1
EXHIBIT 10.19
SUBLEASE
1. PARTIES. This Sublease is made and effective this __ day of July 1997
("Effective Date") by and among Quickturn Design Systems, Inc., a Delaware
corporation ("Sublessor"), Microcide Pharmaceuticals, Inc., a Delaware
corporation ("Sublessee") and Portola Land Co., a California limited
partnership ("Master Lessor").
2. PREMISES. Sublessor hereby leases to Sublessee and Sublessee hereby
subleases from Sublessor for the Term (as defined below in Section 3), at
the Rent set forth in Section 4 below, and upon all of the conditions set
forth herein, that certain property situated in the County of Santa Xxxxx,
State of California, commonly known as 000 Xxxxx Xxxxxx and 000 Xxxxx
Xxxxxx, Xxxxxxxx Xxxx, XX 00000 and described as two (2) free-standing
buildings consisting of approximately eighteen thousand forty (18,040)
rentable square feet and seventeen thousand four hundred fifteen (17,415)
rentable square feet, respectively. (See attached Exhibit A for further
description.)
3. TERM.
3.1 Term. The term of this Sublease shall be for approximately two (2) years and
six (6) months (the "Term") commencing on or about November 1, 1997
("Commencement Date") and ending on April 30, 2000, unless sooner terminated
pursuant to any provision herein ("Termination Date").
3.2 Delay in Commencement. If for any reason Sublessor cannot deliver possession
of the Premises to Sublessee on November 1, 1997, Sublessor shall not be
subject to any liability therefore, nor shall such failure affect the
validity of this Lease or the obligations of Sublessee hereunder or extend
the term of this Sublease. Notwithstanding the foregoing, Sublessee shall
not be obligated to pay rent until Sublessor tenders possession of the
Premises to Sublessee. If Sublessor has not delivered possession of the
Premises by January 1, 1998, Sublessee may, at its option, notify Sublessor
in writing on or before January 10, 1998, that Sublessee intends to cancel
this Sublease. In the event of such cancellation, the parties shall be
discharged from all obligations hereunder.
3.3 Early Commencement. If Sublessee occupies the Premises prior to November 1,
1997, such occupancy shall be subject to all provisions of this Sublease,
such occupancy shall not advance the Termination Date and Sublessee shall
pay rent for such period at the initial monthly rates set forth below.
1
2
4. RENT; OPERATING EXPENSES AND REAL ESTATE TAXES.
4.1 Rent for Premises. The Rent is calculated for the Premises as follows:
000 Xxxxx Xxxxxx 11/1/1997 through 1/31/1999 $1.75/sq. foot/month NNN
02/1/1999 through 4/30/2000 $1.80/sq. foot/month NNN
000 Xxxxx Xxxxxx 11/1/1997 through 1/31/1999 $1.75/sq. foot/month NNN
02/1/1999 through 4/30/2000 $1.80/sq. foot/month NNN
Sublessee shall pay to Sublessor as rent for the Premises equal monthly
payments of $62,046.25, in advance, on the first day of each month for
months 1 through 15 of the Term and $63,819.00, in advance, on the first day
of each month for months 16 through 30 of the Term (collectively, the
"Rent"). Sublessee shall pay to Sublessor on the Effective Date the sum of
$62,046.25 as payment for the first month's Rent. Sublessor shall apply any
partial Rent payments made by Sublessee on a pro rata basis toward the
monthly Rent then due. Rent shall be payable in lawful money of the United
States to Sublessor at the address stated herein or to such other persons or
at such other places as Sublessor may designate in writing.
4.2 Operating Expenses; Real Estate Taxes. This Sublease is a "triple net" or
"NNN" sublease and Sublessee shall be responsible for paying directly for
services such as utilities, janitorial costs, all operating expenses and
annual increases (including without limitation building and common area
maintenance such as parking, landscaping and lighting), costs of insurance,
repairs, operations and real property taxes. Sublessee shall have the right
to verify all operating expenses.
5. SECURITY DEPOSIT. Sublessee shall deposit with Sublessor on the Effective
Date the sum of $63,819.00 as security for Sublessee's faithful performance
of its obligations hereunder (the "Security Deposit"). If Sublessee fails to
pay Rent or other charges due hereunder, or otherwise defaults with respect
to any provision of this Sublease, Sublessor may use, apply or retain all or
any portion of the Security Deposit for the payment of any Rent or other
charge in default or for the payment of any other sum to which Sublessor may
become obligated by reason of Sublessee's default, or to compensate
Sublessor for any loss or damage which Sublessor may suffer thereby. If
Sublessor so uses or applies all or any portion of the Security Deposit,
Sublessee shall, within ten (10) days after its receipt of Sublessor's
written demand, deposit cash with Sublessor in an amount sufficient to
restore the Security Deposit to the full amount set forth above. Sublessee's
failure to do so shall be a material breach of this Sublease. Sublessor
shall not be required to keep the Security Deposit separate from its general
accounts. If Sublessee performs all of its obligations hereunder, following
the Termination Date and after Sublessee has vacated the Premises, Sublessor
shall return the Security Deposit (or the portion thereof which has not been
applied by Sublessor) to Sublessee (or at Sublessor's option, to the last
assignee, if any, of Sublessee's interest in the Sublease). No trust
relationship is created herein between Sublessor and Sublessee with respect
to the Security Deposit. No payment of interest or other
2
3
incremental charge shall be payable to Sublessee for Sublessor's use of the
Security Deposit.
6. USE.
6.1 Use. The Premises shall be used and occupied by Sublessee only for research
and development, office and administration, storage and other legal uses
approved by the City of Mountain View.
6.2 Compliance with Law.
(a) Sublessor's Warranty re Compliance. As of the Commencement Date, Sublessor
warrants to Sublessee that, to the best of Sublessor's knowledge and without
independent investigation, the Premises, in their existing state, do not
violate any applicable building code regulation or ordinance; provided,
however, Sublessor's warranty is given without regard to the use for which
Sublessee intends to use the Premises. Sublessor shall rectify promptly, at
its sole cost and expense, any violation of such warranty, after written
notice from Sublessee. Notwithstanding the foregoing, the Premises may not
meet all requirements of the Americans with Disabilities Act ("ADA") and
Sublessor makes no warranty nor assumes any liability with respect to ADA
compliance. It shall be conclusively deemed that no violation of Sublessor's
warranty existed unless written notice to the contrary is received by
Sublessor prior to the first anniversary of the Commencement Date.
(b) Sublessee's Compliance. Except as provided in Section 6.2(a), Sublessee
shall, at its sole expense, comply promptly with all applicable statutes,
ordinances, rules, regulations, orders, restrictions of record, and
requirements in effect during the Term regulating Sublessee's use of the
Premises. Sublessee shall not use or permit the use of the Premises in any
manner that will tend to (i) create waste or a nuisance; or (ii) to disturb
other tenants of the Premises, if there are multiple tenants in the building
containing the Premises.
6.3 Condition of Premises; Improvements.
*Operating systems to be in good condition on commencement of sublease
(RC 7/22/97; AM FOR NICO 7/27/97)
(a) "AS IS" Condition of Premises. Sublessor shall provide Sublessee with
sufficient opportunity to conduct its own review of all operating systems
prior to the Commencement Date. Sublessor makes no representation or gives
no warranty with respect to the condition of such operating systems. Except
as expressly provided in Section 6.2(a) and this Section 6.3, Sublessee
hereby accepts (a) the Premises "AS IS" in their condition existing as of
the Commencement Date, subject to all applicable zoning, municipal, county
and state laws, ordinances, and regulations governing and regulating the use
of the Premises; (b) this Sublease subject thereto; and ( c) all matters
disclosed thereby and in any exhibits attached to this Sublease.
Notwithstanding the foregoing, prior to the Commencement Date Sublessor
shall clean the carpets and floors at the Premises and replace defective
ceiling tiles and light bulbs. All other improvements shall be at
Sublessee's sole expense. Sublessee acknowledges that neither Sublessor nor
Sublessor's agents have made any representation or warranty as to the
suitability of the Premises for the conduct of Sublessee's business.
3
4
(b)Improvements by Sublessee. Sublessee shall have the right to modify the
building interiors of the Premises with Sublessor's and Master Lessor's
prior written consent, subject to the appropriate provisions of the Master
Lease. Sublessor makes no representation as to the condition of these
systems. To the best of Sublessor knowledge there are no permit violations
of existing building improvements.
6.4 Sublessee's Indemnification re Hazardous Substances. Sublessee shall
indemnify, defend and hold Sublessor and Master Lessor, and each of their
agents, employees and lenders, harmless from and against any and all losses,
costs, claims, damages, liabilities and causes of action (including
attorney's fees and costs and consultants' fees) arising out of or in any
way connected with any hazardous substance located on the Premises
immediately subsequent to the Commencement Date or any subsequent presence
of hazardous substances on or about the Premises, including the soils and
ground waters thereof, caused or permitted by Sublessee. Sublessee's
obligations under this provision shall survive the expiration or termination
of the Sublease.
7. MASTER LEASE.
7.1 Master Lease; Conflicts; Definitions. Sublessor is the lessee of the
Premises by virtue of a lease by and between Sublessor and Master Lessor
dated April 26, 1994, as amended by that certain Addendum to Master Lease
dated April 26, 1994 (collectively the "Master Lease"), a copy of which is
attached hereto as Exhibit B and incorporated herein by reference. This
Sublease is and shall be at all times subject and subordinate to the Master
Lease. The terms, conditions and respective obligations of Sublessor and
Sublessee to each other under this Sublease shall be the terms and
conditions of the Master Lease except for those provisions of the Master
Lease which are expressly changed by this Sublease. In the event of any
conflict between the terms of this Sublease and the terms of the Master
Lease, the terms of this Sublease shall control over the Master Lease. The
term "Lessor" in the Master Lease shall be deemed in this Sublease to refer
to the "Sublessor." The term "Lessee" in the Master Lease" shall be deemed
in this Sublease to refer to the "Sublessee." Any capitalized terms not
defined in this Sublease shall have the meaning ascribed to them by the
Master Lease.
7.2 Sublessee's Assumption of Obligations. During the Term and for all periods
subsequent with respect to obligations which have arisen prior to the
Termination Date, Sublessee does hereby expressly assume and agree to
perform and comply with, for the benefit of Sublessor and Master Lessor,
each and every obligation of Sublessor under the Master Lease ("Sublessee's
Assumed Obligations"). Sublessee shall hold Sublessor free and harmless of
and from all liability, judgments, costs, damages, claims or demands,
including reasonable attorney's fees, arising out of Sublessee's failure to
comply with or perform Sublessee's Assumed Obligations.
7.3 Sublessor's Compliance with Master Lease. Sublessor represents to Sublessee
that as of the Effective Date the Master Lease is in full force and effect
and that no default exists on the part of any party to the Master Lease.
4
5
8. ASSIGNMENT OF SUBLEASE AND DEFAULT.
8.1 Assignment to Master Lessor. Sublessor hereby assigns and transfers to
Master Lessor its interest in this Sublease and all Rents (with the
exception of fifty percent (50%) of the "Excess Rent"), subject however to
terms of Paragraph 8.2 hereof. Sublessor retains all right, title and
interest in and to fifty percent (50%) of the Excess Rent. "Excess Rent" is
defined in Section 23 of the Addendum to Master Lease as "any consideration
payable to Lessee, after deducting therefrom all reasonable costs necessary
to effect the assignment or sublet, including, without limitation, brokerage
and attorneys' fees, advertising costs, redecorating costs, and the cost of
Lessee of the installation of the Lessee Improvements in the Premises."
8.2 Defaults by Sublessor. Master Lessor agrees that unless and until Sublessor
materially defaults on the Master Lease, Sublessor may receive, collect and
enjoy the rents accruing under this Sublease. However, if Sublessor defaults
in the performance of its obligations to Master Lessor, then Master Lessor
may, at its option, receive and collect, directly from Sublessee, all rent
owing and to be owed under this Sublease; provided, however, Master Lessor
agrees that it shall only be entitled to fifty percent (50%) of the Excess
Rent. Master Lessor shall not, by reason of this assignment of the Sublease
nor by reason of the collection of the rents from the Sublessee, be deemed
liable to Sublessee for any failure of the Sublessor to perform and comply
with its obligations hereunder.
8.3 Sublessee's Payment to Master Lessor. Sublessor hereby irrevocably
authorizes and directs Sublessee, upon receipt of any written notice from
the Master Lessor stating that a default exists in the performance of
Sublessor under the Master Lease, to pay to Master Lessor the rents due and
to become due under the Sublease. Sublessor agrees that Sublessee shall have
the right to rely upon any such statement and request from Master Lessor,
and that Sublessee shall pay such rents to Master Lessor without any
obligation or right to inquire as to whether such default exists and
notwithstanding any notice from or claim from Sublessor to the contrary.
Sublessor agrees that it shall have no right or claim against Sublessee for
any such rents so paid by Sublessee.
8.4 No Modifications Without Master Lessor's Consent. No changes or
modifications shall be made to this Sublease without the consent of Master
Lessor.
9. CONSENT OF MASTER LESSOR TO SUBLEASE.
9.1 Consent. By executing this Sublease, Master Lessor hereby consents to the
terms and conditions of this Sublease. Such consent will not release
Sublessor from its obligation to pay rent and perform and comply with all of
its obligations under the Master Lease.
9.2 No Waiver. The acceptance of rent by Master Lessor from Sublessee or any one
else liable under the Master Lease shall not be deemed a waiver by Master
Lessor of any provisions of the Master Lease. The consent to this Sublease
shall not constitute a consent to any subsequent subletting or assignment.
In the event of any default of Sublessor under the Master Lease, Master
Lessor may proceed directly against
5
6
Sublessor or any one else liable under the Master Lease or this Sublease
without first exhausting Master Lessor's remedies against any other person
or entity liable thereon to Master Lessor.
9.3 Consents to Additional Subletting. Master Lessor may consent to subsequent
sublettings and assignments of the Master Lease or this Sublease or any
amendments or modifications thereto. Master Lessor shall promptly notify
Sublessor of such proposed sublettings or assignments in writing.
9.4 Attornment. In the event that Sublessor defaults in its obligations under
the Master Lease, then Master Lessor, at its option and without being
obligated to do so, may require Sublessee to attorn to Master Lessor. In
such event, Master Lessor shall undertake the obligations of Sublessor under
this Sublease from the time of the exercise of said option until the
Termination Date. Notwithstanding the foregoing, Master Lessor shall not be
liable for any prepaid rents nor any security deposit paid by Sublessee, nor
shall it be liable for any other defaults of the Sublessor under the
Sublease.
9.5 Master Lease in Good Standing. Master Lessor acknowledges that, to the best
of Master Lessor's knowledge, no default presently exists under the Master
Lease of obligations to be performed by Sublessor and that the Master Lease
is in full force and effect.
9.6 Copies of Default Notices to Sublessee. In the event that Sublessor defaults
under its obligations to be performed under the Master Lease, Master Lessor
agrees to deliver to Sublessee a copy of any such notice of default.
Sublessee shall have the right to cure any default of Sublessor described in
any notice of default within ten days after service of such notice of
default on Sublessee. If such default is cured by Sublessee then Sublessee
shall have the right of reimbursement and offset from and against Sublessor.
THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
6
7
IN WITNESS WHEREOF, the authorized representatives of each of the parties duly
execute this Sublease in the County of Santa Clara, California, as of the date
first written above.
SUBLESSOR: QUICKTURN DESIGN SYSTEMS, INC.
By: /S/ Xxx Xxxxx
-------------------------------
Title: Vice President
SUBLESSEE: MICROCIDE PHARMACEUTICALS, INC.
By: /S/ Xxxxx X. Xxxxx
-------------------------------
Title: President & CEO
MASTER LESSOR: PORTOLA LAND CO., A CALIFORNIA LIMITED PARTNERSHIP
By: /S/ Xxxxxxx Xxxxxxx
-------------------------------
Title: Partner
NOTARIZATION:
7
8
EXHIBIT A
This exhibit is of a drawing that depicts the Site Plan for the Premises 000-000
Xxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx.
7
0
XXXXXXX X
XXXXXXXX XXXXXXXXXX XXXX XXXXXX ASSOCIATION
STANDARD INDUSTRIAL/COMMERCIAL SINGLE-TENANT LEASE--NET
(Do not use this form for Multi-Tenant Property)
1. Basic Provisions ("Basic Provisions")
1.1 Parties: This Lease ("Lease"), dated for reference purposes only,
April 26 1994 is made by and between PORTOLA LAND COMPANY, a California Limited
Partnership ("Lessor") and QUICKTURN DESIGN SYSTEMS, INC., a Delaware
corporation ("Lessee") (collectively the "Parties," or individually a "Party").
1.2 Premises: That certain real property, including all improvements
therein or to be provided by Lessor under the terms of this Lease and commonly
known by the street address of 800 and 000 Xxxxx Xxxxxx, Xxxxxxxx Xxxx, XX 00000
located in the County of Santa Xxxxx, State of California, and generally
described as (describe briefly the nature of the property) 000 Xxxxx Xxxxxx.
consisting of approximately 18,040 square feet, and 000 Xxxxx Xxxxxx consisting
of approximately 17,415 square feet, for a total of approximately 35,455 square
feet ("Premises"). (See Paragraph 2 for further provisions.
1.3 Term: Five (5) years and 11 months ("Original Term") commencing
June 1, 1994 ("Commencement Date") and ending April 30, 2000 ("Expiration
Date"). (See Paragraph 3 for further provisions.)
1.4 Early Possession: Upon execution of this Lease by Lessor and Lessee
("Early Possession Date"). (See Paragraphs 3.2 and 3.3 for further provisions.)
1.5 Base Rent: $__________ per month ("Base Rent"), payable on the
first (1st) day of each month commencing July 1, 1994. (See Paragraph 4 for
further provisions.
[ ] If this box is checked, there are provisions in this Lease for the Base Rent
to be adjusted.
1.6 Base Rent Paid Upon Execution: $__________ as Base Rent for the
period June 1, 1994 through June 30, 1994.
1.7 Security Deposit: $__________ See Addendum ("Security Deposit").
(See Paragraph 5 for further provisions.
1.8 Permitted Use: Office, administration, research and development,
light manufacturing and all other uses legally permitted by the City of Mountain
View. (See Paragraph 6 for further provisions.)
1.9 Insuring Party: Lessor is the "Insuring Party" unless otherwise
stated herein. (See Paragraph 8 for further provisions.)
1.10 Real Estate Brokers: The following real estate brokers
(collectively, "the Brokers") and brokerage relationships exist in this
transaction and are consented to by the Parties (check applicable boxes):
Cornish & Xxxxx Commercial represents
[X] Lessor exclusively ("Lessor's Broker"); [ ] both Lessor and Lessee,
and
Xxxxx Xxxxx Associates represents
10
[X] Lessee exclusively ("Lessee's Broker"); [ ] both Lessee and Lessor.
(See Paragraph 15 for further provisions.)
1.11 Guarantor. The obligations of the Lessee under this Lease are to be
guaranteed by N/A (See Paragraph 37 for further provisions.)
1.12 Addenda. Attached hereto is an Addendum which constitutes a part of
this Lease.
2. Premises
2.1 Letting. Lessor hereby leases to Lessee, and Lessee hereby leases
from Lessor, the Premises, for the term, at the rental, and upon all of the
terms covenants and conditions set forth in this Lease. Unless otherwise
provided herein, any statement of square footage set forth in this Lease, or
that may have been used in calculating rental, is an approximation which Lessor
and Lessee agree is reasonable and the rental based thereon is not subject to
revision whether or not the actual square footage is more or less.
2.2 Condition. Lessor shall deliver the Premises to Lessee clean and
free of debris on the Commencement Date and warrants to Lessee that the existing
plumbing, fire sprinkler system, lighting, air conditioning, heating, roof and
loading doors, if any, in the Premises, other than those constructed by Lessee,
shall be in good operating condition on the Commencement Date. If a
non-compliance with said warranty exists as of the Commencement Date Lessor
shall, except as otherwise provided in this Lease, promptly after receipt of
written notice from Lessee setting forth with specificity the nature and extent
of such non-compliance, rectify same at Lessor's expense. If Lessee does not
give Lessor written notice of a non-compliance with this warranty within sixty
(60) days after the Commencement Date, correction of that non-compliance shall
be the obligation of Lessee at Lessee's sole cost and expense.
2.3 Compliance with Covenants, Restrictions and Building Code. Lessor
warrants to Lessee that the improvements on the Premises comply with all
applicable covenants or restrictions of record and codes, regulations and
ordinances, including without limitation, all building codes (including the
Americans with Disabilities Act of 1990) and Applicable Law, as defined in
Section 6.3 hereof, in effect on the Commencement Date. Said warranty does not
apply to the use to which Lessee will put the Premises or to any Alterations or
Utility Installations (as defined in Paragraph 7.3(a)) made or to be made by
Lessee. If the Premises do not comply with said warranty, Lessor shall, except
as otherwise provided in this Lease, promptly after receipt of written notice
from Lessee setting forth with specificity the nature and extent of such
non-compliance, rectify the same at Lessor's expense. If Lessee does not give
Lessor written notice of a non-compliance with this warranty within twelve (12)
months following the Commencement Date, correction of that non-compliance shall
be the obligation of Lessee at Lessee's sole cost and expense.
2.4 Acceptance of Premises. Lessee hereby acknowledges: (a) that it has
been advised by the Brokers to satisfy itself with respect to the present and
future suitability of the Premises for Lessee's intended use, (b) that Lessee
has made such investigation as it deems necessary with reference to such matters
and assumes all responsibility therefor as the same relate to Lessee's occupancy
of the Premises and/or the term of this Lease, and (c) that neither Lessor, nor
any of Lessor's agents, has made any oral or written representations or
warranties with respect to the said matters other than as set forth in this
Lease.
2.5 Lessee Prior Owner/Occupant. The warranties made by Lessor in this
Paragraph 2 shall be of no force or effect if immediately prior to the date set
forth in Paragraph 1.1 Lessee was
11
the owner or occupant of the Premises. In such event, Lessee shall, at Lessee's
sole cost and expense, correct any non-compliance of the Premises with said
warranties.
3. Term.
3.1 Term. The Commencement Date, Expiration Date and Original Term of
this Lease are as specified in Paragraph 1.3.
3.2 Early Possession. If Lessee totally or partially occupies the
Premises prior to the Commencement Date, the obligation to pay Base Rent shall
be abated for the period of such early possession. All other terms of this
Lease, however, (including but not limited to the obligations to pay Real
Property Taxes and insurance premiums and to maintain the Premises) shall be in
effect during such period. Any such early possession shall not affect nor
advance the Expiration Date of the Original Term.
3.3 Delay in Possession. If for any reason Lessor cannot deliver
possession of the Premises to Lessee as agreed herein by the Early Possession
Date, if one is specified in Paragraph 1.4, or, if no Early Possession Date is
specified, by the Commencement Date, Lessor shall not be subject to any
liability; therefor, nor shall such failure affect the validity of this Lease,
or the obligations of Lessee hereunder, or extend the term hereof, but in such
case, Lessee shall not, except as otherwise provided herein, be obligated to pay
rent or perform any other obligation of Lessee under the terms of this Lease
until Lessor delivers possession of the Premises to Lessee. If possession of the
Premises is not delivered to Lessee within sixty (60) days after the
Commencement Date, Lessee may, at its option, by notice in writing to Lessor
within ten (10) days thereafter, cancel this Lease, in which event the Parties
shall be discharged from all obligations hereunder; provided, however, that if
such written notice by Lessee is not received by Lessor within said ten (10) day
period, Lessee's right to cancel this Lease shall terminate and be of no further
force or effect. Except as may be otherwise provided, and regardless of when the
term actually commences, if possession is not tendered to Lessee when required
by this Lease and Lessee does not terminate this Lease, as aforesaid, the period
free of the obligation to pay Base Rent, if any, that Lessee would otherwise
have enjoyed shall run from the date of delivery of possession and continue for
a period equal to what Lessee would otherwise have enjoyed under the terms
hereof, but minus any days of delay caused by the acts, changes or omissions of
Lessee.
4. Rent.
4.1 Base Rent. Lessee shall cause payment of Base Rent and other rent or
charges, as the same may be adjusted from time to time, to be received by Lessor
in lawful money of the United States, without offset or deduction, on or before
the day on which it is due under the terms of this Lease. Base Rent and all
other rent and charges for any period during the term hereof which is for less
than one (1) full calendar month shall be prorated based upon the actual number
of days of the calendar month involved. Payment of Base Rent and other charges
shall be made to Lessor at its address stated herein or to such other persons or
at such other addresses as Lessor may from time to time designate in writing to
Lessee.
5. Security Deposit. Lessee shall deposit with Lessor upon execution hereof
the Security Deposit set forth in Paragraph 1.7 as security for Lessee's
faithful performance of Lessee's obligations under this Lease. If Lessee fails
to pay Base Rent or other rent or charges due hereunder or otherwise Defaults
under this Lease (as defined in Paragraph 13.1), Lessor may use, apply or retain
all or any portion of said Security Deposit for the payment of any amount due
Lessor or to reimburse or compensate Lessor for any liability, cost expense,
loss or damage (including attorneys' fees) which Lessor may suffer or incur by
reason thereof. If Lessor uses or applies all or any portion of said Security
Deposit, Lessee shall within ten (10) days after written request therefor
deposit moneys with Lessor sufficient to restore said Security Deposit to the
full
12
amount required by this Lease. Any time the Base Rent increases during the term
of this Lease, Lessee shall, upon written request from Lessor, deposit
additional moneys with Lessor sufficient to maintain the same ratio between the
Security Deposit and the Base Rent as those amounts are specified in the Basic
Provisions. Lessor shall not be required to keep all or any part of the Security
Deposit separate from its general accounts. Lessor shall, at the expiration or
earlier termination of the term hereof and after Lessee has vacated the
Premises, return to Lessee that portion of the Security Deposit not used or
applied by Lessor. Unless otherwise expressly agreed in writing by Lessor, no
part of the Security Deposit shall be considered to be held in trust, to bear
interest or other increment for its use, or to be prepayment for any moneys to
be paid by Lessee under this Lease.
6. Use.
6.1 Use. Lessee shall use and occupy the Premises only for the
purposes set forth in Paragraph 1.8. or any other use which is comparable
thereto, and for no other purpose. Lessee shall not use or permit the use of the
Premises in a manner that creates waste or a nuisance or that unreasonably
disturbs owners and/or occupants of or causes damage to neighboring premises or
properties.
6.2 Hazardous Substances.
(a) Reportable Uses Require Consent. The term "Hazardous
Substance" as used in this lease shall mean any product substance, chemical,
material or waste whose presence, nature, quantity and/or intensity of
existence, use, manufacture, disposal, transportation, spill, release or effect,
either by itself or in combination with other materials expected to be on the
Premises, is either: (i) potentially injurious to the public health, safety or
welfare, the environment or the Premises, (ii) regulated or monitored by any
governmental authority, or (iii) a basis for liability of Lessor to any
governmental agency or third party under any applicable statute or common law
theory. Hazardous Substance shall include, but not be limited to, hydrocarbons,
petroleum, gasoline, crude oil or any products, by-products or fractions
thereof. Lessee shall not engage in any activity in, on or about the Premises
which constitutes a Reportable Use (as hereinafter defined) of Hazardous
Substances without the express prior written consent of Lessor and compliance in
a timely manner (at Lessee's sole cost and expense) with all Applicable Law (as
defined in Paragraph 6.3). "Reportable Use" shall mean (i) the installation or
use of any above or below ground storage tank, (ii) the generation, possession,
storage, use, transportation, or disposal of a Hazardous Substance that requires
a permit from, or with respect to which a report, notice, registration or
business plan is required to be filed with, any governmental authority.
Reportable Use shall also include Lessee's being responsible for the presence
in, on or about the Premises of a Hazardous Substance with respect to which any
Applicable Law requires that a notice be given to persons entering or occupying
the Premises or neighboring properties. Notwithstanding the foregoing, Lessee
may without Lessor's prior consent, but in compliance with all Applicable Law,
use any ordinary and customary materials reasonably required to be used by
Lessee in the normal course of Lessee's business permitted on the Premises so
long as such use is not a Reportable Use and does not expose the Premises or
neighboring properties to any meaningful risk of contamination or damage or
expose Lessor to any liability therefor.
(b) Duty to Inform Lessor. If Lessee knows, or has reasonable
cause to believe, that a Hazardous Substance, or a condition involving or
resulting from same, has come to be located in, on, under or about the Premises,
other than as previously consented to by Lessor, Lessee shall immediately give
written notice of such fact to Lessor. Lessee shall also immediately give Lessor
a copy of any statement, report, notice, registration, application, permit,
business plan, license, claim, action or proceeding given to, or received from,
any governmental authority or private party, or persons entering or occupying
the Premises, concerning the presence, spill, release, discharge of, or exposure
to, any Hazardous Substance or contamination in, on, or about
13
the Premises, including but not limited to all such documents as may be involved
in any Reportable Uses involving the Premises.
(c) Indemnification. Lessee shall indemnify, protect, defend and
hold Lessor, its agents, employees, lenders and ground lessor, if any, and the
Premises harmless from and against any and all loss of rents and/or damages,
liabilities, judgments, costs, claims, liens, expenses, penalties, permits and
attorney's and consultant's fees arising out of or involving any Hazardous
Substance or storage tank brought onto the Premises by or for Lessee or under
Lessee's control in violation of Applicable Law. Lessee's obligations under this
Paragraph 6 shall include, but not be limited to, the effects of any
contamination or injury to person, property or the environment created or
suffered by Lessee, and the cost of investigation (including consultant's and
attorney's fees and testing), removal, remediation, restoration and/or abatement
thereof, or of any contamination therein involved, and shall survive the
expiration or earlier termination of this Lease. No termination, cancellation or
release agreement entered into by Lessor and Lessee shall release Lessee from
its obligations under this Lease with respect to Hazardous Substances or storage
tanks, unless specifically so agreed by Lessor in writing at the time of such
agreement.
6.3 Lessee's Compliance with Law. Except as otherwise provided in this
Lease, Lessee shall, at Lessee's sole cost and expense fully, diligently and in
a timely manner comply with all "Applicable Law", which term is used in this
Lease to include all laws, rules, regulations, ordinances, directives,
covenants, easements and restrictions of record, permits, the requirements of
any applicable fire insurance underwriter or rating bureau, and the reasonable
recommendations of Lessor's engineers and/or consultants, relating in any manner
to Lessee's use of the Premises (including but not limited to matters pertaining
to (i) industrial hygiene, (ii) environmental conditions on, in, under or about
the Premises, including soil and groundwater conditions, and (iii) the use,
generation, manufacture, production, installation, maintenance, removal,
transportation, storage, spill or release of any Hazardous Substance or storage
tank), now in effect or which may hereafter come into effect, and whether or not
reflecting a change in policy from any previously existing policy. Lessee shall
within five (5) days after receipt of Lessor's written request, provide Lessor
with copies of all documents and information, including but not limited to,
permits, registrations, manifests, applications, reports and certificates,
evidencing Lessee's compliance with any Applicable Law specified by Lessor, and
shall immediately, upon receipt, notify Lessor in writing (with copies of any
documents involved) of any actual claim notice, citation, warning, complaint or
report pertaining to or involving failure by Lessee or the Premises to comply
with any Applicable Law.
6.4 Inspection; Compliance. Lessor and Lessor's Lender(s) (as defined in
Paragraph 8.3(a)) shall have the right to enter the Premises at any time, in the
case of an emergency, and otherwise at reasonable times, for the purpose of
inspecting the condition of the Premises and for verifying compliance by Lessee
with this Lease and all Applicable Laws (as defined in Paragraph 6.3), and to
employ experts and/or consultants in connection therewith and/or to advise
Lessor with respect to Lessee's activities, including but not limited to the
installation, operation, use, monitoring, maintenance, or removal of any
Hazardous Substance or storage tank on or from the Premises. The costs and
expenses of any such inspections shall be paid by the party requesting same,
unless a Default or Breach of this Lease, violation of Applicable Law, or a
contamination, caused by Lessee is found to exist or be imminent, or, unless the
inspection is requested or ordered by a governmental authority as the result of
any such existing violation or contamination. In any such case, Lessee shall
upon request reimburse Lessor or Lessor's Lender, as the case may be, for the
costs and expenses of such inspections.
7. Maintenance; Repairs; Utility Installations; Trade Fixtures and
Alterations.
7.1 Lessee's Obligations.
14
(a) Subject to the provisions of Paragraphs 2.2 (Lessor's
warranty as to condition), 2.3 (Lessor's warranty as to compliance with
covenants, etc.), 7.2 (Lessor's obligations to repair), 9 (damage and
destruction), and 14 (condemnation), Lessee shall, at Lessee's sole cost and
expense and at all times, keep the Premises and every part thereof in good
order, condition and repair, structural and non-structural, so long as the need
for such repairs occurs as a result of Lessee's use, including, without limiting
the generality of the foregoing, all equipment or facilities serving the
Premises, such as plumbing, heating, air conditioning, ventilating, electrical,
lighting facilities, boilers, fired or unfired pressure vessels, fire sprinkler
and/or standpipe and hose or other automatic fire extinguishing system,
including fire alarm and/or smoke detection systems and equipment, fire
hydrants, fixtures, walls (interior and exterior), foundations, ceilings, roofs,
floors, windows, doors, plate glass, skylights, landscaping, driveways, parking
lots, fences, retaining walls, signs, sidewalks and parkways located in on,
about, or adjacent to the Premises. Lessee shall not cause or Permit any
Hazardous Substance to be spilled or released in, on, under or about the
Premises (including through the plumbing or sanitary sewer system) in violation
of Applicable Law, and shall promptly, at Lessee's expense, take all
investigatory and/or remedial action required by Applicable Law for the cleanup
of any contamination of, and for the maintenance, security and/or monitoring of,
the Premises, or neighboring properties, that was caused by Lessee, or
pertaining to or involving any Hazardous Substance and/or storage tank brought
onto the Premises by or for Lessee or under its control. Lessee, in keeping the
Premises in good order, condition and repair, shall exercise and perform good
maintenance practices. Lessee's obligations shall include restorations when
necessary to keep the Premises and all improvements thereon or a part thereof in
good order, condition and state of repair. If Lessee occupies the Premises for
more than seven (7) years, Lessor may require Lessee to repaint the exterior of
the buildings on the Premises as reasonably required, but not more frequently
than once every seven (7) years.
(b) Lessee shall, at Lessee's sole cost and expense, procure and
maintain contracts, with copies to Lessor, in customary form and substance for,
and with contractors specializing and experienced in, the inspection,
maintenance and service of the following equipment and improvements, if any,
located on the Premises: (i) heating, air conditioning and ventilation
equipment, (ii) boiler, fired or unfired pressure vessels, (iii) fire sprinkler
and/or standpipe and hose or other automatic fire extinguishing systems,
including fire alarm and/or smoke detection, (iv) landscaping and irrigation
systems, (v) roof covering and drain maintenance and (vi) asphalt and parking
lot maintenance.
7.2 Lessor's Obligations. Except for the warranties and agreements of
Lessor contained in Paragraph 2.2 (relating to condition of the Premises), 2.3
(relating to compliance with covenants, restrictions and building code), 9
(relating to destruction of the Premises) and 14 (relating to condemnation of
the Premises), it is intended by the Parties hereto that Lessor have no
obligation, in any manner whatsoever, to repair and maintain the Premises, the
improvements located thereon, or the equipment therein, whether structural or
non structural, all of which obligations are intended to be that of the Lessee
under Paragraph 7.1 hereof. It is the intention of the Parties that the terms of
this Lease govern the respective obligations of the Parties as to maintenance
and repair of the Premises. Lessee and Lessor expressly waive the benefit of any
statute now or hereafter in effect to the extent it is inconsistent with the
terms of this Lease with respect to, or which affords Lessee the right to make
repairs at the expense of Lessor or to terminate this Lease by reason of, any
needed repairs.
7.3 Utility Installations; Trade Fixtures; Alterations.
(a) Definitions; Consent Required. The term "Utility
Installations" is used in this Lease to refer to all carpeting, window
coverings, air lines, power panels, electrical distribution, security, fire
protection systems, communication systems, lighting fixtures, heating,
ventilating, and air conditioning equipment, plumbing, and fencing in, on or
about the Premises. The term
15
"Trade Fixtures" shall mean Lessee's machinery and equipment that can be removed
without doing material damage to the Premises. The term "Alterations" shall mean
any modification of the improvements on the Premises from that which are
provided by Lessor under the terms of this Lease other than Utility
Installations or Trade Fixtures, whether by addition or deletion. "Lessee Owned
Alterations and/or Utility Installations" are defined as Alterations and/or
Utility Installations made by Lessee that are not yet owned by Lessor as defined
in Paragraph 7.4(a). Lessee shall not make any Alterations or Utility
Installations in, on, under or about the Premises without Lessor's prior written
consent. Lessee may however make non-structural Utility installations to the
interior of the Premises (excluding the roof) as long as they are not visible
from the outside, do not involve puncturing, relocating or removing the roof or
any existing walls and the cumulative coat thereof during the term of this Lease
as extended does not exceed $25.000.
(b) Consent. Any Alterations or Utility Installations that Lessee
shall desire to make and which require the consent of the Lessor shall be
presented to Lessor in written form with proposed detailed plans. All consents
given by Lessor, whether by virtue of Paragraph 7.3(a) or by subsequent specific
consent, shall be deemed conditional upon: (i) Lessee's acquiring all applicable
permits required by governmental authorities, (ii) the furnishing of copies of
such permits together with a copy of the plans and specifications for the
Alteration or Utility Installation to Lessor prior to commencement of the work
thereon, and (iii) the compliance by Lessee with all conditions of said permits
in a prompt and expeditious manner. Any Alterations or Utility Installations by
Lessee during the term of this Lease shall be done in a good and workmanlike
manner with good and sufficient materials and in compliance with all Applicable
Law. Lessee shall promptly upon completion thereof furnish Lessor with as-built
plans and specifications therefor. Lessor may (but without obligation to do so)
condition its consent to any requested Alteration or Utility Installation that
costs $10,000 or more upon Lessee's providing Lessor with a lien and completion
bond in an amount equal to one and one-quarter times the estimated cost of such
Alteration or Utility Installation and/or upon Lessee's posting an additional
Security Deposit with Lessor under Paragraph 36 hereof.
(c) Indemnification. Lessee shall pay, when due, all claims for
labor or materials furnished or alleged to have been furnished to or for Lessee
at or for use on the Premises which claims are or may be secured by any
mechanics' or materialmen's lien against the Premises or any interest therein.
Lessee shall give Lessor not less than ten (10) days notice prior to the
commencement of any work in, on or about the Premises, and Lessor shall have the
right to post notices of non-responsibility in or on the Premises as provided by
law. If Lessee shall, in good faith, contest the validity of any such lien,
claim or demand, then Lessee shall, at its sole expense defend and protect
itself, Lessor and the Premises against the same and shall pay and satisfy any
such adverse judgment that may be rendered thereon before the enforcement
thereof against the Lessor or the Premises. If Lessor shall require, Lessee
shall furnish to Lessor a surety bond satisfactory to Lessor in an amount equal
to one and one-quarter times the amount of such contested lien, claim or demand
indemnifying Lessor against liability for the same as required by law for the
holding of the Premises free from the effect of such lien or claim. In addition,
Lessor may require Lessee to pay Lessor's reasonable attorney's fees and costs
in participating in such action if Lessor shall decide it is to its best
interest to do so.
7.4 Ownership; Removal; Surrender; and Restoration.
(a) Ownership. Subject to Lessor's right to require their removal
or become the owner thereof as hereinafter provided In this Paragraph 7.4, all
Alterations and Utility Additions made to the Premises by Lessee shall be the
property of and owned by Lessee, but considered a part of the Premises. Lessor
may, at any time and at its option, elect in writing to Lessee to be the owner
of all or any specified part of the Lessee Owned Alterations and Utility
Installations. Unless otherwise instructed per subparagraph 7.4(b) hereof, all
Lessee Owned Alterations and Utility
16
Installations shall, at the expiration or earlier termination of this Lease,
become the property of Lessor and remain upon and be surrendered by Lessee with
the Premises.
(b) Removal. Unless otherwise agreed in writing, Lessor may
require that any or all Lessee Owned Alterations or Utility Installations be
removed by the expiration of this Lease, notwithstanding their installation may
have been consented to by Lessor. Lessor may require the removal at any time of
all or any part of Lessee Owned Alterations or Utility Installations made
without the required consent of Lessor only if Lessee has requested Lessor's
decision on such removal in writing.
(c) Surrender/Restoration. Lessee shall surrender the Premises by
the end of the last day of the Lease term or any earlier termination date, with
all of the improvements, parts and surfaces thereof clean and free of debris and
in good operating order, condition and state of repair, ordinary wear and tear
excepted. "Ordinary wear and tear" shall not include any damage or deterioration
that would have been prevented by good maintenance practice or by Lessee
performing all of its obligations under this Lease. Except as otherwise agreed
or specified in writing by Lessor, the Premises, as surrendered, shall include
the Utility Installations. The obligation of Lessee shall include the repair of
any damage occasioned by the installation, maintenance or removal of Lessee's
Trade Fixtures, furnishings, equipment, and Alterations and/or Utility
Installations, as well as the removal of any storage tank installed by or for
Lessee, and the removal, replacement, or remediation of any soil, material, or
ground water contaminated by Lessee, all as may then be required by Applicable
Law and/or good practice. Lessee's Trade Fixtures shall remain the property of
Lessee and shall be removed by Lessee subject to its obligation to repair and
restore the Premises per this Lease.
8. Insurance; Indemnity.
8.1 Payment For Insurance. Regardless of whether the Lessor or Lessee
is the Insuring Party, Lessee shall pay for all insurance required under this
Paragraph 8 except to the extent of the cost attributable to liability insurance
carried by Lessor in excess of $1,000,000 per occurrence. Premiums for policy
periods commencing prior to or extending beyond the Lease term shall be prorated
to correspond to the Lease term. Payment shall be made by Lessee to Lessor
within ten (10) days following receipt of an invoice for any amount due.
8.2 Liability Insurance.
(a) Carried by Lessee. Lessee shall obtain and keep in force
during the term of this Lease a Commercial General Liability policy of insurance
protecting Lessee and Lessor (as an additional insured) against claims for
bodily injury, personal injury and property damage based upon, involving or
arising out of the ownership, use, occupancy or maintenance of the Premises and
all areas appurtenant thereto. Such insurance shall be on an occurrence basis
providing single limit coverage in an amount not less than $1,000,000 per
occurrence with an "Additional Insured-Managers or Lessors of Premises"
Endorsement and contain the "Amendment of the Pollution Exclusion" for damage
caused by heat, smoke or fumes from a hostile fire. The policy shall not contain
any intra-insured exclusions as between insured persons or organizations, but
shall include coverage for liability assumed under this Lease as an "insured
contract" for the performance of Lessee's indemnity obligations under this
Lease. The limits of said insurance required by this Lease or as carried by
Lessee shall not, however, limit the liability of Lessee nor relieve Lessee of
any obligation hereunder. All insurance to be carried by Lessee shall be primary
to and not contributory with any similar insurance carried by Lessor, whose
insurance shall be considered excess insurance only.
(b) Carried By Lessor. In the event Lessor is the insuring Party,
Lessor shall also maintain liability insurance described in Paragraph 8.2(a)
above, in addition to, and not in lieu of,
17
the insurance required to be maintained by Lessee. Lessee shall not be named as
an additional insured therein.
8.3 Property Insurance--Building, Improvements and Rental Value.
(a) Building and Improvements. The Insuring Party shall obtain
and keep in force during the term of this Lease a policy or policies in the name
of Lessor, with loss payable to Lessor and to the holders of any mortgages,
deeds of trust or ground leases on the Premises ("Lender(s)"), insuring loss or
damage to the Premises. The amount of such insurance shall be equal to the full
replacement cost of the Premises, as the same shall exist from time to time, or
the amount required by Lenders, but in no event more than the commercially
reasonable and available insurable value thereof if, by reason of the unique
nature or age of the improvements involved, such latter amount is less than full
replacement cost. If Lessor is the Insuring Party, however, Lessee Owned
Alterations and Utility Installations shall be insured by Lessee under Paragraph
8.4 rather than by Lessor. If the coverage is available and commercially
appropriate, such policy or polices shall insure against all risks of direct
physical loss or damage (except the perils of flood and/or earthquake unless
required by a Lender), including coverage for any additional costs resulting
from debris removal and reasonable amounts of coverage for the enforcement of
any ordinance or law regulating the reconstruction or replacement of any
undamaged sections of the Premises required to be demolished or removed by
reason of the enforcement of any building, zoning, safety or land use laws as
the result of a covered cause of loss. Said policy or policies shall also
contain an agreed valuation provision in lieu of any coinsurance clause, waiver
of subrogation, and inflation guard protection causing an increase in the annual
property insurance coverage amount by a factor of not less than the adjusted
U.S. Department of Labor Consumer Price Index for All Urban Consumers for the
city nearest to where the Premises are located. If such insurance coverage has a
deductible clause, the deductible amount shall not exceed $1,000 per occurrence,
and Lessee shall be liable for such deductible amount in the event of an Insured
Loss, as defined in Paragraph 9.1(c).
(b) Rental Value. The Insuring Party shall, in addition, obtain
and keep in force during the term of this Lease a policy or policies in the name
of Lessor, with loss payable to Lessor and Lender(s), insuring the loss of the
full rental and other charges payable by Lessee to Lessor under this Lease for
one (1) year (including all real estate taxes, insurance costs, and any
scheduled rental increases). Said insurance shall provide that in the event the
Lease is terminated by reason of an insured loss, the period of indemnity for
such coverage shall be extended beyond the date of the completion of repairs or
replacement of the Premises, to provide for one full year's loss of rental
revenues from the date of any such loss. Said insurance shall contain an agreed
valuation provision in lieu of any coinsurance clause, and the amount of
coverage shall be adjusted annually to reflect the projected rental income,
property taxes, insurance premium costs and other expenses, if any, otherwise
payable by Lessee, for the next twelve (12) month period. Lessee shall be liable
for any deductible amount in the event of such loss.
(c) Adjacent Premises. If the Premises are part of a larger
building, or if the Premises are part of a group of buildings owned by Lessor
which are adjacent to the Premises, the Lessee shall pay for any increase in the
premiums for the property insurance of such building or buildings if said
increase is caused by Lessee's acts, omissions, use or occupancy of the
Premises.
(d) Tenant's Improvements. If the Lessor is the Insuring Party,
the Lessor shall not be required to insure Lessee Owned Alterations and Utility
Installations unless the item in question has become the property of Lessor
under the terms of this Lease. If Lessee is the Insuring Party, the policy
carried by Lessee under this Paragraph 8.3 shall insure Lessee Owned Alterations
and Utility Installations.
18
8.4 Lessee's Property Insurance. Subject to the requirements of
Paragraph 8.5, Lessee at its cost shall by endorsement to a policy already
carried, maintain insurance coverage on all of Lessee's personal property,
Lessee Owned Alterations and Utility Installations in, on, or about the Premises
similar in coverage to that carried by the Insuring Party under Paragraph 8.3.
Such insurance shall be full replacement cost coverage with a deductible
reasonably acceptable to Lessor and Lessee. The proceeds from any such insurance
shall be used by Lessee for the replacement of personal property or the
restoration of Lessee Owned Alterations and Utility Installations. Lessee shall
be the Insuring Party with respect to the insurance required by this Paragraph
8.4 and shall provide Lessor with written evidence that such insurance is in
force.
8.5 Insurance Policies. Insurance required hereunder shall be in
companies duly licensed to transact business in the state where the Premises are
located, and maintaining during the policy term a "General Policyholders Rating"
of at least B+, V, or such other rating as may be required by a Lender having a
lien on the Premises, as set forth in the most current issue of "Best's
Insurance Guide." Lessee shall not do or permit to be done anything which shall
invalidate the insurance policies referred to in this Paragraph 8. If Lessee is
the Insuring Party, Lessee shall cause to be delivered to Lessor certified
copies of policies of such insurance or certificates evidencing the existence
and amounts of such insurance with the insureds and loss payable clauses as
required by this Lease. No such policy shall be cancelable or subject to
modification except after thirty (30) days prior written notice to Lessor.
Lessee shall at least thirty (30) days prior to the expiration of such policies,
furnish Lessor with evidence of renewals or "insurance binders" evidencing
renewal thereof, or Lessor may order such insurance and charge the cost thereof
to Lessee, which amount shall be payable by Lessee to Lessor upon demand. If the
Insuring Party shall fail to procure and maintain the insurance required to be
carried by the Insuring Party under this Paragraph 8, the other Party may, but
shall not be required to, procure and maintain the same, but at Lessee's
expense.
8.6 Waiver of Subrogation. Without affecting any other rights or
remedies, Lessee and Lessor ("Waiving Party") each hereby release and relieve
the other, and waive their entire right to recover damages (whether in contract
or in tort) against the other, for loss of or damage to the Waiving Party's
property arising out of or incident to the perils required to be insured against
under Paragraph 8. The effect of such releases and waivers of the right to
recover damages shall not be limited by the amount of insurance carried or
required, or by any deductibles applicable thereto.
8.7 Indemnity. Except for Lessor's negligence or that of its agents,
employees, contractors or invitees, and/or breach of express warranties, Lessee
shall indemnify, protect, defend and hold harmless the Premises, Lessor and its
agents, Lessor's master or ground lessor, partners and Lenders, from and against
any and all claims, loss of rents and/or damages, costs, liens, judgments,
penalties, permits, attorney's and consultant's fees, expenses and/or
liabilities arising out of, involving, or in dealing with, the occupancy of the
Premises by Lessee, the conduct of Lessee's business, any act, omission or
neglect of Lessee, its agents, contractors, employees or invitees, and out of
any Default or Breach by Lessee in the performance in a timely manner of any
obligation on Lessee's part to be performed under this Lease. The foregoing
shall include, but not be limited to, the defense or pursuit of any claim or any
action or proceeding involved therein, and whether or not (in the case of claims
made against Lessor) litigated and/or reduced to judgment, and whether well
founded or not, in case any action or proceeding be brought against Lessor by
reason of any of the foregoing matters, Lessee upon notice from Lessor shall
defend the same at Lessee's expense by counsel reasonably satisfactory to Lessor
and Lessor shall cooperate with Lessee in such defense. Lessor need not have
first paid any such claim in order to be indemnified.
8.8 Exemption of Lessor from Liability. Except to the extent caused by
the negligence or willful misconduct of Lessor, its agents, employees,
contractors or invitees, Lessor shall not be liable for injury or damage to the
person or goods, wares, merchandise or other property of
19
Lessee, Lessee's employees, contractors, invitees, customers, or any other
person in or about the Premises, whether such damage or injury is caused by or
results from fire, steam, electricity, gas, water or rain, or from the breakage,
leakage, obstruction or other defects of pipes, fire sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures, or from any other
cause, whether the said injury or damage results from conditions arising upon
the Premises or upon other portions of the building of which the Premises are a
part, or from other sources or places, and regardless of whether the cause of
such damage or injury or the means of repairing the same is accessible or not.
Lessor shall not be liable for any damages arising from any act or neglect of
any other tenant of Lessor.
9. Damage or Destruction.
9.1 Definitions.
(a) "Premises Partial Damage" shall mean damage or destruction to
the improvements on the Premises, other than Lessee Owned Alterations and
Utility Installations, the repair cost of which damage or destruction is less
than 50% of the then Replacement Cost of the Premises immediately prior to such
damage or destruction, excluding from such calculation the value of the land and
Lessee Owned Alterations and Utility Installations.
(b) "Premises Total Destruction" shall mean damage or destruction
to the Premises, other than Lessee Owned Alterations and Utility Installations
the repair cost of which damage or destruction is 50% or more of the then
Replacement Cost of the Premises immediately prior to such damage or
destruction, excluding from such calculation the value of the land and Lessee
Owned Alterations and Utility Installations.
(c) "Insured Loss" shall mean damage or destruction to
improvements on the Premises, other than Lessee Owned Alterations and Utility
installations, which was caused by an event required to be covered by the
insurance described in Paragraph 8.3(a), irrespective of any deductible amounts
or coverage limits involved.
(d) "Replacement Cost" shall mean the cost to repair or rebuild
the improvements owned by Lessor at the time of the occurrence to their
condition existing immediately prior thereto, including demolition, debris
removal and upgrading required by the operation of applicable building codes,
ordinances or laws, and without deduction for depreciation.
(e) "Hazardous Substance Condition" shall mean the occurrence or
discovery of a condition involving the presence of, or a contamination by, a
Hazardous Substance as defined in Paragraph 6.2(a), in, on, or under the
Premises.
9.2 Partial Damage--Insured Loss. If a Premises Partial Damage that is
an Insured Loss occurs, then Lessor shall, at Lessor's expense, repair such
damage (but not Lessee's Trade Fixtures or Lessee Owned Alterations and Utility
Installations} as soon as reasonably possible and this Lease shall continue in
full force and effect; provided, however, that Lessee shall, at Lessor's
election, make the repair of any damage or destruction the total cost to repair
of which is $10,000 or less, and, in such event, Lessor shall make the insurance
proceeds available to Lessee on a reasonable basis for that purpose.
Notwithstanding the foregoing, if the required insurance was not in force or the
insurance proceeds are not sufficient to effect such repair, the Insuring Party
shall promptly contribute the shortage in proceeds (except as to the deductible
which is Lessee's responsibility) as and when required to complete said repairs.
In the event, however, the shortage in proceeds was due to the fact that, by
reason of the unique nature of the improvements, full replacement cost insurance
coverage was not commercially reasonable and available, Lessor shall have no
obligation to pay for the shortage in insurance proceeds or to fully restore the
unique aspects of the Premises unless Lessee provides Lessor with the funds to
cover same, or adequate
20
assurance thereof, within ten (10) days following receipt of written notice of
such shortage and request therefor. If Lessor receives said funds or adequate
assurance thereof within said ten (10) day period, the party responsible for
making the repairs shall complete them as soon as reasonably possible and this
Lease shall remain in full force and effect. If Lessor does not receive such
funds or assurance within said period, Lessor may nevertheless elect by written
notice to Lessee within ten (10) days thereafter to make such restoration and
repair as is commercially reasonable with Lessor paying any shortage in
proceeds, in which case this Lease shall remain in full force and effect. If in
such case Lessor does not so elect, then this Lease shall terminate as of the
date of the occurrence of the damage or destruction. Unless otherwise agreed,
Lessee shall in no event have any right to reimbursement from Lessor for any
funds contributed by Lessee to repair any such damage or destruction. Premises
Partial Damage due to flood or earthquake shall be subject to Paragraph 9.3
rather than Paragraph 9.2, notwithstanding that there may be some insurance
coverage, but the net proceeds of any such insurance shall be made available for
the repairs if made by either Party.
9.3 Partial Damage--Uninsured Loss. If a Premises Partial Damage that is
not an Insured Loss occurs, unless caused by negligent or willful action, Lessee
(in which event Lessee shall make the repairs at Lessee's expense and this Lease
shall continue in full force and effect, but subject to Lessor's rights under
Paragraph 13), Lessor may at Lessor's option, either: (i) repair such damage as
soon as reasonably possible at Lessor's expense, in which event this Lease shall
continue in full force and effect, or (ii) give written notice to Lessee within
thirty (30) days after receipt by Lessor of knowledge of the occurrence of such
damage of Lessor's desire to terminate this Lease as of the date sixty (60) days
following the giving of such notice. In the event Lessor elects to give such
notice of Lessor's intention to terminate this Lease, Lessee shall have the
right within ten (10) days after the receipt of such notice to give written
notice to Lessor of Lessee's commitment to pay for the repair of such damage
totally at Lessee's expense and without reimbursement from Lessor. Lessee shall
provide Lessor with the required funds or satisfactory assurance thereof within
thirty (30) days following Lessee's said commitment. In such event this lease
shall continue in full force and effect, and Lessor shall proceed to make such
repairs as soon as reasonably possible and the required funds are available. If
Lessee does not give such notice and provide the funds or assurance thereof
within the times specified above, this Lease shall terminate as of the date
specified in Lessor's notice of termination.
9.4 Total Destruction. Notwithstanding any other provision hereof, if a
Premises Total Destruction occurs (including any destruction required by an
authorized public authority), this Lease shall terminate sixty (60) days
following the date of such Premises Total Destruction, whether or not the damage
or destruction is an Insured Loss or was caused by negligent or willful act of
Lessee. In the event, however, that the damage or destruction was caused by the
negligence or willful misconduct of Lessee, Lessor shall have the right to
recover Lessor's damages from Lessee except as released and waived in Paragraph
8.6.
9.5 Damage Near End of Term. If at any time during the last six (6)
months of the term of this Lease there is damage for which the cost to repair
exceeds one (1) month's Base Rent, whether or not an Insured Loss, Lessor may,
at Lessor's option, terminate this Lease effective sixty (60) days following the
date of occurrence of such damage by giving written notice to Lessee of Lessor's
election to do so within thirty (30) days after the date of occurrence of such
damage. Provided, however, if Lessee at that time has an exercisable option to
extend this Lease or to purchase the Premises, then Lessor may preserve this
Lease by, within twenty (20) days following the occurrence of the damage, or
before the expiration of the time provided in such option for its exercise,
whichever is earlier ("Exercise Period"), (i) exercising such option and (ii)
providing Lessor with any shortage in insurance proceeds (or adequate assurance
thereof) needed to make the repairs. If Lessee duly exercises such option during
said Exercise Period and provides Lessor with funds (or adequate assurance
thereof) to cover any shortage in insurance proceeds, Lessor shall, at Lessor's
expense, repair such damage as soon as reasonably possible and this Lease shall
21
continue in full force and effect. If Lessee fails to exercise such option and
provide such funds or assurance during said exercise period, then Lessor may at
Lessor's option terminate this lease as of the expiration of said sixty (60) day
period following the occurrence of such damage by giving written notice to
Lessee of Lessor's election to do so within ten (10) days after the expiration
of the Exercise Period, notwithstanding any term or provision in the grant of
option to the contrary.
9.6 Abatement of Rent; Lessee's Remedies.
(a) In the event of damage described in Paragraph 9.2 (Partial
Damage--Insured), whether or not Lessor or Lessee repairs or restores the
Premises, the Base Rent, Real Property Taxes, insurance premiums, and other
charges, if any, payable by Lessee hereunder for the period during which such
damage, its repair or the restoration continues (not to exceed the period for
which rental value insurance is required under Paragraph 8.3(b))1, shall be
abated in proportion to the degree to which Lessee's use of the Premises is
impaired. Except for abatement of Base Rent, Real Property Taxes, insurance
premiums and other charges, if any, as aforesaid, all other obligations of
Lessee hereunder shall be performed by Lessee, and Lessee shall have no claim
against Lessor for any damage suffered by reason of any such repair or
restoration
(b) If Lessor shall be obligated to repair or restore the
Premises under the provisions of this Paragraph 9 and shall not commence, in a
substantial and meaningful way, the repair or restoration of the Premises within
ninety (90) days after such obligation shall accrue, Lessee may, at any time
prior to the commencement of such repair or restoration, give written notice to
Lessor and to any Lenders of which Lessee has actual notice of Lessee's election
to terminate this Lease on a date not less than sixty (60) days following the
giving of such notice. If Lessee gives such notice to Lessor and such Lenders
and such repair or restoration is not commenced within thirty (30) days after
receipt of such notice, this Lease shall terminate as of the date specified in
said notice. If Lessor or a Lender commences the repair or restoration of the
Premises within thirty (30) days after receipt of such notice, this Lease shall
continue in full force and effect. "Commence" as used in this Paragraph shall
mean either the unconditional authorization of the preparation of the required
plans, or the beginning of the actual work on the Premises, whichever first
occurs.
9.7 Hazardous Substance Conditions. If a Hazardous Substance
Condition occurs, unless Lessee is responsible therefor (in which case Lessee
shall make the investigation and remediation thereof required by Applicable Law
and this Lease shall continue in full force and effect, but subject to Lessor's
rights under Paragraph 13), Lessor shall investigate and remediate such
Hazardous Substance Condition, if required, as soon as reasonably possible at
Lessor's expense, in which event this Lease shall continue in full force and
effect. If Lessor's remediation will take more than ninety (90) days, or if
Lessee's ability to conduct its operations on the Premises is, in Lessee's
reasonable estimation, materially impaired by the remediation, Lessee shall have
the right to give written notice to Lessor of Lessee's election to terminate
this Lease. If Lessee does not elect to terminate, this Lease shall continue in
full force and effect, and Lessor shall proceed to make such investigation and
remediation as soon as reasonably possible. If a Hazardous Substance Condition
occurs for which Lessee is not responsible, there shall be abatement of Lessee's
obligations under this Lease to the same extent as provided in Paragraph 9.6(a)
until the remediation is complete.
9.8 Termination--Advance Payments. Upon termination of this Lease
pursuant to this Paragraph 9, an equitable adjustment shall be made concerning
advance Base Rent and any other advance payments made by Lessee to Lessor.
Lessor shall in addition promptly return to Lessee so much of Lessee's Security
Deposit as has not been, or is not then required to be, used by Lessor under the
terms of this Lease.
22
9.9 Waive Statutes. Lessor and Lessee agree that the terms of this Lease
shall govern the effect of any damage to or destruction of the Premises with
respect to the termination of this Lease and hereby waive the provisions of any
present or future statute to the extent inconsistent herewith.
10. Real Property Taxes.
10.1 (a} Payment of Taxes. Lessee shall Pay the Real Property Taxes, as
defined in Paragraph 10.2, applicable to the Premises during the term of this
Lease. Subject to Paragraph 10.1(b), all such payments shall be made at least
ten (10) days prior to the delinquency date of the applicable installment.
Lessee shall promptly furnish Lessor with satisfactory evidence that such taxes
have been paid. If any such taxes to be paid by Lessee shall cover any period of
time prior to or after the expiration or earlier termination of the term hereof,
Lessee's share of such taxes shall be equitably prorated to cover only the
period of time within the tax fiscal year this Lease is in effect, and Lessor
shall reimburse Lessee for any overpayment after such proration. If Lessee shall
fail to pay any Real Property Taxes required by this Lease to be paid by Lessee,
Lessor shall have the right to pay the same, and Lessee shall reimburse Lessor
therefor upon demand
(b) Advance Payment. In order to insure payment when due and
before delinquency of any or all Real Property Taxes, Lessor reserves the right,
at Lessor's option, to estimate the current Real Property Taxes applicable to
the Premises and to require such current year's Real Property Taxes to be paid
in advance to Lessor by Lessee either (i) in a lump sum amount equal to the
installment due, at least twenty (20) days prior to the applicable delinquency
date, or {ii) monthly in advance with the payment of the Base Rent. If Lessor
elects to require payment monthly in advance, the monthly payment shall be that
equal monthly amount which, over the number of months remaining before the month
in which the applicable tax installment would become delinquent (and without
interest thereon), would provide a fund large enough to fully discharge before
delinquency the estimated installment of taxes so be paid. When the actual
amount of the applicable tax xxxx is known, the amount of such equal monthly
advance payment shall be adjusted as required to provide the funds needed to pay
the applicable taxes before delinquency. If the amounts paid to Lessor by Lessee
under the provisions of this Paragraph are insufficient to discharge the
obligations of Lessee to pay such Real Property Taxes as the same become due,
Lessee shall pay to Lessor upon Lessor's demand such additional sums as are
necessary to pay such obligations. All moneys paid to Lessor under this
Paragraph may be intermingled with other moneys of Lessor and shall not bear
interest.
10.2 Definition of "Real Property Taxes." As used herein, the term "Real
Property Taxes" shall include any form of real estate tax or assessment,
general, special, ordinary or extraordinary, and any license fee, commercial
rental tax, improvement bond or bonds, levy or tax (other than inheritance,
personal income or estate taxes) imposed upon the Premises by any authority
having the direct or indirect power to tax, including any city, state or federal
government, or any school, agricultural, sanitary, fire, street, drainage or
other improvement district thereof, levied against any legal or equitable
interest of Lessor in the Premises or in the real property of which the Premises
are a part, Lessor's right to rent or other income therefrom and/or Lessor's
business of leasing the Premises. The term "Real Property Taxes" shall also
include any tax, fee, levy, assessment or charge, or any increase therein,
imposed by reason of events occurring, or changes in applicable law taking
effect, during the term of this Lease, including but not limited to the
execution of this Lease, or any modification, amendment or transfer thereof, and
whether or not contemplated by the Parties.
10.3 Joint Assessment. If the Premises are not separately assessed,
Lessee's liability shall be an equitable proportion of the Real Property Taxes
for all of the land and improvements included within the tax parcel assessed,
such proportion to be determined by Lessor from the respective valuations
assigned in the assessor's work sheets or such other information as may be
23
reasonably available. Lessor's reasonable determination thereof, in good faith,
shall be conclusive.
10.4 Personal Property Taxes. Lessee shall pay prior to delinquency all
taxes assessed against and levied upon Lessee Owned Alterations, Utility
Installations, Trade Fixtures, furnishings, equipment and all personal property
of Lessee contained in the Premises or elsewhere. When possible, Lessee shall
cause its Trade Fixtures, furnishings, equipment and all other personal property
to be assessed and billed separately from the real property of Lessor. If any of
Lessee's said personal property shall be assessed with Lessor's real property,
Lessee shall pay Lessor the taxes attributable to Lessee within ten (10) days
after receipt of a written statement setting forth the taxes applicable to
Lessee's property or, at Lessor's option, as provided in Paragraph 10.1(b).
11. Utilities. Lessee shall pay for all water, gas, heat, light, power,
telephone, trash disposal and other utilities and services supplied to the
Premises, together with any taxes thereon. If any such services are not
separately metered to Lessee, Lessee shall pay a reasonable proportion, to be
determined by Lessor, of all charges jointly metered with other premises.
12. Assignment and Subletting.
12.1 Lessor's Consent Required.
(a) Lessee shall not voluntarily or by operation of law assign,
transfer, mortgage or otherwise transfer or encumber (collectively,
"assignment") or sublet all or any part of Lessee's interest in this Lease or in
the Premises without Lessor's prior written consent given under and subject to
the terms of Paragraph 36, which consent shall not be unreasonably withheld or
delayed.
12.2 Terms and Conditions Applicable to Assignment and Subletting.
(a) Regardless of Lessor's consent, any assignment or subletting
shall not: (i) be effective without the express written assumption by such
assignee or sublessee of the obligations of Lessee under this Lease, (ii)
release Lessee of any obligations hereunder, or (iii) alter the primary
liability of Lessee for the payment of Base Rent and other sums due Lessor
hereunder or for the performance of any other obligations to be performed by
Lessee under this Lease.
(b) Lessor may accept any rent or performance of Lessee's
obligations from any person other than Lessee pending approval or disapproval of
an assignment. Neither a delay in the approval or disapproval of such assignment
nor the acceptance of any rent or performance shall constitute a waiver or
estoppel of Lessor's right to exercise its remedies for the Default or Breach by
Lessee of any of the terms, covenants or conditions of this Lease.
(c) The consent of Lessor to any assignment or subletting shall
not constitute a consent to any subsequent assignment or subletting by Lessee or
to any subsequent or successive assignment or subletting by the sublessee.
However, Lessor may consent to subsequent sublettings and assignments of the
sublease or any amendments or modifications thereto without notifying Lessee or
anyone else liable on the Lease or sublease and without obtaining their consent,
and such action shall not relieve such persons from liability under this Lease
or sublease.
(d) In the event of any Default or Breach of Lessee's obligations
under this Lease, Lessor may proceed directly against Lessee, any Guarantors or
any one else responsible for the performance of the Lessee's obligations under
this Lease, including the sublessee, without first exhausting Lessor's remedies
against any other person or entity responsible therefor to Lessor, or any
security held by Lessor or Lessee.
24
(e) Each request for consent to an assignment or subletting shall
be in writing, accompanied by information relevant to Lessor's determination as
to the financial and operational responsibility and appropriateness of the
proposed assignee or sublessee, including but not limited to the intended use
and/or required modification of the Premises. Lessee agrees to provide Lessor
with such other or additional information and/or documentation as may be
reasonably requested by Lessor.
(f) Any assignee of, or sublessee under, this Lease shall, by
reason of accepting such assignment or entering into such sublease, be deemed,
for the benefit of Lessor, to have assumed and agreed to conform and comply with
each and every term, covenant, condition and obligation herein to be observed or
performed by Lessee during the term of said assignment or sublease, other than
such obligations as are contrary to or inconsistent with provisions of an
assignment or sublease to which Lessor has specifically consented in writing.
12.3 Additional Terms and Conditions Applicable to Subletting. The
following terms and conditions shall apply to any subletting by Lessee of all or
any part of the Premises and shall be deemed included in all subleases under
this Lease whether or not expressly incorporated therein:
(a) Lessee hereby assigns and transfers to Lessor all of Lessee's
interest in all rentals and income arising from any sublease of all or a portion
of the Premises heretofore or hereafter made by Lessee, and Lessor may collect
such rent and income and apply same toward Lessee's obligations under this
Lease; provided, however, that until a Breach (as defined in Paragraph 13.1)
shall occur in the performance of Lessee's obligations under this Lease, Lessee
may, except as otherwise provided in this Lease, receive, collect and enjoy the
rents accruing under such sublease. Lessor shall not, by reason of this or any
other assignment of such sublease to Lessor, nor by reason of the collection of
the rents from a sublessee, be deemed liable to the sublessee for any failure of
Lessee to perform and comply with any of Lessee's obligations to such sublessee
under such sublease. Lessee hereby irrevocably authorizes and directs any such
sublessee, upon receipt of a written notice from Lessor stating that a Breach
exists in the performance of Lessee's obligations under this Lease, to pay to
Lessor the rents and other charges due and to become due under the sublease.
Sublessee shall rely upon any such statement and request from Lessor and shall
pay such rents and other charges to Lessor without any obligation or right to
inquire as to whether such Breach exists and notwithstanding any notice from or
claim from Lessee to the contrary. Lessee shall have no right or claim against
said sublessee, or, until the Breach has been cured, against Lessor, for any
such rents and other charges so paid by said sublessee to Lessor.
(b) DELETED
(c) Any matter or thing requiring the consent of the sublessor
under a sublease shall also require the consent of Lessor herein.
(d) No sublessee shall further assign or sublet all or any part
of the Premises without Lessor's prior written consent.
(e) Lessor shall deliver a copy of any notice of Default or
Breach by Lessee to the sublessee, who shall have the right to cure the Default
of Lessee within the grace period, if any, specified in such notice. The
sublessee shall have a right of reimbursement and offset from and against Lessee
for any such Defaults cured by the sublessee.
13. Default; Breach; Remedies.
13.1 Default; Breach. Lessor and Lessee agree that if an attorney is
consulted by either party in connection with a Default or Breach (as hereinafter
defined), $350.00 is a reasonable
25
minimum sum per such occurrence for legal services and costs in the preparation
and service of a notice of Default, and that either party may include the cost
of such services and costs in said notice as due and payable to cure said
Default. A "Default" is defined as a failure by either party to observe, comply
with or perform any of the terms, covenants, conditions or rules applicable to
Lessee under this Lease. A "Breach" is defined as the occurrence of any one or
more of the following Defaults, and, where a grace period for cure after notice
is specified herein, the failure by either party to cure such Default prior to
the expiration of the applicable grace period, and shall entitle Lessor to
pursue the remedies set forth in Paragraphs 13.2 and/or 13.3.
(a) The vacating of the Premises without the intention to
reoccupy same, or the abandonment of the Premises.
(b) Except as expressly otherwise provided in the Lease, the
failure by Lessee to make any payment of Base Rent or any other monetary payment
required to be made by Lessee hereunder, whether to Lessor or to a third party,
as and when due, the failure by Lessee to provide Lessor with reasonable
evidence of insurance or surety bond required under this Lease, or the failure
of Lessee to fulfill any obligation under this Lease which endangers or
threatens life or property, where such failure continues for a period of three
(3) days following receipt of written notice thereof by or on behalf of Lessor
to Lessee.
(c) Except as expressly otherwise provided in this Lease, the
failure by Lessee to provide Lessor with reasonable written evidence (in duly
executed original form, if applicable) of (i) compliance with applicable law per
Paragraph 6.3, (ii) the inspection, maintenance and service contracts: required
under Paragraph 7.1(b), (iii) the recission of an unauthorized assignment or
subletting per Paragraph 12.1(b), (iv) a Tenancy Statement per Paragraphs 16 or
37, (v) the subordination or non-subordination of this Lease per Paragraph 30,
(vi) the guaranty of the performance of Lessee's obligations under this Lease if
required under Paragraphs 1.11 and 37, (vii) the execution of any document
requested under Paragraph 42 (easements) or (viii) any other documentation or
information which Lessor may reasonably require of Lessee under the terms of
this Lease, where any such failure continues for a period of twenty (20) days
following receipt of written notice by or on behalf of Lessor to Lessee.
(d) A Default by Lessee as to the terms, covenants, conditions or
provisions of this Lease, or of the rules adopted under Paragraph 40 hereof that
are to be observed, complied with or performed by Lessee, other than those
described in subparagraphs (a), (b) or (c), above, where such Default continues
for a period of thirty (30) days after written notice thereof by or on behalf of
Lessor to Lessee; provided, however, that if the nature of Lessee's Default is
such that more than thirty (30) days are reasonably required for its cure, then
it shall not be deemed to be a Breach of this Lease by Lessee if Lessee
commences such cure within said thirty (30) day period and thereafter diligently
prosecutes such cure to completion.
(e) The occurrence of any of the following events: (i) The making
by Lessee of any general arrangement or assignment for the benefit of creditors;
(ii) Lessee's becoming a "debtor" as defined in 11 U.S.C. Section 101 or any
successor statute thereto (unless, in the case of a petition filed against
Lessee, the same is dismissed within sixty (60) days); (iii) the appointment of
a trustee or receiver to take possession of substantially all of Lessee's assets
located at the Premises or of Lessee's interest in this Lease, where possession
is not restored to Lessee within sixty (60) days; or (iv) the attachment,
execution or other judicial seizure of substantially all of Lessee's assets
located at the Premises or of Lessee's interest in this Lease, where such
seizure is not discharged within sixty (60} days; provided, however, in the
event that any provision of this subparagraph (e) is contrary to any applicable
law, such provision shall be of no force or effect, and not affect the validity
of the remaining provisions.
26
(f) The discovery by Lessor that any financial statement given to
Lessor by Lessee or any Guarantor of Lessee's obligations hereunder was
materially false.
(g) If the performance of Lessee's obligations under this Lease
is guaranteed: (i) the death of a guarantor, (ii) the termination of a
guarantor's liability with respect to this Lease other than in accordance with
the forms of such guaranty, (iii) a guarantor's becoming insolvent or the
subject of a bankruptcy filing, (iv) a guarantor's refusal to honor the
guaranty, or (v) a guarantor's breach of its guaranty obligation on an
anticipatory breach basis and Lessee's failure, within sixty (60) days following
written notice by or on behalf of Lessor to Lessee of any such event, to provide
Lessor with written alternative assurance or security, which, when coupled with
the then existing resources of Lessee, equals or exceeds the combined financial
resources of Lessee and the guarantors that existed at the time of execution of
this Lease.
13.2 Remedies. If Lessee fails to perform any affirmative duty or
obligation of Lessee under this Lease, within ten (10) days after written
notice to Lessee (or in case of an emergency, without notice), Lessor may at its
option (but without obligation to do so), perform such duty or obligation on
Lessee's behalf including but not limited to the obtaining of reasonably
required bonds, insurance policies, or governmental licenses, permits or
approvals. The costs and expenses of any such performance by Lessor shall be due
and payable by Lessee to Lessor upon invoice therefor. If any check given to
Lessor by Lessee shall not be honored by the bank upon which it is drawn,
Lessor, at its option, may require all future payments to be made under this
Lease by Lessee to be made only by cashier's check. In the event of a Breach of
this Lease by Lessee, as defined in Paragraph 13.1, with or without further
notice or demand, and without limiting Lessor in the exercise of any right or
remedy which Lessor may have by reason of such Breach, Lessor may:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease and the term hereof shall terminate and
Lessee shall immediately surrender possession of the Premises to Lessor. In such
event Lessor shall be entitled to recover from Lessee: (i) the worth at the time
of the award of the unpaid rent which had been earned at the time of
termination; (ii) the worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss that the Lessee proves could have
been reasonably avoided; (iii) the worth at the time of award of the amount by
which the unpaid rent for the balance of the term after the time of award
exceeds the amount of such rental loss that the Lessee proves could be
reasonably avoided; and (iv) any other amount necessary to compensate Lessor for
all the detriment proximately caused by the Lessee's failure to perform its
obligations under this Lease or which in the ordinary course of things would be
likely to result therefrom, including but not limited to the cost of recovering
possession of the Premises, expenses of reletting, including necessary
renovation and alteration of the Premises, reasonable attorney's' fees, and that
portion of the leasing commission paid by Lessor applicable to the unexpired
term of this Lease. The worth at the time of award of the amount referred to in
provision (iii) of the prior sentence shall be computed by discounting such
amount at the discount rate of the Federal Reserve Bank of San Francisco at the
time of award plus one percent. Efforts by Lessor to mitigate damages caused by
Lessee's Default or Breach of this Lease shall not waive Lessor's right to
recover damages under this Paragraph. If termination of this Lease is obtained
through the provisional remedy of unlawful detainer, Lessor shall have the right
to recover in such proceeding the unpaid rent and damages as are recoverable
therein, or Lessor may reserve therein the right to recover all or any part
thereof in a separate suit for such rent and/or damages. If a notice and grace
period required under subparagraphs 13.1(b), (c) or (d) was not previously
given, a notice to pay rent or quit, or to perform or quit, as the case may be,
given to Lessee under any statute authorizing the forfeiture of leases for
unlawful detainer shall also constitute the applicable notice for grace period
purposes required by subparagraphs 13.1 (b), (c) or (d). In such case, the
applicable grace period under subparagraphs 13.1(b), (c) or (d) and under the
unlawful detainer statute shall run concurrently after the one such statutory
notice, and the
27
failure of Lessee to cure the Default within the greater of the two such grace
periods shall constitute both an unlawful detainer and a Breach of this Lease
entitling Lessor to the remedies provided for in this Lease and/or by said
statute.
(b) Continue the Lease and Lessee's right to possession in effect
(in California under California Civil Code Section 1951.4) after Lessee's Breach
and abandonment and recover the rent as it becomes due, provided Lessee has the
right to sublet or assign, subject only to reasonable limitations. See
Paragraphs 12 and 36 for the limitations on assignment and subletting which
limitations Lessee and Lessor agree are reasonable. Acts of maintenance or
preservation, efforts to relet the Premises, or the appointment of a receiver to
protect the Lessor's interest under the Lease, shall not constitute a
termination of the Lessee's right to possession.
(c) Pursue any other remedy now or hereafter available to Lessor
under the laws or judicial decisions of the state wherein the Premises are
located.
(d) The expiration or termination of this Lease and/or the
termination of Lessee's right to possession shall not relieve Lessee from
liability under any indemnity provisions of this Lease as to matters occurring
or accruing during the term hereof or by reason of Lessee's occupancy of the
Premises.
13.3 Inducement Recapture In Event Of Breach. Any agreement by Lessor
for free or abated rent or other charges applicable to the Premises, or for the
giving or paying by Lessor to or for Lessee of any cash or other bonus,
inducement or consideration for Lessee's entering into this Lease, all of which
concessions are hereinafter referred to as "Inducement Provisions," shall be
deemed conditioned upon Lessee's full and faithful performance of all of the
terms, covenants and conditions of this Lease to be performed or observed by
Lessee during the term hereof as the same may be extended. Upon the occurrence
of a Breach of this Lease by Lessee, as defined in Paragraph 13.1, any such
Inducement Provision shall automatically be deemed deleted from this Lease and
of no further force or effect, and any rent, other charge, bonus, inducement or
consideration therefore abated, given or paid by Lessor under such an Inducement
Provision shall be immediately due and payable by Lessee to Lessor, and
recoverable by Lessor as additional rent due under this Lease, notwithstanding
any subsequent cure of said Breach by Lessee. The acceptance by Lessor of rent
or the cure of the Breach which initiated the operation of this Paragraph shall
not be deemed a waiver by Lessor of the provisions of this Paragraph unless
specifically so stated in writing by Lessor at the time of such acceptance.
13.4 Late Charges. Lessee hereby acknowledges that late payment by
Lessee to Lessor of rent and other sums due hereunder will cause Lessor to incur
costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed upon
Lessor by the terms of any ground lease, mortgage or trust deed covering the
Premises. Accordingly, if any installment of rent or any other sum due from
Lessee shall not be received by Lessor or Lessor's designee within five (5) days
after receipt of notice from Lessor that such amount shall be due, then Lessee
shall pay to Lessor a late charge equal to six percent (6%) of such overdue
amount. The parties hereby agree that such late charge represents a fair and
reasonable estimate of the costs Lessor will incur by reason of late payment by
Lessee. Acceptance of such late charge by Lessor shall in no event constitute a
waiver of Lessee's Default or Breach with respect to such overdue amount, nor
prevent Lessor from exercising any of the other rights and remedies granted
hereunder. In the event that a late charge is payable hereunder, whether or not
collected, for three (3) consecutive installments of Base Rent, then
notwithstanding Paragraph 4.1 or any other provision of this Lease to the
contrary, Base Rent shall, at Lessor's option. become due and payable quarterly
in advance.
28
13.5 Breach by Lessor. Lessor shall not be deemed in breach of this
Lease unless Lessor fails within a reasonable time to perform an obligation
required to be performed by Lessor. For purposes of this Paragraph 13.5, a
reasonable time shall in no event be less than thirty (30) days after receipt by
Lessor, and by the holders of any ground lease, mortgage or deed of trust
covering the Premises whose name and address shall have been furnished Lessee in
writing for such purpose, of written notice specifying wherein such obligation
of Lessor has not been performed: provided, however, that if the nature of
Lessor's obligation is such that more than thirty (30) days after such notice
are reasonably required for its performance, then Lessor shall not be in breach
of this Lease if performance is commenced within such thirty (30) day period and
thereafter diligently pursued to completion.
14. Condemnation. If the Premises or any portion thereof are taken under the
power of eminent domain or sold under the threat of the exercise of said power
(all of which are herein called "condemnation"), this Lease shall terminate as
to the part so taken as of the date the condemning authority takes title or
possession, whichever first occurs. If more than ten percent (10%) of the floor
area of the Premises, or more than twenty-five percent (25%) of the land area
not occupied by any building, is taken by condemnation, Lessee may, at Lessee's
option, to be exercised in writing within ten (10) days after Lessor shall have
given Lessee written notice of such taking (or in the absence of such notice,
within ten (10) days after the condemning authority shall have taken possession)
terminate this Lease as of the date the condemning authority takes such
possession. If Lessee does not terminate this Lease in accordance with the
foregoing, this Lease shall remain in full force and effect as to the portion of
the Premises remaining, except that the Base Rent shall be reduced in the same
proportion as the rentable floor area of the Premises taken bears to the total
rentable floor area of the building located on the Premises. No reduction of
Base Rent shall occur if the only portion of the Premises taken is land on which
there is no building. Any award for the taking of all or any part of the
Premises under the power of eminent domain or any payment made under threat of
the exercise of such power shall be the property of Lessor, whether such award
shall be made as compensation for diminution in value of the leasehold or for
the taking of the fee, or as severance damages; provided, however, that Lessee
shall be entitled to any compensation, separately awarded to Lessee for Lessee's
relocation and moving expenses and/or loss of Lessee's Trade Fixtures. In the
event that this Lease is not terminated by reason of such condemnation, Lessor
shall to the extent of its net severance damages received, over and above the
legal and other expenses incurred by Lessor in the condemnation matter, repair
any damage to the Premises caused by such condemnation, except to the extent
that Lessee has been reimbursed therefor by the condemning authority. Lessee
shall be responsible for the payment of any amount in excess of such net
severance damages required to complete such repair.
15. Broker's Fee.
15.1 The Brokers named in Paragraph 1.10 are the procuring causes of
this Lease.
15.2 Upon execution of this Lease by both Parties, Lessor shall pay to
said Brokers jointly, or in such separate shares as they may mutually designate
in writing, a fee as set forth in a separate written agreement between Lessor
and said Brokers for brokerage services rendered by said Brokers to Lessor in
this transaction.
SECTIONS 15.3 AND 15.4 DELETED
15.5 Lessee and Lessor each represent and warrant to the other that it
has had no dealings with any person, firm, broker or finder (other than the
Brokers, if any named in Paragraph 1.10) in connection with the negotiation of
this Lease and/or the consummation of the transaction contemplated hereby, and
that no broker or other person, firm or entity other than said named Brokers is
entitled to any commission or finder's fee in connection with said transaction.
Lessee and Lessor do each hereby agree to indemnify, protect, defend and hold
the other harmless
29
from and against liability for compensation or charges which may be claimed by
any such unnamed broker, finder or other similar party by reason of any dealings
or actions of the indemnifying Party, including any costs, expenses, attorneys'
fees reasonably incurred with respect thereto.
15.6 Lessor and Lessee hereby consent to and approve all agency
relationships, including any dual agencies, indicated in Paragraph 1.10.
16. Tenancy Statement.
16.1 Each Party (as "Responding Party") shall within ten (10) days after
written notice from the other Party (the "Requesting Party") execute,
acknowledge and deliver to the Requesting Party a statement in writing in form
similar to the then most current "Tenancy Statement" form published by the
American Industrial Real Estate Association, plus such additional information,
confirmation and/or statements as may be reasonably requested by the Requesting
Party.
16.2 If Lessor desires to finance, refinance, or sell the Premises, any
part thereof, or the building of which the Premises are a part, Lessee and all
Guarantors of Lessee's performance hereunder shall deliver to any potential
lender or purchaser designated by Lessor such financial statements of Lessee and
such Guarantors as may be reasonably required by such lender or purchaser,
including but not limited to Lessee's financial statements for the past three
(3) years. All such financial statements shall be received by Lessor and such
lender or purchaser in confidence and shall be used only for the purposes herein
set forth.
17. Lessor's Liability. The term "Lessor" as used herein shall mean the owner or
owners at the time in question of the fee title to the Premises, or, if this is
a sublease, of the lessee's interest in the prior lease. In the event of a
transfer of Lessor's title or interest in the Premises or in this Lease, Lessor
shall deliver to the transferee or assignee (in cash or by credit) any unused
Security Deposit held by Lessor at the time of such transfer or assignment.
Except as provided in Paragraph 15, upon such transfer or assignment and
delivery of the Security Deposit, as aforesaid, the prior Lessor shall be
relieved of all liability with respect to the obligations and/or covenants under
this Lease thereafter to be performed by the Lessor. Subject to the foregoing,
the obligations and/or covenants in this Lease to be performed by the Lessor
shall be binding only upon the Lessor as hereinabove defined.
18. Severability. The invalidity of any provision of this Lease, as determined
by a court of competent jurisdiction, shall in no way affect the validity of any
other provision hereof.
19. Interest on Past-Due Obligations. Any monetary payment due Lessor hereunder,
other than late charges, not received by Lessor within thirty (30) days
following the date on which it was due, shall bear interest from the
thirty-first (31st) day after it was due at the rate of 12% per annum, but not
exceeding the maximum rate allowed by law, in addition to the late charge
provided for in Paragraph 13.4.
20. Time of Essence. Time is of the essence with respect to the Performance of
all obligations to be performed or observed by the Parties under this Lease.
21. Rent Defined. All monetary obligations of Lessee to Lessor under the terms
of this Lease are deemed to be rent.
22. No Prior or Other Agreements; Broker Disclaimer. This Lease contains all
agreements between the Parties with respect to any matter mentioned herein, and
no other prior or contemporaneous agreement or understanding shall be effective.
Lessor and Lessee each represents and warrants to the Brokers that it has made,
and is relying solely upon, its own investigation as to the nature, quality,
character and financial responsibility of the other Party to
30
this Lease and as to the nature, quality and character of the Premises. Brokers
have no responsibility with respect thereto or with respect to any default or
breach hereof by either Party.
23. Notices.
23.1 All notices required or permitted by this Lease shall be in writing
and may be delivered in person (by hand or by messenger or courier service) or
may be sent by regular, certified or registered mail or U.S. Postal Service
Express Mail, with postage prepaid, or by facsimile transmission, and shall be
deemed sufficiently given if served in a manner specified in this Paragraph 23.
The addresses noted adjacent to a Party's signature on this Lease shall be that
Party's address for delivery or mailing of notice purposes. Either Party may by
written notice to the other specify a different address for notice purposes,
except that upon Lessee's taking possession of the Premises, the Premises shall
constitute Lessee's address for the purpose of mailing or delivering notices to
Lessee. A copy of all notices required or permitted to be given to Lessor
hereunder shall be concurrently transmitted to such party or parties at such
addresses as Lessor may from time to time hereafter designate by written notice
to Lessee.
23.2 Any notice sent by registered or certified mail, return receipt
requested, shall be deemed given on the date of delivery shown on the receipt
card, or if no delivery date is shown, the postmark thereon. If sent by regular
mail the notice shall be deemed given forty-eight (48) hours after the same is
addressed as required herein and mailed with postage prepaid. Notices delivered
by United States Express Mail or overnight courier that guarantees next day
delivery shall be deemed given twenty-four (24) hours after delivery of the same
to the United States Postal Service or courier. If any notice is transmitted by
facsimile transmission or similar means, the same shall be deemed served or
delivered upon telephone confirmation of receipt of the transmission thereof,
provided a copy is also delivered via delivery or mail. If notice is received on
a Sunday or legal holiday, it shall be deemed received on the next business day.
24. Waivers. No waiver by either party of the Default or Breach of any term,
covenant or condition hereof by either party, shall be deemed a waiver of any
other term, covenant or condition hereof, or of any subsequent Default or Breach
by either party of the same or of any other term, covenant or condition hereof.
Lessor's consent to, or approval of, any act shall not be deemed to render
unnecessary the obtaining of Lessor's consent to, or approval of, any subsequent
or similar act by Lessee, or be construed as the basis of an estoppel to enforce
the provision or provisions of this Lease requiring such consent. Regardless of
Lessor's knowledge of a Default or Breach at the time of accepting rent, the
acceptance of rent by Lessor shall not be a waiver of any preceding Default or
Breach by Lessee of any provision hereof, other than the failure of Lessee to
pay the particular rent so accepted. Any payment given Lessor by Lessee may be
accepted by Lessor on account of moneys or damages due Lessor, notwithstanding
any qualifying statements or conditions made by Lessee in connection therewith,
which such statements and/or conditions shall be of no force or effect
whatsoever unless specifically agreed to in writing by Lessor at or before the
time of deposit of such payment.
25. Recording. Either Lessor or Lessee shall, upon request of the other,
execute, acknowledge and deliver to the other a short form memorandum of this
Lease for recording purposes. The Party requesting recordation shall be
responsible for payment of any fees or taxes applicable thereto.
26. No Right To Holdover. Lessee has no right to retain possession of the
Premises or any part thereof beyond the expiration or earlier termination of
this Lease.
27. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
31
28. Covenants and Conditions. All provisions of this Lease to be observed or
performed by Lessee are both covenants and conditions.
29. Binding Effect; Choice of Law. This Lease shall be binding upon the parties,
their personal representatives, successors and assigns and be governed by the
laws of the State in which the Premises are located. Any litigation between the
Parties hereto concerning this Lease shall be initiated in the county in which
the Premises are located.
30. Subordination; Attornment; Non-Disturbance.
30.1 Subordination. This Lease and any Option granted hereby shall be
subject and subordinate to any ground lease, mortgage, deed of trust, or other
hypothecation or security device (collectively, "Security Device"), now or
hereafter placed by Lessor upon the real property of which the Premises are a
part, to any and all advances made on the security thereof, and to all renewals,
modifications, consolidations, replacements and extensions thereof. Lessee
agrees that the Lenders holding any such Security Device shall have no duty,
liability or obligation to perform any of the obligations of Lessor under this
Lease, but that in the event of Lessor's default with respect to any such
obligation, Lessee will give any Lender whose name and address have been
furnished Lessee in writing for such purpose notice of Lessor's default and
allow such Lender thirty (30) days following receipt of such notice for the cure
of said default before invoking any remedies Lessee may have by reason thereof.
If any Lender shall elect to have this Lease and/or any Option granted hereby
superior to the lien of its Security Device and shall give written notice
thereof to Lessee, this Lease and such Options shall be deemed prior to such
Security Device, notwithstanding the relative dates of the documentation or
recordation thereof.
30.2 Attornment. Subject to the non-disturbance provisions of Paragraph
30.3, Lessee agrees to attorn to a Lender or any other party who acquires
ownership of the Premises by reason of a foreclosure of a Security Device, and
that in the event of such foreclosure, such new owner shall not: (i) be liable
for any act or omission of any prior lessor or with respect to events occurring
prior to acquisition of ownership, (ii) be subject to any offsets or defenses
which Lessee might have against any prior lessor, or (iii) be bound by
prepayment of more than one month's rent.
30.3 Non-Disturbance. With respect to Security Devices entered into by
Lessor after the execution of this Lease, Lessee's subordination of this Lease
shall be subject to receiving assurance (a "non-disturbance agreement") from the
Lender that Lessee's possession and this Lease, including any options to extend
the term hereof, will not be disturbed so long as Lessee is not in Breach hereof
and attorns to the record owner of the Premises.
30.4 Self-Executing. The agreements contained in this Paragraph 30 shall
be effective without the execution of any further documents; provided, however,
that, upon written request from Lessor or Lessee or a Lender in connection with
a sale, financing or refinancing of the Premises, Lessee and Lessor shall
execute such further writings as may be reasonably required to separately
document any such subordination or non-subordination, attornment and/or
non-disturbance agreement as is provided for herein.
31. Attorney's Fees. If any Party or Broker brings an action or proceeding to
enforce the terms hereof or declare rights hereunder, the Prevailing Party (as
hereinafter defined) or Broker in any such proceeding, action, or appeal
thereon, shall be entitled to reasonable attorney's fees. Such fees may be
awarded in the same suit or recovered in a separate suit, whether or not such
action or proceeding is pursued to decision or judgment. The term "Prevailing
Party" shall include, without limitation, a Party or Broker who substantially
obtains or defeats the relief sought, as the case may be, whether by compromise,
settlement, judgment, or the abandonment by the other Party or Broker of its
claim or defense. The attorney's fee award shall not be computed in accordance
with any court fee schedule, but shall be such as to fully reimburse all
attorney's fees reasonably
32
incurred. Lessor shall be entitled to attorney's fees, costs and expenses
incurred in the preparation and service of notices of Default and consultations
in connection therewith, only if a legal action is subsequently commenced in
connection with such Default or resulting Breach.
32. Lessor's Access; Showing Premises; Repairs. Lessor and Lessor's agents shall
have the right to enter the Premises at any time, in the case of an emergency,
and otherwise at reasonable times for the purpose of showing the same to
prospective purchasers, lenders, or lessees, and making such alterations,
repairs, improvements or additions to the Premises or to the building of which
they are a part, as Lessor may reasonably deem necessary. Lessor may at any time
place on or about the Premises or building any ordinary "For Sale" signs and
Lessor may at any time during the last one hundred twenty (120) days of the term
hereof place on or about the premises any ordinary "For Lease" signs. All such
activities of Lessor shall be without abatement of rent or liability to Lessee.
33. Auctions. Lessee shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises without first having
obtained Lessor's prior written consent. Notwithstanding anything to the
contrary in this Lease, Lessor shall not be obligated to exercise any standard
of reasonableness in determining whether to grant such consent.
34. Signs. Lessee shall not place any sign upon the Premises, except that Lessee
may with Lessor's prior written consent, install (but not on the roof) such
signs as are reasonably required to advertise Lessee's own business. The
installation of any sign on the Premises by or for Lessee shall be subject to
the provisions of Paragraph 7 (Maintenance, Repairs, Utility Installations,
Trade Fixtures and Alterations). Unless otherwise expressly agreed herein,
Lessor reserves all rights to the use of the roof and the right to install, and
all revenues from the installation of, such advertising signs on the Premises,
including the roof, as do not unreasonably interfere with the conduct of
Lessee's business.
35. Termination; Merger. Unless specifically stated otherwise in writing by
Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual
termination or cancellation hereof, or a termination hereof by Lessor for Breach
by Lessee, shall automatically terminate any sublease or lesser estate in the
Premises; provided, however, Lessor shall, in the event of any such surrender,
termination or cancellation, have the option to continue any one or all of any
existing subtenancies. Lessor's failure within ten (10) days following any such
event to make a written election to the contrary by written notice to the holder
of any such lesser interest, shall constitute Lessor's election to have such
event constitute the termination of such interest.
36. Consents.
(a) Except for Paragraph 33 hereof (Auctions) or as otherwise
provided herein, wherever in this Lease the consent of a Party is required to an
act by or for the other Party, such consent shall not be unreasonably withheld
or delayed. Lessor's actual reasonable costs and expenses (including but not
limited to architects', attorneys', engineers' or other consultants' fees)
incurred in the consideration of, or response to, a request by Lessee for any
Lessor consent pertaining to this Lease or the Premises, including but not
limited to consents to an assignment, a subletting or the presence or use of a
Hazardous Substance, practice or storage tank, shall be paid by Lessee to Lessor
upon receipt of an invoice and supporting documentation therefor. Lessor's
consent to any act, assignment of this Lease or subletting of the Premises by
Lessee shall not constitute an acknowledgment that no Default or Breach by
Lessee of this Lease exists, nor shall such consent be deemed a waiver of any
then existing Default or Breach, except as may be otherwise specifically stated
in writing by Lessor at the time of such Consent.
33
(b) The failure to specify herein any particular condition to
Lessor's consent shall not preclude the imposition by Lessor at the time of
consent of such further or other conditions as are then reasonable with
reference to the particular matter for which consent is being given.
37. Guarantor.
37.1 If there are to be any Guarantors of this Lease per Paragraph 1.11,
the form of the guaranty to be executed by each such Guarantor shall be in the
form most recently published by the American Industrial Real Estate Association,
and each said Guarantor shall have the same obligations as Lessee under this
Lease, including but not limited to the obligation to provide the Tenancy
Statement and information called for by Paragraph 16.
37.2 It shall constitute a Default of the Lessee under this Lease if any
such Guarantor fails or refuses, upon reasonable request by Lessor to give: (a)
evidence of the due execution of the guaranty called for by this Lease,
including the authority of the Guarantor (and of the party signing on
Guarantor's behalf) to obligate such Guarantor on said guaranty, and including
in the case of a corporate Guarantor, a certified copy of a resolution of its
board of directors authorizing the making of such guaranty, together with a
certificate of incumbency showing the signatures of the persons authorized to
sign on its behalf, (b) current financial statements of Guarantor as may from
time to time be requested by Lessor, (c) a Tenancy Statement, or (d) written
confirmation that the guaranty is still in effect.
38. Quiet Possession. Upon payment by Lessee of the rent for the Premises and
the observance and performance of all of the covenants, conditions and
provisions on Lessee's part to be observed and performed under this Lease,
Lessee shall have quiet possession of the Premises for the entire term hereof
subject to all of the provisions of this Lease.
39. Options.
39.1 Definition. As used in this Paragraph 39 the word "Option" has the
following meaning: (a) the right to extend the term of this Lease or to renew
this Lease or to extend or renew any lease that Lessee has on other property of
Lessor; (b) the right of first refusal to lease the Premises or the right of
first offer to lease the Premises or the right of first refusal to lease other
property of Lessor or the right of first offer to lease other property of
Lessor; (c) the right to purchase the Premises, or the right of first refusal to
purchase the Premises, or the right of first offer to purchase the Premises, or
the right to purchase other Property of Lessor, or the right of first refusal to
purchase other property of Lessor, or the right of first offer to purchase other
property of Lessor.
39.2 DELETED
39.3 Multiple Options. In the event that Lessee has any multiple Options
to extend or renew this Lease, a later option cannot be exercised unless the
prior Options to extend or renew this Lease have been validly exercised.
39.4 Effect of Default on Options.
(a} Lessee shall have no right to exercise an Option,
notwithstanding any provision in the grant of Option to the contrary: (i) during
the period commencing with the giving of any notice of Default under Paragraph
13.1 and continuing until the noticed Default is cured, or (ii) during the
period of time any monetary obligation due Lessor from Lessee is unpaid, so long
as notice thereof is given Lessee, or (iii) during the time Lessee is in Breach
of this Lease, or (iv) in the event that Lessor has given to Lessee three (3) or
more notices of Default under Paragraph
34
13.1, whether or not the Defaults are cured, during the twelve (12) month period
immediately preceding the exercise of the Option and the defaults remain
uncured.
(b) The period of time within which an Option may be exercised
shall not be extended or enlarged by reason of Lessee s inability to exercise an
Option because of the provisions of Paragraph 39.41(a).
(c) All rights of Lessee under the provisions of an Option shall
terminate and be of no further force or effect, notwithstanding Lessee's due and
timely exercise of the Option, if, after such exercise and during the term of
this Lease, (i) Lessee fails to pay to Lessor a monetary obligation of Lessee
for a period of thirty (30) days after such obligation becomes due (so long as
notice thereof is given to Lessee), or {ii) Lessor gives to Lessee three or more
notices of Default under Paragraph 13.1 during any twelve month period and the
defaults remain uncured, or (iii) if Lessee commits a Breach of this Lease.
40. Multiple Buildings. If the Premises are part of a group of buildings
controlled by Lessor, Lessee agrees that it will abide by, keep and observe all
reasonable rules and regulations which Lessor may make from time to time for the
management, safety, care, and cleanliness of the grounds, the parking and
unloading of vehicles and the preservation of good order, as well as for the
convenience of other occupants or tenants of such other buildings and their
invitees, and that Lessee will pay its fair share of common expenses incurred in
connection therewith.
41. Security Measures. Lessee hereby acknowledges that the rental
payable to Lessor hereunder does not include the cost of guard service or other
security measures, and that Lessor shall have no obligation whatsoever to
provide same. Lessee assumes all responsibility for the protection of the
Premises, Lessee, its agents and invitees and their property from the acts of
third parties.
42. Reservations. Lessor reserves to itself the right, from time to
time, to grant, without the consent or joinder of Lessee, such easements, rights
and dedications that Lessor deems necessary, and to cause the recordation of
parcel maps and restrictions, so long as such easements, rights, dedications,
maps and restrictions do not unreasonably interfere with the use of the Premises
by Lessee. Lessee agrees to sign any documents reasonably requested by Lessor to
effectuate any such easement rights, dedication, map or restrictions.
43. Performance Under Protest. If at any time a dispute shall arise as
to any amount or sum of money to be paid by one Party to the other under the
provisions hereof, the Party against whom the obligation to pay the money is
asserted shall have the right to make payment "under protest" and such payment
shall not be regarded as a voluntary payment and there shall survive the right
on the part of said Party to institute suit for recovery of such sum. If it
shall be adjudged that there was no legal obligation on the part of said Party
to pay such sum or any part thereof, said Party shall be entitled to recover
such sum or so much thereof as it was not legally required to pay under the
provisions of this Lease.
44. Authority. If either Party hereto is a corporation, trust, or
general or limited partnership, each individual executing this Lease on behalf
of such entity represents and warrants that he or she is duly authorized to
execute and deliver this Lease on its behalf. If Lessee is a corporation, trust
or partnership, Lessee shall, within thirty (30) days after request by Lessor,
deliver to Lessor evidence satisfactory to Lessor of such authority.
45. Conflict. Any conflict between the printed provisions of this Lease
and the typewritten or handwritten provisions shall be controlled by the
typewritten or handwritten provisions.
35
46. Offer. Preparation of this Lease by Lessor or Lessor's agent and
submission of same to Lessee shall not be deemed an offer to lease to Lessee.
This Lease is not intended to be binding until executed by all Parties hereto.
47. Amendments. This Lease may be modified only in writing, signed by
the parties in interest at the time of the modification. The parties shall amend
this Lease from time to time to reflect any adjustments that are made to the
Base Rent or other rent payable under this Lease. As long as they do not
materially change Lessee's obligations hereunder, Lessee agrees to make such
reasonable non-monetary modifications to this Lease as may be reasonably
required by an institutional, insurance company, or pension plan Lender in
connection with the obtaining of normal financing or refinancing of the property
of which the Premises are a part.
48. Multiple Parties. Except as otherwise expressly provided herein, if
more than one person or entity is named herein as either Lessor or Lessee, the
obligations of such multiple parties shall be the joint and several
responsibility of all persons or entities named herein as such Lessor or Lessee.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR
INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE
TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE
AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE
PREMISES.
IF THIS LEASE HAS BEEN FILLED IN, IT HAS BEEN PREPARED FOR SUBMISSION TO YOUR
ATTORNEY FOR HIS APPROVAL. FURTHER, EXPERTS SHOULD BE CONSULTED TO EVALUATE THE
CONDITION OF THE PROPERTY AS TO THE POSSIBLE PRESENCE OF ASBESTOS, STORAGE TANKS
OR HAZARDOUS SUBSTANCES. NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION OR BY THE REAL ESTATE BROKER(S) OR
THEIR AGENTS OR EMPLOYEES AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX
CONSEQUENCES OF THIS LEASE OR THE TRANSACTION TO WHICH IT RELATES; THE PARTIES
SHALL RELY SOLELY UPON THE ADVICE OF THEIR OWN COUNSEL AS TO THE LEGAL AND TAX
CONSEQUENCES OF THIS LEASE. IF THE SUBJECT PROPERTY IS LOCATED IN A STATE OTHER
THAN CALIFORNIA, AN ATTORNEY FROM THE STATE WHERE THE PROPERTY IS LOCATED SHOULD
BE CONSULTED.
The parties hereto have executed this Lease at the place on the dates specified
above to their respective signatures.
Executed at Mountain View, CA Executed at Mountain View, CA
on 4/26/94 on April 26, 1994
by LESSOR: By LESSEE:
PORTOLA LAND COMPANY, QUICKTURN DESIGN SYSTEMS, INC.,
a California limited partnership a Delaware corporation
By /s/ Xxxxxxx X. Xxxxxxx By /s/ X. X. Xxxxx
------------------------------- -------------------------------
Name Printed: Xxxxxxx X. Xxxxxxx Name Printed: X. X. Xxxxx
--------------------- ---------------------
Title: Managing Partner Title: Vice President
---------------------------- ----------------------------
36
NOTICE: These forms are often modified to meet changing requirements of law and
industry needs. Always write or call to make sure you are utilizing the most
current form: American Industrial Real Estate Association, 000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxx X-0, Xxx Xxxxxxx, XX 00000. (000) 000-0000. Fax No. (213)
000-0000.
37
ADDENDUM TO LEASE
THIS ADDENDUM TO LEASE ("addendum") is dated for reference purposes only
as of April 26, 1994, and is made between PORTOLA LAND COMPANY, a California
limited partnership ("Lessor"), and QUICKTURN DESIGN SYSTEMS, INC., a Delaware
corporation ("Lessee"), to be a part of that certain Standard
Industrial/Commercial Single-Tenant Lease-Net of even date herewith between
Lessor and Lessee (herein the "Lease") concerning 35,455 square feet of space
(the "Premises") located in the two (2) buildings ("Buildings") located at 800
and 000 Xxxxx Xxxxxx, respectively, Mountain View, California.
1. Lessee Improvements: The parties acknowledge that, at Lessee's sole
cost and expense, Lessee shall construct certain non-structural improvements
(the "Lessee Improvements") in the Premises. The Lessee Improvements shall be
constructed in accordance with Applicable Laws and in a good and workmanlike
manner. Lessee shall provide Lessor with copies of all plans and specifications
for the Lessee Improvements. In addition, the parties acknowledge that, upon
expiration or earlier termination of the Lease, Lessee shall not be required to
remove the Lessee Improvements or restore the Premises to its original condition
immediately prior to construction of the Lessee Improvements except to the
extent that Lessor requires removal of particular components of the Lessee
Improvements or particular restoration by notifying Lessee in writing as to the
identification of the particular removal or restoration within thirty (30) days
after Lessor's receipt of the plans and specifications therefor.
2. Acceptance of Premises: Notwithstanding anything to the contrary in
the Lease, as of the Commencement Date, or the date of Lessee's early occupancy
of the Premises, whichever is earlier, the Premises shall be in "broom clean.
condition, and the roof, roof membrane, all utilities, HVAC systems, plumbing,
electrical systems (including, without limitation, outlets and lighting
fixtures), and fire and landscape sprinkler systems ("Building Systems") shall
be in good working order and repair. Lessor shall be responsible for all roof
maintenance for the Premises (other than maintenance needed due to Lessee's
negligence) for the period from June 1, 1994 through September 30, 1994.
Lessee's acceptance of the Premises, or Lessee's submission of a "punch list. to
Lessor with respect to any Building System requiring repair not later than sixty
(60) days after the Commencement Date, shall not be deemed a waiver of Lessee's
right to have latent defects in the Premises or the Building Systems (excluding
the Lessee Improvements) repaired at Lessor's sole expense. Lessee shall give
notice to Lessor whenever any latent defect (i.e., any defect that could not
reasonably have been discovered by Lessee) becomes reasonably apparent, and
Lessor shall repair such defect as soon as practicable. Lessor also hereby
assigns to Lessee all warranties with respect to the Premises which would reduce
Lessee's maintenance obligations hereunder and shall cooperate with Lessee to
enforce all such warranties.
3. Compliance with Laws: As of the Commencement Date, the Premises
shall conform to all Applicable Laws, including, without limitation, all
Applicable Laws governing Hazardous Materials, as defined in the Lease. Lessee
shall not be required to construct or to pay the cost of complying with any
underwriter's requirements or Applicable Laws requiring construction of
improvements in the Premises which are properly capitalized under generally
accepted accounting principles, unless such compliance is necessitated solely
because of Lessee's particular use of the Premises. Lessor represents and
warrants that, to the best of its knowledge, there are no covenants, conditions,
restrictions or encumbrances ("CC&R's") affecting the Buildings.
4. Use of Premises: If the Premises should become not reasonably
suitable for Lessee's use as a consequence of (i) cessation of utilities or
other services; (ii) interference with access to the Premises; or (iii) legal
restrictions, so long as items (i) through (iii) do not result from the fault
of, or are beyond the control of, Lessor and Lessee, or the presence of any
Hazardous Material which does not result from Lessee's use, storage or disposal
of such Hazardous Material
38
in or about the Premises in violation of Applicable Laws, and in any of the
foregoing cases the interference with Lessee's use of the Premises persists or,
in Lessee's reasonable judgment, is likely to persist for one hundred eighty
(180) continuous days, then Lessee shall be entitled to terminate this Lease.
5. Alterations. Additions and Improvements: Notwithstanding anything to
the contrary in the Lease:
A. If Lessor has not consented to Lessee's request to construct
alterations, utility installations, additions and improvements ("Alterations")
in the Premises within five (5) business days after the date of Lessee's written
request therefor, Lessor shall be deemed to have consented to the Alteration.
X. Xxxxxx shall have no lien or other interest whatsoever in any item of
Lessee's trade fixtures and personal property located in the Premises, and shall
execute any document reasonably necessary to waive any lien or interest in
Lessee's trade fixtures and personal property located at the Premises.
C. Upon request, Lessor shall advise Lessee in writing whether it
reserves the right to require Lessee to remove any Alterations from the Premises
upon expiration or earlier termination of the Lease.
D. Alterations and Lessee's trade fixtures, furniture, equipment and
other personal property installed in the Premises by Lessee ("Lessee's
Property") and the Lessee Improvements (during the term of the Lease, as
extended) shall at all times be and remain Lessee's Property, and Lessee shall
be entitled to all depreciation, amortization and other tax benefits with
respect thereto. Except for the Lessee Improvements and Alterations which cannot
be removed without structural injury to the Premises, at any time during the
Lease Term Lessee may remove Lessee's Property from the Premises, provided that
Lessee repairs all damage caused by such removal.
6. Expenses: As additional monthly rent for each calendar year (or
portion thereof) of the Term, as extended, Lessee shall pay to Lessor, prorated
on a monthly basis, Lessor's reasonable estimate of real property taxes,
property insurance and landscape maintenance ("Operating Expenses") for the
Premises. In addition, Lessee shall pay, directly to the provider, for HVAC
maintenance and, commencing on October 1, 1994, roof maintenance for the
Premises. Notwithstanding anything to the contrary in the Lease, in no event
shall Lessee have any obligation to perform, to pay directly, or to reimburse
Lessor for, all or any portion of the following repairs, maintenance,
improvements, replacements, premiums, claims, losses, fees, commissions,
charges, disbursements, attorneys' fees, experts' fees, costs and expenses
(collectively "Costs"):
A. Losses Caused By Others, Construction Defects and Failure to Build In
Compliance With Law: Costs to correct any construction defect in the Premises
(other than in the Lessee Improvements), or Costs arising out of a failure to
construct the Premises or common areas in accordance with all Applicable Laws
and private restrictions.
B. Casualties. Condemnations and Insurance Costs: Costs occasioned by
fire, acts of God, or other casualties or by the exercise of the power of
eminent domain or Costs for insurance coverage not customarily paid by tenants
of similar projects in the vicinity of the Premises and/or co-insurance
payments.
C. Capital Leases and Capital Improvements: Lease payments and other
Costs to acquire, install or replace capital machinery and equipment (such as
air conditioners, and the like), and Costs which would properly be capitalized
under generally accepted accounting principles and which relate to repairs,
alterations, improvements, equipment and tools to the extent that Lessee's
39
share of the total Cost of such capital item exceed (i) the reduction in other
expenses payable by Lessee under the Lease which results from the capital repair
or installation of the capital item; or (ii) in any year, the annual amortized
cost of the item based on its useful life determined in accordance with
generally accepted accounting principles.
D. Structural Repairs: Costs relating to the replacement of the
structural elements of the Premises.
E. Reimbursable Expenses: Costs for which Lessor has a right of
reimbursement from others or Costs which Lessee pays directly to a third person.
F. Reserves: Depreciation, amortization or other expense reserves.
G. Mortgages: Interest, charges and fees incurred on debt, payments on
mortgages and rent under ground leases.
H. Hazardous Materials: Costs incurred to investigate the presence of
any Hazardous Material, Costs to respond to any claim of Hazardous Material
contamination or damage, Costs to remove any Hazardous Material from the Project
or to remediate any Hazardous Material contamination and any judgments or other
Costs incurred in connection with any Hazardous Material exposure or release,
except to the extent the Cost is caused by the storage, use, disposal or
treatment of the Hazardous Material in question by Lessee in violation of
Applicable Law. (Lessee shall have no liability to Lessor or any of its
officers, agents, partners or tenants as a consequence of the presence of
Hazardous Materials in or about the Premises that were not used, stored, treated
or disposed of in or about the Premises in violation of Applicable Law by Lessee
or Lessee's agents, employees or contractors.)
I. Real Estate Taxes: Taxes, assessments, all other governmental levies,
and any increases in the foregoing, occasioned by or relating to a voluntary or
involuntary change of ownership or other conveyance of the Premises, or Lessor's
estate, inheritance, income, gift or franchise taxes.
Notwithstanding anything to the contrary contained in the Lease, at the
commencement of each calendar year during the Term, as extended, Lessor shall
provide Lessee with an itemized statement indicating actual Operating Expenses
for the previous calendar year or portion thereof. Within thirty (30) days after
receipt by Lessee of Lessor's statement, Lessee or its authorized representative
shall have the right to inspect the books of Lessor during reasonable business
hours at such location as Lessor reasonably specifies, for the purpose of
verifying the information contained in the statement. If Lessee's inspection
discloses that an overpayment was required by Lessee, Lessor promptly shall
refund to Lessee the excess. If the inspection discloses an underpayment by
Lessee, Lessee promptly shall pay to Lessor the additional amount owing.
7. Surrender: Notwithstanding anything to the contrary in the Lease,
Lessee's obligations to surrender the Premises shall be fulfilled if Lessee
surrenders possession of the Premises in the condition existing at the
commencement of the Lease, except for ordinary wear and tear, acts of God,
casualties, condemnation, Hazardous Materials (other than those stored, used or
disposed of by Lessee in or about the Premises), and Lessee Improvements and
Alterations concerning which Lessor has not reserved the right to require
removal, or if it has reserved the right the require removal, it does not elect
to have Lessee remove from the Premises at the end of the Term.
8. Indemnity: Notwithstanding anything to the contrary in the Lease,
Lessor shall not be released from, and shall indemnify, defend, protect and hold
harmless Lessee from, all
40
damages, liabilities, judgments, actions, claims, attorneys' fees, consultants'
fees, payments, costs and expenses arising from the negligence or willful
misconduct of Lessor or its employees, agents, contractors or invitees, Lessor's
violation of Applicable Law, or a breach of Lessor's obligations or
representations under this Lease.
9. Assignment and Subletting: Lessee may, without Lessor's prior written
consent, sublet the Premises or assign the Lease to: (i) a subsidiary,
affiliate, franchisee, division or corporation controlled by or under common
control with Lessee; (ii) a successor corporation related to Lessee by merger,
consolidation, non-bankruptcy reorganization, or government action; or (iii) a
purchaser of substantially all of Lessee's assets located at the Premises, so
long as the purchaser, at the time of the purchase, has a net worth
substantially the same as that of Lessee as of the date of its execution of the
Lease. For the purpose of the Lease, the sale of Lessee's capital stock through
any public exchange shall not be deemed an assignment, subletting, or any other
transfer of the Lease or the Premises requiring Lessor's consent.
10. Rules and Regulations: Lessor shall not require Lessee's compliance
with any rule or regulation applicable to the Premises that unreasonably
interferes with Lessee's use of the Premises or materially changes Lessee's
rights under the Lease.
11. Default and Late Charge: Notwithstanding anything to the contrary in
the Lease, Lessee shall not be deemed to be in default, Lessor shall not be
entitled to cure any breach by Lessee under the Lease, nor shall any late charge
or interest be imposed, on account of (i) Lessee's failure to pay money to
Lessor, unless Lessee's failure to pay continues for five (5) days after
Lessee's actual receipt of written notice of delinquency; or (ii) Lessee's
failure to perform any covenant of this Lease (other than a covenant to pay
money to Lessor), unless Lessee's failure to perform such covenant continues
after Lessee's actual receipt of written notice for a period of thirty (30) days
or such longer time as may reasonably be required to cure the default. Further,
Lessee shall not be in default of this Lease solely because (a) it abandons or
vacates the Premises; or (b) as a consequence of the filing of an involuntary
bankruptcy petition, the appointment of a receiver, the attachment of any
interest in the Lease or of Lessee's other assets or the exercise by any third
party of any other remedy with respect to Lessee, Lessee's interest in this
Lease or Lessee's other assets, unless the petition, receivership, attachment or
other remedy is not discharged within sixty (60) days.
12. Lessor's Entry: Notwithstanding anything to the contrary in the
Lease, Lessor and Lessor's agents, except in the case of emergency, shall
provide Lessee with twenty-four (24) hours' notice prior to entry of the
Premises. Such entry by Lessor and Lessor's agents shall not impair Lessee's
operations more than reasonably necessary, and Lessor and Lessor's agents shall
be accompanied at all times by an employee of Lessee.
13. Approvals: Whenever the Lease requires an approval, consent,
designation, determination or judgment by either Lessor or Lessee, such
approval, consent, designation, determination or judgment (including, without
limiting the generality of the foregoing, those required in connection with
assignment and subletting) shall not be unreasonably withheld or delayed and in
exercising any right or remedy hereunder, each party shall at all times act
reasonably and in good faith.
14. Reasonable Expenditures: Any expenditure by a party permitted or
required under the Lease, for which such party is entitled to demand and does
demand reimbursement from the other party, shall be limited to the fair market
value of the goods and services involved, shall be reasonably incurred and shall
be substantiated by documentary evidence available for inspection and review by
the other party or its representative during normal business hours.
15. Option to Extend: Notwithstanding anything to the contrary in the
Lease:
41
X. Xxxxx of Option: Lessor hereby grants to Lessee one (1) option
(the "Option") to extend the term of the Lease, for an additional term five (5)
years, commencing on May 1, 2000, upon the terms and conditions set forth in
this Paragraph 15.
B. Exercise of Option: Lessee shall exercise such option by
giving Lessor written notice of its intention not less than twelve (12) months
prior to the expiration of the then-existing Term of the Lease.
C. Extended Term Rent: If this Option is exercised, the basic
rent for the Premises shall be ninety-five percent (95%) of the then-current
fair market monthly rent ("Fair Market Rent") for the Premises as of the
commencement date of the applicable extended term, as determined by the
agreement of the parties, or, if the parties cannot agree, then the Fair Market
Rent shall be determined by three brokers. Within fifteen (15) days after the
parties have failed to agree to a determination of ninety-five (95%) percent of
the then current fair market monthly rent for the Premises, Lessor and Lessee
each shall appoint a person who is a licensed California real estate broker and
who has been engaged full-time in the office brokerage business in the County of
Santa Xxxxx for at least the immediately preceding five (5) years . The two (2)
brokers so appointed shall appoint a third broker, similarly qualified, within
ten (10) days after the appointment of the last appointed broker, and shall
notify the parties of the identity of the third broker. If the two brokers are
unable to agree upon a third broker, either party may, upon not less than five
(5) days' prior written notice to the other party, applied to the then President
of the Santa Xxxxx County Real Estate Board for the appointment of a third
qualified broker. Within thirty (30) days after the selection of the third
broker, a majority of the brokers shall set the fair market rent for the Option
term. If a majority of the brokers is unable to set the fair market rent within
the stipulated period of time, Lessor's broker shall arrange for simultaneous
exchange of the written appraisals from each of the brokers and the three (3)
appraisals shall be added together and their total divided by three (3); the
resulting quotient shall be the fair market rental value for the Premises during
the Option term. If, however, the low appraisal and/or the high appraisal are/is
more than ten percent (10%) lower and/or higher than the middle appraisal, the
low appraisal and/or the high appraisal shall be disregarded. If only one (1)
appraisal is disregarded, the remaining two (2) appraisals shall be added
together and their total divided by two (2); the resulting quotient shall be the
fair market rent for the Premises during the Option term. If both the low
appraisal and the high appraisal are disregarded as stated in this Paragraph,
the middle appraisal shall be the fair market rent for the Premises during the
Option term. After the fair market rent for the Option term has been set, the
brokers immediately shall notify Lessor and Lessee, and Lessor and Lessee
promptly shall execute an amendment to the Lease stating the fair market rent.
All other terms and conditions contained in the Lease and this Addendum, as the
same may be amended from time to time by the parties in accordance with the
provisions of the Lease, shall remain in full force and effect and shall apply
during the Option term.
D. Rescission: Notwithstanding anything to the contrary contained
in this Paragraph, if the basic rent during the Option term is determined by
appraisal and if Lessee does not, in its sole discretion, approve the rental
amount established by such appraisal, Lessee may rescind its exercise of the
Option not later than six (6) months prior to the last day of the Term by giving
Lessor written notice of such election to rescind. If Lessee timely rescinds its
exercise of the Option, then Lessee shall pay all costs and expenses of the
appraisal.
16. Damage and Destruction of Premises: Notwithstanding anything to the
contrary contained in the Lease:
A. Lessor shall not have the right to terminate the Lease if
damage to or destruction of the Premises results from a casualty ordinarily
covered by insurance required to be carried by Lessor under the Lease.
42
B. In the event of damaged to the Premises which is not required
to be covered by insurance, and is not covered by insurance actually carried,
Lessor shall not have the right to terminate the Lease (i) if the damage is
relatively minor (e.g., repair or restoration would take fewer than sixty (60)
days or it would cost less than ten percent (10%) of the replacement cost of the
Premises); or (ii) if Lessee agrees to pay the cost of repair in excess of ten
percent (10%) of the then-replacement cost of the Premises.
C. If the Premises are damaged by any peril and Lessor does not
elect to terminate the Lease or is not entitled to terminate the Lease pursuant
to its terms, then as soon as reasonably practicable, Lessor shall furnish
Lessee with a written opinion of Lessor's architect or construction consultant
as to when the restoration work required of Lessor may be completed. Lessee
shall have the option to terminate the Lease in the event any of the following
occurs, which option may be exercised by delivery to Lessor of a written notice
of election to terminate within thirty (30) days after Lessee receives from
Lessor the estimate of the time needed to complete such restoration: (i) the
Premises, with reasonable diligence, cannot be fully repaired by Lessor within
one hundred twenty (120) days after the damage or destruction; or (ii) if the
Premises are damaged by any peril within twelve (12) months of the last day of
term, and cannot be substantially restored within sixty (60) days after the date
of such damage.
D. If the Lease is not terminated by Lessor or Lessee as provided
herein, Lessor shall restore the Premises to the condition in which it existed
immediately prior to the casualty.
17. Taxes and Assessments: Notwithstanding anything to the contrary
contained in the Lease, if any assessments are levied against the Premises,
Lessor may elect to either pay the assessment in full or allow the assessment to
go to bond and pay it in installments. In either case, however, Lessee shall
only be obligated to pay to Lessor, with regard to such assessment, a sum equal
to that which would have been payable by Lessee with respect to installments of
principal and interest which would have become due during the Lease Term had
Lessor allowed the assessment to go to bond.
18. Lessee's Right to Bring Tax Proceeding: Lessee shall have the right
to contest, in good faith, the validity or the amount of any tax or assessment
levied against the entire Premises by such appellate or other proceedings as may
be appropriate in the jurisdiction, and may defer payment of such obligation,
pay same under protest, or take such steps as Lessee reasonably may deem
appropriate. Lessor shall cooperate in the institution and prosecution of any
such proceedings, including permitting the action to be brought in the name of
Lessor, and will execute any documents required therefor. The expense of such
proceedings shall be borne by Lessee and any refunds or rebates secured shall
belong to Lessee.
19. Lessor's Representations: To the best of Lessor's knowledge: (i) the
Premises and the operations conducted thereon prior to the Commencement Date
have been and are in compliance with all Applicable Laws regarding Hazardous
Materials; and (ii) any handling, transportation, storage, treatment, disposal,
release or use of Hazardous Materials that has occurred on or about the
Premises, or the soil, groundwater or surface water thereof, prior to the
Commencement Date have been in compliance with all Applicable Laws. Also to the
best of Lessor's knowledge, no litigation has been brought or threatened, nor
any settlements reached with any governmental or private party, concerning the
actual or alleged presence or Hazardous Materials on or about the Premises, or
the soil, groundwater or surface water thereof, nor has Lessor received any
notice of any violation or alleged violation of any Applicable Laws, pending
claims or pending investigations with respect to the presence of Hazardous
Materials on or about the Premises, or the soil, groundwater or surface water
thereof. Notwithstanding anything to the contrary in the Lease, and except to
the extent that the Hazardous Material in question was stored,
43
used, disposed of or treated by Lessee or its agents, employees or contractors
in violation of Applicable Law, Lessee, its agents, employees, contractors,
officers, directors, shareholders, successors or assigns shall not be
responsible for, and Lessor shall indemnify, defend with counsel reasonably
acceptable to Lessee and hold Lessee harmless from and against (i) any claim,
remediation obligation, investigation obligation, liability, cause of action,
penalty, attorneys' fee, consultants' cost, expense or damage owing or alleged
to be owing with respect to any Hazardous Material present on or about the
Premises, or the soil, groundwater or surface water thereof; or (ii) the
removal, investigation, monitoring or remediation of any Hazardous Material
present on or about the Premises, or the soil, groundwater or surface water
thereof, and in any of the foregoing cases without regard to whether the
Hazardous Materials were present as of the Commencement Date or whether the
presence of the Hazardous Materials was caused by any person other than
Landlord. Lessor's representations and indemnification under this Paragraph
shall survive the termination of the Lease.
20. Security Deposit: The parties acknowledge that, within five (5) days
after execution of the Lease by Lessor, Lessee shall deliver to Lessor a
stand-by Letter of Credit in the amount of
_______________________to serve as the Security Deposit described in Section 5
of the Lease. Upon the expiration or earlier termination of the Lease, Lessor
shall return the Letter of Credit to Lessee and cooperate with Lessee in
notifying the issuer of the termination thereof, or, if Lessor has drawn down
against the Letter of Credit in compliance with the provisions of Section 5 of
the Lease and the terms of the Letter of Credit, Lessor shall return so much of
the balance thereof not used or applied by Lessor.
21. Subordination: Lessor shall use its reasonable efforts to obtain
from any Lenders of the Premises a written agreement in form reasonably
satisfactory to Lessee providing for recognition of Lessee's interest under the
Lease in the event of a foreclosure of the Lender's security interest. Further,
as a condition of Lessee's obligation to subordinate its leasehold interest to
an instrument of security, Lessor shall use its reasonable efforts to obtain
from the Lender(s) a written recognition agreement in form reasonably
satisfactory to Lessee providing that Lessee's rights of occupancy shall not be
disturbed in the event of a foreclosure, and that, in the event of foreclosure,
Lessee shall receive all the services provided for under the Lease.
22. Capital Improvements: Any replacement or repair by Lessor of any
items of a capital nature located within the Premises shall be of substantially
the same quality as the item to be repaired or replaced.
23. Excess Rents: Notwithstanding anything to the contrary in the Lease,
if Lessee enters a permissible assignment or sublet pursuant to the Lease as
amended by Paragraph 9 of this Addendum, Lessee shall deliver to Lessor fifty
percent (50%) of any consideration payable to Lessee thereunder in excess of the
Rent payable by Lessee under the Lease, after deducting therefrom all reasonable
costs necessary to effect the assignment or sublet, including, without
limitation, brokerage and attorneys' fees, advertising costs, redecorating
costs, and the cost to Lessee of the installation of the Lessee Improvements in
the Premises.
24. Early Termination: Lessee shall have two options(s) to terminate the
Lease, the first to be effective as of the end of the thirty-sixth (36th) month
of the Lease Term, and the second, if the first option is not exercised, to be
effective as of the end of the fifty-fourth (54th) month of the Lease Term.
Lessee shall exercise the first option by providing Lessor with written notice
of termination not later than six (6) months prior to the termination date,
together with a termination payment equal to two (2) months' Base Rent
calculated pursuant to Section 1.5 of the Lease. Lessee shall exercise the
second option by providing Lessor with written notice of termination not later
than six (6) months prior to the termination date, together with a termination
payment equal to one (1) month's Base Rent.
44
25. Effect of Second Addendum: In the event of any inconsistency between
this Addendum and/or the Exhibits hereto and the Lease, and any of the other
addenda, riders, exhibits, rules, regulations, covenants, attachments,
conditions and restrictions referred to in the Lease, the terms of this Addendum
and the Exhibits hereto shall prevail. As used herein, the term "Lease" shall
mean the Lease, this Addendum and all addenda, riders, exhibits, rules,
regulations, covenants, conditions and restrictions referred to in the Lease or
this Addendum.
LESSOR: LESSEE:
PORTOLA LAND COMPANY, QUICKTURN DESIGN SYSTEMS, INC.
a California limited partnership a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ X. X. Xxxxx
------------------------------- -------------------------------
Printed Printed
Name: Xxxxxxx X. Xxxxxxx Name: X. X. Xxxxx
------------------------------- -------------------------------
Title: Managing Partner Title: Vice President
------------------------------ ------------------------------
Date: 4/26/94 Date: April 26, 1994
------------------------------- -------------------------------
