EXHIBIT 10.19
OFFICE LEASE
BETWEEN
XXXXX STATION JOINT VENTURE, LLC (LANDLORD)
AND
BIONOVO, INC., and LIGHTEN UP ENTERPRISES INTERNATIONAL, INC.,
(TENANT)
EMERYSTATION
EMERYVILLE, CALIFORNIA
TABLE OF CONTENTS
Page
ARTICLE 1 BASIC LEASE PROVISIONS.............................................
1.1 BASIC LEASE PROVISIONS.....................................
1.2 ENUMERATION OF EXHIBITS AND RIDER..........................
1.3 DEFINITIONS................................................
ARTICLE 2 PREMISES, TERM, FAILURE TO GIVE POSSESSION, AND PARKING............
2.1 LEASE OF PREMISES..........................................
2.2 TERM.......................................................
2.3 FAILURE TO GIVE POSSESSION.................................
2.4 CONDITION OF PREMISES......................................
2.5 PARKING....................................................
ARTICLE 3 RENT...............................................................
ARTICLE 4 RENT ADJUSTMENTS AND PAYMENTS......................................
4.1 RENT ADJUSTMENTS...........................................
4.2 STATEMENT OF LANDLORD......................................
4.3 BOOKS AND RECORDS..........................................
4.4 TENANT OR LEASE SPECIFIC TAXES.............................
ARTICLE 5 SECURITY DEPOSIT...................................................
ARTICLE 6 SERVICES...........................................................
6.1 LANDLORD'S GENERAL SERVICES................................
6.2 ELECTRICAL SERVICES........................................
6.3 ADDITIONAL AND AFTER HOUR SERVICES.........................
6.4 TELEPHONE SERVICES.........................................
6.5 DELAYS IN FURNISHING SERVICES..............................
6.6 CHOICE OF SERVICE PROVIDER.................................
6.7 SIGNAGE....................................................
ARTICLE 7 POSSESSION, USE AND CONDITION OF PREMISES..........................
7.1 POSSESSION AND USE OF PREMISES.............................
7.2 LANDLORD ACCESS TO PREMISES; APPROVALS.....................
7.3 QUIET ENJOYMENT............................................
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ARTICLE 8 MAINTENANCE........................................................
8.1 LANDLORD'S MAINTENANCE.....................................
8.2 TENANT'S MAINTENANCE.......................................
ARTICLE 9 ALTERATIONS AND IMPROVEMENTS.......................................
9.1 TENANT ALTERATIONS.........................................
9.2 LIENS......................................................
ARTICLE 10 ASSIGNMENT AND SUBLETTING.........................................
10.1 ASSIGNMENT AND SUBLETTING..................................
10.2 RECAPTURE..................................................
10.3 EXCESS RENT................................................
10.4 TENANT LIABILITY...........................................
10.5 ASSUMPTION AND ATTORNMENT..................................
ARTICLE 11 DEFAULT AND REMEDIES..............................................
11.1 EVENTS OF DEFAULT..........................................
11.2 LANDLORD'S REMEDIES........................................
11.3 ATTORNEY'S FEES............................................
11.4 BANKRUPTCY.................................................
11.5 LANDLORD'S DEFAULT.........................................
ARTICLE 12 SURRENDER OF PREMISES.............................................
12.1 IN GENERAL.................................................
12.2 LANDLORD'S RIGHTS..........................................
ARTICLE 13 HOLDING OVER......................................................
ARTICLE 14 DAMAGE BY FIRE OR OTHER CASUALTY..................................
14.1 SUBSTANTIAL UNTENANTABILITY................................
14.2 INSUBSTANTIAL UNTENANTABILITY..............................
14.3 RENT ABATEMENT.............................................
14.4 WAIVER OF STATUTORY REMEDIES...............................
ARTICLE 15 EMINENT DOMAIN....................................................
15.1 TAKING OF WHOLE OR SUBSTANTIAL PART........................
15.2 TAKING OF PART.............................................
15.3 COMPENSATION...............................................
ARTICLE 16 INSURANCE.........................................................
16.1 TENANT'S INSURANCE.........................................
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16.2 FORM OF POLICIES...........................................
16.3 LANDLORD'S INSURANCE.......................................
16.4 WAIVER OF SUBROGATION......................................
16.5 NOTICE OF CASUALTY.........................................
ARTICLE 17 WAIVER OF CLAIMS AND INDEMNITY....................................
17.1 WAIVER OF CLAIMS...........................................
17.2 INDEMNITY BY TENANT........................................
ARTICLE 18 RULES AND REGULATIONS.............................................
18.1 RULES......................................................
18.2 ENFORCEMENT................................................
ARTICLE 19 LANDLORD'S RESERVED RIGHTS........................................
ARTICLE 20 ESTOPPEL CERTIFICATE..............................................
20.1 IN GENERAL.................................................
20.2 ENFORCEMENT................................................
ARTICLE 21 RELOCATION OF TENANT..............................................
ARTICLE 22 REAL ESTATE BROKERS...............................................
ARTICLE 23 MORTGAGEE PROTECTION..............................................
23.1 SUBORDINATION AND ATTORNMENT...............................
23.2 MORTGAGEE PROTECTION.......................................
ARTICLE 24 NOTICES...........................................................
ARTICLE 25 MISCELLANEOUS.....................................................
25.1 LATE CHARGES...............................................
25.2 NO JURY TRIAL; VENUE; JURISDICTION.........................
25.3 DEFAULT UNDER OTHER LEASE..................................
25.4 OPTION.....................................................
25.5 TENANT AUTHORITY...........................................
25.6 ENTIRE AGREEMENT...........................................
25.7 MODIFICATION OF LEASE FOR BENEFIT OF MORTGAGEE.............
25.8 EXCULPATION................................................
25.9 ACCORD AND SATISFACTION....................................
25.10 LANDLORD'S OBLIGATIONS ON SALE OF BUILDING.................
25.11 BINDING EFFECT.............................................
25.12 CAPTIONS...................................................
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25.13 TIME; APPLICABLE LAW; CONSTRUCTION.........................
25.14 ABANDONMENT................................................
25.15 LANDLORD'S RIGHT TO PERFORM TENANT'S DUTIES................
25.16 SECURITY SYSTEM............................................
25.17 NO LIGHT, AIR OR VIEW EASEMENTS............................
25.18 RECORDATION................................................
25.19 SURVIVAL...................................................
25.20 RIDERS.....................................................
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OFFICE LEASE
ARTICLE 1
BASIC LEASE PROVISIONS
1.1 BASIC LEASE PROVISIONS
In the event of any conflict between these Basic Lease Provisions and any
other Lease provision, such other Lease provision shall control.
(1) BUILDING AND ADDRESS:
EmeryStation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
(2) LANDLORD AND ADDRESS:
Xxxxx Station Joint Venture, LLC
0000 Xxx Xxxxxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxxxx 00000
Notices to Landlord shall be addressed:
Xxxxx Station Joint Venture, LLC
c/o Wareham Development Corporation
0000 Xxx Xxxxxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxxxx 00000
With a copy to:
Shartsis, Xxxxxx LLP
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx, Esq.
(3) TENANT AND ADDRESS:
Name: BIONOVO INC., a Delaware corporation and LIGHTEN UP
ENTERPRISES INTERNATIONAL, INC., a Nevada corporation, jointly
and severally
Notices to Tenant shall be addressed:
To the Premises:
Attention: President
(4) DATE OF LEASE: as of July 6, 2005
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(5) LEASE TERM: 48 months
(6) PROJECTED COMMENCEMENT DATE: Upon Substantial Completion of the Tenant
Improvements which is estimated to occur on or before September 1, 2005
(7) PROJECTED EXPIRATION DATE: The last day of the 48th calendar month
following the Commencement Date which is estimated to be August 31, 2009
(8) MONTHLY BASE RENT:
MONTHLY RATE/SF OF
PERIOD FROM/TO MONTHLY RENTABLE AREA
Months 1-12 $8,572.50 $2.50
Months 13-24 $8,846.80 $2.58
Months 25-36 $9,086.85 $2.65
Months 37-48 $9,359.46 $2.73
(9) RENTABLE AREA OF THE PREMISES: 3,429
(10) SECURITY DEPOSIT: $18,718.92 (equal to last two month's rent).
(11) SUITE NUMBER OF PREMISES: ______________
(12) TENANT'S USE OF PREMISES: General office and laboratory use
(13) PARKING: The total number of parking spaces shall not exceed 3
cars per 1,000 square feet of rentable square feet and
shall be non-premium spaces in the Terraces Garage
(14) BROKERS:
Landlord's Broker: CB Xxxxxxx Xxxxx
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Tenant's Broker: BT Commercial
000 00xx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxx
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1.2 ENUMERATION OF EXHIBITS AND RIDER
The Exhibits and Rider set forth below and attached to this Lease are
incorporated in this Lease by this reference:
EXHIBIT A Plan of Premises
EXHIBIT B Workletter Agreement
EXHIBIT C Rules and Regulations
RIDER 1 Commencement Date Agreement
ADDENDUM
1.3 DEFINITIONS
For purposes hereof, the following terms shall have the following
meanings:
AFFILIATE: Any corporation or other business entity that is currently
owned or controlled by, owns or controls, or is under common ownership or
control with Tenant.
BUILDING: The building located at the address specified in Section 1.1.
The Building includes office, lab, retail and other uses.
COMMENCEMENT DATE: The date specified in Section 1.1 as the Projected
Commencement Date, unless changed by operation of Article Two.
COMMON AREAS: All areas of the Project made available by Landlord from
time to time for the general common use or benefit of the tenants of the
Building, and their employees and invitees, or the public, as such areas
currently exist and as they may be changed from time to time.
DECORATION: Tenant Alterations which do not require a building permit and
which do not involve any of the structural elements of the Building, or any of
the Building's systems, including its electrical, mechanical, plumbing,
security, heating, ventilating, air-conditioning, communication, and fire and
life safety systems.
DEFAULT RATE: Two (2) percentage points above the rate then most recently
announced by Bank of America N.T.&S.A. at its San Francisco main office as its
base lending reference rate, from time to time announced, but in no event higher
than the maximum rate permitted by Law.
ENVIRONMENTAL LAWS: All Laws governing the use, storage, disposal or
generation of any Hazardous Material, including, without limitation, the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended, and the Resource Conservation and Recovery Act of 1976, as amended.
EXPIRATION DATE: The date specified in Section 1.1, as determined under
Article Two.
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FORCE MAJEURE: Any accident, casualty, act of God, war or civil commotion,
strike or labor troubles, or any cause whatsoever beyond the reasonable control
of Landlord, including water shortages, energy shortages or governmental
preemption in connection with an act of God, a national emergency, or by reason
of Law, or by reason of the conditions of supply and demand which have been or
are affected by act of God, war or other emergency.
HAZARDOUS MATERIAL: Such substances, material and wastes which are or
become regulated under any Environmental Law; or which are classified as
hazardous or toxic under any Environmental Law; and explosives and firearms,
radioactive material, asbestos, polychlorinated biphenyls, and petroleum
products.
INDEMNITEES: Collectively, Landlord, any Mortgagee or ground lessor of the
Property, the property manager and the leasing manager for the Property and
their respective partners, members, directors, officers, agents and employees.
LAND: The parcel(s) of real estate on which the Building and Project are
located.
LANDLORD WORK: The construction or installation of improvements to the
Premises, to be furnished by Landlord, as specifically described in the
Workletter or exhibits attached hereto.
LAWS OR LAW: All laws, ordinances, rules, regulations, other requirements,
orders, rulings or decisions adopted or made by any governmental body, agency,
department or judicial authority having jurisdiction over the Property, the
Premises or Tenant's activities at the Premises and any covenants, conditions or
restrictions of record which affect the Property.
LEASE: This instrument and all exhibits and riders attached hereto, as may
be amended from time to time.
LEASE YEAR: The twelve month period beginning on the Commencement Date and
each subsequent twelve month, or shorter, period until the Expiration Date.
MONTHLY BASE RENT: The monthly rent specified in Section 1.1.
MORTGAGEE: Any holder of a mortgage, deed of trust or other security
instrument encumbering the Property.
NATIONAL HOLIDAYS: New Year's Day, Memorial Day, Independence Day, Labor
Day, Thanksgiving Day and Christmas Day and other holidays recognized by the
Landlord and the janitorial and other unions servicing the Building in
accordance with their contracts.
OPERATING EXPENSES: All costs, expenses and disbursements of every kind
and nature which Landlord shall pay or become obligated to pay in connection
with the ownership, management, operation, maintenance, replacement and repair
of the Building and the Property (including, without limitation, property
management fees, costs and expenses, and the amortized portion of any capital
expenditure or improvement, together with interest thereon, and the costs of
changing utility service providers). Operating Expenses shall not include, (i)
costs of alterations of the premises of tenants of the Project, (ii) costs of
capital improvements to the Project (except for amortized portion of capital
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improvements installed for the purpose of reducing or controlling Operating
Expenses or complying with applicable Laws), (iii) depreciation charges, (iv)
interest and principal payments on loans (except for Loans for capital
improvements which Landlord is allowed to include in Operating Expenses as
provided above), (v) ground rental payments, (vi) real estate brokerage and
leasing commissions, (vii) advertising and marketing expenses, (viii) costs of
Landlord reimbursed by insurance proceeds, (ix) expenses incurred in negotiating
leases of tenants in the Project or enforcing lease obligations of tenants in
the Project and (x) Landlord's general corporate overhead. If any Operating
Expense, though paid in one year, relates to more than one calendar year, at the
option of Landlord such expense may be proportionately allocated among such
related calendar years. Operating Expenses for the Building that are not, in
Landlord's reasonable discretion, allocable solely to either the lab, office or
retail portion of the Building shall be equitably allocated by Landlord between
such uses.
PREMISES: The space located in the Building at the Suite Number listed in
Section 1.1 and depicted on Exhibit A attached hereto.
PROJECT or PROPERTY: The Project consists of the office building with
ground floor office and/or retail spaces located at the street address specified
in Section 1.1 in Emeryville, California, associated surface and garage parking
as designated by Landlord from time to time, landscaping and improvements,
together with the Land, any associated interests in real property, and the
personal property, fixtures, machinery, equipment, systems and apparatus located
in or used in conjunction with any of the foregoing. The Project may also be
referred to as the Property.
REAL PROPERTY: The Property excluding any personal property.
RENT: Collectively, Monthly Base Rent, Rent Adjustments and Rent
Adjustment Deposits. and all other charges, payments, late fees or other amounts
required to be paid by Tenant under this Lease.
RENT ADJUSTMENT: Any amounts owed by Tenant for payment of Operating
Expenses or Taxes. The Rent Adjustments shall be determined and paid as provided
in Article Four.
RENT ADJUSTMENT DEPOSIT: An amount equal to Landlord's estimate of the
Rent Adjustment attributable to each month of the applicable Lease Year. On or
before the beginning of each Lease Year or with Landlord's Statement (defined in
Article Four), Landlord may estimate and notify Tenant in writing of its
estimate of the Operating Expenses and of Taxes for such Lease Year. Prior to
the first determination by Landlord of the amount of Operating Expenses and of
Taxes for the first Lease Year, Landlord may estimate such amounts in the
foregoing calculation. The last estimate by Landlord shall remain in effect as
the applicable Rent Adjustment Deposit unless and until Landlord notifies Tenant
in writing of a change, which notice may be given by Landlord from time to time
during a Lease Year.
RENTABLE AREA OF THE PREMISES: The amount of square footage set forth in
Section 1.1.
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SECURITY DEPOSIT: The funds specified in Section 1.1, if any, deposited by
Tenant with Landlord as security for Tenant's performance of its obligations
under this Lease.
STANDARD OPERATING HOURS: Monday through Friday from 8:00 A.M. to 6:00
P.M. and Saturdays from 9:00 A.M. to 1:00 P.M., excluding National Holidays.
Tenant shall have access to the Premises 24 hours a day, 7 days a week.
SUBSTANTIALLY COMPLETE or SUBSTANTIAL COMPLETION: The completion of the
Landlord Work or Tenant Work, as the case may be, except for minor insubstantial
details of construction, decoration or mechanical adjustments which remain to be
done.
TAXES: All federal, state and local governmental taxes, assessments and
charges of every kind or nature, whether general, special, ordinary or
extraordinary, which Landlord shall pay or become obligated to pay because of or
in connection with the ownership, leasing, management, control or operation of
the Property or any of its components (including any personal property used in
connection therewith), which may also include any rental or similar taxes levied
in lieu of or in addition to general real and/or personal property taxes. For
purposes hereof, Taxes for any year shall be Taxes which are assessed for any
period of such year, whether or not such Taxes arc billed and payable in a
subsequent calendar year. There shall be included in Taxes for any year the
amount of all fees, costs and expenses (including reasonable attorneys' fees)
paid by Landlord during such year in seeking or obtaining any refund or
reduction of Taxes. Taxes for any year shall be reduced by the net amount of any
tax refund received by Landlord attributable to such year. If a special
assessment payable in installments is levied against any part of the Property,
Taxes for any year shall include only the installment of such assessment and any
interest payable or paid during such year. Taxes shall not include any federal
or state inheritance, general income, gift or estate taxes, except that if a
change occurs in the method of taxation resulting in whole or in part in the
substitution of any such taxes, or any other assessment, for any Taxes as above
defined, such substituted taxes or assessments shall be included in the Taxes.
TENANT ADDITIONS: Collectively, Landlord Work, Tenant Work and Tenant
Alterations.
TENANT ALTERATIONS: Any alterations, improvements, additions,
installations or construction in or to the Premises or any Building systems
serving the Premises (excluding Landlord Work or Tenant Work); and any
supplementary air-conditioning systems installed by Landlord or by Tenant at
Landlord's request pursuant to Section 6.1(b).
TENANT DELAY: Any event or occurrence that delays the completion of the
Landlord Work which is caused by or is described as follows:
(1) special work, changes, alterations or additions requested or made by
Tenant in the design or finish in any part of the Premises after approval of the
plans and specifications (as described in the Workletter);
(2) Tenant's delay in submitting plans, supplying information, approving
plans, specifications or estimates, giving authorizations or otherwise;
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(3) failure to approve and pay for such Tenant Work as Landlord undertakes
to complete at Tenant's expense;
(4) the performance or completion by Tenant or any person engaged by
Tenant of any work in or about the Premises; or
(5) failure to perform or comply with any obligation or condition binding
upon Tenant pursuant to the Workletter, including the failure to approve and pay
for such Landlord Work or other items if and to the extent the Workletter
provides they are to be approved or paid by Tenant.
TENANT WORK: All work installed or furnished to the Premises by Tenant
pursuant to the Workletter.
TENANT' S SHARE: The percentage that represents the ratio of the Rentable
Area of the Premises to the Rentable Area of the Building, as determined by
Landlord from time to time.
TERM: The term of this Lease commencing on the Commencement Date and
expiring on the Expiration Date.
TERMINATION DATE: The Expiration Date or such earlier date as this Lease
terminates or Tenant's right to possession of the Premises terminates.
WORKLETTER: The Agreement regarding the manner of completion of Landlord
Work and Tenant Work set forth on Exhibit B attached hereto.
ARTICLE 2
PREMISES, TERM, FAILURE TO GIVE POSSESSION, AND PARKING
2.1 LEASE OF PREMISES
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
the Premises for the Term and upon the terms, covenants and conditions provided
in this Lease. In the event Landlord delivers possession of the Premises to
Tenant prior to the Commencement Date, Tenant shall be subject to all of the
terms, covenants and conditions of this Lease (except with respect to the
payment of Rent) as of the date of such possession.
2.2 TERM
(a) The Commencement Date shall be the date the Landlord Work is
Substantially Complete.
(b) Within thirty (30) days following the occurrence of the Commencement
Date, Landlord and Tenant shall enter into an agreement (the form of which is
attached hereto as Rider 1) confirming the Commencement Date and the Expiration
Date. If Tenant fails to enter into such agreement, then the Commencement Date
and the Expiration Date shall be the dates designated by Landlord in such
agreement.
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2.3 FAILURE TO GIVE POSSESSION
If Landlord shall be unable to give possession of the Premises on the
Projected Commencement Date by reason of the following: (i) the Building has not
been sufficiently completed to make the Premises ready for occupancy, (ii) the
Landlord Work is not Substantially Complete, (iii) the holding over or retention
of possession of any tenant, tenants or occupants, or (iv) for any other reason,
then except as specifically provided herein, Landlord shall not be subject to
any liability for the failure to give possession on said date. Under such
circumstances the rent reserved and covenanted to be paid herein shall not
commence until the Premises are made available to Tenant by Landlord, and no
such failure to give possession on the Projected Commencement Date shall affect
the validity of this Lease or the obligations of the Tenant hereunder. At the
option of Landlord to be exercised within thirty (30) days of the delayed
delivery of possession to Tenant, the Lease shall be amended so that the Term
shall be extended by the period of time possession is delayed. The said Premises
shall be deemed to be ready for Tenant's occupancy in the event Landlord's Work
is Substantially Complete, or if the delay in the availability of the Premises
for occupancy shall be due to any Tenant Delay and/or default on the part of
Tenant and/or its subtenant or subtenants. In the event of any dispute as to
whether the Landlord Work is Substantially Complete, the decision of Landlord's
architect shall be final and binding on the parties. Notwithstanding anything to
the contrary contained in this Section, if the Commencement Date has not
occurred on or before the later of (a) September 1, 2005, or (b) sixty two (62)
days after the approval of the space plan for the Landlord Work (the "Outside
Completion Date"), Tenant shall be entitled to a rent abatement following the
Commencement Date of $285.75 for every day in the period beginning on the
Outside Completion Date and ending on the Commencement Date, Landlord and Tenant
acknowledge and agree that: (i) the determination of the Commencement Date shall
take into consideration the effect of any Tenant Delays including, without
limitation Tenant's failure to approve architectural drawings or mechanical,
electrical and plumbing drawings that are consistent with the approved space
plan within two (2) business days of submission; and (ii) the Outside Completion
Date shall be postponed by the number of days the Commencement Date is delayed
due to events of force majeure. In the event the Commencement Date has not
occurred on or before the Outside Completion Date, Landlord shall provide
Tenant, at no charge, with certain storage space ("Storage Space"), the location
and size of which shall be reasonably determined by Landlord. The Storage Space
shall be used by Tenant for the storage of equipment, inventory or other
nonperishable items normally used in Tenant's business, and for no other purpose
whatsoever. Landlord reserves the right to adopt and enforce reasonable rules
and regulations governing the use of the Storage Space from time to time. Within
two (2) days after the Commencement Date, Tenant shall completely vacate and
surrender the Storage Space to Landlord in the condition in which it was
delivered to Tenant, ordinary wear and tear excepted, broom-clean and empty of
all personalty and other items placed therein by or on behalf of Tenant.
Landlord shall not be liable for any theft or damage to any items or materials
stored in the Storage Space, it being understood that Tenant is using the
Storage Space at its own risk.
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2.4 CONDITION OF PREMISES
Tenant shall notify Landlord in writing within thirty (30) days after the
later of Substantial Completion of the Landlord Work or when Tenant takes
possession of the Premises of any defects in the Premises claimed by Tenant or
in the materials or workmanship furnished by Landlord in completing the Landlord
Work. Except for defects stated in such notice, Tenant shall be conclusively
deemed to have accepted the Premises "AS IS" in the condition existing on the
date Tenant first takes possession, and to have waived all claims relating to
the condition of the Premises. Landlord shall proceed diligently to correct the
defects stated in such notice unless Landlord disputes the existence of any such
defects. In the event of any dispute as to the existence of any such defects,
the decision of Landlord's architect shall be final and binding on the parties.
No agreement of Landlord to alter, remodel, decorate, clean or improve the
Premises or the Real Property and no representation regarding the condition of
the Premises or the Real Property has been made by or on behalf of Landlord to
Tenant, except as may be specifically stated in this Lease or in the Workletter.
2.5 PARKING
During the Term, Tenant may use the number of spaces specified in Section
1.1 for parking at the standard prevailing monthly rates being charged from time
to time by Landlord or its parking operator without regard to discounts provided
to any other occupants of the Buildings. Tenant shall be charged on a monthly
basis for the number of parking spaces used by Tenant. In the event Tenant fails
at any time to pay the full amount of such parking charges, Tenant's parking
rights shall be reduced to the extent of Tenant's failure to pay for any such
parking. The locations and type of parking shall be designated by Landlord or
Landlord's parking operator from time to time. Tenant acknowledges and agrees
that the parking spaces serving the Project may include tandem parking and a
mixture of spaces for compact vehicles as well as full-size passenger
automobiles, and that Tenant shall not use parking spaces for vehicles larger
than the striped size of the parking spaces. All vehicles utilizing Tenant's
parking privileges shall prominently display identification stickers or other
markers, and/or have passes or keycards for ingress and egress, as may be
required and provided by Landlord or its parking operator from time to time.
Tenant shall comply with any and all parking rules and regulations from time to
time established by Landlord or Landlord's parking operator, including a
requirement that Tenant pay to Landlord or Landlord's parking operator a charge
for loss and replacement of passes, keycards, identification stickers or
markers, and for any and all loss or other damage caused by persons or vehicles
related to use of Tenant's parking privileges. Tenant shall not allow any
vehicles using Tenant's parking privileges to be parked, loaded or unloaded
except in accordance with this Section, including in the areas and in the manner
designated by Landlord or its parking operator for such activities. If any
vehicle is using the parking or loading areas contrary to any provision of this
Section, Landlord or its parking operator shall have the right, in addition to
all other rights and remedies of Landlord under this Lease, to remove or tow
away the vehicle without prior notice to Tenant, and the cost thereof shall be
paid to Landlord within ten (10) days after notice from Landlord to Tenant.
ARTICLE 3
RENT
Tenant agrees to pay to Landlord at the first office specified in Section
1.1, or to such other persons, or at such other places designated by Landlord,
without any prior demand therefor in immediately available funds and without any
deduction or offset whatsoever, Rent, including Monthly Base Rent and Rent
Adjustments in accordance with Article Four, during the Term. Monthly Base Rent
shall be paid monthly in advance on the first day of each month of the Term,
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except that the first installment of Monthly Base Rent shall be paid by Tenant
to Landlord concurrently with execution of this Lease. Monthly Base Rent shall
be prorated for partial months within the Term. Unpaid Rent shall bear interest
at the Default Rate from the date due until paid. Tenant's covenant to pay Rent
shall be independent of every other covenant in this Lease.
ARTICLE 4
RENT ADJUSTMENTS AND PAYMENTS
4.1 RENT ADJUSTMENTS
Tenant shall pay to Landlord Rent Adjustments with respect to each Lease
Year as follows:
(1) The Rent Adjustment Deposit representing Tenant's Share of Operating
Expenses for the applicable Lease Year, monthly during the Term with the payment
of Monthly Base Rent; and
(2) The Rent Adjustment Deposit representing Tenant's Share of Taxes for
the applicable Lease Year, monthly during the Term with the payment of Monthly
Base Rent; and
(3) Any Rent Adjustments due in excess of the Rent Adjustment Deposits in
accordance with Section 4.2. Rent Adjustments due from Tenant to Landlord for
any Lease Year shall be Tenant's Share of Operating Expenses for such year and
Tenant's Share of Taxes for such year.
4.2 STATEMENT OF LANDLORD
As soon as feasible after the expiration of each calendar year, Landlord
will furnish Tenant a statement ("Landlord's Statement") showing the following:
(1) Operating Expenses and Taxes for the calendar year;
(2) The amount of Rent Adjustments due Landlord for the last calendar
year, less credit for Rent Adjustment Deposits paid, if any; and
(3) Any change in the Rent Adjustment Deposit due monthly in the current
calendar year, including the amount or revised amount due for months preceding
any such change pursuant to Landlord's Statement.
Tenant shall pay to Landlord within ten (10) days after receipt of such
statement any amounts for Rent Adjustments then due in accordance with
Landlord's Statement. Any amounts due from Landlord to Tenant pursuant to this
Section shall be credited to the Rent Adjustment Deposit next coming due, or
refunded to Tenant if the Term has already expired provided Tenant is not in
default hereunder. No interest or penalties shall accrue on any amounts that
Landlord is obligated to credit or refund to Tenant by reason of this Section
4.2. Landlord's failure to deliver Landlord's Statement or to compute the amount
of the Rent Adjustments shall not constitute a waiver by Landlord of its right
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to deliver such items nor constitute a waiver or release of Tenant's obligations
to pay such amounts. The Rent Adjustment Deposit shall be credited against Rent
Adjustments due for the applicable Lease Year. During the last complete Lease
Year or during any partial Lease Year in which the Lease terminates, Landlord
may include in the Rent Adjustment Deposit its estimate of Rent Adjustments
which may not be finally determined until after the termination of this Lease.
Tenant's obligation to pay Rent Adjustments survives the expiration or
termination of the Lease. Notwithstanding the foregoing, in no event shall the
sum of Monthly Base Rent and the Rent Adjustments be less than the Monthly Base
Rent payable.
4.3 BOOKS AND RECORDS
Landlord shall maintain books and records showing Operating Expenses and
Taxes in accordance with sound accounting and management practices, consistently
applied. The Tenant or its representative (which representative shall be a
certified public accountant licensed to do business in the state in which the
Property is located and whose primary business is certified public accounting
and who shall not be paid on a contingency basis) shall have the right, for a
period of sixty (60) days following the date upon which Landlord's Statement is
delivered to Tenant, to examine the Landlord's books and records with respect to
the items in the foregoing statement of Operating Expenses and Taxes during
normal business hours, upon written notice, delivered at least three (3)
business days in advance. If Tenant does not object in writing to Landlord's
Statement within ninety (90) days of Tenant's receipt thereof, specifying the
nature of the item in dispute and the reasons therefor, then Landlord's
Statement shall be considered final and accepted by Tenant. If Tenant does
dispute any Landlord's Statement, Tenant shall deliver a copy of any such audit
to Landlord at the time of notification of the dispute. If Tenant does not
provide such notice of dispute and a copy of such audit to Landlord within such
ninety day (90) day period, it shall be deemed to have waived such right to
dispute Landlord's Statement. Any amount due to the Landlord as shown on
Landlord's Statement, whether or not disputed by Tenant as provided herein shall
be paid by Tenant when due as provided above, without prejudice to any such
written exception. In no event shall Tenant be permitted to examine Landlord's
records or to dispute any statement of Expenses unless Tenant has paid and
continues to pay all Rent when due. Upon resolution of any dispute with respect
to Operating Expenses and Taxes, Tenant shall either pay Landlord any shortfall
or Landlord shall credit Tenant with respect to any overages paid by Tenant. The
records obtained by Tenant shall be treated as confidential and neither Tenant
nor any of its representatives or agents shall disclose or discuss the
information set forth in the audit to or with any other person or entity
("Confidentiality Requirement"). Tenant shall indemnify and hold Landlord
harmless for any losses or damages arising out of the breach of the
Confidentiality Requirement. In no event shall Tenant be permitted to examine
Landlord's records or to dispute any statement of Expenses unless Tenant has
paid and continues to pay all Rent when due.
4.4 TENANT OR LEASE SPECIFIC TAXES
In addition to Monthly Base Rent, Rent Adjustments, Rent Adjustment
Deposits and other charges to be paid by Tenant, Tenant shall pay to Landlord,
upon demand, any and all taxes payable by Landlord (other than federal or state
inheritance, general income, gift or estate taxes) whether or not now customary
or within the contemplation of the parties hereto: (a) upon, allocable to, or
measured by the Rent payable hereunder, including any gross receipts tax or
excise tax levied by any governmental or taxing body with respect to the receipt
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of such rent; or (b) upon or with respect to the possession, leasing, operation,
management, maintenance, alteration, repair, use or occupancy by Tenant of the
Premises or any portion thereof; or (c) upon the measured value of Tenant's
personal property located in the Premises or in any storeroom or any other place
in the Premises or the Property, or the areas used in connection with the
operation of the Property, it being the intention of Landlord and Tenant that,
to the extent possible, such personal property taxes shall be billed to and paid
directly by Tenant; (d) resulting from Landlord Work, Tenant Work or Tenant
Alterations to the Premises, whether title thereto is in Landlord or Tenant; or
(e) upon this transaction. Taxes paid by Tenant pursuant to this Section 4.5
shall not be included in any computation of Taxes payable pursuant to Sections
4.1 and 4.2.
ARTICLE 5
SECURITY DEPOSIT
Tenant concurrently with the execution of this Lease shall pay to Landlord
in immediately available funds the Security Deposit. The Security Deposit may be
applied by Landlord to cure, in whole or part, any default of Tenant under this
Lease, and upon notice by Landlord of such application, Tenant shall replenish
the Security Deposit in full by paying to Landlord within ten (10) days of
demand the amount so applied. Landlord's application of the Security Deposit
shall not constitute a waiver of Tenant's default to the extent that the
Security Deposit does not fully compensate Landlord for all losses, damages,
costs and expenses incurred by Landlord in connection with such default and
shall not prejudice any other rights or remedies available to Landlord under
this Lease or by Law. Landlord shall not pay any interest on the Security
Deposit. Landlord shall not be required to keep the Security Deposit separate
from its general accounts. The Security Deposit shall not be deemed an advance
payment of Rent or a measure of damages for any default by Tenant under this
Lease, nor shall it be a bar or defense of any action that Landlord may at any
time commence against Tenant. In the absence of evidence satisfactory to
Landlord of an assignment of the right to receive the Security Deposit or the
remaining balance thereof, Landlord may return the Security Deposit to the
original Tenant, regardless of one or more assignments of this Lease. Upon the
transfer of Landlord's interest under this Lease, Landlord's obligation to
Tenant with respect to the Security Deposit shall terminate upon transfer to the
transferee of the Security Deposit, or any balance thereof. If Tenant shall
fully and faithfully comply with all the terms, provisions, covenants, and
conditions of this Lease, the Security Deposit, or any balance thereof, shall be
returned to Tenant within thirty (30) days after Landlord recovers possession of
the Premises or such longer time as may be permissible under Law. Tenant hereby
waives any and all rights of Tenant under the provisions of Section 1950.7 of
the California Civil Code or other Law regarding security deposits.
ARTICLE 6
SERVICES
6.1 LANDLORD'S GENERAL SERVICES
(a) So long as the Lease is in full force and effect and Tenant has paid
all Rent then due, Landlord shall furnish the following services the cost of
which services shall be included in Operating Expenses or paid directly by
Tenant to the utility or service provider:
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(1) heat, ventilation and air-conditioning ("HVAC") in the Premises
during Standard Operating Hours as necessary in Landlord's reasonable judgment
for the comfortable occupancy of the Premises under normal business office and
lab operations, subject to compliance with all applicable voluntary and
mandatory regulations and Laws;
(2) tempered and cold water for use in the labs and in lavatories in
common with other tenants from the regular supply of the Building;
(3) customary cleaning and janitorial services in the Premises five
(5) days per week, excluding National Holidays;
(4) washing of the outside windows in the Premises weather
permitting at intervals determined by Landlord; and
(5) automatic passenger and swing/freight elevator service in common
with other tenants of the Building. Freight elevator service will be subject to
reasonable scheduling by Landlord and payment of Landlord's standard charges.
(b) If Tenant uses heat generating machines or equipment in the Premises
to an extent which adversely affects the temperature otherwise maintained by the
air-cooling system or whenever the occupancy or electrical load adversely
affects the temperature otherwise maintained by the air-cooling system, Landlord
reserves the right to install or to require Tenant to install supplementary
air-conditioning units in the Premises. Tenant shall bear all costs and expenses
related to the installation, maintenance and operation of such units.
6.2 ELECTRICAL SERVICES
(a) So long as the Lease is in full force and effect and Tenant has paid
all Rent then due, Landlord shall furnish to the Premises as an Operating
Expense or a service Which is paid directly by Tenant to the utility provider,
electric current for general office use, including normal lighting, normal
business office machines and customary janitorial service. Notwithstanding any
provision of the Lease to the contrary, without, in each instance, the prior
written approval of Landlord, in Landlord's prudent business judgment, Tenant
shall not: (i) make any alterations or additions to the electric equipment or
systems; or (ii) install or use or permit the installation or use of any
computer or electronic data processing equipment in the Premises other than
personal computers, laptop computers and ancillary equipment. Tenant's use of
electric current shall at no time exceed the capacity of the wiring, feeders and
risers providing electric current to the Premises or the Building. The consent
of Landlord to the installation of electric equipment shall not relieve Tenant
from the obligation to limit usage of electricity to no more than such capacity.
(b) At any time and from time to time, Landlord may in its sole discretion
either (i) install one or more meters to measure electric current furnished to
the Premises or (ii) reasonably estimate electric current furnished to the
Premises. Upon notice from Landlord, Tenant shall pay Landlord the cost of
installing and maintaining all such meters and of any electrical engineering or
consulting firm, if Landlord retains such firm to estimate the electric current
furnished to the Premises in lieu of installation of a meter.
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(c) So long as the Lease is in full force and effect and Tenant has paid
all Rent then due, Landlord shall furnish to the Premises replacement lamps,
bulbs, ballasts and starters used in any normal Building lighting installed in
the Premises, except that if the replacement or repair of such items is a result
of negligence of Tenant, its employees, agents, servants, licensees, subtenants,
contractors or invitees, such cost shall be paid by Tenant within ten days after
notice from Landlord and shall not be included as part of Operating Expenses.
6.3 ADDITIONAL AND AFTER HOUR SERVICES
At Tenant's written request, Landlord shall furnish additional quantities
of any of the services or utilities specified in Section 6.1, if Landlord can
reasonably do so, on the terms set forth herein. For services or utilities
requested by Tenant and furnished by Landlord, Tenant shall pay to Landlord as a
charge therefor Landlord's prevailing rates charged from time to time for such
services and utilities. Without limiting the generality of the foregoing, for
HVAC service beyond Standard Operating Hours, Landlord's prevailing rate as of
the date of this Lease includes a one (1) hour minimum per activation. If Tenant
shall fail to make any such payment, Landlord may, upon notice to Tenant and in
addition to Landlord's other remedies under this Lease, discontinue any or all
of such additional services.
6.4 TELEPHONE SERVICES
All telegraph, telephone, and communication connections which Tenant may
desire shall be subject to Landlord's prior written approval, in Landlord's
reasonable discretion, and the location of all wires and the work in connection
therewith shall be performed by contractors approved by Landlord and shall be
subject to the direction of Landlord, except that such approval is not required
as to Tenant's telephone equipment (including cabling) within the Premises and
from the Premises in a route designated by Landlord to any telephone cabinet or
panel provided (as existing or as installed as part of Landlord's Work, if any)
on Tenant's floor for Tenant's connection to the telephone cable serving the
Building so long as Tenant's equipment does not require connections different
than or additional to those to the telephone cabinet or panel provided. Except
to the extent of such cabling within the Premises or from the Premises to such
telephone cabinet or panel, Landlord reserves the right to designate and control
the entity or entities providing telephone or other communication cable
installation, removal, repair and maintenance in the Building and to restrict
and control access to telephone cabinets or panels. In the event Landlord
designates a particular vendor or vendors to provide such cable installation,
removal, repair and maintenance for the Building, Tenant agrees to abide by and
participate in such program. Tenant shall be responsible for and shall pay all
costs incurred in connection with the installation of telephone cables and
communication wiring in the Premises, including any hook-up, access and
maintenance fees related to the installation of such wires and cables in the
Premises and the commencement of service therein, and the maintenance thereafter
of such wire and cables; and there shall be included in Operating Expenses for
the Building all installation, removal, hook-up or maintenance costs incurred by
Landlord in connection with telephone cables and communication wiring serving
the Building which are not allocable to any individual users of such service but
are allocable to the Building generally. If Tenant fails to maintain all
telephone cables and communication wiring in the Premises and such failure
affects or interferes with the operation or maintenance of any other telephone
cables or communication wiring serving the Building, Landlord or any vendor
hired by Landlord may enter into and upon the Premises forthwith and perform
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such repairs, restorations or alterations as Landlord deems necessary in order
to eliminate any such interference (and Landlord may recover from Tenant all of
Landlord's costs in connection therewith). If required by Landlord, no later
than the Termination Date Tenant shall remove all telephone cables and
communication wiring installed by Tenant for and during Tenant's occupancy.
Tenant agrees that neither Landlord nor any of its agents or employees shall be
liable to Tenant, or any of Tenant's employees, agents, customers or invitees or
anyone claiming through, by or under Tenant, for any damages, injuries, losses,
expenses, claims or causes of action because of any interruption, diminution,
delay or discontinuance at any time for any reason in the furnishing of any
telephone or other communication service to the Premises and the Building.
6.5 DELAYS IN FURNISHING SERVICES
Tenant agrees that Landlord shall not be in breach of this Lease nor be
liable to Tenant for damages or otherwise, for any failure to furnish, or a
delay in furnishing, or a change in the quantity or character of any service
when such failure, delay or change is occasioned, in whole or in part, by
repairs, improvements or mechanical breakdowns by the act or default of Tenant
or other parties or by an event of Force Majeure. No such failure, delay or
change shall be deemed to be an eviction or disturbance of Tenant's use and
possession of the Premises, or relieve Tenant from paying Rent or from
performing any other obligations of Tenant under this Lease, without any
deduction or offset. Failure to any extent to make available, or any slowdown,
stoppage, or interruption of, the specified utility services resulting from any
cause, including changes in service provider or Landlord's compliance with any
voluntary or similar governmental or business guidelines now or hereafter
published or any requirements now or hereafter established by any governmental
agency, board, or bureau having jurisdiction over the operation of the Property
shall not render Landlord liable in any respect for damages to either persons,
property, or business, nor be construed as an eviction of Tenant or work an
abatement of Rent, nor relieve Tenant of Tenant's obligations for fulfillment of
any covenant or agreement hereof. Should any equipment or machinery furnished by
Landlord break down or for any cause cease to function properly, Landlord shall
use reasonable diligence to repair same promptly, but Tenant shall have no claim
for abatement of Rent or damages on account of any interruption of service
occasioned thereby or resulting therefrom.
6.6 CHOICE OF SERVICE PROVIDER
Tenant acknowledges that Landlord may, at Landlord's sole option, to the
extent permitted by applicable law, elect to change, from time to time, the
company or companies which provide services (including electrical service, gas
service, water, telephone and technical services) to the Building, the Premises
and/or its occupants. Notwithstanding anything to the contrary set forth in this
Lease, Tenant acknowledges that Landlord has not and does not make any
representations or warranties concerning the identity or identities of the
company or companies which provide services to the Building and the Premises or
its occupants and Tenant acknowledges that the choice of service providers and
matters concerning the engagement and termination thereof shall be solely that
of Landlord. The foregoing provision is not intended to modify, amend, change or
otherwise derogate any provision of this Lease concerning the nature or type of
service to be provided or any specific information concerning the amount thereof
to be provided. Tenant agrees to cooperate with Landlord and each of its service
providers in connection with any change in service or provider.
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6.7 SIGNAGE
Initial Building standard signage will be installed by Landlord in the
directory in the main lobby of the Building, in the listing of tenants in the
elevator lobby for the floor on which the Premises is located and at Tenant's
main entry door to the Premises at Landlord's sole cost and expense. Any change
in such initial signage shall be only with Landlord's prior written consent,
shall conform to Building standard signage and shall be at Tenant's sole cost
and expense.
ARTICLE 7
POSSESSION, USE AND CONDITION OF PREMISES
7.1 POSSESSION AND USE OF PREMISES
(a) Tenant shall be entitled to possession of the Premises when the
Landlord Work is Substantially Complete. Tenant shall occupy and use the
Premises only for the uses specified in Section 1.1 to conduct Tenant's
business. Tenant shall not occupy or use the Premises (or permit the use or
occupancy of the Premises) for any purpose or in any manner which: (1) is
unlawful or in violation of any Law or Environmental Law; (2) may be dangerous
to persons or property or which may increase the cost of, or invalidate, any
policy of insurance carried on the Building or covering its operations; (3) is
contrary to or prohibited by the terms and conditions of this Lease or the rules
of the Building set forth in Article Eighteen; or (4) would tend to create or
continue a nuisance.
(b) Landlord shall provide Tenant with Access Card Keys, the cost of which
shall be deducted from the Tenant Improvement Allowance.
(c) Tenant shall comply with all Environmental Laws pertaining to Tenant's
occupancy and use of the Premises and concerning the proper storage, handling
and disposal of any Hazardous Material introduced to the Premises, the Building
or the Property by Tenant or other occupants of the Premises, or their
employees, servants, agents, contractors, customers or invitees. Landlord shall
comply with all Environmental Laws applicable to the Property other than those
to be complied with by Tenant pursuant to the preceding sentence. Tenant shall
not generate, store, handle or dispose of any Hazardous Material in, on, or
about the Property without the prior written consent of Landlord, which may be
withheld in Landlord's sole discretion, except that such consent shall not be
required to the extent of Hazardous Material packaged and contained in office
products for consumer use in general business offices in quantities for ordinary
day-to-day use provided such use does not give rise to, or pose a risk of,
exposure to or release of Hazardous Material. In the event that Tenant is
notified of any investigation or violation of any Environmental Law arising from
Tenant's activities at the Premises, Tenant shall immediately deliver to
16
Landlord a copy of such notice. In such event or in the event Landlord
reasonably believes that a violation of Environmental Law exists, Landlord may
conduct such tests and studies relating to compliance by Tenant with
Environmental Laws or the alleged presence of Hazardous Materials upon the
Premises as Landlord deems desirable, all of which shall be completed at
Tenant's expense. Landlord's inspection and testing rights are or Landlord's own
protection only, and Landlord has not, and shall not be deemed to have assumed
any responsibility to Tenant or any other party for compliance with
Environmental Laws, as a result of the exercise, or non-exercise of such rights.
Tenant hereby indemnifies, and agrees to defend, protect and hold harmless, the
Indemnitees from any and all loss, claim, demand, action, expense, liability and
cost (including attorneys' fees and expenses) arising out of or in any way
related to the presence of any Hazardous Material introduced to the Premises
during the Term by any party other than Landlord. In case of any action or
proceeding brought against the Indemnitees by reason of any such claim, upon
notice from Landlord, Tenant covenants to defend such action or proceeding by
counsel chosen by Landlord, in Landlord's sole discretion. Landlord reserves the
right to settle, compromise or dispose of any and all actions, claims and
demands related to the foregoing indemnity. If any Hazardous Material is
released, discharged or disposed of on or about the Property and such release,
discharge or disposal is not caused by Tenant or other occupants of the
Premises, or their employees, servants, agents, contractors customers or
invitees, such release, discharge or disposal shall be deemed casualty damage
under Article Fourteen to the extent that the Premises are affected thereby; in
such case, Landlord and Tenant shall have the obligations and rights respecting
such casualty damage provided under such Article.
(d) Landlord and Tenant acknowledge that the Americans With Disabilities
Act of 1990 (42 U.S.C. ss. 12101 et seq.) and regulations and guidelines
promulgated thereunder, as all of the same may be amended and supplemented from
time to time (collectively referred to herein as the "ADA") establish
requirements for business operations, accessibility and barrier removal, and
that such requirements may or may not apply to the Premises, the Building and
the Project depending on, among other things: (1) whether Tenant's business is
deemed a "public accommodation" or "commercial facility", (2) whether such
requirements are "readily achievable", and (3) whether a given alteration
affects a "primary function area" or triggers "path of travel" requirements. The
parties hereby agree that: (a) Landlord shall be responsible for A1)A Title III
compliance in the Common Areas, except as provided below, (b) Tenant shall be
responsible for ADA Title III compliance in the Premises, including any
leasehold improvements or other work to be performed in the Premises under or in
connection with this Lease, (c) Landlord may perform, or require that Tenant
perform, and Tenant shall be responsible for the cost of, ADA Title III "path of
travel" requirements triggered by Tenant Additions in the Premises, and (d)
Landlord may perform, or require Tenant to perform, and Tenant shall be
responsible for the cost of, ADA Title III compliance in the Common Areas
necessitated by the Building being deemed to be a "public accommodation" instead
of a "commercial facility" as a result of Tenant's use of the Premises. Tenant
shall be solely responsible for requirements under Title I of the ADA relating
to Tenant's employees.
7.2 LANDLORD ACCESS TO PREMISES; APPROVALS
(a) Tenant shall permit Landlord to erect, use and maintain pipes, ducts,
wiring and conduits in and through the Premises, so long as Tenant's use, layout
or design of the Premises is not materially affected or altered. Landlord or
Landlord's agents shall have the right to enter upon the Premises in the event
of an emergency, or to inspect the Premises, to perform janitorial and other
services, to conduct safety and other testing in the Premises and to make such
repairs, alterations, improvements or additions to the Premises or the Building
or other parts of the Property as Landlord may deem necessary or desirable
(including all alterations, improvements and additions in connection with a
change in service provider or providers). Janitorial and cleaning services shall
be performed after normal business hours. Any entry or work by Landlord may be
during normal business hours and Landlord may use reasonable efforts to ensure
that any entry or work shall not materially interfere with Tenant's occupancy of
the Premises.
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(b) If Tenant shall not be personally present to permit an entry into the
Premises when for any reason an entry therein shall be necessary or permissible,
Landlord (or Landlord's agents), after attempting to notify Tenant (unless
Landlord believes an emergency situation exists), may enter the Premises without
rendering Landlord or its agents liable therefor, and without relieving Tenant
of any obligations under this Lease.
(c) Landlord may enter the Premises for the purpose of conducting such
inspections, tests and studies as Landlord may deem desirable or necessary to
confirm Tenant's compliance with all Laws and Environmental Laws or for other
purposes necessary in Landlord's reasonable judgment to ensure the sound
condition of the Property and the systems serving the Property. Landlord's
rights under this Section 7.2(c) are for Landlord's own protection only, and
Landlord has not, and shall not be deemed to have assumed, any responsibility to
Tenant or any other party as a result of the exercise or non-exercise of such
rights, for compliance with Laws or Environmental Laws or for the accuracy or
sufficiency of any item or the quality or suitability of any item for its
intended use.
(d) Landlord may do any of the foregoing, or undertake any of the
inspection or work described in the preceding paragraphs without such action
constituting an actual or constructive eviction of Tenant, in whole or in part,
or giving rise to an abatement of Rent by reason of loss or interruption of
business of the Tenant, or otherwise.
(e) The review, approval or consent of Landlord with respect to any item
required or permitted under this Lease is for Landlord's own protection only,
and Landlord has not, and shall not be deemed to have assumed, any
responsibility to Tenant or any other party, as a result of the exercise or
non-exercise of such rights, for compliance with Laws or Environmental Laws or
for the accuracy or sufficiency of any item or the quality or suitability of any
item for its intended use.
7.3 QUIET ENJOYMENT
Landlord covenants, in lieu of any implied covenant of quiet possession or
quiet enjoyment, that so long as Tenant is in compliance with the covenants and
conditions set forth in this Lease, Tenant shall have the right to quiet
enjoyment of the Premises without hindrance or interference from Landlord or
those claiming through Landlord, and subject to the covenants and conditions set
forth in the Lease and to the rights of any Mortgagee or ground lessor.
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ARTICLE 8
MAINTENANCE
8.1 LANDLORD'S MAINTENANCE
Subject to the provisions of Articles Four and Fourteen, Landlord shall
maintain and make necessary repairs to the foundations, roofs, exterior walls,
and the structural elements of the Building, the electrical, plumbing, heating,
ventilating, air-conditioning, mechanical, communication, security and the fire
and life safety systems of the Building and those corridors, washrooms and
lobbies which are Common Areas of the Building, except that: (a) Landlord shall
not be responsible for the maintenance or repair of any floor or wall coverings
in the Premises or any of such systems which are located within the Premises and
are supplemental or special to the Building's standard systems; and (b) the cost
of performing any of said maintenance or repairs whether to the Premises or to
the Building caused by the negligence of Tenant, its employees, agents,
servants, licensees, subtenants, contractors or invitees, shall be paid by
Tenant, subject to the waivers set forth in Section 16.4. Landlord shall not be
liable to Tenant for any expense, injury, loss or damage resulting from work
done in or upon, or in connection with the use of, any adjacent or nearby
building, land, Street or alley.
8.2 TENANT'S MAINTENANCE
Tenant shall periodically inspect the Premises to identify any conditions
that are dangerous or in need of maintenance or repair. Tenant shall promptly
provide Landlord with notice of any such conditions. Tenant shall, at its sole
cost and expense, perform all maintenance and repairs to the Premises that are
not Landlord's express responsibility under this Lease, and keep the Premises in
good condition and repair, reasonable wear and tear excepted. Tenant's repair
and maintenance obligations include, without limitation, repairs to: (a) floor
covering; (b) interior partitions; (c) doors; (d) the interior side of demising
walls; (e) electronic, phone and data cabling and related equipment that is
installed by or for the exclusive benefit of Tenant (collectively, "Cable"); (f)
supplemental air conditioning units, kitchens, including hot water heaters,
plumbing, and similar facilities exclusively serving Tenant; and (g)
Alterations. To the extent Landlord is not reimbursed by insurance proceeds,
Tenant shall reimburse Landlord for the cost of repairing damage to the Building
caused by the acts of Tenant, Tenant Related Parties and their respective
contractors and vendors. If Tenant fails to make any repairs to the Premises for
more than 15 days after notice from Landlord (although notice shall not be
required in an emergency), Landlord may make the repairs, and Tenant shall pay
the reasonable cost of the repairs, together with an administrative charge in an
amount equal to 10% of the cost of the repairs. Tenant hereby waives all right
to make repairs at the expense of Landlord or in lieu thereof to vacate the
Premises and its other similar rights as provided in California Civil Code
Sections 1932(1), 1941 and 1942 or any other Legal Requirement (whether now or
hereafter in effect). In addition to the foregoing, Tenant shall be responsible
for repairing all special tenant fixtures and improvements, including garbage
disposals, showers, plumbing, and appliances.
ARTICLE 9
ALTERATIONS AND IMPROVEMENTS
9.1 TENANT ALTERATIONS
(a) Except for completion of Tenant Work undertaken by Tenant pursuant to
the Work letter, the following provisions shall apply to the completion of any
Tenant Alterations:
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(1) Tenant shall not, except as provided herein, without the prior
written consent of Landlord, which consent shall not be unreasonably withheld,
make or cause to be made any Tenant Alterations in or to the Premises or any
Property systems serving the Premises. Prior to making any Tenant Alterations,
Tenant shall give Landlord ten (10) days prior written notice (or such earlier
notice as would be necessary pursuant to applicable Law) to permit Landlord
sufficient time to post appropriate notices of non-responsibility. Subject to
all other requirements of this Article Nine, Tenant may undertake Decoration
work without Landlord's prior written consent. Tenant shall furnish Landlord
with the names and addresses of all contractors and subcontractors and copies of
all contracts. All Tenant Alterations shall be completed at such time and in
such manner as Landlord may from time to time designate, and only by contractors
or mechanics approved by Landlord, which approval shall not be unreasonably
withheld, provided, however, that Landlord may, in its sole discretion, specify
the engineers and contractors to perform all work relating to the Building's
systems (including the mechanical, heating, plumbing, security, ventilating,
air-conditioning, electrical, communication and the fire and life safety systems
in the Building). The contractors, mechanics and engineers who may be used are
further limited to those whose work will not cause or threaten to cause
disharmony or interference with Landlord or other tenants in the Building and
their respective agents and contractors performing work in or about the
Building. Landlord may further condition its consent upon Tenant furnishing to
Landlord and Landlord approving prior to the commencement of any work or
delivery of materials to the Premises related to the Tenant Alterations such of
the following as specified by Landlord: architectural plans and specifications,
opinions from Landlord's engineers stating that the Tenant Alterations will not
in any way adversely affect the Building's systems, necessary permits and
licenses, certificates of insurance, and such other documents in such form
reasonably requested by Landlord. Landlord may, in the exercise of reasonable
judgment, request that Tenant provide Landlord with appropriate evidence of
Tenant's ability to complete and pay for the completion of the Tenant
Alterations such as a performance bond or letter of credit. Upon completion of
the Tenant Alterations, Tenant shall deliver to Landlord an as-built mylar and
digitized (if available) set of plans and specifications for the Tenant
Alterations.
(2) Tenant shall pay the cost of all Tenant Alterations and the cost
of decorating the Premises and any work to the Property occasioned thereby. Upon
completion of Tenant Alterations, Tenant shall furnish Landlord with
contractors' affidavits and full and final waivers of lien and receipted bills
covering all labor and materials expended and used in connection therewith and
such other documentation reasonably requested by Landlord or Mortgagee.
(3) Tenant agrees to complete all Tenant Alterations (i) in
accordance with all Laws, Environmental Laws, all requirements of applicable
insurance companies and in accordance with Landlord's standard construction
rules and regulations, and (ii) in a good and workmanlike manner with the use of
good grades of materials. Tenant shall notify Landlord immediately if Tenant
receives any notice of violation of any Law in connection with completion of any
Tenant Alterations and shall immediately take such steps as are necessary to
remedy such violation. In no event shall such supervision or right to supervise
by Landlord nor shall any approvals given by Landlord under this Lease
constitute any warranty by Landlord to Tenant of the adequacy of the design,
workmanship or quality of such work or materials for Tenant's intended use or of
compliance with the requirements of Section 9.1 (a)(3)(i) and (ii) above or
impose any liability upon Landlord in connection with the performance of such
work.
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(b) All Tenant Additions whether installed by Landlord or Tenant, shall
without compensation or credit to Tenant, become part of the Premises and the
property of Landlord at the time of their installation and shall remain in the
Premises, unless pursuant to Article Twelve, Tenant may remove them or is
required to remove them at Landlord's request.
9.2 LIENS
Tenant shall not permit any lien or claim for lien of any mechanic,
laborer or supplier or any other lien to be filed against the Building, the
Land, the Premises, or any other part of the Property arising out of work
performed, or alleged to have been performed by, or at the direction of, or on
behalf of Tenant. If any such lien or claim for lien is filed, Tenant shall
within ten (10) days of receiving notice of such lien or claim (a) have such
lien or claim for lien released of record or (b) deliver to Landlord a bond in
form, content, amount, and issued by surety, satisfactory to Landlord,
indemnifying, protecting, defending and holding harmless the Indemnitees against
all costs and liabilities resulting from such lien or claim for lien and the
foreclosure or attempted foreclosure thereof. If Tenant fails to take any of the
above actions, Landlord, in addition to its rights and remedies under Article
Eleven, without investigating the validity of such lien or claim for lien, may
pay or discharge the same and Tenant shall, as payment of additional Rent
hereunder, reimburse Landlord upon demand for the amount so paid by Landlord,
including Landlord's expenses and attorneys' fees.
ARTICLE 10
ASSIGNMENT AND SUBLETTING
10.1 ASSIGNMENT AND SUBLETTING
(a) Without the prior written consent of Landlord, which may be withheld
in Landlord's sole discretion, Tenant may not sublease, assign, mortgage,
pledge, hypothecate or otherwise transfer or permit the transfer of this Lease
or the encumbering of Tenant's interest therein in whole or in part, by
operation of Law or otherwise or permit the use or occupancy of the Premises, or
any part thereof, by anyone other than Tenant, provided, however, if Landlord
chooses not to recapture the space proposed to be subleased or assigned as
provided in Section 10.2, Landlord shall not unreasonably withhold its consent
to a subletting or assignment under this Section 10.1. Tenant agrees that the
provisions governing sublease and assignment set forth in this Article Ten shall
be deemed to be reasonable. If Tenant desires to enter into any sublease of the
Premises or assignment of this Lease, Tenant shall deliver written notice
thereof to Landlord ("Tenant's Notice"), together with the identity of the
proposed subtenant or assignee and the proposed principal terms thereof and
financial and other information sufficient for Landlord to make an informed
judgment with respect to such proposed subtenant or assignee at least sixty (60)
days prior to the commencement date of the term of the proposed sublease or
assignment. If Tenant proposes to sublease less than all of the Rentable Area of
the Premises, the space proposed to be sublet and the space retained by Tenant
must each be a marketable unit as reasonably determined by Landlord and
otherwise in compliance with all Laws. Landlord shall notify Tenant in writing
of its approval or disapproval of the proposed sublease or assignment or its
decision to exercise its rights under Section 10.2 within thirty (30) days after
receipt of Tenant's Notice (and all required information). In no event may
Tenant sublease any portion of the Premises or assign the Lease to any other
tenant of the Project. Tenant shall submit for Landlord's approval (which
approval shall not be unreasonably withheld) any advertising which Tenant or its
agents intend to use with respect to the space proposed to be sublet.
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(b) With respect to Landlord's consent to an assignment or sublease,
Landlord may take into consideration any factors that Landlord may deem
relevant, and the reasons for which Landlord's denial shall be deemed to be
reasonable shall include, without limitation, the following:
(1) the business reputation or creditworthiness of any proposed
subtenant or assignee is not acceptable to Landlord; or
(2) in Landlord's reasonable judgment the proposed assignee or
sublessee would diminish the value or reputation of the Building or Landlord; or
(3) any proposed assignee's or sublessee's use of the Premises would
violate Section 7.1 of the Lease or would violate the provisions of any other
leases of tenants in the Project; or
(4) the proposed sublessee or assignee is a bona fide prospective
tenant of Landlord in the Project as demonstrated by a written proposal dated
within ninety (90) days prior to the date of Tenant's request; or
(5) the proposed sublessee or assignee would materially increase the
estimated pedestrian and vehicular traffic to and from the Premises and the
Building.
(c) Any sublease or assignment shall be expressly subject to the terms and
conditions of this Lease. Any subtenant or assignee shall execute such documents
as Landlord may reasonably require to evidence such subtenant or assignee's
assumption of the obligations and liabilities of Tenant under this Lease. Tenant
shall deliver to Landlord a copy of all agreements executed by Tenant and the
proposed subtenant and assignee with respect to the Premises. Landlord's
approval of a sublease, assignment, hypothecation, transfer or third party use
or occupancy shall not constitute a waiver of Tenant's obligation to obtain
Landlord's consent to further assignments or subleases, hypothecations,
transfers or third party use or occupancy.
(d) For purposes of this Article Ten, an assignment shall be deemed to
include a change in the majority control of Tenant, resulting from any transfer,
sale or assignment of shares of stock of Tenant occurring by operation of Law or
otherwise if Tenant is a corporation whose shares of stock are not traded
publicly. If Tenant is a partnership, any change in the partners of Tenant shall
be deemed to be an assignment.
10.2 RECAPTURE
Landlord shall have the option to exclude from the Premises covered by
this Lease ("recapture") the space proposed to be sublet or subject to the
assignment, effective as of the proposed commencement date of such sublease or
assignment. If Landlord elects to recapture, Tenant shall surrender possession
of the space proposed to be subleased or subject to the assignment to Landlord
on the effective date of recapture of such space from the Premises, such date
being the Termination Date for such space. Effective as of the date of recapture
of any portion of the Premises pursuant to this section, the Monthly Base Rent,
Rentable Area of the Premises and Tenant's Share shall be adjusted accordingly.
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10.3 EXCESS RENT
Tenant shall pay Landlord on the first day of each month during the term
of the sublease or assignment, fifty percent (50%) of the amount by which the
sum of all rent and other consideration (direct or indirect) due from the
subtenant or assignee for such month exceeds: (i) that portion of the Monthly
Base Rent and Rent Adjustments due under this Lease for said month which is
allocable to the space sublet or assigned; and (ii) the following costs and
expenses for the subletting or assignment of such space: (1) brokerage
commissions and attorneys' fees and expenses, (2) the actual costs paid in
making any improvements or substitutions in the Premises required by any
sublease or assignment; and (3) "free rent" periods, costs of any inducements or
concessions given to subtenant or assignee, moving costs, and other amounts in
respect of such subtenant's or assignee's other leases or occupancy
arrangements. All such costs and expenses shall be amortized over the term of
the sublease or assignment pursuant to sound accounting principles.
10.4 TENANT LIABILITY
In the event of any sublease or assignment, whether or not with Landlord's
consent, Tenant shall not be released or discharged from any liability, whether
past, present or future, under this Lease, including any liability arising from
the exercise of any renewal or expansion option, to the extent such exercise is
expressly permitted by Landlord. Tenant's liability shall remain primary, and in
the event of default by any subtenant, assignee or successor of Tenant in
performance or observance of any of the covenants or conditions of this Lease,
Landlord may proceed directly against Tenant without the necessity of exhausting
remedies against said subtenant, assignee or successor. After any assignment,
Landlord may consent to subsequent assignments or subletting of this Lease, or
amendments or modifications of this Lease with assignees of Tenant, without
notifying Tenant, or any successor of Tenant, and without obtaining its or their
consent thereto, and such action shall not relieve Tenant or any successor of
Tenant of liability under this Lease. If Landlord grants consent to such
sublease or assignment, Tenant shall pay all reasonable attorneys' fees and
expenses incurred by Landlord with respect to such assignment or sublease. In
addition, if Tenant has any options to extend the Term or to add other space to
the Premises, such options shall not be available to any subtenant or assignee,
directly or indirectly without Landlord's express written consent, which may be
withheld in Landlord's sole discretion.
10.5 ASSUMPTION AND ATTORNMENT
If Tenant shall assign this Lease as permitted herein, the assignee shall
expressly assume all of the obligations of Tenant hereunder in a written
instrument satisfactory to Landlord and furnished to Landlord not later than
fifteen (15) days prior to the effective date of the assignment. If Tenant shall
sublease the Premises as permitted herein, Tenant shall, at Landlord's option,
within fifteen (15) days following any request by Landlord, obtain and furnish
to Landlord the written agreement of such subtenant to the effect that the
subtenant will attorn to Landlord and will pay all subrent directly to Landlord.
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ARTICLE 11
DEFAULT AND REMEDIES
11.1 EVENTS OF DEFAULT
The occurrence or existence of any one or more of the following shall
constitute a "Default" by Tenant under this Lease:
(1) Tenant fails to pay any installment or other payment of Rent
including Rent Adjustment Deposits or Rent Adjustments within five (5) days
after the date when due;
(2) Tenant fails to observe or perform any of the other covenants,
conditions or provisions of this Lease or the Workletter and fails to cure such
default within fifteen (15) days after written notice thereof to Tenant, unless
the default involves a hazardous condition, which shall be cured forthwith or
unless the failure to perform is a Default for which this Lease specifies there
is no cure or grace period;
(3) the interest of Tenant in this Lease is levied upon under
execution or other legal process;
(4) a petition is filed by or against Tenant to declare Tenant
bankrupt or seeking a plan of reorganization or arrangement under any Chapter of
the Bankruptcy Act, or any amendment, replacement or substitution therefor, or
to delay payment of, reduce or modify Tenant's debts, which in the case of an
involuntary action is not discharged within thirty (30) days;
(5) Tenant is declared insolvent by Law or any assignment of
Tenant's property is made for the benefit of creditors;
(6) a receiver is appointed for Tenant or Tenant's property, which
appointment is not discharged within thirty (30) days;
(7) any action taken by or against Tenant to reorganize or modify
Tenant's capital structure in a materially adverse way which in the case of an
involuntary action is not discharged within thirty (30) days;
(8) upon the dissolution of Tenant; or
(9) upon the third occurrence within any Lease Year that Tenant
fails to pay Rent when due or has breached a particular covenant of this Lease
(whether or not such failure or breach is thereafter cured within any stated
cure or grace period or statutory period).
11.2 LANDLORD'S REMEDIES
(a) A Default shall constitute a breach of the Lease for which Landlord
shall have the rights and remedies set forth in this Section 11.2 and all other
rights and remedies set forth in this Lease or now or hereafter allowed by Law,
whether legal or equitable, and all rights and remedies of Landlord shall be
cumulative and none shall exclude any other right or remedy.
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(b) With respect to a Default, at any time Landlord may terminate Tenant's
right to possession by written notice to Tenant stating such election. Any
written notice required pursuant to Section 11.1 shall constitute notice of
unlawful detainer pursuant to California Code of Civil Procedure Section 1161
if, at Landlord's sole discretion, it states Landlord's election that Tenant's
right to possession is terminated after expiration of any period required by Law
or any longer period required by Section 11.1. Upon the expiration of the period
stated in Landlord's written notice of termination (and unless such notice
provides an option to cure within such period and Tenant cures the Default
within such period), Tenant's right to possession shall terminate and this Lease
shall terminate, and Tenant shall remain liable as hereinafter provided. Upon
such termination in writing of Tenant's right to possession, Landlord shall have
the right, subject to applicable Law, to re-enter the Premises and dispossess
Tenant and the legal representatives of Tenant and all other occupants of the
Premises by unlawful detainer or other summary proceedings, or otherwise as
permitted by Law, regain possession of the Premises and remove their property
(including their trade fixtures, personal property and those Tenant Additions
which Tenant is required or permitted to remove under Article Twelve), but
Landlord shall not be obligated to effect such removal, and such property may,
at Landlord's option, be stored elsewhere, sold or otherwise dealt with as
permitted by Law, at the risk of, expense of and for the account of Tenant, and
the proceeds of any sale shall be applied pursuant to Law. Landlord shall in no
event be responsible for the value, preservation or safekeeping of any such
property. Tenant hereby waives all claims for damages that may be caused by
Landlord's removing or storing Tenant's personal property pursuant to this
Section or Section 12.1, and Tenant hereby indemnifies, and agrees to defend,
protect and hold harmless, the Indemnitees from any and all loss, claims,
demands, actions, expenses, liability and cost (including attorneys' fees and
expenses) arising out of or in any way related to such removal or storage. Upon
such written termination of Tenant's right to possession and this Lease,
Landlord shall have the right to recover damages for Tenant's Default as
provided herein or by Law, including the following damages provided by
California Civil Code Section 1951.2:
(1) the worth at the time of award of the unpaid Rent which had been
earned at the time of termination;
(2) 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 Rent loss that Tenant proves could reasonably have
been avoided;
(3) the worth at the time of award of the amount by which the unpaid
Rent for the balance of the term of this Lease after the time of award exceeds
the amount of such Rent loss that Tenant proves could be reasonably avoided; and
(4) any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its obligations
under this Lease or which in the ordinary course of things would be likely to
result therefrom, including, without limitation, Landlord's unamortized costs of
tenant improvements, leasing commissions and legal fees incurred in connection
with entering into this Lease. The word "rent" as used in this Section 11.2
shall have the same meaning as the defined term Rent in this Lease. The "worth
at the time of award" of the amount referred to in clauses (1) and (2) above is
computed by allowing interest at the Default Rate. The worth at the time of
award of the amount referred to in clause (3) above is computed by discounting
such amount at the discount rate of the Federal Reserve Bank of San Francisco at
the time of award plus one percent (1%). For the purpose of determining unpaid
Rent under clause (3) above, the monthly Rent reserved in this Lease shall be
deemed to be the sum of the Monthly Base Rent, monthly storage space rent, if
any, and the amounts last payable by Tenant as Rent Adjustments for the calendar
year in which Landlord terminated this Lease as provided hereinabove.
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(c) Even if Tenant is in Default and/or has abandoned the Premises, this
Lease shall continue in effect for so long as Landlord does not terminate
Tenant's right to possession by written notice as provided in Section 11.2(b)
above, and Landlord may enforce all its rights and remedies under this Lease,
including the right to recover Rent as it becomes due under this Lease. In such
event, Landlord shall have all of the rights and remedies of a landlord under
California Civil Code Section 1951.4 (lessor may continue Lease in effect after
Tenant's Default and abandonment and recover Rent as it becomes due, if Tenant
has the right to sublet or assign, subject only to reasonable limitations), or
any successor statute. During such time as Tenant is in Default, if Landlord has
not terminated this Lease by written notice and if Tenant requests Landlord's
consent to an assignment of this Lease or a sublease of the Premises, subject to
Landlord's option to recapture pursuant to Section 10,2, Landlord shall not
unreasonably withhold its consent to such assignment or sublease. Tenant
acknowledges and agrees that the provisions of Article Ten shall be deemed to
constitute reasonable limitations of Tenant's right to assign or sublet. Tenant
acknowledges and agrees that in the absence of written notice pursuant to
Section 11.2(b) above terminating Tenant's right to possession, no other act of
Landlord shall constitute a termination of Tenant's right to possession or an
acceptance of Tenant's surrender of the Premises, including acts of maintenance
or preservation or efforts to relet the Premises or the appointment of a
receiver upon initiative of Landlord to protect Landlord's interest under this
Lease or the withholding of consent to a subletting or assignment, or
terminating a subletting or assignment, if in accordance with other provisions
of this Lease.
(d) In the event that Landlord seeks an injunction with respect to a
breach or threatened breach by Tenant of any of the covenants, conditions or
provisions of this Lease, Tenant agrees to pay the premium for any bond required
in connection with such injunction.
(e) Tenant hereby waives any and all rights to relief from forfeiture,
redemption or reinstatement granted by Law (including California Civil Code of
Procedure Sections 1174 and 1179) in the event of Tenant being evicted or
dispossessed for any cause or in the event of Landlord obtaining possession of
the Premises by reason of Tenant's Default or otherwise;
(f) Notwithstanding any other provision of this Lease, a notice to Tenant
given under this Article and Article Twenty-four of this Lease or given pursuant
to California Code of Civil Procedure Section 1161, and any notice served by
mail shall be deemed served, and the requisite waiting period deemed to begin
under said Code of Civil Procedure Section upon mailing, without any additional
waiting requirement under Code of Civil Procedure Section 1011 et seq. or by
other Law. For purposes of Code of Civil Procedure Section 1162, Tenant's "place
of residence", "usual place of business", "the property" and "the place where
the property is situated" shall mean and be the Premises, whether or not Tenant
has vacated same at the time of service.
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(g) The voluntary or other surrender or termination of this Lease, or a
mutual termination or cancellation thereof, shall not work a merger and shall
terminate all or any existing assignments, subleases, subtenancies or
occupancies permitted by Tenant, except if and as otherwise specified in writing
by Landlord.
(h) No delay or omission in the exercise o any right or remedy of Landlord
upon any default by Tenant, and no exercise by Landlord of its rights pursuant
to Section 25.15 to perform any duty which Tenant fails timely to perform, shall
impair any right or remedy or be construed as a waiver. No provision of this
Lease shall be deemed waived by Landlord unless such waiver is in writing signed
by Landlord. The waiver by Landlord of any breach of any provision of this Lease
shall not be deemed a waiver of any subsequent breach of the same or any other
provision of this Lease.
11.3 ATTORNEY'S FEES
In the event any party brings any suit or other proceeding with respect to
the subject matter or enforcement of this Lease, the prevailing party (as
determined by the court, agency or other authority before which such suit or
proceeding is commenced) shall, in addition to such other relief as may be
awarded, be entitled to recover attorneys' fees, expenses and costs of
investigation as actually incurred, including court costs, expert witness fees,
costs and expenses of investigation, and all attorneys' fees, costs and expenses
in any such suit or proceeding (including in any action or participation in or
in connection with any case or proceeding under the Bankruptcy Xxxx, 00 Xxxxxx
Xxxxxx Code Sections 101 et seq., or any successor statutes, in establishing or
enforcing the right to indemnification, in appellate proceedings, or in
connection with the enforcement or collection of any judgment obtained in any
such suit or proceeding).
11.4 BANKRUPTCY
The following provisions shall apply in the event of the bankruptcy or
insolvency of Tenant:
(a) In connection with any proceeding under Chapter 7 of the Bankruptcy
Code where the trustee of Tenant elects to assume this Lease for the purposes of
assigning it, such election or assignment, may only be made upon compliance with
the provisions of (b) and (c) below, which conditions Landlord and Tenant
acknowledge to be commercially reasonable. In the event the trustee elects to
reject this Lease then Landlord shall immediately be entitled to possession of
the Premises without further obligation to Tenant or the trustee.
(b) Any election to assume this Lease under Chapter 11 or 13 of the
Bankruptcy Code by Tenant as debtor-in-possession or by Tenant's trustee (the
"Electing Party") must provide for:
The Electing Party to cure or provide to Landlord adequate assurance that
it will cure all monetary defaults under this Lease within fifteen (15) days
from the date of assumption and it will cure all nonmonetary defaults under this
Lease within thirty (30) days from the date of assumption. Landlord and Tenant
acknowledge such condition to be commercially reasonable.
(c) if the Electing Party has assumed this Lease or elects to assign
Tenant's interest under this Lease to any other person, such interest may be
assigned only if the intended assignee has provided adequate assurance of future
performance (as herein defined), of all of the obligations imposed on Tenant
under this Lease.
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For the purposes hereof, "adequate assurance of future performance" means
that Landlord has ascertained that each of the following conditions has been
satisfied:
(1) The assignee has submitted a current financial statement,
certified by its chief financial officer, which shows a net worth and working
capital in amounts sufficient to assure the future performance by the assignee
of Tenant's obligations under this Lease; and
(2) Landlord has obtained consents or waivers from any third parties
that may be required under a lease, mortgage, financing arrangement, or other
agreement by which Landlord is bound, to enable Landlord to permit such
assignment.
(d) Landlord's acceptance of rent or any other payment from any trustee,
receiver, assignee, person, or other entity will not be deemed to have waived,
or waive, the requirement of Landlord's consent, Landlord's right to terminate
this Lease for any transfer of Tenant's interest under this Lease without such
consent, or Landlord's claim for any amount of Rent due from Tenant.
11.5 LANDLORD'S DEFAULT
Landlord shall be in default hereunder in the event Landlord has not begun
and pursued with reasonable diligence the cure of any failure of Landlord to
meet its obligations hereunder within thirty (30) days after the receipt by
Landlord of written notice from Tenant of the alleged failure to perform. In no
event shall Tenant have the right to terminate or rescind this Lease as a result
of Landlord's default as to any covenant or agreement contained in this Lease.
Tenant hereby waives such remedies of termination and rescission and hereby
agrees that Tenant's remedies for default hereunder and for breach of any
promise or inducement shall be limited to a suit for damages and/or injunction.
In addition, Tenant hereby covenants that, prior to the exercise of any such
remedies, it will give the Mortgagee notice and a reasonable time to cure any
default by Landlord.
ARTICLE 12
SURRENDER OF PREMISES
12.1 IN GENERAL
Upon the Termination Date, Tenant shall surrender and vacate the Premises
immediately and deliver possession thereof to Landlord in a clean, good and
tenantable condition, ordinary wear and tear, and damage caused by Landlord
excepted. Tenant shall deliver to Landlord all keys to the Premises. All
improvements in and to the Premises, including any Alterations (collectively,
"Leasehold Improvements") shall remain upon the Premises at the end of the Term
without compensation to Tenant. Landlord, however, by written notice to Tenant
at least 30 days prior to the Termination Date, may require Tenant, at its
expense, to remove (a) any Cable installed by or for the benefit of Tenant, and
(b) any Landlord Work or Alterations that, in Landlord's reasonable judgment,
are of a nature that would require removal and repair costs that are materially
in excess of the removal and repair costs associated with standard office
improvements (collectively referred to as "Required Removable?'). Required
Removables shall include, without limitation, internal stairways, raised floors,
personal baths and showers, vaults, rolling file systems and structural
alterations and modifications. The designated Required Removables shall be
removed by Tenant before the Termination Date. Tenant shall repair damage caused
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by the installation or removal of Required Removables. If Tenant fails to
perform its obligations in a timely manner, Landlord may perform such work at
Tenant's expense. Tenant, at the time it requests approval for a proposed
Alteration, may request in writing that Landlord advise Tenant whether the
Alteration or any portion of the Alteration is a Required Removable. Within 10
days after receipt of Tenant's request, Landlord shall advise Tenant in writing
as to which portions of the Alteration are Required Removables. If any of the
Tenant Additions which were installed by Tenant involved the lowering of
ceilings, raising of floors or the installation of specialized wall or floor
coverings or lights, then Tenant shall also be obligated to return such surfaces
to their condition prior to the commencement of this Lease. Tenant shall also be
required to close any staircases or other openings between floors. In the event
possession of the Premises is not delivered to Landlord when required hereunder,
or if Tenant shall fail to remove those items described above, Landlord may (but
shall not be obligated to), at Tenant's expense, remove any of such property and
store, sell or otherwise deal with such property, and undertake, at Tenant's
expense, such restoration work as Landlord deems necessary or advisable.
12.2 LANDLORD'S RIGHTS
All property which may be removed from the Premises by Landlord shall be
conclusively presumed to have been abandoned by Tenant and Landlord may deal
with such property as provided in Section 11.2(b), including the waiver and
indemnity obligations provided in that Section. Tenant shall also reimburse
Landlord for all costs and expenses incurred by Landlord in removing any of
Tenant Additions and in restoring the Premises to the condition required by this
Lease at the Termination Date.
ARTICLE 13
HOLDING OVER
In the event that Tenant holds over in possession of the Premises after
the Termination Date, Tenant shall pay Landlord 150% of the monthly Rent payable
for the month immediately preceding the holding over (including increases for
Rent Adjustments which Landlord may reasonably estimate. Tenant shall also pay
all damages sustained by Landlord by reason of such retention of possession. The
provisions of this Article shall not constitute a waiver by Landlord of any
re-entry rights of Landlord and Tenant's continued occupancy of the Premises
shall be as a tenancy in sufferance.
ARTICLE 14
DAMAGE BY FIRE OR OTHER CASUALTY
14.1 SUBSTANTIAL UNTENANTABILITY
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(a) If any fire or other casualty (whether insured or uninsured) renders
all or a substantial portion of the Premises or the Building untenantable,
Landlord shall, with reasonable promptness after the occurrence of such damage,
estimate the length of time that will be required to substantially complete the
repair and restoration and shall by notice advise Tenant of such estimate
("Landlord's Notice"). If Landlord estimates that the amount of time required to
substantially complete such repair and restoration will exceed one hundred
eighty (180) days from the date such damage occurred, then Landlord, or Tenant
if all or a substantial portion of the Premises is rendered untenantable, shall
have the right to terminate this Lease as of the date of such damage upon giving
written notice to the other at any time within twenty (20) days after delivery
of Landlord's Notice, provided that if Landlord so chooses, Landlord's Notice
may also constitute such notice of termination.
(b) Unless this Lease is terminated as provided in the preceding
subparagraph, Landlord shall proceed with reasonable promptness to repair and
restore the Premises to its condition as existed prior to such casualty, subject
to reasonable delays for insurance adjustments and Force Majeure delays, and
also subject to zoning Laws and building codes then in effect. Landlord shall
have no liability to Tenant, and Tenant shall not be entitled to terminate this
Lease if such repairs and restoration are not in fact completed within the time
period estimated by Landlord so long as Landlord shall proceed with reasonable
diligence to complete such repairs and restoration.
(c) Tenant acknowledges that Landlord shall be entitled to the full
proceeds of any insurance coverage, whether carried by Landlord or Tenant, for
damages to the Premises, except for those proceeds of Tenant's insurance of its
own personal property and equipment which would be removable by Tenant at the
Termination Date. All such insurance proceeds shall be payable to Landlord
whether or not the Premises are to be repaired and restored, provided, however,
if this Lease is not terminated and the parties proceed to repair and restore
Tenant Additions at Tenant's cost, to the extent Landlord received proceeds of
Tenant's insurance covering Tenant Additions, such proceeds shall be applied to
reimburse Tenant for its cost of repairing and restoring Tenant Additions.
(d) Notwithstanding anything to the contrary herein set forth: (i)
Landlord shall have no duty pursuant to this Section to repair or restore any
portion of any Tenant Additions or to expend for any repair or restoration of
the Premises or Building amounts in excess of insurance proceeds paid to
Landlord and available for repair or restoration; and (ii) Tenant shall not have
the right to terminate this Lease pursuant to this Section if any damage or
destruction was caused by the act or neglect of Tenant, its agent or employees.
Whether or not the Lease is terminated pursuant to this Article Fourteen, in no
event shall Tenant be entitled to any compensation or damages for loss of the
use of the whole or any part of the Premises or for any inconvenience or
annoyance occasioned by any such damage, destruction, rebuilding or restoration
of the Premises or the Building or access thereto.
(e) Any repair or restoration of the Premises performed by Tenant shall be
in accordance with the provisions of Article Nine hereof.
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14.2 INSUBSTANTIAL UNTENANTABILITY
If the Premises or the Building is damaged by a casualty but neither is
rendered substantially untenantable and Landlord estimates that the time to
substantially complete the repair or restoration will not exceed one hundred
eighty (180) days from the date such damage occurred, then Landlord shall
proceed to repair and restore the Building or the Premises other than Tenant
Additions, with reasonable promptness, unless such damage is to the Premises and
occurs during the last six (6) months of the Term, in which event either Tenant
or Landlord shall have the right to terminate this Lease as of the date of such
casualty by giving written notice thereof to the other within twenty (20) days
after the date of such casualty. Notwithstanding the aforesaid, Landlord's
obligation to repair shall be Limited in accordance with the provisions of
Section 14.1 above.
14.3 RENT ABATEMENT
Except for the negligence or willful act of Tenant or its agents,
employees, contractors or invitees, if all or any part of the Premises are
rendered untenantable by fire or other casualty and this Lease is not
terminated, Monthly Base Rent and Rent Adjustments shall xxxxx for that part of
the Premises which is untenantable on a per diem basis from the date of the
casualty until Landlord has Substantially Completed the repair and restoration
work in the Premises which it is required to perform, provided, that as a result
of such casualty, Tenant does not occupy the portion of the Premises which is
untenantable during such period.
14.4 WAIVER OF STATUTORY REMEDIES
The provisions of this Lease, including this Article Fourteen, constitute
an express agreement between Landlord and Tenant with respect to any and all
damage to, or destruction of, the Premises or the Property or any part of
either, and any Law, including Sections 1932(2), 1933(4), 1941 and 1942 of the
California Civil Code, with respect to any rights or obligations concerning
damage or destruction shall have no application to this Lease or to any damage
to or destruction of all or any part of the Premises or the Property or any part
of either, and are hereby waived.
ARTICLE 15
EMINENT DOMAIN
15.1 TAKING OF WHOLE OR SUBSTANTIAL PART
In the event the whole or any substantial part of the Building or of the
Premises is taken or condemned by any competent authority for any public use or
purpose (including a deed given in lieu of condemnation) and is thereby rendered
untenantable, this Lease shall terminate as of the date title vests in such
authority, and Monthly Base Rent and Rent Adjustments shall be apportioned as of
the Termination Date. Notwithstanding anything to the contrary herein set forth,
in the event the taking is temporary (for less than the remaining Term of the
Lease), Landlord may elect either (i) to terminate this Lease or (ii) permit
Tenant to receive the entire award attributable to the Premises in which case
Tenant shall continue to pay Rent and this Lease shall not terminate.
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15.2 TAKING OF PART
In the event a part of the Building or the Premises is taken or condemned
by any competent authority (or a deed is delivered in lieu of condemnation) and
this Lease is not terminated, the Lease shall be amended to reduce or increase,
as the case may be, the Monthly Base Rent and Tenant's Share to reflect the
Rentable Area of the Premises or Building, as the case may be, remaining after
any such taking or condemnation. Landlord, upon receipt and to the extent of the
award in condemnation (or proceeds of sale) shall make necessary repairs and
restorations to the Premises (exclusive of Tenant Additions) and to the Building
to the extent necessary to constitute the portion of the Building not so taken
or condemned as a complete architectural and economically efficient unit.
Notwithstanding the foregoing, if as a result of any taking, or a governmental
order that the grade of any street or alley adjacent to the Building is to be
changed and such taking or change of grade makes it necessary or desirable to
substantially remodel or restore the Building or prevents the economical
operation of the Building, Landlord shall have the right to terminate this Lease
upon ninety (90) days prior written notice to Tenant.
15.3 COMPENSATION
Landlord shall be entitled to receive the entire award (or sale proceeds)
from any such taking, condemnation or sale without any payment to Tenant, and
Tenant hereby assigns to Landlord Tenant's interest, if any, in such award;
provided, however, Tenant shall have the right separately to pursue against the
condemning authority a separate award in respect of the loss, if any, to Tenant
Additions paid for by Tenant without any credit or allowance from Landlord so
long as there is no diminution of Landlord's award as a result.
ARTICLE 16
INSURANCE
16.1 TENANT'S INSURANCE
Tenant, at Tenant's expense, agrees to maintain in force, with a company
or companies acceptable to Landlord, during the Term: (a) Commercial General
Liability Insurance on a primary basis and without any right of contribution
from any insurance carried by Landlord covering the Premises on an occurrence
basis against all claims for personal injury, bodily injury, death and property
damage, including contractual liability covering the indemnification provisions
in this Lease, and such insurance shall be for such limits that are reasonably
required by Landlord from time to time but not less than a combined single limit
of Three Million and No/100 Dollars ($3,000,000.00); (b) Workers' Compensation
and Employers' Liability Insurance to the extent required by and in accordance
with the Laws of the State of California; (c) "All Risks" property insurance in
an amount adequate to cover the full replacement cost of all Tenant Additions,
equipment, installations, fixtures and contents of the Premises in the event of
loss; (d) in the event a motor vehicle is to be used by Tenant in connection
with its business operation from the Premises, Comprehensive Automobile
Liability Insurance coverage with limits of not less than One Million and No/100
Dollars ($1,000,000.00) combined single limit coverage against bodily injury
liability and property damage liability arising out of the use by or on behalf
of Tenant, its agents and employees in connection with this Lease, of any owned,
nonowned or hired motor vehicles; and (e) such other insurance or coverages as
Landlord reasonably requires.
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16.2 FORM OF POLICIES
Each policy referred to in 16.1 shall satisfy the following requirements.
Each policy shall (i) name Landlord and the Indemnitees as additional insureds
(except Workers' Compensation and Employers' Liability Insurance), (ii) be
issued by one or more responsible insurance companies licensed to do business in
the State of California reasonably satisfactory to Landlord, (iii) where
applicable, provide for deductible amounts satisfactory to Landlord and not
permit coinsurance, (iv) shall provide that such insurance may not be canceled
or amended without thirty (30) days' prior written notice to the Landlord, and
(v) each policy of "All-Risks" property insurance shall provide that the policy
shall not be invalidated should the insured waive in writing prior to a loss,
any or all rights of recovery against any other party for losses covered by such
policies. Tenant shall deliver to Landlord, certificates of insurance and at
Landlord's request, copies of all policies and renewals thereof to be maintained
by Tenant hereunder, not less than ten (10) days prior to the Commencement Date
and not less than ten (10) days prior to the expiration date of each policy.
16.3 LANDLORD'S INSURANCE
Landlord agrees to purchase and keep in full force and effect during the
Term hereof, including any extensions or renewals thereof, insurance under
policies issued by insurers of recognized responsibility, qualified to do
business in the State of California on the Building in amounts not less than the
greater of eighty (80%) percent of the then full replacement cost (without
depreciation) of the Building (above foundations and excluding Tenant Additions)
or an amount sufficient to prevent Landlord from becoming a co-insurer under the
terms of the applicable policies, against fire and such other risks as may be
included in standard forms of all risk coverage insurance reasonably available
from time to time. Landlord agrees to maintain in force during the Term,
Commercial General Liability Insurance covering the Building on an occurrence
basis against all claims for personal injury, bodily injury, death, and property
damage. Such insurance shall be for a combined single limit of not less than
Three Million and No/I 00 Dollars ($3,000,000.00). Neither Landlord's obligation
to carry such insurance nor the carrying of such insurance shall be deemed to be
an indemnity by Landlord with respect to any claim, liability, loss, cost or
expense due, in whole or in part, to Tenant's negligent acts or omissions or
willful misconduct. Without obligation to do so, Landlord may, in its sole
discretion from time to time, carry insurance in amounts greater and/or for
coverage additional to the coverage and amounts set forth above.
16.4 WAIVER OF SUBROGATION
(a) Landlord agrees that, if obtainable at no, or minimal, additional
cost, and so long as the same is permitted under the laws of the State of
California, it will include in its "All Risks" policies appropriate clauses
pursuant to which the insurance companies (i) waive all right of subrogation
against Tenant with respect to losses payable under such policies and/or (ii)
agree that such policies shall not be invalidated should the insured waive in
writing prior to a loss any or all right of recovery against any party for
losses covered by such policies.
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(b) Tenant agrees to include, if obtainable at no, or minimal, additional
cost, and so long as the same is permitted under the laws of the State of
California, in its "All Risks" insurance policy or policies on Tenant Additions,
whether or not removable, and on Tenant's furniture, furnishings, fixtures and
other property removable by Tenant under the provisions of this Lease
appropriate clauses pursuant to which the insurance company or companies (i)
waive the right of subrogation against Landlord and/or any tenant of space in
the Building with respect to losses payable under such policy or policies and/or
(ii) agree that such policy or policies shall not be invalidated should the
insured waive in writing prior to a loss any or all right of recovery against
any party for losses covered by such policy or policies. If Tenant is unable to
obtain in such policy or policies either of the clauses described in the
preceding sentence, Tenant shall, if legally possible and without necessitating
a change in insurance carriers, have Landlord named in such policy or policies
as an additional insured. If Landlord shall be named as an additional insured in
accordance with the foregoing, Landlord agrees to endorse promptly to the order
of Tenant, without recourse, any check, draft, or order for the payment of money
representing the proceeds of any such policy or representing any other payment
growing out of or connected with said policies, and Landlord does hereby
irrevocably waive any and all rights in and to such proceeds and payments.
(c) Provided that Landlord's right of full recovery under its policy or
policies aforesaid is not adversely affected or prejudiced thereby, Landlord
hereby waives any and all right of recovery which it might otherwise have
against Tenant, its servants, agents and employees, for loss or damage occurring
to the Real Property and the fixtures, appurtenances and equipment therein, to
the extent the same is covered by Landlord's insurance, notwithstanding that
such loss or damage may result from the negligence or fault of Tenant, its
servants, agents or employees. Provided that Tenant's right of full recovery
under its aforesaid policy or policies is not adversely affected or prejudiced
thereby, Tenant hereby waives any and all right of recovery which it might
otherwise have against Landlord, its servants, and employees and against every
other tenant of the Real Property who shall have executed a similar waiver as
set forth in this Section 16.4 (c) for loss or damage to Tenant Additions,
whether or not removable, and to Tenant's furniture, furnishings, fixtures and
other property removable by Tenant under the provisions hereof to the extent the
same is coverable by Tenant's insurance required under this Lease,
notwithstanding that such loss or damage may result from the negligence or fault
of Landlord, its servants, agents or employees, or such other tenant and the
servants, agents or employees thereof.
(d) Landlord and Tenant hereby agree to advise the other promptly if the
clauses to be included in their respective insurance policies pursuant to
subparagraphs (a) and (b) above cannot be obtained on the terms hereinbefore
provided and thereafter to furnish the other with a certificate of insurance or
copy of such policies showing the naming of the other as an additional insured,
as aforesaid. Landlord and Tenant hereby also agree to notify the other promptly
of any cancellation or change of the terms of any such policy that would affect
such clauses or naming. All such policies which name both Landlord and Tenant as
additional insureds shall, to the extent obtainable, contain agreements by the
insurers to the effect that no act or omission of any additional insured will
invalidate the policy as to the other additional insureds.
16.5 NOTICE OF CASUALTY
Tenant shall give Landlord notice in case of a fire or accident in the
Premises promptly after Tenant is aware of such event.
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ARTICLE 17
WAIVER OF CLAIMS AND INDEMNITY
17.1 WAIVER OF CLAIMS
To the extent permitted by Law, Tenant releases the Indemnitees from, and
waives all claims for, damage to person or property sustained by the Tenant or
any occupant of the Premises or the Property resulting directly or indirectly
from any existing or future condition, defect, matter or thing in and about the
Premises or the Property or any part of either or any equipment or appurtenance
therein, or resulting from any accident in or about the Premises or the
Property, or resulting directly or indirectly from any act or neglect of any
tenant or occupant of the Property or of any other person, including Landlord's
agents and servants, except to the extent caused by the gross negligence or
willful and wrongful act of any of the Indemnitees. To the extent permitted by
Law, Tenant hereby waives any consequential damages, compensation or claims for
inconvenience or loss of business, rents, or profits as a result of such injury
or damage, whether or not caused by the gross negligence or willful and wrongful
act of any of the Indemnitees. If any such damage, whether to the Premises or
the Property or any part of either, or whether to Landlord or to other tenants
in the Property, results from any act or neglect of Tenant, its employees,
servants, agents, contractors, invitees or customers, Tenant shall be liable
therefor and Landlord may, at Landlord's option, repair such damage and Tenant
shall, upon demand by Landlord, as payment of additional Rent hereunder,
reimburse Landlord within ten (10) days of demand for the total cost of such
repairs, in excess of amounts, if any, paid to Landlord under insurance covering
such damages. Tenant shall not be liable for any such damage caused by its acts
or neglect if Landlord or a tenant has recovered the full amount of the damage
from proceeds of insurance policies and the insurance company has waived its
right of subrogation against Tenant.
17.2 INDEMNITY BY TENANT
To the extent permitted by Law, Tenant hereby indemnifies, and agrees to
protect, defend and hold the Indemnitees harmless, against any and all actions,
claims, demands, liability, costs and expenses, including attorneys' fees and
expenses for the defense thereof, arising from Tenant's occupancy of the
Premises, from the undertaking of any Tenant Additions or repairs to the
Premises, from the conduct of Tenant's business on the Premises, or from any
breach or default on the part of Tenant in the performance of any covenant or
agreement on the part of Tenant to be performed pursuant to the terms of this
Lease, or from any willful act or negligence of Tenant, its agents, contractors,
servants, employees, customers or invitees, in or about the Premises or the
Property or any part of either. In case of any action or proceeding brought
against the indemnitees by reason of any such claim, upon notice from Landlord,
Tenant covenants to defend such action or proceeding by counsel chosen by
Landlord, in Landlord's sole discretion. Landlord reserves the right to settle,
compromise or dispose of any and all actions, claims and demands related to the
foregoing indemnity. The foregoing indemnity shall not operate to relieve
Indemnitees of liability to the extent such liability is caused by the willful
and wrongful act of Indemnitees. Further, the foregoing indemnity is subject to
and shall not diminish any waivers in effect in accordance with Section 16.4 by
Landlord or its insurers to the extent of amounts, if any, paid to Landlord
under its "All-Risks" property insurance.
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ARTICLE 18
RULES AND REGULATIONS
18.1 RULES
Tenant agrees for itself and for its subtenants, employees, agents, and
invitees to comply with the rules and regulations listed on Exhibit C attached
hereto and with all reasonable modifications and additions thereto which
Landlord may make from time to time.
18.2 ENFORCEMENT
Nothing in this Lease shall be construed to impose upon the Landlord any
duty or obligation to enforce the rules and regulations as set forth on Exhibit
C or as hereafter adopted, or the terms, covenants or conditions of any other
lease as against any other tenant, and the Landlord shall not be liable to the
Tenant for violation of the same by any other tenant, its servants, employees,
agents, visitors or licensees. Landlord shall use reasonable efforts to enforce
the rules and regulations of the Project in a uniform and non-discriminatory
manner.
ARTICLE 19
LANDLORD'S RESERVED RIGHTS
Landlord shall have the following rights exercisable without notice to
Tenant and without liability to Tenant for damage or injury to persons, property
or business and without being deemed an eviction or disturbance of Tenant's use
or possession of the Premises or giving rise to any claim for offset or
abatement of Rent: (1) to change the Building's name or street address upon
thirty (30) days' prior written notice to Tenant; (2) to install, affix and
maintain all signs on the exterior and/or interior of the Building; (3) to
designate and/or approve prior to installation, all types of signs, window
shades, blinds, drapes, awnings or other similar items, and all internal
lighting that may be visible from the exterior of the Premises; (4) upon
reasonable notice to Tenant, to display the Premises to prospective purchasers
and lenders at reasonable hours at any time during the Term and to prospective
tenants at reasonable hours during the last twelve (12) months of the Term; (5)
to grant to any party the exclusive right to conduct any business or render any
service in or to the Building, provided such exclusive right shall not operate
to prohibit Tenant from using the Premises for the purpose permitted hereunder;
(6) to change the arrangement and/or location of entrances or passageways, doors
and doorways, corridors, elevators, stairs, washrooms or public portions of the
Building, and to close entrances, doors, corridors, elevators or other
facilities, provided that such action shall not materially and adversely
interfere with Tenant's access to the Premises or the Building; (7) to have
access for Landlord and other tenants of the Building to any mail chutes and
boxes located in or on the Premises as required by any applicable rules of the
United States Post Office; and (8) to close the Building after Standard
Operating Hours, except that Tenant and its employees and invitees shall be
entitled to admission at all times, under such regulations as Landlord
prescribes for security purposes.
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ARTICLE 20
ESTOPPEL CERTIFICATE
20.1 IN GENERAL
Within ten (10) days after request therefor by Landlord, Mortgagee or any
prospective mortgagee or owner, Tenant agrees as directed in such request to
execute an Estoppel Certificate in recordable form, binding upon Tenant,
certifying (i) that this Lease is unmodified and in full force and effect (or if
there have been modifications, a description of such modifications and that this
Lease as modified is in full force and effect); (ii) the dates to which Rent has
been paid; (iii) that Tenant is in the possession of the Premises if that is the
case; (iv) that Landlord is not in default under this Lease, or, if Tenant
believes Landlord is in default, the nature thereof in detail; (v) that Tenant
has no offsets or defenses to the performance of its obligations under this
Lease (or if Tenant believes there are any offsets or defenses, a full and
complete explanation thereof); (vi) that the Premises have been completed in
accordance with the terms and provisions hereof or the Workletter, that Tenant
has accepted the Premises and the condition thereof and of all improvements
thereto and has no claims against Landlord or any other party with respect
thereto; (vii) that if an assignment of rents or leases has been served upon the
Tenant by a Mortgagee, Tenant will acknowledge receipt thereof and agree to be
bound by the provisions thereof; (viii) that Tenant will give to the Mortgagee
copies of all notices required or permitted to be given by Tenant to Landlord;
and (ix) to any other information reasonably requested.
20.2 ENFORCEMENT
In the event that Tenant fails to deliver an Estoppel Certificate, then
such failure shall be a Default for which there shall be no cure or grace
period. In addition to any other remedy available to Landlord, Landlord may
impose a charge equal to $500.00 for each day that Tenant fails to deliver an
Estoppel Certificate and Tenant shall be deemed to have irrevocably appointed
Landlord as Tenant's attorney-in-fact to execute and deliver such Estoppel
Certificate.
ARTICLE 21
RELOCATION OF TENANT
At any time after the date of this Lease, Landlord may substitute for the
Premises, other premises in the Project, EmeryStation North, or Heritage Square
(the "New Premises"), in which event the New Premises shall be deemed to be the
Premises for all purposes under this Lease, provided that (i) the New Premises
shall be substantially similar to the Premises in area and configuration; (ii)
if Tenant is then occupying the Premises, Landlord shall pay the actual and
reasonable expenses of physically moving Tenant, its property and equipment to
the New Premises; (iii) Landlord shall give Tenant not less than sixty (60)
days' prior written notice of such substitution; and (iv) Landlord, at its
expense, shall improve the New Premises with improvements substantially similar
to those in the Premises at the time of such substitution, if the Premises are
then improved.
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ARTICLE 22
REAL ESTATE BROKERS
Tenant represents that, except for the broker(s) listed in Section 1.1,
Tenant has not dealt with any real estate broker, sales person, or finder in
connection with this Lease, and no such person initiated or participated in the
negotiation of this Lease, or showed the Premises to Tenant. Tenant hereby
agrees to indemnify, protect, defend and hold Landlord and the Indemnitees,
harmless from and against any and all liabilities and claims for commissions and
fees arising out of a breach of the foregoing representation. Landlord agrees to
pay any commission to which the brokers listed in Section 1.1 are entitled in
connection with this Lease pursuant to Landlord's written agreement with such
broker.
ARTICLE 23
MORTGAGEE PROTECTION
23.1 SUBORDINATION AND ATTORNMENT
This Lease is and shall be expressly subject and subordinate at all times
to (i) any ground or underlying lease of the Real Property, now or hereafter
existing, and all amendments, extensions, renewals and modifications to any such
lease, and (ii) the lien of any mortgage or trust deed now or hereafter
encumbering fee title to the Real Property and/or the leasehold estate under any
such lease, and all amendments, extensions, renewals, replacements and
modifications of such mortgage or trust deed and/or the obligation secured
thereby, unless such ground lease or ground lessor, or mortgage, trust deed or
Mortgagee, expressly provides or elects that the Lease shall be superior to such
lease or mortgage or trust deed. If any such mortgage or trust deed is
foreclosed (including any sale of the Real Property pursuant to a power of
sale), or if any such lease is terminated, upon request of the Mortgagee or
ground lessor, as the case may be, Tenant shall attorn to the purchaser at the
foreclosure sale or to the ground lessor under such lease, as the case may be,
provided, however, that such purchaser or ground lessor shall not be (i) bound
by any payment of Rent for more than one month in advance except payments in the
nature of security for the performance by Tenant of its obligations under this
Lease; (ii) subject to any offset, defense or damages arising out of a default
of any obligations of any preceding Landlord; or (iii) bound by any amendment or
modification of this Lease made without the written consent of the Mortgagee or
ground lessor; or (iv) liable for any security deposits not actually received in
cash by such purchaser or ground lessor. This subordination shall be
self-operative and no further certificate or instrument of subordination need be
required by any such Mortgagee or ground lessor. In confirmation of such
subordination, however, Tenant shall execute promptly any reasonable certificate
or instrument that Landlord, Mortgagee or ground lessor may request. Tenant
hereby constitutes Landlord as Tenant's attorney-in-fact to execute such
certificate or instrument for and on behalf of Tenant upon Tenant's failure to
do so within fifteen (15) days of a request to do so. Upon request by such
successor in interest, Tenant shall execute and deliver reasonable instruments
confirming the attornment provided for herein.
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23.2 MORTGAGEE PROTECTION
Tenant agrees to give any Mortgagee or ground lessor, by registered or
certified mail, a copy of any notice of default served upon the Landlord by
Tenant, provided that prior to such notice Tenant has received notice (by way of
service on Tenant of a copy of an assignment of rents and leases, or otherwise)
of the address of such Mortgagee or ground lessor. Tenant further agrees that if
Landlord shall have failed to cure such default within the time provided for in
this Lease, then the Mortgagee or ground lessor shall have an additional thirty
(30) days after receipt of notice thereof within which to cure such default or
if such default cannot be cured within that time, then such additional notice
time as may be necessary, if, within such thirty (30) days, any Mortgagee or
ground lessor has commenced and is diligently pursuing the remedies necessary to
cure such default (including commencement of foreclosure proceedings or other
proceedings to acquire possession of the Real Property, if necessary to effect
such cure). Such period of time shall be extended by any period within which
such Mortgagee or ground lessor is prevented from commencing or pursuing such
foreclosure proceedings or other proceedings to acquire possession of the Real
Property by reason of Landlord's bankruptcy. Until the time allowed as aforesaid
for Mortgagee or ground lessor to cure such defaults has expired without cure,
Tenant shall have no right to, and shall not, terminate this Lease on account of
default. This Lease may not be modified or amended so as to reduce the Rent or
shorten the Term, or so as to adversely affect in any other respect to any
material extent the rights of the Landlord, nor shall this Lease be canceled or
surrendered, without the prior written consent, in each instance, of the ground
lessor or the Mortgagee.
ARTICLE 24
NOTICES
(a) All notices, demands or requests provided for or permitted to be given
pursuant to this Lease must be in writing and shall be personally delivered,
sent by Federal Express or other reputable overnight courier service, or mailed
by first class, registered or certified United States mail, return receipt
requested, postage prepaid.
(b) All notices, demands or requests to be sent pursuant to this Lease
shall be deemed to have been properly given or served by delivering or sending
the same in accordance with this Section, addressed to the parties hereto at
their respective addresses listed in Sections 1.1.
(c) Notices, demands or requests sent by mall or overnight courier service
as described above shall be effective upon deposit in the mail or with such
courier service. However, the time period in which a response to any such
notice, demand or request must be given shall commence to run from (i) in the
case of delivery by mail, the date of receipt on the return receipt of the
notice, demand or request by the addressee thereof, or (ii) in the case of
delivery by Federal Express or other overnight courier service, the date of
acceptance of delivery by an employee, officer, director or partner of Landlord
or Tenant. Rejection or other refusal to accept or the inability to deliver
because of changed address of which no notice was given, as indicated by advice
from Federal Express or other overnight courier service or by mail return
receipt, shall be deemed to be receipt of notice, demand or request sent.
Notices may also be served by personal service upon any officer, director or
partner of Landlord or Tenant, and shall be effective upon such service.
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(d) By giving to the other party at least thirty (30) days written notice
thereof, either party shall have the right from time to time during the term of
this Lease to change their respective addresses for notices, statements, demands
and requests, provided such new address shall be within the United States of
America.
ARTICLE 25
MISCELLANEOUS
25.1 LATE CHARGES
(a) All payments required hereunder (other than the Monthly Base Rent,
Rent Adjustments, and Rent Adjustment Deposits, which shall be due as
hereinbefore provided) to Landlord shall be paid within ten (10) days after
Landlord's demand therefor. All such amounts (including Monthly Base Rent, Rent
Adjustments, and Rent Adjustment Deposits) not paid when due shall bear interest
from the date due until the date paid at the Default Rate in effect on the date
such payment was due.
(b) In the event Tenant is more than five (5) days late in paying any
installment of Rent due under this Lease, Tenant shall pay Landlord a late
charge equal to five percent (5%) of the delinquent installment of Rent. The
parties agree that (i) such delinquency will cause Landlord to incur costs and
expenses not contemplated herein, the exact amount of which will be difficult to
calculate, including the cost and expense that will be incurred by Landlord in
processing each delinquent payment of rent by Tenant, (b) the amount of such
late charge represents a reasonable estimate of such costs and expenses and that
such late charge shall be paid to Landlord for each delinquent payment in
addition to all Rent otherwise due hereunder. The parties further agree that the
payment of late charges and the payment of interest provided for in subparagraph
(a) above are distinct and separate from one another in that the payment of
interest is to compensate Landlord for its inability to use the money improperly
withheld by Tenant, while the payment of late charges is to compensate Landlord
for its additional administrative expenses in handling and processing delinquent
payments.
(c) Payment of interest at the Default Rate and/or of late charges shall
not excuse or cure any default by Tenant under this Lease, nor shall the
foregoing provisions of this Article or any such payments prevent Landlord from
exercising any right or remedy available to Landlord upon Tenant's failure to
pay Rent when due, including the right to terminate this Lease.
25.2 NO JURY TRIAL; VENUE; JURISDICTION
Each party hereto (which includes any assignee, successor, heir or
personal representative of a party) shall not seek a jury trial, hereby waives
trial by jury, and hereby further waives any objection to venue in the County in
which the Project is located, and agrees and consents to personal jurisdiction
of the courts of the State of California, in any action or proceeding or
counterclaim brought by any party hereto against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Premises,
or any claim of injury or damage, or the enforcement of any remedy under any
statute, emergency or otherwise, whether any of the foregoing is based on this
Lease or on tort law. No party will seek to consolidate any such action in which
a jury has been waived with any other action in which a jury trial cannot or has
not been waived. It is the intention of the parties that these provisions shall
be subject to no exceptions. By execution of this Lease the parties agree that
this provision may be filed by any party hereto with the clerk or judge before
whom any action is instituted, which filing shall constitute the written consent
to a waiver of jury trial pursuant to and in accordance with Section 631 of the
California Code of Civil Procedure. No party has in any way agreed with or
represented to any other party that the provisions of this Section will not be
fully enforced in all instances. The provisions of this Section shall survive
the expiration or earlier termination of this Lease.
40
25.3 DEFAULT UNDER OTHER LEASE
Tenant agrees for Tenant and Tenant's heirs, executors, administrators,
successors and assigns and all persons claiming under or through Tenant, and
this Lease is made and accepted upon and subject to the following conditions:
that there shall be no discrimination against or segregation of any person or
group of persons on account of race, color, creed, religion, sex, marital
status, national origin or ancestry (whether in the leasing, subleasing,
transferring, use, occupancy, tenure or enjoyment of the Premises or otherwise)
nor shall Tenant or any person claiming under or through Tenant establish or
permit any such practice or practices of discrimination or segregation with
reference to the use or occupancy of the Premises by Tenant or any person
claiming through or under Tenant.
25.4 OPTION
This Lease shall not become effective as a lease or otherwise until
executed and delivered by both Landlord and Tenant. The submission of the Lease
to Tenant does not constitute a reservation of or option for the Premises, but
when executed by Tenant and delivered to Landlord, the Lease shall constitute an
irrevocable offer by Tenant in effect for fifteen (15) days to lease the
Premises on the terms and conditions herein contained.
25.5 TENANT AUTHORITY
Tenant represents and warrants to Landlord that it has full authority and
power to enter into and perform its obligations under this Lease, that the
person executing this Lease is fully empowered to do so, and that no consent or
authorization is necessary from any third party. Landlord may request that
Tenant provide Landlord evidence of Tenant's authority.
25.6 ENTIRE AGREEMENT
This Lease, the Exhibits attached hereto and the Workletter contain the
entire agreement between Landlord and Tenant concerning the Premises and there
are no other agreements, either oral or written, and no other representations or
statements, either oral or written, on which Tenant has relied. This Lease shall
not be modified except by a writing executed by Landlord and Tenant.
25.7 MODIFICATION OF LEASE FOR BENEFIT OF MORTGAGEE
If Mortgagee of Landlord requires a modification of this Lease which shall
not result in any increased cost or expense to Tenant or in any other
substantial and adverse change in the rights and obligations of Tenant
hereunder, then Tenant agrees that the Lease may be so modified.
41
25.8 EXCULPATION
Tenant agrees, on its behalf and on behalf of its successors and assigns,
that any liability or obligation under this Lease shall only be enforced against
Landlord's equity interest in the Property up to a maximum of Five Million
Dollars ($5,000,000.00) and in no event against any other assets of the
Landlord, or Landlord's officers or directors or partners, and that any
liability of Landlord with respect to this Lease shall be so limited and Tenant
shall not be entitled to any judgment in excess of such amount.
25.9 ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of a lesser amount than any
installment or payment of Rent due shall be deemed to be other than on account
of the amount due, and no endorsement or statement on any check or any letter
accompanying any check or payment of Rent shall be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such installment or payment of Rent
or pursue any other remedies available to Landlord. No receipt of money by
Landlord from Tenant after the termination of this Lease or Tenant's right of
possession of the Premises shall reinstate, continue or extend the Term. Receipt
or acceptance of payment from anyone other than Tenant, including an assignee of
Tenant, is not a waiver of any breach of Article Ten, and Landlord may accept
such payment on account of the amount due without prejudice to Landlord's right
to pursue any remedies available to Landlord.
25.10 LANDLORD'S OBLIGATIONS ON SALE OF BUILDING
In the event of any sale or other transfer of the Building, Landlord shall
be entirely freed and relieved of all agreements and obligations of Landlord
hereunder accruing or to be performed after the date of such sale or transfer,
and any remaining liability of Landlord with respect to this Lease shall be
limited to the dollar amount specified in Section 25.08 and Tenant shall not be
entitled to any judgment in excess of such amount. Landlord shall have the right
to assign this Lease to an entity comprised of the principals of Landlord or
affiliates of such entities. Upon such assignment and assumption of the
obligations of Landlord hereunder, Landlord shall be entirely freed and relieved
of all obligations hereunder.
25.11 BINDING EFFECT
Subject to the provisions of Article Ten, this Lease shall be binding upon
and inure to the benefit of Landlord and Tenant and their respective heirs,
legal representatives, successors and permitted assigns.
25.12 CAPTIONS
The Article and Section captions in this Lease are inserted only as a
matter of convenience and in no way define, limit, construe, or describe the
scope or intent of such Articles and Sections.
42
25.13 TIME; APPLICABLE LAW; CONSTRUCTION
Time is of the essence of this Lease and each and all of its provisions.
This Lease shall be construed in accordance with the Laws of the State of
California. If more than one person signs this Lease as Tenant, the obligations
hereunder imposed shall be joint and several. If any term, covenant or condition
of this Lease or the application thereof to any person or circumstance shall, to
any extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term, covenant or condition to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be
affected thereby and each item, covenant or condition of this Lease shall be
valid and be enforced to the fullest extent permitted by Law. Wherever the term
"including" or "includes" is used in this Lease, it shall have the same meaning
as if followed by the phrase "but not limited to". The language in all parts of
this Lease shall be construed according to its normal and usual meaning and not
strictly for or against either Landlord or Tenant.
25.14 ABANDONMENT
In the event Tenant vacates or abandons the Premises but is otherwise in
compliance with all the terms, covenants and conditions of this Lease, Landlord
shall (i) have the right to enter into the Premises in order to show the space
to prospective tenants, (ii) have the right to reduce the services provided to
Tenant pursuant to the terms of this Lease to such levels as Landlord reasonably
determines to be adequate services for an unoccupied premises, and (iii) during
the last six (6) months of the Term, have the right to prepare the Premises for
occupancy by another tenant upon the end of the Term. Tenant expressly
acknowledges that in the absence of written notice pursuant to Section 11.2(b)
or pursuant to California Civil Code Section 1951.3 terminating Tenant's right
to possession, none of the foregoing acts of Landlord or any other act of
Landlord shall constitute a termination of Tenant's right to possession or an
acceptance of Tenant's surrender of the Premises, and the Lease shall continue
in effect.
25.15 LANDLORD'S RIGHT TO PERFORM TENANT'S DUTIES
If Tenant fails timely to perform any of its duties under this Lease or
the Workletter, Landlord shall have the right (but not the obligation), to
perform such duty on behalf and at the expense of Tenant without prior notice to
Tenant, and all sums expended or expenses incurred by Landlord in performing
such duty shall be deemed to be additional Rent under this Lease and shall be
due and payable upon demand by Landlord.
25.16 SECURITY SYSTEM
Landlord shall not be obligated to provide or maintain any security patrol
or security system. Landlord shall not be responsible for the quality of any
such patrol or system which may be provided hereunder or for damage or injury to
Tenant, its employees, invitees or others due to the failure, action or inaction
of such patrol or system. Notwithstanding the foregoing, Tenant may, at Tenant's
sole cost and expense, utilize the existing central building security system and
install card-controlled door(s) to and within the Premises, provided that Tenant
comply with the provisions of Article 9 of this Lease.
43
25.17 NO LIGHT, AIR OR VIEW EASEMENTS
Any diminution or shutting off of light, air or view by any structure
which may be erected on lands of or adjacent to the Project shall in no way
affect this Lease or impose any liability on Landlord.
25.18 RECORDATION
Neither this Lease, nor any notice nor memorandum regarding the terms
hereof, shall be recorded by Tenant. Any such unauthorized recording shall be a
Default for which there shall be no cure or grace period. Tenant agrees to
execute and acknowledge, at the request of Landlord, a memorandum of this Lease,
in recordable form.
25.19 SURVIVAL
The waivers of the right of jury trial, the other waivers of claims or
rights, the releases and the obligations of Tenant under this Lease to
indemnify, protect, defend and hold harmless Landlord and/or Indemnitees shall
survive the expiration or termination of this Lease, and so shall all other
obligations or agreements which by their terms survive expiration or termination
of the Lease.
25.20 RIDERS
All Riders attached hereto and executed both by Landlord and Tenant shall
be deemed to be a part hereof and hereby incorporated herein.
[Signatures on Following Page]
44
IN WITNESS WHEREOF, this Lease has been executed as of the date set forth
in Section 1.1 hereof.
TENANT: LANDLORD:
BIONOVO, INC., XXXXX STATION JOINT VENTURE, LLC,
a Delaware corporation a California limited liability company
By: /s/ By: /s/
------------------------------- --------------------------------
Print Name: Print Name:
----------------------- ------------------------
Its: Its:
------------------------------ ------------------------------
LIGHTEN UP ENTERPRISES Date:
INTERNATIONAL, INC. -----------------------------
a Nevada corporation
By: /s/
-----------------------
Print Name:
---------------------
Its:
---------------------------
Date:
--------------------------
45
EXHIBIT A
PLAN OF PREMISES
----------------
[Graphic of floorplan attached]
A-1
EXHIBIT B
WORKLETTER AGREEMENT
(TURN-KEY)
1. Defined Terms. Capitalized Terms used in this Workletter shall have the
same meanings set forth in the Lease except as otherwise specified herein and
except for Terms capitalized in the ordinary course of punctuation. For purposes
of this Workletter the following capitalized terms have the following meanings:
1.1. "Design Documents" means the layout plans and specifications
for the real property improvements to be constructed by Landlord in the Premises
which are the final product of the preliminary space planning and which (i)
include, among other things, the space plan, attached to this Workletter as
Schedule 1 (or as agreed by Landlord and Tenant); and (ii) comply with all Law
as applicable and as interpreted at the time of construction of the Tenant
Improvements (defined below), including, all building codes and the ADA (defined
in the Lease);
1.2. "Construction Drawings" means the final architectural plans and
specifications, and engineering plans and specifications, for the real property
improvements to be constructed by Landlord in the Premises in sufficient detail
to be submitted for governmental approvals and building permits and to serve as
the detailed construction drawings and specifications for the contractor, and
shall be based upon and consistent with the Design Documents;
1.3. "Tenant Improvements" means all real property improvements to
be constructed by Landlord as shown on the Construction Drawings, as they may be
modified as provided herein; and
1.4. "Landlord Work" means the construction and installation of the
Tenant Improvements.
2. Design Matters.
2.1. Landlord, through its architects and/or space planners
("Landlord's Architect"), has prepared the Design Documents which are attached
to this Work Letter as Schedule 1 and which have been approved by Tenant.
2.2. Landlord through its Architect shall prepare the Construction
Drawings which shall be the logical extension of, and consistent with, the
Design Documents.
2.2. Tenant shall be responsible for the suitability for the
Tenant's needs and business of the design and function of all Tenant
Improvements. Tenant, at its own expense, shall devote such time and provide
such instructions as may be necessary to enable Landlord to complete the matters
described below, and Tenant shall approve such matters, within the times
described below:
B-1
(a) Tenant's written approval of the Construction Drawings
within 7 days after submittal. Tenant cannot withhold its approval of the
Construction Drawings so long as they are in material conformance with the
Design Documents.
3. Turn-Key Construction; Tenant Improvement Costs.
3.1. Turn-key Construction.
(a) Landlord, through its contractor, shall complete the
construction of the Tenant Improvements in accordance with the Construction
Drawings in a good and workmanlike manner at its sole cost and expense
("Turn-key Construction Costs").
(b) Landlord shall retain the phone and data cabling
("Cabling") from the prior occupant in the Premises (except for any Cabling that
needs to be removed per the Design Documents. Landlord makes no representations
or warranties regarding the condition, quality, serviceability or utility of the
Cabling.
3.2. Turn-Key Construction Costs. The Turn-key Construction Costs
shall include only:
(a) The actual costs of Landlord's Architect and any other
third party consultants retained by Landlord in connection with the preparation
of Design Documents and Constructions Drawings, and engineering Costs associated
with completion of the State of California energy utilization calculations under
Title 24 legislation;
(b) All third party costs of obtaining from the City of
Emeryville and any other governmental authority, approvals, building permits and
occupancy permits, if any;
(c) All third party costs of interior design and finish
schedule plans and specifications including as-built drawings; and
(d) All actual costs of procuring, installing and constructing
the Tenant improvements, including: (1) the construction fee for overhead and
profit and the cost of all on-site supervisory and administrative staff, office,
equipment and temporary services rendered or provided by Landlord's contractor
in connection with construction of the Tenant Improvements; and (ii) the cost of
any services or utilities made available by Landlord; and (iii) the replacement,
as necessary, of any window blinds, as reasonably determined by Landlord.
3.3. Exclusions from Turn-key Construction Costs. The Turn-key
Construction Costs shall not include:
(a) Tenant shall be responsible for any intercom/callbox
devices for Tenant's customers.
(b) any fees payable to Landlord's Architect if it is required
by Tenant to redesign any portion of the Tenant Improvements following Tenant's
approval of the Construction Drawings;
B-2
(c) all costs in connection with any approved Change Order in
accordance with the provisions of this Workletter;
(d) any costs of procuring or installing in the Premises any
trade fixtures, equipment, furniture, furnishings, telephone equipment, cabling
for any of the foregoing, or other personal property ("Personal Property") to be
used in the Premises by Tenant, the cost of which shall be paid by Tenant; or,
(e) any costs or expenses of any consultants retained by
Tenant with respect to design, procurement, installation or construction of
improvements or installations, whether real or personal property, for the
Premises.
3.4. Limitations of Landlord's Obligations. Upon Substantial
Completion of the Tenant Improvements, Landlord shall have no further obligation
to construct improvements or construct modifications to or changes in the Tenant
Improvements, except to complete the punchlist of Landlord Work remaining to be
completed or correct any part thereof not in compliance with the Construction
Drawings and any approved modifications thereof, as provided in the Lease.
Notwithstanding anything to the contrary contained herein, Landlord shall
warrant the Tenant Improvements for a period of nine (9) months from the
Commencement Date and shall pass through all manufacturers warranties on
equipment or other items installed in the Premises as part of Landlord's Work.
4. Changes. If Tenant shall request any change, addition or alteration in
the approved Construction Drawings, Landlord shall promptly give Tenant a
written estimate of (a) the cost of engineering and design services and the
construction contractor services to prepare a change order (the "Change Order")
in accordance with such request, (b) the cost of work to be performed pursuant
to such Change Order, and (c) the time delay expected because of such requested
Change Order. Within three (3) business days following Tenant's receipt of the
foregoing written estimate, Tenant shall notify Landlord in writing whether it
approves such written estimate. If Tenant approves such written estimate and if
such cost is in excess of Landlord's estimate of the Turn-key Construction
Costs, Tenant shall accompany such approval with a good check made payable to
the order of Landlord in the amount of the estimated cost of preparing the
Change Order and performing the work thereto, and the foregoing shall constitute
Landlord's authorization to proceed. If such written authorization, and check if
required, are not received by Landlord within such three (3) business day
period, Landlord shall not be obligated to prepare the Change Order or perform
any work in connection therewith.
5. Tenant Delay. If the Substantial Completion of the Tenant Improvements
in the Premises is delayed due to Tenant Delay (defined in the Lease), then
Tenant shall be responsible for all costs and any expenses occasioned by such
delay, including any costs and expenses attributable to increases in labor or
materials, and the provisions of Article Two of the Lease shall apply.
6. Entry by Tenant. Tenant may, with Landlord's written consent, which
will not unreasonably be withheld, enter the Premises during construction and
prior to the Commencement Date for the Premises solely for the purpose of
installing Tenant's personal property and equipment and readying the Premises
for its occupancy as long as such entry will not materially interfere with the
timely and orderly construction and completion of the Premises. Tenant shall
notify Landlord of its desired time(s) of entry and shall submit for Landlord's
approval the scope of the work to be performed and the name(s) of the
contractor(s) who will perform such work. Such work and such contractors shall
be subject to Landlord's approval in the same manner as for work subject to
Section 9.1(a) of the Lease. Such entry shall be without payment of Base Monthly
Rent or Rent Adjustments, but such entry and all acts and omissions in
connection with it are subject to and governed by all other provisions of the
Lease, including Tenant's indemnification obligations, insurance obligations,
obligations under Article Seven and the provisions of Section 9.02.
B-3
7. Force and Effect. The terms and conditions of this Workletter
supplement the Lease and shall be construed to be a part of the Lease and are
incorporated in the Lease. Without limiting the generality of the foregoing, any
default by any party hereunder shall have the same force and effect as a default
under the Lease. Should any inconsistency arise between this Workletter and the
Lease as to the specific matters that are the subject of this Workletter, the
terms and conditions of this Workletter shall control.
B-4
SCHEDULE 1
[Graphic of floorplan attached]
B-5
EXHIBIT C
RULES AND REGULATIONS
---------------------
1. No sidewalks, entrance, passages, courts, elevators, vestibules,
stairways, corridors or halls shall be obstructed or encumbered by Tenant or
used for any purpose other than ingress and egress to and from the Premises and
if the Premises are situated on the ground floor of the Project, Tenant shall
further, at Tenant's own expense, keep the sidewalks and curb directly in front
of the Premises clean and free from rubbish.
2. No awning or other projection shall be attached to the outside walls or
windows of the Project without the prior written consent of Landlord. No
curtains, blinds, shades, drapes or screens shall be attached to or hung in, or
used in connection with any window or door of the Premises, without the prior
written consent of Landlord. Such awnings, projections, curtains, blinds,
shades, drapes, screens and other fixtures must be of a quality, type, design,
color, material and general appearance approved by Landlord, and shall be
attached in the manner approved by Landlord. All lighting fixtures hung in
offices or spaces along the perimeter of the Premises must be of a quality,
type, design, bulb color, size and general appearance approved by Landlord.
3. No sign, advertisement, notice, lettering, decoration or other thing
shall be exhibited, inscribed, painted or affixed by Tenant on any part of the
outside or inside of the Premises or of the Project, without the prior written
consent of Landlord. In the event of the violation of the foregoing by Tenant,
Landlord may remove same without any liability, and may charge the expense
incurred by such removal to Tenant.
4. The sashes, sash doors, skylights, windows and doors that reflect or
admit light or air into the halls, passageways or other public places in the
Project shall not be covered or obstructed by Tenant, nor shall any bottles,
parcels or other articles be placed on the window xxxxx or in the public
portions of the Project.
5. No showcases or other articles shall be put in front of or affixed to
any part of the exterior of the Project, nor placed in public portions thereof
without the prior written consent of Landlord.
6. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags or other substances shall be thrown therein. All
damages resulting from any misuse of the fixtures shall be borne by Tenant to
the extent that Tenant or Tenant's agents, servants, employees, contractors,
visitors or licensees shall have caused the same.
7. Tenant shall not xxxx, paint, drill into or in any way deface any part
of the Premises or the Project. No boring, cutting or stringing of wires shall
be permitted, except with the prior written consent of Landlord, and as Landlord
may direct.
8. No animal or bird of any kind shall be brought into or kept in or about
the Premises or the Project, except seeing-eye dogs or other seeing-eye animals.
C-1
9. Prior to leaving the Premises for the day, Tenant shall draw or lower
window coverings and extinguish all lights.
10. Tenant shall not make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of the Project, or
neighboring buildings or premises, or those having business with them. Tenant
shall not throw anything out of the doors, windows or skylights or down the
passageways.
11. Neither Tenant nor any of Tenant's agents, servants, employees,
contractors, visitors or licensees shall at any time bring or keep upon the
Premises any flammable, combustible or explosive fluid, chemical or substance.
12. No additional locks, bolts or mail slots of any kind shall be placed
upon any of the doors or windows by Tenant, nor shall any change be made in
existing locks or the mechanism thereof. Tenant must, upon the termination of
the tenancy, restore to Landlord all keys of stores, offices and toilet rooms,
either furnished to, or otherwise procured by Tenant, and in the event of the
loss of any keys so furnished, Tenant shall pay to Landlord the cost thereof.
13. All removals, or the carrying in or out of any safes, freight,
furniture, construction material, bulky matter or heavy equipment of any
description must take place during the hours which Landlord or its agent may
determine from time to time. Landlord reserves the right to prescribe the weight
and position of all safes, which must be placed upon two-inch thick plank strips
to distribute the weight. The moving of safes, freight, furniture, fixtures,
bulky matter or heavy equipment of any kind must be made upon previous notice to
the Building Manager and in a manner and at times prescribed by him, and the
persons employed by Tenant for such work are subject to Landlord's prior
approval. Landlord reserves the right to inspect all safes, freight or other
bulky articles to be brought into the Project and to exclude from the Project
all safes, freight or other bulky articles which violate any of these Rules and
Regulations or the Lease of which these Rules and Regulations are a part.
14. Tenant shall not purchase spring water, towels, janitorial or
maintenance or other like service from any company or persons not approved by
Landlord. Landlord shall approve a sufficient number of sources of such services
to provide Tenant with a reasonable selection, but only in such instances and to
such extent as Landlord in its judgment shall consider consistent with security
and proper operation of the Project.
15. Landlord shall have the right to prohibit any advertising or business
conducted by Tenant referring to the Project which, in Landlord's opinion, tends
to impair the reputation of the Project or its desirability as a first class
building for offices and/or commercial services and upon notice from Landlord,
Tenant shall refrain from or discontinue such advertising.
16. Landlord reserves the right to exclude from the Project between the
hours of 6:00 p.m. and 8:00 am. Monday through Friday, after 1:00 p.m. on
Saturdays and at all hours Sundays and legal holidays, all persons who do not
present a pass to the Project issued by Landlord. Landlord may furnish passes to
Tenant so that Tenant may validate and issue same. Tenant shall safeguard said
passes and shall be responsible for all acts of persons in or about the Project
who possess a pass issued to Tenant.
C-2
17. Tenant's contractors shall, while in the Premises or elsewhere in the
Project, be subject to and under the control and direction of the Building
Manager (but not as agent or servant of said Building Manager or of Landlord).
18. If the Premises is or becomes infested with vermin as a result of the
use or any misuse or neglect of the Premises by Tenant, its agents, servants,
employees, contractors, visitors or licensees, Tenant shall forthwith at
Tenant's expense cause the same to be exterminated from time to time to the
satisfaction of Landlord and shall employ such licensed exterminators as shall
be approved in writing in advance by Landlord.
19. The requirements of Tenant will be attended to only upon application
at the office of the Project. Project personnel shall not perform any work or do
anything outside of their regular duties unless under special instructions from
the office of the Landlord.
20. Canvassing, soliciting and peddling in the Project are prohibited and
Tenant shall cooperate to prevent the same.
21. No water cooler, air conditioning unit or system or other apparatus
shall be installed or used by Tenant without the written consent of Landlord.
22. There shall not be used in any premises, or in the public halls, plaza
areas, lobbies, or elsewhere in the Project, either by Tenant or by jobbers or
others, in the delivery or receipt of merchandise, any hand trucks or dollies,
except those equipped with rubber tires and sideguards.
23. Tenant, Tenant's agents, servants, employees, contractors, licensees,
or visitors shall not park any vehicles in any driveways, service entrances, or
areas posted "No Parking" and shall comply with any other parking restrictions
imposed by Landlord from time to time.
24. Tenant shall install and maintain, at Tenant's sole cost and expense,
an adequate visibly marked (at all times properly operational) fire extinguisher
next to any duplicating or photocopying machine or similar heat producing
equipment, which may or may not contain combustible material, in the Premises.
25. Tenant shall keep its window coverings closed during any period of the
day when the sun is shining directly on the windows of the Premises.
26. Tenant shall not use the name of the Project for any purpose other
than as the address of the business to be conducted by Tenant in the Premises,
nor shall Tenant use any picture of the Project in its advertising, stationery
or in any other manner without the prior written permission of Landlord.
Landlord expressly reserves the right at any time to change said name without in
any manner being liable to Tenant therefor.
27. Tenant shall not prepare any food nor do any cooking, operate or
conduct any restaurant, luncheonette or cafeteria for the sale or service of
food or beverages to its employees or to others, except that food and beverage
preparation by Tenant's employees using microwave ovens or coffee makers shall
be permitted provided no odors of cooking or other processes emanate from the
Premises. Tenant shall not install or permit the installation or use of any
vending machine or permit the delivery of any food or beverage to the Premises
except by such persons and in such manner as are approved in advance in writing
by Landlord.
C-3
28. The Premises shall not be used as an employment agency, a public
stenographer or typist, a labor union office, a physician's or dentist's office,
a dance or music studio, a school, a beauty salon, or xxxxxx shop, the business
of photographic, multilith or multigraph reproductions or offset printing (not
precluding using any part of the Premises for photographic, multilith or
multigraph reproductions solely in connection with Tenant's own business and/or
activities), a restaurant or bar, an establishment for the sale of
confectionery, soda, beverages, sandwiches, ice cream or baked goods, an
establishment for preparing, dispensing or consumption of food or beverages of
any kind in any manner whatsoever, or news or cigar stand, or a radio,
television or recording studio, theatre or exhibition hall, or manufacturing, or
the storage or sale of merchandise, goods, services or property of any kind at
wholesale, retail or auction, or for lodging, sleeping or for any immoral
purposes.
29 Business machines and mechanical equipment shall be placed and
maintained by Tenant at Tenant's expense in settings sufficient in Landlord's
judgment to absorb and prevent vibration, noise and annoyance. Tenant shall not
install any machine or equipment which causes noise, heat, cold or vibration to
be transmitted to the structure of the building in which the Premises are
located without Landlord's prior written consent, which consent may be
conditioned on such terms as Landlord may require. Tenant shall not place a load
upon any floor of the Premises exceeding the floor load per square foot that
such floor was designed to carry and which is allowed by Law.
30. Tenant shall not bring any Hazardous Materials onto the Premises
except for those that are in general commercial use and are incidental to
Tenant's business office operations and only in quantities suitable for
immediate use.
31. Tenant shall not store any vehicle within the parking area. Tenant's
parking rights are limited to the use of parking spaces for short-term parking,
of up to twenty-four (24) hours, of vehicles utilized in the normal and regular
daily travel to and from the Project. Tenants who wish to park a vehicle for
longer than a 24-hour period shall notify the Building Manager for the Project
and consent to such long-term parking may be granted for periods up to two (2)
weeks. Any motor vehicles parked without the prior written consent of the
Building Manager for the Project for longer than a 24-hour period shall be
deemed stored in violation of this rule and regulation and shall be towed away
and stored at the owner's expense or disposed of as provided by Law.
32. Smoking is prohibited in the Premises, the Building and all enclosed
Common Areas of the Project, including all lobbies, all hallways, all elevators
and all lavatories.
C-4
RIDER 1
COMMENCEMENT DATE AGREEMENT
---------------------------
XXXXX STATION JOINT VENTURE, LLC, a California limited liability company
("Landlord"), and BIONOVO, a Delaware Corp., ("Tenant"), have entered into a
certain Office Lease dated as of July 8, 2005 (the "Lease").
WHEREAS, Landlord and Tenant wish to confirm and memorialize the
Commencement Date and Expiration Date of the Lease as provided for in Section
2.2(b) of the Lease;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein and in the Lease, Landlord and Tenant agree as follows:
1. Unless otherwise defined herein, all capitalized terms shall have the
same meaning ascribed to them in the Lease.
2. The Commencement Date (as defined in the Lease) of the Lease is
9/01/05.
3. The Expiration Date (as defined in the Lease) of the Lease is 8/31/08.
4. Tenant hereby confirms the following:
(a) That it has accepted possession of the premises pursuant to the
terms of the Lease;
(b) That the Landlord Work is Substantially Complete; and
(c) That the Lease is in full force and effect.
5. Except as expressly modified hereby, all terms and provisions of the
Lease are hereby ratified and confirmed and shall remain in full force and
effect and binding on the parties hereto.
6. The Lease and this Commencement Date Agreement contain all of the
terms, covenants, conditions and agreements between the Landlord and the Tenant
relating to the subject matter herein. No prior other agreements or
understandings pertaining to such matters arc valid or of any force and effect.
TENANT: LANDLORD:
BIONOVO, INC., XXXXX STATION JOINT VENTURE, LLC,
a Delaware corporation a California limited liability company
By: /s/ By:
---------------------------------- --------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
-------------------------- Managing Member
Its:
---------------------------------
RIDER 1
RIDER 2
By: /s/
----------------------------------
Print Name:
--------------------------
Its:
---------------------------------
RIDER 2
ADDENDUM TO OFFICE LEASE
BETWEEN
XXXXX STATION JOINT VENTURE, LLC (LANDLORD)
AND
BIONOVO. INC. AND LIGHTEN UP ENTERPRISES INTERNATIONAL, INC.,
(TENANT)
This Addendum to Lease is attached to and forms a part of that certain
Lease by and between XXXXX STATION JOINT VENTURE, LLC, a California general
partnership ("Landlord"), and BIONOVO, INC., a Delaware corporation, and LIGHTEN
UP ENTERPRISES INTERNATIONAL, INC., a Nevada corporation (jointly and severally,
"Tenant"), for premises located in the building located at 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxx. Words and terms that are defined in the Lease shall have
the same meaning in this Addendum as the meaning provided in the Lease. In the
event of any inconsistency between the terms of this Addendum and the Lease, the
terms of this Addendum shall control.
1. Right of First Offer.
X. Xxxxx of Option; Conditions. Tenant shall have the one time right of
first offer (the "Right of First Offer") with respect to the currently vacant
space shown on Attachment 1 attached hereto (the "Offering Space"). Tenant's
Right of First Offer shall be exercised as follows: prior to leasing the
Offering Space to a party, Landlord shall advise Tenant (the "Advice") of the
terms under which Landlord is prepared to lease the Offering Space to Tenant for
the remainder of the Term, which terms shall reflect the Prevailing Market
(hereinafter defined) rate for such Offering Space as reasonably determined by
Landlord. Tenant may lease such Offering Space in its entirety only, under such
terms, by delivering written notice of exercise to Landlord (the "Notice of
Exercise") within 5 days after the date of the Advice, except that Tenant shall
have no such Right of First Offer and Landlord need not provide Tenant with an
Advice, if:
1. Tenant is in default under the Lease beyond any applicable cure
periods at the time that Landlord would otherwise deliver the Advice; or
2. the Premises, or any portion thereof, is sublet at the time
Landlord would otherwise deliver the Advice; or
3. the Lease has been assigned prior to the date Landlord would
otherwise deliver the Advice; or
4. Tenant is not occupying the Premises on the date Landlord would
otherwise deliver the Advice; or
5. the Offering Space is not intended for the exclusive use of
Tenant during the Term.
B. Terms for Offering Space.
ADDENDUM 1
1. The term for the Offering Space shall commence upon the
commencement date stated in the Advice and thereupon such Offering Space shall
be considered a part of the Premises, provided that all of the terms stated in
the Advice shall govern Tenant's leasing of the Offering Space and only to the
extent that they do not conflict with the Advice, the terms and conditions of
this Lease shall apply to the Offering Space.
2. Tenant shall pay Monthly Base Rent and Rent Adjustments for the
Offering Space in accordance with the terms and conditions of the Advice, which
terms and conditions shall reflect the Prevailing Market rate for the Offering
Space as determined in Landlord's reasonable judgment.
3. The Offering Space (including improvements and personalty, if
any) shall be accepted by Tenant in its condition and as-built configuration
existing on the earlier of the date Tenant takes possession of the Offering
Space or as of the date the term for such Offering Space commences, unless the
Advice specifies any work to be performed by Landlord in the Offering Space, in
which case Landlord shall perform such work in the Offering Space.
C. Termination of Right of First Offer. The rights of Tenant hereunder
with respect to the Offering Space shall terminate on the earlier to occur of:
(i) the last day of the 24th full calendar month of the Term, (ii) Tenant's
failure to exercise its Right of First Offer within the 5 day period provided in
Section 1.A. above; and (iii) the date Landlord would have provided Tenant an
Advice if Tenant had not been in violation of one or more of the conditions set
forth in Section l.A. above.
D. Offering Amendment. If Tenant exercises its Right of First Offer,
Landlord shall prepare an amendment (the "Offering Amendment") adding the
Offering Space to the Premises on the terms set forth in the Advice and
reflecting the changes in the Monthly Base Rent, rentable square footage of the
Premises, Tenant's Share and other appropriate terms. A copy of the Offering
Amendment shall be sent to Tenant within a reasonable time after Landlord's
receipt of the Notice of Exercise executed by Tenant, and Tenant shall execute
and return the Offering Amendment to Landlord within 15 days thereafter, but an
otherwise valid exercise of the Right of First Offer shall be fully effective
whether or not the Offering Amendment is executed.
E. Definition of Prevailing Market. For purposes of this Right of First
Offer provision, "Prevailing Market" shall mean the annual rental rate per
square foot for space comparable to the Offering Space in the Building and
buildings comparable to the Building in the Berkeley and Emeryville area under
leases and renewal and expansion amendments being entered into at or about the
time that Prevailing Market is being determined, giving appropriate
consideration to tenant's credit, tenant concessions, brokerage commissions,
tenant improvement allowances, existing improvements in the space in question,
and the method of allocating operating expenses and taxes. Notwithstanding the
foregoing, space leased under any of the following circumstances shall not be
considered to be comparable for purposes hereof: (i) the lease term is for less
than the lease term of the Offering Space, (ii) the space is encumbered by the
option rights of another tenant, or (iii) the space has a lack of windows and/or
an awkward or unusual shape or configuration. The foregoing is not intended to
be an exclusive list of space that will not be considered to be comparable.
ADDENDUM 2
F. Subordination. Notwithstanding anything herein to the contrary,
Tenant's Right of First Offer is subject and subordinate to the expansion rights
(whether such rights are designated as a right of first offer, right of first
refusal, expansion option or otherwise) of any tenant of the Building existing
on the date hereof.
[Graphic of floorplan attached]
ADDENDUM 3