorneys' fees of the parties, in the manner deemed equitable by the
arbitrator, it being the intention of the parties that the prevailing party
ordinarily be entitled to recover its reasonable costs and fees. Judgment upon
any award rendered by the arbitrator may be entered by any court jurisdiction.
SECTION 22.8. APPROVALS. Subject to Landlord's rights to consent or
approve in its "discretion" or "sole discretion" as provided in this Lease,
whenever the Lease requires an approval, consent, designation, determination,
discretion or judgment by either Landlord or Tenant, such approval consent,
designation, determination, discretion or judgment (including, without limiting
the generality of the foregoing, those required in connection with assignment
and subletting) shall not be unreasonable or unreasonably withheld or delayed
and in exercising any right or remedy hereunder, each party shall at all times
act reasonably and in good faith.
LANDLORD: TENANT:
THE IRVINE COMPANY ALSIUS CORPORATION,
a California corporation
By: /s/ Xxxxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxxx
---------------------------- --------------------------
Name: Xxxxxxxx Xxxxxx Name: Xxxxxxx Xxxxxxx
-------------------------- ------------------------
Title: President, Irvine Industrial Title: President & CEO
Company, a division of -----------------------
The Irvine Company
-------------------------
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxxxxxxx Xxxxxx
---------------------------- --------------------------
Name: Xxxx X. Xxxxxxx Name: Xxxxxxxxxxx Xxxxxx
-------------------------- ------------------------
Title: Assistant Secretary Title: Assistant Secretary
------------------------- -----------------------
44
EXHIBIT A
[MID TECH 6 FLOOR PLAN]
1
EXHIBIT B
THE IRVINE COMPANY - INVESTMENT PROPERTIES GROUP
HAZARDOUS MATERIAL SURVEY FORM
The purpose of this form is to obtain information regarding the use of
hazardous substances on Investment Properties Group ("IPG") property.
Prospective tenants and contractors should answer the questions in light of
their proposed activities on the premises. Existing tenants and contractors
should answer the questions as they relate to ongoing activities on the premises
and should update any information previously submitted.
If additional space is needed to answer the questions, you may attach
separate sheets of paper to this form. When completed, the form should be sent
to the following address
INSIGNIA COMMERCIAL GROUP, INC.
0 Xxx, Xxxxx 000
Xxxxxx, XX 00000
Your cooperation in this matter is appreciated. If you have any questions,
please call your property manager at (000) 000-0000 for assistance.
1. GENERAL INFORMATION.
Name of Responding Company:_______________________________________________
Check all that apply: Tenant [ ] Contractor [ ]
Prospective [ ] Existing [ ]
Mailing Address:__________________________________________________________
Contact Person & Title:___________________________________________________
Telephone Number: ( ) _____ - _____
Current TIC Tenant(s):
Address of Lease Premises:________________________________________________
Length of Lease or Contract Term:_________________________________________
1
Prospective TIC Tenant(s):
Address of Proposed Lease Premises:_______________________________________
Address of Current Operations:____________________________________________
Describe the proposed operations to take place on the property, including
principal products manufactured or services to be conducted. Existing
tenants and contractors should describe any proposed changes to ongoing
operations.__________________________________________
__________________________________________________________________________
2. HAZARDOUS MATERIALS. For the purposes of this Survey Form, the term
"hazardous material" means any raw material, product or agent considered
hazardous under any state or federal law. The terms does not include
wastes which are intended to be discarded.
2.1 Will any hazardous materials be used or stored on site?
Chemical Products Yes [ ] No [ ]
Biological Hazards/ Yes [ ] No [ ]
Infectious Wastes
Radioactive Materials Yes [ ] No [ ]
Petroleum Products Yes [ ] No [ ]
2.2 List any hazardous materials to be used or stored, the quantities
that will be on- site at any given time, and the location and method
of storage (e.g., bottles in storage closet on the premises).
Location and Method
Hazardous Materials of Storage Quantity
------------------- -------------------- --------
___________________ ____________________ _________________
___________________ ____________________ _________________
___________________ ____________________ _________________
___________________ ____________________ _________________
2
2.3 Is any underground storage of hazardous materials proposed or
currently conducted on the premises? Yes [ ] No [ ]
If yes, describe the materials to be stored, and the size and
construction of the tank. Attach copies of any permits obtained for
the underground storage of such substances._________________________
____________________________________________________________________
3. HAZARDOUS WASTE. For the purposes of this Survey Form, the term
"hazardous waste" means any waste (including biological, infectious
or radioactive waste) considered hazardous under any state or
federal law, and which is intended to be discarded.
3.1 List any hazardous waste generated or to be generated on the
premises, and indicate the quantity generated on a monthly basis.
Location and Method
of Storage Prior to
Hazardous Waste Disposal Quantity
------------------- --------------------- -----------------
___________________ _____________________ _________________
___________________ _____________________ _________________
___________________ _____________________ _________________
___________________ _____________________ _________________
3.2 Describe the method(s) of disposal (including recycling) for each
waste. Indicate where and how often disposal will take place.
3
Hazardous Materials Location of Disposal Site Quantity
------------------- ------------------------- -----------------
___________________ _________________________ _________________
___________________ _________________________ _________________
___________________ _________________________ _________________
___________________ _________________________ _________________
3.3 Is any treatment or processing of hazardous, infections or
radioactive wastes currently conducted or proposed to be conducted
on the premise?
Yes [ ] No [ ]
If yes, please describe any existing or proposed treatment
methods.___________________________________________________
___________________________________________________________
3.4 Attach copies of any hazardous waste permits or licenses issued to
your company with respect to its operations on the premises.
4. SPILLS.
4.1 During the past year, have any spills or releases of hazardous
materials occurred on the premises? Yes [ ] No [ ]
4.2 Were any agencies notified in connection with such spills?
Yes [ ] No [ ]
4.3 Were any clean-up actions undertaken in connection with the spills?
Yes [ ] No [ ]
If so, briefly describe the actions taken. Attach copies of any
clearance letters obtained from any regulatory agencies involved and
the results of any final soil or groundwater sampling done upon
completion of the clean-up work.__________________________
__________________________________________________________________
5. WASTEWATER TREATMENT/DISCHARGE.
5.1 Do you discharge industrial wastewater to:
____ storm drain? ___ sewer?
____ surface water? ___ no industrial discharge
4
5.2 Is your industrial wastewater treated before discharge?
Yes [ ] No [ ]
5.3 Attach copies of any wastewater discharge permits issued to your
company with respect to its operations on the premises.
6. AIR DISCHARGES.
6.1 Do you have any air filtration systems or stacks that discharge into
the air?
Yes [ ] No [ ]
6.2 Do you operate any equipment that require air emissions permits?
Yes [ ] No [ ]
6.3 Attach copies of any air discharge permits pertaining to these
operations.
7. HAZARDOUS MATERIAL DISCLOSURES.
7.1 Does your company handle an aggregate of at least 500 pounds, 55
gallons or 200 cubic feet of hazardous material at any given time?
Yes [ ] No [ ]
7.2 Has your company prepared a Hazardous Materials Disclosure -
Chemical Inventory and Business Emergency Plan or similar disclosure
document pursuant to state or county requirements?
Yes [ ] No [ ]
7.3 Are any of the chemicals used in your operations regulated under
Proposition 65?
If so, describe the procedures followed to comply with these
requirements._______________________________________________________
7.4 Is your company subject to OSHA Hazard Communication Standard
Requirements?
Yes [ ] No [ ]
If so, describe the procedures followed to comply with these
requirements._______________________________________________________
8. ANIMAL TESTING.
8.1 Does your company bring or intend to bring live animals onto the
premises for research or development purposes? Yes ( ) No ( )
If so, describe the activity. ______________________________________
____________________________________________________________________
5
8.2 Does your company bring or intend to bring animal body parts or
bodily fluids onto the premises for research or development
purposes?
Yes [ ] No [ ]
9. ENFORCEMENT ACTIONS, COMPLAINTS.
9.1 Has your company ever been subject to any agency enforcement
actions, administrative orders, lawsuits, or consent orders/decrees
regarding environmental compliance or health and safety?
Yes [ ] No [ ]
If so, describe the actions and any continuing obligations imposed
as a result of these actions._______________________________________
____________________________________________________________________
9.2 Has your company ever received any request for information, notice
of violation or demand letter, complaint, or injury regarding
environmental compliance or health and safety?
Yes [ ] No [ ]
9.3 Has an environmental audit ever been conducted which concerned
operations or activities on premises occupied by you?
Yes [ ] No [ ]
9.4 If you answered "yes" to any questions in this section, describe the
environmental action or complaint and any continuing compliance
obligation imposed as a result of the
same._______________________________________________________________
____________________________________________________________________
______________________________
______________________________
By:___________________________
Name:_____________________
Title:____________________
Date:_____________________
6
EXHIBIT C
LANDLORD'S DISCLOSURES
SPECTRUM
The capitalized terms used and not otherwise defined in this Exhibit shall
have the same definitions as set forth in the Lease. The provisions of this
Exhibit shall supersede any inconsistent or conflicting provisions of the Lease.
1. Landlord has been informed that the El Toro Marine Corps Air Station
(MCAS) has been listed as a Federal Superfund site as a result of chemical
releases occurring over many years of occupancy. Various chemicals including jet
fuel, motor oil and solvents have been discharged in several areas throughout
the MCAS site. A regional study conducted by the Orange County Water District
has estimated that groundwaters beneath more than 2,900 acres have been impacted
by Trichloroethlene (TCE), an industrial solvent. There is a potential that this
substance may have migrated into the ground water underlying the Premises. The
U.S. Environmental Protection Agency, the Santa Xxx Region Quality Control
Board, and the Orange County Health Care Agency are overseeing the
investigation/cleanup of this contamination. To the Landlord's current actual
knowledge, the ground water in this are is used for irrigation purposes only,
and there is no practical impediment to the use or occupancy of the Premises due
to the El Toro discharges.
1
EXHIBIT D
TENANT'S INSURANCE
The following standards for Tenant's insurance shall be in effect at the
Building. Landlord reserves the right to adopt reasonable nondiscriminatory
modifications and additions to those standards. Tenant agrees to obtain and
present evidence to Landlord that it has fully complied with the insurance
requirements.
1. Tenant shall, at its sole cost and expense, commencing on the date
Tenant is given access to the Premises for any purpose and during the entire
Term, procure, pay for and keep in full force and effect: (1) commercial general
liability insurance with respect to the Premises and the operations of or on
behalf of Tenant in, on or about the Premises, including but not limited to
personal injury, owned and non-owned automobile, blanket contractual,
independent contractors, broad form property damage (with an exception to any
pollution exclusion with respect to damage arising out of heat, smoke or fumes
from a hostile fire), fire and water legal liability, products liability (if a
product is sold from the Premises)) liquor law liability (if alcoholic beverages
are sold, served or consumed within the Premises), and severability or interest,
which policy(ies) shall be written on an "occurrence" basis and for not less
than the amount set forth in Item 13 of the Basic Lease Provisions, with a
combined single limit (with a $50,000 minimum limit on fire legal liability) per
occurrence for bodily injury, death, and property damage liability1 or the'
current limit of liability carried by Tenant, whichever is greater, and subject
to such increases in amounts as Landlord may determine from time to time; (ii)
workers' compensation insurance coverage as required by law, together with
employers' liability insurance; (iii) with respect to improvements, alterations,
and the like required or permitted to be made by Tenant under this Lease,
builder's :all-risk insurance, in an amount equal to the replacement cost of the
work; (iv) insurance against fire, vandalism, malicious mischief and such other
additional perils as may be included in a standard "all risk" form in
furnishings, equipment and items of personal property of Tenant located in the
Premises, in an amount equal to not less than ninety percent (90%) of their
actual replacement cost (with replacement cost endorsement); and (v) business
interruption insurance in amounts satisfactory to cover one (1) year of loss. In
no event shall the limits of any policy be considered as limiting the liability
of Tenant tinder this Lease.
2. In the event Landlord consents to Tenant's use, generation or storage
of Hazardous Materials on, under or about the Premises pursuant to Section 5.3
of this Lease, Landlord shall have the continuing right to require Tenant, at
Tenant's sole cost and expense (provided the same is available for purchase upon
commercially reasonable terms) to purchase insurance specified and approved by
Landlord, with coverage not less than Five Million Dollars ($5,000,000.00),
insuring (i) any Hazardous Materials shall be removed from the Premises, (ii)
the Premises shall be restored to a clean, healthy, safe and sanitary condition,
and (iii) any liability of Tenant, Landlord and Landlord's officers, directors,
shareholders, agents, employees and representatives, arising from such Hazardous
Materials.
1
3. All policies of insurance required to be carried by Tenant pursuant to
this Exhibit D containing a deductible exceeding Five Thousand Dollars
($5,000.00) per occurrence must be approved in writing by Landlord prior to the
issuance of such policy. Tenant shall be solely responsible for the payment pf
all deductibles.
4. All policies of insurance required to be carried by Tenant pursuant to
this Exhibit D shall be written by responsible insurance companies authorized to
do business in the State of California and with a Best's rating of not less than
"A" subject to final acceptance and approval by Landlord. Any insurance required
of Tenant may be furnished by Tenant under any blanket policy carried by it or
under a separate policy, so long as (i) the Premises are specifically covered
(by rider, endorsement or otherwise), (ii) the limits of the policy are
applicable on a "per location" basis to the Premises and provide for restoration
of the aggregate limits, and (iii) the policy otherwise complies with the
provisions of this Exhibit D. A true and exact copy of each paid up policy
evidencing the insurance (appropriately authenticated by the insurer) or a
certificate of insurance, certifying that the policy has been issued, provides
the coverage required by this Exhibit D and contains the required provisions,
shall be delivered to Landlord prior to the date Tenant is given the right of
possession of the Premises. Proper evidence of the renewal of any insurance
coverage shall also be delivered to Landlord not less than thirty (30) days
prior to the expiration of die coverage. Landlord may at any time, and from
(Line to time, inspect and/or copy any and all insurance policies required by
this Lease.
5. Each policy evidencing insurance required to be carried by Tenant
pursuant to this Exhibit D shall contain the following provisions and/or clauses
satisfactory to Landlord: (i) a provision that the policy and the coverage
provided shall be primary and that any coverage carried by Landlord shall be
noncontributory with respect to any policies carried by Tenant except as to
workers' compensation insurance; (ii) a provision including Landlord, the
Additional Insureds identified in Item 11 of the Basic Lease Provisions, and any
other parties in interest designated by Landlord as an additional insured,
except as to workers' compensation insurance; (iii) a waiver by the insurer of
any right to subrogation against Landlord, its agents, employees, contractors
and representatives which arises or might arise by reason of any payment under
the policy or by reason of any act or omission of Landlord, its agents,
employees, contractors or representatives; and (iv) a provision that the insurer
will not cancel or change the coverage provided by the policy without first
giving Landlord thirty (30) days prior written notice.
6. In the event that Tenant fails to procure, maintain and/or pay for, at
the times and for the durations specified in this Exhibit D, any insurance
required by this Exhibit D, or fails to carry insurance required by any
governmental authority, Landlord may at its election procure that insurance and
pay the premiums, in which event Tenant shall repay Landlord all sums paid by
Landlord, together with interest at the maximum rate permitted by law and any
related costs or expenses incurred by Landlord, within ten (10) days following
Landlord's written demand to Tenant.
2
EXHIBIT E
RULES AND REGULATIONS
This Exhibit sets forth the rules and regulations governing Tenant's use
of the Premises leased to Tenant pursuant to the terms, covenants and conditions
of the Lease to which this Exhibit is attached and therein made part thereof. In
the event of any conflict or inconsistency between this Exhibit and the Lease,
the Lease shall control.
1. 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.
2. The walls, walkways, sidewalks, entrance passages, courts and
vestibules shall not be obstructed or used for any purpose other than ingress
and egress of pedestrian travel to and from the Premises, and shall not be used
for loitering or gathering, or to display, store or place any merchandise,
equipment or devices, or for any other purpose. The walkways, entrance
passageways, courts, vestibules and roof are not for the use of the general
public and Landlord shall in all cases retain the right to control and prevent
access thereto by all persons whose presence in the judgment of the Landlord
shall be prejudicial to the safety, character, reputation and interests of the
Building and its tenants, provided that nothing herein contained shall be
construed to prevent such access to persons with whom Tenant normally deals in
the ordinary course of Tenant's business unless such persons are engaged in
illegal activities. No tenant employee or invitee of any tenant shall be
permitted upon the roof of the Building.
3. No awnings or other projection shall be attached to the outside walls
of the Building. No security bars or gates, curtains, blinds, shades or screens
shall he attached to or hung in, or used in connection with, any window or door
of the Premises without the prior written consent of Landlord. Neither the
interior nor exterior of any windows shall be coated or otherwise sunscreened
without the express written consent of Landlord.
4. Tenant shall not xxxx, nail, paint, drill into, or in any way deface
any part of the Premises or the Building. Tenant shall not lay linoleum, tile,
carpet or other similar floor covering so that the same shall be affixed to the
floor of the Premises in any manner except as approved by Landlord in writing.
The expense of repairing any damage resulting from a violation of this rule or
removal of any floor covering shall be borne by Tenant.
5. The toilet rooms, urinals, wash bowls and other plumbing apparatus
shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be thrown
therein. The expense of any breakage, stoppage or damage
1
resulting from the violation of this rule shall be borne by the tenant who, or
whose employees or invitees, caused it.
6. Landlord shall direct electricians as to the manner and location of any
future telephone wiring. No boring or cutting for wires will be allowed without
the prior consent of Landlord. The locations of the telephones, call boxes and
other office equipment affixed to the Premises shall be subject to the prior
written approval of Landlord.
7. The Premises shall not be used for manufacturing or for the storage of
merchandise except as such storage may be incidental to the permitted use of the
Premises. No exterior storage shall be allowed at any time without the prior
written approval of Landlord. The Premises shall not be used for cooking or
washing clothes without the prior written consent of Landlord, or for lodging or
sleeping or for any immoral or illegal purposes.
8. Tenant shall not make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with occupants of this or neighboring buildings
or premises or those having business with them, whether by the use of any
musical instrument, radio, phonograph, noise, or otherwise. Tenant shall not
use, keep or permit to be used, or kept, any foul or obnoxious gas or substance
in the Premises or permit or suffer the Premises to be used or occupied in any
manner offensive or objectionable to Landlord or other occupants of this or
neighboring buildings or premises by reason of any odors, fumes or gases.
9. No animals shall be permitted at any time within the Premises.
10. Tenant shall not use the name of the Building or the Project in
connection with or in promoting or advertising the business of Tenant, except as
Tenant's address, without the written consent of Landlord. Landlord shall have
the right to prohibit any advertising by any Tenant which, in Landlord's
reasonable opinion, tends to impair the reputation of the Project or its
desirability for its intended uses, and upon written notice from Landlord any
Tenant shall refrain from or discontinue such advertising.
11. Canvassing, soliciting, peddling, parading, picketing, demonstrating
or otherwise engaging in any conduct that unreasonably impairs the value or use
of the Premises or the Project are prohibited and each Tenant shall cooperate to
prevent the same.
12. No equipment of any type shall be placed on the Premises which in
Landlord's opinion exceeds the load limits of the floor or otherwise threatens
the soundness of the structure or improvements of the Building.
13. No air conditioning unit or other similar apparatus shall be installed
or used by any Tenant.
2
14. No aerial antenna shall be erected on the roof or exterior walls of
the Premises; or on the grounds, without in each instance, the prior written
consent of Landlord. Any aerial or antenna so installed without such written
consent shall be subject to removal by Landlord at any time without prior notice
at the expense of the Tenant, and Tenant shall upon Landlord's demand pay a
removal fee to Landlord of not less than $200.00.
15. The entire Premises, including vestibules, entrances, doors, fixtures,
windows and plate glass, shall at all times be maintained in a safe, neat and
clean condition by Tenant. All trash, refuse and waste materials shall be
regularly removed from the Premises by Tenant and placed in the containers at
the locations designated by Landlord for refuse collection. All cardboard boxes
must be "broken down" prior to being placed in the trash container. All
styrofoam chips must be bagged or otherwise contained prior to placement in the
trash container, so as not to constitute a nuisance. Pallets may not be disposed
of in the trash container or enclosures. The burning of trash, refuse or waste
materials is prohibited.
16. Tenant shall use at Tenant's cost such pest extermination contractor
as Landlord may direct and at such intervals as Landlord may require.
17. All keys for the Premises shall be provided to Tenant by Landlord and
Tenant shall return to Landlord any of such keys so provided upon the
termination of the Lease. Tenant shill not change locks or install other locks
on doors of the Premises, without the prior written consent of Landlord. In the
event of loss of any keys furnished by Landlord for Tenant, Tenant shall pay to
Landlord the costs thereof.
18. No person shall enter or remain within the Project while intoxicated
or under the influence of liquor or drugs. Landlord shall have the right to
exclude or expel from the Project any person who, in the absolute discretion of
Landlord, is under the influence of liquor or drugs.
Landlord reserves the right to amend or supplement the foregoing
Rules and Regulations and to adopt and promulgate additional rules and
regulations applicable to the Premises. Notice of such rules and regulations and
amendments and supplements thereto, if any, shall be given to the Tenant.
3
EXHIBIT X
INDUSTRIAL WORK LETTER
DOLLAR ALLOWANCE
The Tenant Improvement work (herein "Tenant Improvements") shall consist of any
work, including work in place as of the date hereof, required to complete the
Premises pursuant to the approved Working Drawings and Specifications (as
hereinafter defined). The Tenant Improvements shall not include the "Shell
Building Work" (as defined in Article III below). All of the Tenant Improvement
work shall be performed by the "Selected Contractor" (as hereinafter defined)
and in accordance with the procedures and requirements set forth below.
I. ARCHITECTURAL AND CONSTRUCTION PROCEDURES.
A. Tenant and Landlord have approved, or shall approve within the time period
set forth below, both (i) a detailed space plan for the Premises, prepared
by Landlord's architect, which includes interior partitions, ceilings,
interior finishes, interior doors, suite entrance, floor coverings, window
coverings, lighting, electrical and telephone outlets, plumbing
connections, heavy floor loads and other special requirements
("Preliminary Plan"), and (ii) an estimate, prepared by Landlord's
contractor, of the cost for which Landlord will complete or cause to be
completed the Tenant Improvements ("Preliminary Cost Estimate"). Tenant
shall approve or disapprove each of the Pre1frniniy Plan and the
Preliminary Cost Estimate by signing copies of the appropriate instrument
and delivering same to Landlord within three (3) business days of its
receipt by Tenant If Tenant disapproves any matter, Tenant shall specify
in detail the reasons for disapproval and Landlord shall attempt to modify
the Preliminary Plan and the Preliminary Cost Estimate to incorporate
Tenant's suggested revisions in a mutually satisfactory manner. In no
event, however, shall Tenant have the right to make additions to the
Preliminary Plan as part of its approval thereof which would increase the
improvements to be paid for by "Landlord's Contribution" (as hereinafter
defined), it being understood and agreed that the Preliminary Plan
submitted by Landlord's architect is intended to include all improvements
desired by Tenant using Landlord's "Standards" (as hereinafter defined),
whether or not the full amount of Landlord's Contribution would be
required to complete construction of the improvements as shown in the
Preliminary Plan. In all events, Tenant shall approve in all respects a
Preliminary Plan and Preliminary Cost Estimate not later than the date set
forth in Item 15 of the Basic Lease Provisions ("Plan Approval Date"), it
being understood that Tenant's failure to do so shall constitute a "Tenant
Delay" for purposes of this Lease.
B. On or before the Plan Approval Date, Tenant shall provide in writing to
Landlord or Landlord's architect all specifications and information
requested by Landlord for the preparation of final construction documents
and costing, including without limitation Tenant's final selection of wail
and floor finishes, complete specifications and locations
1
(including load and HVAC requirements) of Tenant's equipment, and details
of all "Non-Standard Improvements" (as defined below) to be installed in
the Premises (collectively, "Programming Information"). Tenant's failure
to provide the Programming Information by the Plan Approval Date shall
constitute a Tenant Delay for purposes of this Lease. Tenant understands
that final construction documents for the Tenant Improvements shall be
predicated on the Programming Information, and accordingly agrees that
such information provided to Landlord is accurate and complete.
C. Except as specified in the Preliminary Plan, the Tenant Improvements shall
incorporate Landlord's building standard materials and specifications
("Standards") described with particularity in the Section entitled "Tenant
Improvements" of that certain Outline Specification and Project
Description Midtech Buildings Irvine Spectrum 6 (the "Outline
Specifications"). A copy of the Outline Specifications is attached as
Exhibit X-1 hereto. No deviations from the Standards shall be permitted,
provided that Landlord may, in its reasonable discretion, authorize in
writing one or more of such deviations if requested by Tenant Any excess
cost of such deviations shall be part of "Tenant's Contribution" (as
hereinafter defined). Notwithstanding anything to the contrary contained
in the foregoing, Landlord shall in no event be required to approve any
deviations from the Standards ("Non-Standard Improvements") if Landlord
determines that such improvement (i) is of a lesser quality than the
corresponding Standard, (ii) fails to conform to applicable governmental
requirements, (iii) requires building services beyond the level normally
provided to other tenants, (iv) would delay construction of the Tenant
Improvements beyond the Estimated Commencement Date and Tenant declines to
accept such delay in writing as a Tenant Delay, or (v) would have an
adverse aesthetic impact from the exterior of the Premises.
D. Upon Tenant's approval of the Preliminary Plan and Preliminary Cost
Estimate and delivery of the complete Programming Information, Landlord's
architect and engineers shall prepare and deliver to Tenant working
drawings and specifications ("Working Drawings and Specifications") for
the Tenant Improvements based on the Preliminary Plan. Tenant shall have
three (3) business days from the receipt thereof to approve or disapprove
the Working Drawings and Specifications. Tenant shall not unreasonably
withhold or delay its approval, and any disapproval or requested
modification shall be limited to items not contained in the approved
Preliminary Plan or Preliminary Cost Estimate. Should Tenant disapprove
the Working Drawings and Specifications, such disapproval shall be
accompanied by a detailed list of revisions. Any revision requested by
Tenant and reasonably accepted by Landlord shall be incorporated into a
revised set of Working Drawings and Specifications, and Tenant shall
approve same in writing within three (3) business days of receipt without
further revision (provided said revised set of Working Drawings and
Specifications complies with the applicable revision requested by Tenant
and reasonably accepted by Landlord). Tenant's failure to comply in a
timely manner with any of the requirements of this paragraph shall
constitute a Tenant Delay. Without limiting the rights of Landlord for
Tenant Delays as set forth herein, in the event Tenant has not approved
the Working Drawings and Specifications within sixty (60) days following
the date of this Lease for any reason other than the failure by Landlord
to abide by the terms and conditions of this Work Letter, then Landlord
may, at its option, elect to terminate this Lease by written notice to
Tenant In the event Landlord elects to effect
2
such a termination, Tenant shall, within ten (10) days following demand by
Landlord, pay to Landlord any costs incurred by Landlord in connection
with the preparation or review of plans, construction estimates, price
quotations, drawings or specifications under this Work Letter and for all
costs incurred in the preparation and execution of this Lease, including
any leasing commissions.
E. Upon Tenant's approval of the Working Drawings and Specifications,
Landlord shall cause at least three (3) qualified general contractors to
competitively bid the Tenant Improvements work. The lowest competitive
bidder shall be awarded the contract for such Tenant Improvements work,
except to the extent that Landlord shall demonstrate a commercially
reasonable justification for choosing another bidder. Such contractor so
awarded the contract for the Tenant Improvements work is herein referred
to as the "Selected Contractor". Promptly following the completion of such
bidding process, Landlord shall notify Tenant of the Selected Contractor's
final bid amount for the Tenant Improvements work (the "Bid Amount").
lithe Bid Amount exceeds the Preliminary Cost Estimate, Landlord and
Tenant shall cooperate in good faith, within three (3) business days
thereafter, to "value engineer" the Tenant Improvements work to reduce the
cost thereof. Upon completion of such process, Landlord shall execute a
"fixed price" or "lump sum" construction contract with the Selected
Contractor for the Bid Amount, as adjusted by any such "value
engineering". Landlord shall cause the Tenant Improvements to be
constructed in a good and wor1cn,i'lilce manner and substantially in
accordance with the approved Working Drawings and Specifications (as
modified by Changes approved by Landlord and Tenant). All materials and
equipment furnished shall conform to such approved Working Drawings and
Specifications and shall be of good quality. Landlord shall, promptly
following notice from Tenant, rectify any noncompliance with the foregoing
obligations at its sole cost and expense.
F. In the event that Tenant requests in writing a revision in the approved
Working Drawings and Specifications ("Change"), Landlord shall advise
Tenant by written change order as soon as is practical of any increase in
the Completion Cost and/or any Tenant Delay such Change would cause.
Tenant shall approve or disapprove such change order in writing within
three (3) business days following its receipt from Landlord. If such
Change either involves a Non-Standard Improvement acceptable to Landlord,
or if such Change would result in the Completion Cost exceeding the
Landlord's Contribution, then Tenant's approval of such Change shall be
accompanied by Tenant's payment of any such increase in the Completion
Cost Landlord shall have the right to decline Tenant's request for a
Change for any of the reasons set forth in Article LC above for Landlord's
disapproval of a Non-Standard Improvement It is understood that Landlord
shall have no obligation to interrupt or modify the Tenant Improvement
work pending Tenant's approval of a change order.
G. Notwithstanding any provision in the Lease to the contrary, if Tenant
fails to comply with any of the time periods specified in this Work
Letter, fails otherwise to approve or reasonably disapprove any submittal
within three (3) business days, fails to approve in writing both the
Preliminary Plan and Preliminaiy Cost Estimate for the Tenant Improvements
by the Plan Approval Date, fails to provide all of the Programming
Information requested by Landlord by the Plan Approval Date, fails to
approve or
3
disapprove in writing the Working Drawings and Specifications or the Final
Cost Estimate within the time provided herein, requests any Changes,
furnishes inaccurate or erroneous specifications or other information, or
specifies materials that are not readily available (provided that Tenant
was made aware by Landlord of the delay associated, or anticipated to be
associated, with such Change or specification at the time of Tenant's
request for such Change or materials) (any of the foregoing being referred
to in this Lease as a "Tenant Delay"), then Tenant shall bear any
resulting additional construction cost or other expenses, and the
Commencement Date of this Lease shall be deemed to have occurred for all
purposes, including Tenant's obligation to pay rent, as of the date
Landlord reasonably determines that it would have been able to deliver the
Premises to Tenant but for the collective Tenant Delays. In no event,
however, shall such date be earlier than the Estimated Commencement Date
set forth in the Basic Lease Provisions. Should Landlord determine that
the Commencement Date should be advanced in accordance with the foregoing,
it shall so notify Tenant in writing. Landlord's determination shall be
conclusive unless Tenant notifies Landlord in writing, within five (5)
days thereafter, of Tenant's election to contest same by arbitration with
JAMS pursuant to Section 22.7 of the Lease. Pending the outcome of such
arbitration proceedings, Tenant shall make timely payment of all rent due
under this Lease based upon the Commencement Date set forth in the
aforesaid notice from Landlord.
H. Landlord shall permit Tenant and its agents to enter the Premises prior to
the Commencement Date of the Lease in order that Tenant may perform any
work to be performed by Tenant hereunder through its own contractors,.
subject to Landlord's prior written approval, and in a manner and upon
terms and conditions and at times satisfactory to Landlord's
representative. The foregoing license to enter the Premises prior to the
Commencement Date is, however, conditioned upon Tenant's contractors and
their subcontractors and employees working in harmony and not interfering
with the work being performed by Landlord. If at any time that entry shall
cause disharmony or interfere with the work being performed by Landlord,
this license may be withdrawn by Landlord upon twenty-four (24) hours
written notice to Tenant That license is further conditioned upon the
compliance by Tenant's contractors with all requirements imposed by
Landlord on third party contractors, including without limitation the
maintenance by Tenant and its contractors and subcontractors of workers'
compensation and public liability and property damage insurance in amounts
and with companies and on forms satisfactory to Landlord, with
certificates of such insurance being furnished to Landlord prior to
proceeding with any such entry. The entry shall be deemed to be under all
of the provisions of the Lease except as to the covenants to pay rent.
Except to the extent of the active negligence or willful misconduct of
Landlord, or its authorized agents, contractors or employees, Landlord
shall not be liable in any way for any injury, loss or damage which may
occur to any such work being performed by Tenant, the same being solely at
Tenant's risk. In no event shall the failure of Tenant's contractors to
complete any work in the Premises extend the Commencement Date of this
Lease beyond the date that Landlord has completed its Tenant Improvement
work and tendered the Premises to Tenant.
I. Tenant hereby designates Xxxx Xxxxxxx, Telephone No. (000) 000-0000, as
its representative, agent and attorney-in-fact for the purpose of
receiving notices, approving
4
submittals and issuing requests for Changes, and Landlord shall be
entitled to rely upon authorizations and directives of such person(s) as
if given directly by Tenant. Tenant may amend the designation of its
construction representative(s) at any time upon delivery of written notice
to Landlord.
II. COST OF TENANT IMPROVEMENTS.
A. Landlord shall complete, or cause to be completed, the Tenant
Improvements, at the construction cost shown in the Bid Amount (subject to
the provisions of this Work Letter), in accordance with final Working
Drawings and Specifications approved by both Landlord and Tenant Landlord
shall pay towards the "Completion Cost" (as hereinafter defined) as
incurred a maximum of Four Hundred Forty-Three Thousand Two Hundred
Eighty-Nine Dollars ($443,289.00) ("Landlords Contribution"), based on
Sixteen Dollars and Fifty Cents ($16.50) per square foot of the Premises,
and Tenant shall be fully responsible for the remainder of the Completion
Cost ("Tenant's Contribution"). Landlord's Contribution shall only be used
for construction and installation of Standards incorporated into the
approved Working Drawings and Specifications.
B. The Completion Cost shall mean the following: (i) payments made to
architects, engineers and other third party consultants in connection with
the preparation of the Preliminary Plan and Working Drawings and
Specifications, (ii) permit fees and other sums paid to governmental
agencies, and (iii) costs of all labor and materials for construction of
the Tenant Improvement work in accordance with the approved Working
Drawings and Specifications. The Completion Cost shall also include an
administrative! supervision fee to be paid to Landlord or to Landlord's
management agent in the amount of five percent (5%) of all such costs..
Landlord, at its sole cost and expense, shall be responsible for and the
Completion Cost shall not include (and Tenant shall have no responsibility
for and Landlord's Contribution shall not be used for) the following: (a)
costs attributable to the "Building Shell Work" defined below; (b) costs
incurred to remove Hazardous Materials from the Premises or the Project;
(c) attorneys' fees incurred in connection with negotiation of
construction contracts, and attorneys' fees, experts' fees and other costs
in connection with disputes with third parties; (d) interest and other
costs of financing construction costs; (e) costs incurred as a consequence
of delay (unless the delay is a "Tenant Delay" as herein defined),
construction defects or default by the Selected Contractor; (1) costs
recoverable by Landlord upon account of warranties and insurance; (g)
restoration costs in excess of insurance proceeds as a consequence of
casualties; (h) penalties and late charges attributable to Landlord's
failure to pay construction costs; and (i) costs for which Landlord is
responsible as provided in Section 2.4 of the Lease.
C. Tenant shall pay to Landlord the amount of the Tenant's Contribution
estimated by Landlord ("Landlord's Final Estimate") following the final
bidding of the Tenant Improvement work and the execution of the
construction contract with the Selected Contractor, as follows: (i) fifty
percent (50%) of the Tenant's Contribution prior to the start of
construction, and (ii) fifty percent (50%) within ten (10) days following
notice from Landlord that the Tenant Improvements work is fifty percent
(50%) completed. If the actual Completion Cost of the Tenant Improvements
is greater than the Landlord's
5
Final Estimate because of Changes, or because of Tenant Delays, then
Tenant shall be responsible for all such additional costs; otherwise,
Landlord shall be responsible for such additional costs. The balance of
any sums not otherwise paid by Tenant shall be due and payable on or
before the Commencement Date of this Lease. If Tenant defaults in the
payment of any sums due under this Work Letter, Landlord shall (in
addition to all other remedies) have the same rights as in the case of
Tenant's failure to pay rent under the Lease.
III. SHELL BUILDING WORK.
Landlord shall complete, or cause to be completed at its sole cost and
expense, the shell Building work as described with particularity in the
Sections entitled "Site Work", "Building Shell" and "Lobby/Core
Improvements" of the Outline Specifications attached as Exhibit X-1 hereto
(collectively, the "Building Shell Work"). The Building Shell Work shall
be constructed in a good and workmanlike manner. All materials and
equipment furnished shall conform to the Outline Specifications (except to
the extent that Landlord shall otherwise reasonably determine), and shall
be of good quality. Landlord shall, promptly following notice from Tenant,
rectify any noncompliance with the foregoing obligations at its sole cost
and expense.
6
OUTLINE SPECIFICATION AND PROJECT DESCRIPTION
MIDTECH BUILDINGS
IRVINE SPECTRUM 6
THE IRVINE COMPANY
January 26, 1998
In addition to the Project Data and information provided on the attached
drawings sheets, the following should be considered:
SITE WORK
UTILITIES
a) Underground storm drain system including catch basins, man holes,.
and connections.
b) Interior roof drains at front of building, sheet metal downspouts at
rear of building.
c) Connect sewer from building to street. Include clean outs.
d) Install electrical transformer on pad and connect underground
conduits to building.
e) Provide for telephone connection to the street with underground
conduits between buildings.
f) Provide for underground natural gas to face of building.
g) Provide metered domestic building water connection to the street.
Include separate metered water connection for on-site landscape
irrigation.
h) Provide underground fire line/fire sprinkler water system including
detector check assembly, fire hose connections, post indicator
valves, fire hydrants, and main service into the site per local fire
authority requirements.
SITE CONCRETE
a) Provide concrete curbs, gutters and xxxxxx, in accordance with
standards of the local municipality.
b) Provide handicapped access curb ramps with 12" wide grooved warning
strips, non slip surface and slopes, crossfall and side slopes per
code.
c) Construct new driveway entrances per city standards including off
site work to patch as required.
d) Construct 6" reinforced concrete trucking pad as shown with sealed
expansion joints at approximately 24' on center and intermediate
sawcut control joints. Broom finish. Reinforcement as recommended by
Geotechnical report.
1
e) Construct 6 reinforced truck ramps and ramp walls. Ramp walls may be
tilt-up construction. Provide expansion joints, control joints,
broom finish. Paint walls to match building.
f) Construct exit stairs as shown of tilt-up construction and
reinforced concrete steps. Paint walls.
SITE LIGHTING
a) Provide additional pole mounted high pressure sodium cut-off light
fixtures around the site to achieve minimum lighting levels per city
security ordinance throughout site. Mount on 2' height concrete
footing base.
HARDSCAPE
a) Construct building entry plaza and lunch patio with textured
concrete finish on 4" concrete slab. Provide 1/2" sealed expansion
joints spaced apart as recommended by Geotechnical report.
b) Construct 4" concrete walks over sand base with score line and
expansion joints spaced apart as recommended by Geotechnical report,
slab to be finished with medium salt or accent finish.
AC PAVING
a) Provide standard paving over base at parking stalls and drive aisles
to be used only by cars as recommended by Geotechnical report.
b) Provide heavier duty paving over base at drive aisles which will be
used by trucks as recommended by Geotechnical report.
c) Paving to be finished smooth with no sealer.
STRIPING & SIGNAGE
a) Provide city standard parking lot striping double striped with
compact and carpool stall identification.
b) Stripe handicapped stalls with loading zone stripes and handicapped
symbol per code.
c) Provide other site signage for handicapped and accessibility
directions as required, as well as other required surface markings
and curb painting.
BUILDING SHELL
CONCRETE SLAB
a) Warehouse slab shall be 6' thick reinforced with wire mesh or
re-bars over gravel base for 3,000 psi strength. Reinforcement and
base. as recommended by Geotechnical report. Provide control joints
throughout. Control joints may be sawcut if completed within twenty
four hours of the pour.
2
b) Office area slab shall be 6" thick reinforced over base and sand
with visqueen vapor barrier centered in sand. Reinforcement,, base
and sand thickness as recommended by Geotechnical report.
COLUMNS/STRUCTURAL FRAMES
a) Standard section tube, pipe, or H steel roof columns full height
with welded plates and connectors to accept roof framing
structure.
b) Standard section tube or H steel braced "K" frames as needed for
lateral resistance.
ROOF STRUCTURE
a) Steel carrying girders with continuous connectors and shear straps
as needed, 24' clear height.
b) Steel trusses at 8' o.c. with steel connectors, straps and bracing.
c) Panelized roof with 2 x 4 sub purlins at 24" o.c. and 1/2"
structural grade OSB sheathing over Warehouse areas and 2 x 6
purlins over office areas.
d) Provide supports and blockouts for roof mounted equipment,
skylights, roof access hatch and roof drains per structural
engineer's recommendation.
ROOF FINISH
a) 4-ply built up fiberglass roof system (10 year warranty) complete
with fiber cants, cap sheet, walking pads, and base flashing.
SMOKEHATCH SKYLIGHTS
a) Provide 4' x 8' vented skylight smoke hatches with integral curb by
Bristolite or equal. 2% coverage of warehouse area.
b) Smokehatch skylight units shall have acrylic domes, and shall be
double domed burglar resistant or outfitted with security bars, as
required by local municipality.
WAREHOUSE CURTAINS
a) Provide separations to 50,000 SF.
b) 6' deep measured from underside of roof sheathing. Smoke curtains
made of 1/2" gyp. board on drywall frame or corrugated sheet metal
with top and bottom angle stiffener. Seal all penetrations.
WALLS
a) 7 1/2" thick concrete tilt-up full height and extended 18" below
finish floor. Walls to be 5' below finished floor at trucking pad
and elsewhere as indicated on grading and structural plans. Walls
may be thicker at panels with openings and at shear wall panels, or
may be thicker per structural engineer's requirements.
b) Add reinforcing steel for future expansion knock-outs as indicated.
c) Include 3/4" deep integral reveals and feature recessed wall panel
areas at exterior side.
3
d) The exterior side of wall panels shall be sacked and patched as
necessary to result in a smooth, uniform painted surface. Patching
and sacking will also be performed on the edges and interior
surfaces of door and window openings, and any accents or reveals to
provide the same smooth , uniform painted surface as the exterior
walls.
e) Interior shell walls to be 3 5/8" wide 25 gauge or 6" wide 116 gauge
steel studs as required at 24" o.c. or 2 x wood studs at 16" o.c.
where indicated.
FIRE SPRINKLER
a) Provide separate zoned system as best suited for this size and type
of building.
b) Provide .45 1 3,000 SF density system throughout entire wareh6use
area.
c) Ceiling drops into lobbies or core restrooms shall be fitted with
adjustable nipples to allow for future adjustment.
d) Ceiling drops into tenant improved areas by tenant.
FOOTINGS
a) Perimeter walls and interior shear walls to be supported by
continuous type concrete footings. Step as necessary to conform with
exterior finish grades.
b) Interior columns to be supported on concrete spread pad footings.
c) Dry pack under all walls and base plates.
MISC. STEEL
a) Provide channel or double angle truck door jambs to 4' height and
angle sill edge at all truck doors.
b) Trellis to have structural steel perimeter members and perforated
metal panel in-fill, painted finish.
c) Provide roof access ladder and roof hatch.
WINDOWS
a) Provide 2" x 4 112" aluminum store front mullion system, front
glazed with wallboard adapters at perimeter walls; Kynar or Duranar
finish.
b) Glazing to be 3/8" Laminated Tinted Reflective Glass by Spectrum.
Guardian. PPG or equal.
c) All first floor glass to be tempered. Tempered elsewhere per code.
Provide spandrel glazing at shear wall and between floor space.
where occurs.
MAN DOORS
a) Provide 3' x 7' 18 ga. hollow metal doors and frames at all
warehouse perimeter doors. Provide drip at top exterior. Paint
finish.
b) Hardware to include 3 ball bearing hinges, lever action exit from
interior, key only from exterior, door stop, self closure, threshold
and seals.
4
TRUCK DOORS
a) Grade level truck doors to be 2 part vertical lift type with painted
finish: Designed for 20 lb. wind load. Manually operated. Provide
minimum air infiltration seals and locks.
b) Dock high truck doors to be overhead sectional lift type with
painted finish. Designed for 20 lb. wind load. Manually operated.
Provide minimum air infiltration seals and locks.
ENTRY DOORS
a) Pair 3' x 9' narrow stile aluminum entrance doors with 1/4" tempered
glass.
b) Provide door hardware including recessed floor closer, panic
hardware, key entry, threshold, and pulls.
GLASS EXIT DOORS
a) 3' x 9' narrow stile aluminum entrance door with 1/4" tempered
reflective glass.
b) Provide door hardware including overhead closer, panic hardware,
threshold, seals, and key entry.
MEZZANINE FLOOR
a) Steel wide flange support beams with 3x wood plates.
b) Wood TJI solid web trusses maximum 20" deep with end hangers and
cross bracing.
c) 3/4" structural plywood subfloor.
d) 1 %" thick gypsum concrete floor fill.
e) Provide all anchors, ties, straps, and block outs for ducts as
needed.
f) Design load of floor to be 80 lb. reduced live load plus 20lb.
partition load.
STAIRS
a) Wood framed stair construction with 2 x 16 cut stringers at 12" o.c.
and 3/4" plywood over treads and risers. Treads / risers shall be
glued and nailed to each xxxxxxxx. Platform framed landings.
b) Enclosure walls to be wood studs of 1-hour rated construction to
roof with Type "X" gyp. board finish each side.
ELECTRICAL/COMMUNICATIONS
a) Service to building will be 277/480 volt, three phase, four wires.
b) 1600 amp or 2000 amp 480 volt 3 phase 4 wire future service provided
for, with additional conduit stubs for future upgrades. (Switchgear
and tenant panels installed as part of the tenant improvement scope
of work).
c) Transformer on grade with bus duct per electric utility purveyor.
d) House meter installed to separately meter common interior and
exterior electrical usage.
e) PacBell service conduits provided to telephone backboard in main
electrical room at each building. Fiber optic service available to
site.
f) 2 - 2" conduits provided to each building for future third party
telephone service use.
5
g) 1 -4" conduit between buildings for future inter-building
communications.
DOCK EQUIPMENT
a) Provide a pair of rubber dock bumpers 10" x 11" x 6" thick at each
dock high door.
LOBBY I CORE IMPROVEMENTS
WALL FRAMING
b) 25 gauge steel studs at 24" o.c. with top and bottom tracks and
screw connections. 3-5/8" throughout except 6" at some plumbing
walls. Provide wood studs at stairwell walls.
c) Use 2 1/2" furring at all improved area concrete exterior walls and
all improved area columns to 6" above finish ceiling height.
d) Provide R-11 Fiberglass Batt insulation at exterior concrete walls
within furring space: full height in improved areas and restroom
walls where indicated.
CEILING
a) Use light gauge steel studs or steel channels at solid drywall
ceilings in lobby/core and restrooms, etc., 6" deep at 24" o.c. or
as needed' per span. Provide bracing. Gypsum board ceilings at
lobby/core and restrooms to be painted per finish schedule, with
color to match standard wall color.
INSULATION
a) Provide R-1 9 fiberglass batt insulation above ceiling or at the
underside of roof structure directly over improved areas, and as
required per acoustical analysis recommendations.
DRYWALL
a) 5/8" drywall throughout all interior walls and over furring at
improved area exterior walls.
b) Type "X" drywall all core walls, corridors.
c) Type "X" drywall at 1-hour rated stair xxxxx.
d) Use 5/8" greenboard at restrooms and janitor rooms.
e) All drywall at lobbies to receive painted finish of one standard
color. Color options:
a. Xxxxxxxx Xxxxx #960
x. Xxxxxx #484.
CARPET
a) Provide Bentley Xxxxx "Pebble Point" textured loop carpeting at
building entry lobbies. Color options:
a. PB328-6624 Bone
b. XX00X-0000 Xxxxxxx
6
c. PB32B-6622 Ash Green
d. XX00X-0000 Xxxxxxxx
TILE
b) Provide 2" x 2" ceramic tile on thin set at all office area rest
room floors; slope to floor drain. Color: Daltile "Almond" DK-35.
c) Provide 4" x 4" full height glazed ceramic tile at all wet walls in
restroom. Daltile Almond.
DOORS
a) Provide solid core 1-3/4", 3' x 9' plain sliced white oak with
Western Integrated clear anodized aluminum frame.
b) Provide 20 minute rating for all corridor doors.
FINISH HARDWARE
a) Schlage "L" series dull chrome finish hardware throughout. Provide 3
ball bearing hinges. hardware stops, silencers, and concealed auto
flush bolts for pairs.
b) Provide panic hardware at all rated doors to corridors, etc.
c) Provide kick plates, push pulls arid handicapped signage at
restrooms.
TOILET COMPARTMENTS
a) Standard height floor mounted overhead braced metal toilet
partitions throughout all restrooms by Global Steel Products
Corporation Spectra 21 or equal. Baked enamel color to be Glogard
#2103 Almond.
TOILET ROOMS
a) Standard accessories for toilet paper, trash, seat covers, feminine
napkins, soap, mirrors, etc. by Bobrick or equal for all restrooms.
Recessed and semi-recessed.
b) Warehouse toilet to have Xxxxxxxxx Classic Corlon Seagate" #86526
Oyster sheet vinyl flooring and Marlite or equal wainscot, 4' high.
c) Plastic laminate lavatory top with self-rimming porcelain sink(s) -
Nevamar MR-7-1T.
CABINETS
a) All restrooms to have lavatory counters/splashes with angle supports
and laminated plastic finish.
b) Plastic laminate finish options:
a. Nevamar, Spa White, Textured #S-7-48T
b. Nevamar, Smoky White, Textured #S-7-27T
7
PAINT
a) All surfaces shall be painted unless noted to be finished otherwise.
b) A standard spec. for paint such as by Xxxxxx or Xxxxxxxx Xxxxx shall
be followed for all types of surfaces and conditions.
c) Semi-gloss at restrooms, storage rooms or as otherwise noted.
HVAC
a) Rooftop package units as required for lobby/core and restroom areas.
Units shall be mounted on factory supplied steel curbs, or shall be
mounted on curbs constructed per structural engineer's
recommendation, and a full sheet metal cap. All sides of curbs shall
be provided with fiber cant strips prior to roofing or re-roofing.
b) Thermostats set points 55 degrees F, control heating no more than
70 degrees F and cooling not less than 78 degrees F.
c) Ceiling supply and return diffusers, perforated face in ceiling.
d) Exhaust fans provided at all restrooms and mechanical rooms,
controlled by timer in electrical room.
e) Roof loading criteria 1,600 lbs at first 1/3 of truss spans. No more
than one unit at every other truss at each end of truss.
LIGHTING
a) Double switch per Title 24. paired in double gang box. white plastic
cover. 42" AFF. to switch centerline. 2x4 fluorescent fixture with
prismatic lens. Provide parabolic lens at lobby I core fixtures.
b) Exit signs to be internally illuminated, brushed stainless steel
face.
OUTLETS
a) Power: 15 amps 125 volt specification grade duplex receptacle
mounted vertically, 15 AFF. to centerline, white plastic coverplate.
ELEVATOR
a) Two stop 2,500 lb. Capacity hydraulic passenger elevator with
standard finished cab, finished elevator shaft, elevator equipment
and necessary mechanical/electrical devices associated with the
installation.
FIRE SPRINKLER/PROTECTION
a) Provide standard office type system at lobby/core areas
semi-recessed heads, chrome finish.
b) Provide fire extinguisher and fire extinguisher cabinets as required
by fire department.
8
TENANT IMPROVEMENTS
WALL FRAMING
a) 25 gauge steel studs at 24" o.c. with top and bottom tracks and
screw connections. 3-5/8" throughout except 6 at some plumbing
walls. Provide wood studs at stairwell walls.
b) Use 2 1/2 furring at all office area concrete exterior walls and all
office area columns to 6 above finish ceiling height.
c) Provide R-11 Fiberglass Batt insulation at exterior concrete walls
within furring space: full- height in office improved areas and
restroom wails where indicated.
CEILING
a) 2' x 4' suspended ceiling grid system in standard white finish by
Xxxx or equal. Include all seismic anchors, compression struts and
diagonal wires per code.
b) Second Look Il #2776 white scored tile on Suprafine 9/16" T-bar
grid.
INSULATION
a) Provide R-1 9 fiberglass batt insulation at the underside of roof
structure directly over improved tenant office areas, and as
required per acoustical analysis recommendations.
DRYWALL
b) 5/8" drywall throughout all interior walls and over furring at
office area exterior walls.
c) Type X" drywall all corridors, lunch room walls, and conference room
walls.
d) Type X" drywall at 1-hour rated stair xxxxx and conference room, and
1-hour rated floor/ceiling at conference room.
e) Use 5/8" greenboard at restrooms and janitor rooms.
f) All drywall at lobbies to receive painted finish of one standard
color. Color options:
a. Xxxxxxxx Xxxxx #960
x. Xxxxxx #484.
CARPET
a) Provide Designweave 971 Tempest Classic - direct glue down carpet at
standard office areas. and corridors as indicated on the finish
schedule. Color options:
a. 836 "Graphite"
b. 226 "Buckwheat"
c. 236 "Sable"
d. 968 "Silverwing"
e. 967 "Platinum"
9
VINYL FLOORING & BASE
a) Provide 12 x 12 VCT Mannington Essentials. Color options:
a. 129 Putty
b. 131 Oyster White
c. 112 Pewter
d. 122 Glacier where indicated in the finish schedule. Include
carpet edge trim.
b) Provide rubber stair treads at exit stair well stairs.
c) Provide 2 %" Xxxxx rubber base at all walls. Color options:
a. "Pearl 137P
b. "Bluish White" '168P. Provide rubber stair base at all stairs.
Note: Coordinated Office Tenant Improvement finishes to be per the
following grid:
Carpet a, b or e d or e
VCT a or b c or d
Paint a b
Base x x
X. Xxx a b
DOORS
a) Provide solid core 1-3/4", 3' x 9' plain sliced white oak with
Western Integrated clear anodized aluminum frame.
b) Provide 20 minute rating for all corridor doors.
OFFICE SIDELIGHTS
a) All interior offices to have sidelight glazing adjacent to office
entry door, minimum 2' wide x door height. Western Integrated, clear
anodized aluminum frame with clear tempered glass.
FINISH HARDWARE
a) Schlage "L" series dull chrome finish hardware throughout. Provide 3
ball bearing hinges, hardware stops, silencers, and concealed auto
flush bolts for pairs.
b) Provide panic hardware at all rated doors to corridors, etc.
c) Provide kick plates, push pulls and handicapped signage at
restrooms.
10
CABINETS
a) Coffee bar to have 8 lineal feet of plastic laminate faced upper and
lower cabinets, flush overlay custom grade design with single
stainless steel sink and garbage disposal at one location per
tenant, adjacent to restrooms and / or building waste line.
b) Plastic laminate finish options:
a. Nevamar, Spa White, Textured #S-7-48T
b. Nevamar. Smoky White. Textured #S-7-27T
MINIBLINDS
a) All exterior windows to have standard Meriak Industries PVC vertical
blinds throughout. and all interior glass sidelites to have standard
Bali Classic 1" horizontal miniblinds.
PAINT
a) All surfaces shall be painted unless noted to be finished otherwise.
b) A standard spec. for paint such as by Xxxxxx or Xxxxxxxx Xxxxx shall
be followed for all types of surfaces and conditions.
c) Eggshell wall paint finish at standard offices.
a. Xxxxxxxx Xxxxx #960
x. Xxxxxx #484 City Lights
d) Semi-gloss at lunch room, restrooms, storage rooms or as otherwise
noted.
HVAC
a) Rooftop package units as required for improved areas. Units shall be
mounted on factory. supplied steel curbs, or shall be mounted on
curbs constructed per structural engineer's recommendation, and a
full sheet metal cap. All sides of curbs shall be provided with
fiber cant strips prior to roofing or re-roofing.
b) Thermostats set points 55 degrees F, control heating no. more than
70 degrees F and cooling not less than 78 degrees F.
c) Ceiling supply and return diffusers, perforated face in 2x4 ceiling
grid.
d) Exhaust fans provided at all restrooms and mechanical rooms,
controlled by timer in electrical room.
e) Roof loading criteria 1,600 lbs at first 1/3 of truss spans. No more
than one unit at every other truss at each end of truss.
OFFICE LIGHTING
a) Double switch per Title 24, paired in double gang box, white plastic
cover, 42" AFF. to switch centerline. 2x4 fluorescent fixture with
prismatic lens.
b) Exit signs to be internally illuminated, brushed stainless steel
face.
ELECTRICAL
a) Electrical switchgear and tenant panels installed as part of tenant
improvements.
b) Power: 15 amps 125 volt specification grade duplex receptacle
mounted vertically, 15" AFF, to centerline,, white plastic
coverplate.
11
c) Telephone: Single gang box with mud ring and pull string, mounted
vertically, 15" AFF. to centerline, coverplate by telephone company.
Conduit to grid:
FIRE SPRINKLER/PROTECTION
a) Provide standard office type system at office areas semi-recessed
heads, chrome finish.
b) Provide fire extinguisher and fire extinguisher cabinets as required
by fire department.
WAREHOUSE CURTAINS
a) Provide separations to 10,000 SF or as required by fire department.
b) 6' deep measured from underside of roof sheathing. Smoke curtains
made of 1/2" gyp. board on drywall frame or corrugated sheet metal
and bottom angle stiffener. Seal all penetrations.
WAREHOUSE LIGHTING
a) 400 w. metal halide high pressure sodium aluminum high bay fixtures
for 20 fc general warehouse lighting.
b) Exit signs to be internally illuminated, brushed stainless steel
face.
DOCK EQUIPMENT
a) Recessed mechanical dock levelers (25000 lb. capacity) as
manufactured by Xxxxxx Dock Systems or equal.
MECHANICAL SCREEN
b) Vertical-ribbed corrugated metal siding equipment screen (size as
indicated) attached to steel angle frames, and braced to roof. Paint
to match building panels.
CONCRETE SLAB FINISHES
c) Warehouse area slabs to be sealed with "Cementone" clear water-based
concrete sealer as manufactured by X.X. Xxxxxxxx Company.
d) Warehouse floor joints/sawcuts shall be filled with Chemtron CP-2010
joint filler as manufactured by Chemtron Polymers, Inc., Lynnwood,
WA.
12
EXHIBIT Y
[IRVINE SPECTRUM 6 WAREHOUSE/MID TECH PROJECT SITE PLAN]
1
FIRST AMENDMENT TO LEASE
I. PARTIES AND DATE.
This First Amendment to Lease (the "Amendment") dated October 24, 2001, is
by and between THE IRVINE COMPANY ("Landlord"), and ALSIUS CORPORATION, a
California corporation ("Tenant").
II. RECITALS.
On March 16, 1999, Landlord and Tenant entered into a lease ("Lease") for
space in a building located at 00000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxx ("Premises").
Landlord and Tenant each desire to modify the Lease to extend the Lease
Term, adjust the Basic Rent, and make such other modifications as are set forth
in "III. MODIFICATIONS" next below.
III. MODIFICATIONS.
A. Basic Lease Provisions. The Basic Lease Provisions are hereby amended
as follows:
1. Item 5 is hereby deleted in its entirety and substituted
therefore shall be the following:
"5. Lease Term: The Term of this Lease shall expire at
midnight on December 31, 2003."
2. Item 6 is hereby amended by adding the following:
"Basic Rent: Commencing July 1, 2002, the Basic Rent shall be
Twenty Two Thousand Two Hundred Ninety-Nine Dollars
($22,299.00) per month, based on $.83 per rentable square
foot."
3. Item 12 is hereby deleted in its entirety and substituted
therefore shall be the following:
"12. Address for Payments and Notices:
LANDLORD
THE IRVINE COMPANY
c/o Insignia/ESG, Inc.
00 Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
with a copy of notices to:
1
THE IRVINE COMPANY
Office Properties Division
X.X. Xxx 0000
Xxxxxxx Xxxxx, XX 00000-0000
Attn: Senior Vice President, Operation
Office Properties
TENANT
ALSIUS CORPORATION
00000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
E. Acceptance of Premises. Tenant acknowledges that the lease of the
Premises pursuant to this Amendment shall be on an "as-is" basis without further
obligation on Landlord's part as to improvements whatsoever.
F. Landlord's Responsibilities. The reference in Subsection 2.4(iii) of
the Lease to "during the initial 36-month Term of the Lease," is hereby amended
to "during the Term of this Lease expiring on December 31, 2003."
G. Right to Extend Lease. The provisions of Section 3.3 of the Lease shall
remain in full force and effect, and shall be exercised, if at all, by the
delivery of the "Commitment Notice" to Landlord to less than nine (9) months or
more than twelve (12) months prior to the expiration of the Term as extended by
this Amendment.
H. Project Costs. The definition of "Project Costs" in Section 4.2(g) of
the Lease is hereby amended to include the establishment of reasonable reserves
for the replacement and/or repair of the Building as well as for Common Area
improvements.
IV. GENERAL.
A. Effect of Amendments. The Lease shall remain in full force and effect
except to the extent that it is modified by this Amendment.
B. Entire Agreement. This Amendment embodies the entire understanding
between Landlord and Tenant with respect to the modifications set forth in "III.
MODIFICATIONS" above and can be changed only by a writing signed by Landlord and
Tenant.
C. Counterparts. If this Amendment is executed in counterparts, each is
hereby declared to be an original; all, however, shall constitute but one and
the same amendment. In any action or proceeding, any photographic, photostatic,
or other copy of this Amendment may be introduced into evidence without
foundation.
D. Defined Terms. All words commencing with initial capital letters in
this Amendment and defined in the Lease shall have the same meaning in this
Amendment as in the Lease, unless they are otherwise defined in this Amendment.
2
E. Corporate and Partnership Authority. If Tenant is a corporation or
partnership, or is comprised of either or both of them, each individual
executing this Amendment for the corporation or partnership represents that he
or she is duly authorized to execute and deliver this Amendment on behalf of the
corporation or partnership and that this Amendment is binding upon the
corporation or partnership in accordance with its terms.
F. Attorneys' Fees. The provisions of the Lease respecting payment of
attorneys' fees shall also apply to this Amendment.
V. EXECUTION.
Landlord and Tenant executed this Amendment on the date as set forth in
"I. PARTIES AND DATE" above.
LANDLORD: TENANT:
ALSIUS CORPORATION,
THE IRVINE COMPANY a California corporation
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------
Xxxxxxx X. Xxxxxxx By: /s/ Xxxx Xxxxx
President, Office Properties --------------------------
Title: V.P. MFG.
-----------------------
By: /s/ Xxxxxxxxxxx Xxxxx By: /s/ Illegible
------------------------ --------------------------
Xxxxxxxxxxx Xxxxx Title: Exec V.P. & C.F.O.
Vice President, Office Properties -----------------------
3
SECOND AMENDMENT TO LEASE
I. PARTIES AND DATE.
This Second Amendment to Lease (the "Amendment") dated July 16, 2003, is
by and between THE IRVINE COMPANY ("Landlord"), and ALSIUS CORPORATION, a
California corporation ("Tenant").
II. RECITALS.
On March 16, 1999, Landlord and Tenant entered into a lease ("Lease") for
space in a building located at 00000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxx ("Premises"), which lease was amended by a First Amendment to Lease
dated October 24, 2001 (as amended, the "Lease").
Landlord and Tenant each desire to modify the Lease to extend the Lease
Term, adjust the Basic Rent, and make such other modifications as are set forth
in "III. MODIFICATIONS" next below.
III. MODIFICATIONS.
A. Basic Lease Provisions. The Basic Lease Provisions are hereby amended
as follows:
1. Item 5 is hereby deleted in its entirety and substituted
therefore shall be the following:
"5. Lease Term: The Term of this Lease shall expire at
midnight on December 31, 2004."
2. Item 6 is hereby amended by adding the following:
"Basic Rent: Twenty Thousand Six Hundred Eighty-Seven Dollars
($20,687.00) per month, based on $.77 per rentable square
foot."
3. Item 12 is hereby amended by deleted Landlord's address for
payments and notices and substituted therefore shall be the
following:
"LANDLORD
THE IRVINE COMPANY
dba Office Properties
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Vice President, Operations, Technology Portfolio"
with a copy of notices to:
1
THE IRVINE COMPANY
dba Office Properties
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Senior Vice President, Operation
Office Properties
B. Landlord's Responsibilities. The provisions in Section 2.4 of the Lease
entitled "Landlord's Responsibilities" shall remain in full force and effect
during the Term of the Lease as extended by the provisions of this Amendment.
C. Right to Extend Lease. The provisions of Section 3.3 of the Lease
entitled "Right to Extend this Lease" shall remain in full force and effect,
with the "expiration date" as provided in said Section 3.3 being the expiration
date of the Term as extended by the provisions of this Amendment.
D. Acceptance of Premises. Tenant acknowledges that the lease of the
Premises pursuant to this Amendment shall be on an "as-is" basis without further
obligation on Landlord's part as to improvements whatsoever.
IV. GENERAL.
A. Effect of Amendments. The Lease shall remain in full force and effect
except to the extent that it is modified by this Amendment.
B. Entire Agreement. This Amendment embodies the entire understanding
between Landlord and Tenant with respect to the modifications set forth in "III.
MODIFICATIONS" above and can be changed only by a writing signed by Landlord and
Tenant.
C. Counterparts. If this Amendment is executed in counterparts, each is
hereby declared to be an original; all, however, shall constitute but one and
the same amendment. In any action or proceeding, any photographic, photostatic,
or other copy of this Amendment may be introduced into evidence without
foundation.
D. Defined Terms. All words commencing with initial capital letters in
this Amendment and defined in the Lease shall have the same meaning in this
Amendment as in the Lease, unless they are otherwise defined in this Amendment.
E. Corporate and Partnership Authority. If Tenant is a corporation or
partnership, or is comprised of either or both of them, each individual
executing this Amendment for the corporation or partnership represents that he
or she is duly authorized to execute and deliver this Amendment on behalf of the
corporation or partnership and that this Amendment is binding upon the
corporation or partnership in accordance with its terms.
F. Attorneys' Fees. The provisions of the Lease respecting payment of
attorneys' fees shall also apply to this Amendment.
V. EXECUTION.
2
Landlord and Tenant executed this Amendment on the date as set forth in
"I. PARTIES AND DATE" above.
LANDLORD: TENANT:
ALSIUS CORPORATION,
THE IRVINE COMPANY a California corporation
By: /s/ Xxxxxx X. XxXxxx By:/s/ Xxxx Xxxxx
------------------------ ------------------------
Xxxxxx X. XxXxxx, Senior Vice President Name: Xxxx Xxxxx
Leasing, Office Properties Title: VP Mfg.
By: /s/ Xxxxxx X. Xxxxxxx By:/s/ Xxxx Xxxxxxx
------------------------ ------------------------
Xxxxxx X. Xxxxxx, Vice President Name: Xxxx Xxxxxxx
Operations, Office Properties Title: CEO
3
THIRD AMENDMENT TO LEASE
I. PARTIES AND DATE.
This Third Amendment to Lease (the "Amendment") dated July 21, 2004, is by
and between THE IRVINE COMPANY ("Landlord"), and ALSIUS CORPORATION, a
California corporation ("Tenant").
II. RECITALS.
On March 16, 1999, Landlord and Tenant entered into a lease ("Lease") for
space in a building located at 00000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxx ("Premises"), which lease was amended by a First Amendment to Lease
dated October 24, 2001, and by a Second Amendment to Lease dated July 16, 2003
(as amended, the "Lease").
Landlord and Tenant each desire to modify the Lease to extend the Lease
Term, adjust the Basic Rent, and make such other modifications as are set forth
in "III. MODIFICATIONS" next below.
III. MODIFICATIONS.
A. Basic Lease Provisions. The Basic Lease Provisions are hereby amended
as follows:
1. Item 5 is hereby deleted in its entirety and substituted
therefore shall be the following:
"5. Lease Term: The Term of this Lease shall expire at
midnight on December 31, 2005."
2. Item 6 is hereby amended by adding the following:
"Commencing January 1, 2005, the Basic Rent shall continue to
be Twenty Thousand Six Hundred Eight-Seven ($20,687.00) per
month, based on $.77 per rentable square foot."
B. Landlord's Responsibilities. The provisions in Section 2.4 of the Lease
entitled "Landlord's Responsibilities" shall remain in full force and effect
during the Term of the Lease as extended by the provisions of this Amendment.
C. Right to Extend Lease. The provisions of Section 3.3 of the Lease
entitled "Right to Extend this Lease" shall remain in full force and effect,
with the "expiration date" as provided in said Section 3.3 being the expiration
date of the Term as extended by the provisions of this Amendment.
D. Acceptance of Premises. Tenant acknowledges that the lease of the
Premises pursuant to this Amendment shall be on an "as-is" basis without further
obligation on Landlord's part as to improvements whatsoever.
1
IV. GENERAL.
A. Effect of Amendments. The Lease shall remain in full force and effect
except to the extent that it is modified by this Amendment.
B. Entire Agreement. This Amendment embodies the entire understanding
between Landlord and Tenant with respect to the modifications set forth in "III.
MODIFICATIONS" above and can be changed only by a writing signed by Landlord and
Tenant.
C. Counterparts. If this Amendment is executed in counterparts, each is
hereby declared to be an original; all, however, shall constitute but one and
the same amendment. In any action or proceeding, any photographic, photostatic,
or other copy of this Amendment may be introduced into evidence without
foundation.
D. Defined Terms. All words commencing with initial capital letters in
this Amendment and defined in the Lease shall have the same meaning in this
Amendment as in the Lease, unless they are otherwise defined in this Amendment.
E. Corporate and Partnership Authority. If Tenant is a corporation or
partnership, or is comprised of either or both of them, each individual
executing this Amendment for the corporation or partnership represents that he
or she is duly authorized to execute and deliver this Amendment on behalf of the
corporation or partnership and that this Amendment is binding upon the
corporation or partnership in accordance with its terms.
F. Attorneys' Fees. The provisions of the Lease respecting payment of
attorneys' fees shall also apply to this Amendment.
V. EXECUTION.
Landlord and Tenant executed this Amendment on the date as set forth in
"I. PARTIES AND DATE" above.
LANDLORD: TENANT:
THE IRVINE COMPANY ALSIUS CORPORATION,
a California corporation
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------- By: /s/ Xxxx Xxxxx
Xxxxxxx X. Xxxxxxx, President ------------------------
Office Properties Name: Xxxx Xxxxx
Title: VP Mfg.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx Xxxxxxx
------------------------- ------------------------
Xxxxxx X. Xxxxxxx, Vice President Name: Xxxxxxx Xxxxxxx
Operations, Office Properties Title: CEO
2
FOURTH AMENDMENT TO LEASE
I. PARTIES AND DATE.
This Second Amendment to Lease (the "Amendment") dated September 20, 2005,
is by and between THE IRVINE COMPANY ("Landlord"), and ALSIUS CORPORATION, a
California corporation ("Tenant").
II. RECITALS.
On March 16, 1999, Landlord and Tenant entered into a lease ("Lease") for
space in a building located at 00000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxx ("Premises"), which lease was amended by a First Amendment to Lease
dated October 24, 2001, and by a Second Amendment to Lease dated July 16, 2003,
and by a Third Amendment to Lease dated July 21, 2004. The foregoing lease, as
so amended, is hereinafter referred to as the "Lease."
Landlord and Tenant each desire to modify the Lease to extend the Lease
Term, adjust the Basic Rent, and make such other modifications as are set forth
in "III. MODIFICATIONS" next below.
III. MODIFICATIONS.
A. Basic Lease Provisions. The Basic Lease Provisions are hereby amended
as follows:
1. Item 5 is hereby deleted in its entirety and substituted
therefore shall be the following:
"5. Lease Term: The Term of this Lease shall expire at
midnight on December 31, 2006."
2. Item 6 is hereby amended by adding the following:
"Commencing January 1, 2006, the Basic Rent shall be
Twenty-Two Thousand Two Hundred Ninety-Nine Dollars
($22,299.00) per month, based on $.83 per rentable square
foot."
3. Item 12 is hereby amended by deleted Landlord's address for
payments and notices and substituted therefore shall be the
following:
"LANDLORD
THE IRVINE COMPANY
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attn: Senior Vice President, Operations
3
Irvine Office Properties
with a copy of notices to:
THE IRVINE COMPANY
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attn: Vice President, Operations
Irvine Office Properties, Technology Portfolio"
B. Right to Extend Lease. The provisions of Section 3.3 of the Lease
entitled "Right to Extend this Lease" shall remain in full force and effect,
with the "expiration date" as provided in said Section 3.3 being the expiration
date of the Term as extended by the provisions of this Amendment.
C. Landlord's Responsibilities. The provisions in Section 2.4(iii) of the
Lease shall remain in full force and effect during the Term of the Lease as
extended by the provisions of this Amendment.
D. Maintenance and Repair. Sections 7.1 and 7.2 of the Lease are hereby
amended to provide that Landlord's obligation to provide service, maintenance
and repair to air condition, heating and ventilating equipment servicing the
Premises shall not apply to supplemental HVAC system(s), if any, installed by
Tenant and servicing only the Premises, and that Landlord shall maintain in good
repair, as a "Project Cost," all Building exterior glass.
E. Acceptance of Premises. Tenant acknowledges that the lease of the
Premises pursuant to this Amendment shall be on an "as-is" basis without further
obligation on Landlord's part as to improvements whatsoever.
IV. GENERAL.
A. Effect of Amendments. The Lease shall remain in full force and effect
except to the extent that it is modified by this Amendment.
B. Entire Agreement. This Amendment embodies the entire understanding
between Landlord and Tenant with respect to the modifications set forth in "III.
MODIFICATIONS" above and can be changed only by a writing signed by Landlord and
Tenant.
C. Counterparts. If this Amendment is executed in counterparts, each is
hereby declared to be an original; all, however, shall constitute but one and
the same amendment. In any action or proceeding, any photographic, photostatic,
or other copy of this Amendment may be introduced into evidence without
foundation.
D. Defined Terms. All words commencing with initial capital letters in
this Amendment and defined in the Lease shall have the same meaning in this
Amendment as in the Lease, unless they are otherwise defined in this Amendment.
4
E. Corporate and Partnership Authority. If Tenant is a corporation or
partnership, or is comprised of either or both of them, each individual
executing this Amendment for the corporation or partnership represents that he
or she is duly authorized to execute and deliver this Amendment on behalf of the
corporation or partnership and that this Amendment is binding upon the
corporation or partnership in accordance with its terms.
Attorneys' Fees. The provisions of the Lease respecting payment of attorneys'
fees shall also apply to this Amendment.
V. EXECUTION.
Landlord and Tenant executed this Amendment on the date as set forth in
"I. PARTIES AND DATE" above.
LANDLORD: TENANT:
ALSIUS CORPORATION,
THE IRVINE COMPANY a California corporation
By: /s/ Xxxxxx X. Case By: /s/ Xxxx Xxxxx
----------------------------- --------------------------
Xxxxxx X. Case, Senior Vice President Name: Xxxx Xxxxx
Leasing, Office Properties Title: VP Mfg.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxx Xxxxxxx
----------------------------- --------------------------
Xxxxxx X. Xxxxxx, Vice President Name: Xxxx Xxxxxxx
Operations Title: CEO
5
CHICAGO TITLE COMPANY This document was electronically
recorded by CHICAGO TITLE COMPANY
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO: Recorded in Official Records,
County of Orange Xxxx X.
Xxxxxxxxx, Clerk-Recorder
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq. [RECORDING BAR CODE AND NUMBER]
RE: NYL Irvine Spectrum VII Portfolio
(00000 Xxxxxx Xxxxxx Xx., Xxxxx 000)
(Space Above for Recorder's Use Only)
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
NOTICE: THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
RESULTS IN YOUR LEASEHOLD ESTATE IN THE PROPERTY BECOMING SUBJECT TO AND OF
LOWER PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT.
THIS SUBORDINATION NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this
"AGREEMENT") is entered into as of March 16,2001, by and between NEW YORK LIFE
INSURANCE COMPANY, a New York mutual insurance company ("BENEFICIARY"), ALSIUS
CORPORATION, a California corporation ("LESSEE"), and THE IRVINE COMPANY, a
Delaware corporation ("Lessor").
WITNESSETH
WHEREAS, Lessee has entered into that certain lease dated March 16,
1999,(as amended and as may be further amended or modified from time to time,
the "Lease"), with Lessor covering certain space (the "PREMISES") located in and
upon the real property described in Exhibit A attached hereto, and
WHEREAS, Beneficiary has made a first mortgage loan (the "LOAN") to
Lessor, secured by a first lien Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing (the "DEED OF TRUST") covering the Premises, which
requires that the Lease is subordinated to the lien of the Deed of Trust, and
1
WHEREAS, the parties hereto desire expressly to subordinate the
Lease to the lien of the Deed of Trust, it being a covenant of Lessor in favor
of Beneficiary that the. lien and charge of the Deed of Trust be unconditionally
and at all times prior and superior to the leasehold interests and estates
created by the Lease, and
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and of other good and valuable consideration the receipt and sufficiency
of which are hereby acknowledged, the parties hereby agree as follows:
1. Notwithstanding anything to the contrary set forth in the Lease,
the Lease and the leasehold estate created thereby and all of Lessee's rights
thereunder shall be and shall at all times remain subject, subordinate and
inferior to the Deed of Trust and the lien thereof and all rights of Beneficiary
thereunder and to any and all renewals, modifications, consolidations,
replacements and extensions thereof.
2. Lessee hereby declares, agrees and acknowledges that:
(a) Beneficiary would not make the Loan without this
Agreement: and
(b) Beneficiary, in making disbursements pursuant to the
agreements evidencing and securing the Loan, is under no obligation or duty to
oversee or direct the application of the proceeds of such disbursements and such
proceeds may be used by Lessor for purposes other than improvement of the
Premises.
3. In the event of foreclosure of the Deed of Trust, or upon a sale
of the property encumbered thereby pursuant to the Trustee's power of sale
contained therein, or upon a transfer of said property by deed in lieu of
foreclosure, then so long as Lessee is not in default under any of the terms,
covenants, or conditions of the Lease, or otherwise at Beneficiary's election,
the Lease shall continue in full force and effect as a direct lease between the
succeeding owner of the property and Lessee, upon and subject to all of the
terms, covenants and conditions (except as set forth in Section 7 hereof) of the
Lease for the balance of the term of the Lease. Lessee hereby agrees to attorn
to and accept any such successor owner as landlord under the Lease, and to be
bound by and perform all of the obligations imposed by the Lease, and
Beneficiary or any such successor owner of the property will not disturb the
possession of Lessee. and will be bound by all of the obligations imposed by the
Lease upon the landlord thereunder; provided, however, that Beneficiary, or any
purchaser at a trustee's or sheriff's sale or any successor owner of the
property shall not be:
(a) liable for any act or omission of a prior landlord
(including Lessor); or
(b) subject to any offsets or defenses which Lessee might have
against any prior landlord (including Lessor); or
2
(c) bound by any rent or additional rent which Lessee might
have paid in advance to any prior landlord (including Lessor) for a period in
excess of one month; or
(d) bound by any agreement or modification of the Lease made
without the written consent of Beneficiary (or Beneficiary's deemed approval
pursuant to the express provisions of the Deed of Trust or the "Related
Documents" (as defined in the Deed of Trust)); or
(e) liable or responsible for or with respect to the
retention, application and/or return to Lessee of any security deposit paid to
any prior lessor (including Lessor), whether or not still held by such prior
lessor, unless and until Beneficiary or such other purchaser has actually
received for its own account as lessor the full amount of such security deposit.
4. Upon the written request of either Beneficiary or Lessee to the
other given at the time of a foreclosure, trustee's sale or deed in lieu
thereof, the parties agree to execute a lease of the Premises upon the same
terms and conditions as the Lease between Lessor and Lessee, which lease shall
cover any unexpired term of the Lease existing prior to such foreclosure,
trustee's sale or conveyance in lieu of foreclosure.
5. From and after the date hereof, in the event of any act or
omission by Lessor which would give Lessee the right, either immediately or
after the lapse of time, to terminate the Lease or to claim a partial or total
eviction or to offset against the rental due under the Lease any amount due
Lessee as a result of a breach by Lessor, Lessee will not exercise any such
right: (a) until it has given written notice of such act to Beneficiary at
Beneficiary's address specified in Paragraph 10 hereof, and (b) until the same
period of time as is given to Lessor under the Lease to cure such act or
omission shall have elapsed following such giving of notice to Beneficiary and
following the time when Beneficiary shall have become entitled under the Deed of
Trust to remedy the same.
6. Lessor, as landlord under the Lease and trustor under the Deed of
Trust, agrees for itself and its heirs, successors and assigns, that: (a) this
agreement does not (i) constitute a waiver by Beneficiary of any of its rights
under the Deed of Trust, and/or (ii) in any way release Lessor from its
obligation to comply with the terms, provisions, conditions, covenants,
agreements and clauses of the Deed of Trust; (b) the provisions of the Deed of
Trust remain in full force and effect and must be complied with by Lessor; and
(c) upon the occurrence, but only during the continuation of an Event of Default
under the Deed of Trust. Lessee may pay all rent and all other sums due under
the Lease to Beneficiary as provided in this Agreement. In all events, the
liability of Beneficiary or any purchaser to Lessee shall be limited and
restricted to their interest in the Premises and shall in no event exceed such
interest.
7. Lessee acknowledges that it has notice that the Lease and the
rent and all other sums due thereunder have been assigned or are to be assigned
to Beneficiary as security for
3
the Loan secured by the Deed of Trust. In the event that Beneficiary notifies
Lessee of a default under the Deed of Trust and demands that Lessee pay its rent
and all other sums due under the Lease to Beneficiary, Lessee agrees that it
will honor such demand and pay its rent and all other sums due under the Lease
directly to Beneficiary or as otherwise required pursuant to such notice until
such time as Beneficiary notifies Lessee that its rent and all other sums may be
paid to Lessor.
8. Any provision of this Agreement to the contrary notwithstanding,
Beneficiary shall have no obligation or incur any liability, with respect to the
erection and completion of the building in which the Premises are located or for
completion of the Premises or any improvements for Lessee's use and occupancy.
Beneficiary agrees that it shall execute customary waivers and consents with
respect to trade fixtures as to any customary financing obtained by Lessee in
connection therewith.
9. Lessee from and after the date hereof shall send a copy of any
notice of default under the Lease to Beneficiary at the address of Beneficiary
specified in Section 10 hereof at the same time such notice or statement is sent
to Lessor under the Lease.
10. All notices hereunder shall be deemed to have been duly given if
mailed by United States registered or certified mail, with return receipt
requested, postage prepaid to Beneficiary at the following address (or at such
other address as shall be given in writing by Beneficiary to Lessee) and shall
be deemed complete upon any such mailing:
NEW YORK LIFE iNSURANCE COMPANY
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Real Estate Vice President-Loan Administration Division,
Real Estate Department
with a copy to: XXXXXX, XXXXXXXXXX & XXXXXXXXX LLP
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxxxx, Esq.
11. This Agreement supersedes any inconsistent provisions of the
Lease, and may not be amended or modified except by an agreement in writing
executed by all parties hereto.
12. Nothing contained in this Agreement shall be construed to
derogate from or in any way impair or affect the lien and charge or provisions
of the Deed of Trust, except as specifically set forth herein.
4
13. This Agreement shall inure to the benefit of the parties hereto,
their successors and permitted assigns; provided, however, that in the event of
the assignment or transfer of the interest of Beneficiary, all obligations and
liabilities of Beneficiary under this Agreement accruing after the effective
date of such assignment or transfer shall be the responsibility of the party to
whom Beneficiary's interest is assigned or transferred; and provided further
that the interest of Lessee under this Agreement may not be assigned or
transferred without the prior written consent of Beneficiary.
14. Lessee agrees that this Agreement satisfies any condition or
requirement in the Lease relating to the granting of a non-disturbance
agreement.
15. This Agreement shall be governed by and construed in accordance
with the laws of the State of California.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first set forth above.
NOTICE: THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
CONTAINS A PROVISION WHICH ALLOWS LESSOR TO OBTAIN A LOAN, ALL OR A PORTION OF
WHICH MAY BE EXPENDED FOR PURPOSES OTHER THAN IMPROVEMENTS OF THE PROPERTY.
BENEFICIARY:
NEW YORK LIFE INSURANCE COMPANY,
a New York mutual insurance company
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
---------------------------------
Title: Assistant Vice President
--------------------------------
5
LESSOR:
THE IRVINE COMPANY,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President, Office Properties
By: Xxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Secretary
LESSEE:
ALSIUS CORPORATION,
a California corporation
By: /s/ Xxxxx X. Xxx
-----------------------------------
Name: Xxxxx X. Xxx
---------------------------------
Title: Executive Vice President
Chief Financial Officer
--------------------------------
6
EXHIBIT A
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED TN THE STATE OF CALIFORNIA.
COUNTY OF ORANGE, CITY OF IRVINE, DESCRIBED AS FOLLOWS:
REFER TO EXHIBIT A-1
7
EXHIBIT A-1
LEGAL DESCRIPTION
All that certain land situated in the State of California, County of Orange
described as follows:
PARCELS 0,0,0 XXX X XX XXXXXX XXX XX. 00-000, XX THE CITY OF IRVINE, COUNTY OF
ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP FILED iN BOOK 296, PAGES 7
THROUGH 10 OF PARCEL MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.
8
STATE OF California )
) SS
COUNTY OF Orange )
On, 3/16, 2001, before me, Xxxxxxx Xxxxxxx, a Notary Public in and for said
State, personally appeared Xxxxx X. Xxx,. (or proved to me on the basis of
satisfactory evidence) to be the person whose name is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in
his authorized capacity, and that by his signature on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
Signature /s/ Xxxxxxx Xxxxxxx (Seal)
---------------------------
[CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENTS HERE]
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