STANDARD OFFICE LEASE BY AND BETWEEN CAMARILLO OFFICE PARTNERS I, LLC, a California limited liability company, AS LANDLORD, AND AURIGA LABORATORIES, INC., a Delaware corporation, AS TENANT SUITE 150
Exhibit
10.3
BY
AND
BETWEEN
CAMARILLO
OFFICE PARTNERS I, LLC,
a
California limited liability company,
AS
LANDLORD,
AND
a
Delaware corporation,
AS
TENANT
SUITE
150
___________________________________________
0000
Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxx
PAGE
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ARTICLE
1
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Basic
Lease Provisions
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ARTICLE
2
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TERM/PREMISES
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ARTICLE
3 Rental
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(a)
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Basic
Rental
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(b)
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Increase
in Direct Costs
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[
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(c)
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Definitions
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(d)
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Determination
of Payment
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(e)
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Tenant's
Payment of Certain Tax Costs
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ARTICLE
4
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Security
Deposit
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ARTICLE
5 Holding Over
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ARTICLE
6 OTHER Taxes
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ARTICLE
7 Use
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ARTICLE
8
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Condition
of Premises
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ARTICLE
9
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Repairs
and Alterations
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(a)
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Landlord’s
Obligation
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(b)
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Tenant’s
Obligation
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(c)
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Alterations
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(d)
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Insurance
Liens
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(e)
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Costs
and Fees; Removal
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ARTICLE
10 Liens
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ARTICLE
11
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Project
Services
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(a)
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Basic
Services
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(b)
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Excess
Usage
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(c)
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Additional
Electrical Services
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[
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(d)
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HVAC
Balance
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(e)
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Telecommunications
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(f)
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After-Hours
Use
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(g)
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Reasonable
Charges
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(h)
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Sole
Electrical Representative
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(i)
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Supplemental
Power
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ARTICLE
12
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Rights
of Landlord
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(a)
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Right
of Entry
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(b)
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Maintenance
Work
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(c)
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Rooftop
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ARTICLE
13
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Indemnity;
Exemption of Landlord from Liability
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(a)
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Indemnity
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(b)
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Exemption
of Landlord from Liability
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(c)
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Security
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ARTICLE
14 Insurance
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(a)
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Tenant's
Insurance
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(b)
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Form
of Policies
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(c)
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Landlord's
Insurance
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(d)
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Waiver
of Subrogation
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(e)
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Compliance
with Law
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ARTICLE
15
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Assignment
and Subletting
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ARTICLE
16
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Damage
or Destruction
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ARTICLE
17 Subordination
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ARTICLE
18
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Eminent
Domain
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ARTICLE
19 Default
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ARTICLE
20 Remedies
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ARTICLE
21
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Transfer
of Landlord's Interest
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ARTICLE
22 Broker
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ARTICLE
23 Parking
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ARTICLE
24 Waiver
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ARTICLE
25
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Estoppel
Certificate
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ARTICLE
26
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Liability
Of Landlord
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ARTICLE
27
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Inability
To Perform
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ARTICLE
28
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Hazardous
Waste
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ARTICLE
29 SURRENDER OF PREMISES; REMOVAL OF
PROPERTY
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ARTICLE
30 Miscellaneous
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(a)
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Severability;
Entire Agreement
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(b)
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Attorneys'
Fees; Waiver of Jury Trial
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(c)
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Time
of Essence
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(d)
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Headings;
Joint and Several
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(e)
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Reserved
Area
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(f)
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No
Option
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(g)
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Use
of Project Name; Improvements
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(h)
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Rules
and Regulations
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(i)
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Quiet
Possession
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(j)
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Rent
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(k)
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Successors
and Assigns
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(l)
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Notices
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(m)
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Persistent
Delinquencies
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(n)
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Right
of Landlord to Perform
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(o)
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Access,
Changes in Project, Facilities, Name
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(p)
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Signing
Authority
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(q)
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Identification
of Tenant
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(r)
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Substitute
Premises
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(s)
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Survival
of Obligations
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(t)
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Confidentiality
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(u)
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Governing
Law
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(v)
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Exhibits
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(w)
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Independent
Covenants
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(x)
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Counterparts
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(y)
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Financial
Statements
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(z)
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Office
of Foreign Assets Control
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ARTICLE
31
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SIGNAGE/DIRECTORY
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ARTICLE
32
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OPTION
TO RENEW
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(a)
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Option
Right
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(b)
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Option
Rent
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(c)
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Exercise
of Options
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(d)
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Determination
of Market Rent
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Exhibit "A"
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Premises
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Exhibit "B"
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Rules
and Regulations
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Exhibit "C"
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Notice
of Lease Term Dates and Tenant's Proportionate
Share
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DEFINED
TERMS PAGE
Additional
Rent 3
Affiliate 17
Alterations 9
Base
Year 1
Basic
Rental 1
Brokers 1
Commencement
Date 1
Direct
Costs 3
Estimate 5
Estimate
Statement 5
Estimated
Excess 5
Event
of
Default 20
Excess 5
Expiration
Date 1
First
Month's Rent 2
Force
Majeure 25
Hazardous
Material 26
Landlord 1
Laws 26
Lease 1
Lease
Year 2
Operating
Costs 4
Parking
Passes 2
Partnership
Tenant 30
Permitted
Use 1
Premises 1
Project 1
Real
Property 3
Review
Period 5
Security
Deposit 1
Square
Footage 1
Statement 5
Tax
Costs 3
Tenant 1
Tenant
Improvements 9
Tenant's
Proportionate Share 1
Term 1
Transfer 16
Transfer
Premium 16
Transferee 16
This
Standard Office Lease ("Lease") is made and entered into as of
this 13th day of December, 2007, by and between CAMARILLO OFFICE PARTNERS I
LLC,
a California limited liability company ("Landlord"), and AURIGA
LABORATORIES INC., a Delaware corporation
("Tenant").
Tenant
hereby leases from Landlord the premises described as Suite No. 150, as
designated on the plan attached hereto and incorporated herein as
Exhibit "A" ("Premises"), of the project
("Project") whose address is 0000 Xxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxx, for the Term and upon the terms and conditions hereinafter set
forth, and Landlord and Tenant hereby agree as follows:
ARTICLE
1
BASIC
LEASE PROVISIONS
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A.Term:
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Thirty-six
(36) months.
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Commencement
Date:
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February
15, 2008.
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Expiration
Date:
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February
28, 2011
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B.Premises:
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19,496
rentable square feet
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C.Basic
Rental:
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Period
of Term
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Annual
Basic
Rental
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Monthly
Basic
Rental
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Monthly
Basic Rental
Per
Rentable Square Foot
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February
15, 2008 – February 29, 2008
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N/A
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$11,000.00
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$1.128
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March
1, 2008 – February 28, 2009
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$264,000.00
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$22,000.00
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$1.128
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March
1, 2009 – February 28, 2010
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$271,920.00
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$22,660.00
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$1.162
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March
1, 2010 – February 28, 2011
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$268,077.60
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$23,339.80
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$1.197
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D.Base
Year:
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Calendar
year 2008. In no event shall Tenant be responsible for any Direct
Costs
pass throughs during the initial 12 months of the Term.
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E.Tenant's
Proportionate Share:
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53.82%
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X.Xxxxxxxx
Deposit:
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A
security deposit of $44,000.00 shall be paid by Tenant to Landlord
as
follows: $22,000.00 concurrently with Tenant's execution and delivery
of
this Lease to Landlord; an additional $22,000.00 on January 1,
2008.
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G.Permitted
Use:
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General
office use as well as storage distribution and shipping of
pharmaceutical products.
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H.Brokers:
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Told
Partners, Inc. (for Landlord)
Cresa
Partners (for Tenant)
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I.Parking
Passes:
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Tenant
shall have the right to use, free of charge during the initial Term,
up to
four (4) unreserved parking passes for each 1,000
rentable square feet of office space and up to two
(2) unreserved parking passes for each 1,000
rentable square feet of warehouse space contained in
the Premises, which equals fifty (50) unreserved parking passes,
in the
aggregate. Tenant's parking passes shall be used by Tenant in
accordance with the terms provided in Article 23
hereof.
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J.Initial
Installment of Basic Rental:
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The
Basic Rental due and payable by Tenant for the period of February
15, 2008
– February 29, 2008 in the amount of $11,000.00 shall be paid by Tenant
to
Landlord on February 15, 2008.
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ARTICLE
2
TERM/PREMISES
The
Term
of this Lease shall commence on the Commencement Date as set forth in
Article 1.A. of the Basic Lease Provisions and shall end on the Expiration
Date set forth in Article 1.A. of the Basic Lease
Provisions. For purposes of this Lease, the term "Lease
Year" shall mean each consecutive twelve (12) month period during the
Lease Term, with the first Lease Year commencing on the Commencement Date;
however, (a) if the Commencement Date falls on a day other than the first
day of a calendar month, the first Lease Year shall end on the last day of
the
eleventh (11th)
month after the Commencement Date and the second (2nd) and each
succeeding Lease Year shall commence on the first day of the next calendar
month, and (b) the last Lease Year shall end on the Expiration
Date. If Landlord does not deliver possession of the Premises to
Tenant on or before the anticipated Commencement Date (as set forth in Article
1.A., above), Landlord shall not be subject to any liability for its failure
to
do so, and such failure shall not affect the validity of this Lease nor the
obligations of Tenant hereunder. Landlord and Tenant hereby stipulate
that the Premises contains the number of square feet specified in
Article 1.B. of the Basic Lease Provisions. Landlord may deliver
to Tenant a Commencement Letter in a form substantially similar to that attached
hereto as Exhibit "C", which Tenant shall execute and return to
Landlord within five (5) days of receipt thereof. Failure of Tenant
to timely execute and deliver the Commencement Letter shall constitute an
acknowledgment by Tenant that the statements included in such notice are true
and correct, without exception.
Tenant
and its employees, agents, contractors and subcontractors may enter into the
warehouse portion of the Premises as of January 1, 2008 and the office portion
of the Premises as of January 15, 2008, upon receipt of Landlord's consent,
solely for the purpose of installing furniture, trade fixtures, telephones,
computers, photocopy equipment, and other business equipment. Such early entry
will not advance the Commencement Date so long as Tenant does not commence
business operations from any part of the Premises. All of the provisions of
this
Lease shall apply to Tenant during any early entry, including, without
limitation, the indemnities set forth in this Lease, but excluding the
obligation to pay Basic Rental only unless and until Tenant has commenced
business operations in the Premises (or the Commencement Date has otherwise
occurred), whereupon Tenant's Basic Rental payment obligations shall immediately
commence. If Tenant is granted early entry, Landlord shall not be
responsible for any loss, including theft, damage or destruction to any work
or
material installed or stored by Tenant at the Premises or for any injury to
Tenant or its agents, employees, contractors, subcontractors, subtenants,
subtenants, assigns, licensees or invitees. Landlord shall have the right to
post appropriate notices of non-responsibility and to require Tenant to provide
Landlord with evidence that Tenant has fulfilled its obligation to provide
insurance pursuant to the provisions of this Lease.
Tenant
shall have the non-exclusive right to use in common with other tenants in the
Project a portion of the Project's lobby area approved by Landlord as Tenant's
reception area and, in connection therewith, Tenant shall have the right to
install and operate a reception desk (approved by Landlord), subject to
Landlord's rules and regulations. In no event shall Tenant be
permitted to permanently affix its reception desk to the lobby area. Upon the
expiration or earlier termination of this Lease, Tenant shall remove all of
its
personal property from the Project's lobby area and repair any damage
to the Project caused thereby. Tenant's failure to remove its personal property
from the lobby area by the Expiration Date of the Term shall constitute a
holding over under this Lease and the terms of Article 5 below shall apply
with
respect thereto.
ARTICLE
3
RENTAL
(a) Basic
Rental. Tenant agrees to pay to Landlord during the Term hereof,
at Landlord's office or to such other person or at such other place as directed
from time to time by written notice to Tenant from Landlord, the initial monthly
and annual sums as set forth in Article 1.C. of the Basic Lease Provisions,
payable in advance no later than the first day of each calendar month, without
demand, setoff or deduction, and in the event this Lease commences or the date
of expiration of this Lease occurs other than on the first day or last day
of a
calendar month, the rent for such month shall be
prorated. Notwithstanding the foregoing, the Basic Rental for the
period February 15, 2008 through February 29, 2008 shall be paid to Landlord
in
accordance with Article 1.J. of the Basic Lease Provisions.
(b) Increase
in Direct Costs. The term "Base Year" means the
calendar year set forth in Article 1.D. of the Basic Lease
Provisions. If, in any calendar year during the Term of this Lease,
the "Direct Costs" (as hereinafter defined) paid or incurred by Landlord shall
be higher than the Direct Costs for the Base Year, Tenant shall pay an
additional sum for each such subsequent calendar year equal to the product
of
the amount set forth in Article 1.E. of the Basic Lease Provisions
multiplied by such increased amount of Direct Costs. In the event
either the Premises and/or the Project is expanded or reduced, then Tenant's
Proportionate Share shall be appropriately adjusted, and as to the calendar
year
in which such change occurs, Tenant's Proportionate Share for such calendar
year
shall be determined on the basis of the number of days during that particular
calendar year that such Tenant's Proportionate Share was in
effect. In the event this Lease shall terminate on any date other
than the last day of a calendar year, the additional sum payable hereunder
by
Tenant during the calendar year in which this Lease terminates shall be prorated
on the basis of the relationship which the number of days which have elapsed
from the commencement of said calendar year to and including said date on which
this Lease terminates bears to three hundred sixty five (365). Any and all
amounts due and payable by Tenant pursuant to this Lease (other than Basic
Rental) shall be deemed "Additional Rent" and Landlord shall be
entitled to exercise the same rights and remedies upon default in these payments
as Landlord is entitled to exercise with respect to defaults in monthly Basic
Rental payments.
(c) Definitions. As
used herein the term "Direct Costs" shall mean the sum of the
following:
(i) "Tax
Costs", which shall mean any and all real estate taxes and other
similar charges on real property or improvements, assessments, water and sewer
charges, and all other charges assessed, reassessed or levied upon the Project
and appurtenances thereto and the parking or other facilities thereof, or the
real property thereunder (collectively, the "Real Property") or
attributable thereto or on the rents, issues, profits or income received or
derived therefrom which are assessed, reassessed or levied by the United States,
the State of California or any local government authority or agency or any
political subdivision thereof, and shall include Landlord's reasonable legal
fees, costs and disbursements incurred in connection with proceedings for
reduction of Tax Costs or any part thereof; provided, however, if at any time
after the date of this Lease the methods of taxation now prevailing shall be
altered so that in lieu of or as a supplement to or a substitute for the whole
or any part of any Tax Costs, there shall be assessed, reassessed or levied
(a) a tax, assessment, reassessment, levy, imposition or charge wholly or
partially as a net income, capital or franchise levy or otherwise on the rents,
issues, profits or income derived therefrom, or (b) a tax, assessment,
reassessment, levy (including but not limited to any municipal, state or federal
levy), imposition or charge measured by or based in whole or in part upon the
Real Property and imposed upon Landlord, then except to the extent such items
are payable by Tenant under Article 6 below, such taxes, assessments,
reassessments or levies or the part thereof so measured or based, shall be
deemed to be included in the term "Direct Costs." In no event shall
Tax Costs included in Direct Costs for any year subsequent to the Base Year
be
less than the amount of Tax Costs included in Direct Costs for the Base
Year. In addition, when calculating Tax Costs for the Base Year,
special assessments shall only be deemed included in Tax Costs for the Base
Year
to the extent that such special assessments are included in Tax Costs for the
applicable subsequent calendar year during the Term.
(ii) "Operating
Costs", which shall mean all costs and expenses incurred by Landlord in
connection with the maintenance, operation, replacement, ownership and repair
of
the Project, including, but not limited to, salaries, wages, medical, and other
taxes and benefits for all persons who perform duties connected with the
operation, maintenance and repair of the Project; a reasonable allowance for
depreciation of the cost of acquiring or the rental expense of personal property
used in the maintenance, operation and repair of the Project; accountant's
fees,
legal fees, real estate tax consulting fees, personal property taxes on property
used in the maintenance and operation of the Project; fees, costs, expenses
or
dues payable pursuant to the terms of any covenants, conditions or restrictions
or owners' association pertaining to the Project; capital expenditures incurred
to effect economies of operation of, or stability of services to, the Project
and capital expenditures required by government regulations, laws, or ordinances
including, but not limited to the American with Disabilities Act; costs incurred
(capital or otherwise) on a regular recurring basis every three (3) or more
years for certain maintenance projects (e.g., parking lot slurry coat or
replacement of lobby and elevator cab carpeting the cost of all charges for
electricity, gas, water and other utilities furnished to the Project, including
any taxes thereon; charges for insurance for the Project carried by Landlord;
the cost of all building and cleaning supplies and materials; the cost of all
charges for cleaning, maintenance and service contracts and other services
with
independent contractors and administration fees; a property management fee
(which fee shall not exceed 5% of gross revenues at the Project and may be
imputed if Landlord has internalized management or otherwise acts as its own
property manager) and license, permit and inspection fees relating to the
Project. In the event, during any calendar year, the Project is less
than ninety-five percent (95%) occupied at all times, Operating Costs shall
be
adjusted to reflect the Operating Costs of the Project as though ninety-five
percent (95%) were occupied at all times, and the increase or decrease in the
sums owed hereunder shall be based upon such Operating Costs as so adjusted.
In
no event shall costs for any item of utilities included in Direct Costs for
any
year subsequent to the Base Year be less than the amount included in Direct
Costs for the Base Year for such utility item. Notwithstanding anything to
the
contrary set forth in this Article 3, when calculating Operating Costs for
the Base Year, unless Operating Costs for the applicable subsequent calendar
year include the applicable following items, Operating Costs shall exclude
(a) market-wide labor-rate increases due to extraordinary circumstances
including, but not limited to, boycotts and strikes, (b) utility rate
increases due to extraordinary circumstances including, but not limited to,
conservation surcharges, boycotts, embargoes or other shortages, and
(c) amortization of any capital items including, but not limited to,
capital improvements, capital repairs and capital replacements (including such
amortized costs where the actual improvement, repair or replacement was made
in
prior years).
Additionally,
notwithstanding any contrary provision contained in this Lease, in no event
shall Tenant's Proportionate Share of Direct Controllable Costs (as defined
below) for any calendar year exceed one hundred five percent (105%), calculated
on a cumulative and compounded basis, of Tenant's Proportionate Share of Direct
Controllable Costs for the immediately preceding calendar
year. "Direct Controllable Costs" shall mean all Operating Costs,
except for the following: (A) the cost of all charges for
electricity, gas, water and other utilities furnished to the Project, including
any taxes thereon, (B) expenses incurred by Landlord in connection with the
Project for all labor, including, but not limited to, salaries, wages, medical,
surgical and general welfare benefits and pension payments, payroll taxes,
fringe benefits, employment taxes, workers' compensation, uniforms and dry
cleaning thereof for all persons who perform duties connected with the
operation, maintenance and repair of the Project, (C) the cost of all charges
for fire and extended coverage, liability and all other insurance for the
Project carried by Landlord, and (D) costs incurred in connection with upgrading
the Premises or Project to comply with disability, life, seismic, fire and
safety codes, ordinances, statutes, or other laws.
(d) Determination
of Payment.
(i) If
for any calendar year ending or commencing within the Term, Tenant's
Proportionate Share of Direct Costs for such calendar year exceeds Tenant's
Proportionate Share of Direct Costs for the Base Year, then Tenant shall pay
to
Landlord, in the manner set forth in Sections 3(d)(ii) and (iii), below,
and as Additional Rent, an amount equal to the excess (the
"Excess").
(ii) Landlord
shall give Tenant a yearly expense estimate statement (the "Estimate
Statement") which shall set forth Landlord's reasonable estimate (the
"Estimate") of what the total amount of Direct Costs for the
then-current calendar year shall be and the estimated Excess (the
"Estimated Excess") as calculated by comparing Tenant's
Proportionate Share of Direct Costs for such calendar year, which shall be
based
upon the Estimate, to Tenant's Proportionate Share of Direct Costs for the
Base
Year. The failure of Landlord to timely furnish the Estimate
Statement for any calendar year shall not preclude Landlord from subsequently
enforcing its rights to collect any Estimated Excess under this Article 3,
once such Estimated Excess has been determined by Landlord. If
pursuant to the Estimate Statement an Estimated Excess is calculated for the
then-current calendar year, Tenant shall pay, with its next installment of
monthly Basic Rental due, a fraction of the Estimated Excess for the
then-current calendar year (reduced by any amounts paid pursuant to the last
sentence of this Section 3(d)(ii)). Such fraction shall have as
its numerator the number of months which have elapsed in such current calendar
year to the month of such payment, both months inclusive, and shall have twelve
(12) as its denominator. Until a new Estimate Statement is furnished,
Tenant shall pay monthly, with the monthly Basic Rental installments, an amount
equal to one-twelfth (1/12) of the total Estimated Excess set forth in the
previous Estimate Statement delivered by Landlord to Tenant.
(iii) In
addition, Landlord shall endeavor to give to Tenant as soon as reasonably
practicable following the end of each calendar year, a statement (the
"Statement") which shall state the Direct Costs incurred or
accrued for such preceding calendar year, and which shall indicate the amount,
if any, of the Excess. Upon receipt of the Statement for each
calendar year during the Term, if amounts paid by Tenant as Estimated Excess
are
less than the actual Excess as specified on the Statement, Tenant shall pay,
with its next installment of monthly Basic Rental due, the full amount of the
Excess for such calendar year, less the amounts, if any, paid during such
calendar year as Estimated Excess. If, however, the Statement
indicates that amounts paid by Tenant as Estimated Excess are greater than
the
actual Excess as specified on the Statement, such overpayment shall be credited
against Tenant's next installments of Estimated Excess. The failure
of Landlord to timely furnish the Statement for any calendar year shall not
prejudice Landlord from enforcing its rights under this Article 3, once
such Statement has been delivered. Even though the Term has expired
and Tenant has vacated the Premises, when the final determination is made of
Tenant's Proportionate Share of the Direct Costs for the calendar year in which
this Lease terminates, if an Excess is present, Tenant shall immediately pay
to
Landlord an amount as calculated pursuant to the provisions of this
Article 3(d). The provisions of this Section 3(d)(iii)
shall survive the expiration or earlier termination of the Term.
(iv) Within
one hundred twenty (120) days after receipt of a Statement by Tenant
("Review Period"), if Tenant disputes the amount set forth in
the Statement, Tenant's employees or an independent certified public accountant
(which accountant is a member of a nationally or regionally recognized
accounting firm and is hired on a non-contingency fee basis), designated by
Tenant, may, after reasonable notice to Landlord and at reasonable times,
inspect Landlord's records at Landlord's offices, provided that Tenant is not
then in default after expiration of all applicable cure periods of any
obligation under this Lease (including, but not limited to, the payment of
the
amount in dispute) and provided further that Tenant and such accountant or
representative shall, and each of them shall use their commercially reasonable
efforts to cause their respective agents and employees to, maintain all
information contained in Landlord's records in strict
confidence. Notwithstanding the foregoing, Tenant shall only have the
right to review Landlord's records one (1) time during any twelve (12) month
period. Tenant's failure to dispute the amounts set forth in any
Statement within the Review Period shall be deemed to be Tenant's approval
of
such Statement and Tenant, thereafter, waives the right or ability to dispute
the amounts set forth in such Statement. If after such inspection,
but within thirty (30) days after the Review Period, Tenant notifies Landlord
in
writing that Tenant still disputes such amounts, a certification as to the
proper amount shall be made in accordance with Landlord's standard accounting
practices, at Tenant's expense, by an independent certified public accountant
selected by Landlord and who is a member of a nationally or regionally
recognized accounting firm, which certification shall be binding upon Landlord
and Tenant. Landlord shall cooperate in good faith with Tenant and
the accountant to show Tenant and the accountant the information upon which
the
certification is to be based. However, if such certification by the
accountant proves that the Direct Costs set forth in the Statement were
overstated by more than five percent (5%), then the cost of the accountant
and
the cost of such certification shall be paid for by
Landlord. Promptly following the parties receipt of such
certification, the parties shall make such appropriate payments or
reimbursements, as the case may be, to each other, as are determined to be
owing
pursuant to such certification. Tenant agrees that this section shall
be the sole method to be used by Tenant to dispute the amount of any Direct
Costs payable by Tenant pursuant to the terms of this Lease, and Tenant hereby
waives any other rights at law or in equity relating thereto.
(v) If
the Project is a part of a multi-building development (the
"Development"), those Direct Costs attributable to such
development as a whole (and not attributable solely to any individual building
therein) shall be allocated by Landlord to the Project and to the other
buildings within such development on an equitable basis.
|
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(e)
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Tenant's
Payment of Certain Tax Costs
|
. In
the event that, after the Commencement Date, during the first twelve (12) months
of the initial Term only (and not any extension or renewal of the initial Term),
the Project is reassessed (the "Reassessment") for real estate
tax purposes by the appropriate governmental authority pursuant to the terms
of
Proposition 13, then the terms of this Section 3(e) shall apply to such
Reassessment of the Project.
(i) The
Tax Increase. For purposes of this Section 3(e), the term
"Tax Increase" shall mean that portion of Tax Costs, as
calculated immediately following the Reassessment, which is attributable solely
to the Reassessment. Accordingly, the term "Tax Increase" shall not
include any portion of Tax Costs which (A) is attributable to the initial
assessment of the value of the Real Property or the Project, the base, shell
and
core of the Project or the tenant improvements located in the Project,
(B) is attributable to assessments which were pending immediately prior to
the Reassessment which assessments were conducted during, and included in,
such
Reassessment, or which assessments were otherwise rendered unnecessary following
the Reassessment, or (C) is attributable to the annual inflationary
increase of real estate taxes (currently two percent (2.0%) per
annum).
(ii) Protection. During
the first twelve (12) months of the initial Term only (and not any extension
or
renewal thereof), Tenant shall not be obligated to pay any portion of the Tax
Increase.
(iii) Landlord's
Right to Purchase the Proposition 13 Protection Amount. The
amount of Tax Costs which Tenant is not obligated to pay or will not be
obligated to pay during the Term in connection with a Reassessment pursuant
to
the terms of this Section 3(e) shall be sometimes referred to hereafter as
a "Proposition 13 Protection Amount". If the occurrence of a
Reassessment is reasonably foreseeable by Landlord and the Proposition 13
Protection Amount attributable to such Reassessment can be reasonably quantified
or estimated for each calendar year commencing with the year in which the
Reassessment will occur, the terms of this Section 3(e)(iii) shall apply to
each such Reassessment. Upon notice to Tenant, Landlord shall have
the right (but not the obligation) to purchase the Proposition 13
Protection Amount relating to the Reassessment, at any time during the Term,
by
paying to Tenant an amount equal to the "Proposition 13 Purchase Price", as
that term is defined below. As used herein,
"Proposition 13 Purchase Price" shall mean the present
value of the Proposition 13 Protection Amount remaining during the Term, as
of the date of payment of the Proposition 13 Purchase Price by
Landlord. Such present value shall be calculated (i) by using
the portion of the Proposition 13 Protection Amount attributable to each
remaining year of the Term (as though the portion of such Proposition 13
Protection Amount benefited Tenant at the end of each Lease Year), as the
amounts to be discounted, and (ii) by using discount rates for each amount
to be discounted equal to (A) the average rates of yield for United States
Treasury Obligations with maturity dates as close as reasonably possible to
the
end of each Lease Year during which the portions of the Proposition 13
Protection Amount would have benefited Tenant, which rates shall be those in
effect as of Landlord’s exercise of its right to purchase as set forth in this
subsection (iii), plus (B) two percent (2%) per annum. Upon such
payment of the Proposition 13 Purchase Price, the provisions of
Section 3(e)(ii) of this Lease shall not apply to any Tax Increase
attributable to the Applicable Reassessment and Tenant shall have no further
protection whatsoever under this Section 3(e). Since Landlord will be
estimating the Proposition 13 Purchase Price because a Reassessment has not
yet occurred, then when such Reassessment occurs, if Landlord has underestimated
the Proposition 13 Purchase Price, Tenant's Basic Rental next due shall be
credited with the amount of such underestimation, and if Landlord overestimates
the Proposition 13 Purchase Price, then Tenant shall pay the amount of the
overestimation to Landlord within thirty (30) days after demand.
ARTICLE
4
SECURITY
DEPOSIT
Tenant
shall deposit with Landlord the sum set forth in Article 1.F. of the Basic
Lease Provisions as security for the full and faithful performance of every
provision of this Lease to be performed by Tenant in accordance with the terms
of such Article 1.F. If Tenant breaches any provision of this Lease,
including but not limited to the payment of rent, Landlord may use all or any
part of this security deposit for the payment of any rent or any other sums
in
default, or to compensate Landlord for any other loss or damage which Landlord
may suffer by reason of Tenant's default. If any portion of said
deposit is so used or applied, Tenant shall, within five (5) days after written
demand therefor, deposit cash with Landlord in an amount sufficient to restore
the security deposit to its full amount. Tenant agrees that Landlord
shall not be required to keep the security deposit in trust, segregate it or
keep it separate from Landlord's general funds, but Landlord may commingle
the
security deposit with its general funds and Tenant shall not be entitled to
interest on such deposit. At the expiration of the Lease Term, and
provided there exists no default by Tenant hereunder, the security deposit
or
any balance thereof shall be returned to Tenant (or, at Landlord's option,
to
Tenant's "Transferee," as such term is defined in Article 15 below), provided
that subsequent to the expiration of this Lease, Landlord may retain from said
security deposit (i) an amount reasonably estimated by Landlord to cover
potential Direct Cost reconciliation payments due with respect to the calendar
year in which this Lease terminates or expires (such amount so retained shall
not, in any event, exceed ten percent (10%) of estimated Direct Cost payments
due from Tenant for such calendar year through the date of expiration or earlier
termination of this Lease and any amounts so retained and not applied to such
reconciliation shall be returned to Tenant within thirty (30) days after
Landlord's delivery of the Statement for such calendar year), (ii) any and
all amounts reasonably estimated by Landlord to cover the anticipated costs
to
be incurred by Landlord to remove any signage provided to Tenant under this
Lease, to remove cabling and other items required to be removed by Tenant under
Article 29(b) below and to repair any damage caused by such removal (in which
case any excess amount so retained by Landlord shall be returned to Tenant
within thirty (30) days after such removal and repair), and (iii) any and
all amounts permitted by law or this Article 4. Tenant hereby waives
the provisions of Section 1950.7 of the California Civil Code and all other
provisions of law, now or hereafter in effect, which provide that Landlord
may
claim from a security deposit only those sums reasonably necessary to remedy
defaults in the payment of rent, to repair damage caused by Tenant or to clean
the Premises, it being agreed that Landlord may, in addition, claim those sums
specified in this Article 4 above and/or those sums reasonably necessary to
compensate Landlord for any other loss or damage, foreseeable or unforeseeable,
caused by the acts or omissions of Tenant or any officer, employee, agent,
contractor or invitee of Tenant.
ARTICLE
5
HOLDING
OVER
Should
Tenant, without Landlord's written consent, hold over after termination of
this
Lease, Tenant shall become a tenant at sufferance upon each and all of the
terms
herein provided as may be applicable to such a tenancy and any such holding
over
shall not constitute an extension of this Lease. During such holding
over, Tenant shall pay in advance, monthly, Basic Rental at a rate equal to
one
hundred fifty percent (150%) of the rate in effect for the last month of the
Term of this Lease, in addition to, and not in lieu of, all other payments
required to be made by Tenant hereunder including but not limited to Tenant's
Proportionate Share of any increase in Direct Costs. Nothing
contained in this Article 5 shall be construed as consent by Landlord to
any holding over of the Premises by Tenant, and Landlord expressly reserves
the
right to require Tenant to surrender possession of the Premises to Landlord
as
provided in this Lease upon the expiration or earlier termination of the
Term. If Tenant fails to surrender the Premises upon the expiration
or termination of this Lease, Tenant agrees to indemnify, defend and hold
Landlord harmless from all costs, loss, expense or liability, including without
limitation, claims made by any succeeding tenant and real estate brokers claims
and attorney's fees and costs.
ARTICLE
6
OTHER
TAXES
Tenant
shall pay, prior to delinquency, all taxes assessed against or levied upon
trade
fixtures, furnishings, equipment and all other personal property of Tenant
located in the Premises. In the event any or all of Tenant's trade
fixtures, furnishings, equipment and other personal property shall be assessed
and taxed with property of Landlord, or if the cost or value of any leasehold
improvements in the Premises exceeds the cost or value of a Project-standard
buildout as determined by Landlord and, as a result, real property taxes for
the
Project are increased, Tenant shall pay to Landlord, within ten (10) days after
delivery to Tenant by Landlord of a written statement setting forth such amount,
the amount of such taxes applicable to Tenant's property or above-standard
improvements. Tenant shall assume and pay to Landlord at the time
Basic Rental next becomes due (or if assessed after the expiration of the Term,
then within ten (10) days), any excise, sales, use, rent, occupancy, garage,
parking, gross receipts or other taxes (other than net income taxes) which
may
be assessed against or levied upon Landlord on account of the letting of the
Premises or the payment of Basic Rental or any other sums due or payable
hereunder, and which Landlord may be required to pay or collect under any law
now in effect or hereafter enacted. In addition to Tenant’s
obligation pursuant to the immediately preceding sentence, Tenant shall pay
directly to the party or entity entitled thereto all business license fees,
gross receipts taxes and similar taxes and impositions which may from time
to
time be assessed against or levied upon Tenant, as and when the same become
due
and before delinquency. Notwithstanding anything to the contrary
contained herein, any sums payable by Tenant under this Article 6 shall not
be included in the computation of "Tax Costs."
ARTICLE
7
USE
Tenant
shall use and occupy the Premises only for the use set forth in
Article 1.G. of the Basic Lease Provisions and shall not use or occupy the
Premises or permit the same to be used or occupied for any other purpose without
the prior written consent of Landlord, which consent may be given or withheld
in
Landlord's sole and absolute discretion, and Tenant agrees that it will use
the
Premises in such a manner so as not to interfere with or infringe upon the
rights of other tenants or occupants in the Project. Tenant shall, at
its sole cost and expense, promptly comply with all laws, statutes, ordinances,
governmental regulations or requirements now in force or which may hereafter
be
in force relating to or affecting (i) the condition, use or occupancy of
the Premises or the Project (excluding structural changes to the Project not
related to Tenant's particular use of the Premises), and (ii) improvements
installed or constructed in the Premises by or for the benefit of
Tenant. Tenant shall not place a load upon the floor of the Premises
which exceeds the load per square foot which such floor was designed to carry
and which is allowed by law. Tenant shall not do or permit to be done
anything which would invalidate or increase the cost of any fire and extended
coverage insurance policy covering the Project and/or the property located
therein and Tenant shall comply with all rules, orders, regulations and
requirements of any organization which sets out standards, requirements or
recommendations commonly referred to by major fire insurance underwriters,
and
Tenant shall promptly upon demand reimburse Landlord for any additional premium
charges for any such insurance policy assessed or increased by reason of
Tenant's failure to comply with the provisions of this Article.
ARTICLE
8
CONDITION
OF PREMISES
Tenant
hereby agrees that the Premises shall be taken "as is", "with all faults",
"without any representations or warranties", and Tenant hereby agrees and
warrants that it has investigated and inspected the condition of the Premises
and the suitability of same for Tenant's purposes, and Tenant does hereby waive
and disclaim any objection to, cause of action based upon, or claim that its
obligations hereunder should be reduced or limited because of the condition
of
the Premises or the Project or the suitability of same for Tenant's
purposes. Tenant acknowledges that neither Landlord nor any agent nor
any employee of Landlord has made any representations or warranty with respect
to the Premises or the Project or with respect to the suitability of either
for
the conduct of Tenant's business and Tenant expressly warrants and represents
that Tenant has relied solely on its own investigation and inspection of the
Premises and the Project in its decision to enter into this Lease and let the
Premises in the above-described condition. The Premises shall be
initially improved as provided in, and subject to, the terms and conditions
of
the immediately following paragraph. The existing leasehold
improvements in the Premises as of the date of this Lease, together with the
Improvements (as defined below) may be collectively referred to herein as the
"Tenant Improvements." The taking of possession of
the Premises by Tenant shall conclusively establish that the Premises and the
Project were at such time in satisfactory condition. Tenant hereby
waives subsection 1 of Section 1932 and Sections 1941 and 1942 of the Civil
Code
of California or any successor provision of law.
Notwithstanding
the foregoing, Landlord agrees to deliver the Premises to Tenant with the
electrical outlets, plumbing and HVAC system serving the Premises in good
working order and condition.
ARTICLE
9
REPAIRS
AND ALTERATIONS
(a) Landlord's
Obligation. Landlord shall maintain the structural
portions of the Project, including the foundation, floor/ceiling slabs, roof,
curtain wall, exterior glass, columns, beams, shafts, stairs, stairwells,
elevator cabs and common areas, and shall also maintain and repair the base
building mechanical, electrical, life safety, plumbing, sprinkler systems and
heating, ventilating and air-conditioning systems.
(b) Tenant's
Obligation. Except as expressly provided as Landlord's
obligation in this Article 9, Tenant shall keep the Premises in good
condition and repair. All damage or injury to the Premises or the
Project resulting from the act or negligence of Tenant, its employees, agents
or
visitors, guests, invitees or licensees, or by the use of the Premises, shall
be
promptly repaired by Tenant at its sole cost and expense, to the satisfaction
of
Landlord; provided, however, that for damage to the Project as a result of
casualty or for any repairs that may impact the mechanical, electrical,
plumbing, heating, ventilation or air-conditioning systems of the Project,
Landlord shall have the right (but not the obligation) to select the contractor
and oversee all such repairs. Landlord may make any repairs which are
not promptly made by Tenant after Tenant's receipt of written notice and the
reasonable opportunity of Tenant to make said repair within five (5) business
days from receipt of said written notice, and charge Tenant for the cost
thereof, which cost shall be paid by Tenant within five (5) days from invoice
from Landlord. Tenant shall be responsible for the design and
function of all non-standard improvements of the Premises, whether or not
installed by Landlord at Tenant's request. Tenant waives all rights
to make repairs at the expense of Landlord, or to deduct the cost thereof from
the rent.
(c) Alterations. Tenant
shall make no alterations, installations, changes or additions in or to the
Premises or the Project (collectively, "Alterations") without
Landlord's prior written consent, not to be unreasonably withheld or delayed,
except that Landlord's consent may be withheld in its sole and absolute
discretion with respect to Alterations that may affect the Project structure,
systems, equipment and/or exterior. Notwithstanding the foregoing,
Tenant may make strictly cosmetic changes to the finish work in the Premises,
not including any changes affecting the Project structure, appearance, or
systems and equipment, without Landlord's consent, provided that the aggregate
cost of any such changes does not exceed Ten Thousand Dollars ($10,000.00)
in
any twelve (12) month period, and such changes do not require any substantial
modifications to the Premises. Tenant shall give Landlord at least
ten (10) days prior notice of such cosmetic Alterations, which notice shall
be
accompanied by reasonably adequate evidence that such changes meet the criteria
contained in this Article 9. Any Alterations approved by Landlord
must be performed in accordance with the terms hereof, using only contractors
or
mechanics approved by Landlord in writing and upon the approval by Landlord
in
writing of fully detailed and dimensioned plans and specifications pertaining
to
the Alterations in question, to be prepared and submitted by Tenant at its
sole
cost and expense. Tenant shall at its sole cost and expense obtain
all necessary approvals and permits pertaining to any Alterations approved
by
Landlord. Tenant shall cause all Alterations to be performed in a
good and workmanlike manner, in conformance with all applicable federal, state,
county and municipal laws, rules and regulations, pursuant to a valid building
permit, and in conformance with Landlord's construction rules and
regulations. If Landlord, in approving any Alterations, specifies a
commencement date therefor, Tenant shall not commence any work with respect
to
such Alterations prior to such date. Tenant hereby agrees to
indemnify, defend, and hold Landlord free and harmless from all liens
and claims of lien, and all other liability, claims and demands arising out
of
any work done or material supplied to the Premises by or at the request of
Tenant in connection with any Alterations.
(d) Insurance;
Liens. Prior to the commencement of any Alterations, Tenant shall
provide Landlord with evidence that Tenant carries "Builder's All Risk"
insurance in an amount approved by Landlord covering the construction of such
Alterations, and such other insurance as Landlord may reasonably require, it
being understood that all such Alterations shall be insured by Tenant pursuant
to Article 14 of this Lease immediately upon completion
thereof. In addition, Landlord may, in its discretion, require Tenant
to obtain a lien and completion bond or some alternate form of security
satisfactory to Landlord in an amount sufficient to ensure the lien free
completion of such Alterations and naming Landlord as a co-obligee.
(e) Costs
and Fees; Removal. If permitted Alterations are made, they shall
be made at Tenant's sole cost and expense and shall be and become the property
of Landlord, except that Landlord may, by written notice to Tenant given prior
to the end of the Term, require Tenant at Tenant's expense to remove all
partitions, counters, railings, cabling and other Alterations installed by
Tenant, and to repair any damage to the Premises and the Project caused by
such
removal. Any and all costs attributable to or related to the
applicable building codes of the city in which the Project is located (or any
other authority having jurisdiction over the Project) arising from Tenant's
plans, specifications, improvements, Alterations or otherwise shall be paid
by
Tenant at its sole cost and expense. Notwithstanding any contrary provision
contained in this Lease, provided that Tenant repairs any damage caused by
such
removal, at Tenant's sole cost and expense, Tenant shall have the right to
remove Tenant's personal property, fixtures and equipment from the Premises
upon
the expiration or earlier termination of this Lease, even if such items are
affixed to the Premises. The construction of initial improvements to
the Premises shall be governed by the terms of the Tenant Work Letter and not
the terms of this Article 9.
(f) Security
System. Landlord hereby grants Tenant the right, at Tenant's cost
and expense, install a security system in the Premises ("Tenant's
Security System") which serves the Premises only; provided, however, if
Tenant's Security System ties into the Project's security system, Tenant shall
coordinate the installation and operation of Tenant's Security System with
Landlord to assure that Tenant's Security System is compatible with the
Project's security system and the other systems and equipment of the
Project. Tenant may install any security system selected by Tenant
provided that such Tenant's Security System (i) does not create an adverse
effect on the structural integrity of the Project, (ii) is in compliance with
applicable governmental laws, rules, and regulations, (iii) does not create
an
adverse effect on the Project's systems or equipment, (iv) does not unreasonably
interfere with the normal and customary office operations of any other tenant
of
the Project or (v) does not adversely effect Landlord's ability to operate
the
Project including the security system of the Project. If any of the
conditions set forth in items (i) through (v), above, are not satisfied, then
Tenant shall not be permitted to install or operate Tenant's Security
System. Tenant shall be solely responsible, at Tenant's sole cost and
expense, for the installation, monitoring, operation and removal of Tenant's
Security System. Tenant shall provide Landlord with any information
reasonably required regarding Tenant's Security System so that, except for
any
portion of the Premises with restricted access as required by applicable
governmental laws, rules or regulations (including, without limitation, any
vault located within the Premises), the Project janitorial staff may enter
the
Premises for the purpose of cleaning the Premises and so that Landlord may
have
access to the Premises in the event of an emergency. Tenant shall, at
Tenant's sole cost and expense, remove Tenant's Security System upon the
expiration or earlier termination of this Lease and repair any damage resulting
from such removal.
(g) Secured
Area. Notwithstanding any contrary provision contained in this
Lease, Tenant shall be entitled, during the Term, to designate a reasonable
portion of the Premises as a "Secured Area" and to install door locks or other
access control systems as necessary to secure such Secured Area, provided that
Tenant gives Landlord prior written notice of Tenant's designation of such
Secured Area and that such Secured Area shall be used by Tenant solely for
the
purpose of securing certain valuable property or confidential
information. Tenant hereby agrees and acknowledges that Landlord
shall have no obligation to perform janitorial services in such Secured Area
unless Tenant provides Landlord a written request for same and provides Landlord
with access to such Secured Area (by providing Landlord a key or other device,
by scheduling Landlord's entry with an escort or otherwise at times designated
by Landlord). Landlord shall have the right to use reasonable force
to gain access to such Secured Area in the case of emergency and Landlord shall
have no liability whatsoever to Tenant in connection
therewith. Landlord and Tenant hereby agree and acknowledge that,
except as provided in the immediately preceding sentence, Landlord shall enter
such Secured Area only upon one (1) business days' prior notice to Tenant and
only after providing Tenant with the opportunity to have a representative of
Tenant present as an escort. Landlord and Tenant hereby agree to use
commercially reasonable efforts to schedule any such entries into the Secured
Area by Landlord at times that are mutually convenient to both Landlord and
Tenant, taking into consideration the nature of Tenant's operations in the
Premises. Tenant agrees that Tenant shall be responsible, at its sole
cost and expense, for complying with all applicable laws regarding such Secured
Area and that such Secured Area is subject to the indemnification provisions
of
Article 13 below.
ARTICLE
10
LIENS
Tenant
shall keep the Premises and the Project free from any mechanics' liens, vendors
liens or any other liens arising out of any work performed, materials furnished
or obligations incurred by Tenant, and Tenant agrees to defend, indemnify and
hold Landlord harmless from and against any such lien or claim or action
thereon, together with costs of suit and reasonable attorneys' fees and costs
incurred by Landlord in connection with any such claim or
action. Before commencing any work of alteration, addition or
improvement to the Premises, Tenant shall give Landlord at least ten (10)
business days' written notice of the proposed commencement of such work (to
afford Landlord an opportunity to post appropriate notices of
non-responsibility). In the event that there shall be recorded
against the Premises or the Project or the property of which the Premises is
a
part any claim or lien arising out of any such work performed, materials
furnished or obligations incurred by Tenant and such claim or lien shall not
be
removed or discharged within ten (10) days of filing, Landlord shall have the
right but not the obligation to pay and discharge said lien without regard
to
whether such lien shall be lawful or correct, or to require that Tenant promptly
deposit with Landlord in cash, lawful money of the United States, one hundred
fifty percent (150%) of the amount of such claim, which sum may be retained
by
Landlord until such claim shall have been removed of record or until judgment
shall have been rendered on such claim and such judgment shall have become
final, at which time Landlord shall have the right to apply such deposit in
discharge of the judgment on said claim and any costs, including attorneys'
fees
and costs incurred by Landlord, and shall remit the balance thereof to
Tenant.
ARTICLE
11
PROJECT
SERVICES
(a) Basic
Services. Landlord agrees to furnish to the Premises,
at a cost to be included in Operating Costs, from 8:00 a.m. to
6:00 p.m. Mondays through Fridays and 9:00 a.m. to 1:00 p.m. on Saturdays,
excepting local and national holidays, air conditioning and heat all in such
reasonable quantities as in the judgment of Landlord is reasonably necessary
for
the comfortable occupancy of the Premises. In addition, Landlord
shall provide electric current for normal lighting and normal office machines,
elevator service and water on the same floor as the Premises for lavatory and
drinking purposes in such reasonable quantities as in the judgment of Landlord
is reasonably necessary for general office use and in compliance with applicable
codes. Janitorial and maintenance services shall be furnished five
(5) days per week, excepting local and national holidays. Tenant
shall comply with all rules and regulations which Landlord may establish for
the
proper functioning and protection of the common area air conditioning, heating,
elevator, electrical, intrabuilding cabling and wiring and plumbing
systems. Landlord shall not be liable for, and there shall be no rent
abatement as a result of, any stoppage, reduction or interruption of any such
services caused by governmental rules, regulations or ordinances, riot, strike,
labor disputes, breakdowns, accidents, necessary repairs or other
cause. Except as specifically provided in this Article 11,
Tenant agrees to pay for all utilities and other services utilized by Tenant
and
any additional building services furnished to Tenant which are not uniformly
furnished to all tenants of the Project, at the rate generally charged by
Landlord to tenants of the Project for such utilities or services.
(b) Excess
Usage. Tenant will not, without the prior written
consent of Landlord, use any apparatus or device in the Premises which will
in
any way increase the amount of electricity or water usually furnished or
supplied for use of the Premises as general office space; nor connect any
apparatus, machine or device with water pipes or electric current (except
through existing electrical outlets in the Premises), for the purpose of using
electric current or water.
(c) Additional
Electrical Service. If Tenant shall require electric
current in excess of that which Landlord is obligated to furnish under
Article 11(a) above, Tenant shall first obtain the written consent of
Landlord, which Landlord may refuse in its sole and absolute
discretion. Additionally, Landlord may cause an electric current
meter or submeter to be installed in or about the Premises to measure the amount
of any such excess electric current consumed by Tenant in the
Premises. The cost of any such meter and of installation, maintenance
and repair thereof shall be paid for by Tenant and Tenant agrees to pay to
Landlord, promptly upon demand therefor by Landlord, for all such excess
electric current consumed by any such use as shown by said meter at the rates
charged for such service by the city in which the Project is located or the
local public utility, as the case may be, furnishing the same, plus any
additional expense incurred by Landlord in keeping account of the electric
current so consumed.
(d) HVAC
Balance. If any lights, machines or equipment
(including but not limited to computers and computer systems and appurtenances)
are used by Tenant in the Premises which materially affect the temperature
otherwise maintained by the air conditioning system, or generate substantially
more heat in the Premises than would be generated by the building standard
lights and usual office equipment, Landlord shall have the right to install
any
machinery and equipment which Landlord reasonably deems necessary to restore
temperature balance, including but not limited to modifications to the standard
air conditioning equipment, and the cost thereof, including the cost of
installation and any additional cost of operation and maintenance occasioned
thereby, shall be paid by Tenant to Landlord upon demand by
Landlord.
(e) Telecommunications. Upon
request from Tenant from time to time, Landlord will provide Tenant with a
listing of telecommunications and media service providers serving the Project,
and Tenant shall have the right to contract directly with the providers of
its
choice. If Tenant wishes to contract with or obtain service from any
provider which does not currently serve the Project or wishes to obtain from
an
existing carrier services which will require the installation of additional
equipment, such provider must, prior to providing service, enter into a written
agreement with Landlord setting forth the terms and conditions of the access
to
be granted to such provider. In considering the installation of any
new or additional telecommunications cabling or equipment at the Project,
Landlord will consider all relevant factors in a reasonable and
non-discriminatory manner, including, without limitation, the existing
availability of services at the Project, the impact of the proposed
installations upon the Project and its operations and the available space and
capacity for the proposed installations. Landlord may also consider
whether the proposed service may result in interference with or interruption
of
other services at the Project or the business operations of other tenants or
occupants of the Project. In no event shall Landlord be obligated to
incur any costs or liabilities in connection with the installation or delivery
of telecommunication services or facilities at the Project. All such
installations shall be subject to Landlord's prior approval, which shall not
be
unreasonably withheld, and shall be performed in accordance with the terms
of
Article 9. If Landlord approves the proposed installations in
accordance with the foregoing, Landlord will deliver its standard form agreement
upon request and will use commercially reasonable efforts to promptly enter
into
an agreement on reasonable and non-discriminatory terms with a qualified,
licensed and reputable carrier confirming the terms of installation and
operation of telecommunications equipment consistent with the
foregoing.
(f) After-Hours
Use. If Tenant requires heating, ventilation and/or
air conditioning during times other than the times provided in
Article 11(a) above, Tenant shall give Landlord such advance notice as
Landlord shall reasonably require and shall pay Landlord's standard charge
for
such after-hours use.
(g) Reasonable
Charges. Landlord may impose a reasonable charge for
any utilities or services (other than electric current and heating, ventilation
and/or air conditioning which shall be governed by Articles 11(c) and (f)
above) utilized by Tenant in excess of the amount or type that Landlord
reasonably determines is typical for general office use.
(h) Sole
Electrical Representative. Tenant agrees that Landlord
shall be the sole and exclusive representative with respect to, and shall
maintain exclusive control over, the reception, utilization and distribution
of
electrical power, regardless of point or means of origin, use or
generation. Tenant shall not have the right to contract directly with
any provider of electrical power or services.
(i) Supplemental
Power. In the event that Tenant desires, at any time, to install
any supplemental power supply at the Project (“Supplemental Power
Equipment”), Landlord shall have the right, in its sole and absolute
discretion, (i) to grant or withhold its consent to the installation of
such Supplemental Power Equipment, and (ii) to designate a
Landlord-affiliated entity to perform all work relating to the design and
installation of such Supplemental Power Equipment.
ARTICLE
12
RIGHTS
OF LANDLORD
(a) Right
of Entry. Except to the extent expressly set forth to
the contrary in Section 9(g) above, Landlord and its agents shall have the
right
to enter the Premises at all reasonable times, for the purpose of cleaning
the
Premises, examining or inspecting the same, serving or posting and keeping
posted thereon notices as provided by law, or which Landlord deems necessary
for
the protection of Landlord or the Project, showing the same to prospective
tenants, lenders or purchasers of the Project, in the case of an emergency,
and
for making such alterations, repairs, improvements or additions to the Premises
or to the Project as Landlord may deem necessary or desirable. If
Tenant shall not be personally present to open and permit an entry into the
Premises at any time when such an entry by Landlord is necessary or permitted
hereunder, Landlord may enter by means of a master key, or may forcibly enter
in
the case of an emergency, in each event without liability to Tenant and without
affecting this Lease.
(b) Maintenance
Work. Landlord reserves the right from time to time,
but subject to payment by and/or reimbursement from Tenant as otherwise provided
herein: (i) to install, use, maintain, repair, replace, relocate and
control for service to the Premises and/or other parts of the Project pipes,
ducts, conduits, wires, cabling, appurtenant fixtures, equipment spaces and
mechanical systems, wherever located in the Premises or the Project,
(ii) to alter, close or relocate any facility in the Premises or the common
areas or otherwise conduct any of the above activities for the purpose of
complying with a general plan for fire/life safety for the Project or otherwise,
and (iii) to comply with any federal, state or local law, rule or
order. Landlord shall attempt to perform any such work with the least
inconvenience to Tenant as is reasonably practicable, but in no event shall
Tenant be permitted to withhold or reduce Basic Rental or other charges due
hereunder as a result of same, make any claim for constructive eviction or
otherwise make any claim against Landlord for interruption or interference
with
Tenant's business and/or operations.
(c) Rooftop. If
Tenant desires to use the rooftop of the Project for any purpose, including
the
installation of communication equipment to be used from the Premises, such
rights will be granted in Landlord's sole discretion and Tenant must negotiate
the terms of any rooftop access with Landlord or the rooftop management company
or lessee holding rights to the rooftop from time to time. Any
rooftop access granted to Tenant will be at prevailing rates and will be
governed by the terms of a separate written agreement or an amendment to this
Lease.
ARTICLE
13
INDEMNITY;
EXEMPTION OF LANDLORD FROM LIABILITY
(a) Indemnity. Tenant
shall indemnify, defend and hold Landlord, its subsidiaries, partners,
affiliates and their respective officers, directors, employees and contractors
(collectively, "Landlord Parties") harmless from any and all
loss, cost, damage, expense and liability (including, without limitation, court
costs and reasonable attorneys’ fees) incurred in connection with or arising
from any cause in, on or about the Premises (including, but not limited to,
a
slip and fall), Tenant's use of the Premises or the Project or from the conduct
of Tenant’s business or from any breach or default in the performance of any
obligation on Tenant's part to be performed under this Lease or arising from
any
acts, omissions, negligence or willful misconduct of Tenant or any of its
agents, contractors, employees or invitees, patrons, customers or members in
or
about the Project. Tenant hereby assumes all risk of damage to
property or injury to persons in, upon or about the Premises from any cause
(including, without limitation, any injury resulting from a slip and fall in,
upon or about the Premises), and Tenant hereby waives all claims in respect
thereof against Landlord and the Landlord Parties, excepting where the damage
is
caused solely by the negligence or willful misconduct of Landlord or the
Landlord Parties.
(b) Exemption
of Landlord from Liability. Landlord and the Landlord Parties
shall not be liable for injury to Tenant's business, or loss of income
therefrom, however occurring (including, without limitation, from any failure
or
interruption of services or utilities). Further, Landlord and the
Landlord Parties shall not be liable for damage or injury that may be sustained
in, upon or about the Premises by Tenant, its employees, invitees, customers,
agents, or contractors, or any other person, except to the extent such damage
or
injury results from the negligence or willful misconduct of Landlord or the
Landlord Parties. Landlord and the Landlord Parties shall not be
liable to Tenant for any damages arising from any willful or negligent action
or
inaction of any other tenant of the Project.
(c) Security. Tenant
acknowledges that Landlord's election whether or not to provide any type of
mechanical surveillance or security personnel whatsoever in the Project is
solely within Landlord's discretion; Landlord and the Landlord Parties shall
have no liability in connection with the provision, or lack, of such services,
and Tenant hereby agrees to hold Landlord and the Landlord Parties harmless
with
regard to any such potential claim. Landlord and the Landlord Parties
shall not be liable for losses due to theft, vandalism, or like
causes. Tenant shall defend, indemnify, and hold Landlord and the
Landlord Parties harmless from any such claims made by any employee, licensee,
invitee, contractor, agent or other person whose presence in, on or about the
Premises or the Project is attendant to the business of Tenant.
ARTICLE
14
INSURANCE
(a) Tenant's
Insurance. Tenant, shall at all times during the Term of this
Lease, and at its own cost and expense, procure and continue in force the
following insurance coverage: (i) Commercial General Liability
Insurance, written on an occurrence basis, with a combined single limit for
bodily injury and property damages of not less than Two Million Dollars
($2,000,000) per occurrence and Three Million Dollars ($3,000,000) in the annual
aggregate, including products liability coverage if applicable, owners and
contractors protective coverage if applicable, blanket contractual coverage
including both oral and written contracts, and personal injury coverage,
covering the insuring provisions of this Lease and the performance of Tenant
of
the indemnity and exemption of Landlord from liability agreements set forth
in
Article 13 hereof; (ii) a policy of standard fire written on special
form, (all risks), including a vandalism and malicious mischief,
sprinkler leakage coverage and earthquake sprinkler leakage where sprinklers
are
provided in an amount equal to the full replacement value new without deduction
for depreciation of all (A) Tenant Improvements, Alterations, fixtures and
other improvements in the Premises, including but not limited to all mechanical,
plumbing, heating, ventilating, air conditioning, electrical, telecommunication
and other equipment, systems and facilities, and (B) trade fixtures,
furniture, equipment and other personal property installed by or at the expense
of Tenant; (iii) Worker's Compensation coverage as required by law; and
(iv) business interruption, loss of income and extra expense insurance
covering any failure or interruption of Tenant's business equipment (including,
without limitation, telecommunications equipment) covering all other
perils, failures or interruptions sufficient to cover a period of interruption
of not less than twelve (12) months.
(b) Form
of Policies. The aforementioned minimum limits of policies and
Tenant's procurement and maintenance thereof shall in no event limit the
liability of Tenant hereunder. The Commercial General Liability
Insurance policy shall name the Landlord Parties, Landlord's lender(s) and
such
other persons or firms as Landlord specifies from time to time, as additional
insured’s. All such insurance policies carried by Tenant shall be with companies
having a rating of not less than A-VIII in Best's Insurance
Guide. Tenant shall furnish to Landlord, from the insurance
companies, or cause the insurance companies to furnish, certificates of
coverage. The deductible under each such policy shall in no event
exceed $5,000.00. No such policy shall be cancelable except after
thirty (30) days prior written notice or ten (10) days of non-payment of
premiums to Landlord by the insurer. All such policies shall be
endorsed to agree that Tenant's policy is primary and that any insurance carried
by Landlord is excess and not contributing with any Tenant insurance requirement
hereunder. Tenant shall, furnish Landlord with renewals or binders
upon issuance of renewal. Tenant agrees that if Tenant does not take
out and maintain such insurance or furnish Landlord with renewals or binders
in
a timely manner, Landlord may (but shall not be required to) procure said
insurance on Tenant's behalf and charge Tenant the cost thereof, which amount
shall be payable by Tenant upon demand with interest (at the rate set forth
in
Section 20(e) below) from the date such sums are
extended. Tenant shall have the right to provide such insurance
coverage pursuant to blanket policies obtained by Tenant, provided such blanket
policies expressly afford coverage to the Premises and to Tenant as required
by
this Lease.
(c) Landlord's
Insurance. Landlord may, as a cost to be included in Operating
Costs, procure and maintain at all times during the Term of this Lease, a policy
or policies of insurance covering loss or damage to the Project in the amount
of
the full replacement costs without deduction for depreciation thereof, providing
protection against all perils included within the classification of fire and
extended coverage, vandalism coverage and malicious mischief, sprinkler leakage,
water damage, and special extended coverage on the
building. Additionally, Landlord may
carry: (i) Bodily Injury and Property Damage Liability Insurance
and/or Excess Liability Coverage Insurance; and (ii) Earthquake and/or
Flood Damage Insurance; and (iii) Rental Income Insurance; and
(iv) any other forms of insurance Landlord may deem appropriate or any
lender may require. The costs of all insurance carried by Landlord
shall be included in Operating Costs.
(d) Waiver
of Subrogation. Landlord and Tenant each agree to require their
respective insurers issuing the insurance described in Sections 14(a)(ii),
14(a)(iv) and the first sentence of Section 14(c), waive any rights of
subrogation that such companies may have against the other
party. Tenant hereby waives any right that Tenant may have against
Landlord and Landlord hereby waives any right that Landlord may have against
Tenant as a result of any loss or damage to the extent such loss or damage
is
insurable under such policies.
(e) Compliance
with Law. Tenant agrees that it will not, at any time, during the
Term of this Lease, carry any stock of goods or do anything in or about the
Premises that will in any way tend to increase the insurance rates upon the
Project. Tenant agrees to pay Landlord forthwith upon demand the
amount of any increase in premiums for insurance that may be carried during
the
Term of this Lease, or the amount of insurance to be carried by Landlord on
the
Project resulting from the foregoing, or from Tenant doing any act in or about
the Premises that does so increase the insurance rates, whether or not Landlord
shall have consented to such act on the part of Tenant. If Tenant
installs upon the Premises any electrical equipment which causes an overload
of
electrical lines of the Premises, Tenant shall at its own cost and expense,
in
accordance with all other Lease provisions (specifically including, but not
limited to, the provisions of Article 9, 10 and 11 hereof), make whatever
changes are necessary to comply with requirements of the insurance underwriters
and any governmental authority having jurisdiction thereover, but nothing herein
contained shall be deemed to constitute Landlord's consent to such
overloading. Tenant shall, at its own expense, comply with all
insurance requirements applicable to the Premises including without limitation,
the installation of fire extinguishers or an automatic dry chemical
extinguishing system.
ARTICLE
15
ASSIGNMENT
AND SUBLETTING
Tenant
shall have no power to, either voluntarily, involuntarily, by operation of
law
or otherwise, sell, assign, transfer or hypothecate this Lease, or sublet the
Premises or any part thereof, or permit the Premises or any part thereof to
be
used or occupied by anyone other than Tenant or Tenant's employees without
the
prior written consent of Landlord, which consent shall not be unreasonably
withheld. If Tenant is a corporation, unincorporated association,
partnership or limited liability company, the sale, assignment, transfer or
hypothecation of any class of stock or other ownership interest in such
corporation, association, partnership or limited liability company in excess
of
forty-nine percent (49%) in the aggregate shall be deemed a "Transfer" within
the meaning and provisions of this Article 15. Tenant may
transfer its interest pursuant to this Lease only upon the following express
conditions, which conditions are agreed by Landlord and Tenant to be
reasonable.
(a) That
the proposed "Transferee" (as hereafter defined) shall be subject to the prior
written consent of Landlord, which consent will not be unreasonably withheld
but, without limiting the generality of the foregoing, it shall be reasonable
for Landlord to deny such consent if:
(i) The
use to be made of the Premises by the proposed Transferee is (a) not
generally consistent with the character and nature of all other tenancies in
the
Project, or (b) a use which conflicts with any so-called "exclusive" then
in favor of, or for any use which might reasonably be expected to diminish
the
rent payable pursuant to any percentage rent lease with another tenant of the
Project or any other buildings which are in the same complex as the Project,
or
(c) a use which would be prohibited by any other portion of this Lease
(including but not limited to any Rules and Regulations then in
effect);
(ii) The
financial responsibility of the proposed Transferee is not reasonably
satisfactory to Landlord or in any event not at least equal to those which
were
possessed by Tenant as of the date of execution of this Lease;
(iii) The
proposed Transferee is either a governmental agency or instrumentality thereof;
or
(iv) Either
the proposed Transferee or any person or entity which directly or indirectly
controls, is controlled by or is under common control with the proposed
Transferee (A) occupies space in the Project at the time of the request for
consent and Landlord has, or will have in the following six (6) months,
comparable space available in the Project or Development (as reasonably
determined by Landlord), or (B) is negotiating with Landlord or has
negotiated with Landlord during the three (3) month period immediately preceding
the date of the proposed Transfer, to lease space in the Project and Landlord
has, or will have in the following six (6) months, comparable space available
in
the Project or Development (as reasonably determined by Landlord).
(b) Upon
Tenant's submission of a request for Landlord's consent to any such Transfer,
Tenant shall pay to Landlord Landlord's then standard processing fee and
reasonable attorneys' fees and costs incurred in connection with the proposed
Transfer, which the parties hereby stipulate to be $1,500.00, unless Landlord
provides to Tenant evidence that Landlord has incurred greater costs in
connection with the proposed Transfer;
(c) That
the proposed Transferee shall execute an agreement pursuant to which it shall
agree to perform faithfully and be bound by all of the terms, covenants,
conditions, provisions and agreements of this Lease applicable to that portion
of the Premises so transferred; and
(d) That
an executed duplicate original of said assignment and assumption agreement
or
other transfer on a form reasonably approved by Landlord, shall be delivered
to
Landlord within five (5) days after the execution thereof, and that such
transfer shall not be binding upon Landlord until the delivery thereof to
Landlord and the execution and delivery of Landlord's consent
thereto. It shall be a condition to Landlord's consent to any
subleasing, assignment or other transfer of part or all of Tenant's interest
in
the Premises (a "Transfer") that (i) upon Landlord's
consent to any Transfer, Tenant shall pay and continue to pay fifty percent
(50%) of any "Transfer Premium" (defined below), received by Tenant from the
transferee; (ii) any sublessee of part or all of Tenant's interest in the
Premises shall agree that in the event Landlord gives such sublessee notice
that
Tenant is in default under this Lease, such sublessee shall thereafter make
all
sublease or other payments directly to Landlord, which will be received by
Landlord without any liability whether to honor the sublease or otherwise
(except to credit such payments against sums due under this Lease), and any
sublessee shall agree to attorn to Landlord or its successors and assigns at
their request should this Lease be terminated for any reason, except that in
no
event shall Landlord or its successors or assigns be obligated to accept such
attornment; (iii) any such Transfer and consent shall be effected on forms
supplied by Landlord and/or its legal counsel; (iv) Landlord may require
that Tenant not then be in default hereunder in any respect; and (v) Tenant
or the proposed subtenant or assignee (collectively,
"Transferee") shall agree to pay Landlord, upon demand, as
Additional Rent, a sum equal to the additional costs, if any, incurred by
Landlord for maintenance and repair as a result of any change in the nature
of
occupancy caused by such subletting or assignment. "Transfer
Premium" shall mean all rent, Additional Rent or other consideration
payable by a Transferee in connection with a Transfer in excess of the Basic
Rental and Direct Costs payable by Tenant under this Lease during the term
of
the Transfer and if such Transfer is for less than all of the Premises, the
Transfer Premium shall be calculated on a rentable square foot
basis. "Transfer Premium" shall also include, but not be limited to,
key money (the difference between the Rent due and payable by Tenant under
this
Lease and the Rent due and payable by the Transferee under the assignment or
sublease, as the case may be), bonus money or other cash consideration paid
by a
Transferee to Tenant in connection with such Transfer. Any Transfer
of this Lease which is not in compliance with the provisions of this
Article 15 shall be voidable by written notice from Landlord and shall, at
the option of Landlord, terminate this Lease. In no event shall the
consent by Landlord to any Transfer be construed as relieving Tenant or any
Transferee from obtaining the express written consent of Landlord to any further
Transfer, or as releasing Tenant from any liability or obligation hereunder
whether or not then accrued and Tenant shall continue to be fully liable
therefor. No collection or acceptance of rent by Landlord from any
person other than Tenant shall be deemed a waiver of any provision of this
Article 15 or the acceptance of any Transferee hereunder, or a release of
Tenant (or of any Transferee of Tenant). Notwithstanding anything to
the contrary in this Lease, if Tenant or any proposed Transferee claims that
Landlord has unreasonably withheld or delayed its consent under this
Article 15 or otherwise has breached or acted unreasonably under this
Article 15, their sole remedies shall be a declaratory judgment and an
injunction for the relief sought without any monetary damages, and Tenant hereby
waives all other remedies, including, without limitation, any right at law
or
equity to terminate this Lease, on its own behalf and, to the extent permitted
under all applicable laws, on behalf of the proposed Transferee.
Notwithstanding
anything to the contrary contained in this Article 15, Landlord shall have
the option, by giving written notice to Tenant (a "Recapture
Notice") within thirty (30) days after Landlord's receipt of a request
for consent to a proposed Transfer, to terminate this Lease as to the portion
of
the Premises that is the subject of the proposed Transfer. If this
Lease is so terminated with respect to less than the entire Premises, the Basic
Rental and Tenant's Proportionate Share shall be prorated based on the number
of
rentable square feet retained by Tenant as compared to the total number of
rentable square feet previously contained in the Premises, and this Lease as
so
amended shall continue thereafter in full force and effect, and upon the request
of either party, the parties shall execute written confirmation of the
same. However, if Landlord delivers a Recapture Notice to Tenant,
Tenant may deliver written notice to Landlord, within ten (10) days after
Tenant's receipt of the Recapture Notice, stating that Tenant is unconditionally
rescinding its request for consent to the proposed Transfer in question, in
which case such Transfer shall not be consummated and this Lease shall remain
in
full force and effect as to the portion of the Premises that was the subject
of
the Transfer, subject to the remaining terms of this Lease. Tenant's
failure to so notify Landlord in writing within said ten (10) day period shall
be deemed to constitute Tenant's election to allow the Recapture Notice to
be
effective.
Notwithstanding
the foregoing, an assignment or subletting of all or a portion of the Premises
to an "Affiliate" of Tenant shall be deemed permitted hereunder (and
shall not require the payment of a Transfer Premium to Landlord and shall not
be
subject to Landlord's rights of recapture set forth in the immediately following
paragraph), provided that (i) Tenant notifies Landlord of any such
assignment or sublease at least fifteen (15) days prior to its effective date
and promptly supplies Landlord with any documents or information requested
by
Landlord regarding such assignment or sublease or such Affiliate, (ii) the
net
worth of Tenant's Affiliate immediately after the date of Transfer shall be
reasonably sufficient to satisfy all of the obligations under this Lease,
(iii) such assignment or sublease is not a subterfuge by Tenant to avoid
its obligations under this Lease, (iv) if the Transfer is an assignment, the
assignee assumes, in full, the obligations of Tenant under this Lease, and
if
the Transfer is a sublease, the Transferee executes such documentation
reasonably required by Landlord in connection with the subordination of such
sublease to this Lease, (v) Tenant remains fully liable under this Lease, and
(vi) the use of the Premises remains unchanged and consistent with the character
of a first-class office building. The term "Affiliate " of Tenant
shall mean an entity which is (a) controlled by, controls, or is under common
control with Tenant; (b) any entity with which Tenant has merged or
consolidated, or (c) any entity which acquires all or substantially all of
the
assets of Tenant, and which continues to operate substantially the same business
at the Premises as had been maintained by Tenant. The term "control,"
or "controlled" as used in this paragraph shall mean the ownership, directly
or
indirectly, of at least fifty percent (50%) of the voting securities of, or
possession of the right to vote, in the ordinary direction of its affairs,
of at
least fifty percent (50%) of the voting interest in, an entity.
ARTICLE
16
DAMAGE
OR DESTRUCTION
If
the
Project is damaged by fire or other casualty and the insurance proceeds have
been made available therefor by the holder or holders of any mortgages or deeds
of trust covering the insured Premises or the Project, the damage shall be
repaired by Landlord to the extent such insurance proceeds are available
therefor and provided such repairs can, in Landlord's sole opinion, be completed
within two hundred ten (210) days after the necessity for repairs as a result
of
such damage becomes known to Landlord, without the payment of overtime or other
premiums, and until such repairs are completed rent shall be abated in
proportion to the part of the Premises which is unusable by Tenant in the
conduct of its business (but there shall be no abatement of rent by reason
of
any portion of the Premises being unusable for a period equal to one (1) day
or
less). However, if the damage is due to the fault or neglect of
Tenant, its employees, agents, contractors, guests, invitees and the like,
there
shall be no abatement of rent, unless and to the extent Landlord receives rental
income insurance proceeds. Upon the occurrence of any damage to the
Premises, Tenant shall assign to Landlord (or to any party designated by
Landlord) all insurance proceeds payable to Tenant under
Section 14(a)(ii)(A) above; provided, however, that if the cost of repair
of improvements within the Premises by Landlord exceeds the amount of insurance
proceeds received by Landlord from Tenant's insurance carrier, as so assigned
by
Tenant, such excess costs shall be paid by Tenant to Landlord prior to
Landlord's repair of such damage. If repairs cannot, in Landlord's
opinion, be completed within two hundred ten (210) days after the necessity
for
repairs as a result of such damage becomes known to Landlord without the payment
of overtime or other premiums, Landlord may, at its option, either (i) make
such repairs in a reasonable time and in such event this Lease shall continue
in
effect and the rent shall be abated, if at all, in the manner provided in this
Article 16, or (ii) elect not to effect such repairs and instead
terminate this Lease, by notifying Tenant in writing of such termination within
sixty (60) days after Landlord learns of the necessity for repairs as a result
of damage, such notice to include a termination date giving Tenant sixty (60)
days to vacate the Premises. In addition, Landlord may elect to
terminate this Lease if the Project shall be damaged by fire or other casualty
or cause, whether or not the Premises are affected, if the damage is not fully
covered, except for deductible amounts, by Landlord's insurance
policies. Finally, if the Premises or the Project is damaged to any
substantial extent during the last twelve (12) months of the Term and Tenant
elects not to exercise any existing renewal option in its favor (which has
not
been previously waived or expired), then notwithstanding anything contained
in
this Article 16 to the contrary, Landlord and/or Tenant shall have the option
to
terminate this Lease by giving written notice to the other party of the exercise
of such option within sixty (60) days after the parties learn of the necessity
for repairs as the result of such damage. A total destruction of the
Project shall automatically terminate this Lease. Except as provided
in this Article 16, there shall be no abatement of rent and no liability of
Landlord by reason of any injury to or interference with Tenant's business
or
property arising from such damage or destruction or the making of any repairs,
alterations or improvements in or to any portion of the Project or the Premises
or in or to fixtures, appurtenances and equipment therein. Tenant
understands that Landlord will not carry insurance of any kind on Tenant's
furniture, furnishings, trade fixtures or equipment, and that Landlord shall
not
be obligated to repair any damage thereto or replace the same. Tenant
acknowledges that Tenant shall have no right to any proceeds of insurance
carried by Landlord relating to property damage. With respect to any
damage which Landlord is obligated to repair or elects to repair, Tenant, as
a
material inducement to Landlord entering into this Lease, irrevocably waives
and
releases its rights under the provisions of Sections 1932 and 1933 of the
California Civil Code.
This
paragraph shall apply only in the event of damage or destruction to the Premises
not arising out of the gross negligence or willful misconduct of Tenant or
its
agents, employees, licensees, invitees, subtenants, affiliates, successors,
assigns, contractors or subcontractors, where the Premises are rendered
untenantable as a result of the damage or destruction in question and Landlord
does not elect to terminate this Lease pursuant to the provisions
above. If the estimated completion date of the repairs to the damage
or destruction is greater than two hundred ten (210) days after the date
Landlord learns of the damage, Tenant may elect, no later than thirty (30)
days
after Tenant's receipt of a certificate from Landlord describing the scope
of
the restoration and repair obligations and estimating the date said obligations
are expected to be substantially completed so Tenant can resume normal business
operations, to terminate this Lease by written notice to Landlord effective
as
of the date specified in Tenant's notice, which date shall be not greater than
sixty (60) days after the date of delivery of Tenant's
notice. Furthermore, if neither Landlord nor Tenant have terminated
this Lease and the repairs are not actually completed within two hundred ten
(210) days after the date Landlord learns of the damage (which two hundred
ten
(210) day period shall be extended only by delays resulting from the gross
negligence or willful misconduct of Tenant and/or its agents, employees,
licensees, invitees, subtenants, affiliates, successors, assigns, contractors
or
subcontractors), Tenant shall have the right to terminate this Lease within
five
(5) business days after the end of such period, by written notice to Landlord
(the "Damage Termination Notice"), effective as of the date set forth in the
Damage Termination Notice (the "Damage Termination Date"), which Damage
Termination Date shall not be less than five (5) business days following the
end
of such period. Notwithstanding the foregoing, if Tenant delivers a
Damage Termination Notice to Landlord, then Landlord shall have the right to
suspend the occurrence of the Damage Termination Date for a period ending thirty
(30) days after the Damage Termination Date set forth in the Damage Termination
Notice by delivering to Tenant, within five (5) business days of Landlord's
receipt of the Damage Termination Notice, a certificate of Landlord's contractor
responsible for the repair of the damage certifying that it is such contractor's
good faith judgment that the repairs shall be substantially completed within
thirty (30) days after the Damage Termination Date. If repairs shall
be substantially completed prior to the expiration of such thirty (30) day
period, then the Damage Termination Notice shall be of no force or effect but
if
the repairs shall not be substantially completed within such thirty (30) day
period, then this Lease shall terminate upon the expiration of such thirty
(30)
day period. If Landlord undertakes repair and/or restoration pursuant
to the provisions above and thereafter determines that it will not be able
to
complete the same within the two hundred ten (210) day period set forth herein,
then Landlord shall promptly notify Tenant thereof and shall provide Tenant
with
Landlord's revised estimate of the date upon which Landlord will complete the
same ("Revised Completion Date"). Within fifteen (15) business days
after Tenant's receipt of such notice, Tenant shall have the right, but not
the
obligation, to elect to terminate this Lease or to agree to extend the two
hundred ten (210) day period to the Revised Completion Date. Tenant's
failure to elect to terminate or to extend such time period to the Revised
Completion Date by written notice to Landlord within such fifteen (15) business
day period shall be conclusively deemed to be Tenant's election to extend the
time to the Revised Completion Date. Upon any such termination of
this Lease pursuant to this Article 16, Tenant shall pay the rent and all other
amounts due under this Lease, properly apportioned up to such date of
termination, and both parties hereto shall thereafter be freed and discharged
of
all further obligations accruing after such termination, except as provided
for
in provisions of this Lease which by their terms survive the expiration or
earlier termination of the Term.
ARTICLE
17
SUBORDINATION
This
Lease is subject and subordinate to all ground or underlying leases, mortgages
and deeds of trust which affect the property or the Project, including all
renewals, modifications, consolidations, replacements and extensions thereof;
provided, however, if the lessor under any such lease or the holder or holders
of any such mortgage or deed of trust shall advise Landlord that they desire
or
require this Lease to be prior and superior thereto, upon written request of
Landlord to Tenant, Tenant agrees to promptly execute, acknowledge and deliver
any and all documents or instruments which Landlord or such lessor, holder
or
holders deem necessary or desirable for purposes thereof. Landlord
shall have the right to cause this Lease to be and become and remain subject
and
subordinate to any and all ground or underlying leases, mortgages or deeds
of
trust which may hereafter be executed covering the Premises, the Project or
the
property or any renewals, modifications, consolidations, replacements or
extensions thereof, for the full amount of all advances made or to be made
thereunder and without regard to the time or character of such advances,
together with interest thereon and subject to all the terms and provisions
thereof; provided, however, that Landlord obtains from the lender or other
party
in question a written undertaking in favor of Tenant to the effect that such
lender or other party will not disturb Tenant's right of possession under this
Lease if Tenant is not then or thereafter in breach of any covenant or provision
of this Lease. Tenant agrees, within ten (10) days after Landlord's
written request therefor, to execute, acknowledge and deliver upon request
any
and all documents or instruments requested by Landlord or necessary or proper
to
assure the subordination of this Lease to any such mortgages, deed of trust,
or
leasehold estates. Tenant agrees that in the event any proceedings
are brought for the foreclosure of any mortgage or deed of trust or any deed
in
lieu thereof, to attorn to the purchaser or any successors thereto upon any
such
foreclosure sale or deed in lieu thereof as so requested to do so by such
purchaser and to recognize such purchaser as the lessor under this Lease; Tenant
shall, within five (5) days after request execute such further instruments
or
assurances as such purchaser may reasonably deem necessary to evidence or
confirm such attornment. Tenant agrees to provide copies of any
notices of Landlord's default under this Lease to any mortgagee or deed of
trust
beneficiary whose address has been provided to Tenant and Tenant shall provide
such mortgagee or deed of trust beneficiary a commercially reasonable time
after
receipt of such notice within which to cure any such default. Tenant
waives the provisions of any current or future statute, rule or law which may
give or purport to give Tenant any right or election to terminate or otherwise
adversely affect this Lease and the obligations of the Tenant hereunder in
the
event of any foreclosure proceeding or sale.
ARTICLE
18
EMINENT
DOMAIN
If
the
whole of the Premises or the Project or so much thereof as to render the balance
unusable by Tenant shall be taken under power of eminent domain, or is sold,
transferred or conveyed in lieu thereof, this Lease shall automatically
terminate as of the date of such condemnation, or as of the date possession
is
taken by the condemning authority, at Landlord's option. No award for
any partial or entire taking shall be apportioned, and Tenant hereby assigns
to
Landlord any award which may be made in such taking or condemnation, together
with any and all rights of Tenant now or hereafter arising in or to the same
or
any part thereof; provided, however, that nothing contained herein shall be
deemed to give Landlord any interest in or to require Tenant to assign to
Landlord any award made to Tenant for the taking of personal property and trade
fixtures belonging to Tenant and removable by Tenant at the expiration of the
Term hereof as provided hereunder or for loss of goodwill, Tenant's relocation
costs or the interruption of, or damage to, Tenant's business. In the
event of a partial taking described in this Article 18, or a sale, transfer
or conveyance in lieu thereof, which does not result in a termination of this
Lease, the rent shall be apportioned according to the ratio that the part of
the
Premises remaining useable by Tenant bears to the total area of the
Premises. Tenant hereby waives any and all rights it might otherwise
have pursuant to Section 1265.130 of the California Code of Civil
Procedure.
ARTICLE
19
DEFAULT
Each
of
the following acts or omissions of Tenant or of any guarantor of Tenant's
performance hereunder, or occurrences, shall constitute an "Event of
Default":
(a) Failure
or refusal to pay Basic Rental, Additional Rent or any other amount to be paid
by Tenant to Landlord hereunder within three (3) calendar days after notice
that
the same is due or payable hereunder; said three (3) day period shall be in
lieu
of, and not in addition to, the notice requirements of Section 1161 of the
California Code of Civil Procedure or any similar or successor law;
(b) Except
where a specific time period is otherwise set forth for Tenant's performance
in
this Lease, in which event the failure to perform by Tenant within such time
period shall be a default under this Article 19(b), and except as set forth
in
items (a) above and (c) through and including (g) below, failure to perform
or observe any other covenant or condition of this Lease to be performed or
observed within thirty (30) days following written notice to Tenant of such
failure ("Default Notice"); provided, however, that if the
nature of Tenant's obligation is such that more than thirty (30) days are
required for performance, then Tenant shall not be in default if Tenant
commences performance within such thirty (30) day period and thereafter
diligently prosecutes the same to completion within sixty (60) days after
receipt of the Default Notice. Such thirty (30) day notice shall be
in lieu of, and not in addition to, any required under Section 1161 of the
California Code of Civil Procedure or any similar or successor law;
(c) Abandonment
or vacating or failure to accept tender of possession of the Premises or any
significant portion thereof;
(d) The
taking in execution or by similar process or law (other than by eminent domain)
of the estate hereby created;
(e) The
filing by Tenant or any guarantor hereunder in any court pursuant to any statute
of a petition in bankruptcy or insolvency or for reorganization or arrangement
for the appointment of a receiver of all or a portion of Tenant's property;
the
filing against Tenant or any guarantor hereunder of any such petition, or the
commencement of a proceeding for the appointment of a trustee, receiver or
liquidator for Tenant, or for any guarantor hereunder, or of any of the property
of either, or a proceeding by any governmental authority for the dissolution
or
liquidation of Tenant or any guarantor hereunder, if such proceeding shall
not
be dismissed or trusteeship discontinued within thirty (30) days after
commencement of such proceeding or the appointment of such trustee or receiver;
or the making by Tenant or any guarantor hereunder of an assignment for the
benefit of creditors. Tenant hereby stipulates to the lifting of the
automatic stay in effect and relief from such stay for Landlord in the event
Tenant files a petition under the United States Bankruptcy laws, for the purpose
of Landlord pursuing its rights and remedies against Tenant and/or a guarantor
of this Lease;
(f) Tenant's
failure to cause to be released any mechanics liens filed against the Premises
or the Project within ten (10) days after the date the same shall have been
filed or recorded; or
(g) Tenant's
failure to observe or perform according to the provisions of Articles 7, 14,
17
or 25 within two (2) business days after notice from Landlord.
All
defaults by Tenant of any covenant or condition of this Lease shall be deemed
by
the parties hereto to be material.
ARTICLE
20
REMEDIES
(a) Upon
the occurrence of an Event of Default under this Lease as provided in
Article 19 hereof, Landlord may exercise all of its remedies as may be
permitted by law, including but not limited to the remedy provided by Section
1951.4 of the California Civil Code, and including without limitation,
terminating this Lease, reentering the Premises and removing all persons and
property therefrom, which property may be stored by Landlord at a warehouse
or
elsewhere at the risk, expense and for the account of Tenant. If
Landlord elects to terminate this Lease, Landlord shall be entitled to recover
from Tenant the aggregate of all amounts permitted by law, including but not
limited to (i) the worth at the time of award of the amount of any unpaid
rent which had been earned at the time of such termination; plus (ii) the
worth at the time of award of the amount by which the unpaid rent which would
have been earned after termination until the time of award exceeds the amount
of
such rental loss that Tenant proves could have been reasonably avoided; plus
(iii) the worth at the time of award of the amount by which the unpaid rent
for the balance of the Lease Term after the time of award exceeds the amount
of
such rental loss that Tenant proves could have been reasonably avoided; plus
(iv) any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its obligations
under this Lease or which in the ordinary course of things would be likely
to
result therefrom, specifically including but not limited to, tenant improvement
expenses, brokerage commissions and advertising expenses incurred, expenses
of
remodeling the Premises or any portion thereof for a new tenant, whether for
the
same or a different use, and any special concessions made to obtain a new
tenant; and (v) at Landlord's election, such other amounts in addition to
or in lieu of the foregoing as may be permitted from time to time by applicable
law. The term "rent" as used in this Article 20(a) shall be
deemed to be and to mean all sums of every nature required to be paid by Tenant
pursuant to the terms of this Lease, whether to Landlord or to
others. As used in items (i) and (ii), above, the "worth at the time
of award" shall be computed by allowing interest at the rate set forth in item
(e), below, but in no case greater than the maximum amount of such interest
permitted by law. As used in item (iii), above, the "worth at
the time of award" shall be computed by discounting such amount at the discount
rate of the Federal Reserve Bank of San Francisco at the time of award plus
one
percent (1%).
(b) Nothing
in this Article 20 shall be deemed to affect Landlord's right to
indemnification for liability or liabilities arising prior to the termination
of
this Lease for personal injuries or property damage under the indemnification
clause or clauses contained in this Lease.
(c) Notwithstanding
anything to the contrary set forth herein, Landlord's re-entry to perform acts
of maintenance or preservation of or in connection with efforts to relet the
Premises or any portion thereof, or the appointment of a receiver upon
Landlord's initiative to protect Landlord's interest under this Lease shall
not
terminate Tenant's right to possession of the Premises or any portion thereof
and, until Landlord does elect to terminate this Lease, this Lease shall
continue in full force and effect and Landlord may enforce all of Landlord's
rights and remedies hereunder including, without limitation, the remedy
described in California Civil Code Section 1951.4 (lessor may continue lease
in
effect after lessee's breach and abandonment and recover rent as it becomes
due,
if Lessee has the right to sublet or assign, subject only to reasonable
limitations). Accordingly, if Landlord does not elect to terminate
this Lease on account of any default by Tenant, Landlord may, from time to
time,
without terminating this Lease, enforce all of its rights and remedies under
this Lease, including the right to recover all rent as it becomes
due.
(d) All
rights, powers and remedies of Landlord hereunder and under any other agreement
now or hereafter in force between Landlord and Tenant shall be cumulative and
not alternative and shall be in addition to all rights, powers and remedies
given to Landlord by law, and the exercise of one or more rights or remedies
shall not impair Landlord's right to exercise any other right or
remedy.
(e) Any
amount due from Tenant to Landlord hereunder which is not paid when due shall
bear interest at the lower of eighteen percent (18%) per annum or the maximum
lawful rate of interest from the due date until paid, unless otherwise
specifically provided herein, but the payment of such interest shall not excuse
or cure any default by Tenant under this Lease. In addition to such
interest: (i) if Basic Rental is not paid on or before the fifth
(5th) day of
the calendar month for which the same is due, a late charge equal to ten percent
(10%) of the amount overdue or $100, whichever is greater, shall be immediately
due and owing and shall accrue for each calendar month or part thereof until
such rental, including the late charge, is paid in full, which late charge
Tenant hereby agrees is a reasonable estimate of the damages Landlord shall
suffer as a result of Tenant's late payment and (ii) an additional charge of
$25
shall be assessed for any check given to Landlord by or on behalf of Tenant
which is not honored by the drawee thereof; which damages include Landlord's
additional administrative and other costs associated with such late payment
and
unsatisfied checks and the parties agree that it would be impracticable or
extremely difficult to fix Landlord's actual damage in such
event. Such charges for interest and late payments and unsatisfied
checks are separate and cumulative and are in addition to and shall not diminish
or represent a substitute for any or all of Landlord's rights or remedies under
any other provision of this Lease.
(f)
Whether or not Landlord elects to terminate this Lease on account of any default
by Tenant, as set forth in this Article 20, Landlord shall have the right
to terminate any and all subleases, licenses, concessions or other consensual
arrangements for possession entered into by Tenant and affecting the Premises
or
may, in Landlord's sole discretion, succeed to Tenant's interest in such
subleases, licenses, concessions or arrangements. In the event of
Landlord's election to succeed to Tenant's interest in any such subleases,
licenses, concessions or arrangements, Tenant shall, as of the date of notice
by
Landlord of such election, have no further right to or interest in the rent
or
other consideration receivable thereunder.
(g) Landlord
shall not be in default under this Lease unless Landlord fails to perform
obligations required of Landlord within thirty (30) days after written notice
is
delivered by Tenant to Landlord and to the holder of any mortgages or deeds
of
trust (collectively, "Lender") covering the Premises whose name
and address shall have theretofore been furnished to Tenant in writing,
specifying the obligation which Landlord has failed to perform; provided,
however, that if the nature of Landlord's obligation is such that more than
thirty (30) days are required for performance, then Landlord shall not be in
default if Landlord or Lender commences performance within such thirty (30)
day
period and thereafter diligently prosecutes the same to completion.
(h) In
the event of any default, breach or violation of Tenant's rights under this
Lease by Landlord, Tenant's exclusive remedies shall be an action for specific
performance (including injunctive relief) or action for actual
damages. Without limiting any other waiver by Tenant which may be
contained in this Lease, Tenant hereby waives the benefit of any laws granting
it the right to perform Landlord's obligation, or the right to terminate this
Lease on account of any Landlord default.
ARTICLE
21
TRANSFER
OF LANDLORD'S INTEREST
In
the
event of any transfer or termination of Landlord's interest in the Premises
or
the Project by sale, assignment, transfer, foreclosure, deed-in-lieu of
foreclosure or otherwise whether voluntary or involuntary, Landlord shall be
automatically relieved of any and all obligations and liabilities on the part
of
Landlord from and after the date of such transfer or termination, including
furthermore without limitation, the obligation of Landlord under Article 4
and California Civil Code 1950.7 above to return the security deposit, provided
said security deposit is transferred to said transferee. Tenant
agrees to attorn to the transferee upon any such transfer and to recognize
such
transferee as the lessor under this Lease and Tenant shall, within five (5)
days
after request, execute such further instruments or assurances as such transferee
may reasonably deem necessary to evidence or confirm such
attornment.
ARTICLE
22
BROKER
In
connection with this Lease, Tenant warrants and represents that it has had
dealings only with firm(s) set forth in Article 1.H. of the Basic Lease
Provisions and that it knows of no other person or entity who is or might be
entitled to a commission, finder's fee or other like payment in connection
herewith and does hereby indemnify and agree to hold Landlord, its agents,
members, partners, representatives, officers, affiliates, shareholders,
employees, successors and assigns harmless from and against any and all loss,
liability and expenses that Landlord may incur should such warranty and
representation prove incorrect, inaccurate or false.
ARTICLE
23
PARKING
Tenant
shall have the right to use, free of charge during the initial Term, commencing
on the Commencement Date, up to the number of unreserved parking passes set
forth in Section 1(I) of the Basic Lease Provisions, which parking passes shall
pertain to the Project parking facility. Tenant's continued right to
use the parking passes is conditioned upon Tenant abiding by all rules and
regulations which are prescribed from time to time for the orderly operation
and
use of the parking facility where the parking passes are located, including
any
sticker or other identification system established by Landlord, Tenant's
cooperation in seeing that Tenant's employees and visitors also comply with
such
rules and regulations, and Tenant not being in default under this
Lease. Landlord specifically reserves the right to change the size,
configuration, design, layout and all other aspects of the Project parking
facility at any time and Tenant acknowledges and agrees that Landlord may,
without incurring any liability to Tenant and without any abatement of rent
under this Lease, from time to time, close-off or restrict access to the Project
parking facility for purposes of permitting or facilitating any such
construction, alteration or improvements. Landlord may, from time to
time, relocate any reserved parking spaces (if any) used by Tenant to another
location in the Project parking facility. Landlord may delegate its
responsibilities hereunder to a parking operator or a lessee of the parking
facility in which case such parking operator or lessee shall have all the rights
of control attributed hereby to the Landlord. The parking passes used
by Tenant pursuant to this Article 23 are provided to Tenant solely for use
by Tenant's own personnel and such passes may not be transferred, assigned,
subleased or otherwise alienated by Tenant (other than to a Transferee approved
by Landlord pursuant to Article 15, above) without Landlord's prior
approval.
ARTICLE
24
WAIVER
No
waiver
by Landlord or Tenant of any provision of this Lease shall be deemed to be
a
waiver of any other provision hereof or of any subsequent breach by the other
of
the same or any other provision. No provision of this Lease may be
waived by Landlord or Tenant, except by an instrument in writing executed by
the
waiving party. Landlord's consent to or approval of any act by Tenant
requiring Landlord's consent or approval shall not be deemed to render
unnecessary the obtaining of Landlord's consent to or approval of any subsequent
act of Tenant, whether or not similar to the act so consented to or
approved. Tenant's consent to or approval of any act by Landlord
requiring Tenant's consent or approval shall not be deemed to render unnecessary
the obtaining of Tenant's consent to or approval of any subsequent act of
Landlord, whether or not similar to the act so consented to or
approved. No act or thing done by Landlord or Landlord's agents
during the Term of this Lease shall be deemed an acceptance of a surrender
of
the Premises, and no agreement to accept such surrender shall be valid unless
in
writing and signed by Landlord. The subsequent acceptance of rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any term, covenant or condition of this Lease, other than the
failure of Tenant to pay the particular rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of
such
rent. Any payment by Tenant or receipt by Landlord of an amount less
than the total amount then due hereunder shall be deemed to be in partial
payment only thereof and not a waiver of the balance due or an accord and
satisfaction, notwithstanding any statement or endorsement to the contrary
on
any check or any other instrument delivered concurrently therewith or in
reference thereto. Accordingly, Landlord may accept any such amount
and negotiate any such check without prejudice to Landlord's right to recover
all balances due and owing and to pursue its other rights against Tenant under
this Lease, regardless of whether Landlord makes any notation on such instrument
of payment or otherwise notifies Tenant that such acceptance or negotiation
is
without prejudice to Landlord's rights.
ARTICLE
25
ESTOPPEL
CERTIFICATE
Tenant
shall, at any time and from time to time, upon not less than ten (10) days'
prior written notice from Landlord, execute, acknowledge and deliver to Landlord
a statement in writing certifying the following information, (but not limited
to
the following information in the event further information is requested by
Landlord): (i) that this Lease is unmodified and in full force
and effect (or, if modified, stating the nature of such modification and
certifying that this Lease, as modified, is in full force and effect);
(ii) the dates to which the rental and other charges are paid in advance,
if any; (iii) the amount of Tenant's security deposit, if any; and
(iv) acknowledging that there are not, to Tenant's knowledge, any uncured
defaults on the part of Landlord hereunder, and no events or conditions then
in
existence which, with the passage of time or notice or both, would constitute
a
default on the part of Landlord hereunder, or specifying such defaults, events
or conditions, if any are claimed. It is expressly understood and
agreed that any such statement may be relied upon by any prospective purchaser
or encumbrancer of all or any portion of the Real Property. Tenant's
failure to deliver such statement within such time shall constitute an admission
by Tenant that all statements contained therein are true and
correct. Tenant hereby irrevocably appoints Landlord as Tenant's
attorney-in-fact and in Tenant's name, place and stead to execute any and all
documents described in this Article 25 if Tenant fails to do so within the
specified time period.
Landlord
shall, but only in connection with Tenant's Transfer of this Lease, merger,
consolidation or sale of its assets or obtainment of financing for its business,
upon not less than thirty (30) days prior written notice from Tenant, execute,
acknowledge and deliver to Tenant a statement in writing certifying the
following information: (i) that this Lease is unmodified and in
full force and effect (or, if modified, stating the nature of such modification
and certifying that this Lease, as modified, is in full force and effect);
(ii) the dates to which Tenant's rental and other charges are paid in
advance, if any; (iii) the amount of Tenant's security deposit, if any; and
(iv) acknowledging that there are not, to Landlord's actual knowledge, any
uncured defaults on the part of Tenant hereunder, and no events or conditions
then in existence which, with the passage of time or notice or both, would
constitute a default on the part of Tenant hereunder, or specifying such
defaults, events or conditions, if any are claimed. It is expressly
understood and agreed that any such statement may be relied upon only by Tenant,
such Transferee and/or Tenant's lender.
ARTICLE
26
LIABILITY
OF LANDLORD
Notwithstanding
anything in this Lease to the contrary, any remedy of Tenant for the collection
of a judgment (or other judicial process) requiring the payment of money by
Landlord in the event of any default by Landlord hereunder or any claim, cause
of action, obligation, contractual statutory or otherwise by Tenant against
Landlord or the Landlord Parties concerning, arising out of or relating to
any
matter relating to this Lease and all of the covenants and conditions or any
obligations, contractual, statutory, or otherwise set forth herein, shall be
limited solely and exclusively to an amount which is equal to the interest
of
Landlord in and to the Project (including Landlord's interest in any proceeds
of
insurance policies). No other property or assets of Landlord, or any
member, officer, director, shareholder, partner, trustee, agent, servant or
employee of Landlord (“Representative”) shall be subject to
levy, execution or other enforcement procedure for the satisfaction of Tenant’s
remedies under or with respect to this Lease, Landlord’s obligations to Tenant,
whether contractual, statutory or otherwise, the relationship of Landlord and
Tenant hereunder, or Tenant’s use or occupancy of the
Premises. Tenant further understands that any liability, duty or
obligation of Landlord to Tenant which accrues from and after the date of
transfer, shall automatically cease and terminate as of the date that Landlord
or any of Landlord’s Representatives no longer have any right, title or interest
in or to the Project. Notwithstanding any contrary provision herein,
neither Landlord nor any Landlord Representative shall be liable under any
circumstances for injury or damage to, or interference with, Tenant's business,
including but not limited to, loss of profits, loss of rents or other revenues,
loss of business opportunity, loss of goodwill or loss of use, in each case,
however occurring.
ARTICLE
27
INABILITY
TO PERFORM
Except
for Tenant's obligations to pay Basic Rental, Additional Rent and any other
charge or sum payable by Tenant under this Lease, this Lease and the obligations
of Landlord and Tenant hereunder shall not be affected or impaired because
Landlord or Tenant, as the case may be, is unable to fulfill any of its
obligations hereunder or is delayed in doing so, if such inability or delay
is
caused by reason of any prevention, delay, stoppage due to strikes, lockouts,
acts of God, or any other cause previously, or at such time, beyond the
reasonable control or anticipation of Landlord or Tenant, as the case may be
(collectively, a "Force Majeure") in which event Landlord's or
Tenant's, as the case may be, obligations under this Lease shall be forgiven
and
suspended by and to the extent of any such Force Majeure.
ARTICLE
28
HAZARDOUS
WASTE
(a) Tenant
shall not cause or permit any Hazardous Material (as defined in
Article 28(d) below) to enter or be brought, kept or used in or about the
Project by Tenant, its agents, employees, contractors, or
invitees. Tenant indemnifies Landlord and the Landlord Parties from
and against any breach by Tenant of the obligations stated in this
Article 28, and agrees to defend and hold Landlord and the Landlord Parties
harmless from and against any and all claims, judgments, damages, penalties,
fines, costs, liabilities, or losses (including, without limitation, diminution
in value of the Project, damages for the loss or restriction or use of rentable
or usable space or of any amenity of the Project, damages arising from any
adverse impact or marketing of space in the Project, and sums paid in settlement
of claims, attorneys' fees and costs, consultant fees, and expert fees) which
arise during or after the Term of this Lease as a result of such
breach. This indemnification of Landlord and the Landlord Parties by
Tenant includes, without limitation, costs incurred in connection with any
investigation of site conditions or any cleanup, remedial, removal, or
restoration work required by any federal, state, or local governmental agency
or
political subdivision because of Hazardous Material present in the soil or
ground water on or under the Project. Without limiting the foregoing,
if the presence of any Hazardous Material on the Project caused or permitted
by
Tenant results in any contamination of the Project, then subject to the
provisions of Articles 9, 10 and 11 hereof, Tenant shall promptly take all
actions at its sole expense as are necessary to return the Project to the
condition existing prior to the introduction of any such Hazardous Material
and
the contractors to be used by Tenant for such work must be approved by Landlord,
which approval shall not be unreasonably withheld so long as such actions would
not potentially have any material adverse long-term or short-term effect on
the
Project and so long as such actions do not materially interfere with the use
and
enjoyment of the Project by the other tenants thereof; provided however,
Landlord shall also have the right, by written notice to Tenant, to directly
undertake any such mitigation efforts with regard to Hazardous Materials in
or
about the Project due to Tenant's breach of its obligations pursuant to this
Section 28(a), and to charge Tenant, as Additional Rent, for the costs
thereof. Landlord and Tenant specifically agree that Tenant shall not
be responsible or liable to Landlord or to other parties for any of Landlord's
Hazardous Materials (defined below) which are released or brought in, on, under
or about the Project by Landlord or any agent, employee, contractor or
representative of Landlord. The term "Landlord's Hazardous Materials"
shall mean Hazardous Materials which are present in, on, under or about the
Project or Premises (A) as of the date of this Lease regardless of the source
of
such materials, or (B) which are released or brought in, on, under or about
the
Project or Premises by another tenant of the Project or Landlord or any agent,
employee, contractor or representative of Landlord on or after the date of
this
Lease. Landlord's Hazardous Materials shall specifically not include
any Hazardous Materials released, disturbed, transported, stored, generated
or
used by Tenant or any agent, representative, contractor, licensee, invitee,
customer or employee of Tenant in connection with or related to any dealings
with Tenant or otherwise at the Project after the date of this
Lease.
(b) Intentionally
Omitted.
(c) It
shall not be unreasonable for Landlord to withhold its consent to any proposed
Transfer if (i) the proposed transferee's anticipated use of the Premises
involves the generation, storage, use, treatment, or disposal of Hazardous
Material; (ii) the proposed Transferee has been required by any prior
landlord, lender, or governmental authority to take remedial action in
connection with Hazardous Material contaminating a property if the contamination
resulted from such Transferee's actions or use of the property in question;
or
(iii) the proposed Transferee is subject to an enforcement order issued by
any governmental authority in connection with the use, disposal, or storage
of a
Hazardous Material.
(d) As
used herein, the term "Hazardous Material" means any hazardous,
toxic or other substance, material, or waste which is or becomes
regulated by any local governmental authority, the State of California or the
United States Government. The term "Hazardous Material" includes,
without limitation, any material or substance which is (i) defined as
"Hazardous Waste," "Extremely Hazardous Waste," or "Restricted Hazardous Waste"
under Sections 25115, 25117 or 25122.7, or listed pursuant to Section 25140,
of
the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous
Waste
Control Law), (ii) defined as a "Hazardous Substance" under Section 25316
of the California Health and Safety Code, Division 20, Chapter 6.8
(Xxxxxxxxx-Xxxxxxx-Xxxxxx Hazardous Substance Account Act), (iii) defined
as a "Hazardous Material," "Hazardous Substance," or "Hazardous Waste" under
Section 25501 of the California Health and Safety Code, Division 20, Chapter
6.95 (Hazardous Materials Release Response Plans and Inventory),
(iv) defined as a "Hazardous Substance" under Section 25281 of the
California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage
of Hazardous Substances), (v) regulated by Section 26100 et seq. of the
California Health and Safety Code, Division 20, Chapter 18 (Toxic Mold
Protection Act of 2001), (vi) petroleum, (vii) asbestos,
(viii) listed under Article 9 or defined as Hazardous or extremely
hazardous pursuant to Article 11 of Title 22 of the California
Administrative Code, Division 4, Chapter 20, (ix) designated as a
"Hazardous Substance" pursuant to Section 311 of the Federal Water Pollution
Control Act (33 U.S.C. § 1317), (x) defined as a "Hazardous Waste"
pursuant to Section 1004 of the Federal Resource Conservation and Recovery
Act,
42 U.S.C. § 6901 et seq. (42 U.S.C. § 6903), or (xi) defined as a
"Hazardous Substance" pursuant to Section 101 of the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (42
U.S.C. § 9601).
(e) As
used herein, the term "Laws" means any applicable federal,
state or local law, ordinance, or regulation relating to any Hazardous Material
affecting the Project, including, without limitation, the laws, ordinances,
and
regulations referred to in Article 28(d) above.
ARTICLE
29
SURRENDER
OF PREMISES; REMOVAL OF PROPERTY
(a) The
voluntary or other surrender of this Lease by Tenant to Landlord, or a mutual
termination hereof, shall not work a merger, and shall at the option of
Landlord, operate as an assignment to it of any or all subleases or subtenancies
affecting the Premises.
(b) Upon
the
expiration of the Term of this Lease, or upon any earlier termination of this
Lease, Tenant shall quit and surrender possession of the Premises to Landlord
in
good order and condition, reasonable wear and tear and repairs which are
Landlord's obligation excepted, and shall, without expense to Landlord, remove
or cause to be removed from the Premises all debris and rubbish, all furniture,
equipment, business and trade fixtures, free-standing cabinet work, moveable
partitioning, telephone and data cabling and wiring (including telephone and
data jacks) and other articles of personal property owned by Tenant
or installed or placed by Tenant at its own expense in the Premises, and all
similar articles of any other persons claiming under Tenant (unless Landlord
exercises its option to have any subleases or subtenancies assigned to it),
and
Tenant shall repair all damage to the Premises resulting from the removal of
such items from the Premises. The removal of telephone and data
cabling and wiring shall be performed in accordance with all applicable law
including, without limitation, The National Electric Code.
(c) Whenever
Landlord shall reenter the Premises as provided in Article 20 hereof, or as
otherwise provided in this Lease, any property of Tenant not removed by Tenant
upon the expiration of the Term of this Lease (or within forty-eight (48) hours
after a termination by reason of Tenant's default), as provided in this Lease,
shall be considered abandoned property ("Abandoned
Property"). Landlord may take any one or more of the
following actions with respect to Abandoned Property: (i) remove
any or all of the Abandoned Property from the Premises, (ii) dispose of any
or all of the Abandoned Property in any manner, (iii) store any or all of
the Abandoned Property in any location at the expense and risk of Tenant, and/or
(iv) sell any or all of the Abandoned Property at public or private sale,
in such manner and at such times and places as Landlord, in its sole discretion,
may deem proper, without notice to or demand upon Tenant. If Landlord
sells the Abandoned Property, Landlord shall apply the proceeds of such sale
as
follows: first, to the cost and expense of such sale, including
reasonable attorneys' fees and costs for services rendered; second, to the
payment of the cost of or charges for storing any such property; third, to
the
payment of any other sums of money which may then or thereafter be due to
Landlord from Tenant under any of the terms of this Lease; and fourth, the
balance, if any, to Tenant. If Landlord takes any such action with
respect to the Abandoned Property under the terms of this section, Tenant shall
release Landlord from any and all liability arising out of or related to the
Abandoned Property and Tenant shall indemnify, defend and hold Landlord harmless
from any and all loss, cost, damage, liability or claims arising out of or
related to the Abandoned Property.
(d) All
fixtures, equipment, leasehold improvements, Alterations and/or appurtenances
attached to or built into the Premises prior to or during the Term, whether
by
Landlord or Tenant and whether at the expense of Landlord or Tenant, or of
both,
shall be and remain part of the Premises and shall not be removed by Tenant
at
the end of the Term unless otherwise expressly provided for in this Lease or
unless such removal is required by Landlord. Such fixtures,
equipment, leasehold improvements, Alterations, additions, improvements and/or
appurtenances shall include but not be limited to: all floor
coverings, drapes, paneling, built-in cabinetry, molding, doors, vaults
(including vault doors), plumbing systems, security systems, electrical systems,
lighting systems, silencing equipment, communication systems, all fixtures
and
outlets for the systems mentioned above and for all telephone, radio, telegraph
and television purposes, and any special flooring or ceiling
installations.
ARTICLE
30
MISCELLANEOUS
(a) SEVERABILITY;
ENTIRE AGREEMENT.ANY PROVISION OF THIS
LEASE WHICH SHALL PROVE TO BE INVALID, VOID, OR ILLEGAL SHALL IN NO WAY AFFECT,
IMPAIR OR INVALIDATE ANY OTHER PROVISION HEREOF AND SUCH OTHER PROVISIONS SHALL
REMAIN IN FULL FORCE AND EFFECT. THIS LEASE AND THE EXHIBITS AND ANY
ADDENDUM ATTACHED HERETO CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES
HERETO WITH REGARD TO TENANT'S OCCUPANCY OR USE OF ALL OR ANY PORTION OF THE
PROJECT, AND NO PRIOR AGREEMENT OR UNDERSTANDING PERTAINING TO ANY SUCH MATTER
SHALL BE EFFECTIVE FOR ANY PURPOSE. NO PROVISION OF THIS LEASE MAY BE
AMENDED OR SUPPLEMENTED EXCEPT BY AN AGREEMENT IN WRITING SIGNED BY THE PARTIES
HERETO OR THEIR SUCCESSOR IN INTEREST. THE PARTIES AGREE THAT ANY
DELETION OF LANGUAGE FROM THIS LEASE PRIOR TO ITS MUTUAL EXECUTION BY LANDLORD
AND TENANT SHALL NOT BE CONSTRUED TO HAVE ANY PARTICULAR MEANING OR TO RAISE
ANY
PRESUMPTION, CANON OF CONSTRUCTION OR IMPLICATION INCLUDING, WITHOUT LIMITATION,
ANY IMPLICATION THAT THE PARTIES INTENDED THEREBY TO STATE THE CONVERSE, OBVERSE
OR OPPOSITE OF THE DELETED LANGUAGE.
(b) Attorneys'
Fees; Waiver of Jury Trial.
(i) In
any action to enforce the terms of this Lease, including any suit by Landlord
for the recovery of rent or possession of the Premises, the losing party shall
pay the successful party a reasonable sum for attorneys' fees and costs in
such
suit and such attorneys' fees and costs shall be deemed to have accrued prior
to
the commencement of such action and shall be paid whether or not such action
is
prosecuted to judgment. Tenant shall also reimburse Landlord for all
costs incurred by Landlord in connection with enforcing its rights under this
Lease against Tenant following a bankruptcy by Tenant or otherwise, including
without limitation, legal fees, experts' fees and expenses, court costs and
consulting fees.
(ii) Should
Landlord, without fault on Landlord's part, be made a party to any litigation
instituted by Tenant or by any third party against Tenant, or by or against
any
person holding under or using the Premises by license of Tenant, or for the
foreclosure of any lien for labor or material furnished to or for Tenant or
any
such other person or otherwise arising out of or resulting from any act or
transaction of Tenant or of any such other person, Tenant covenants to save
and
hold Landlord harmless from any judgment rendered against Landlord or the
Premises or any part thereof and from all costs and expenses, including
reasonable attorneys' fees and costs incurred by Landlord in connection with
such litigation.
(iii) When
legal services are rendered by an attorney at law who is an employee of a party,
attorneys' fees and costs incurred by that party shall be deemed to include
an
amount based upon the number of hours spent by such employee on such matters
multiplied by an appropriate billing rate determined by taking into
consideration the same factors, including but not limited by, the importance
of
the matter, time applied, difficulty and results, as are considered when an
attorney not in the employ of a party is engaged to render such
service.
(iv) Intentionally
Omitted.
(c) Time
of Essence. Each of Tenant's covenants herein is a condition and
time is of the essence with respect to the performance of every provision of
this Lease.
(d) Headings;
Joint and Several. The article headings contained in this Lease
are for convenience only and do not in any way limit or amplify any term or
provision hereof. The terms "Landlord" and "Tenant" as used herein
shall include the plural as well as the singular, the neuter shall include
the
masculine and feminine genders and the obligations herein imposed upon Tenant
shall be joint and several as to each of the persons, firms or corporations
of
which Tenant may be composed.
(e) Reserved
Area. Tenant hereby acknowledges and agrees that the exterior
walls of the Premises and the area between the finished ceiling of the Premises
and the slab of the floor of the Project thereabove have not been demised hereby
and the use thereof together with the right to install, maintain, use, repair
and replace pipes, ducts, conduits, wiring and cabling leading through, under
or
above the Premises or throughout the Project in locations which will not
materially interfere with Tenant's use of the Premises and serving other parts
of the Project are hereby excepted and reserved unto Landlord.
(f) NO
OPTION. THE SUBMISSION OF THIS LEASE BY
LANDLORD, ITS AGENT OR REPRESENTATIVE FOR EXAMINATION OR EXECUTION BY TENANT
DOES NOT CONSTITUTE AN OPTION OR OFFER TO LEASE THE PREMISES UPON THE TERMS
AND
CONDITIONS CONTAINED HEREIN OR A RESERVATION OF THE PREMISES IN FAVOR OF TENANT,
IT BEING INTENDED HEREBY THAT THIS LEASE SHALL ONLY BECOME EFFECTIVE UPON THE
EXECUTION HEREOF BY LANDLORD AND TENANT AND DELIVERY OF A FULLY EXECUTED LEASE
TO TENANT.
(g) Use
of Project Name; Improvements. Tenant shall not be allowed to use
the name, picture or representation of the Project, or words to that effect,
in
connection with any business carried on in the Premises or otherwise (except
as
Tenant's address) without the prior written consent of Landlord. In
the event that Landlord undertakes any additional improvements on the Real
Property including but not limited to new construction or renovation or
additions to the existing improvements, Landlord shall not be liable to Tenant
for any noise, dust, vibration or interference with access to the Premises
or
disruption in Tenant's business caused thereby.
(h) Rules
and Regulations. Tenant shall observe faithfully and comply
strictly with the Rules and Regulations attached to this Lease as
Exhibit "B" and made a part hereof, and such other Rules and Regulations as
Landlord may from time to time reasonably adopt for the safety, care and
cleanliness of the Project, the facilities thereof, or the preservation of
good
order therein. Landlord shall not be liable to Tenant for violation
of any such Rules and Regulations, or for the breach of any covenant or
condition in any lease by any other tenant in the Project. A waiver
by Landlord of any Rule or Regulation for any other tenant shall not constitute
nor be deemed a waiver of the Rule or Regulation for this Tenant.
(i) Quiet
Possession. Upon Tenant's paying the Basic Rental, Additional
Rent and other sums provided hereunder and observing and performing all of
the
covenants, conditions and provisions on Tenant's part to be observed and
performed hereunder, Tenant shall have quiet possession of the Premises for
the
entire Term hereof, subject to all of the provisions of this Lease.
(j) Rent. All
payments required to be made hereunder to Landlord shall be deemed to be rent,
whether or not described as such.
(k) Successors
and Assigns. Subject to the provisions of Article 15 hereof,
all of the covenants, conditions and provisions of this Lease shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
heirs, personal representatives, successors and assigns.
(l) Notices. Any
notice required or permitted to be given hereunder shall be in writing and
may
be given by personal service evidenced by a signed receipt or sent by registered
or certified mail, return receipt requested, or via overnight courier, and
shall
be effective upon proof of delivery, addressed to Tenant at the Premises or
to
Landlord at the management office for the Project, with a copy to Landlord,
c/o
Told Partners, 0000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000, Attn:
Xxxxx
Xxxxxxx. Either party may by notice to the other specify a different
address for notice purposes except that, upon Tenant's taking possession of
the
Premises, the Premises shall constitute Tenant's address for notice
purposes. A copy of all notices to be given to Landlord hereunder
shall be concurrently transmitted by Tenant to such party hereafter designated
by notice from Landlord to Tenant. Any notices sent by Landlord
regarding or relating to eviction procedures, including without limitation
three
day notices, may be sent by regular mail.
(m) Persistent
Delinquencies. In the event that Tenant shall be delinquent by
more than fifteen (15) days in the payment of rent on three (3) separate
occasions in any twelve (12) month period, Landlord shall have the right to
terminate this Lease by thirty (30) days written notice given by Landlord to
Tenant within thirty (30) days of the last such delinquency.
(n) Right
of Landlord to Perform. All covenants and agreements to be
performed by Tenant under any of the terms of this Lease shall be performed
by
Tenant at Tenant's sole cost and expense and without any abatement of
rent. If Tenant shall fail to pay any sum of money, other than rent,
required to be paid by it hereunder or shall fail to perform any other act
on
its part to be performed hereunder, and such failure shall continue beyond
any
applicable cure period set forth in this Lease, Landlord may, but shall not
be
obligated to, without waiving or releasing Tenant from any obligations of
Tenant, make any such payment or perform any such other act on Tenant's part
to
be made or performed as is in this Lease provided. All sums so paid
by Landlord and all reasonable incidental costs, together with interest thereon
at the rate of ten percent (10%) per annum from the date of such payment by
Landlord, shall be payable to Landlord on demand and Tenant covenants to pay
any
such sums, and Landlord shall have (in addition to any other right or remedy
of
Landlord) the same rights and remedies in the event of the nonpayment thereof
by
Tenant as in the case of default by Tenant in the payment of the
rent.
(o) Access,
Changes in Project, Facilities, Name.
(i) Every
part of the Project except the inside surfaces of all walls, windows and doors
bounding the Premises (including exterior building walls, the rooftop, core
corridor walls and doors and any core corridor entrance), and any space in
or
adjacent to the Premises or within the Project used for shafts, stacks, pipes,
conduits, fan rooms, ducts, electric or other utilities, sinks or other building
facilities, and the use thereof, as well as access thereto through the Premises
for the purposes of operation, maintenance, decoration and repair, are reserved
to Landlord.
(ii) Tenant
shall permit Landlord to install, use and maintain pipes, ducts and conduits
within the walls, columns and ceilings of the Premises and throughout the
Project.
(iii) Landlord
reserves the right, without incurring any liability to Tenant therefor, to
make
such changes in or to the Project and the fixtures and equipment thereof, as
well as in or to the street entrances, halls, passages, elevators, stairways
and
other improvements thereof, as it may deem necessary or desirable.
(iv) Landlord
may adopt any name for the Project and Landlord reserves the right, from time
to
time, to change the name and/or address of the Project.
(p) Signing
Authority. Each individual executing this Lease on behalf of
Tenant represents and warrants that he or she is duly authorized to execute
and
deliver this Lease on behalf of Tenant in accordance with a duly adopted
resolution of the Board of Directors of said corporation or in accordance with
the By-laws of said corporation and that this Lease is binding upon said entity
in accordance with its terms. Tenant agrees to cause this Lease to be
executed by (1) either the Chairman of the Board, President, or any Vice
President of Tenant and (2) either the Secretary, Assistant Secretary, Assistant
Treasurer or Chief Financial Officer of Tenant.
(q) Identification
of Tenant.
(i) If
Tenant constitutes more than one person or entity, (A) each of them shall
be jointly and severally liable for the keeping, observing and performing of
all
of the terms, covenants, conditions and provisions of this Lease to be kept,
observed and performed by Tenant, (B) the term "Tenant" as used in this
Lease shall mean and include each of them jointly and severally, and
(C) the act of or notice from, or notice or refund to, or the signature of,
any one or more of them, with respect to the tenancy of this Lease, including,
but not limited to, any renewal, extension, expiration, termination or
modification of this Lease, shall be binding upon each and all of the persons
or
entities executing this Lease as Tenant with the same force and effect as if
each and all of them had so acted or so given or received such notice or refund
or so signed.
(ii) If
Tenant is a partnership (or is comprised of two or more persons, individually
and as co-partners of a partnership) or if Tenant's interest in this Lease
shall
be assigned to a partnership (or to two or more persons, individually and as
co-partners of a partnership) pursuant to Article 15 hereof (any such
partnership and such persons hereinafter referred to in this
Article 30(q)(ii) as "Partnership Tenant"), the following
provisions of this Lease shall apply to such Partnership Tenant:
(A) The
liability of each of the parties comprising Partnership Tenant shall be joint
and several.
(B) Each
of the parties comprising Partnership Tenant hereby consents in advance to,
and
agrees to be bound by, any written instrument which may hereafter be executed,
changing, modifying or discharging this Lease, in whole or in part, or
surrendering all or any part of the Premises to the Landlord, and by notices,
demands, requests or other communication which may hereafter be given, by the
individual or individuals authorized to execute this Lease on behalf of
Partnership Tenant under Subparagraph (p) above.
(C) Any
bills, statements, notices, demands, requests or other communications given
or
rendered to Partnership Tenant or to any of the parties comprising Partnership
Tenant shall be deemed given or rendered to Partnership Tenant and to all such
parties and shall be binding upon Partnership Tenant and all such
parties.
(D) If
Partnership Tenant admits new partners, all of such new partners shall, by
their
admission to Partnership Tenant, be deemed to have assumed performance of all
of
the terms, covenants and conditions of this Lease on Tenant's part to be
observed and performed.
(E) Partnership
Tenant shall give prompt notice to Landlord of the admission of any such new
partners, and, upon demand of Landlord, shall cause each such new partner to
execute and deliver to Landlord an agreement in form satisfactory to Landlord,
wherein each such new partner shall assume performance of all of the terms,
covenants and conditions of this Lease on Partnership Tenant's part to be
observed and performed (but neither Landlord's failure to request any such
agreement nor the failure of any such new partner to execute or deliver any
such
agreement to Landlord shall terminate the provisions of clause (D) of this
Article 30(q)(ii) or relieve any such new partner of its obligations
thereunder).
(r) Substitute
Premises. Intentionally omitted
(s) Survival
of Obligations. Any obligations of Tenant occurring prior to the
expiration or earlier termination of this Lease shall survive such expiration
or
earlier termination. Such obligations of Landlord which expressly
survive the expiration or earlier termination of this Lease shall survive the
expiration or earlier termination of this Lease.
(t) Confidentiality. Tenant
acknowledges that the content of this Lease and any related documents are
confidential information. Tenant shall keep such confidential
information strictly confidential and shall not disclose such confidential
information to any person or entity other than Tenant's financial, legal and
space planning consultants and any proposed Transferees.
(u) Governing
Law. This Lease shall be governed by and construed in accordance
with the laws of the State of California. No conflicts of law rules
of any state or country (including, without limitation, California conflicts
of
law rules) shall be applied to result in the application of any substantive
or
procedural laws of any state or country other than California. All
controversies, claims, actions or causes of action arising between the parties
hereto and/or their respective successors and assigns, shall be brought, heard
and adjudicated by the courts of the State of California, with venue in the
County in which the Project is located. Each of the parties hereto
hereby consents to personal jurisdiction by the courts of the State of
California in connection with any such controversy, claim, action or cause
of
action, and each of the parties hereto consents to service of process by any
means authorized by California law and consent to the enforcement of any
judgment so obtained in the courts of the State of California on the same terms
and conditions as if such controversy, claim, action or cause of action had
been
originally heard and adjudicated to a final judgment in such
courts. Each of the parties hereto further acknowledges that the laws
and courts of California were freely and voluntarily chosen to govern this
Lease
and to adjudicate any claims or disputes hereunder.
(v) Exhibits. The
Exhibits attached hereto are incorporated herein by this reference as if fully
set forth herein.
(w) Independent
Covenants. This Lease shall be construed as though the covenants
herein between Landlord and Tenant are independent (and not dependent) and
Tenant hereby expressly waives the benefit of any statute to the contrary and
agrees that if Landlord fails to perform its obligations set forth herein,
Tenant shall not be entitled to make any repairs or perform any acts hereunder
at Landlord's expense or to set off of any of the rent or other amounts owing
hereunder against Landlord.
(x) Counterparts. This
Lease may be executed in counterparts, each of which shall be deemed an
original, but such counterparts, when taken together, shall constitute one
agreement.
(y) Financial
Statements. Within ten (10) days after Tenant's receipt of
Landlord's written request, but only in connection with Landlord's financing,
refinancing or sale of the Project or upon Landlord's lender's request or in
connection with any amendment to this Lease, Tenant shall provide Landlord
with
current financial statements of Tenant and financial statements for the two
(2)
calendar or fiscal years (if Tenant's fiscal year is other than a calendar
year)
prior to the current financial statement year. Any such statements
shall be prepared in accordance with generally accepted accounting principles
and, if the normal practice of Tenant, shall be audited by an independent
certified public accountant. Landlord agrees to keep Tenant's
financial information strictly confidential and not disclose such information
to
persons other than its financial or legal consultants, and its prospective
purchasers or lenders of the Project or as otherwise required by
law.
(z) Office
of Foreign Assets Control. Tenant certifies to Landlord that
Tenant is not entering into this Lease, nor acting, for or on behalf of any
person or entity named as a terrorist or other banned or blocked person or
entity pursuant to any law, order, rule or regulation of the United States
Treasury Department or the Office of Foreign Assets Control. Tenant
hereby agrees to indemnify, defend and hold Landlord and the Landlord Parties
harmless from any and all Claims arising from or related to any breach of the
foregoing certification.
(aa) Access. Subject
to the terms of this Lease, Tenant shall have access to the Premises, Project
and parking facilities serving the Project twenty-four (24) hours per day,
seven
(7) days per week.
ARTICLE
31
SIGNAGE/DIRECTORY
Landlord,
at Tenant's sole cost and expense, shall provide Tenant with (i) a Project
standard number of lines in the lobby directory during the Term, and (ii)
Project standard suite entrance signage. Such entry signage shall be
subject to Landlord's approval as to size, design, location, graphics,
materials, colors and similar specifications and shall be consistent with the
exterior design, materials and appearance of the Project and the Project's
signage program. Upon the expiration or earlier termination of this
Lease, Tenant shall, at Tenant's sole cost and expense, remove such suite
entrance signage a repair any damage caused thereby.
ARTICLE
32
OPTION
TO RENEW
(a) Option
Right. Landlord hereby grants the Tenant named in this Lease
("Original Tenant") one (1) option (the "Option") to extend the Term for a
period of three (3) years (the "Option Term"), which Option shall be exercisable
only by written notice delivered by Tenant to Landlord as set forth
below. The rights contained in this Article 31 shall be personal
to the Original Tenant and may only be exercised by the Original Tenant (and
not
any assignee, sublessee or other transferee of the Original Tenant's interest
in
this Lease) if the Original Tenant occupies the entire Premises as of the date
of Tenant's Acceptance (as defined in Section 31(c) below).
(b) Option
Rent. The rent payable by Tenant during the Option Term ("Option
Rent") shall be equal to the "Market Rent" (defined below), but in no event
shall the Option Rent be less than Tenant is paying under the Lease on the
month
immediately preceding the Option Term for Monthly Basic Rental, including all
escalations, Direct Costs, additional rent and other charges. "Market
Rent" shall mean the applicable Monthly Basic Rental, including all escalations,
Direct Costs, additional rent and other charges at which tenants, as of the
commencement of the Option Term, are leasing non-renewal, non-sublease,
non-equity space comparable in size, location and quality to the Premises for
a
term comparable to the Option Term, which comparable space is located in the
Project and if no such space is located in the Project, then in office buildings
comparable to the Project in Camarillo, California, taking into consideration
the value of the existing improvements in the Premises to Tenant, as compared
to
the value of the existing improvements in such comparable space, with such
value
to be based upon the age, quality and layout of the improvements and the extent
to which the same could be utilized by Tenant.
(c) Exercise
of Option. The Option shall be exercised by Tenant only in the
following manner: (i) Tenant shall not be in default, and shall
not have been in default under this Lease more than once, on the delivery date
of the Interest Notice and Tenant's Acceptance; (ii) Tenant shall deliver
written notice ("Interest Notice") to Landlord not more than ten (10) months
nor
less than nine (9) months prior to the expiration of the Lease Term, stating
that Tenant is interested in exercising the Option, (iii) within fifteen
(15) business days of Landlord's receipt of Tenant's written notice, Landlord
shall deliver notice ("Option Rent Notice") to Tenant setting forth the Option
Rent; and (iv) if Tenant desires to exercise such Option, Tenant shall
provide Landlord written notice within five (5) business days after receipt
of
the Option Rent Notice ("Tenant's Acceptance") and upon, and concurrent with
such exercise, Tenant may, at its option, object to the Option Rent contained
in
the Option Rent Notice. Tenant's failure to deliver the Interest
Notice or Tenant's Acceptance on or before the dates specified above shall
be
deemed to constitute Tenant's election not to exercise the Option. If
Tenant timely and properly exercises its Option, the Lease Term shall be
extended for the Option Term upon all of the terms and conditions set forth
in
this Lease, except that the rent for the Option Term shall be as indicated
in
the Option Rent Notice, unless Tenant, concurrently with Tenant's
acceptance, objects to the Option Rent contained in the Option Rent Notice,
in
which case the parties shall follow the procedure and the Option Rent shall
be
determined, as set forth in Section 31(d) below.
(d) Determination
of Market Rent. If Tenant timely and appropriately objects to the
Market Rent in Tenant's Acceptance, Landlord and Tenant shall attempt to agree
upon the Market Rent using their best good-faith efforts. If Landlord
and Tenant fail to reach agreement within twenty-one (21) days following
Tenant's Acceptance ("Outside Agreement Date"), then each party shall make
a
separate determination of the Market Rent which shall be submitted to each
other
and to arbitration in accordance with the following items (i) through
(vii):
(i) Landlord
and Tenant shall each appoint, within ten (10) days of the Outside Agreement
Date, one arbitrator who shall by profession be a current real estate broker
or
appraiser of commercial office properties in the immediate vicinity of the
Project, and who has been active in such field over the last five (5)
years. The determination of the arbitrators shall be limited solely
to the issue of whether Landlord's or Tenant's submitted Market Rent is the
closest to the actual Market Rent as determined by the arbitrators, taking
into
account the requirements of item (b), above.
(ii) The
two (2) arbitrators so appointed shall within five (5) business days of the
date
of the appointment of the last appointed arbitrator agree upon and appoint
a
third arbitrator who shall be qualified under the same criteria set forth
hereinabove for qualification of the initial two (2) arbitrators.
(iii) The
three (3) arbitrators shall within fifteen (15) days of the appointment of
the
third arbitrator reach a decision as to whether the parties shall use Landlord's
or Tenant's submitted Market Rent, and shall notify Landlord and Tenant
thereof.
(iv) The
decision of the majority of the three (3) arbitrators shall be binding upon
Landlord and Tenant.
(v) If
either Landlord or Tenant fails to appoint an arbitrator within ten (10) days
after the applicable Outside Agreement Date, the arbitrator appointed by one
of
them shall reach a decision, notify Landlord and Tenant thereof, and such
arbitrator's decision shall be binding upon Landlord and Tenant.
(vi) If
the two arbitrators fail to agree upon and appoint a third arbitrator, or both
parties fail to appoint an arbitrator, then the appointment of the third
arbitrator or any arbitrator shall be dismissed and the matter to be decided
shall be forthwith submitted to arbitration under the provisions of the American
Arbitration Association, but subject to the instruction set forth in this item
(d).
(vii) The
cost of arbitration shall be paid by Landlord and Tenant equally.
[The
rest
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IN
WITNESS WHEREOF, the parties have executed this Lease, consisting of the
foregoing provisions and Articles, including all exhibits and other attachments
referenced therein, as of the date first above written.
"LANDLORD": CAMARILLO
OFFICE PARTNERS I, LLC,
a
California limited liability company
By: __________________________________
Name: __________________________________
Its: __________________________________
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"TENANT":
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AURIGA
LABORATORIES INC.,
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a
Delaware corporation
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By:
Print
Name:
Title:
By:
Print
Name:
Title:
PREMISES
RULES
AND REGULATIONS
1. No
sign, advertisement or notice shall be displayed, printed or affixed on or
to
the Premises or to the outside or inside of the Project or so as to be visible
from outside the Premises or Project without Landlord's prior written
consent. Landlord shall have the right to remove any non-approved
sign, advertisement or notice, without notice to and at the expense of Tenant,
and Landlord shall not be liable in damages for such removal. All
approved signs or lettering on doors and walls shall be printed, painted,
affixed or inscribed at the expense of Tenant by Landlord or by a person
selected by Landlord and in a manner and style acceptable to
Landlord.
2. Tenant
shall not obtain for use on the Premises ice, waxing, cleaning, interior glass
polishing, rubbish removal, towel or other similar services, or accept barbering
or bootblackening, or coffee cart services, milk, soft drinks or other like
services on the Premises, except from persons authorized by Landlord and at
the
hours and under regulations fixed by Landlord. No vending machines or
machines of any description shall be installed, maintained or operated upon
the
Premises without Landlord's prior written consent.
3. The
sidewalks, halls, passages, exits, entrances, elevators and stairways shall
not
be obstructed by Tenant or used for any purpose other than for ingress and
egress from Tenant's Premises. Under no circumstances is trash to be
stored in the corridors. Notice must be given to Landlord for any
large deliveries. Furniture, freight and other large or heavy
articles, and all other deliveries may be brought into the Project only at
times
and in the manner designated by Landlord, and always at Tenant's sole
responsibility and risk. Landlord may impose reasonable charges for
use of freight elevators after or before normal business hours. All
damage done to the Project by moving or maintaining such furniture, freight
or
articles shall be repaired by Landlord at Tenant's expense. Tenant
shall not take or permit to be taken in or out of entrances or passenger
elevators of the Project, any item normally taken, or which Landlord otherwise
reasonably requires to be taken, in or out through service doors or on freight
elevators. Tenant shall move all supplies, furniture and equipment as
soon as received directly to the Premises, and shall move all waste that is
at
any time being taken from the Premises directly to the areas designated for
disposal.
4. Toilet
rooms, toilets, urinals, wash bowls and other apparatus shall not be used for
any purpose other than for which they were constructed and no foreign substance
of any kind whatsoever shall be thrown therein.
5. Tenant
shall not overload the floor of the Premises or xxxx, drive nails, screw or
drill into the partitions, ceilings or floor or in any way deface the
Premises. Tenant shall not place typed, handwritten or computer
generated signs in the corridors or any other common areas. Should
there be a need for signage additional to the Project standard tenant placard,
a
written request shall be made to Landlord to obtain approval prior to any
installation. All costs for said signage shall be Tenant's
responsibility.
6. In
no event shall Tenant place a load upon any floor of the Premises or portion
of
any such flooring exceeding the floor load per square foot of area for which
such floor is designed to carry and which is allowed by law, or any machinery
or
equipment which shall cause excessive vibration to the Premises or noticeable
vibration to any other part of the Project. Prior to bringing any
heavy safes, vaults, large computers or similarly heavy equipment into the
Project, Tenant shall inform Landlord in writing of the dimensions and weights
thereof and shall obtain Landlord's consent thereto. Such consent
shall not constitute a representation or warranty by Landlord that the safe,
vault or other equipment complies, with regard to distribution of weight and/or
vibration, with the provisions of this Rule 6 nor relieve Tenant from
responsibility for the consequences of such noncompliance, and any such safe,
vault or other equipment which Landlord determines to constitute a danger of
damage to the Project or a nuisance to other tenants, either alone or in
combination with other heavy and/or vibrating objects and equipment, shall
be
promptly removed by Tenant, at Tenant's cost, upon Landlord's written notice
of
such determination and demand for removal thereof.
7. Tenant
shall not use or keep in the Premises or Project any kerosene, gasoline or
inflammable, explosive or combustible fluid or material, or use any method
of
heating or air-conditioning other than that supplied by Landlord.
8. 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.
9. Tenant
shall not install or use any blinds, shades, awnings or screens in connection
with any window or door of the Premises and shall not use any drape or window
covering facing any exterior glass surface other than the standard drapes,
blinds or other window covering established by Landlord.
10. Tenant
shall cooperate with Landlord in obtaining maximum effectiveness of the cooling
system by closing window coverings when the sun's rays fall directly on windows
of the Premises. Tenant shall not obstruct, alter, or in any way
impair the efficient operation of Landlord's heating, ventilating and
air-conditioning system. Tenant shall not tamper with or change the
setting of any thermostats or control valves.
11. 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. Tenant shall not, without Landlord's prior written consent,
occupy or permit any portion of the Premises to be occupied or used for the
manufacture or sale of liquor or tobacco in any form, or a xxxxxx or manicure
shop, or as an employment bureau. The Premises shall not be used for
lodging or sleeping or for any improper, objectionable or immoral
purpose. No auction shall be conducted on the Premises.
12. Tenant
shall not make, or permit to be made, any unseemly or disturbing noises, or
disturb or interfere with occupants of Project or neighboring buildings or
premises or those having business with it by the use of any musical instrument,
radio, phonographs or unusual noise, or in any other way.
13. No
bicycles, vehicles or animals of any kind shall be brought into or kept in
or
about the Premises, and no cooking shall be done or permitted by any tenant
in
the Premises, except that the preparation of coffee, tea, hot chocolate and
similar items for tenants, their employees and visitors shall be
permitted. No tenant shall cause or permit any unusual or
objectionable odors to be produced in or permeate from or throughout the
Premises. The foregoing notwithstanding, Tenant shall have the right
to use a microwave and to heat microwavable items typically heated in an
office. No hot plates, toasters, toaster ovens or similar open
element cooking apparatus shall be permitted in the Premises.
14. The
sashes, sash doors, skylights, windows and doors that reflect or admit light
and
air into the halls, passageways or other public places in the Project shall
not
be covered or obstructed by any tenant, nor shall any bottles, parcels or other
articles be placed on the window xxxxx.
15. No
additional locks or bolts of any kind shall be placed upon any of the doors
or
windows by any tenant, nor shall any changes be made in existing locks or the
mechanisms thereof unless Landlord is first notified thereof, gives written
approval, and is furnished a key therefor. Each tenant must, upon the
termination of his tenancy, give to Landlord all keys and key cards of stores,
offices, or toilets or toilet rooms, either furnished to, or otherwise procured
by, such tenant, and in the event of the loss of any keys so furnished, such
tenant shall pay Landlord the cost of replacing the same or of changing the
lock
or locks opened by such lost key if Landlord shall deem it necessary to make
such change. If more than two keys for one lock are desired, Landlord
will provide them upon payment therefor by Tenant. Tenant shall not
key or re-key any locks. All locks shall be keyed by Landlord's
locksmith only.
16. Landlord
shall have the right to prohibit any advertising by any tenant which, in
Landlord's opinion, tends to impair the reputation of the Project or its
desirability as an office building and upon written notice from Landlord any
tenant shall refrain from and discontinue such advertising.
17. Landlord
reserves the right to control access to the Project by all persons after
reasonable hours of generally recognized business days and at all hours on
Sundays and legal holidays and may at all times control access to the equipment
areas of the Project outside the Premises. Each tenant shall be
responsible for all persons for whom it requests after hours access and shall
be
liable to Landlord for all acts of such persons. Landlord shall have
the right from time to time to establish reasonable rules and charges pertaining
to freight elevator usage, including the allocation and reservation of such
usage for tenants' initial move-in to their premises, and final departure
therefrom. Landlord may also establish from time to time reasonable
rules and charges for accessing the equipment areas of the Project, including
the risers, rooftops and telephone closets.
18. Any
person employed by any tenant to do janitorial work shall, while in the Project
and outside of the Premises, be subject to and under the control and direction
of the Office of the Project or its designated representative such as security
personnel (but not as an agent or servant of Landlord, and the Tenant shall
be
responsible for all acts of such persons).
19. All
doors opening on to public corridors shall be kept closed, except when being
used for ingress and egress. Tenant shall cooperate and comply with
any reasonable safety or security programs, including fire drills and air raid
drills, and the appointment of "fire wardens" developed by Landlord for the
Project, or required by law. Before leaving the Premises unattended,
Tenant shall close and securely lock all doors or other means of entry to the
Premises and shut off all lights and water faucets in the Premises.
20. The
requirements of tenants will be attended to only upon application to the Office
of the Project.
21. Canvassing,
soliciting and peddling in the Project are prohibited and each tenant shall
cooperate to prevent the same.
22. All
office equipment of any electrical or mechanical nature shall be placed by
tenants in the Premises in settings approved by Landlord, to absorb or prevent
any vibration, noise or annoyance.
23. No
air-conditioning unit or other similar apparatus shall be installed or used
by
any tenant without the prior written consent of Landlord. Tenant
shall pay the cost of all electricity used for air-conditioning in the Premises
if such electrical consumption exceeds normal office requirements, regardless
of
whether additional apparatus is installed pursuant to the preceding
sentence.
24. There
shall not be used in any space, or in the public halls of the Project, either
by
any tenant or others, any hand trucks except those equipped with rubber tires
and side guards.
25. All
electrical ceiling fixtures hung in offices or spaces along the perimeter of
the
Project must be fluorescent and/or of a quality, type, design and bulb color
approved by Landlord. Tenant shall not permit the consumption in the
Premises of more than 2½ xxxxx per net usable square foot in the Premises in
respect of office lighting nor shall Tenant permit the consumption in the
Premises of more than 1½ xxxxx per net usable square foot of space in the
Premises in respect of the power outlets therein, at any one time. In the event
that such limits are exceeded, Landlord shall have the right to require Tenant
to remove lighting fixtures and equipment and/or to charge Tenant for the cost
of the additional electricity consumed.
26. Parking.
(a) Project
parking facility hours shall be 7:00 a.m. to 7:00 p.m., Monday through
Friday, and closed on weekends, state and federal holidays excepted, as such
hours may be revised from time to time by Landlord.
(b) Automobiles
must be parked entirely within the stall lines on the floor.
(c) All
directional signs and arrows must be observed.
(d) The
speed limit shall be 5 miles per hour.
(e) Parking
is prohibited in areas not striped for parking.
(f) Parking
cards or any other device or form of identification supplied by Landlord (or
its
operator) shall remain the property of Landlord (or its
operator). Such parking identification device must be displayed as
requested and may not be mutilated in any manner. The serial number
of the parking identification device may not be obliterated. Devices
are not transferable or assignable and any device in the possession of an
unauthorized holder will be void. There will be a replacement charge
to the Tenant or person designated by Tenant of $25.00 for loss of any parking
card. There shall be a security deposit of $25.00 due at issuance for
each card key issued to Tenant.
(g) intentionally
omitted
(h) Tenant
may validate visitor parking by such method or methods as the Landlord may
approve, at the validation rate from time to time generally applicable to
visitor parking.
(i) Landlord
(and its operator) may refuse to permit any person who violates the within
rules
to park in the Project parking facility, and any violation of the rules shall
subject the automobile to removal from the Project parking facility at the
xxxxxx'x expense. In either of said events, Landlord (or its
operator) shall refund a prorata portion of the current monthly parking rate
and
the sticker or any other form of identification supplied by Landlord (or its
operator) will be returned to Landlord (or its operator).
(j) Project
parking facility managers or attendants are not authorized to make or allow
any
exceptions to these Rules and Regulations.
(k) All
responsibility for any loss or damage to automobiles or any personal property
therein is assumed by the xxxxxx.
(l) Loss
or theft of parking identification devices from automobiles must be reported
to
the Project parking facility manager immediately, and a lost or stolen report
must be filed by the xxxxxx at that time.
(m) The
parking facilities are for the sole purpose of parking one automobile per
space. Washing, waxing, cleaning or servicing of any vehicles by the
xxxxxx or his agents is prohibited.
(n) Landlord
(and its operator) reserves the right to refuse the issuance of monthly stickers
or other parking identification devices to any Tenant and/or its employees
who
refuse to comply with the above Rules and Regulations and all City, State or
Federal ordinances, laws or agreements.
(o) Tenant
agrees to acquaint all employees with these Rules and Regulations.
(p) No
vehicle shall be stored in the Project parking facility for a period of more
than one (1) week.
27. The
Project is a non-smoking Project. Smoking or carrying lighted cigars
or cigarettes in the Premises or the Project, including the elevators in the
Project, is prohibited.
28. Tenant
shall not, without Landlord's prior written consent (which consent may be
granted or withheld in Landlord's absolute discretion), allow any employee
or
agent to carry any type of gun or other firearm in or about any of the Premises,
Project or Development.
NOTICE
OF LEASE TERM DATES
AND
TENANT'S PROPORTIONATE SHARE
|
TO:
|
DATE:
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RE:
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Lease
dated ________________, 200__, between
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("Landlord"),
and
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("Tenant"),
concerning Suite ________, located at
__________________________________________.
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Ladies
and Gentlemen:
In
accordance with the Lease, Landlord wishes to advise and/or confirm the
following:
1. That
the Premises have been accepted herewith by the Tenant as being substantially
complete in accordance with the Lease and that there is no deficiency in
construction.
2. That
the Tenant has taken possession of the Premises and acknowledges that under
the
provisions of the Lease the Term of said Lease shall commence as of ____________
for a term of ________________________ ending on
________________________.
3. That
in accordance with the Lease, Basic Rental commenced to accrue on
________________________.
4. If
the Commencement Date of the Lease is other than the first day of the month,
the
first billing will contain a prorata adjustment. Each billing
thereafter shall be for the full amount of the monthly installment as provided
for in said Lease.
5. Rent
is due and payable in advance on the first day of each and every month during
the Term of said Lease. Your rent checks should be made payable to
________________________ at
________________________________________________.
6. The
exact number of rentable square feet within the Premises is __________ square
feet.
7. Tenant's
Proportionate Share, as adjusted based upon the exact number of rentable square
feet within the Premises is _______%.
AGREED
AND ACCEPTED:
TENANT:
,
a
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By:
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Its:
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