Exhibit 10.8
LEASE
CALWEST INDUSTRIAL PROPERTIES, LLC,
Landlord,
and
LIMELIGHT NETWORKS, INC.,
Tenant
TABLE OF CONTENTS
PAGE
----
1. USE AND RESTRICTIONS ON USE.......................................... 1
2. TERM................................................................. 1
3. RENT................................................................. 2
4. RENT ADJUSTMENTS..................................................... 3
5. SECURITY DEPOSIT..................................................... 4
6. ALTERATIONS.......................................................... 4
7. REPAIR............................................................... 5
8. LIENS................................................................ 6
9. ASSIGNMENT AND SUBLETTING............................................ 6
10. INDEMNIFICATION...................................................... 7
11. INSURANCE............................................................ 8
12. WAIVER OF SUBROGATION................................................ 8
13. SERVICES AND UTILITIES............................................... 8
14. HOLDING OVER......................................................... 8
15. SUBORDINATION........................................................ 9
16. RULES AND REGULATIONS................................................ 9
17. REENTRY BY LANDLORD.................................................. 9
18. DEFAULT.............................................................. 9
19. REMEDIES............................................................. 10
20. TENANT'S BANKRUPTCY OR INSOLVENCY.................................... 12
21. QUIET ENJOYMENT...................................................... 13
22. CASUALTY............................................................. 13
23. EMINENT DOMAIN....................................................... 14
24. SALE BY LANDLORD..................................................... 14
25. ESTOPPEL CERTIFICATES................................................ 14
26. SURRENDER OF PREMISES................................................ 15
27. NOTICES.............................................................. 15
28. TAXES PAYABLE BY TENANT.............................................. 15
29. RELOCATION OF TENANT................................................. 16
30. DEFINED TERMS AND HEADINGS........................................... 16
31. TENANT'S AUTHORITY................................................... 16
32. FINANCIAL STATEMENTS AND CREDIT REPORTS.............................. 16
33. COMMISSIONS.......................................................... 16
34. TIME AND APPLICABLE LAW.............................................. 17
35. SUCCESSORS AND ASSIGNS............................................... 17
36. ENTIRE AGREEMENT..................................................... 17
37. EXAMINATION NOT OPTION............................................... 17
i
TABLE OF CONTENTS
(continued)
PAGE
----
38. RECORDATION.......................................................... 17
39. OPTION TO EXTEND..................................................... 17
40. TELECOMMUNICATIONS EQUIPMENT......................................... 17
41. LIMITATION OF LANDLORD'S LIABILITY................................... 18
EXHIBIT A - FLOOR PLAN DEPICTING THE PREMISES
EXHIBIT A-1 - SITE PLAN
EXHIBIT B - XXXX OF SALE
EXHIBIT C - COMMENCEMENT DATE MEMORANDUM
EXHIBIT D - RULES AND REGULATIONS
EXHIBIT E - ADDITIONAL SURRENDER CONDITIONS
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MULTI-TENANT INDUSTRIAL NET LEASE
REFERENCE PAGES
BUILDING: 000 X. 00XX XXXXXX
XXXXXXX, XX 00000
LANDLORD: CALWEST INDUSTRIAL PROPERTIES, LLC,
A CALIFORNIA LIMITED LIABILITY COMPANY
LANDLORD'S ADDRESS: C/O RREEF MANAGEMENT COMPANY
0000 XXXX XXXXXX XXXXXX XXXX.
XXXXX 00
XXXXXXX, XX 00000
WIRE INSTRUCTIONS AND/OR FILE 50050
ADDRESS FOR RENT PAYMENT: XXX XXXXXXX, XX 00000-0000
LEASE REFERENCE DATE: SEPTEMBER 7, 2005
TENANT: LIMELIGHT NETWORKS, INC., A DELAWARE
CORPORATION
TENANT'S NOTICE ADDRESS:
(a) As of beginning of 000 X.00XX XXXXXX
Term: XXXXXXX, XX 00000
(b) Prior to beginning of 0000 X. 00XX XX.
Term (if different): XXXXX, XX 00000
PREMISES ADDRESS: 000 X. 00XX XXXXXX
XXXXXXX, XX 00000
PREMISES RENTABLE AREA: APPROXIMATELY 8,224 RENTABLE SQ. FT. (FOR
OUTLINE OF PREMISES SEE EXHIBIT A)
USE: GENERAL ADMINISTRATIVE AND SALES OFFICES
RELATED TO THE WAREHOUSING AND DISTRIBUTION OF
CONTENT DELIVERY NETWORK FOR INTERNET
DISTRIBUTION OF VIDEO, MUSIC, GAMES AND
DOWNLOADS
SCHEDULED COMMENCEMENT DATE: OCTOBER 1, 2005
TERM OF LEASE: APPROXIMATELY FIVE (5) YEARS, BEGINNING ON THE
COMMENCEMENT DATE AND ENDING ON THE TERMINATION
DATE. THE PERIOD FROM THE COMMENCEMENT DATE TO
THE LAST DAY OF THE SAME MONTH IS THE
"COMMENCEMENT MONTH."
TERMINATION DATE: THE LAST DAY OF THE SIXTIETH (60TH) FULL
CALENDAR MONTH AFTER (IF THE COMMENCEMENT MONTH
IS NOT A FULL CALENDAR MONTH), OR FROM AND
INCLUDING (IF THE COMMENCEMENT MONTH IS A FULL
CALENDAR MONTH), THE COMMENCEMENT MONTH
iii
ANNUAL RENT and MONTHLY INSTALLMENT OF
RENT (Article 3):
MONTHS: $/RSF MONTHLY/RENT*
------- ------ -------------
COMMENCEMENT
DATE-1/31/06 $ 0.00 $ 0.00
2/1/06-9/30/06 $0.825 $6,784.80
10/1/06-9/30/07 $0..85 $6,990.40
10/1/07-9/30/08 $0.875 $7,196.00
10/1/08-9/30/09 $ 0.90 $7,401.60
10/1/09-9/30/10 $0.925 $7,607.20
* PLUS APPLICABLE SALES AND TRANSACTION PRIVILEGE TAXES
INITIAL ESTIMATED MONTHLY $888.19, WHICH CHARGES SHALL COMMENCE TO BE
INSTALLMENT OF RENT DUE ON FEBRUARY 1, 2006
ADJUSTMENTS (Article 3)
TENANT'S PROPORTIONATE SHARE: 9.64%
SECURITY DEPOSIT: $7,500.00
ASSIGNMENT/SUBLETTING FEE $750.00
SUBORDINATION FEE $750.00
(IF LANDLORD FORM IS USED, THIS FEE WILL BE
WAIVED.)
REAL ESTATE BROKER DUE LANDLORD WILL PAY A BROKERAGE FEE TO XXXXXXXX
COMMISSION: CROW COMPANY (XXXX XXXXXX/XX XXXXX)
TENANT WILL PAY A BROKERAGE FEE TO CIRCLE ROAD
(XXXXX XXXXXXX) PER SEPARATE AGREEMENT BETWEEN
TENANT AND CIRCLE ROAD
TENANT'S SIC CODE: 3648
AMORTIZATION RATE: 11%
The Reference Pages information is incorporated into and made a part of the
Lease. In the event of any conflict between any Reference Pages information and
the Lease, the Lease shall control. This Lease includes Exhibits A through E,
all of which are made a part of this Lease.
LANDLORD: TENANT:
CALWEST INDUSTRIAL PROPERTIES, LLC, LIMELIGHT NETWORKS, INC.,
A CALIFORNIA LIMITED LIABILITY A DELAWARE CORPORATION
COMPANY
By: RREEF MANAGEMENT COMPANY, a
Delaware corporation, Authorized
Agent
By: /s/ Xxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------- ------------------------------------
Name: Xxxx X. Xxxx, CPM Name: Xxxxxxx X. Xxxxxxxx
Title: District Manager Title: President
Dated: 9/23/05 Dated: 9-22-05
iv
LEASE
By this Lease Landlord leases to Tenant and Tenant leases from Landlord the
Premises in the Building as set forth and described on the Reference Pages. The
Premises are depicted on the floor plan attached hereto as Exhibit A, and the
Building is depicted on the site plan attached hereto as Exhibit A-1. The
Reference Pages, including all terms defined thereon, are incorporated as part
of this Lease.
1. USE AND RESTRICTIONS ON USE.
1.1 The Premises are to be used solely for the purposes set forth on the
Reference Pages. Tenant shall not do or permit anything to be done in or about
the Premises which will in any way obstruct or interfere with the rights of
other tenants or occupants of the Building or injure, annoy, or disturb them, or
allow the Premises to be used for any improper, immoral, unlawful, or
objectionable purpose, or commit any waste. Tenant shall not do, permit or
suffer in, on, or about the Premises the sale of any alcoholic liquor without
the written consent of Landlord first obtained. Tenant shall comply with all
governmental laws, ordinances and regulations applicable to the use of the
Premises and its occupancy and shall promptly comply with all governmental
orders and directions for the correction, prevention and abatement of any
violations in the Building or appurtenant land, caused or permitted by, or
resulting from the specific use by, Tenant, or in or upon, or in connection
with, the Premises, all at Tenant's sole expense. Tenant shall not do or permit
anything to be done on or about the Premises or bring or keep anything into the
Premises which will in any way increase the rate of, invalidate or prevent the
procuring of any insurance protecting against loss or damage to the Building or
any of its contents by fire or other casualty or against liability for damage to
property or injury to persons in or about the Building or any part thereof.
1.2 Tenant shall not, and shall not direct, suffer or permit any of its
agents, contractors, employees, licensees or invitees (collectively, the "Tenant
Entities") to at any time handle, use, manufacture, store or dispose of in or
about the Premises or the Building any (collectively "Hazardous Materials")
flammables, explosives, radioactive materials, hazardous wastes or materials,
toxic wastes or materials, or other similar substances, petroleum products or
derivatives or any substance subject to regulation by or under any federal,
state and local laws and ordinances relating to the protection of the
environment or the keeping, use or disposition of environmentally hazardous
materials, substances, or wastes, presently in effect or hereafter adopted, all
amendments to any of them, and all rules and regulations issued pursuant to any
of such laws or ordinances (collectively "Environmental Laws"), nor shall Tenant
suffer or permit any Hazardous Materials to be used in any manner not fully in
compliance with all Environmental Laws, in the Premises or the Building and
appurtenant land or allow the environment to become contaminated with any
Hazardous Materials. Notwithstanding the foregoing, Tenant may handle, store,
use or dispose of products containing small quantities of Hazardous Materials
(such as aerosol cans containing insecticides, toner for copiers, paints, paint
remover and the like) to the extent customary and necessary for the use of the
Premises for general office purposes; provided that Tenant shall always handle,
store, use, and dispose of any such Hazardous Materials in a safe and lawful
manner and never allow such Hazardous Materials to contaminate the Premises,
Building and appurtenant land or the environment. Tenant shall protect, defend,
indemnify and hold each and all of the Landlord Entities (as defined in Article
30) harmless from and against any and all loss, claims, liability or costs
(including court costs and attorney's fees) incurred by reason of any actual or
asserted failure of Tenant to fully comply with all applicable Environmental
Laws, or the presence, handling, use or disposition in or from the Premises of
any Hazardous Materials by Tenant or any Tenant Entity (even though permissible
under all applicable Environmental Laws or the provisions of this Lease), or by
reason of any actual or asserted failure of Tenant to keep, observe, or perform
any provision of this Section 1.2.
1.3 Tenant and the Tenant Entities will be entitled to the non-exclusive
use of the common areas of the Building as they exist from time to time during
the Term, including the parking facilities, subject to Landlord's rules and
regulations regarding such use. However, in no event will Tenant or the Tenant
Entities park more vehicles in the parking facilities than Tenant's
Proportionate Share of the total parking spaces available for common use. The
foregoing shall not be deemed to provide Tenant with an exclusive right to any
parking spaces or any guaranty of the availability of any particular parking
spaces or any specific number of parking spaces.
2. TERM.
2.1 The Term of this Lease shall begin on the date ("Commencement Date")
which shall be the later of the Scheduled Commencement Date as shown on the
Reference Pages and the date that Landlord shall tender possession of the
Premises to Tenant, and shall terminate on the date as shown on the Reference
Pages ("Termination Date"), unless sooner terminated by the provisions of this
Lease. Landlord shall have no obligation to (but may do so earlier) tender
possession of the Premises to Tenant until Tenant has submitted to Landlord
checks representing the first Monthly Installment of Rent that
1
is due (representing the month of February, 2006), the rent adjustments due per
Article 4 below (which are due for the first month of the Term, and each month
thereafter), and the Security Deposit, together with proof satisfactory to
Landlord that Tenant has properly procured all of the insurance coverages
required of Tenant under this Lease). Landlord shall tender possession of the
Premises in "broom-swept" and clean condition, with all of the electrical,
mechanical (excluding the Xxxxxxx air conditioning units) and plumbing systems
in good working condition, the work, if any, to be performed by Landlord
pursuant to Exhibit B to this Lease substantially completed. Tenant understands
and agrees that the existing generator in the Premises shall be delivered to it
in its current "as is, where is" condition, with Tenant being responsible for
all maintenance, repair and/or replacement of the generator during the Term of
the Lease. If Tenant spends in excess of One Hundred Fifty Thousand Dollars
($150,000.00) on the maintenance, repair and/or replacement of the generator
during the sixty (60) month initial Term of the Lease, and if reasonable proof
of such expenses is delivered to Landlord at least thirty (30) days prior to
September 30, 2010, then Landlord shall execute a xxxx of sale as in the form
attached hereto as Exhibit B transferring all of Landlord's right, title and
interest in and to the generator to Tenant, without any warranty or
representation as to its condition. Despite any inference to the contrary which
can be drawn from the foregoing language, if an Event of Default (as defined in
Article 18 of the Lease) occurs during the Term, of the Lease, then Landlord
shall have no obligation to deliver the generator to Tenant regardless of how
much Tenant spends in connection therewith. Tenant shall deliver a punch list of
items not in good working condition completed within thirty (30) days after
Landlord tenders possession of the Premises and Landlord agrees to proceed with
due diligence to perform its obligations regarding such items. Tenant shall, at
Landlord's request, execute and deliver a memorandum agreement provided by
Landlord in the form of Exhibit C attached hereto, setting forth the actual
Commencement Date, Termination Date and, if necessary, a revised rent schedule.
Should Tenant fail to do so within thirty (30) days after Landlord's request,
the information set forth in such memorandum provided by Landlord shall be
conclusively presumed to be agreed and correct. Upon occupancy of the Premises,
Landlord shall deliver to Tenant a xxxx of sale as in the form attached hereto
as Exhibit B.
2.2 Tenant agrees that in the event of the inability of Landlord to deliver
possession of the Premises on the Scheduled Commencement Date for any reason,
Landlord shall not be liable for any damage resulting from such inability, but
Tenant shall not be liable for any rent until the time when Landlord can, after
notice to Tenant, deliver possession of the Premises to Tenant. No such failure
to give possession on the Scheduled Commencement Date shall affect the other
obligations of Tenant under this Lease, except that if Landlord is unable to
deliver possession of the Premises within one hundred twenty (120) days after
the Scheduled Commencement Date (other than as a result of strikes, shortages of
materials, holdover tenancies or similar matters beyond the reasonable control
of Landlord and Tenant is notified by Landlord in writing as to such delay),
Tenant shall have the option to terminate this Lease unless said delay is as a
result of: (a) Tenant's failure to agree to plans and specifications and/or
construction cost estimates or bids; (b) Tenant's request for materials,
finishes or installations other than Landlord's standard except those, if any,
that Landlord shall have expressly agreed to furnish without extension of time
agreed by Landlord; (c) Tenant's change in any plans or specifications; or, (d)
performance or completion by a party employed by Tenant (each of the foregoing,
a "Tenant Delay"). If any delay is the result of a Tenant Delay, the
Commencement Date and the payment of rent under this Lease shall be accelerated
by the number of days of such Tenant Delay.
2.3 In the event Landlord permits Tenant, or any agent, employee or
contractor of Tenant, to enter, use or occupy the Premises prior to the
Commencement Date, such entry, use or occupancy shall be subject to all the
provisions of this Lease other than the payment of rent, including, without
limitation, Tenant's compliance with the insurance requirements of Article 11.
Said early possession shall not advance the Termination Date.
3. RENT.
3.1 Tenant agrees to pay to Landlord the Annual Rent in effect from time to
time by paying the Monthly Installment of Rent then in effect on or before the
first day of each full calendar month during the Term, except that the first
full month's rent (representing the charges due for the month of February, 2006)
shall be paid upon the execution of this Lease. The Monthly Installment of Rent
in effect at any time shall be one-twelfth (1/12) of the Annual Rent in effect
at such time. Rent for any period during the Term which is less than a full
month shall be a prorated portion of the Monthly Installment of Rent based upon
the number of days in such month. Said rent shall be paid to Landlord, without
deduction or offset and without notice or demand, at the Rent Payment Address,
as set forth on the Reference Pages, or to such other person or at such other
place as Landlord may from time to time designate in writing. If an Event of
Default occurs, Landlord may require by notice to Tenant that all subsequent
rent payments be made by an automatic payment from Tenant's bank account to
Landlord's account, without cost to Landlord. Tenant must implement such
automatic payment system prior to the next scheduled rent payment or within ten
(10) days after Landlord's notice, whichever is later. Unless specified in this
Lease to the contrary, all amounts and sums payable by Tenant to Landlord
pursuant to this Lease shall be deemed additional rent.
2
3.2 Tenant recognizes that late payment of any rent or other sum due under
this Lease will result in administrative expense to Landlord, the extent of
which additional expense is extremely difficult and economically impractical to
ascertain. Tenant therefore agrees that if rent or any other sum is not paid
when due and payable pursuant to this Lease, a late charge shall be imposed in
an amount equal to the greater of: (a) Fifty Dollars ($50.00), or (b) six
percent (6%) of the unpaid rent or other payment. The amount of the late charge
to be paid by Tenant shall be reassessed and added to Tenant's obligation for
each successive month until paid. The provisions of this Section 3.2 in no way
relieve Tenant of the obligation to pay rent or other payments on or before the
date on which they are due, nor do the terms of this Section 3.2 in any way
affect Landlord's remedies pursuant to Article 19 of this Lease in the event
said rent or other payment is unpaid after date due.
4. RENT ADJUSTMENTS.
4.1 For the purpose of this Article 4, the following terms are defined as
follows:
4.1.1 LEASE YEAR: Each fiscal year (as determined by Landlord from
time to time) falling partly or wholly within the Term.
4.1.2 EXPENSES: All costs of operation, maintenance, repair,
replacement and management of the Building (including the amount of any credits
which Landlord may grant to particular tenants of the Building in lieu of
providing any standard services or paying any standard costs described in this
Section 4.1.2 for similar tenants), as determined in accordance with generally
accepted accounting principles, including the following costs by way of
illustration, but not limitation: water and sewer charges; insurance charges of
or relating to all insurance policies and endorsements deemed by Landlord to be
reasonably necessary or desirable and relating in any manner to the protection,
preservation, or operation of the Building or any part thereof; utility costs,
including, but not limited to, the cost of heat, light, power, steam, gas; waste
disposal; the cost of janitorial services; the cost of security and alarm
services (including any central station signaling system); costs of cleaning,
repairing, replacing and maintaining the common areas, including parking and
landscaping, window cleaning costs; labor costs; costs and expenses of managing
the Building including management and/or administrative fees; air conditioning
maintenance costs; elevator maintenance fees and supplies; material costs;
equipment costs including the cost of maintenance, repair and service agreements
and rental and leasing costs; purchase costs of equipment; current rental and
leasing costs of items which would be capital items if purchased; tool costs;
licenses, permits and inspection fees; wages and salaries; employee benefits and
payroll taxes; accounting and legal fees; any sales, use or service taxes
incurred in connection therewith. In addition, Landlord shall be entitled to
recover, as additional rent (which, along with any other capital expenditures
constituting Expenses, Landlord may either include in Expenses or cause to be
billed to Tenant along with Expenses and Taxes but as a separate item), Tenant's
Proportionate Share of: (i) an allocable portion of the cost of capital
improvement items which are reasonably calculated to reduce operating expenses;
(ii) the cost of fire sprinklers and suppression systems and other life safety
systems; and (iii) other capital expenses which are required under any
governmental laws, regulations or ordinances which were not applicable to the
Building at the time it was constructed; but the costs described in this
sentence shall be amortized over the reasonable life of such expenditures in
accordance with such reasonable life and amortization schedules as shall be
determined by Landlord in accordance with generally accepted accounting
principles, with interest on the unamortized amount at one percent (1%) in
excess of the Wall Street Journal prime lending rate announced from time to
time. Expenses shall not include depreciation or amortization of the Building or
equipment in the Building except as provided herein, loan principal payments,
costs of alterations of tenants' premises, leasing commissions, interest
expenses on long-term borrowings or advertising costs.
4.1.3 TAXES: Real estate taxes and any other taxes, charges and
assessments which are levied with respect to the Building or the land
appurtenant to the Building, or with respect to any improvements, fixtures and
equipment or other property of Landlord, real or personal, located in the
Building and used in connection with the operation of the Building and said
land, any payments to any ground lessor in reimbursement of tax payments made by
such lessor; and all fees, expenses and costs incurred by Landlord in
investigating, protesting, contesting or in any way seeking to reduce or avoid
increase in any assessments, levies or the tax rate pertaining to any Taxes to
be paid by Landlord in any Lease Year. Taxes shall not include any corporate
franchise, or estate, inheritance or net income tax, or tax imposed upon any
transfer by Landlord of its interest in this Lease or the Building or any taxes
to be paid by Tenant pursuant to Article 28.
4.2 Tenant shall pay as additional rent for each Lease Year Tenant's
Proportionate Share of Expenses and Taxes incurred for such Lease Year.
4.3 The annual determination of Expenses shall be made by Landlord and
shall be binding upon Landlord and Tenant, subject to the provisions of this
Section 4.3. During the Term, Tenant may review, at Tenant's sole cost and
expense, the books and records supporting such determination in an office of
Landlord, or Landlord's agent, during normal business
3
hours, upon giving Landlord five (5) days advance written notice within sixty
(60) days after receipt of such determination, but in no event more often than
once in any one (1) year period, subject to execution of a confidentiality
agreement acceptable to Landlord, and provided that if Tenant utilizes an
independent accountant to perform such review it shall be one of national
standing which is reasonably acceptable to Landlord, is not compensated on a
contingency basis and is also subject to such confidentiality agreement. If
Tenant fails to object to Landlord's determination of Expenses within ninety
(90) days after receipt, or if any such objection fails to state with
specificity the reason for the objection, Tenant shall be deemed to have
approved such determination and shall have no further right to object to or
contest such determination. In the event that during all or any portion of any
Lease Year or Base Year, the Building is not fully rented and occupied Landlord
shall make an appropriate adjustment in occupancy-related Expenses for such year
for the purpose of avoiding distortion of the amount of such Expenses to be
attributed to Tenant by reason of variation in total occupancy of the Building,
by employing consistent and sound accounting and management principles to
determine Expenses that would have been paid or incurred by Landlord had the
Building been at least ninety-five percent (95%) rented and occupied, and the
amount so determined shall be deemed to have been Expenses for such Lease Year.
4.4 Prior to the actual determination thereof for a Lease Year, Landlord
may from time to time estimate Tenant's liability for Expenses and/or Taxes
under Section 4.2, Article 6 and Article 28 for the Lease Year or portion
thereof. Landlord will give Tenant written notification of the amount of such
estimate and Tenant agrees that it will pay, by increase of its Monthly
Installments of Rent due in such Lease Year, additional rent in the amount of
such estimate. Any such increased rate of Monthly Installments of Rent pursuant
to this Section 4.4 shall remain in effect until further written notification to
Tenant pursuant hereto.
4.5 When the above mentioned actual determination of Tenant's Liability for
Expenses and/or Taxes is made for any Lease Year and when Tenant is so notified
in writing, then:
4.5.1 If the total additional rent Tenant actually paid pursuant to
Section 4.3 on account of Expenses and/or Taxes for the Lease Year is less than
Tenant's liability for Expenses and/or Taxes, then Tenant shall pay such
deficiency to Landlord as additional rent in one lump sum within thirty (30)
days of receipt of Landlord's xxxx therefor; and
4.5.2 If the total additional rent Tenant actually paid pursuant to
Section 4.3 on account of Expenses and/or Taxes for the Lease Year is more than
Tenant's Liability for Expenses and/or Taxes, then Landlord shall credit the
difference against the then next due payments to be made by Tenant under this
Article 4, or, if the Lease has terminated, refund the difference in cash.
4.6 If the Commencement Date is other than January 1 or if the Termination
Date is other than December 31, Tenant's liability for Expenses and Taxes for
the Lease Year in which said Date occurs shall be prorated based upon a three
hundred sixty-five (365) day year.
5. SECURITY DEPOSIT. Tenant shall deposit the Security Deposit with Landlord
upon the execution of this Lease. Said sum shall be held by Landlord as security
for the faithful performance by Tenant of all the terms, covenants and
conditions of this Lease to be kept and performed by Tenant and not as an
advance rental deposit or as a measure of Landlord's damage in case of Tenant's
default. If Tenant defaults with respect to any provision of this Lease,
Landlord may use any part of the Security Deposit for the payment of any rent or
any other sum in default, or for the payment of any amount which Landlord may
spend or become obligated to spend by reason of Tenant's default, or to
compensate Landlord for any other loss or damage which Landlord may suffer by
reason of Tenant's default. If any portion is so used, Tenant shall within five
(5) days after written demand therefor, deposit with Landlord an amount
sufficient to restore the Security Deposit to its original amount and Tenant's
failure to do so shall be a material breach of this Lease. Except to such
extent, if any, as shall be required by law, Landlord shall not be required to
keep the Security Deposit separate from its general funds, and Tenant shall not
be entitled to interest on such deposit. If Tenant shall fully and faithfully
perform every provision of this Lease to be performed by it, the Security
Deposit or any balance thereof shall be returned to Tenant at such time after
termination of this Lease when Landlord shall have determined that all of
Tenant's obligations under this Lease have been fulfilled.
6. ALTERATIONS.
6.1 Except for those, if any, specifically provided for in Exhibit B to
this Lease, Tenant shall not make or suffer to be made any alterations,
additions, or improvements, including, but not limited to, the attachment of any
fixtures or equipment in, on, or to the Premises or any part thereof or the
making of any improvements as required by Article 7, without the prior written
consent of Landlord. When applying for such consent, Tenant shall, if requested
by Landlord, furnish complete plans and specifications for such alterations,
additions and improvements. Landlord's consent shall not be
4
unreasonably withheld with respect to alterations which (i) are not structural
in nature, (ii) are not visible from the exterior of the Building, (iii) do not
affect or require modification of the Building's electrical, mechanical,
plumbing, HVAC or other systems, and (iv) in aggregate do not cost more than
$5.00 per rentable square foot of that portion of the Premises affected by the
alterations in question.
6.2 In the event Landlord consents to the making of any such alteration,
addition or improvement by Tenant, the same shall be made by using either
Landlord's contractor or a contractor reasonably approved by Landlord, in either
event at Tenant's sole cost and expense. If Tenant shall employ any contractor
other than Landlord's contractor and such other contractor or any subcontractor
of such other contractor shall employ any non-union labor or supplier, Tenant
shall be responsible for and hold Landlord harmless from any and all delays,
damages and extra costs suffered by Landlord as a result of any dispute with any
labor unions concerning the wage, hours, terms or conditions of the employment
of any such labor. In any event Landlord may charge Tenant a construction
management fee not to exceed five percent (5%) of the cost of such work to cover
its overhead as it relates to such proposed work, plus third-party costs
actually incurred by Landlord in connection with the proposed work and the
design thereof, with all such amounts being due five (5) days after Landlord's
demand.
6.3 All alterations, additions or improvements proposed by Tenant shall be
constructed in accordance with all government laws, ordinances, rules and
regulations, using Building standard materials where applicable, and Tenant
shall, prior to construction, provide the additional insurance required under
Article 11 in such case, and also all such assurances to Landlord as Landlord
shall reasonably require to assure payment of the costs thereof, including but
not limited to, notices of non-responsibility, waivers of lien, surety company
performance bonds and funded construction escrows and to protect Landlord and
the Building and appurtenant land against any loss from any mechanic's,
materialmen's or other liens. Tenant shall pay in addition to any sums due
pursuant to Article 4, any increase in real estate taxes attributable to any
such alteration, addition or improvement for so long, during the Term, as such
increase is ascertainable; at Landlord's election said sums shall be paid in the
same way as sums due under Article 4. Landlord may, as a condition to its
consent to any particular alterations or improvements, require Tenant to deposit
with Landlord the amount reasonably estimated by Landlord as sufficient to cover
the cost of removing such alterations or improvements and restoring the
Premises, to the extent required under Section 26.2
7. REPAIR.
7.1 Landlord shall have no obligation to alter, remodel, improve, repair,
decorate or paint the Premises, except as specified in Exhibit B if attached to
this Lease and except that Landlord shall repair and maintain the structural
portions of the roof, foundation and walls of the Building. By taking possession
of the Premises, Tenant accepts them as being in good order, condition and
repair and in the condition in which Landlord is obligated to deliver them,
except as set forth in the punch list to be delivered pursuant to Section 2.1.
It is hereby understood and agreed that no representations respecting the
condition of the Premises or the Building have been made by Landlord to Tenant,
except as specifically set forth in this Lease. Landlord shall not be liable for
any failure to make any repairs or to perform any maintenance unless such
failure shall persist for an unreasonable time after written notice of the need
of such repairs or maintenance is given to Landlord by Tenant.
7.2 Tenant shall at its own cost and expense keep and maintain all parts of
the Premises and such portion of the Building and improvements as are within the
exclusive control of Tenant in good condition, promptly making all necessary
repairs and replacements, whether ordinary or extraordinary, with materials and
workmanship of the same character, kind and quality as the original (including,
but not limited to, repair and replacement of all fixtures installed by Tenant,
water heaters serving the Premises, windows, glass and plate glass, doors,
exterior stairs, skylights, any special office entries, interior walls and
finish work, floors and floor coverings, heating and air conditioning systems
serving the Premises, electrical systems and fixtures, sprinkler systems, dock
boards, truck doors, dock bumpers, plumbing work and fixtures, and performance
of regular removal of trash and debris). Tenant as part of its obligations
hereunder shall keep the Premises in a clean and sanitary condition. Tenant
will, as far as possible keep all such parts of the Premises from deterioration
due to ordinary wear and from falling temporarily out of repair, and upon
termination of this Lease in any way Tenant will yield up the Premises to
Landlord in good condition and repair, loss by fire or other casualty excepted
(but not excepting any damage to glass). Tenant shall, at its own cost and
expense, repair any damage to the Premises or the Building resulting from and/or
caused in whole or in part by the negligence or misconduct of Tenant, its
agents, employees, contractors, invitees, or any other person entering upon the
Premises as a result of Tenant's business activities or caused by Tenant's
default hereunder.
7.3 Except as provided in Article 22, there shall be no abatement of rent
and no liability of Landlord by reason of any injury to or interference with
Tenant's business arising from the making of any repairs, alterations or
improvements in or to any portion of the Building or the Premises or to
fixtures, appurtenances and equipment in the Building. Except to the
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extent, if any, prohibited by law, Tenant waives the right to make repairs at
Landlord's expense under any law, statute or ordinance now or hereafter in
effect.
7.4 Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
approved by Landlord for servicing all heating and air conditioning systems and
equipment serving the Premises (and a copy thereof shall be furnished to
Landlord). The service contract must include all services suggested by the
equipment manufacturer in the operation/maintenance manual and must become
effective within thirty (30) days of the date Tenant takes possession of the
Premises. Should Tenant fail to do so, Landlord may, upon notice to Tenant,
enter into such a maintenance/ service contract on behalf of Tenant or perform
the work and in either case, charge Tenant the cost thereof along with a
reasonable amount for Landlord's overhead.
7.5 Landlord shall coordinate any repairs and other maintenance of any
railroad tracks serving the Building and, if Tenant uses such rail tracks,
Tenant shall reimburse Landlord or the railroad company from time to time upon
demand, as additional rent, for its share of the costs of such repair and
maintenance and for any other sums specified in any agreement to which Landlord
or Tenant is a party respecting such tracks, such costs to be borne
proportionately by all tenants in the Building using such rail tracks, based
upon the actual number of rail cars shipped and received by such tenant during
each calendar year during the Term.
8. LIENS. Tenant shall keep the Premises, the Building and appurtenant land and
Tenant's leasehold interest in the Premises free from any liens arising out of
any services, work or materials performed, furnished, or contracted for by
Tenant, or obligations incurred by Tenant. In the event that Tenant fails,
within ten (10) days following the imposition of any such lien, to either cause
the same to be released of record or provide Landlord with insurance against the
same issued by a major title insurance company or such other protection against
the same as Landlord shall accept (such failure to constitute an Event of
Default), Landlord shall have the right to cause the same to be released by such
means as it shall deem proper, including payment of the claim giving rise to
such lien. All such sums paid by Landlord and all expenses incurred by it in
connection therewith shall be payable to it by Tenant within five (5) days
Landlord's demand.
9. ASSIGNMENT AND SUBLETTING.
9.1 Tenant shall not have the right to assign or pledge this Lease or to
sublet the whole or any part of the Premises whether voluntarily or by operation
of law, or permit the use or occupancy of the Premises by anyone other than
Tenant, and shall not make, suffer or permit such assignment, subleasing or
occupancy without the prior written consent of Landlord, such consent not to be
unreasonably withheld, and said restrictions shall be binding upon any and all
assignees of the Lease and subtenants of the Premises. In the event Tenant
desires to sublet, or permit such occupancy of, the Premises, or any portion
thereof, or assign this Lease, Tenant shall give written notice thereof to
Landlord at least sixty (60) days but no more than one hundred twenty (120) days
prior to the proposed commencement date of such subletting or assignment, which
notice shall set forth the name of the proposed subtenant or assignee, the
relevant terms of any sublease or assignment and copies of financial reports and
other relevant financial information of the proposed subtenant or assignee.
9.2 Notwithstanding any assignment or subletting, permitted or otherwise,
Tenant shall at all times remain directly, primarily and fully responsible and
liable for the payment of the rent specified in this Lease and for compliance
with all of its other obligations under the terms, provisions and covenants of
this Lease. Upon the occurrence of an Event of Default, if the Premises or any
part of them are then assigned or sublet, Landlord, in addition to any other
remedies provided in this Lease or provided by law, may, at its option, collect
directly from such assignee or subtenant all rents due and becoming due to
Tenant under such assignment or sublease and apply such rent against any sums
due to Landlord from Tenant under this Lease, and no such collection shall be
construed to constitute a novation or release of Tenant from the further
performance of Tenant's obligations under this Lease.
9.3 In addition to Landlord's right to approve of any subtenant or
assignee, Landlord shall have the option, in its sole discretion, in the event
of any proposed subletting or assignment, to terminate this Lease, or in the
case of a proposed subletting of less than the entire Premises, to recapture the
portion of the Premises to be sublet, as of the date the subletting or
assignment is to be effective. The option shall be exercised, if at all, by
Landlord giving Tenant written notice given by Landlord to Tenant within thirty
(30) days following Landlord's receipt of Tenant's written notice as required
above. However, if Tenant notifies Landlord, within five (5) days after receipt
of Landlord's termination notice, that Tenant is rescinding its proposed
assignment or sublease, the termination notice shall be void and the Lease shall
continue in full force and effect. If this Lease shall be terminated with
respect to the entire Premises pursuant to this Section, the Term of this Lease
shall end on the date stated in Tenant's notice as the effective date of the
sublease or assignment as if that date had been originally fixed in this Lease
for the expiration of the Term. If Landlord recaptures under this Section only a
portion of the Premises, the rent to be paid from time to time during the
unexpired Term shall xxxxx proportionately based on the
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proportion by which the approximate square footage of the remaining portion of
the Premises shall be less than that of the Premises as of the date immediately
prior to such recapture. Tenant shall, at Tenant's own cost and expense,
discharge in full any outstanding commission obligation which may be due and
owing as a result of any proposed assignment or subletting, whether or not the
Premises are recaptured pursuant to this Section 9.3 and rented by Landlord to
the proposed tenant or any other tenant.
9.4 In the event that Tenant sells, sublets, assigns or transfers this
Lease, Tenant shall pay to Landlord as additional rent an amount equal to one
hundred percent (100%) of any Increased Rent (as defined below), less the Costs
Component (as defined below), when and as such Increased Rent is received by
Tenant. As used in this Section, "Increased Rent" shall mean the excess of (i)
all rent and other consideration which Tenant is entitled to receive by reason
of any sale, sublease, assignment or other transfer of this Lease, over (ii) the
rent otherwise payable by Tenant under this Lease at such time. For purposes of
the foregoing, any consideration received by Tenant in form other than cash
shall be valued at its fair market value as determined by Landlord in good
faith. The "Costs Component" is that amount which, if paid monthly, would fully
amortize on a straight-line basis, over the entire period for which Tenant is to
receive Increased Rent, the reasonable costs incurred by Tenant for leasing
commissions and tenant improvements in connection with such sublease, assignment
or other transfer.
9.5 Notwithstanding any other provision hereof, it shall be considered
reasonable for Landlord to withhold its consent to any assignment of this Lease
or sublease of any portion of the Premises if at the time of either Tenant's
notice of the proposed assignment or sublease or the proposed commencement date
thereof, there shall exist any uncured default of Tenant or matter which will
become a default of Tenant with passage of time unless cured, or if the proposed
assignee or sublessee is an entity: (a) with which Landlord is already in
negotiation; (b) is already an occupant of the Building unless Landlord is
unable to provide the amount of space required by such occupant; (c) is a
governmental agency; (d) is incompatible with the character of occupancy of the
Building; (e) with which the payment for the sublease or assignment is
determined in whole or in part based upon its net income or profits; or (f)
would subject the Premises to a use which would: (i) involve increased personnel
or wear upon the Building; (ii) violate any exclusive right granted to another
tenant of the Building; (iii) require any addition to or modification of the
Premises or the Building in order to comply with building code or other
governmental requirements; or, (iv) involve a violation of Section 1.2. Tenant
expressly agrees that for the purposes of any statutory or other requirement of
reasonableness on the part of Landlord, Landlord's refusal to consent to any
assignment or sublease for any of the reasons described in this Section 9.5,
shall be conclusively deemed to be reasonable.
9.6 Upon any request to assign or sublet, Tenant will pay to Landlord the
Assignment/Subletting Fee plus, on demand, a sum equal to all of Landlord's
costs, including reasonable attorney's fees, incurred in investigating and
considering any proposed or purported assignment or pledge of this Lease or
sublease of any of the Premises, regardless of whether Landlord shall consent
to, refuse consent, or determine that Landlord's consent is not required for,
such assignment, pledge or sublease. Any purported sale, assignment, mortgage,
transfer of this Lease or subletting which does not comply with the provisions
of this Article 9 shall be void.
9.7 If Tenant is a corporation, limited liability company, partnership or
trust, any transfer or transfers of or change or changes within any twelve (12)
month period in the number of the outstanding voting shares of the corporation
or limited liability company, the general partnership interests in the
partnership or the identity of the persons or entities controlling the
activities of such partnership or trust resulting in the persons or entities
owning or controlling a majority of such shares, partnership interests or
activities of such partnership or trust at the beginning of such period no
longer having such ownership or control shall be regarded as equivalent to an
assignment of this Lease to the persons or entities acquiring such ownership or
control and shall be subject to all the provisions of this Article 9 to the same
extent and for all intents and purposes as though such an assignment.
10. INDEMNIFICATION. None of the Landlord Entities shall be liable and Tenant
hereby waives all claims against them for any damage to any property or any
injury to any person in or about the Premises or the Building by or from any
cause whatsoever (including without limiting the foregoing, rain or water
leakage of any character from the roof, windows, walls, basement, pipes,
plumbing works or appliances, the Building not being in good condition or
repair, gas, fire, oil, electricity or theft), except to the extent caused by or
arising from the gross negligence or willful misconduct of Landlord or its
agents, employees or contractors. Tenant shall protect, indemnify and hold the
Landlord Entities harmless from and against any and all loss, claims, liability
or costs (including court costs and attorney's fees) incurred by reason of (a)
any damage to any property (including but not limited to property of any
Landlord Entity) or any injury (including but not limited to death) to any
person occurring in, on or about the Premises or the Building to the extent that
such injury or damage shall be caused by or arise from any actual or alleged
act, neglect, fault, or omission by or of Tenant or any Tenant Entity to meet
any standards imposed by any duty with respect to the injury or damage; (b) the
conduct or management of any work or thing whatsoever done by the Tenant in or
about the Premises or from transactions of the Tenant concerning the Premises;
(c)
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Tenant's failure to comply with any and all governmental laws, ordinances and
regulations applicable to the condition or use of the Premises or its occupancy;
or (d) any breach or default on the part of Tenant in the performance of any
covenant or agreement on the part of the Tenant to be performed pursuant to this
Lease. The provisions of this Article shall survive the termination of this
Lease with respect to any claims or liability accruing prior to such
termination.
11. INSURANCE.
11.1 Tenant shall keep in force throughout the Term: (a) a Commercial
General Liability insurance policy or policies to protect the Landlord Entities
against any liability to the public or to any invitee of Tenant or a Landlord
Entity incidental to the use of or resulting from any accident occurring in or
upon the Premises with a limit of not less than $1,000,000 per occurrence and
not less than $2,000,000 in the annual aggregate, or such larger amount as
Landlord may prudently require from time to time, covering bodily injury and
property damage liability and $1,000,000 products/completed operations
aggregate; (b) Business Auto Liability covering owned, non-owned and hired
vehicles with a limit of not less than $1,000,000 per accident; (c) insurance
protecting against liability under Worker's Compensation Laws with limits at
least as required by statute; (d) Employers Liability with limits of $1,000,000
$500,000 each accident, $1,000,000 $500,000 disease policy limit, $1,000,000
$500,000 disease--each employee; (e) All Risk or Special Form coverage
protecting Tenant against loss of or damage to Tenant's alterations, additions,
improvements, carpeting, floor coverings, panelings, decorations, fixtures,
inventory and other business personal property situated in or about the Premises
to the full replacement value of the property so insured, (f) Business
Interruption Insurance for 100% of the 12 months actual loss sustained, and (g)
and (f) Excess Liability in the amount of $5,000,000 $4,000,000.
11.2 The aforesaid policies shall (a) be provided at Tenant's expense; (b)
name the Landlord Entities as additional insureds (General Liability) and loss
payee (Property--Special Form); (c) be issued by an insurance company with a
minimum Best's rating of "A:VII" during the Term; and (d) provide that said
insurance shall not be canceled unless thirty (30) days prior written notice
(ten days for non-payment of premium) shall have been given to Landlord; a
certificate of Liability insurance on XXXXX Form 25 and a certificate of
Property insurance on XXXXX Form 27 shall be delivered to Landlord by Tenant
upon the Commencement Date and at least thirty (30) days prior to each renewal
of said insurance.
11.3 Whenever Tenant shall undertake any alterations, additions or
improvements in, to or about the Premises ("Work") the aforesaid insurance
protection must extend to and include injuries to persons and damage to property
arising in connection with such Work, without limitation including liability
under any applicable structural work act, and such other insurance as Landlord
shall require; and the policies of or certificates evidencing such insurance
must be delivered to Landlord prior to the commencement of any such Work.
12. WAIVER OF SUBROGATION. So long as their respective insurers so permit,
Tenant and Landlord hereby mutually waive their respective rights of recovery
against each other for any loss insured by fire, extended coverage, All Risks or
other insurance now or hereafter existing for the benefit of the respective
party but only to the extent of the net insurance proceeds payable under such
policies. Each party shall obtain any special endorsements required by their
insurer to evidence compliance with the aforementioned waiver.
13. SERVICES AND UTILITIES. Tenant shall pay for all water, gas, heat, light,
power, telephone, sewer, sprinkler system charges and other utilities and
services used on or from the Premises, together with any taxes, penalties, and
surcharges or the like pertaining thereto and any maintenance charges for
utilities. Tenant shall furnish all electric light bulbs, tubes and ballasts,
battery packs for emergency lighting and fire extinguishers. If any such
services are not separately metered to Tenant, Tenant shall pay such proportion
of all charges jointly metered with other premises as determined by Landlord, in
its sole discretion, to be reasonable. Any such charges paid by Landlord and
assessed against Tenant shall be immediately payable to Landlord on demand and
shall be additional rent hereunder. Tenant will not, without the written consent
of Landlord, contract with a utility provider to service the Premises with any
utility, including, but not limited to, telecommunications, electricity, water,
sewer or gas, which is not previously providing such service to other tenants in
the Building. Landlord shall in no event be liable for any interruption or
failure of utility services on or to the Premises.
14. HOLDING OVER. Tenant shall pay Landlord for each day Tenant retains
possession of the Premises or part of them after termination of this Lease by
lapse of time or otherwise at the rate ("Holdover Rate") which shall be Two
Hundred Percent (200%) of the greater of (a) the amount of the Annual Rent for
the last period prior to the date of such termination plus all Rent Adjustments
under Article 4; and (b) the then market rental value of the Premises as
determined by Landlord assuming a new lease of the Premises of the then usual
duration and other terms, in either case, prorated on a daily basis, and also
pay all damages sustained by Landlord by reason of such retention. If Landlord
gives notice to Tenant of Landlord's election to such effect, such holding over
shall constitute renewal of this Lease for a period from month to month or one
(1) year, whichever shall be specified in such notice, in either case at the
Holdover Rate, but if the Landlord does not so elect, no
8
such, renewal shall result notwithstanding acceptance by Landlord of any sums
due hereunder after such termination; and instead, a tenancy at sufferance at
the Holdover Rate shall be deemed to have been created. In any event, no
provision of this Article 14 shall be deemed to waive Landlord's right of
reentry or any other right under this Lease or at law.
15. SUBORDINATION. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, this Lease
shall be subject and subordinate at all times to ground or underlying leases and
to the lien of any mortgages or deeds of trust now or hereafter placed on,
against or affecting the Building, Landlord's interest or estate in the
Building, or any ground or underlying lease; provided, however, that if the
lessor, mortgagee, trustee, or holder of any such mortgage or deed of trust
elects to have Tenant's interest in this Lease be superior to any such
instrument, then, by notice to Tenant, this Lease shall be deemed superior,
whether this Lease was executed before or after said instrument. Notwithstanding
the foregoing, Tenant covenants and agrees to execute and deliver within ten
(10) days of Landlord's request such further instruments evidencing such
subordination or superiority of this Lease as may be required by Landlord.
16. RULES AND REGULATIONS. Tenant shall faithfully observe and comply with all
the rules and regulations as set forth in Exhibit D to this Lease and all
reasonable and non-discriminatory modifications of and additions to them from
time to time put into effect by Landlord. Landlord shall not be responsible to
Tenant for the non-performance by any other tenant or occupant of the Building
of any such rules and regulations.
17. REENTRY BY LANDLORD.
17.1 Landlord reserves and shall at all times have the right to re-enter
the Premises to inspect the same, to show said Premises to prospective
purchasers, mortgagees or tenants, and to alter, improve or repair the Premises
and any portion of the Building, without abatement of rent, and may for that
purpose erect, use and maintain scaffolding, pipes, conduits and other necessary
structures and open any wall, ceiling or floor in and through the Building and
Premises where reasonably required by the character of the work to be performed,
provided entrance to the Premises shall not be blocked thereby, and further
provided that the business of Tenant shall not be interfered with unreasonably.
Landlord shall have the right at any time to change the arrangement and/or
locations of entrances, or passageways, doors and doorways, and corridors,
windows, elevators, stairs, toilets or other public parts of the Building and to
change the name, number or designation by which the Building is commonly known.
In the event that Landlord damages any portion of any wall or wall covering,
ceiling, or floor or floor covering within the Premises, Landlord shall repair
or replace the damaged portion to match the original as nearly as commercially
reasonable but shall not be required to repair or replace more than the portion
actually damaged. Tenant hereby waives any claim for damages for any injury or
inconvenience to or interference with Tenant's business, any loss of occupancy
or quiet enjoyment of the Premises, and any other loss occasioned by any action
of Landlord authorized by this Article 17.
17.2 For each of the aforesaid purposes, Landlord shall at all times have
and retain a key with which to unlock all of the doors in the Premises,
excluding Tenant's vaults and safes or special security areas (designated in
advance), and Landlord shall have the right to use any and all means which
Landlord may deem proper to open said doors in an emergency to obtain entry to
any portion of the Premises. As to any portion to which access cannot be had by
means of a key or keys in Landlord's possession, Landlord is authorized to gain
access by such means as Landlord shall elect and the cost of repairing any
damage occurring in doing so shall be borne by Tenant and paid to Landlord
within five (5) days of Landlord's demand.
18. DEFAULT.
18.1 Except as otherwise provided in Article 20, the following events shall
be deemed to be Events of Default under this Lease:
18.1.1 Tenant shall fail to pay when due any sum of money becoming due
to be paid to Landlord under this Lease, whether such sum be any installment of
the rent reserved by this Lease, any other amount treated as additional rent
under this Lease, or any other payment or reimbursement to Landlord required by
this Lease, whether or not treated as additional rent under this Lease, and such
failure shall continue for a period of five (5) days after written notice that
such payment was not made when due, but if any such notice shall be given, for
the twelve (12) month period commencing with the date of such notice, the
failure to pay within five (5) days after due any additional sum of money
becoming due to be paid to Landlord under this Lease during such period shall be
an Event of Default, without notice.
18.1.2 Tenant shall fail to comply with any term, provision or
covenant of this Lease which is not provided for in another Section of this
Article and shall not cure such failure within twenty (20) days (forthwith, if
the failure involves a hazardous condition) after written notice of such failure
to Tenant provided, however, that such failure shall not be an event of default
if such failure could not reasonably be cured during such twenty (20) day
period, Tenant has commenced
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the cure within such twenty (20) day period and thereafter is diligently
pursuing such cure to completion, but the total aggregate cure period shall not
exceed ninety (90) days.
18.1.3 Tenant shall fail to vacate the Premises immediately upon
termination of this Lease, by lapse of time or otherwise, or upon termination of
Tenant's right to possession only.
18.1.4 Tenant shall become insolvent, admit in writing its inability
to pay its debts generally as they become due, file a petition in bankruptcy or
a petition to take advantage of any insolvency statute, make an assignment for
the benefit of creditors, make a transfer in fraud of creditors, apply for or
consent to the appointment of a receiver of itself or of the whole or any
substantial part of its property, or file a petition or answer seeking
reorganization or arrangement under the federal bankruptcy laws, as now in
effect or hereafter amended, or any other applicable law or statute of the
United States or any state thereof.
18.1.5 A court of competent jurisdiction shall enter an order,
judgment or decree adjudicating Tenant bankrupt, or appointing a receiver of
Tenant, or of the whole or any substantial part of its property, without the
consent of Tenant, or approving a petition filed against Tenant seeking
reorganization or arrangement of Tenant under the bankruptcy laws of the United
States, as now in effect or hereafter amended, or any state thereof, and such
order, judgment or decree shall not be vacated or set aside or stayed within
sixty (60) days from the date of entry thereof.
19. REMEDIES.
19.1 Except as otherwise provided in Article 20, upon the occurrence of any
of the Events of Default described or referred to in Article 18, Landlord shall
have the option to pursue any one or more of the following remedies without any
notice or demand whatsoever, concurrently or consecutively and not
alternatively:
19.1.1 Landlord may, at its election, terminate this Lease or
terminate Tenant's right to possession only, without terminating the Lease.
19.1.2 Upon any termination of this Lease, whether by lapse of time or
otherwise, or upon any termination of Tenant's right to possession without
termination of the Lease, Tenant shall surrender possession and vacate the
Premises immediately, and deliver possession thereof to Landlord, and Tenant
hereby grants to Landlord full and free license to enter into and upon the
Premises in such event and to repossess Landlord of the Premises as of
Landlord's former estate and to expel or remove Tenant and any others who may be
occupying or be within the Premises and to remove Tenant's signs and other
evidence of tenancy and all other property of Tenant therefrom without being
deemed in any manner guilty of trespass, eviction or forcible entry or detainer,
and without incurring any liability for any damage resulting therefrom, Tenant
waiving any right to claim damages for such re-entry and expulsion, and without
relinquishing Landlord's right to rent or any other right given to Landlord
under this Lease or by operation of law.
19.1.3 Upon any termination of this Lease, whether by lapse of time or
otherwise, Landlord shall be entitled to recover as damages, all rent, including
any amounts treated as additional rent under this Lease, and other sums due and
payable by Tenant on the date of termination, plus as liquidated damages and not
as a penalty, an amount equal to the sum of: (a) an amount equal to the then
present value of the rent reserved in this Lease for the residue of the stated
Term of this Lease including any amounts treated as additional rent under this
Lease and all other sums provided in this Lease to be paid by Tenant, minus the
fair rental value of the Premises for such residue; (b) the value of the time
and expense necessary to obtain a replacement tenant or tenants, and the
estimated expenses described in Section 19.1.4 relating to recovery of the
Premises, preparation for reletting and for reletting itself; and (c) the cost
of performing any other covenants which would have otherwise been performed by
Tenant.
19.1.4 Upon any termination of Tenant's right to possession only
without termination of the Lease:
19.1.4.1 Neither such termination of Tenant's right to possession
nor Landlord's taking and holding possession thereof as provided in Section
19.1.2 shall terminate the Lease or release Tenant, in whole or in part, from
any obligation, including Tenant's obligation to pay the rent, including any
amounts treated as additional rent, under this Lease for the full Term, and if
Landlord so elects Tenant shall continue to pay to Landlord the entire amount of
the rent as and when it becomes due, including any amounts treated as additional
rent under this Lease, for the remainder of the Term plus any other sums
provided in this Lease to be paid by Tenant for the remainder of the Term.
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19.1.4.2 Landlord shall use commercially reasonable efforts to
relet the Premises or portions thereof to the extent required by applicable law.
Landlord and Tenant agree that nevertheless Landlord shall at most be required
to use only the same efforts Landlord then uses to lease premises in the
Building generally and that in any case that Landlord shall not be required to
give any preference or priority to the showing or leasing of the Premises or
portions thereof over any other space that Landlord may be leasing or have
available and may place a suitable prospective tenant in any such other space
regardless of when such other space becomes available and that Landlord shall
have the right to relet the Premises for a greater or lesser term than that
remaining under this Lease, the right to relet only a portion of the Premises,
or a portion of the Premises or the entire Premises as a part of a larger area,
and the right to change the character or use of the Premises. In connection with
or in preparation for any reletting, Landlord may, but shall not be required to,
make repairs, alterations and additions in or to the Premises and redecorate the
same to the extent Landlord deems necessary or desirable, and Tenant shall pay
the cost thereof, together with Landlord's expenses of reletting, including,
without limitation, any commission incurred by Landlord, within five (5) days of
Landlord's demand. Landlord shall not be required to observe any instruction
given by Tenant about any reletting or accept any tenant offered by Tenant
unless such offered tenant has a credit-worthiness acceptable to Landlord and
leases the entire Premises upon terms and conditions including a rate of rent
(after giving effect to all expenditures by Landlord for tenant improvements,
broker's commissions and other leasing costs) all no less favorable to Landlord
than as called for in this Lease, nor shall Landlord be required to make or
permit any assignment or sublease for more than the current term or which
Landlord would not be required to permit under the provisions of Article 9.
19.1.4.3 Until such time as Landlord shall elect to terminate the
Lease and shall thereupon be entitled to recover the amounts specified in such
case in Section 19.1.3, Tenant shall pay to Landlord upon demand the full amount
of all rent, including any amounts treated as additional rent under this Lease
and other sums reserved in this Lease for the remaining Term, together with the
costs of repairs, alterations, additions, redecorating and Landlord's expenses
of reletting and the collection of the rent accruing therefrom (including
reasonable attorney's fees and broker's commissions), as the same shall then be
due or become due from time to time, less only such consideration as Landlord
may have received from any reletting of the Premises; and Tenant agrees that
Landlord may file suits from time to time to recover any sums falling due under
this Article 19 as they become due. Any proceeds of reletting by Landlord in
excess of the amount then owed by Tenant to Landlord from time to time shall be
credited against Tenant's future obligations under this Lease but shall not
otherwise be refunded to Tenant or inure to Tenant's benefit.
19.2 Upon the occurrence of an Event of Default, Landlord may (but shall
not be obligated to) cure such default at Tenant's sole expense. Without
limiting the generality of the foregoing, Landlord may, at Landlord's option,
enter into and upon the Premises if Landlord determines in its sole discretion
that Tenant is not acting within a commercially reasonable time to maintain,
repair or replace anything for which Tenant is responsible under this Lease or
to otherwise effect compliance with its obligations under this Lease and correct
the same, without being deemed in any manner guilty of trespass, eviction or
forcible entry and detainer and without incurring any liability for any damage
or interruption of Tenant's business resulting therefrom and Tenant agrees to
reimburse Landlord within five (5) days of Landlord's demand as additional rent,
for any expenses which Landlord may incur in thus effecting compliance with
Tenant's obligations under this Lease, plus interest from the date of
expenditure by Landlord at the Wall Street Journal prime rate.
19.3 Tenant understands and agrees that in entering into this Lease,
Landlord is relying upon receipt of all the Annual and Monthly Installments of
Rent to become due with respect to all the Premises originally leased hereunder
over the full Initial Term of this Lease for amortization, including interest at
the Amortization Rate. For purposes hereof, the "Concession Amount" shall be
defined as the aggregate of all amounts forgone or expended by Landlord as free
rent under the lease, under Exhibit B hereof for construction allowances
(excluding therefrom any amounts expended by Landlord for Landlord's Work, as
defined in Exhibit B), and for brokers' commissions payable by reason of this
Lease. Accordingly, Tenant agrees that if this Lease or Tenant's right to
possession of the Premises leased hereunder shall be terminated as of any date
("Default Termination Date") prior to the expiration of the full Initial Term
hereof by reason of a default of Tenant, there shall be due and owing to
Landlord as of the day prior to the Default Termination Date, as rent in
addition to all other amounts owed by Tenant as of such Date, the amount
("Unamortized Amount") of the Concession Amount determined as set forth below;
provided, however, that in the event that such amounts are recovered by Landlord
pursuant to any other provision of this Article 19, Landlord agrees that it
shall not attempt to recover such amounts pursuant to this Paragraph 19.3. For
the purposes hereof, the Unamortized Amount shall be determined in the same
manner as the remaining principal balance of a mortgage with interest at the
Amortization Rate payable in level payments over the same length of time as from
the effectuation of the Concession concerned to the end of the full Initial Term
of this Lease would be determined. The foregoing provisions shall also apply to
and upon any reduction of space in the Premises, as though such reduction were a
termination for Tenant's default, except that (i) the Unamortized Amount shall
be reduced by any amounts paid by Tenant to Landlord to effectuate such
reduction and (ii) the manner of application shall be that the Unamortized
Amount shall first be determined as though for a full termination as of the
Effective Date of the elimination of the portion, but then the amount so
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determined shall be multiplied by the fraction of which the numerator is the
rentable square footage of the eliminated portion and the denominator is the
rentable square footage of the Premises originally leased hereunder; and the
amount thus obtained shall be the Unamortized Amount.
19.4 If, on account of any breach or default by Tenant in Tenant's
obligations under the terms and conditions of this Lease, it shall become
necessary or appropriate for Landlord to employ or consult with an attorney or
collection agency concerning or to enforce or defend any of Landlord's rights or
remedies arising under this Lease or to collect any sums due from Tenant, Tenant
agrees to pay all costs and fees so incurred by Landlord, including, without
limitation, reasonable attorneys' fees and costs. TENANT EXPRESSLY WAIVES ANY
RIGHT TO: (A) TRIAL BY JURY; AND (B) SERVICE OF ANY NOTICE REQUIRED BY ANY
PRESENT OR FUTURE LAW OR ORDINANCE APPLICABLE TO LANDLORDS OR TENANTS BUT NOT
REQUIRED BY THE TERMS OF THIS LEASE.
19.5 Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of the other remedies provided in this Lease or any other remedies provided
by law (all such remedies being cumulative), nor shall pursuit of any remedy
provided in this Lease constitute a forfeiture or waiver of any rent due to
Landlord under this Lease or of any damages accruing to Landlord by reason of
the violation of any of the terms, provisions and covenants contained in this
Lease.
19.6 No act or thing done by Landlord or its agents during the Term shall
be deemed a termination of this Lease or an acceptance of the surrender of the
Premises, and no agreement to terminate this Lease or accept a surrender of said
Premises shall be valid, unless in writing signed by Landlord. No waiver by
Landlord of any violation or breach of any of the terms, provisions and
covenants contained in this Lease shall be deemed or construed to constitute a
waiver of any other violation or breach of any of the terms, provisions and
covenants contained in this Lease. Landlord's acceptance of the payment of
rental or other payments after the occurrence of an Event of Default shall not
be construed as a waiver of such Default, unless Landlord so notifies Tenant in
writing. Forbearance by Landlord in enforcing one or more of the remedies
provided in this Lease upon an Event of Default shall not be deemed or construed
to constitute a waiver of such Default or of Landlord's right to enforce any
such remedies with respect to such Default or any subsequent Default.
19.7 To secure the payment of all rentals and other sums of money becoming
due from Tenant under this Lease, Landlord shall have and Tenant grants to
Landlord a first lien upon the leasehold interest of Tenant under this Lease,
which lien may be enforced in equity, and a continuing security interest upon
all goods, wares, equipment, fixtures, furniture, inventory, accounts, contract
rights, chattel paper and other personal property of Tenant situated on the
Premises, and such property shall not be removed therefrom without the consent
of Landlord until all arrearages in rent as well as any and all other sums of
money then due to Landlord under this Lease shall first have been paid and
discharged. Upon the occurrence of an Event of Default, Landlord shall have, in
addition to any other remedies provided in this Lease or by law, all rights and
remedies under the Uniform Commercial Code, including without limitation the
right to sell the property described in this Section 19.7 at public or private
sale upon five (5) days' notice to Tenant. Tenant shall execute all such
financing statements and other instruments as shall be deemed necessary or
desirable in Landlord's discretion to perfect the security interest hereby
created. Any request by Tenant or its lender(s) that Landlord subordinate or
waive the lien granted herein, or Landlord's statutory lien, shall be made in
writing and shall be accompanied by a check made payable to Landlord in the
amount of the Subordination Fee, as set forth on the Reference Pages to this
Lease.
19.8 Any and all property which may be removed from the Premises by
Landlord pursuant to the authority of this Lease or of law, to which Tenant is
or may be entitled, may be handled, removed and/or stored, as the case may be,
by or at the direction of Landlord but at the risk, cost and expense of Tenant,
and Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such property
so long as the same shall be in Landlord's possession or under Landlord's
control. Any such property of Tenant not retaken by Tenant from storage within
thirty (30) days after removal from the Premises shall, at Landlord's option, be
deemed conveyed by Tenant to Landlord under this Lease as by a xxxx of sale
without further payment or credit by Landlord to Tenant.
19.9 If more than one (1) Event of Default occurs during the Term or any
renewal thereof, Tenant's renewal options, expansion options, purchase options
and rights of first offer and/or refusal, if any are provided for in this Lease,
shall be null and void.
20. TENANT'S BANKRUPTCY OR INSOLVENCY.
20.1 If at any time and for so long as Tenant shall be subjected to the
provisions of the United States Bankruptcy Code or other law of the United
States or any state thereof for the protection of debtors as in effect at such
time (each a "Debtor's Law"):
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20.1.1 Tenant, Tenant as debtor-in-possession, and any trustee or
receiver of Tenant's assets (each a "Tenant's Representative") shall have no
greater right to assume or assign this Lease or any interest in this Lease, or
to sublease any of the Premises than accorded to Tenant in Article 9, except to
the extent Landlord shall be required to permit such assumption, assignment or
sublease by the provisions of such Debtor's Law. Without limitation of the
generality of the foregoing, any right of any Tenant's Representative to assume
or assign this Lease or to sublease any of the Premises shall be subject to the
conditions that:
20.1.1.1 Such Debtor's Law shall provide to Tenant's
Representative a right of assumption of this Lease which Tenant's Representative
shall have timely exercised and Tenant's Representative shall have fully cured
any default of Tenant under this Lease.
20.1.1.2 Tenant's Representative or the proposed assignee, as the
case shall be, shall have deposited with Landlord as security for the timely
payment of rent an amount equal to the larger of: (a) three (3) months' rent and
other monetary charges accruing under this Lease; and (b) any sum specified in
Article 5; and shall have provided Landlord with adequate other assurance of the
future performance of the obligations of the Tenant under this Lease. Without
limitation, such assurances shall include, at least, in the case of assumption
of this Lease, demonstration to the satisfaction of the Landlord that Tenant's
Representative has and will continue to have sufficient unencumbered assets
after the payment of all secured obligations and administrative expenses to
assure Landlord that Tenant's Representative will have sufficient funds to
fulfill the obligations of Tenant under this Lease; and, in the case of
assignment, submission of current financial statements of the proposed assignee,
audited by an independent certified public accountant reasonably acceptable to
Landlord and showing a net worth and working capital in amounts determined by
Landlord to be sufficient to assure the future performance by such assignee of
all of the Tenant's obligations under this Lease.
20.1.1.3 The assumption or any contemplated assignment of this
Lease or subleasing any part of the Premises, as shall be the case, will not
breach any provision in any other lease, mortgage, financing agreement or other
agreement by which Landlord is bound.
20.1.1.4 Landlord shall have, or would have had absent the
Debtor's Law, no right under Article 9 to refuse consent to the proposed
assignment or sublease by reason of the identity or nature of the proposed
assignee or sublessee or the proposed use of the Premises concerned.
21. QUIET ENJOYMENT. Landlord represents and warrants that it has full right and
authority to enter into this Lease and that Tenant, while paying the rental and
performing its other covenants and agreements contained in this Lease, shall
peaceably and quietly have, hold and enjoy the Premises for the Term without
hindrance or molestation from Landlord subject to the terms and provisions of
this Lease. Landlord shall not be liable for any interference or disturbance by
other tenants or third persons, nor shall Tenant be released from any of the
obligations of this Lease because of such interference or disturbance.
22. CASUALTY
22.1 IN the event the Premises or the Building are damaged by fire or other
cause and in Landlord's reasonable estimation such damage can be materially
restored within one hundred eighty (180) days, Landlord shall forthwith repair
the same and this Lease shall remain in full force and effect, except that
Tenant shall be entitled to a proportionate abatement in rent from the date of
such damage. Such abatement of rent shall be made pro rata in accordance with
the extent to which the damage and the making of such repairs shall interfere
with the use and occupancy by Tenant of the Premises from time to time. Within
forty-five (45) days from the date of such damage, Landlord shall notify Tenant,
in writing, of Landlord's reasonable estimation of the length of time within
which material restoration can be made, and Landlord's determination shall be
binding on Tenant. For purposes of this Lease, the Building or Premises shall be
deemed "materially restored" if they are in such condition as would not prevent
or materially interfere with Tenant's use of the Premises for the purpose for
which it was being used immediately before such damage.
22.2 If such repairs cannot, in Landlord's reasonable estimation, be made
within one hundred eighty (180) days, Landlord and Tenant shall each have the
option of giving the other, at any time within ninety (90) days after such
damage, notice terminating this Lease as of the date of such damage. In the
event of the giving of such notice, this Lease shall expire and all interest of
the Tenant in the Premises shall terminate as of the date of such damage as if
such date had been originally fixed in this Lease for the expiration of the
Term. In the event that neither Landlord nor Tenant exercises its option to
terminate this Lease, then Landlord shall repair or restore such damage, this
Lease continuing in full force and effect, and the rent hereunder shall be
proportionately abated as provided in Section 22.1.
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22.3 Landlord shall not be required to repair or replace any damage or loss
by or from fire or other cause to any panelings, decorations, partitions,
additions, railings, ceilings, floor coverings, office fixtures or any other
property or improvements installed on the Premises by, or belonging to, Tenant.
Any insurance which may be carried by Landlord or Tenant against loss or damage
to the Building or Premises shall be for the sole benefit of the party carrying
such insurance and under its sole control.
22.4 In the event that Landlord should fail to complete such repairs and
material restoration within sixty (60) days after the date estimated by Landlord
therefor as extended by this Section 22.4, Tenant may at its option and as its
sole remedy terminate this Lease by delivering written notice to Landlord,
within fifteen (15) days after the expiration of said period of time, whereupon
the Lease shall end on the date of such notice or such later date fixed in such
notice as if the date of such notice was the date originally fixed in this Lease
for the expiration of the Term; provided, however, that if construction is
delayed because of changes, deletions or additions in construction requested by
Tenant, strikes, lockouts, casualties, Acts of God, war, material or labor
shortages, government regulation or control or other causes beyond the
reasonable control of Landlord, the period for restoration, repair or rebuilding
shall be extended for the amount of time Landlord is so delayed.
22.5 Notwithstanding anything to the contrary contained in this Article:
(a) Landlord shall not have any obligation whatsoever to repair, reconstruct, or
restore the Premises when the damages resulting from any casualty covered by the
provisions of this Article 22 occur during the last twelve (12) months of the
Term or any extension thereof, but if Landlord determines not to repair such
damages Landlord shall notify Tenant and if such damages shall render any
material portion of the Premises untenantable Tenant shall have the right to
terminate this Lease by notice to Landlord within fifteen (15) days after
receipt of Landlord's notice; and (b) in the event the holder of any
indebtedness secured by a mortgage or deed of trust covering the Premises or
Building requires that any insurance proceeds be applied to such indebtedness,
then Landlord shall have the right to terminate this Lease by delivering written
notice of termination to Tenant within fifteen (15) days after such requirement
is made by any such holder, whereupon this Lease shall end on the date of such
damage as if the date of such damage were the date originally fixed in this
Lease for the expiration of the Term.
22.6 In the event of any damage or destruction to the Building or Premises
by any peril covered by the provisions of this Article 22, it shall be Tenant's
responsibility to properly secure the Premises and upon notice from Landlord to
remove forthwith, at its sole cost and expense, such portion of all of the
property belonging to Tenant or its licensees from such portion or all of the
Building or Premises as Landlord shall request.
23. EMINENT DOMAIN. If all or any substantial part of the Premises shall be
taken or appropriated by any public or quasi-public authority under the power of
eminent domain, or conveyance in lieu of such appropriation, either party to
this Lease shall have the right, at its option, of giving the other, at any time
within thirty (30) days after such taking, notice terminating this Lease, except
that Tenant may only terminate this Lease by reason of taking or appropriation,
if such taking or appropriation shall be so substantial as to materially
interfere with Tenant's use and occupancy of the Premises. If neither party to
this Lease shall so elect to terminate this Lease, the rental thereafter to be
paid shall be adjusted on a fair and equitable basis under the circumstances. In
addition to the rights of Landlord above, if any substantial part of the
Building shall be taken or appropriated by any public or quasi-public authority
under the power of eminent domain or conveyance in lieu thereof, and regardless
of whether the Premises or any part thereof are so taken or appropriated,
Landlord shall have the right, at its sole option, to terminate this Lease.
Landlord shall be entitled to any and all income, rent, award, or any interest
whatsoever in or upon any such sum, which may be paid or made in connection with
any such public or quasi-public use or purpose, and Tenant hereby assigns to
Landlord any interest it may have in or claim to all or any part of such sums,
other than any separate award which may be made with respect to Tenant's trade
fixtures and moving expenses; Tenant shall make no claim for the value of any
unexpired Term.
24. SALE BY LANDLORD. In event of a sale or conveyance by Landlord of the
Building, the same shall operate to release Landlord from any future liability
upon any of the covenants or conditions, expressed or implied, contained in this
Lease in favor of Tenant, and in such event Tenant agrees to look solely to the
responsibility of the successor in interest of Landlord in and to this Lease.
Except as set forth in this Article 24, this Lease shall not be affected by any
such sale and Tenant agrees to attorn to the purchaser or assignee. If any
security has been given by Tenant to secure the faithful performance of any of
the covenants of this Lease, Landlord may transfer or deliver said security, as
such, to Landlord's successor in interest and thereupon Landlord shall be
discharged from any further liability with regard to said security.
25. ESTOPPEL CERTIFICATES. Within ten (10) days following any written request
which Landlord may make from time to time, Tenant shall execute and deliver to
Landlord or mortgagee or prospective mortgagee a sworn statement certifying: (a)
the date of commencement of this Lease; (b) the fact that this Lease is
unmodified and in full force and effect (or, if there have been modifications to
this Lease, that this lease is in full force and effect, as modified, and
stating the date
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and nature of such modifications); (c) the date to which the rent and other sums
payable under this Lease have been paid; (d) the fact that there are no current
defaults under this Lease by either Landlord or Tenant except as specified in
Tenant's statement; and (e) such other matters as may be requested by Landlord.
Landlord and Tenant intend that any statement delivered pursuant to this Article
25 may be relied upon by any mortgagee, beneficiary or purchaser, and Tenant
shall be liable for all loss, cost or expense resulting from the failure of any
sale or funding of any loan caused by any material misstatement contained in
such estoppel certificate. Tenant irrevocably agrees that if Tenant fails to
execute and deliver such certificate within such ten (10) day period Landlord or
Landlord's beneficiary or agent may execute and deliver such certificate on
Tenant's behalf, and that such certificate shall be fully binding on Tenant.
26. SURRENDER OF PREMISES.
26.1 Tenant shall arrange to meet Landlord for two (2) joint inspections of
the Premises, the first to occur at least thirty (30) days (but no more than
sixty (60) days) before the last day of the Term, and the second to occur not
later than forty-eight (48) hours after Tenant has vacated the Premises. In the
event of Tenant's failure to arrange such joint inspections and/or participate
in either such inspection, Landlord's inspection at or after Tenant's vacating
the Premises shall be conclusively deemed correct for purposes of determining
Tenant's responsibility for repairs and restoration. In connection with the
condition of the Premises and the systems servicing same Tenant shall also be
responsible, at its sole cost and expense, for compliance with the terms and
conditions of Exhibit E attached hereto.
26.2 All alterations, additions, and improvements in, on, or to the
Premises made or installed by or for Tenant, including carpeting (collectively,
"Alterations"), shall be and remain the property of Tenant during the Term. Upon
the expiration or sooner termination of the Term, all Alterations shall become a
part of the realty and shall belong to Landlord without compensation, and title
shall pass to Landlord under this Lease as by a xxxx of sale. At the end of the
Term or any renewal of the Term or other sooner termination of this Lease,
Tenant will peaceably deliver up to Landlord possession of the Premises,
together with all Alterations by whomsoever made, in the same conditions
received or first installed, broom clean and free of all debris, excepting only
ordinary wear and tear and damage by fire or other casualty. Notwithstanding the
foregoing, if Landlord elects by notice given to Tenant at least ten (10) days
prior to expiration of the Term, Tenant shall, at Tenant's sole cost, remove any
Alterations, including carpeting, so designated by Landlord's notice, and repair
any damage caused by such removal. Tenant must, at Tenant's sole cost, remove
upon termination of this Lease, any and all of Tenant's furniture, furnishings,
movable partitions of less than full height from floor to ceiling and other
trade fixtures and personal property (collectively, "Personalty"). Personalty
not so removed shall be deemed abandoned by the Tenant and title to the same
shall thereupon pass to Landlord under this Lease as by a xxxx of sale, but
Tenant shall remain responsible for the cost of removal and disposal of such
Personalty, as well as any damage caused by such removal. In lieu of requiring
Tenant to remove Alterations and Personalty and repair the Premises as
aforesaid, Landlord may, by written notice to Tenant delivered at least thirty
(30) days before the Termination Date, require Tenant to pay to Landlord, as
additional rent hereunder, the cost of such removal and repair in an amount
reasonably estimated by Landlord.
26.3 All obligations of Tenant under this Lease not fully performed as of
the expiration or earlier termination of the Term shall survive the expiration
or earlier termination of the Term Upon the expiration or earlier termination of
the Term, Tenant shall pay to Landlord the amount, as estimated by Landlord,
necessary to repair and restore the Premises as provided in this Lease and/or to
discharge Tenant's obligation for unpaid amounts due or to become due to
Landlord. All such amounts shall be used and held by Landlord for payment of
such obligations of Tenant, with Tenant being liable for any additional costs
upon demand by Landlord, or with any excess to be returned to Tenant after all
such obligations have been determined and satisfied. Any otherwise unused
Security Deposit shall be credited against the amount payable by Tenant under
this Lease.
27. NOTICES. Any notice or document required or permitted to be delivered under
this Lease shall be addressed to the intended recipient, by fully prepaid
registered or certified United States Mail return receipt requested, or by
reputable independent contract delivery service furnishing a written record of
attempted or actual delivery, and shall be deemed to be delivered when tendered
for delivery to the addressee at its address set forth on the Reference Pages,
or at such other address as it has then last specified by written notice
delivered in accordance with this Article 27, or if to Tenant at either its
aforesaid address or its last known registered office or home of a general
partner or individual owner, whether or not actually accepted or received by the
addressee. Any such notice or document may also be personally delivered if a
receipt is signed by and received from, the individual, if any, named in
Tenant's Notice Address.
28. TAXES PAYABLE BY TENANT. In addition to rent and other charges to be paid by
Tenant under this Lease, Tenant shall reimburse to Landlord, upon demand, any
and all taxes payable by Landlord (other than net income taxes) whether or not
now customary or within the contemplation of the parties to this Lease: (a)
upon, allocable to, or measured by or on the gross or net rent payable under
this Lease, including without limitation any gross income tax or excise tax
levied by
15
the State, any political subdivision thereof, or the Federal Government with
respect to the receipt of such rent; (b) upon or with respect to the possession,
leasing, operation, management, maintenance, alteration, repair, use or
occupancy of the Premises or any portion thereof, including any sales, use or
service tax imposed as a result thereof; (c) upon or measured by the Tenant's
gross receipts or payroll or the value of Tenant's equipment, furniture,
fixtures and other personal property of Tenant or leasehold improvements,
alterations or additions located in the Premises; or (d) upon this transaction
or any document to which Tenant is a party creating or transferring any interest
of Tenant in this Lease or the Premises. In addition to the foregoing, Tenant
agrees to pay, before delinquency, any and all taxes levied or assessed against
Tenant and which become payable during the term hereof upon Tenant's equipment,
furniture, fixtures and other personal property of Tenant located in the
Premises.
29. RELOCATION OF TENANT. Landlord, at its sole expense, on at least sixty (60)
days prior written notice, may require Tenant to move from the Premises to other
space of comparable size and decor in order to permit Landlord to consolidate
the space leased to Tenant with other adjoining space leased or to be leased to
another tenant. In the event of any such relocation, Landlord will pay all
expenses of preparing and decorating the new premises so that they will be
substantially similar to the Premises from which Tenant is moving, and Landlord
will also pay the expense of moving Tenant's furniture and equipment to the
relocated premises. In such event this Lease and each and all of the terms and
covenants and conditions hereof shall remain in full force and effect and
thereupon be deemed applicable to such new space except that revised Reference
Pages and a revised Exhibit A shall become part of this Lease and shall reflect
the location of the new premises.
30. DEFINED TERMS AND HEADINGS. The Article headings shown in this Lease are for
convenience of reference and shall in no way define, increase, limit or describe
the scope or intent of any provision of this Lease. Any indemnification or
insurance of Landlord shall apply to and inure to the benefit of all the
following "Landlord Entities", being Landlord, Landlord's investment manager,
and the trustees, boards of directors, officers, general partners,
beneficiaries, stockholders, employees and agents of each of them. Any option
granted to Landlord shall also include or be exercisable by Landlord's trustee,
beneficiary, agents and employees, as the case may be. In any case where this
Lease is signed by more than one person, the obligations under this Lease shall
be joint and several. The terms "Tenant" and "Landlord" or any pronoun used in
place thereof shall indicate and include the masculine or feminine, the singular
or plural number, individuals, firms or corporations, and their and each of
their respective successors, executors, administrators and permitted assigns,
according to the context hereof. The term "rentable area" shall mean the
rentable area of the Premises or the Building as calculated by the Landlord on
the basis of the plans and specifications of the Building including a
proportionate share of any common areas. Tenant hereby accepts and agrees to be
bound by the figures for the rentable square footage of the Premises and
Tenant's Proportionate Share shown on the Reference Pages; however, Landlord may
adjust either or both figures if there is manifest error, addition or
subtraction to the Building or any business park or complex of which the
Building is a part, remeasurement or other circumstance reasonably justifying
adjustment. The term "Building" refers to the structure in which the Premises
are located and the common areas (parking lots, sidewalks, landscaping, etc.)
appurtenant thereto. If the Building is part of a larger complex of structures,
the term "Building" may include the entire complex, where appropriate (such as
shared Expenses or Taxes) and subject to Landlord's reasonable discretion.
31. TENANT'S AUTHORITY. If Tenant signs as a corporation, partnership, trust or
other legal entity each of the persons executing this Lease on behalf of Tenant
represents and warrants that Tenant has been and is qualified to do business in
the state in which the Building is located, that the entity has full right and
authority to enter into this Lease, and that all persons signing on behalf of
the entity were authorized to do so by appropriate actions. Tenant agrees to
deliver to Landlord, simultaneously with the delivery of this Lease, a corporate
resolution, proof of due authorization by partners, opinion of counsel or other
appropriate documentation reasonably acceptable to Landlord evidencing the due
authorization of Tenant to enter into this Lease.
32. FINANCIAL STATEMENTS AND CREDIT REPORTS. At Landlord's request, Tenant shall
deliver to Landlord a copy, certified by an officer of Tenant as being a true
and correct copy, of Tenant's most recent audited financial statement, or, if
unaudited, certified by Tenant's chief financial officer as being true, complete
and correct in all material respects. Tenant hereby authorizes Landlord to
obtain one or more credit reports on Tenant at any time, and shall execute such
further authorizations as Landlord may reasonably require in order to obtain a
credit report.
33. COMMISSIONS. Each of the parties represents and warrants to the other that
it has not dealt with any broker or finder in connection with this Lease, except
as described on the Reference Pages. Tenant agrees that it shall be solely
responsible for payment of any commission or fee due to its broker. Circle Road
(Xxxxx Xxxxxxx). Landlord shall pay the commission or fee due to its broker,
Xxxxxxxx Xxxx Company (Xxxx Xxxxxx/Xx Xxxxx).
16
34. TIME AND APPLICABLE LAW. Time is of the essence of this Lease and all of its
provisions. This Lease shall in all respects be governed by the laws of the
state in which the Building is located.
35. SUCCESSORS AND ASSIGNS. Subject to the provisions of Article 9, the terms,
covenants and conditions contained in this Lease shall be binding upon and inure
to the benefit of the heirs, successors, executors, administrators and assigns
of the parties to this Lease.
36. ENTIRE AGREEMENT. This Lease, together with its exhibits, contains all
agreements of the parties to this Lease and supersedes any previous
negotiations. There have been no representations made by the Landlord or any of
its representatives or understandings made between the parties other than those
set forth in this Lease and its exhibits. This Lease may not be modified except
by a written instrument duly executed by the parties to this Lease.
37. EXAMINATION NOT OPTION. Submission of this Lease shall not be deemed to be a
reservation of the Premises. Landlord shall not be bound by this Lease until it
has received a copy of this Lease duly executed by Tenant and has delivered to
Tenant a copy of this Lease duly executed by Landlord, and until such delivery
Landlord reserves the right to exhibit and lease the Premises to other
prospective tenants. Notwithstanding anything contained in this Lease to the
contrary, Landlord may withhold delivery of possession of the Premises from
Tenant until such time as Tenant has paid to Landlord any security deposit
required by Article 5, the first month's rent as set forth in Article 3 and any
sum owed pursuant to this Lease.
38. RECORDATION. Tenant shall not record or register this Lease or a short form
memorandum hereof without the prior written consent of Landlord, and then shall
pay all charges and taxes incident such recording or registration.
39. OPTION TO EXTEND. Tenant shall, provided the Lease is in full force and
effect and Tenant is not in default under any of the other terms and conditions
of the Lease at the time of notification or commencement, have three (3) options
to extend this Lease for a term of three (3) years each, for the portion of the
Premises being leased by Tenant as of the date each such extension term is to
commence, on the same terms and conditions set forth in the Lease, except as
modified by the terms, covenants and conditions as set forth below:
a. If Tenant elects to exercise said option, then Tenant shall provide
Landlord with written notice no earlier than the date which is eight
(8) months prior to the expiration of the Term of the Lease but no
later than the date which is six (6) months prior to the expiration of
the Term of this Lease. If Tenant fails to provide such notice, Tenant
shall have no further or additional right to extend or renew the term
of the Lease.
b. The Annual Rent and Monthly Installment in effect at the expiration of
the Term of the Lease (as it may be extended from time to time) shall
be increased to reflect the current fair market rental for comparable
space in the Building and in other similar buildings in the same
rental market as of the date the applicable extension term is to
commence, taking into account the specific provisions of the Lease
which will remain constant. Landlord shall advise Tenant of the new
Annual Rent and Monthly Installment for the Premises no later than
twenty (20) days after receipt of Tenant's written request therefor.
Said request shall be made no earlier than thirty (30) days prior to
the first date on which Tenant may exercise its option under this
Paragraph. Said notification of the new Annual Rent may include a
provision for its escalation to provide for a change in fair market
rental between the time of notification and the commencement of the
extension term. In no event shall the Annual Rent and Monthly
Installment for any option period be less than the Annual Rent and
Monthly Installment in the preceding period.
c. This option is not transferable; the parties hereto acknowledge and
agree that they intend that the aforesaid option to extend this Lease
shall be "personal" to Tenant as set forth above and that in no event
will any assignee or sublessee have any rights to exercise the
aforesaid option to extend.
40. TELECOMMUNICATIONS EQUIPMENT. Tenant, at its sole cost and expense, shall
have the non-exclusive right (it being understood that Landlord may grant,
extend or renew similar rights to others) to install, maintain, and from time to
time replace a satellite dish or telecommunications antennae (a "DISH") on the
roof of the Building, provided that prior to commencing any installation or
maintenance. Tenant shall (i) obtain Landlord's prior approval of the proposed
size, weight and location of the Dish and method for fastening the Dish to the
roof, (ii) such installation and/or replacement shall comply strictly with all
Laws and the conditions of any bond or warranty maintained by Landlord on the
roof, (iii) use the Dish solely for its internal use, (iv) not grant any right
to use of the Dish to any other party, and (v) obtain, at Tenant's sole cost and
expense, any necessary federal, state, and municipal permits, licenses and
approvals, and deliver copies thereof to Landlord. Landlord may supervise or
perform any roof penetration related to the installation of a Dish, and Landlord
may
17
charge the cost thereof to Tenant. Tenant agrees that all installation,
construction and maintenance shall be performed in a neat, responsible, and
workmanlike manner, using generally acceptable construction standards,
consistent with such reasonable requirements as shall be imposed by Landlord.
Tenant further agrees to label each cable or wire placed by Tenant in the
telecommunications pathways of the Building, with identification information as
required by Landlord. Tenant shall repair any damage to the Building caused by
Tenant's installation, maintenance, replacement, use or removal of the Dish. The
Dish shall remain the property of Tenant, and Tenant may remove the Dish at its
cost at any time during the Term. Tenant shall remove the Dish at Tenant's cost
and expense upon the expiration or termination of this Lease. Tenant agrees that
the Dish, and any wires, cables or connections relating thereto, and the
installation, maintenance and operation thereof shall in no way interfere with
the use and enjoyment of the Building, or the operation of communications
("including, without limitation, other satellite dishes) or computer devices by
Landlord or by other tenants or occupants of the Project. If such interference
shall occur, Landlord shall give Tenant written notice thereof and Tenant shall
correct the same within twenty-four (24) hours of receipt of such notice.
Landlord reserves the right to disconnect power to any Dish if Tenant fails to
correct such interference within twenty-four (24) hours after such notice.
Landlord makes no warranty or representation that the Building or any portions
thereof are suitable for the use of a Dish, it being assumed that Tenant has
satisfied itself thereof. Tenant shall protect, defend, indemnify and hold
harmless Landlord and Landlord's Agents from and against claims, damages,
liabilities, costs and expenses of every kind and nature, including attorneys'
fees, incurred by or asserted against Landlord arising out of Tenant's
installation, maintenance, replacement, use or removal of the Dish.]
39.41. LIMITATION OF LANDLORD'S LIABILITY. Redress for any claim against
Landlord under this Lease shall be limited to and enforceable only against and
to the extent of Landlord's interest in the Building. The obligations of
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18
Landlord under this Lease are not intended to be and shall not be personally
binding on, nor shall any resort be had to the private properties of, any of its
or its investment manager's trustees, directors, officers, partners,
beneficiaries, members, stockholders, employees, or agents, and in no case shall
Landlord be liable to Tenant hereunder for any lost profits, damage to business,
or any form of special, indirect or consequential damages.
LANDLORD: TENANT:
CALWEST INDUSTRIAL PROPERTIES, LLC, LIMELIGHT NETWORKS, INC., A DELAWARE
CORPORATION
A CALIFORNIA LIMITED LIABILITY
COMPANY
By: RREEF MANAGEMENT COMPANY, a
Delaware corporation, Authorized
Agent
By: /s/ Xxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------- ------------------------------------
Name: Xxxx X. Xxxx, CPM Name: Xxxxxxx X. Xxxxxxxx
Title: District Manager Title: President
Dated: 9/23/05 Dated: 9-22-05
18
EXHIBIT A - FLOOR PLAN DEPICTING THE PREMISES
attached to and made a part of Lease bearing the
Lease Reference Date of September 7, 2005 between
Calwest Industrial Properties, LLC, as Landlord and
Limelight Networks, Inc., as Tenant
Exhibits A is intended only to show the general layout of the Premises as of the
beginning of the Term of this Lease. It does not in any way supersede any of
Landlord's rights set forth in Article 17 with respect to arrangements and/or
locations of public parts of the Building and changes in such arrangements
and/or locations. It is not to be scaled; any measurements or distances shown
should be taken as approximate.
000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
8,224 Square Feet
(FLOOR PLAN DEPICTING THE PREMISES)
A-1
EXHIBIT A-1 - SITE PLAN
attached to and made a part of Lease bearing the
Lease Reference Date of September 7, 2005 between
Calwest Industrial Properties, LLC, as Landlord and
Limelight Networks, Inc., as Tenant
Exhibits A-1 is intended only to show the general layout of the Premises as of
the beginning of the Term of this Lease. It does not in any way supersede any of
Landlord's rights set forth in Article 17 with respect to arrangements and/or
locations of public parts of the Building and changes in such arrangements
and/or locations. It is not to be scaled; any measurements or distances shown
should be taken as approximate.
SKY HARBOR - 000 XXXXX 00XX
Xxxxxxx, Xxxxxxx
(RENDERING OF SITE PLAN)
000 XXXXX 00XX XXXXXX
XXXXXXX, XXXXXXX 00000
8,224 SQUARE FEET
A-2
EXHIBIT B - XXXX OF SALE
ATTACHED TO AND MADE A PART OF LEASE BEARING THE
LEASE REFERENCE DATE OF SEPTEMBER 7, 2005 BETWEEN
CALWEST INDUSTRIAL PROPERTIES, LLC, AS LANDLORD AND
LIMELIGHT NETWORKS, INC., AS TENANT
XXXX OF SALE
Calwest Industrial Properties, LLC ("Seller"), FOR VALUABLE CONSIDERATION,
the receipt and sufficiency of which is hereby acknowledged, does hereby grant,
sell, transfer and deliver to Limelight Networks, Inc. ("Buyer") all of its
right, title and interest in and to the following described property
(hereinafter the "Property") heretofore located at 000 X. 00xx Xx., Xxxxxxx, XX:
Two (2) 30 ton Xxxxxxx air conditioning units, and the cables and racks
associated therewith.
Seller makes no warranty and/or representation as to the condition of the
Property, that it is the lawful owner of the Property, that the Property is free
from liens, security interests and/or encumbrances, or that the Property is
suitable for Buyer's intended purposes.
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale this ___________
day of _____________, 2005.
SELLER:
CALWEST INDUSTRIAL PROPERTIES, LLC,
A CALIFORNIA LIMITED LIABILITY COMPANY
By: RREEF MANAGEMENT COMPANY, a
Delaware corporation, Authorized
Agent
By:
---------------------------------
Name: Xxxx X. Xxxx, CPM
Title: District Manager
B-1
(SAMPLE ONLY)
EXHIBIT C - COMMENCEMENT DATE MEMORANDUM
ATTACHED TO AND MADE A PART OF LEASE BEARING THE
LEASE REFERENCE DATE OF SEPTEMBER 7, 2005 BETWEEN
CALWEST INDUSTRIAL PROPERTIES, LLC, AS LANDLORD AND
LIMELIGHT NETWORKS, INC., AS TENANT
COMMENCEMENT DATE MEMORANDUM
THIS MEMORANDUM, made as of __________, 20__, by and between ("Landlord")
and __________ ("Tenant").
Recitals:
A. Landlord and Tenant are parties to that certain Lease, dated for
reference __________, 20__ (the "Lease") for certain premises (the
"Premises") consisting of approximately ____ square feet at the
building commonly known as __________.
B. Tenant is in possession of the Premises and the Term of the Lease has
commenced.
C. Landlord and Tenant desire to enter into this Memorandum
confirming the Commencement Date, the Termination Date and other
matters under the Lease.
NOW, THEREFORE, Landlord and Tenant agree as follows:
1. The actual Commencement Date is __________
2. The actual Termination Date is __________
3. The schedule of the Annual Rent and the Monthly Installment of Rent set
forth on the Reference Pages is deleted in its entirety, and the following is
substituted therefor:
[INSERT RENT SCHEDULE]
4. Capitalized terms not defined herein shall have the same meaning as set
forth in the Lease.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first above written.
LANDLORD: TENANT:
By:
---------------------------------
By: DO NOT SIGN By: DO NOT SIGN
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
Dated: Dated:
------------------------------ ---------------------------------
C-1
EXHIBIT D - RULES AND REGULATIONS
ATTACHED TO AND MADE A PART OF LEASE BEARING THE
LEASE REFERENCE DATE OF SEPTEMBER 7, 2005 BETWEEN
CALWEST INDUSTRIAL PROPERTIES, LLC, AS LANDLORD AND
LIMELIGHT NETWORKS, INC., AS TENANT
1. No sign, placard, picture, advertisement, name or notice (collectively
referred to as "Signs") shall be installed or displayed on any part of the
outside of the Building without the prior written consent of the Landlord which
consent shall be in Landlord's sole discretion. All approved Signs shall be
printed, painted, affixed or inscribed at Tenant's expense by a person or vendor
approved by Landlord and shall be removed by Tenant at Tenant's expense upon
vacating the Premises. Landlord shall have the right to remove any Sign
installed or displayed in violation of this rule at Tenant's expense and without
notice.
2. If Landlord objects in writing to any curtains, blinds, shades or screens
attached to or hung in or used in connection with any window or door of the
Premises or Building, Tenant shall immediately discontinue such use. No awning
shall be permitted on any part of the Premises. Tenant shall not place anything
or allow anything to be placed against or near any glass partitions or doors or
windows which may appear unsightly, in the opinion of Landlord, from outside the
Premises.
3. Tenant shall not alter any lock or other access device or install a new or
additional lock or access device or bolt on any door of its Premises without the
prior written consent of Landlord. Tenant, upon the termination of its tenancy,
shall deliver to Landlord the keys or other means of access to all doors.
4. If Tenant requires telephone, data, burglar alarm or similar service, the
cost of purchasing, installing and maintaining such service shall be borne
solely by Tenant. No boring or cutting for wires will be allowed without the
prior written consent of Landlord. Landlord shall direct electricians as to
where and how telephone, data, and electrical wires are to be introduced or
installed. The location of burglar alarms, telephones, call boxes or other
office equipment affixed to the Premises shall be subject to the prior written
approval of Landlord.
5. Tenant shall not place a load upon any floor of its Premises, including
mezzanine area, if any, which exceeds the load per square foot that such floor
was designed to carry and that is allowed by law. Heavy objects shall stand on
such platforms as determined by Landlord to be necessary to properly distribute
the weight. Landlord will not be responsible for loss of or damage to any such
equipment or other property from any cause, and all damage done to the Building
by maintaining or moving such equipment or other property shall be repaired at
the expense of Tenant.
6. Tenant shall not install any radio or television antenna, satellite dish,
loudspeaker or other device on the roof or exterior walls of the Building
without Landlord's prior written consent which consent shall be in Landlord's
sole discretion.
7. Tenant shall not xxxx, drive nails, screw or drill into the partitions,
woodwork, plaster or drywall (except for pictures and general office uses) or in
any way deface the Premises or any part thereof. Tenant shall not affix any
floor covering to the floor of the Premises or paint or seal any floors in any
manner except as approved by Landlord. Tenant shall repair any damage resulting
from noncompliance with this rule.
8. No cooking shall be done or permitted on the Premises, except that
Underwriters' Laboratory approved microwave ovens or equipment for brewing
coffee, tea, hot chocolate and similar beverages shall be permitted, provided
that such equipment and use is in accordance with all applicable federal, state
and city laws, codes, ordinances, rules and regulations.
9. Tenant shall not use any hand trucks except those equipped with the rubber
tires and side guards, and may use such other material-handling equipment as
Landlord may approve. Tenant shall not bring any other vehicles of any kind into
the Building. Forklifts which operate on asphalt areas shall only use tires that
do not damage the asphalt.
10. Tenant shall not use the name of the Building or any photograph or other
likeness of the Building in connection with or in promoting or advertising
Tenant's business except that Tenant may include the Building name in Tenant's
address. Landlord shall have the right, exercisable without notice and without
liability to any tenant, to change the name and address of the Building.
D-1
11. All trash and refuse shall be contained in suitable receptacles at locations
approved by Landlord. Tenant shall not place in the trash receptacles any
personal trash or material that cannot be disposed of in the ordinary and
customary manner of removing such trash without violation of any law or
ordinance governing such disposal.
12. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governing authority.
13. Tenant assumes all responsibility for securing and protecting its Premises
and its contents including keeping doors locked and other means of entry to the
Premises closed.
14. Tenant shall not use any method of heating or air conditioning other than
that supplied by Landlord without Landlord's prior written consent.
15. No person shall go on the roof without Landlord's permission.
16. Tenant shall not permit any animals, other than seeing-eye dogs, to be
brought or kept in or about the Premises or any common area of the property.
17. Tenant shall not permit any motor vehicles to be washed or mechanical work
or maintenance of motor vehicles to be performed on any portion of the Premises
or parking lot.
18. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of any lease of any premises in the Building. Landlord
may waive any one or more of these Rules and Regulations for the benefit of any
tenant or tenants, and any such waiver by Landlord shall not be construed as a
waiver of such Rules and Regulations for any or all tenants.
19. Landlord reserves the right to make such other and reasonable rules and
regulations as in its judgment may from time to time be needed for safety and
security, for care and cleanliness of the Building and for the preservation of
good order in and about the Building. Tenant agrees to abide by all such rules
and regulations herein stated and any additional rules and regulations which are
adopted. Tenant shall be responsible for the observance of all of the foregoing
rules by Tenant's employees, agents, clients, customers, invitees and guests.
20. Any toilet rooms, toilets, urinals, wash bowls and other apparatus shall not
be used for any purpose other than that for which they were constructed and no
foreign substance of any kind whatsoever shall be thrown into them. The expense
of any breakage, stoppage or damage resulting from the violation of this rule
shall be borne by the Tenant who, or whose employees or invitees, shall have
caused it.
21. Tenant shall not permit smoking or carrying of lighted cigarettes or cigars
in areas reasonably designated by Landlord or any applicable governmental
agencies as non-smoking areas.
22. Any directory of the Building or project of which the Building is a part
("Project Area"), if provided, will be exclusively for the display of the name
and location of tenants only and Landlord reserves the right to charge for the
use thereof and to exclude any other names.
23. Canvassing, soliciting, distribution of handbills or any other written
material in the Building or Project Area is prohibited and each tenant shall
cooperate to prevent the same. No tenant shall solicit business from other
tenants or permit the sale of any goods or merchandise in the Building or
Project Area without the written consent of Landlord.
24. Any equipment belonging to Tenant which causes noise or vibration that may
be transmitted to the structure of the Building or to any space therein to such
a degree as to be objectionable to Landlord or to any tenants in the Building
shall be placed and maintained by Tenant, at Tenant's expense, on vibration
eliminators or other devices sufficient to eliminate the noise or vibration.
25. Driveways, sidewalks, halls, passages, exits, entrances and stairways
("Access Areas") shall not be obstructed by tenants or used by tenants for any
purpose other than for ingress to and egress from their respective premises.
Access areas are not for the use of the general public and Landlord shall in all
cases retain the right to control and prevent access thereto by
D-2
all persons whose presence, in the judgement of Landlord, shall be prejudicial
to the safety, character, reputation and interests of the Building or its
tenants.
26. Landlord reserves the right to designate the use of parking areas and
spaces. Tenant shall not park in visitor, reserved, or unauthorized parking
areas. Tenant and Tenant's guests shall park between designated parking lines
only and shall not park motor vehicles in those areas designated by Landlord for
loading and unloading. Vehicles in violation of the above shall be subject to
being towed at the vehicle owner's expense. Vehicles parked overnight without
prior written consent of the Landlord shall be deemed abandoned and shall be
subject to being towed at vehicle owner's expense. Tenant will from time to
time, upon the request of Landlord, supply Landlord with a list of license plate
numbers of vehicles owned or operated by its employees or agents.
27. No trucks, tractors or similar vehicles can be parked anywhere other than in
Tenant's own truck dock area. Tractor-trailers which must be unhooked or parked
with dolly wheels beyond the concrete loading areas must use steel plates or
wood blocks under the dolly wheels to prevent damage to the asphalt paving
surfaces. No parking or storing of such trailers will be permitted in the
parking areas or on streets adjacent thereto.
28. During periods of loading and unloading, Tenant shall not unreasonably
interfere with traffic flow and loading and unloading areas of other tenants.
All products, materials or goods must be stored within the Tenant's Premises and
not in any exterior areas, including, but not limited to, exterior dock
platforms, against the exterior of the Building, parking areas and driveway
areas. Tenant agrees to keep the exterior of the Premises clean and free of
nails, wood, pallets, packing materials, barrels and any other debris produced
from their operation.
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D-3
EXHIBIT E - ADDITIONAL SURRENDER CONDITIONS
ATTACHED TO AND MADE A PART OF LEASE BEARING THE
LEASE REFERENCE DATE OF SEPTEMBER 7, 2005 BETWEEN
CALWEST INDUSTRIAL PROPERTIES, LLC, AS LANDLORD AND
LIMELIGHT NETWORKS, INC., AS TENANT
It is the Tenant's obligation to leave the Premises in good, clean condition
with all systems in good working order and repair. Among any other items deemed
reasonably appropriate by Landlord, the following items will be inspected by
Landlord at such time as Landlord deems inspection thereof to be appropriate to
confirm that they are in good working order and repair:
1. All heating and air conditioning equipment, exhaust fans and hot water
heaters. Tenant shall provide Landlord's office with a copy of an
inspection and service report detailing the condition of said
equipment, which report shall be provided by an Arizona licensed
mechanical contractor, within three (3) days after Tenant vacates or
abandons the Premises. If Landlord terminates Tenant's right to
possession of the Premises, Landlord shall have the report prepared at
Tenant's cost and expense.
2. All lights in the office and warehouse must be working. Tenant is
obligated to relamp and/or reballast the fixtures as necessary.
3. All overhead doors must be serviced and repaired.
4. All exterior metal doors, including hardware, must be serviced or
replaced as necessary.
5. All damaged sheetrock in the office area and in the warehouse along
the demising walls shall be repaired.
6. All office and warehouse floors must be left in good, clean condition.
7. Any and all exterior signage must be removed, with Tenant having the
obligation to repair and repaint the fascia as necessary.
8. Tenant shall remove all data, telecommunication and other cabling
installed by Tenant or Tenant's contractors within the Premises.
Unless directed otherwise by Landlord, conduit and all other raceways
are to remain in place. Tenant must use caution not to damage ceiling
tile, ceiling grid, walls and all other improvements within the
Premises when removing any such cabling. Tenant must restore ceiling
tiles, ceiling grid, walls and all other improvements within the
Premises to its original condition, normal wear & tear accepted.
If the Tenant elects not to do any of the above within three (3) days of written
notice, Landlord shall have the right to have the necessary repairs performed,
to deduct the cost thereof from the Security Deposit (if any), and to invoice
Tenant for the balance due. Tenant shall pay said balance within ten (10) days
of receipt of said invoice.
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E-1
