EXHIBIT 10.8
STANDARD INDUSTRIAL/COMMERCIAL MULTI-TENANT LEASE - NET
1. BASIC PROVISIONS ("BASIC PROVISIONS").
1.1 PARTIES: This Lease ("LEASE"), dated for reference purposes only
July 5, 2000, is made by and between PAS TRUST ("LESSOR") and VIANT CORPORATION,
a Delaware corporation ("LESSEE"), (collectively the "Parties", or individually
a "PARTY").
1.2(a) PREMISES: That certain portion of the Project (as defined below),
including all improvements therein or to be provided by Lessor under located in
the City of Xxxxxx City, County of Los Angeles, State of California, with zip
code 90232, as outlined on Exhibit A attached hereto ("PREMISES") and, generally
described as (describe briefly the nature of the Premises): approximately 50,220
square feet in a location indicated on Exhibit A attached hereto, which is a
portion of the entire approximately 71,220 square foot Building. In addition to
Lessee's rights to use and occupy the Premises as hereinafter specified, Lessee
shall have non-exclusive rights to the Common Areas (as defined in Paragraph 2.7
below) as hereinafter specified, but shall not have any rights to the roof,
exterior walls or utility raceways of the building containing the Premises
("BUILDING") or to any other buildings in the Project. The Premises, the
Building, the Common Areas, the land upon which they are located, along with all
other buildings and improvements thereon, are herein collectively referred to as
the "Project." (See also Paragraph 2)
1.2(b) PARKING: -0- unreserved vehicle parking spaces ("UNRESERVED PARKING
SPACES"); and one hundred forty (140) reserved vehicle parking spaces ("RESERVED
PARKING SPACES"). (See also Paragraph 2.6 and Paragraph 54 of Addendum No. 1.)
1.3 TERM: Eight (8) years and -0- months ("ORIGINAL TERM") commencing on
the earlier of November 1, 2000 or when Lessee takes occupancy of any portion of
the Premises for the conduct of its business. Should there not be "Substantial
Completion" (as defined in EXHIBIT C of all "Shell and Core Work" (as defined in
EXHIBIT C) by November 1, 2000 and Lessee has not taken occupancy of any portion
of the Premises for the conduct of its business by then, then the Commencement
Date shall be postponed until such time as there is Substantial Completion of
all the Shell and Core Work (provided Lessee does not earlier take occupancy of
any portion of the Premises), unless the reason for the delay is due to "Tenant
Delay" (as defined in EXHIBIT C), in which event the Commencement Date shall
occur on the date that there would have been Substantial Completion of the Shell
and Core Work but for the Tenant Delay ("COMMENCEMENT DATE") and ending "eight
(8) years from the Commencement Date. ("EXPIRATION DATE"). (See also Paragraph
3)
1.4 EARLY POSSESSION: See Page 2A. ("EARLY POSSESSION DATE"). (See also
Paragraphs 3.2 and 3.3)
1.5 BASE RENT: $93,409 per month ("BASE RENT"), payable on the first
(1st) day of each month commencing on the Commencement Date. (See also Paragraph
4)
/X/ If this box is checked, there are provisions in this Lease for the Base
Rent to be adjusted.
1.6 LESSEE'S SHARE OF COMMON AREA OPERATING EXPENSES: Seventy and
one-half percent (70.5%) ("LESSEE'S SHARE").
1.7 BASE RENT AND OTHER MONIES PAID UPON EXECUTION:
(a) BASE RENT: $93,409 for the period first (1st) month of the
Original Term.
(b) COMMON AREA OPERATING EXPENSES: See Addendum No. 1. for the
period See Addendum No. 1.
(c) SECURITY DEPOSIT: $230,000 cash plus $1,630,000 letter of
credit ("Security Deposit"). (See also Paragraph 5 and Paragraph 51 of Addendum
No. 1.)
(d) OTHER: $ N /A for N/A
(e) TOTAL DUE UPON EXECUTION OF THIS LEASE: $323,409 cash plus
$1,630,000 letter of credit.
1.8 AGREED USE: general office and production use for a media or
internet related company. (See also Paragraph 6)
1.9 INSURING PARTY. Lessor is the "INSURING PARTY" (See also Paragraph
8)
1.10 REAL ESTATE BROKERS: (See also Paragraph 15)
(a) REPRESENTATION: The following real estate brokers (the
"BROKERS") and brokerage relationships exist in this transaction (check
applicable boxes):
/X/ First Property Realty Corporation represents Lessor exclusively ("LESSOR'S
BROKER");
/X/ Xxxxxxx Realty represents Lessee exclusively ("LESSEE'S BROKER"); or
(b) PAYMENT TO BROKERS: Upon execution and delivery of this Lease
by both Parties, Lessor shall pay to the Brokers the brokerage fee agreed to in
a separate written agreement.
1.11 GUARANTOR. The obligations of the Lessee under this Lease are to be
guaranteed by N/A ("GUARANTOR"). (See also Paragraph 37)
1.12 ADDENDA AND EXHIBITS. Attached hereto is an Addendum or Addenda
consisting of Paragraphs 50 through 63 and Exhibits A through C, all of which
constitute a part of this Lease.
2. PREMISES.
2.1 LETTING. Lessor hereby leases to Lessee, and Lessee hereby leases
from Lessor, the Premises, for the term, at the rental, and upon all of the
terms, covenants and conditions set forth in this Lease. Unless otherwise
provided herein, any statement of size set forth in this Lease, or that may have
been used in calculating Rent, is an approximation which the Parties
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agree is reasonable and any payments based thereon are not subject to revisions,
whether or not the actual size is more or less.
2.2 CONDITION. Lessor shall deliver that portion of the Premises
contained within the Building ("UNIT") to Lessee broom clean and free of debris
on the Commencement Date or the Early Possession Date, whichever first occurs
("START DATE"), and, so long as the required service contracts described in
Paragraph 7.1(b) below are obtained by Lessee and in effect within thirty days
following the Start Date, warrants that the existing electrical, plumbing, fire
sprinkler, lighting, heating, ventilating and air conditioning systems ("HVAC"),
loading doors, if any, and any all other such elements in the Units, other than
those constructed by Lessee, shall be in good operating condition on said date
and that the structural elements of the roof, bearing walls and foundation of
the Unit shall be free of material defects. If a non-compliance with such
warranty exists as of the Start Date, or if one of such systems or elements
should malfunction or fail within the appropriate warranty period, Lessor shall,
as Lessor's sole obligation with respect to such matter, except as otherwise
provided in this Lease, promptly after receipt of written notice from Lessee
setting forth with specificity the nature and extent of such non-compliance,
malfunction or failure, rectify same at Lessor's expense. The warranty periods
shall be as follows: (i) 6 months as to the HVAC systems, and, (ii) 30 days as
to the remaining systems and other elements of the Unit. If Lessee does not give
Lessor the required notice within the appropriate warranty period, correction of
any such non-compliance, malfunction or failure shall be the obligation of
Lessee at Lessee's sole cost and expense (except for the repairs to the tire
sprinkler systems, root, foundations, and/or bearing walls - see Paragraph 7).
2.3 COMPLIANCE. Lessor warrants that the improvements on the Premises
and the Common Areas comply with the building codes that were in effect at the
time that each such improvement, or portion thereof, was constructed, and also
with all applicable laws, covenants or restrictions of record, regulations, and
ordinances in effect on the Start Date ("APPLICABLE REQUIREMENTS"). Said
warranty does not apply to the use to which Lessee will put the premises or to
any Alterations or Utility Installations (as defined in Paragraph 7.3(a)) made
or to be made by Lessee. NOTE: Lessee is responsible for determining whether or
not the Applicable Requirements, and especially the zoning, are appropriate for
Lessee's intended use, and acknowledges that past uses of the Premises may no
longer be allowed. If the Premises do not comply with said warranty, Lessor
shall, except as otherwise provided, promptly after receipt of written notice
from Lessee setting forth with specificity the nature and extent of such
non-compliance, rectify the same at Lessor's expense. If Lessee does not give
Lessor written notice of a non-compliance with this warranty within forty-five
(45) days following the Start Date, correction of that non-compliance shall be
the obligation of Lessee at Lessee's sole cost and expense. If the Applicable
Requirements are hereafter changed so as to require during the term of this
lease the construction of an addition to or an alteration of the Unit, Premises
and/or Building, the remediation of any Hazardous Substance, or the
reinforcement or other physical modification of the Unit, Premises and/or
Building ("CAPITAL EXPENDITURE"), Lessor and Lessee shall allocate the cost of
such work as follows:
(a) Subject to Paragraph 2.3(c) below, if such Capital Expenditures
are required as a result of the specific and unique use of the Premises by
Lessee as compared with uses by tenants in general, Lessee shall be fully
responsible for the cost thereof, provided, however that if such Capital
Expenditure is required during the last 2 years of this Lease and the
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cost thereof exceeds 6 months' Base Rent, Lessee may instead terminate this
Lease unless Lessor notifies Lessee, in writing, within 10 days after receipt of
Lessee's termination notice that Lessor has elected to pay the difference
between the actual cost thereof and the amount equal to 6 months' Base Rent. If
Lessee elects termination, Lessee shall immediately cease the use of the
Premises which requires such Capital Expenditure and deliver to lessor written
notice specifying a termination date at least 90 days thereafter. Such
termination date shall, however, in no event be earlier than the last day that
Lessee could legally utilize the Premises without commencing such Capital
Expenditure.
(b) If such Capital Expenditure is not the result of the specific
and unique use of the Premises by Lessee (such as, governmentally mandated
seismic modifications), then Lessor and Lessee shall allocate the obligation to
pay for the portion of such costs reasonably attributable to the premises
pursuant to the formula set out in Paragraph 7.1(d); provided, however, that if
such Capital Expenditure is required during the last 2 years of this Lease or if
Lessor reasonably determines that it is not economically feasible to pay its
share thereof, Lessor shall have the option to terminate this Lease upon 90 days
prior written notice to Lessee unless Lessee notifies Lessor, in writing, within
10 days after receipt of Lessor's termination notice that Lessee will pay for
such Capital Expenditure. If Lessor does not elect to terminate, and falls to
lender its share of any such Capital Expenditure, Lessee may advance such funds
and deduct same, with interest, from Rent until Lessor's share of such costs
have been fully paid. If Lessee is unable to finance Lessor's share, or if the
balance of the Rent due and payable for the remainder of this Lease is not
sufficient to fully reimburse Lessee on an offset basis. Lessee shall have the
right to terminate this Lease upon 30 days written notice to Lessor.
(c) Notwithstanding the above, the provisions concerning Capital
Expenditures are intended to apply only to non-voluntary, unexpected, and new
Applicable Requirements. If the Capital Expenditures are instead triggered by
Lessee as a result of an actual or proposed change in use, change in intensity
of use, or modification to the Premises then, and in that event, Lessee shall be
fully responsible for the cost thereof, and Lessee shall not have any right to
terminate this Lease.
2.4 ACKNOWLEDGEMENTS. Lessee acknowledges that: (a) it has been advised
by Lessor and/or Brokers to satisfy itself with respect to the condition of the
Premises (including but not limited to the electrical, HVAC and fire sprinkler
systems, security, environmental aspects, and compliance with Applicable
Requirements and the Americans with Disabilities Act), and their suitability for
Lessee's intended use, (b) Lessee has made such investigation as it deems
necessary with reference to such matters and assumes all responsibility therefor
as the same relate to its occupancy of the Premises, and (c) neither lessor,
Lessor's agents, nor Brokers have made any oral or written representations or
warranties with respect to said matters other than as set forth in this Lease.
In addition, Lessor acknowledges that: (i) Brokers have made no representations,
promises: or warranties concerning Lessee's ability to honor the Lease or
suitability to occupy the Premises, and (ii) it is Lessor's sole responsibility
to investigate the financial capability and/or suitability of all proposed
tenants.
2.5 [DELETED]
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2.6 VEHICLE PARKING. See Paragraph 54 of Addendum No. 1. Lessee shall be
entitled to use the number of Unreserved Parking Spaces and Reserved Parking
Spaces specified in Paragraph 1.2(b) on those portions of the Common Areas
designated from time to time by Lessor for parking. Lessee shall not use more
parking spaces than said number. Said parking spaces shall be used for parking
by vehicles no larger than full-size passenger automobiles or pick-up trucks,
herein called "Permitted Size Vehicles." Lessor may regulate the loading and
unloading of vehicles by adopting Rules and Regulations as provided in Paragraph
2.9. No vehicles other than Permitted Size Vehicles may be parked in the Common
Area without the prior written permission of Lessor.
(a) Lessee shall not permit or allow any vehicles that belong to or
are controlled by Lessee or Lessee's employees, suppliers, shippers, customers,
contractors or invitees to be loaded, unloaded, or parked in areas other than
those designated by Lessor for Lessee's use.
(b) Lessee shall not service or store any vehicles in the Common
Areas.
(c) If Lessee permits or allows any of the prohibited activities
described in this Paragraph 2.6, then Lessor shall have the right, without
notice, in addition to such other rights and remedies that it may have, to
remove or tow away the vehicle involved and charge the cost to Lessee, which
cost shall be immediately payable upon demand by Lessor.
2.7 COMMON AREAS - DEFINITION. The term "COMMON AREAS" is defined as all
areas and facilities outside the Premises and within the exterior boundary line
of the Project and interior utility raceways and installations within the Unit
that are provided and designated by the Lessor from time to time for the general
non-exclusive use of Lessor, Lessee and other tenants of the Project and their
respective employees, suppliers, shippers, customers, contractors and invitees,
including parking areas, loading and unloading areas, trash areas, roadways,
walkways, driveways and landscaped areas.
2.8 COMMON AREAS - LESSEE'S RIGHTS. Lessor grants to lessee, for the
benefit of Lessee and its employees, suppliers, shippers, contractors, customers
and invitees, during the term of this Lease, the non-exclusive right to use, in
common with others entitled to such use, the Common Areas as they exist from
time to time, subject to any rights, powers, and pr privileges reserved by
Lessor under the terms hereof or under the terms of any rules and regulations or
restrictions governing the use of the Project. Under no circumstances shall the
right herein granted to use the Common Areas be deemed to include the right to
store any property, temporarily or permanently, in the Common Areas. Any such
storage shall be permitted only by the prior written consent of Lessor or
Lessor's designated agent, which consent may be revoked at any time. In the
event that any unauthorized storage shall occur then Lessor shall have the
right, without notice, in addition to such other rights and remedies that it may
have, to remove the property and charge the cost to Lessee, which cost shall be
immediately payable upon demand by Lessor.
2.9 COMMON AREAS - RULES AND REGULATIONS. Lessor or such other persons)
as Lessor may appoint shall have the exclusive control and management of the
Common Areas and shall have the right, from time to time, to establish, modify,
amend and enforce reasonable rules
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and regulations ("RULES AND REGULATIONS") for the management, safety, care, and
cleanliness of the grounds, the parking and unloading of vehicles and the
preservation of good order, as well as for the convenience of other occupants or
tenants of the Building and the Protect and their invitees. Lessee agrees to
abide by and conform to all such Rules and Regulations, and to cause its
employees, suppliers, shippers, customers, contractors and invitees to so abide
and conform. Lessor shall not be responsible to Lessee for the non-compliance
with, said Rules and Regulations by other tenants of the Project. See Exhibit
"B" attached hereto and made a part hereof.
2.10 COMMON AREA - CHANGES. Provided Lessee's use of and access to or
enjoyment of the Common Areas are not materially adversely affected, Lessor
shall have the right, in Lessor's sole discretion, from time to time.
(a) To make changes to the Common Areas, including, without
limitation, changes in the location, size, shape and number of driveways,
entrances, parking spaces, parking areas, loading and unloading areas, ingress,
egress, direction of traffic, landscaped areas, walkways and utility raceways;
(b) To close temporarily any of the Common Areas for maintenance
purposes so long as reasonable access to the Premises remains available;
(c) To designate other land outside the boundaries of the Project
to be part of the Common Areas;
(d) To add additional buildings and improvements to the Common
Areas;
(e) To use the Common Areas while engaged in making additional
improvement, repairs or alternations to the Project, or any portion thereof; and
(f) To do and perform such other acts and make such other changes
in, to or with respect to the Common Areas and Project as Lessor may, in the
exercise of sound business judgment, deem to be appropriate.
3. TERM.
3.1 TERM. The Commencement Date, Expiration Date and Original Term of
this Lease are as specified in Paragraph 1.3.
3.2 EARLY POSSESSION. If Lessee totally or partially occupies the Premises
prior to the Commencement Date, the obligation to pay Base Rent shall be abated
for the period of such early possession. All other terms of this Lease
(including but not limited to the obligations to pay Lessee's Share of Common
Area Operating Expenses. Real Property Taxes and insurance premiums and to
maintain the Premises) shall, however, be in effect during such period. Any such
early possession shall not affect the Expiration Date. Notwithstanding the
foregoing, and notwithstanding the provisions of Paragraph 1.4 of the Lease,
Lessee shall be granted access to the "Premises" to construct its "Tenant
Improvements" (as such term is defined in Paragraph 3.1 of Exhibit C) on August
1, 2000 with no duty on the part of Lessee to pay Base Rent, and Lessee shall
reasonably cooperate with Lessor in order to minimize any delays in the
substantial
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completion of Lessor's "Shell and Core Work" (as such term is defined in
Paragraph 3.3 of Exhibit C). Lessee shall be responsible for payment of all
utilities during the period of construction of its "Tenant Improvements" (as
such term is defined in Paragraph 3.1 of Exhibit X. Xxxxxx shall be entitled to
access to the Premises to construct its Shell and Core Work, and Lessor shall
responsibly cooperate with Lessee in order to minimize any delays in the
substantial completion of the Lessee's "Tenant Improvements" (as such term
defined in Paragraph 3.1 of EXHIBIT C).
3.3 DELAY IN POSSESSION. Lessor agrees to use its best commercially
reasonable efforts to deliver possession of the Premises to Lessee by the
Commencement Date. If, despite said efforts, Lessor is unable to deliver
possession as agreed, Lessor shall not be subject to any liability therefor, nor
shall such failure affect the validity of this Lease. Lessee shall not, however,
be obligated to pay Rent or perform its other obligations until it receives
possession of the Premises. If possession is not delivered within 60 days after
the Commencement Date, Lessee may, at its option, by notice in writing within 10
days after the end of such 60 day period, cancel this Lease, in which event the
Parties shall be discharged from all obligations hereunder. If such written
notice is not received by Lessor within said 10 day period, Lessee's right to
cancel shall terminate. Except as otherwise provided, if possession is not
tendered to Lessee by the Start Date and Lessee does not terminate this Lease,
as aforesaid, any period of rent abatement that Lessee would otherwise have
enjoyed shall run from the date of delivery of possession and continue for a
period equal to what Lessee would otherwise have enjoyed under the terms hereof,
but minus any days of delay caused by the acts or omissions of Lessee. If
possession of the Premises is not delivered within 4 months after the
Commencement Date, this Lease shall terminate unless other agreements are
reached between Lessor and Lessee, in writing.
3.4 LESSEE COMPLIANCE. Lessor shall not be required to tender possession
of the Premises to Lessee until Lessee complies with its obligation to provide
evidence of insurance (Paragraph 8.5). Pending delivery of such evidence, Lessee
shall be required to perform all of its obligations under this Lease from and
after the Start Date, including the payment of Rent, notwithstanding Lessor's
election to withhold possession pending receipt of such evidence of insurance.
Further, if Lessee is required to perform any other conditions prior to or
concurrent with the Start Date, the Start Date shall occur but Lessor may elect
to withhold possession until such conditions are satisfied.
4. RENT.
4.1 RENT DEFINED. All monetary obligations of Lessee to Lessor under the
terms of this Lease (except for the Security Deposit) are deemed to be rent
("Rent").
4.2 COMMON AREA OPERATING EXPENSES. Lessee shall pay to Lessor during
the term hereof, in addition to the Base Rent. Lessee's Share (as specified in
Paragraph 1.6) of all Common Area Operating Expenses, as hereinafter defined,
during each calendar year of the term of this Lease, in accordance with the
following provisions:
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(a) "COMMON AREA OPERATING EXPENSES" are defined, for purposes of
this Lease, as all costs incurred by Lessor relating to the ownership and
operation of the Project, including, but not limited to, the following: See
paragraph 56 of Addendum No. 1.
(i) The operation, repair and maintenance, in neat, clean,
good order and condition of the following:
(aa) The Common Areas and Common Area improvements,
including parking areas, loading and unloading areas, trash
areas, roadways, parkways, walkways, driveways, landscaped
areas, bumpers, irrigation systems, Common Area lighting
facilities, fences and gates, elevators, roofs, and roof
drainage systems.
(bb) Exterior signs and any tenant directories.
(cc) Any fire detection and/or sprinkler systems.
(ii) The cost of water, gas, electricity and telephone to
service the Common Areas and any utilities not separately metered.
(iii) Trash disposal, pest control services, property
management, security services, and the costs of any environmental inspections;
provided, however, that the property management fee payable by Lessee shall be
Lessee's Share (ie. 70.5%) of: $2,500 per month during the first (1st) and
second (2nd) years of the Original Term; $2,750 per month during the third (3rd)
and fourth (4th) years of the Original Term; $3,000 per month during the fifth
(5th) and sixth (6th) years of the Original Term; and $3,250 per month during
the seventh (7th) and eighth (8th) years of the Original Term.
(iv) [DELETED]
(v) Real Property Taxes (as defined in Paragraph 10).
(vi) The cost of the premiums for the insurance maintained
by Lessor pursuant to Paragraph 8, excluding earthquake insurance.
(vii) Any deductible portion of an insured loss concerning
the Building or the Common Areas.
(viii) The cost of any Capital Expenditure to the Building or
the Project not covered under the provisions of Paragraph 2.3 provided; however,
that Lessor shall allocate the cost of any such Capital Expenditure over a 12
year period and Lessee shall not be required to pay more than Lessee's Share of
1/144th of the cost of such Capital Expenditure in any given month.
(ix) Any other services to be provided by Lessor that are
stated elsewhere in this Lease to be a Common Area Operating Expense.
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(b) Any Common Area Operating Expenses and Real Property Taxes that
are specifically attributable to the Unit, the Building or to any other building
in the Project or to the operation, repair and maintenance thereof, shall be
allocated entirely to such Unit. Building, or other building. However, any
Common Area Operating Expenses and Real Property Taxes that are not specifically
attributable to the Building or to any other building or to the operation,
repair and maintenance thereof, shall be equitably allocated by Lessor to all
buildings in the Project.
(c) The inclusion of the improvements, facilities and services set
forth in Subparagraph 4.2(a) shall not be deemed to impose an obligation upon
Lessor to either have said improvements or facilities or to provide those
services unless the Project already has the same. Lessor already provides the
services, or Lessor has agreed elsewhere in this Lease to provide the same or
some of them.
(d) Lessee's Share of Common Area Operating Expenses shall be
payable by Lessee within 10 days after a reasonably detailed statement of actual
expenses is presented to Lessee. At Lessor's option, however, an amount may be
estimated by Lessor from time to time of Lessee's Share of annual Common Area
Operating Expenses and the same shall be payable monthly or quarterly, as Lessor
shall designate, during each 12 month period of the Lease term, on the same day
as the Base Rent is due hereunder. Lessor shall deliver to Lessee within 60 days
after the expiration of each calendar year a reasonably detailed statement
showing Lessee's Share of the actual Common Area Operating Expenses incurred
during the preceding year. If Lessee's payments under this Paragraph 4.2(d)
during the preceding year exceed Lessee's Share as indicated on such statement,
Lessor shall credit the amount of such over-payment against Lessee's Share of
Common Area Operating Expenses next becoming due, but if the Original Term and
any Option Period shall have expired, then Lessor shall refund such over-payment
directly to Lessee. If Lessee's payments under this Paragraph 4.2(d) during the
preceding year were less than Lessee's Share as indicated on such statement,
Lessee shall pay to Lessor the amount of the deficiency within 10 -lays after
delivery by Lessor to Lessee of the statement.
4.3 PAYMENT. Lessee shall cause payment of Rent to be received by Lessor
in lawful money of the United States, without offset or deduction (except as
specifically permitted in this Lease), on or before the day on which it is due.
Rent for any period during the term hereof which is for less than one full
calendar month shall be prorated based upon the actual number of days of said
month. Payment of Rent shall be made to Lessor at its address stated herein or
to such other persons or place as Lessor may from time to time designate in
writing. Acceptance of a payment which is less than the amount then due shall
not be a waiver of Lessor's rights to the balance of such Rent, regardless of
Lessor's endorsement of any check so stating. In the event that any check,
draft, or other instrument of payment given by Lessee to Lessor is dishonored
for any reason, Lessee agrees to pay to Lessor the sum of $25 in addition to any
late charges which may be due.
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon execution
hereof the Security Deposit as security for Lessee's faithful performance of its
obligations under this Lease. if Lessee fails to pay Rent, or otherwise Defaults
under this Lease, Lessor may use, apply or retain all or any portion of said
Security Deposit for the payment of any amount due Lessor or to reimburse or
compensate Lessor for any liability, expense, loss or damage which Lessor may
suffer or incur by reason thereof. If Lessor uses or applies all or any portion
of the Security
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Deposit, Lessee shall within 10 days after written request therefor deposit
monies with Lessor sufficient to restore said Security Deposit to the full
amount required by this Lease. Should the Agreed Use be amended to accommodate a
material change in the business of Lessee or to accommodate a sublessee or
assignee, Lessor shall have the right to increase the Security Deposit to the
extent necessary, in Lessor's reasonable judgment, to account for any increased
wear and tear that the Premises may suffer as a result thereof. If a change in
control of Lessee occurs during this Lease and following such change the
financial condition of Lessee is, in Lessor's reasonable judgment, significantly
reduced, Lessee shall deposit such additional monies with Lessor as shall be
sufficient to cause the Security Deposit to be at a commercially reasonable
level based on such change in financial condition. Lessor shall not be required
to keep the Security Deposit separate from its general accounts. Within 14 days
after the expiration or termination of this Lease, if Lessor elects to apply the
Security Deposit only to unpaid Rent, and otherwise within 30 days after the
Premises have been vacated pursuant to Paragraph 7.4(c) below, Lessor shall
return that portion of the Security Deposit not used or applied by Lessor. No
part of the Security Deposit shall be considered to be held in trust, to bear
interest or to be prepayment for any monies to be paid by Lessee under this
Lease. See Paragraph 51 of Addendum No. 1.
6. USE.
6.1 USE. Lessee shall use and occupy the Premises only for the Agreed
Use, or any other legal use which is reasonably comparable thereto, and for no
other purpose. Lessee shall not use of permit the use of the Premises in a
manner that is unlawful, creates damage, waste or a nuisance, or that disturbs
occupants of or causes damage to neighboring premises or properties. Lessor
shall not unreasonably withhold or delay its consent to any written request for
a modification of the Agreed Use, so long as the same will not impair the
structural integrity of the improvements on the Premises or the mechanical or
electrical systems therein, and/or is not significantly more burdensome to the
Premises. If Lessor elects to withhold consent. Lessor shall within 7 days after
such request give written notification of same, which notice shall include an
explanation of Lessor's objections to the change in the Agreed.
6.2 HAZARDOUS SUBSTANCES.
(a) REPORTABLE USES REQUIRE CONSENT. The term "Hazardous Substance"
as used in this Lease shall mean any product, substance, or waste whose
presence, use, manufacture, disposal, transportation, or release, either by
itself or in combination with other materials expected to be on the Premises, is
either: (i) potentially injurious to the public health, safety or welfare, the
environment or the Premises, (ii) regulated or monitored by any governmental
authority, or (iii) a basis for potential liability of Lessor to any
governmental agency or third party under any applicable statute or common law
theory. Hazardous Substances shall include, but not be limited to, hydrocarbons,
petroleum, gasoline, and/or crude oil or any products, by-products or fractions
thereof. Lessee shall not engage in any activity in or on the Premises which
constitutes a Reportable Use of Hazardous Substances without the express prior
written consent of Lessor and timely compliance (at Lessee's expense) with all
Applicable Requirements. "Reportable Use" shall mean (i) the installation or use
of any above or below ground storage tank, (ii) the generation, possession,
storage, use, transportation, or disposal of a Hazardous Substance that requires
a permit from, or with respect to which a report, notice,
10
registration or business plan is required to be filed with, any governmental
authority, and/or (iii) the presence at the Premises of a Hazardous Substance
with respect to which any Applicable Requirements requires that a notice be
given to persons entering or occupying the Premises or neighboring properties.
Notwithstanding the foregoing, Lessee may use any ordinary and customary
materials reasonably required to be used in the normal course of the Agreed Use,
so long as such use is in compliance with all Applicable Requirements, is not a
Reportable Use, and does not expose the Premises or neighboring property to any
meaningful risk of contamination or damage or expose Lessor to any liability
therefor. In addition, Lessor may condition its consent to any Reportable Use
upon receiving such additional assurances as Lessor reasonably deems necessary
to protect itself, the public, the Premises and/or the environment against
damage, contamination, injury and/or liability, including, but not limited to,
the installation (and removal on or before Lease expiration or termination) of
protective modifications (such as concrete encasements) and/or increasing the
Security Deposit.
(b) DUTY TO INFORM LESSOR. If Lessee knows, or has reasonable cause
to believe, that a Hazardous Substance has come to be located in, on, under or
about the Premises, other than as previously consented to by Lessor, Lessee
shall immediately give written notice of such fact to Lessor, and provide Lessor
with a copy of any report, notice, claim or other documentation which it has
concerning the presence of such Hazardous Substance.
(c) LESSEE REMEDIATION. Lessee shall not cause or permit any
Hazardous Substance to be spilled or released in, on, under, or about the
Premises (including through the plumbing or sanitary sewer system) and shall
promptly, at Lessee's expense, take all investigatory and/or remedial action
reasonably recommended, whether or not formally ordered or required, for the
cleanup of any, contamination of, and for the maintenance, security and/or
monitoring of the Premises or neighboring properties, that was caused or
materially contributed to by Lessee, or pertaining to or involving any Hazardous
Substance brought onto the Premises during the term of this Lease, by or for
Lessee, or any third party.
(d) LESSEE INDEMNIFICATION. Lessee shall indemnify, defend and hold
Lessor, its agents, employees, lenders and ground lessor, if any, harmless from
and against any and all loss of rents and/or damages, liabilities, judgments,
claims, expenses, penalties, and attorneys' and consultants' fees arising out of
or involving any Hazardous Substance brought onto the Premises by or for Lessee,
or any third party (provided, however, that Lessee shall have no liability under
this Lease with respect to underground migration of any Hazardous Substance
under the Premises from areas outside of the Project). Lessee's obligations
shall include, but not be limited to, the effects of any contamination or injury
to person, property or the environment created or suffered by Lessee, and the
cost of investigation, removal, remediation, restoration and/or abatement, and
shall survive the expiration or termination of this Lease. No termination,
cancellation or release agreement entered into by Lessor and Lessee shall
release Lessee from its obligations under this Lease with respect to Hazardous
Substances, unless specifically so agreed by Lessor in writing at the time of
such agreement.
(e) LESSOR INDEMNIFICATION. Except as is disclosed to Lessee in the
last sentence of this paragraph, Lessor represents and warrants to Lessee that
as of the date hereof, Lessor has no actual knowledge of the presence of
Hazardous Substances at the Premises, and that Lessor has not received any
written notice of non-compliance with governmental regulations
11
from any governmental authority with respect to Hazardous Substances. Lessor
shall indemnify, protect, defend and hold Lessee and Lessee's officers,
directors, shareholders, employees, agents and sublessees harmless from and
against any and all damages, liabilities, judgments, costs, claims, liens,
expenses, penalties, loss of permits and reasonable attorneys' and consultants'
fees arising out of or involving: (i) any breach by Lessor of the foregoing
representation and warranty; and/or (ii) any Hazardous Substances now existing
or brought onto the Premises by or for Lessor or by anyone under Lessor's
control, except with respect to the lead referenced in the last sentence of this
paragraph. Lessee understands and acknowledges that Lessor has disclosed to
Lessee that certain steel columns in the Premises contain lead, and that Lessor
at Lessor's expense shall encapsulate the lead by painting the columns. Should
Lessee desire that the lead be encapsulated by a method other than painting,
which method does not violate Applicable Requirements and protects the health
and safety of persons in the Premises, Lessee shall bear the cost of such
alternative method.
(f) INVESTIGATIONS AND REMEDIATIONS. Lessor shall retain the
responsibility and pay for any investigations or remediation measures required
by governmental entities having jurisdiction with respect to the existence of
Hazardous Substances on the Premises prior to the Start Date, unless such
remediation measure is required as a result of Lessee's use (including
"Alterations", as defined in paragraph 7.3(a) below) of the Premises, in which
event Lessee shall be responsible for such payment. Lessee shall cooperate fully
in any such activities at the request of Lessor, including allowing Lessor and
Lessor's agents to have reasonable access to the Premises at reasonable times in
order to carry out Lessor's investigative and remedial responsibilities.
(g) LESSOR TERMINATION OPTION. If a Hazardous Substance Condition
(see Paragraph 9.1(e)) occurs during the term of this Lease, unless Lessee is
legally responsible therefor (in which case Lessee shall make the investigation
and remediation thereof required by the Applicable Requirements and this Lease
shall continue in full force and effect, but subject to Lessor's rights under
Paragraph 6.2(d) and Paragraph 13), Lessor may, at Lessor's option, either (i)
investigate and remediate such Hazardous Substance Condition, if required, as
soon as reasonably possible at Lessor's expense, in which event this Lease shall
continue in full force and effect, or (ii) if the estimated cost to remediate
such condition exceeds 12 times the then monthly Base Rent or $100,000,
whichever is greater, give written notice to Lessee, within 30 days after
receipt by Lessor of knowledge of the occurrence of such Hazardous Substance
Condition, of Lessor's desire to terminate this Lease as of the date 60 days
following the date of such notice. In the event Lessor elects to give a
termination notice, Lessee may, within 10 days thereafter, give written notice
to Lessor of Lessee's commitment to pay the amount by which the cost of the
remediation of such Hazardous Substance Condition exceeds an amount equal to 12
times the then monthly Base Rent or $100,000, whichever is greater. Lessee shall
provide Lessor with said funds or satisfactory assurance thereof within 30 days
following such commitment. In such event, this Lease shall continue in full
force and effect, and Lessor shall proceed to make such remediation as soon as
reasonably possible after the required funds are available. If Lessee does not
give such notice and provide the required funds or assurance thereof within the
time provided, this Lease shall terminate as of the xxxx specified in Lessor's
notice of termination.
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6.3 LESSEE'S COMPLIANCE WITH APPLICABLE REQUIREMENTS. Except as
otherwise provided in this Lease, Lessee shall, at Lessee's sole expense, fully,
diligently and in a timely manner, materially comply with all Applicable
Requirements, the requirements of any applicable fire insurance underwriter or
rating bureau, and the recommendations of Lessor's engineers and/or consultants
which relate in any manner to the Premises, without regard whether said
requirements are now in effect or become effective after the Start Date. Lessee
shall, within 10 days after receipt of Lessor's written request, provide Lessor
with copies of all permits and other documents, and other information evidencing
Lessee's compliance with any Applicable Requirements specified by Lessor, and
shall immediately upon receipt, notify Lessor in writing (with copies of any
documents involved) of any threatened or actual claim, notice, citation,
warning, complaint or report pertaining to or involving the failure of Lessee or
the Premises to comply with any Applicable Requirements.
6.4 INSPECTION; COMPLIANCE. Lessor and Lessor's "Lender" (as defined in
Paragraph 30) and consultants shall have the right to enter into Premises at any
time, in the case of an emergency, and otherwise at reasonable times, on
reasonable advance notice, for the purpose of inspecting the condition of the
Premises and for verifying compliance by Lessee with this Lease. The cost of any
such inspections shall be paid by Lessor, unless a violation of Applicable
Requirements, or a contamination is found to exist or be imminent, or the
inspection is requested or ordered by a governmental authority. In such case,
Lessee shall upon request reimburse Lessor for the cost of such inspection, so
long as such inspection is reasonably related to the violation or contamination
and such violation or contamination was caused by Lessee or Lessee's employees,
agents or invitees.
7. MAINTENANCE; REPAIRS, UTILITY INSTALLATIONS; TRADE FIXTURES AND
ALTERATIONS.
7.1 LESSEE'S OBLIGATIONS. See Paragraph 53 of Addendum No. 1.
(a) IN GENERAL. Subject to the provisions of Paragraph 2.2
(Condition), 2.3 (Compliance), 6.3 (Lessee's Compliance with Applicable
Requirements), 7.2 (Lessor's Obligations), 9 (Damage or Destruction), Lessee
shall, at Lessee's sole expense keep the Premises, Utility Installations
(intended for Lessee's exclusive use, no matter where located), and Alterations
in good order, condition and repair (whether or not the portion of the Premises
requiring repairs, or the means of repairing the same, are reasonably or readily
accessible to Lessee, and whether or not the need for such repairs occurs as a
result of Lessee's use, any prior use, the elements or the age of such portion
of the Premises), including, but not limited to, all equipment or facilities,
such as plumbing, HVAC equipment, electrical facilities, boilers, pressure
vessels, fixtures, interior walls, interior surfaces of exterior walls,
ceilings, floors, windows, doors, plate glass, and skylights but excluding any
items which are the responsibility of Lessor pursuant to Paragraph 7.2. Lessee,
in keeping the Premises in good order, condition and repair, shall exercise and
perform good maintenance practices, specifically including the procurement and
maintenance of the service contracts required by Paragraph 7.1(b) below,
Lessee's obligations shall include restorations, replacements or renewals when
necessary to keep the Premises and all improvements thereon or a part thereof in
good order, condition and state of repair.
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(b) SERVICE CONTRACTS. Lessee shall, at Lessee's sole expense,
procure and maintain contracts specializing and experienced in the maintenance
of the following equipment and improvements, if any, if and when installed on
the Premises: (t) HVAC equipment, (ii) boiler and pressure vessels. (lit)
clarifiers, and (iv) any other equipment, if reasonably required by Lessor.
However. Lessor reserves the right, upon notice to Lessee, to procure and
maintain any or all of such service contracts, and if Lessor so elects, Lessee
shall reimburse Lessor, upon demand, for the cost thereof, except to the extent
that the amounts charged by Lessor to Losses exceed the generally prevailing
costs of such service contracts.
(c) FAILURE TO PERFORM. If Lessee fails to perform Lessee's
obligations under this Paragraph 7.1, Lessor may enter upon the premises after
10 days' prior written notice to Lessee (except in the case of an emergency, in
which case no notice shall be required), perform such obligations on Lessee's
behalf, and put the Premises in good order, condition and repair, and Lessee
shall promptly reimburse Lessor for the cost thereof.
(d) REPLACEMENT. Subject to Lessee's indemnification of Lessor as
set forth in Paragraph 6.7 below, and without relieving Lessee of liability
resulting from Lessee's failure to exercise and perform good maintenance
practices, if an item described in Paragraph 7.1(b) cannot be repaired other
than at a cost which is in excess of 50% of the cost of replacing such item,
then such item shall be replaced by Lessor, and the cost thereof shall be
prorated between the Parties and Lessee shall only be obligated to pay, each
month during the remainder of the term of this Lease, on the date on which Base
Rent is due, an amount equal to the product of multiplying the cost of such
replacement by a fraction, the numerator of which is one, and the denominator of
which is 144 (i.e. 1/144th of the cost per month). Lessee shall pay interest on
the unamortized balance at a rate that is commercially reasonable in the
judgment of Lessor's accountants. Lessee may, however, prepay its obligation at
any time.
7.2 LESSOR'S OBLIGATIONS. Subject to the provisions of Paragraphs 2.2
(Condition), 2.3 (Compliance), 4.2 (Common Area Operating Expenses), 6 (Use),
7.1 (Lessee's Obligations), 9 (Damage or Destruction) and 14 (Condemnation),
Lessor, subject to reimbursement pursuant to Paragraph 4.2, shall keep in good
order, condition and repair the fire sprinkler system, Common Area fire alarm
and/or smoke detection systems, fire hydrants, parking lots, walkways, parkways,
driveways, landscaping, fences, signs and utility systems serving the Common
Areas and all parts thereof, as well as providing the services for which there
is a Common Area Operating Expense pursuant to Paragraph 4.2. Lessor shall not
be obligated to paint the exterior or interior surfaces of exterior walls nor
shall Lessor be obligated to maintain, repair or replace windows, doors or plate
glass of the Premises. Lessee expressly waives the benefit of any statute now or
hereafter in effect to the extent it is inconsistent with the terms of this
Lease. Lessee shall be responsible for the repair or replacement of the
foregoing to the extent not covered by Lessor's insurance, if the need for the
repair or replacement is due to damage caused by Losses or Lessee's employees,
agents or invitees. Lessor shall keep in good order, condition and repair the
foundations, exterior walls, structural condition of interior bearing walls and
exterior roof, without reimbursement from Lessee, unless the need for repair or
replacement is caused by acts or omissions of Lessee or its employees, agents or
invitees.
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7.3 UTILITY INSTALLATIONS; TRADE FIXTURES; ALTERATIONS.
(a) DEFINITIONS. The term "UTILITY INSTALLATIONS" refers to all
floor and window coverings, air lines, power panels, electrical distribution,
security and fire protection systems, communication systems, lighting fixtures,
HVAC equipment, plumbing, and fencing in or on the Premises. The term "TRADE
FIXTURES" shall mean Lessee's machinery and equipment that can be removed
without doing material damage to the Premises and are not in any way paid for by
Lessee from the T.I. Allowance, as that term is defined in Paragraph 3.1 of
Exhibit "C" to this Lease. The term "ALTERATIONS" shall mean any modification of
the improvements, other than Utility Installations or Trade Fixtures, whether by
addition or deletion. "LESSEE OWNED ALTERATIONS AND/OR UTILITY INSTALLATIONS"
are defined as Alterations and/or Utility Installations made by Lessee that are
not yet owned by Lessor pursuant to Paragraph 7.4(a).
(b) CONSENT. Lessee shall not make any Alterations or Utility
Installations to the Premises without Lessor's prior written consent. Lessee
may, however, make non-structural Utility Installations to the Interior of the
Premises (excluding the roof) without such consent but upon notice to Lessor, as
long as they are not visible from the outside, do not involve puncturing,
relocating or removing the roof or any existing wails, and the cumulative cost
thereof during this Lease as extended does not exceed a sum equal to 3 month's
Base Rent in the aggregate or a sum equal to one month's Base Rent in any one
year. Notwithstanding the foregoing, Lessee shall not make or permit any roof
penetrations and/or install anything on the roof without the prior written
approval of Lessor. Lessor may, as a precondition to granting such approval,
require Lessee to utilize a contractor chosen and/or approved by Lessor. Any
Alterations or Utility Installations that Lessee shall desire to make and which
require the consent of the Lessor shall be presented to Lessor in written form
with detailed plans. Consent shall be deemed conditioned upon Lessee's: (1)
acquiring all applicable governmental permits, (it) furnishing Lessor with
copies of both the permits and the plans and specifications prior to
commencement of the work, and (iii) compliance with all conditions of said
permits and other Applicable Requirements in a prompt and expeditious manner.
Any Alterations or Utility Installations shall be performed in a workmanlike
manner with good and sufficient materials. Lessee shall promptly upon completion
furnish Lessor with as-built plans and specifications. For work which costs an
amount in excess of one month's Base Rent, Lessor may condition its consent upon
Lessee providing a lien and completion bond in an amount equal to 150% of the
estimated cost of such Alteration or Utility Installation and/or upon Lessee's
posting an additional Security Deposit with Lessor.
(c) INDEMNIFICATION. Lessee shall pay, when due, all claims for
labor or materials furnished or alleged to have been furnished to or for Lessee
at or for use on the Premises, which claims are or may be secured by any
mechanic's or materialman's lien against the Premises or any interest therein.
Lessee shall give Lessor not less than 10 days notice prior to the commencement
of any work in, on or about the Premises, and Lessor shall have the right to
post notices of non-responsibility. If Lessee shall contest the validity of any
such lien, claim or demand. then Lessee shall, at its sole expense defend and
protect itself, Lessor and the Premises against the same and shall pay and
satisfy any such adverse judgment that may be rendered thereon before the
enforcement thereof. If Lessor shall require, Lessee shall furnish a surety bond
in an amount equal to 150% of the amount of such contested lien, claim or
demand, indemnifying Lessor against liability for the same. If Lessor elects to
participate in any such action, Lessee shall pay Lessor's attorneys' fees and
costs.
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7.4 OWNERSHIP; REMOVAL; SURRENDER; AND RESTORATION.
(a) OWNERSHIP. Subject to Lessor's right to require removal or
elect ownership as hereinafter provided, all Alterations and Utility
Installations made by Lessee shall be the property of Lessee, but considered a
part of the Premises. Lessor may, at any time, elect in writing to be the owner
of all or any specified part of the Lessee Owned Alterations and Utility
Installations. Unless otherwise instructed per paragraph 7.4(b) hereof, all
Lessee Owned Alterations and Utility Installations shall, at the expiration or
termination of this Lease, become the property of Lessor and be surrendered by
Lessee with the Premises.
(b) REMOVAL. By delivery to Lessee of written notice from Lessor
not earlier than 90 and not later than 30 days prior to the end of the term of
this Lease, Lessor may require that any or all Lessee Owned Iterations or
Utility Installations be removed by the expiration or termination of this Lease.
Lessor may require the removal at any time of all or any part o any Lessee Owned
Alterations or Utility Installations made without the required consent.
Notwithstanding the foregoing, however, with respect to all alterations and
improvements to the Premises desired by Lessee and consented to in writing by
Lessor, Lessor shall not have the right to require Lessee to remove them at
Lease expiration unless Lessor reserves such right at the time Lessor consents
to the installation of such alterations or improvements (and provided that
Lessee has indicated in its written request for consent that Lessor must reserve
such removal right or else Lessor's removal right shall be deemed waived). Under
no circumstances shall Lessee have the right to remove from the Premises at any
time any improvements, Alterations or Utility Installations now or hereafter
existing in the Premises, nor any Trade Fixtures that have been attached to the
Premises in any manner, regardless of the method of attachment to the Premises,
and all of such improvements, Alterations, Utility. Installations and attached
Trade Fixtures (including without limitation cabinets, desks, workstations,
decorative lighting fixtures and other built-in furniture or fixtures that are
bolted, screwed, glued or otherwise attached to floors or interior or exterior
walls or other portions of the Premises) shall be surrendered to Lessor at the
expiration or earlier termination of the Lease in their original condition,
ordinary wear and tear excepted. Notwithstanding the foregoing to the contrary,
however, Lessee shall have the right to remove from the Premises any Trade
Fixtures paid for by Lessee without using the T.I. Allowance, so long as Lessee
at Lessee's expense repairs my damage to the Premises caused as a result
thereby.
(c) SURRENDER; RESTORATION. Lessee shall surrender the Premises by
the Expiration Date or any earlier termination date, with all )f the
improvements, parts and surfaces thereof broom clean and free of debris, and in
good operating order, condition and state of repair, ordinary wear and tear
excepted. "Ordinary wear and tear" shall not include any damage or deterioration
that would have been prevented by good maintenance practice. Notwithstanding the
foregoing, if this Lease is for 12 months or less, then Lessee shall surrender
the Premises in the same condition as delivered to Lessee on the Start Date with
NO allowance for ordinary wear and tear. Lessee shall repair any damage
occasioned by the installation, maintenance or removal of Trade Fixtures, Lessee
owned Alterations and/or Utility Installations, furnishings, and equipment as
well as the removal of any storage tank installed by or for Lessee. Lessee shall
also completely remove from the Premises any and all Hazardous Substances
brought onto the Premises by or for Lessee, or any thin: party (except Hazardous
Substances which were deposited via underground migration from areas outside of
the Project) even if such removal
16
would require Lessee to perform or pay for work that exceeds statutory
requirements. Trade Fixtures shall remain the property of Lessee and shall be
removed by Lessee. The failure by Lessee to timely vacate the Premises pursuant
to this Paragraph 7.4(c) without the express written consent of Lessor shall
constitute a holdover under the provisions of Paragraph 26 below.
8. INSURANCE; INDEMNITY.
8.1 PAYMENT OF PREMIUMS. The cost of the premiums for the insurance
policies required to be carried by Lessor, pursuant to Paragraphs 8.2(b), 8.3(a)
and 8.3(b), shall be a Common Area Operating Expense. Premiums for policy
periods commencing prior to, or extending beyond, the term of this Lease shall
coincide with the corresponding Start Date or Expiration Date.
8.2 LIABILITY INSURANCE.
(a) CARRIED BY LESSEE. Lessee shall obtain and keep in force a
Commercial General Liability policy of insurance protecting Lessee and Lessor as
an additional insured against claims for bodily injury, personal injury and
property damage based upon or arising out of the ownership use, occupancy or
maintenance of the Premises and all areas appurtenant thereto. Such insurance
shall be on an occurrence basis providing single limit coverage in an amount not
less than $2,000,000 per occurrence with an annual aggregate of not less than
$5,000,000, are "Additional Insured-Managers or Lessors of Premises Endorsement"
and contain the "Amendment of the Pollution Exclusion Endorsement" for damage
caused by heat, smoke or fumes from a hostile fire. The policy shall not contain
any intra-insured exclusions as between insured persons or organizations, but
shall include coverage liability assumed under this Lease as an "insured
contract" for the performance of Lessee's indemnity obligations under this
Lease. The limits of said insurance shall not, however, limit the liability of
Lessee of any obligation hereunder. All insurance carried by Lessee shall be
primary to and not contributory with any similar insurance carried by Lessor,
whose insurance shall be considered excess insurance only.
(b) CARRIED BY LESSOR. Lessor shall maintain liability insurance as
described in Paragraph 8.2(a), in addition to, and not in lieu of, the insurance
required to, be maintained by Lessee. Lessee shall not be named as an additional
insured therein.
8.3 PROPERTY INSURANCE - BUILDING, IMPROVEMENTS AND RENTAL VALUE.
(a) BUILDING AND IMPROVEMENTS. Lessor shall obtain and keep in
force a policy or policies of insurance in the name of Lessor, with loss payable
to Lessor, any ground-lessor, and to any Lender insuring loss or damage to the
Premises. The amount of such insurance shall be equal to the full replacement
cost of the Premises, as the same shall exist from time to time, or the amount
required by any Lender, but in no event more than the commercially reasonable
and available insurable value thereof. Lessee Owned Alterations and Utility
Installations, Trade Fixtures, and Lessee's personal property shall be insured
by Lessee under Paragraph 8.4 (but Lessor shall insure at Lessee's expense the
value of the Tenant Improvements paid for with the T.I. Allowance). If the
coverage is available and commercially appropriate, such policy or policies
shall insure against all risks of direct physical loss or damage (except the
perils of flood and/or earthquake unless required by a Lender), including
coverage for debris
17
removal and the enforcement of any Applicable Requirements requiring the
upgrading, demolition, reconstruction or replacement of any portion of the
Premises as the result of a covered loss. Said policy or policies shall also
contain an agreed valuation provision in lieu of any coinsurance clause, waiver
of subrogation, and inflation guard protection causing an increase in the annual
property insurance coverage amount by a factor of not less than the adjusted
U.S. Department of Labor Consumer Price Index for All Urban Consumers for the
city nearest to where the Premises are located. If such insurance coverage has a
deductible clause, the deductible amount shall not exceed $1,000 per occurrence.
(b) RENTAL VALUE. Lessor shall also obtain and keep in force a
policy or policies in the name of Lessor with loss payable to Lessor and any
Lender, insuring the loss of the full Rent for one year with an extended period
of indemnity for an additional 180 days ("Rental Value Insurance"). Said
insurance shall contain an agreed valuation provision in lieu of any coinsurance
clause, and the amount of coverage shall be adjusted annually to reflect the
projected Rent otherwise payable by Lessee, for the next 12 month period.
(c) ADJACENT PREMISES. Lessee shall pay for any increase in the
premiums for the property insurance of the Building and for the Common Areas or
other buildings in the Project if said increase is caused by Lessee's acts,
omissions, use or occupancy of the Premises, other than me permitted in
Paragraph 1.8 above.
(d) LESSEE'S IMPROVEMENTS. Since Lessor is the Insuring Party,
Lessor shall not be required to insure Lessee Owned Alterations and Utility
Installations unless the item in question has become the property of Lessor
under the terms of this Lease.
8.4 LESSEE'S PROPERTY; BUSINESS INTERRUPTION INSURANCE.
(a) PROPERTY DAMAGE. Lessee shall obtain and maintain insurance
coverage on all of Lessee's personal property, Trade Fixtures, and Lessee Owned
Alterations and Utility Installations. Such insurance shall be full replacement
cost coverage with a deductible of not to exceed $1,000 per occurrence. The
proceeds from any such insurance shall be used by Lessee for the replacement of
personal property, Trade Fixtures and Lessee Owned Alterations and Utility
Installations. Lessee shall provide Lessor with written evidence that such
insurance is in force.
(b) BUSINESS INTERRUPTION. Lessee shall obtain and maintain loss of
income and extra expense insurance in amounts as will reimburse Lessee for
direct or indirect loss of earnings attributable to all perils commonly insured
against by prudent lessees in the business of Lessee or attributable to
prevention of access to the Premises as a result of such perils.
(c) NO REPRESENTATION OF ADEQUATE COVERAGE. Lessor makes no
representation that the limits or xxxxxx of coverage of insurance specified
herein are adequate to cover Lessee's property, business operations or
obligations under this Lease.
8.5 INSURANCE POLICIES. Insurance required herein shall be by companies
duly licensed or admitted to transact business in the state where the Premises
are located, and maintaining during the policy term a "GENERAL POLICYHOLDERS
RATING" of at least A B+, V, as set forth in the most current issue of "Best's
Insurance Guide", or such other rating as may be
18
required by a Lender. Lessee shall not do or permit to be done anything which
invalidates the required insurance policies. Lessee shall, prior to the Start
Date, deliver to Lessor certified copies of policies of such Insurance or
certificates evidencing the existence and amounts of the required Insurance. No
such policy shall be cancelable or subject to modification except after 30 days
prior written notice to Lessor. Lessee shall, at least 30 days prior to the
expiration of such policies, furnish Lessor with evidence of renewals or
"insurance binders" evidencing renewal thereof, or Lessor may order such
insurance and charge the cost thereof to Lessee, which amount shall be payable
by Lessee to Lessor upon demand. Such policies shall be for a term of al least
one year, or the length of the remaining term of this Lease, whichever is less.
If either Party shall fail to procure and maintain the insurance required to be
carried by it, the other Party may, but shall not be required to, procure and
maintain the same.
8.6 WAIVER OF SUBROGATION. Without affecting any other rights or
remedies, Lessee and Lessor each hereby release and relieve the other, and waive
their entire right to recover damages against the other, for loss of or damage
to its property arising out of or incident to the perils required to be insured
against herein. The effect of such releases and waivers is not limited by the
amount of insurance carried or required, or by any deductibles applicable
hereto. The Parties agree to have their respective property damage insurance
carriers waive any right to subrogation that such companies may have against
Lessor or Lessee, as the case may be, so long as the insurance is not
invalidated thereby.
8.7. INDEMNITY. Except for Lessor's gross negligence or willful
misconduct, Lessee shall indemnify, protect, defend and hold harmless the
Premises, Lessor and its agents, Lessor's master or ground lessor, partners
and Lenders, from and against any and all claims, loss of rents and/or
damages, liens, judgments, penalties, attorneys' and consultants' fees,
expenses and/or liabilities arising out of, involving or in connection
with, the use and/or occupancy of the Premises by Lessee. If any action or
proceeding is brought against Lessor by reason of any of the foregoing
matters, Lessee shall upon notice defend the same at Lessee's expense by
counsel reasonably satisfactory to Lessor and Lessor shall cooperate with
Lessee in such defense. Lessor need not have first paid any such claim in
order to be defended or indemnified. Lessor shall indemnify, protect,
defend and hold harmless Lessee and it's members, officers, directors,
shareholders and employees from and against any and all claims, damages,
costs, liens, judgments, penalties, loss of permits, attorney's and
consultant's fees, expenses and liabilities arising out of, involving, or
dealing with: (i) the gross negligence or willful misconduct of Lessors or
Lessor's employees or agents, and/or Lessor's breach of its express
warranties set forth in this Lease, or (ii) Lessor's material default under
any of its obligations under this Lease, following written notice and the
expiration of any applicable cure period as provided in Paragraph 13.6(a)
of the Lease. In case any action or proceeding shall be brought against
Lessee by reason of any of the foregoing matters, Lessor upon notice from
Lessee shall defend the same at Lessor's expense by counsel reasonably
satisfactory to Lessee and Lessee shall cooperate with Lessor in such
defense. However, the indemnification obligations of Lessor under this
Paragraph 8.7 shall not apply or extend to any injury to or interference
with Lessee's business or to Lessee's consequential damages.
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8.8 EXEMPTION OF LESSOR FROM LIABILITY. Lessor shall not be liable for
injury or damage to the person or goods, wares, merchandise or other property of
Lessee, Lessee's employees, contractors, invitees, customers, or any other
person in or about the Premises, whether such damage or injury is caused by or
results from fire. steam, electricity, gas, water or rain, or from the breakage,
leakage, obstruction or other defects of pipes, fire sprinklers, wires,
appliances, plumbing, HVAC or lighting fixtures, or from any other cause,
whether the said injury or damage results from conditions arising upon the
Premises or upon other portions of the Building, or from other sources or
places. Lessor shall not be liable for any damages arising from any act or
neglect of any other tenant of Lessor nor from the failure of Lessor to enforce
the provisions of any other lease in the Project. Notwithstanding Lessor's
negligence or breach of this Lease, Lessor shall under no circumstances be
liable for injury to Lessee's business or for any loss of income or profit
therefrom.
9. DAMAGE OR DESTRUCTION.
9.1 DEFINITIONS.
(a) "PREMISES PARTIAL DAMAGE" shall mean damage or destruction to
the improvements on the Premises, other than Lessee Owned Alterations and
Utility Installations, which can reasonably be repaired in 3 months or less from
the date of the damage or destruction, and the cost thereof does not exceed a
sum equal to 6 month's Base Rent. Lessor shall notify Lessee in writing within
30 days from the date of the damage or destruction as to whether or not the
damage is Partial or Total.
(b) "PREMISES TOTAL DESTRUCTION" shall mean damage or destruction
to the improvements on the Premises, other than Lessee Owned Alterations and
Utility Installations and Trade Fixtures, which cannot reasonably be repaired in
3 months or less from the date of the damage or destruction and/or the cost
thereof exceeds a sum equal to 6 month's Base Rent. Lessor shall notify Lessee
in writing within 30 days from the date of the damage or destruction as to
whether or not the damage is Partial or Total.
(c) "INSURED LOSS" shall mean damage or destruction to improvements
on the Premises, other than Lessee Owned Alterations and Utility Installations
and Trade Fixtures, which was caused by an event required to be covered by the
insurance described in Paragraph 8.3(a), irrespective of any deductible amounts
or coverage limits involved.
(d) "REPLACEMENT COST" shall mean the cost to repair or rebuild the
improvements owned by Lessor at the time of the occurrence to their condition
existing immediately prior., thereto, including demolition, debris removal and
upgrading required by the operation of Applicable Requirements, and without
deduction for depreciation.
(e) "HAZARDOUS SUBSTANCE CONDITION" shall mean the occurrence or
discovery of a condition involving the presence of, or a contamination by, a
Hazardous Substance as defined in Paragraph 6.2(a), in, on, or under the
Premises.
9.2 PARTIAL DAMAGE - INSURED LOSS. If a Premises Partial Damage that is
an insured Loss occurs, then Lessor shall, at Lessor's expense, repair such
damage (but not Lessee's Trade Fixtures or Lessee Owned Alteration and Utility
Installation) as soon as reasonably possible and
20
this Lease shall continue in full force and effect; provided, however, that
Lessee shall, at Lessor's election, make the repair of any damage or destruction
the total cost of repair of which $5,000 or less, and, in such event, Lessor
shall make any applicable insurance proceeds available to Lessee on a reasonable
basis for that purpose. Notwithstanding the foregoing, if the required insurance
was not in force or the insurance proceeds are not sufficient to effect such
repair, the Insuring Party shall promptly contribute the shortage in proceeds as
and when required to complete said repairs. In the event, however, such shortage
was due to the fact that, by reason of the unique nature of the improvements,
full replacement cost insurance coverage was not commercially reasonable and
available, Lessor shall have no obligation to pay for the shortage in insurance
proceeds or to fully restore the unique aspects of the Premises unless Lessee
provides Lessor with the funds to cover same, or adequate assurance thereof,
within 10 days following receipt of written notice of such shortage and request
therefor. If Lessor receives said funds or adequate assurance thereof within
said 10 day period, the party responsible for making the repairs shall complete
them as soon as reasonably possible and this Lease shall remain in full force
and effect. If such funds or assurance are not received, Lessor may nevertheless
elect by written notice to Lessee within 10 days thereafter to: (i) make such
restoration and repair as is commercially reasonable with Lessor paying any
shortage in proceeds, in which case this Lease shall remain in full force and
effect, or (ii) have this Lease terminate 30 days thereafter. Lessee shall not
be entitled to reimbursement of any funds contributed by Lessee to repair any
such damage or destruction. Premises Partial Damage due to flood or earthquake
shall be subject to Paragraph 9.3, notwithstanding that there may be some
insurance coverage, but the net proceeds of any such insurance shall be made
available for the repairs if made by either Party.
9.3 PARTIAL DAMAGE. Uninsured Loss. If a Premises Partial Damage that is
not an Insured Loss occurs, unless caused by a negligent or willful act of
Lessee (in which event Lessee shall make the repairs at Lessee's expense),
Lessor may either: (i) repair such damage as soon as reasonably possible at
Lessor's expense, in which event this Lease shall continue in full force and
effect, or (i1) terminate this Lease by giving written notice to Lessee within
30 days after receipt by Lessor of knowledge of the occurrence of such damage.
Such termination shall be effective 60 days following the date of such notice.
In the event Lessor elects to terminate this Lease, Lessee shall have the right
within 10 days after receipt of the termination notice to give written notice to
Lessor of Lessee's commitment to pay for the repair of such damage without
reimbursement from Lessor. Lessee shall provide Lessor with said funds or
satisfactory assurance thereof within 30 days after making such commitment. In
such event this Lease shall continue in full force and effect, and Lessor shall
proceed to make such repairs as soon as reasonably possible after the required
funds are available. If Lessee does not make the required commitment, this Lease
shall terminate as of the date specified in the termination notice.
9.4 TOTAL DESTRUCTION. Notwithstanding any other provision hereof, if a
Premises Total Destruction occurs, this Lease shall terminate 6A 30 days
following such Destruction. If the damage or destruction was caused by the gross
negligence or willful misconduct of Lessee, Lessor shall have the right to
recover Lessor's damages from Lessee, except as provided in Paragraph 8.6.
9.5 DAMAGE NEAR END OF TERM. If at any time during the last 6 months of
this Lease there is damage for which the cost to repair exceeds one month's Base
Rent, whether or not an Insured Loss, Lessor or Lessee may terminate this Lease
(but Lessee's termination rights shall
21
only apply if Lessee did not cause the damage) effective 60 thirty (30) days
following the date of occurrence of such damage by giving a written termination
notice to Lessee within 30 days after the date of occurrence of such damage.
Notwithstanding the foregoing, if Lessee at that time has an exercisable option
to extend this Lease or to purchase the Premises. then Lessee may preserve this
Lease by, (a) exercising such option and (b) providing Lessor with any shortage
in insurance proceeds (or adequate assurance thereof) needed to make the repairs
on or before the earlier of (1) the date which is 10 days after Lessee's receipt
of Lessor's written notice purporting to terminate this Lease, or (ii) the day
prior to the date upon which such option expires. If Lessee duly exercises such
option during such period and provides Lessor with funds (or adequate assurance
thereof) to cover any shortage in insurance proceeds, ;Lessor shall, at Lessor's
commercially reasonable expense, repair such damage as soon as reasonably
possible and this Lease shall continue in full force and effect. If Lessee fails
to exercise such option and provide such funds or assurance during such period,
then this Lease shall terminate on the date specified in the termination notice
and Lessee's option shall be extinguished.
9.6 ABATEMENT OF RENT; LESSEE'S REMEDIES.
(a) ABATEMENT. In the event of Premises Partial Damage or Premises
Total Destruction or a Hazardous Substance Condition for which Lessee is not
responsible under this Lease, the Rent payable by Lessee for the period required
for the repair, remediation or restoration of such damage shall be abated in
proportion to the degree to which Lessee's use of the Premises is impaired, but
not to exceed the proceeds received from the Rental Value insurance. All other
obligations of Lessee hereunder shall be performed by Lessee, and Lessor shall
have no liability for any such damage, destruction, remediation, repair or
restoration except as provided herein.
(b) REMEDIES. If Lessor shall be obligated to repair or restore the
Premises and does not commence, in a substantial and meaningful way, such repair
or restoration within 00 60 days after such obligation shall accrue, Lessee may,
at any time prior to the commencement of such repair or restoration, give
written notice to Lessor and to any Lenders of which Lessee has actual notice,
of Lessee's election to terminate this Lease on a date not less than 60 days
following the giving of such notice. If Lessee gives such notice and such repair
or restoration is not commenced within 30 days hereafter, this Lease shall
terminate as of the date specified in said notice. If the repair or restoration
is commenced within such 30 days, this Lease shall continue in full force and
effect. "Commence" shall mean the beginning of the actual work on the Premises.
Notwithstanding anything to the contrary contained in Article 9 of the Lease,
within sixty (60) days after the date of any damage or destruction, Lessor shall
notify Lessee of the estimated time, as reasonably estimated by licensed general
contractor selected by Lessor, to complete the repairs and restoration of the
Premises and whether the damage or destruction is an Insured Loss. If Lessor
fails to so notify Lessee within such sixty (60) day period, Lessee may
terminate this Lease effective as of the date of such damage or destruction by
delivering written notice to Lessor of Lessee's termination election no later
than ten (10) days from the expiration of such sixty (60) day period; provided,
however, that should Lessee so elect to terminate the Lease then Lessor shall
then have the right to advise Lessee of the information required to be given
Lessee by the first sentence of this paragraph within five (5) days following
Lessor's receipt of Lessee's termination notice, which shall thereby nullify
Lessee's termination notice. If Lessor notifies Lessee that the estimated time
to, complete the repairs or restoration
22
will exceed two hundred ten (210) days from the date of such damage or
destruction, Lessee may terminate this Lease effective as of the date of such
damage or destruction by delivering written notice thereof to Lessor within ten
(10) days after receipt of Lessor's notice. If the Lease is not terminated as
provided above, and the repairs and restoration are not substantially completed
within two hundred ten (210) days after the date of damage or destruction,
Lessee may deliver written notice to Lessor stating that if the repairs and
restoration are not substantially completed within thirty (30) days thereafter,
Lessee will terminate the Lease. If the repairs and restoration are not
substantially completed within thirty (30) days after the Lessee delivers such
notice to Lessor, Lessee may terminate the Lease effective as of the date of
such damage or destruction by delivering written notice thereof to Lessor within
ten (10) days after the expiration of such thirty (30) day period; if the
repairs are substantially completed within such thirty (30) day period, Lessee
shall not have the right to terminate the Lease.
9.7 TERMINATION; ADVANCE PAYMENTS. Upon termination of this Lease
pursuant to Paragraph 6.2(g) or Paragraph 9, an equitable adjustment shall be
made concerning advance Base Rent and any other advance payments made by Lessee
to Lessor. Lessor shall, in addition, return to Lessee so much of Lessee's
Security Deposit as has not been, or is not then required to be, used by Lessor.
9.8 WAIVE STATUTES. Lessor and Lessee agree that the terms of this Lease
shall govern the effect of any damage to or destruction of the Premises with
respect to the termination of this Lease and hereby waive the provisions of any
present or future statute to the extent inconsistent herewith.
10. REAL PROPERTY TAXES.
10.1 DEFINITION. As used herein, the term "REAL PROPERTY TAXES" shall
include any form of assessment; real estate, general, special, ordinary or
extraordinary, or rental levy or tax (other than inheritance, personal income or
estate taxes); improvement bond; and/or license fee imposed upon or levied
against any legal or equitable interest of Lessor in the Project, Lessor's right
to other income therefrom, and/or Lessor's business of leasing, by any authority
having the direct or indirect power to tax and where the funds are generated
with reference to the Project address and where the proceeds so generated are to
be applied by the city, county or other local taxing authority of a jurisdiction
within which the Project is located. The term "Real Property Taxes" shall also
include any tax, fee, levy, assessment or charge, or any increase therein,
imposed by reason of events occurring during the term of this Lease, including
but not limited to, a change in the ownership of the Project or any portion
thereof or a change in the improvements thereon. In calculating Real Property
Taxes for any calendar year, the Real Property Taxes for any real estate tax
year shall be included in the calculation of Real Property Taxes for such
calendar year based upon the number of days which such calendar year and tax
year have in common.
10.2 PAYMENT OF TAXES. Lessor shall pay the Real Property Taxes
applicable to the Project, and except as otherwise provided in Paragraph 10.3,
any such amounts shall be included in the calculation of Common Area Operating
Expenses in accordance with the provisions of Paragraph 4.2.
23
10.3 ADDITIONAL IMPROVEMENTS. Common Area Operating Expenses shall not
include Real Property Taxes specified in the tax assessor's records and work
sheets as being caused by additional improvements placed upon the Project by
other lessees or by Lessor for the exclusive enjoyment of such other lessees.
Notwithstanding Paragraph 10.2 hereof, Lessee shall, however, pay to Lessor at
the time Common Area Operating Expenses are payable under Paragraph 4.2, the
entirely of any increase in Real Property Taxes if assessed solely by reason of
Alterations, Trade Fixtures or Utility Installations placed upon the Premises by
Lessee or at Lessee's request and paid for by Lessee (excluding Tenant
Improvements paid for by Lessee utilizing the T.I, Allowance).
10.4 JOINT ASSESSMENT. If the Building is not separately assessed, Real
Property Taxes allocated to the Building shall be an equitable proportion of the
Real Property Taxes for all of the land and improvements included within the tax
parcel assessed. such proportion to be determined by Lessor from the respective
valuations assigned in the assessor's work sheers or such other information as
may be reasonably available. Lessor's reasonable determination thereof. In good
faith, shall be conclusive.
10.5 PERSONAL PROPERTY TAXES. Lessee shall pay prior to delinquency all
taxes assessed against and levied upon Lessee Owned Alterations and Utility
Installations, Trade Fixtures, furnishings, equipment and all personal property
of Lessee contained in the Premises. When possible, Lessee shall cause its
Lessee Owned Alterations and Utility Installations, Trade Fixtures, furnishings,
equipment and all other personal property to be assessed and billed separately
from the real property of Lessor. If any of Lessee's said property shall be
assessed with Lessor's real property. Lessee shall pay Lessor the taxes
attributable to Lessee's property within 10 days after receipt of a written
statement setting forth the taxes applicable to Lessee's property.
11. UTILITIES. Lessee shall pay for all water, gas, heat, light, power,
telephone, trash disposal and other utilities and services supplied to the
Premises, together with any taxes thereon. Notwithstanding the provisions of
Paragraph 4.2. If at any time in Lessor's sole judgment, Lessor determines that
Lessee is using a disproportionate amount of water, electricity or other
commonly metered utilities, or that Lessee is generating such a large volume of
trash as to require an increase in the size of the dumpster and/or an increase
in the number of times per month that the dumpster is emptied, then Lessor may
increase Lessee's Base Rent by an amount equal to such increased costs.
12. ASSIGNMENT AND SUBLETTING. See Paragraph 55 of Addendum No. 1.
12.1 LESSOR'S CONSENT REQUIRED.
(a) Lessee shall not voluntarily or by operation of law
assign, transfer, mortgage or encumber (collectively, "assign or assignment") or
sublet all or any part of Lessee's interest in this Lease or in the Premises
(other than to an Affiliate) without Lessor's prior written consent. As used
herein, the term "Affiliate" shall mean any successor by merger or consolidation
with or acquisition of Lessee; anyone to whom substantially all of the Lessee's
assets are transferred; anyone who owns or controls, is owned or controlled by,
or is under common ownership or control with Lessee; a sale of stock in Lessee
that results in Lessee
24
becoming a publicly-traded company listed on a major national stock exchange;
provided, however, no sublease or assignment to an Affiliate shall release the
original Lessee named in this Lease from liability under this Lease. Lessee
shall immediately notify Lessor of any such assignment, purchase, transfer,
sublease, action or use, and of the name of the Affiliate, the portion of the
Premises subject to the transaction, and the commencement and expiration dates
(if applicable) of the transaction. For purposes of this Lease, "control" shall
mean the possession, direct or indirect, of the tower to direct or cause the
direction of the management and policies of voting securities, by contract or
otherwise.
(b) A change in the control of Lessee shall constitute an
assignment requiring consent. The transfer, on a cumulative basis, of more than
fifty percent (50%) of the voting control of Lessee shall constitute a change in
control for this purpose.
(c) [DELETED]
(d) An assignment or subletting without consent shall, at
Lessor's option, be a Default curable after notice per Paragraph 13.1(c)
(e) Lessee's remedy for any breach of Paragraph 12.1 by
Lessor shall be limited to compensatory damages and/or injunctive relief.
12.2 TERMS AND CONDITIONS APPLICABLE TO ASSIGNMENT AND SUBLETTING.
(a) Regardless of Lessor's consent, no assignment or
subletting shall: (1) be effective without the express written assumption by
such assignee or sublessee of the obligations of Lessee under this Lease, (ii)
release Lessee of any obligations hereunder, or (iii) alter the primary
liability of Lessee for the payment of Rent or for the performance of any other
obligations to be performed by Lessee.
(b) Lessor may accept Rent or performance of Lessee's
obligations from any person other than Lessee pending approval or disapproval of
an assignment. Neither a delay in the approval or disapproval of such assignment
nor the acceptance of Rent or performance shall constitute a waiver or estoppel
of Lessor's right to exercise its remedies for Lessee's Default or Breach.
(c) Lessor's consent to any assignment or subletting shall
not constitute a consent to any subsequent assignment or subletting.
(d) In the event of any Default or Breach by Lessee, Lessor
may proceed directly against Lessee, any Guarantors or anyone else responsible
for the performance of Lessee's obligations under this Lease, including any
assignee or sublessee, without first exhausting Lessor's remedies against any
other person or entity responsible therefore to Lessor, or any security held by
Lessor.
(e) Each request for consent to an assignment or subletting
shall be in writing, accompanied by information relevant to Lessor's
determination as to the financial and operational responsibility and
appropriateness of the proposed assignee or sublessee, including but not limited
to the intended use and/or required modification of the Premises, if any,
together
25
with a fee of $1,000 inclusive of attorneys' fees, as consideration for Lessor's
considering and processing said request. Lessee agrees to provide Lessor with
such other or additional information and/or documentation as may be reasonably
requested.
(f) Any assignee of, or sublessee under, this Lease shall,
by reason of accepting such assignment or entering into such sublease, be deemed
to have assumed and agreed to conform and comply with each and every term,
covenant, condition and obligation herein to be observed or performed by Lessee
during the term of said assignment or sublease, other than such obligations as
are contrary to or inconsistent with provisions of an assignment or sublease to
which Lessor has specifically consented to in writing.
(g) Lessor's consent to any assignment or subletting shall
not transfer to the assignee or sublessee any Option granted to the original
Lessee by this Lease unless such transfer is specifically consented to by Lessor
in writing. (See Paragraph 39.2)
12.3 ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO SUBLETTING. The
following terms and conditions shall apply to any subletting by Lessee of all or
any part of the Premises and shall be deemed included in all subleases under
this Lease whether or not expressly incorporated therein:
(a) Lessee hereby assigns and transfers to Lessor all of
Lessee's interest in ail Rent payable on any sublease, and Lessor may collect
such Rent and apply same toward Lessee's obligations under this Lease; provided,
however, that until a Breach shall occur in the performance of Lessee's
obligations, Lessee may collect said Rent. Lessor shall not, by reason of the
foregoing or any assignment of such sublease, nor by reason of the collection of
Rent, be deemed liable to the sublessee for any failure of Lessee to perform and
comply with any of Lessee's obligations to such sublessee. Lessee hereby
irrevocably authorizes and directs any such sublessee, upon receipt of a written
notice from Lessor stating that a Breach exists in the, performance of Lessee's
obligations under this Lease, to pay to Lessor all Rent due and to become due
under the sublease. Sublessee shall rely upon any such notice from Lessor and
shall pay all Rents to Lessor without any obligation or right to inquire as to
whether such Breach exists, notwithstanding any claim from Lessee to the
contrary.
(b) In the event of a Breach by Lessee, Lessor may, at its
option, require sublessee to attorn to Lessor, in which event Lessor shall
undertake the obligations of the sublessor under such sublease from the time of
the exercise of said option to the expiration of such sublease; provided,
however, Lessor shall not be liable for any prepaid rents or security deposit
paid by such sublessee to such sublessor or for any prior Defaults or Breaches
of such sublessor.
(c) Any matter requiring the consent of the sublessor under
a sublease shall also require the consent of Lessor.
(d) No sublessee shall further assign or sublet all or any
part of the Premises without Lessor's prior written consent.
26
(e) Lessor shall deliver a copy of any notice of Default or
Breach by Lessee to the sublessee, who shall have the right to cure the Default
of Lessee within the grace period, if any, specified in such notice. The
sublessee shall have a right of reimbursement and offset from and against Lessee
for any such Defaults cured by the sublessee.
13. DEFAULT; BREACH; REMEDIES.
13.1 DEFAULT; BREACH. A "DEFAULT" is defined as a failure by the Lessee
to comply with or perform any of the terms, covenants, conditions or Rules and
Regulations under this Lease. A "BREACH" is defined as the occurrence of one or
more of the following Defaults, and the failure of Lessee to cure such Default
within any applicable grace period:
(a) The abandonment of the Premises; or the vacating of the
Premises without providing a commercially reasonable level of security, or where
the coverage of the property insurance described in Paragraph 8.3 is jeopardized
as a result thereof, or without providing reasonable assurances to minimize
potential vandalism.
(b) The failure of Lessee to make any payment of Rent or
any Security Deposit required to be made by Lessee hereunder, whether to Lessor
or to a third party, when due, to provide reasonable evidence of insurance or
surety bond, or to fulfill any obligation under this Lease which endangers or
threatens life or property, where such failure continues for a period of 3
business days following written notice to Lessee.
(c) The failure by Lessee to provide (i) reasonable written
evidence of compliance with Applicable Requirements, (ii) the service contracts,
(iii) the rescission of an unauthorized assignment or subletting, (iv) an
Estoppel Certificate, (v) a requested subordination, (vii) any document
requested under Paragraph 41 (easements), or (viii) any other documentation or
information which Lessor may reasonably require of Lessee under the terms of
this Lease, where any such failure continues for a period of 10 days following
written notice to Lessee.
(d) A Default by Lessee as to the terms, covenants,
conditions or provisions of this Lease, or of the rules adopted under Paragraph
2.9 hereof, other than those described in subparagraphs 13.1(a), (b) or (c),
above, where such Default continues for a period of 30 days after written
notice; provided, however, that if the nature of Lessee's Default is such that
more than 30 days are reasonably required for its cure, then it shall not be
deemed to be a Breach if Lessee commences such cure within said 30 day period
and thereafter diligently prosecutes such cure to completion.
(e) The occurrence of any of the following events: (1) the
making of any general arrangement or assignment for the benefit of creditors;
(ii) becoming a "debtor" as defined in 11 U.S.C. g 101 or any successor statute
thereto (unless, in the case of a petition filed against Lessee, the came is
dismissed within 60 days); (iii) the appointment of a trustee or receiver to
take possession of substantially all of Lessee's assets located at the Premises
or of Lessee's interest in this Lease, where possession is not restored to
Lessee within 30 days; or (iv) the attachment, execution or other judicial
seizure of substantially all of Lessee's assets located at the Premises or of
Lessee's interest in this Lease, where such seizure is not discharged within
27
30 days; provided, however, in the event that any provision of this subparagraph
(e) is contrary to any applicable law, such provision shall be of no force or
effect, and not affect the validity of the remaining provisions.
(f) The discovery that any financial statement of Lessee or
of any Guarantor given to Lessor was materially false or misleading.
(g) [DELETED]
13.2 REMEDIES. If Lessee fails to perform any of its affirmative duties
or obligations within 10 days after written notice (or in case of an emergency,
without notice), Lessor may, at its option, perform such duty or obligation on
Lessee's behalf, including but not limited to the obtaining of reasonably
required bonds, insurance policies, or governmental licenses, permits or
approvals. The costs and expenses of any such performance by Lessor shall be due
and payable by Lessee upon receipt of invoice therefor. If any check given to
Lessor by Lessee shall not be honored by the bank upon which it is drawn,
Lessor, at its option, may require all future payments to be made by Lessee to
be by cashier's check. In the vent of a Breach, Lessor may, with or without
notice or demand, and without limiting Lessor in the exercise of any right or
remedy which Lessor may have by reason of such Breach;
(a) Terminate Lessee's right to possession of the Premises
by any lawful means, in which case this Lease shall terminate and Lessee shall
immediately surrender possession to Lessor. In such event Lessor shall be
entitled to recover from Lessee: (i) the unpaid Rent which had been earned at
the time of termination; (ii) the worth at the time of award of the amount by
which the unpaid rent which would have been earned after termination until the
time of award exceeds the amount of such rental loss that the Lessee proves
could have been reasonably avoided; (iii) the worth at the time of award of the
amount by which the unpaid rent for the balance of the term after the time of
award exceeds the amount of such rental loss that the Lessee proves could be
reasonably avoided; and (iv) any other amount necessary to compensate Lessor for
all the detriment proximately caused by the Lessee's failure to perform its
obligations under this Lease or which in the ordinary course of things would be
likely to result therefrom, including but not limited to the cost of recovering
possession of the Premises, expenses of reletting, including necessary
renovation and alteration of the Premises, reasonable attorneys' fees, and that
portion of any leasing commission paid by Lessor in connection with this Lease
applicable to the unexpired term of this Lease. The worth at the time of award
of the amount referred to in provision (lit) of the immediately preceding
sentence shall be computed by discounting such amount al the discount rata of
the Federal Reserve Bank of the District within which the Premises are located
at the time of award plus one percent. Efforts by Lessor to mitigate damages
caused by Lessee's Breach of this lease shall not waive Lessor's right to
recover damages under Paragraph 12. If termination of this Lease is obtained
rough the provisional remedy of unlawful detainer, Lessor shall have the right
to recover in such proceeding any unpaid Rent and damages as are recoverable
therein, or lessor may reserve the right to recover all or any part thereof in a
separate suit. If a notice and grace period required under Paragraph 13.1 was
not previously given, a notice to pay rent or quit, or to perform or quit given
to Lessee under the unlawful detainer statute shall also constitute the notice
required by Paragraph 13.1. In such case, the applicable grace period required
by Paragraph 13.1 and the unlawful detainer statute shall run concurrently, and
the failure of Lessee to cure the Default
28
within the greater of the two such grace periods shall constitute both an
unlawful detainer and a Breach of this Lease entitling Lessor to the remedies
provided for in this Lease and/or by said statute.
(b) Continue the Lease and Lessee's right to possession and
recover the Rent as it becomes due, in which event Lessee may sublet or assign,
subject only to reasonable limitations. Acts of maintenance, efforts to relet
and/or the appointment of a receiver to protect the Lessor's interests, shall
not constitute a termination of the Lessee's right to possession.
(c) Pursue any other remedy now or hereafter available
under the laws or judicial decisions of the state wherein the Premises are
located. The expiration or termination of this Lease and/or the termination of
Lessee's right to possession shall not relieve Lessee from liability under any
indemnity provisions of this Lease as to matters occurring or accruing during
the term hereof or by reason of Lessee's occupancy of the Premises.
13.3 INDUCEMENT RECAPTURE. Any agreement for free or abated rent or other
charges, or for the giving or paying by Lessor to or for Lessee of any cash or
other bonus, inducement or consideration for Lessee's entering into this Lease,
ail of which concessions are hereinafter referred to as "Inducement Provisions",
shall be deemed conditioned upon Lessee's full and faithful performance of all
of the terms, covenants and conditions of this Lease. Upon Breach of this Lease
by Lessee, any such Inducement Provision shall automatically be deemed deleted
from this Lease and of no further force or effect, and any rent, other charge,
bonus, inducement or consideration theretofore abated, given or paid by Lessor
under such an Inducement Provision shall be immediately due and payable by
Lessee to Lessor, notwithstanding any subsequent cure of said Breach by Lessee.
The acceptance by Lessor of rent or the cure of the Breach which initiated the
operation of this paragraph shall not be deemed a waiver by Lessor of the
provisions of this paragraph unless specifically so stated in writing by Lessor
at the time of such acceptance.
13.4 LATE CHARGES. Lessee hereby acknowledges that late payment by Lessee
of Rent will cause Lessor to incur costs not contemplated by this Lease, the
exact amount of which will be extremely difficult to ascertain. Such costs
include, but are not limited to, processing and accounting charges, and late
charges which may be imposed upon Lessor by any Lender. Accordingly, if any Rent
shall not be received by Lessor within 5 days after such amount shall be due,
then, without any requirement for notice to Lessee other than once per calendar
year, Lessee shall pay to Lessor a one-time late charge equal to 5% of each such
overdue amount or $100, whichever is greater. The parties hereby agree that such
late charge represents a fair and reasonable estimate of the costs Lessor will
incur by reason of such late payment. Acceptance of such late charge by Lessor
shall in no event constitute a waiver of Lessee's Default or Breach with respect
to such overdue amount, nor prevent the exercise of any of the other rights and
remedies granted hereunder. In the event that a late charge is payable
hereunder, whether or not collected, for 3 consecutive installments of Base
Rent, then notwithstanding any provision of this Lease to the contrary, Base
Rent shall, at Lessor's option, become due and payable quarterly in advance.
13.5 INTEREST. Any monetary payment due Lessor hereunder, other than late
charges, not received by Lessor, when due as to scheduled payments (such as Base
Rent) or within 30
29
days following the date on which it was due for non-scheduled payment, shall
bear interest from the date when due, as to scheduled payments, or the 31st day
after it was due as to non-scheduled payments. The Interest ("Interest") charged
shall be equal to the prime rate reported in the Wall Street Journal as
published closest prior to the date when due plus 4%, but shall not exceed the
maximum rate allowed by law. Interest is payable in addition to the potential
late charge provided for in Paragraph 13.4.
13.6 BREACH BY LESSOR.
(a) NOTICE OF BREACH. Lessor shall not be deemed in breach
of this Lease unless Lessor tails within a reasonable time to perform an
obligation required to be performed by Lessor. For purposes of this Paragraph, a
reasonable time shall in no event be less than 30 days after receipt by Lessor,
and any Lender whose name and address shall have been furnished Lessee in
writing for such purpose, of written notice specifying wherein such obligation
of Lessor has not been performed; provided, however, that if the nature of
Lessor's obligation is such that more than 30 days are reasonably required for
its performance, then Lessor shall not be in breach if performance is commenced
within such 30 day period and thereafter diligently pursued to completion.
(b) [DELETED]
14. CONDEMNATION. If the Premises or any portion thereof are taken under the
power of eminent domain or sold under the threat of the exercise of said power
(collectively "Condemnation"), this Lease shall terminate as to the part taken
as of the date the condemning authority takes title or possession. whichever
first occurs. If more than 10% of the floor area of the Unit, or more than 25%
of Lessee's Reserved Parking Spaces, is taken by Condemnation, Lessee may, at
Lessee's option, to be exercised in writing within 10 days after Lessor shall
have given Lessee written notice of such taking (or in the absence of such
notice, within 10 days after the condemning authority shall have taken
possession) terminate this Lease as of the date the condemning authority takes
such possession. If Lessee does not terminate this Lease in accordance with the
foregoing, this Lease shall remain in full force and effect as to the portion of
the Premises remaining, except that the Base Rent shall be reduced in proportion
to the reduction in utility of the Premises caused by such Condemnation.
Condemnation awards and/or payments shall be the property of Lessor, whether
such award shall be made as compensation for diminution in value of the
leasehold, the value of the part taken, or for severance damages; provided,
however, that Lessee shall be entitled to any compensation for Lessee's
relocation expenses, loss of business goodwill and/or Trade Fixtures, without
regard to whether or not this Lease is terminated pursuant to the provisions of
this Paragraph. All Alterations and Utility Installations made to the Premises
by Lessee, for purposes of Condemnation only, shall be considered the property
of the Lessee and Lessee shall be entitled to any and all compensation which is
payable therefor. In the event that this Lease is not terminates by reason of
the Condemnation, Lessor shall repair any damage to the Premises caused by such
Condemnation.
15. BROKERAGE FEES.
15.1 ADDITIONAL COMMISSION. In addition to the payments owed pursuant to
Paragraph 1.10 above, and unless Lessor and the Brokers otherwise agree in
writing, Lessor
30
agrees that: (a) if Lessee exercises any Option, (b) if Lessee acquires from
Lessor any rights to the Premises or other premises owned by Lessor and located
within the Protect, (c) if Lessee remains in possession of the Premises, with
the consent of Lessor, after the expiration A this Lease, or (d) if Base Rent is
increased, whether by agreement or operation of an escalation clause herein,
then, Lessor shall pay Brokers a fee it accordance with the schedule of the
Brokers in effect at the time of the execution of this Lease.
15.2 ASSUMPTION OF OBLIGATIONS. Any buyer or transferee of Lessor's
interest in this Lease shall be deemed to have assumed Lessor's obligation
hereunder, Brokers shall be third party beneficiaries of the provisions of
Paragraphs 1.10, 15, 22 and 31. If Lessor fails to pay to Brokers an amounts due
as and for brokerage fees pertaining to this Lease when due, then such amounts
shall accrue interest. In addition, if Lessor fails to pay an amounts to
Lessee's Broker when due, Lessee's Broker may send written notice to Lessor and
Lessee of such (allure and if Lessor fails to pay such amount within 10 days
after said notice, Lessee shall pay said movies to its Broker and offset such
amounts against Rent. In addition, Lessee's Broker shall b. deemed to be a third
party beneficiary of any commission agreement entered into by and/or between
Lessor and Lessor's Broker for the limited purpose c collecting any brokerage
fee owed.
15.3 REPRESENTATIONS AND INDEMNITIES OF BROKER RELATIONSHIPS. Lessee and
Lessor earth represent and warrant to the other that it has had no dealings with
any person, firm, broker or finder (other than the brokers, if any) in
connection with this Lease, and that no one other than said named Brokers is
entitled to any commission or finder's fee in connection herewith. Lessee and
Lessor do each hereby agree to indemnify, protect, defend and hold the other
harmless from and against liability for compensation or charges which may be
claimed by any such unnamed broker, finder or other similar party by reason of
any dealings or actions of the indemnifying Party, including any costs,
expenses, attorneys' fees reasonably incurred with respect thereto.
16. ESTOPPEL CERTIFICATES.
(a) Each Party (as "RESPONDING PARTY") shall within 10 days
after written notice from the other Party (the "REQUESTING PARTY") execute,
acknowledge and deliver to the Requesting Party a statement in writing in form
similar to the then most current "ESTOPPEL CERTIFICATE" form published by the
American Industrial Real Estate Association, plus such additional information,
confirmation and/or statements as may be reasonably requested by the Requesting
Party.
(b) If the Responding Party shall fail to execute or deliver
the Estoppel Certificate within such 10 day period, the Requesting Party may
execute an Estoppel Certificate stating that: (i) the Lease is in full force and
effect without modification except as may be represented by the Requesting
Party, (ii) there are no uncured defaults in the Requesting Party's performance,
and (iii) if Lessor is the Requesting Party, not more than one month's rent has
been paid in advance. Prospective purchasers and encumbrances may rely upon the
requesting Party's Estoppel Certificate, and the Responding Party shall be
estopped from denying the truth of the facts contained in said Certificate.
(c) If Lessor desires to finance, refinance, or sell the
Premises, or any part thereof, Lessee and alt Guarantors shall deliver to any
potential lender or purchaser
31
designated by Lessor such financial statements as may be reasonably required by
such lender or purchaser, including but not limited to Lessee's financial
statements for the past 3 years. All such financial statements shall be received
by Lessor and such lender or purchaser in confidence and shall be used only for
the purposes herein set forth.
17. DEFINITION OF LESSOR. The term "Lessor" as used herein shall mean the owner
or owners at the time in question of the fee title to the Premises, or, if this
is a sublease, of the Lessee's interest in the prior lease. In the event of a
transfer of Lessor's title or interest in the Premises or this Lease. Lessor
hall deliver to the transferee or assignee (in cash or by credit) any unused
Security Deposit held by Lessor. Except as provided in Paragraph 15, upon such
transfer or assignment and delivery of the Security Deposit, as aforesaid, the
prior Lessor shall be relieved of all liability with respect to the obligations
and/or covenants under this Lease thereafter to be performed by the Lessor.
Subject to the foregoing the obligations and/or covenants in this Lease to be
performed by the Lessor shall be binding only upon the Lessor as hereinabove
defined. Notwithstanding the above, and subject to the provisions of Paragraph
20 below, the original Lessor under this Lease, and all subsequent holders of
the Lessor's interest in this Lease shall remain liable and responsible with
regard to the potential duties and liabilities of Lessor pertaining to Hazardous
Substances as outlined in Paragraph 6.2 above.
18. SEVERABILITY. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
19. DAYS. Unless otherwise specifically indicated to the contrary, the
word "days" as used in this Lease shall mean and refer to calendar days.
20. LIMITATION ON LIABILITY. Subject to the provisions of Paragraph 17 above,
the obligations of Lessor under this Lease shall not constitute personal
obligations of Lessor, the individual partners of Lessor or its or their
individual partners, directors, officers or shareholders, and Lessee shall look
to the Premises, and to no other assets of Lessor, for the satisfaction of any
liability of Lessor with respect to this Lease, and shall not seek recourse
against the individual partners of Lessor, or its or their individual partners,
directors, officers or shareholders, or any of their personal assets for such
satisfaction.
21. TIME OF ESSENCE. Time is of the essence with respect to the performance
of all obligations to be performed or observed by the Parties under this Lease.
22. NO PRIOR OR OTHER AGREEMENTS; BROKER DISCLAIMER. This Lease contains all
agreements between the Parties with respect to any matter mentioned herein, and
no other prior or contemporaneous agreement or understanding shall be effective.
Lessee represents and warrants to Lessor that it has made, and is relying solely
upon, its own investigation as to the nature, quality, character and financial
responsibility of the other Party to this Lease and as to the use, nature,
quality and character of the Premises. Brokers have no responsibility with
respect thereto or with respect to any default or breach hereof by either Party.
The liability (including court costs and attorneys' fees), of any Broker with
respect to negotiation, execution, delivery or performance by either Lessor or
Lessee under this Lease or any amendment or modification hereto shall be limited
to an amount up to the fee received by such Broker pursuant to this Lease;
32
provided, however, that the foregoing limitation on each Broker's liability
shall not be applicable to any gross negligence or willful misconduct of such
Broker.
23. NOTICES.
23.1 NOTICE REQUIREMENTS. All notices required or permitted by this Lease
or applicable law shall be in writing and may be delivered in person (by hand or
by courier) or may be sent by certified or registered mail, reputable overnight
courier service or U.S. Postal Service Express Mail, with postage prepaid, or by
facsimile transmission, and shall be deemed sufficiently given if served in a
manner specified in this Paragraph 23. The addresses noted adjacent to a Party's
signature on this Lease shall be that Party's address for delivery or mailing of
notices. Either Party may by written notice to the other specify a different
address for notice, except that upon Lessee's taking possession of the Premises,
the Premises (Attn: Office Manager) shall constitute Lessee's address for
notice. A copy of all notices to Lessor or to Lessee shall be concurrently
transmitted to such party or parties at such addresses as either may from time
to time hereafter designate in writing to the other. Lessee hereby designates
the following address for courtesy copies of any notices intended for Lessee:
Viant Corporation, 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000, Attn: Legal Department.
23.2 DATE OF NOTICE. Any notice sent by registered or certified mall,
return receipt requested, shall be deemed given on the date of delivery shown on
the receipt card, or if no delivery date is shown, the postmark thereon. Notices
delivered by United States Express Mail or overnight courier that guarantee next
day delivery shall be deemed given 24 hours after delivery of the same to the
Postal Service or courier. Notices transmitted by facsimile transmission or
similar means shall be deemed delivered upon telephone confirmation of receipt
(confirmation report from fax machine is sufficient), provided a copy is also
delivered via delivery or mail. If notice is received on a Saturday, Sunday or
legal holiday, it shall be deemed received on the next business day.
24. WAIVERS. No waiver by Lessor of the Default or Breach of any term, covenant
or condition hereof by Lessee, shall be deemed a waiver of any other term,
covenant or condition hereof, or of any subsequent Default or Breach by Lessee
of the same or of any other term, covenant or condition hereof. Lessor's consent
to, or approval of, any act shall not be deemed to render unnecessary the
obtaining of Lessor's consent to, or approval of, any subsequent or similar act
by Lessee, or be construed as the basis of an estoppel to enforce the provision
or provisions of this Lease requiring such consent. The acceptance of Rent by
Lessor shall not be a waiver of any Default or Breach by Lessee. Any payment by
Lessee may be accepted by Lessor on account of moneys or damages due Lessor,
notwithstanding any qualifying statements or conditions made by Lessee in
connection therewith, which such statements and/or conditions shall be of no
force or effect whatsoever unless specifically agreed to in writing by Lessor at
or before the time of deposit of such payment.
25. DISCLOSURES REGARDING THE NATURE OF A REAL ESTATE AGENCY RELATIONSHIP.
(a) When entering into a discussion with a real estate agent regarding a
real estate transaction, a Lessor or Lessee should from the outset understand
what type of agency
33
relationship or representation it has with the agent or agents in the
transaction. Lessor and Lessee acknowledge being advised by the Brokers in this
transaction, as follows:
(i) LESSOR'S AGENT. A Lessor's agent under a listing
agreement with the Lessor acts as the agent for the Lessor only. A Lessor's
agent or subagent has the following affirmative obligations: TO THE LESSOR: A
fiduciary duty of utmost care, integrity, honesty, and loyalty in dealings with
the Lessor. TO THE LESSEE AND THE LESSOR: (a) Diligent exercise of reasonable
skills and care in performance of the agent's duties. (b) A duty of honest and
fair dealing and good faith. (c) A duty to disclose all facts known to the agent
materially affecting the value or desirability of the property that are not
known to, or within the diligent attention and observation of, the Parties. An
agent is not obligated to reveal to either Party any confidential information
obtained from the other Party which does not involve the affirmative duties set
forth above.
(ii) LESSEE'S AGENT. An agent can agree to act as agent for
the Lessee only. In these situations, the agent is not the Lessor's agent, even
if by agreement the agent may receive compensation for services rendered, either
in full or in part from the Lessor. An agent acting only for , Lessee has the
following affirmative obligations. TO THE LESSEE: A fiduciary duty of utmost
care, integrity, honesty, and loyalty in dealings with the Lessee. TO THE LESSEE
AND THE LESSOR: (a) Diligent exercise of reasonable skills d care in performance
of the agent's duties. (b) A duty of honest and fair dealing and good faith. (c)
A duty to disclose all facts known to the agent materially affecting the value
or desirability of the property that are not known to, or within the diligent
attention and observation of, the Parties. An agent is not obligated to reveal
to either Party any confidential information obtained from the other Party which
does not involve the affirmative duties set forth above.
(iii) AGENT REPRESENTING BOTH LESSOR AND LESSEE. A real
estate agent, either acting directly or through one or more associate licenses,
can legally be the agent of both the Lessor and the Lessee in a transaction, but
only with the knowledge and consent of both the Lessor and the Lessee. In a dual
agency situation, the agent has the following affirmative obligations to both
the Lessor and the Lessee: (a) A fiduciary duty of utmost care integrity,
honesty and loyalty in the dealings with either Lessor or the Lessee. (b) Other
duties to the Lessor and the Lessee as stated above in subparagraphs (i) or
(ii). In representing both Lessor and Lessee, the agent may not without the
express permission of the respective Party, disclose to the other Party that the
Lessor will accept rent in an amount less than that indicated in the listing or
that the Lessee is willing to pay a higher rent than the offered. The above
duties of the agent in a real estate transaction do not relieve a Lessor or
Lessee from the responsibility to protect their own interests. Lessor and Lessee
should carefully read all; agreements to assure that they adequately express
their understanding of the transaction. A real estate agent is a person
qualified to advise about real estate. If legal or tax advice is desired,
consult a competent professional.
(b) Brokers have no responsibility with respect to any default or breach
hereof by either Party the liability (including court costs and attorneys' fee),
of any Broker with respect to any breach of duty, error or omission relating to
this Lease shall not exceed the fee received by such Broker pursuant to this
Lease; provided, however, that the foregoing limitation on each
34
Broker's liability shall not be applicable to any gross negligence or willful
misconduct of such Broker.
(c) Buyer and Seller agree to identify to brokers as "Confidential" any
communication or information given Brokers that is considered by such Party to
be confidential.
26. NO RIGHT TO HOLDOVER. Lessee has no right to retain possession of the
Premises or any part thereof beyond the expiration or termination of this Lease.
In the event that Lessee holds over, then the Base Rent shall be increased to
150% of the Base Rent applicable immediately preceding the expiration or
termination. Nothing contained herein shall be construed as consent by Lessor to
any holding over by Lessee.
27. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
28. COVENANTS AND CONDITIONS; CONSTRUCTION OF AGREEMENT. All provisions of this
Lease to be observed or performed by Lessee are both covenants and conditions.
In construing this Lease, all headings and titles are for the convenience of the
Parties only and shall not be considered a part of this Lease. Whenever required
by the context, the singular shall include the plural and vice versa. This Lease
shall not be construed as if prepared by one of the Parties, but rather
according to its fair meaning as a whole, as if both Parties had prepared it.
29. BINDING EFFECT; CHOICE OF LAW. This Lease shall be binding upon the
parties, their personal representatives, successors and assigns and be governed
by the laws of the State in which the Premises are located. Any litigation
between the Parties hereto concerning this Lease shall be initiated in the
county in which the Premises are located. .
30. SUBORDINATION; ATTORNMENT; NON-DISTURBANCE. See Paragraph 58 of Addendum
No. 1.
30.1 SUBORDINATION. This Lease and any Option granted hereby shall be
subject and subordinate to any ground lease, mortgage, deed of trust, or other
hypothecation or security device (collectively, "SECURITY DEVICE"), now or
hereafter placed upon the Premises, to any and all advances made , on the
security thereof, and to all renewals, modifications, and extensions thereof.
Lessee agrees that the holders of any such Security Devices (in this Lease
together referred to as "LENDER") shall have no liability or obligation to
perform any of the obligations of Lessor under this Lease. Any Lender may elect
to have this Lease and/or any Option granted hereby superior to the lien of its
Security Device by giving written notice thereof to Lessee, whereupon this Lease
and such Options shall be deemed prior to such Security Device, notwithstanding
the relative dates of the documentation or recordation thereof.
30.2 ATTORNMENT. In the event that lessor transfers title to the
Premises, or the Premises are acquired by another upon the foreclosure or
termination of a Security Device to which this Lease is subordinated (i) Lessee
shall, subject to the non-disturbance provisions of Paragraph 30.3, attorn to
such new owner, and upon request, enter into a new lease, containing ail of the
terms and provisions of this Lease, with such new owner for the remainder of the
term hereof, or, tat the election of such new owner, this Lease shall
automatically become a new Lease between Lessee and such new owner, upon all of
the terms and conditions hereof, for the remainder of the term hereof, and (ii)
Lessor shall thereafter be relieved of any further
35
obligations hereunder and such new owner shall assume ail of Lessor's
obligations hereunder, except that such new owner shall not: (a) be liable for
any act or omission of any prior lessor or with respect to events occurring
prior to acquisition of ownership; (b) be subject to any offsets or defenses
which Lessee might have against any prior lessor, (c) be bound by prepayment of
more than one month's rent, or (d) be liable for the return of any security
deposit paid to any prior lessor.
30.3 NON-DISTURBANCE. With respect to Security Devices entered into by
Lessor after the execution of this Lease, Lessee's subordination of this Lease
shall be subject to receiving a commercially reasonable non-disturbance
agreement (a "NON-DISTURBANCE AGREEMENT") from the Lender which Non-Disturbance
Agreement provides that Lessee's possession of the Premises, and this Lease,
including any options to extend the term hereof, will not be disturbed so long
as Lessee is not in Breach hereof and attorns to the record owner of the
Premises. Further, within 60 days after the execution of this Lease, Lessor
shall use its commercially reasonable efforts to obtain a Non-Disturbance
Agreement from the holder of any pre-existing Security Device which is secured
by the Premises. In the event that Lessor is unable to provide the
Non-Disturbance Agreement within said 60 days, then Lessee may, at Lessee's
;option, directly contact Lender and attempt to negotiate for the execution and
delivery of a Non-Disturbance Agreement.
30.4 SELF-EXECUTING. The agreements contained in this Paragraph 30 shall
be effective without the execution of any further documents; provided, however,
that, upon written request from Lessor or a Lender in connection with a sale,
financing or refinancing of the Premises, Lessee and Lessor shall execute such
further writings as may be reasonably required to separately document any
subordination, attornment and/or Non-Disturbance Agreement provided for herein.
31. ATTORNEYS' FEES. If any Party or Broker brings an action or proceeding
involving the Premises whether founded in tort, contract or equity, or to
declare rights hereunder, the Prevailing Party (as hereafter defined) in any
such proceeding, action, or appeal thereon, shall be entitled to reasonable
attorneys' fees. Such fees may be awarded in the same suit or recovered in a
separate suit, whether or not such action or proceeding is pursued to decision
or judgment. The term, "PREVAILING PARTY" shall include, without limitation, a
Party or Broker who substantially obtains or defeats the relief sought, as the
case may be, whether by compromise, settlement, judgment, or the abandonment by
the other Party or Broker of its claim or defense. The attorneys' fees award
shall not be computed in accordance with any court fee schedule, but shall be
such as to fully reimburse ail attorneys' fees reasonably incurred. In addition,
Lessor shall be entitled to attorneys' fees, costs and expenses incurred in the
preparation and service of notices of Default and consultations in connection
therewith, whether or not a legal action is subsequently commenced in connection
with such Default or resulting Breach ($200 is a reasonable minimum per
occurrence for such services and consultation).
32. LESSOR'S ACCESS; SHOWING PREMISES; REPAIRS. Lessor and Lessor's agents
shall have the right to enter the Premises at any time, in the case of an
emergency, and otherwise at reasonable times, after reasonable advance notice to
Lessee, for the purpose of showing the same to prospective purchasers, lenders,
or tenants, and making such alterations, repairs, improvements or additions to
the Premises as Lessor may deem necessary. All such activities
36
shall be without abatement of rent or liability to Lessee. Lessor may at any
time place on the Premises any ordinary "FOR SALE" signs and Lessor may during
the last 6 months of the term hereof place on the Premises any ordinary "FOR
LEASE" signs. Lessee may at any time place on the Premises any ordinary "FOR
SUBLEASE" sign.
33. AUCTIONS. Lessee shall not conduct, nor permit to be conducted, any auction
upon the Premises without Lessor's prior written consent. Lessor shall not be
obligated to exercise any standard of reasonableness in determining whether to
permit an auction.
34. SIGNS. Except for ordinary "For Sublease" signs which may be placed only on
the Premises, Lessee shall not place any sign upon the Project without Lessor's
prior written consent. All signs must comply with all Applicable Requirements.
See Paragraph 57 of Addendum No. 1.
35. TERMINATION; MERGER. Unless specifically stated otherwise in writing by
Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual
termination or cancellation hereof, or a termination hereof by Lessor for Breach
by Lessee, shall automatically terminate any sublease or lesser estate in the
Premises; provided, however, that lessor may elect to continue any one or all
existing subtenancies. Lessor's failure within 10 days following any such event
to elect to the contrary by written notice to the holder of any such lesser
interest, shall constitute Lessor's election to have such event constitute the
termination of such interest.
36. CONSENTS. Except as otherwise provided herein, wherever in this Lease the
consent of a Party is required to an act by or for the other Party, such consent
shall not beer unreasonably withheld or delayed Lessor's actual reasonable costs
and expenses (including but not limited to architects', attorneys', engineers'
aid other consultants' fees) incurred in the consideration of, or response to, a
request by Lessee for any Lessor consent, including but not limited to consents
to an assignment, a subletting or the presence or use of a Hazardous Substance,
shall be paid by Lessee upon receipt of an invoice and supporting documentation
therefor. Lessor's consent to any act, assignment or subletting shall not
constitute an acknowledgment that no Default or Breach by Lessee of this Lease
exists, nor shall such consent be deemed a waiver of any then existing Default
or Breach, except as may be otherwise specifically stated in writing by Lessor
at the time of such consent. The failure to specify herein any particular
condition to Lessor's consent shall not preclude the imposition by Lessor at the
time of consent of such further or other conditions as are then reasonable with
reference to the particular matter for which consent is being given. In the
event that either Party disagrees with any determination made by the other
hereunder and reasonably requests the reasons for such determination, the
determining party shall furnish its reasons in writing and in reasonable detail
within 10 business days following such request.
37. [DELETED]
38. QUIET POSSESSION. Subject to payment by Lessee of the Rent and performance
of all of the covenants, conditions and provisions on Lessee's part to be
observed and performed under this Lease, Lessee shall have quiet possession and
quiet enjoyment of the Premises during the term hereof.
37
39. OPTIONS. If Lessee is granted an option, as defined below, then the
following provisions shall apply. wee Paragraph 63 of Addendum No. 1.
39.1 DEFINITION. "OPTION" shall mean: (a) the right to extend the term of
or renew this Lease or to extend or renew any lease that Lessee has on other
property of Lessor; (b) the right of first refusal or first offer to lease
either the Premises or other property of Lessor; (c) the right to purchase or
the right of first refusal to purchase the Premises or other property of Lessor.
39.2 OPTIONS PERSONAL TO ORIGINAL LESSEE. Any Option granted to Lessee in
this Lease is personal to the original Lessee, and cannot be assigned or
exercised by anyone other than laid original Lessee and only while the original
Lessee is in full possession of the Premises and, !f requested by Lessor, with
Lessee certifying that Lessee has no intention of thereafter assigning or
subletting.
39.3 MULTIPLE OPTIONS. In the event that Lessee has any multiple Options
to extend or renew this Lease, a later Option cannot be exercised unless the
prior Options have been validly exercised.
39.4 EFFECT OF DEFAULT ON OPTIONS.
(a) Lessee shall have no right to exercise an Option: (i) during
the period commencing with the giving of any notice of Default and continuing
until said Default is cured, (ii) during the period of time any Rent is unpaid
(without regard to whether notice thereof is given Lessee), (iii) during the
time Lessee is in Breach of this Lease, or (iv) in the vent that Lessee has been
given 3 or more notices of separate Default, whether or not the Defaults are
cured, during the 12 month period immediately preceding the exercise of the
Option.
(b) The period of time within which an Option may be exercised
shall not be extended or enlarged by reason of Lessee's inability to exercise an
Option because of the provisions of Paragraph 39.4(a).
(c) An Option shall terminate and be of no further force or effect,
notwithstanding Lessee's due and timely exercise of the Option, if, after such
exercise and prior to the commencement of the extended term, (i) Lessee fails to
pay Rent for a period of 30 days after such Rent becomes due (without any
necessity of Lessor to give notice thereof), (ii) Lessor gives to Lessee 3 or
more notices of separate Default during any 12 month period, whether or not the
Defaults are cured, or f(iii) if Lessee commits a Breach of this Lease.
40. SECURITY MEASURES. Lessee hereby acknowledges that the Rent payable to
Lessor hereunder does not include the cost of guard service or other security,
measures, and that Lessor shall have no obligation whatsoever to provide same.
Lessee assumes all responsibility for the protection of the Premises, Lessee,
its agents and invitees and their property from the acts of third parties.
41. RESERVATIONS. Lessor reserves the right: (i) to grant, without the consent
or joinder of Lessee, such easements, rights and dedications that Lessor deems
necessary, (ii) to cause the recordation of parcel maps and restrictions, and
(iii) to create and/or install new utility raceways, so long as such easements,
rights, dedications, maps, restrictions, and utility raceways do not
38
unreasonably interfere with the use of the Premises by Lessee. Lessee agrees to
sign any documents reasonably requested by Lessor to effectuate such rights.
42. PERFORMANCE UNDER PROTEST. If at any time a dispute shall arise as to any
amount or sum of money to be paid by one Party to the other under the provisions
hereof, the Party against whom the obligation to pay the money is asserted shall
have the right to make payment "under protest" and such payment shall not be
regarded as a voluntary payment and there shall survive the right on the part of
said Party to institute suit for recovery of such sum. If it shall be adjudged
that there was no legal obligation on the part of said Party to pay such sum or
any part thereof, said Party shall be entitled to recover such sum or so much
thereof as it was not legally required to pay.
43. AUTHORITY. If either Party hereto is a corporation, trust, limited
liability company, partnership, or similar entity, each individual executing
this Lease on behalf of such entity represents and warrants that he or she is
duly authorized to execute and deliver this Lease on its behalf. Each party
shall, within 30 days after request, deliver to the other party satisfactory
evidence of such authority.
44. CONFLICT. Any conflict between the printed provisions of this Lease and the
typewritten or handwritten provisions shall be controlled by the typewritten or
handwritten provisions.
45. OFFER. Preparation of this Lease by either party or their agent and
submission of same to the other Party shall not be deemed an offer to lease to
the other Party. This Lease is not intended to be binding until executed and
delivered by all Parties hereto.
46. AMENDMENTS. This Lease may be modified only in writing, signed by the
Parties in interest at the lime of the modification. As long as they do not
materially change Lessee's obligations hereunder, Lessee agrees to make such
reasonable non-monetary modifications to this Lease as may be reasonably
required by a-Lender in connection with the obtaining of normal financing or
refinancing of the Premises.
47. MULTIPLE PARTIES. If more than one person or entity is named herein as
either Lessor or Lessee, such multiple Parties shall have joint and several
responsibility to comply with the terms of this Lease.
48. WAIVER OF JURY TRIAL. The Parties hereby waive their respective rights to
trial by jury in any action or proceeding involving the Property or arising out
of this Agreement.
49. MEDIATION AND ARBITRATION OF DISPUTES. An Addendum requiring the Mediation
and/or the Arbitration of all disputes between the Parties and/or Brokers
arising out of this Lease is is not attached to this Lease.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR
INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE
TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY
39
REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH
RESPECT TO THE PREMISES.
ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN
INDUSTRIAL REAL ESTATE ASSOCIATION OR BY ANY BROKER AS TO THE LEGAL SUFFICIENCY,
LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION TO WHICH IT
RELATES. THE PARTIES ARE URGED TO:
1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE.
2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF
THE PREMISES. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO: THE
POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PREMISES, THE
STRUCTURAL INTEGRITY, THE CONDITION OF THE ROOF AND OPERATING SYSTEMS,
COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT AND THE SUITABILITY OF THE
PREMISES FOR LESSEE'S INTENDED USE.
WARNING: IF THE PREMISES ARE LOCATED IN A STATE OTHER THAN CALIFORNIA, CERTAIN
PROVISIONS OF THE LEASE MAY NEED TO BE REVISED TO COMPLY WITH THE LAWS OF THE
STATE IN WHICH THE PREMISES ARE LOCATED.
The parties hereto have executed this Lease at the place and on the dates
specified above their respective signatures.
Executed at: _______________________________ Executed at: ______________________________
on: ________________________________________ on: _______________________________________
By LESSOR: By LESSEE:
PAS TRUST VIANT CORPORATION,
a Delaware corporation
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxx
--------------------------------------- ---------------------------------------
Name Printed: XXXXX XXXXXX Name Printed: XXXXXX X. XXXX
------------------------------ -----------------------------
Title: Trustee Title: CEO
------------------------------------- ------------------------------------
By: By: /s/ M. Xxxxxx Xxxxxxx
---------------------------------------- ---------------------------------------
Name Printed: Name Printed: M. XXXXXX XXXXXXX
------------------------------ -----------------------------
Title: Title: CFO
------------------------------------- ------------------------------------
Address: 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Address: 00 Xxxxx Xxxxxx
----------------------------------- ----------------------------------
Xxxxxxx Xxxxx, XX 00000 Xxxxxx, XX 00000
-------------------------------------------- -------------------------------------------
ATTN: Legal Department
-------------------------------------------
40
Telephone: ( ) Telephone: (000) 000-0000
--------------------------------- --------------------------------
Facsimile: ( ) Facsimile: ( )
--------------------------------- ---------------------------------
Federal ID No. Federal ID No.
----------------------------- ----------------------------
41
[EXHIBIT A]
[DIAGRAM]
42
EXHIBIT B
RULES AND REGULATIONS FOR
STANDARD INDUSTRIAL/COMMERCIAL LEASE
GENERAL RULES
1. Lessee shall not suffer or permit the obstruction of any Common
Areas, including driveways, walkways and stairways.
2. Lessor reserves the right to refuse access to any persons Lessor in
good faith judges to be a threat to the safety, reputation, or property of the
Project and its occupants.
3. Lessee shall not make or permit any noise or odors that annoy or
interfere with other lessees or persons having business within the Project.
4. Lessee shall not keep animals (other than "seeing-eye" dogs) or,
birds within the Project, and shall not bring bicycles, motorcycles or other
vehicles into areas not designated as authorized for same.
5. Lessee shall not make, suffer or permit litter except in appropriate
receptacles for that purpose.
8. Lessee shall not after any lock or install new or additional locks
or bolls without providing a key to Lessor.
7. Lessee shall be responsible for the inappropriate use of any toilet
rooms, plumbing or other utilities. No foreign substances of any kind are to be
inserted therein.
8. Lessee shall not deface the walls, partitions or other surfaces of
the Premises or Project.
9. Lessee shall not suffer or permit any thing in or around the
Premises or Building that causes excessive vibration or floor loading in any
part of the Project.
10. Furniture, significant freight and equipment shall be moved into or
out of the building only with the, Lessors knowledge and consent, and subject to
such reasonable limitations, techniques and timing, as may be designated by
Lessor. Lessee shall be responsible for any damages to the Project arising from
any such activity.
11. Lessee shall not employ any service or contractor for services or
work to be performed in the Building, except as reasonably approved by Lessor.
12. Lessee shall return ail keys at the termination of its tenancy and
shall be responsible for the coat of replacing any kayo that are lost
43
13. Lessee shall not place or install any window coverings or treatments
on the exterior windows of the Premises that will be visible from the exterior
of the Premises, other than window coverings reasonably acceptable to Lessor,
14. No Lessee, employee or invitee shall go upon the roof of the
Building, except in connection with a proper purpose as contemplated by the
Lease. Lessee shall not have the right to install an antenna or satellite dish
on the roof of the building hosing the Premises, or in any other location at the
Project.
15. Lessee shall not suffer or permit smoking or carrying of lighted
cigars or cigarettes in areas reasonably designated by Lessor or by applicable
governmental agencies as non-smoking areas.
18. Lessee shall not use any method of heating or air-conditioning other
than as provided by Lessor.
17. The Premises shall not be used for lodging or manufacturing, cooking
or food preparation, except for a microwave oven or hot plate intended for
Lessee's employees and agents.
18. Lessee shall comply with all safety; fire protection and evacuation
regulations established by Lessor or any applicable governmental agency.
19. Lessor reserves the right to waive any one of these rules or
regulations, and/or as to any particular Lessee, and any such waiver shall not
constitute a waiver of any other rule or regulation or any subsequent
application thereof to such Lessee.
20. Lessee assumes all risks from theft or vandalism and agrees to keep
its Premises locked as may be required.
21. Lessor reserves the right to make such other reasonable rules and
regulations as it may from time to time deem necessary for the appropriate
operation and safety of the Project and its occupants. Lessee agrees to abide by
these and such rules and regulations.
PARKING RULES
1. Parking areas shall be used only for parking by vehicles no longer
or wider than full size passenger automobiles, herein called "Permitted Size
Vehicles." Vehicles other than Permitted Size Vehicles are herein referred to as
"Oversized Vehicles."
2. Lessee shag not permit or allow any vehicles that belong to or are
controlled by Lessee or Lessee's employees, suppliers, shippers, customers, or
invitees to be loaded, unloaded, or parked in areas other than those designated
by Lessor for such activities.
3. Parking stickers or identification devices shall be the property of
Lessor and be returned to Lessor by the holder thereof upon termination of the
holders parking privileges. Lessee will pay such replacement charge as is
reasonably established by Lessor for the loss of such devices.
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4. Lessor reserves the right to refuse the sale of monthly
identification devices to any person or entity that willfully refuses to comply
with the applicable rules, regulations, laws and/or agreements.
5. Users of the parking area will obey ail posted signs and park only
in the areas designated for vehicle parking.
8. Unless otherwise instructed, every person using the parking area is
required to park end lock his own vehicle. Lessor will not be responsible for
any damage to vehicles, injury to. persons or loss of property, all of which
risks are assumed by the party using the parking area.
7. Validation, if established, will be permissible only by such method
or methods as Lessor and/or its licensee may establish at rates generally
applicable to visitor parking.
8. The maintenance, washing, waxing or cleaning of vehicles in the
parking structure or Common Areas la prohibited.
9. Lessee shall be responsible for seeing that all of its employees,
agents and invitees comply with the applicable parking rules, regulations, laws
end agreements.
10. Lessor reserves the right to modify these rules and/or adopt such
other reasonable and non-discriminatory rules and regulations as it may deem
necessary for the proper operation of the parking area.
Such parking use as is herein provided is intended merely as a
license only and no bailment is intended or shall be created hereby.
45
EXHIBIT C
TENANT IMPROVEMENT CONSTRUCTION ADDENDUM
1. Approval Process For Plans.
1.1. SPACE PLANNER AND PRELIMINARY PLAN APPROVAL. Lessee shall
retain, at Lessee's sole cost (subject to Lessee's right to use the T.I.
Allowance pursuant to Section 3.2 below), an architect/space planner and a
mechanical engineer who are each familiar with the practices and procedures of
the Xxxxxx City's Department of Building and Safety and reasonably acceptable to
Lessor (the "Space Planner" and "Mechanical Engineer", respectively) to prepare
detailed plans and specifications (the "Plans") for the "Tenant Improvements"
(as such term is defined in Paragraph 3.1 below) to be constructed in the
Premises, which shall include a layout and designation of all walls, windows,
offices, rooms, restrooms and other partitioning, and location of computer and
telephone rooms, heavy equipment, plumbing requirements, corridors and any
specific use items required by Lessee, and architectural and engineering
drawings for the Tenant Improvements in a form which is complete to allow a
general. contractor and subcontractors to bid on the job and to obtain all
applicable governmental permits. Lessor shall approve or reasonably disapprove
of Lessee's proposed Space Planner and Mechanical Engineer within three (3)
business days after Lessee's request therefor. The Plans shall include, without
limitation, Lessee's finish schedule for interior decoration of the Premises
including, without limitation, floor coverings or carpets, any special wall
coverings, lighting or other fixtures, painting, finish hardware, detailed
drawings of all shelving and cabinet work, locations of special electrical
outlets, telephones, machinery, electrical equipment and plumbing fixtures. The
architectural, engineering, mechanical and electrical drawings shall be in the
form of final working drawings with details and dimensions for all work to be
performed in the Premises (i.e. electrical, plumbing, HVAC, mechanical and
fire/life-safety systems). Together with the Plans, Lessee shall deliver to
Lessor such additional information regarding the Tenant Improvements as Lessor
may reasonably request. Lessee shall not have the right to add additional usable
square footage to the Premises beyond the existing usable square footage of the
Premises without Lessor's prior written consent, to be given or withheld in
Lessor's sole discretion. Notwithstanding anything to the, contrary contained in
this Exhibit C, Lessee shall provide Lessor with such information as Lessor
shall reasonably require to allow Lessor to proceed to complete Lessor's Shell
and Core Work within the Premises no later than three (3) business days
following Lessor's request from time to time, and Lessee's failure to do so
shall be deemed Tenant Delay.
1.2. LESSOR APPROVAL OF PLANS. Lessor shall approve or disapprove
the Plans as soon as reasonably possible, but in no event later than five (5)
business days following Lessor's receipt thereof. Lessor's approval of the Plans
shall not be unreasonably withheld, conditioned or delayed. Lessor's disapproval
of the Plans shall be effected by Lessor's delivery to the Space Planner, as
soon as reasonably possible but in no event beyond such five (5) business day
period, of a writing setting forth the reasonable basis for its disapproval.
Within five (5) business days of the delivery by Lessor of its reasonable
objections, the Space Planner shall cause the Plans to be modified and delivered
to Lessor. Lessor shall then approve or disapprove such modified Plans in the
same manner as set forth above as soon as reasonably possible, but in no event
later than five (5) business days from Lessor's receipt thereof. This procedure
shall be followed until
46
all reasonable objections of Lessor have been resolved and Lessor has approved
the Plans. Lessee's and Lessor's approval of the Plans shall be evidenced by
their initialing and dating each page thereof. Lessor's review of the Plans as
set forth in this Paragraph 1 shall be for Lessor's sole purpose and shall not
obligate Lessor to review the same for quality, design, fitness for Lessee's
intended use of the Premises, compliance with applicable law or other like
matters. The Plans as approved by Lessor shall be referred to herein as the
"Final Plans." All costs of preparation of and revisions to the Plans and any
Final Plans shall be borne by Lessee, subject to the provisions of Paragraph 3.1
below.
1.3. PLAN CHECK. Upon Lessor's approval of the Final Plans, the
Space Planner shall submit the Final Plans to the applicable department of
Xxxxxx City (the "City") for necessary plan checks and approvals as required by
applicable law. The Space Planner shall provide Lessor with reasonable advance
notice of all its meetings with City personnel, so as to provide Lessor
reasonable opportunity to have a representative accompany the Space Planner to
such meetings, as Lessor may desire, for purposes of allowing Lessor input on
matters affecting the Industrial Center. Any and all plan check corrections
shall be made by the Space Planner, subject to Lessor's approval, within five
(5) business days following receipt of such corrections from the City.
1.4. TIMELY PERFORMANCE. Lessee shall cause any plans,
specifications, drawings, schedules and documents to be provided by the Space
Planner under this Paragraph 1 to be prepared promptly and delivered to Lessor.
Lessee agrees that all communications with Lessor's architect will be through
Lessor or Lessor's designated representative, so long as any delay in
communications caused by Lessor is not considered a Tenant Delay. Should Lessee
or its employees or agents violate the foregoing prohibition by communicating
directly with Lessor's architect, Lessee shall either pay to Lessor or directly
to Lessor's architect (at Lessor's option) Lessor's architect's charges for its
direct communications with Lessee or Lessee's employees or agents.
1.5. EXCULPATION. Notwithstanding Lessor's or Lessor's agents
involvement in the preparation of any Plans, and Lessor's approval of the Final
Plans, Lessor shall not have any liability in connection with any errors or
omissions in such Plans, including the Final Plants.
1.6 CHANGE ORDERS. Notwithstanding anything to the contrary
contained herein, Lessor shall, within five (5) business days after its receipt
from Lessee of a change order to the Final Plans ("Change Order"), either: (i)
approve the Change Order, or (ii) disapprove the Change Order based on the
approval criteria set forth in Paragraph 1.2 above. Lessor's failure to timely
respond to Lessee within such five (5) business day period shall be deemed as
Lessor's approval of the Change Order. Any incremental Tenant Improvement costs
resulting from the Change Order shall be borne by Lessee (subject to
reimbursement out of the T.I. Allowance), and any delay in the Substantial
Completion of Lessor's or Lessee's respective obligations set forth in this
Exhibit resulting from the Change Order shall not serve to delay the date that
the Commencement Date would have otherwise occurred.
47
2. SELECTION OF CONTRACTOR.
2.1. LESSEE'S SELECTION. Lessee shall have the right to select the
general contractor of its choice to construct Tenant Improvements, so long as
such general contractor is a licensed contractor reasonably acceptable to Lessor
with a minimum of five (5) years experience in tenant improvement construction
in commercial office buildings and in conversions of warehouse space to office
space, and such contractor is familiar with the practices and procedures of
Xxxxxx City's Department of Building and Safety. Lessor shall approve or
reasonably disapprove Lessee's choice of contractor within seven (7) business
days after Lessee's request therefor.
2.2. LESSEE'S CONTRACTOR. The qualified contractor selected by
Lessee ("Lessee's Contractor") shall enter into a written contract with Lessee
for the construction of the Tenant Improvements. Lessor shall have the right to
review and reasonably approve in advance in writing the form and content of such
contract between Lessee and Lessee's Contractor, and specifically the warranty,
indemnity, insurance, pricing and payment provisions of such contract. Lessor
shall approve or reasonably disapprove Lessee's construction contract within
seven (7) business days after Lessee's request therefore.
2.3. CONSTRUCTION STANDARDS. Lessee's Contractor shall obtain all
necessary permits for and construct the Tenant Improvements in strict accordance
with all applicable codes, ordinances, regulations, laws and the Final Plans.
The Tenant Improvements shall be constructed and completed lien-free and in a
diligent and workmanlike manner. As a condition to Lessee's Contractor's
commencement of work, Lessor shall receive from Lessee's Contractor a
certificate of insurance that names Lessor as an additional insured, from an
insurer meeting the requirements of Paragraph 8 of the Lease, and evidencing
liability, property damage and "course of construction" coverages reasonably
acceptable to Lessor, plus statutorily-required workers compensation insurance
as being in force through the anticipated completion date of the Tenant
Improvements, and providing that Lessor will receive at least thirty (30) days
written notice of any amendments to or cancellation of such coverage. Lessee's
Contractor shall warrant to Lessee and for the benefit of Lessor that the tenant
improvements shall be free from any defects in workmanship and materials for a
period of one (1) year from the date of completion of the Tenant Improvements.
Lessee's Contractor shall coordinate its work with Lessor, and adhere to such
reasonable construction-related rules and procedures as Lessor may now or in the
future reasonably promulgate. Lessee shall permit Lessor or Lessor's
representatives to observe the on-going construction within the Premises to
insure compliance with Lessee's obligations under the Lease and this Exhibit C.
Promptly following the completion of the Tenant Improvements, Lessee shall
obtain from Lessee's Contractor and deliver to Lessor "as-built" or a record set
(containing corrections made at the site) of plans for the Tenant Improvements
in form reasonably acceptable to Lessor.
3. TENANT IMPROVEMENT ALLOWANCE.
3.1. ALLOWANCE AMOUNT. Lessor hereby grants to Lessee a "tenant
improvement allowance" (the "T.I. Allowance") in an amount not to exceed: One
Million Five Hundred Thousand Dollars ($1,500,000.00); The T,.I. Allowance shall
be used by Lessee only for: (i) costs of construction of improvements that are
affixed to the Premises and are included in
48
the Final Plans (the "Tenant Improvements"); and (ii), Lessee's out-of-pocket
fees and costs incurred in connection with architectural, engineering and space
planning services pertaining to the Final Plans, and for governmental permits
and telephone/computer/data cabling, provided, however, that not more than Five
Dollars ($5) per square foot of the Premises may be utilized for the costs
described in this clause (ii). Lessee shall not be entitled to receive or apply
any portion of the T.I. Allowance for any other purpose, including without
limitation for the purchase of moveable furniture or equipment, nor for moving
expenses, nor for the payment of rent due under the Lease. The T.I. Allowance
shall be disbursed by Lessor in accordance with Paragraph 3.2 below.
3.2. PAYMENT. Provided that Lessee is not then in Default or Breach
under the Lease, the T.I. Allowance, or such lesser amount as may be necessary
to reimburse Lessee for its Tenant Improvement costs, shall be paid by Lessor to
Lessee in monthly installments, as follows: Each monthly installment shall be
paid within thirty (30) days following Lessee's delivery to Lessor of: (i) a
written statement from the Space Planner and Lessee of the percentage of
completion (on a line-item basis) of the Tenant Improvements have been installed
at the Premises to Lessee's satisfaction;. (ii) copies of all invoices from
Lessee's Contractor, all subcontractors and all other suppliers of labor and
material to the Tenant Improvements, whether or not being paid for out of the
T.I. Allowance, pertaining to the work . performed to date; (iii) copies of all
applicable governmental permits, approvals and signed-off inspection cards, for
work completed for which payment is being sought; (iv) ink-executed mechanic's
lien releases in compliance with the applicable provisions of California Civil
Code . Section 3262(d) from Lessee's Contractor and all other suppliers of labor
and material to the Tenant Improvements having mechanics lien rights, or other
reasonable documentary evidence satisfactory to Lessor that neither Lessee's
Contractor nor any subcontractor, laborer or materialman has filed or threatened
to file a mechanic's lien against the Premises or Industrial Center, pertaining
to the work performed to date; and (v) such other information and documentation
pertaining to the Tenant Improvements as Lessor or Lessor's lender may
reasonably request. The final installment shall be equal to the balance of the
T.I. Allowance, and shall be paid promptly following Lessee's delivery to Lessor
of: (i) a written statement from the Space Planner and Lessee that all of the
Tenant Improvements have been completed to their respective satisfaction; (ii)
copies of all invoices from Lessee's Contractor, all subcontractors and all
other suppliers of labor and material to the Tenant Improvements, whether or not
being paid for out of the T.I. Allowance; (iii) copies of all applicable
governmental permits, approvals and signed-off inspection cards, including
without limitation a temporary certificate of occupancy for the Premises issued
by the City; (iv) ink-executed mechanic's lien releases in compliance with
CALIFORNIA CIVIL CODE Section 3262(d) (3) or 3262(d) (4) from Lessee's
Contractor and all other suppliers of labor and material to the Tenant
Improvements having mechanics lien rights, or other reasonable documentary
evidence satisfactory to Lessor that neither Lessee's Contractor nor any
subcontractor, laborer or materialman has filed or threatened to file a
mechanic's lien against the Premises or Industrial Center; and (v) such other
information and documentation pertaining to the Tenant Improvements as Lessor or
Lessor's lender may reasonably request. Notwithstanding the foregoing, however,
should the estimated total cost of the Tenant Improvements exceed the. total
T.I. Allowance, Lessee shall make arrangements reasonably satisfactory to Lessor
to assure payment by Lessee to Lessee's Contractor and all other parties engaged
by Lessee of the excess portion, and the amount of each T.I. Allowance
disbursement payment pursuant to this Paragraph 3.2 shall equal the amount
determined for payment per the previous sentences multiplied by a
49
fraction, the numerator of which shall be the total T.I. Allowance and the
denominator of which shall be the estimated total cost of the Tenant
Improvements (as such estimated total cost may be modified from time to time by
change, orders). Further notwithstanding the foregoing, should Lessee initially
elect to construct improvements to allow it to take occupancy of less than the
entire Premises, Lessor shall only fund a pro rata share of the T.I. Allowance,
with the balance funded at such time as the balance of the Premises are improved
for Lessee's occupancy. By way of example only, should Lessee initially elect to
improve only 75 % of the Premises for its occupancy, Lessor shall only be
obligated to fund 75 % of the T.I. Allowance (with such 75 % portion being
funded in monthly installments as provided in the first three sentences of this
Paragraph 3.2); at such time as Lessee improves the balance of the Premises for
its occupancy, Lessor shall fund the balance of the T.I. Allowance (in monthly
installments as provided in the first three sentences of this Paragraph 3.2).
3.3. SHELL AND CORE WORK. Notwithstanding anything to the contrary
contained in this EXHIBIT C, Lessor at Lessor's expense shall use commercially
reasonable best efforts to cause the "Substantial Completion" (as such term is
defined in Paragraph 5.1 below) of the various components of the work ("Shell
and Core Work") set forth in SCHEDULE 3.3 attached hereto and incorporated by
this reference in the Premises by the various dates set forth in SCHEDULE 3.3,
subject to extension due to "Events of Force Majeure" and "Tenant Delay" (as
such terms are defined in Paragraphs 5.2 and 5.3, respectively, below);
provided, however, that Lessor shall have no liability to Lessee, nor shall the
scheduled Commencement Date of November 1, 2000 be postponed or delayed, if
Lessor is unable for any reason to cause the Substantial Completion of any
aspect of the Shell and Core Work by the particular date indicated in SCHEDULE
3.3, so long as there is Substantial Completion of each aspect of the Shell and
Core Work by November 1, 2000. , Should there not be Substantial Completion of
all Shell and Core Work by November 1, 2000 and Lessee has not taken occupancy
of any portion of the Premises for the conduct of its business by then, then the
Commencement Date shall be postponed until such time as there is Substantial
Completion of all the Shell and Core Work (or any earlier date that Lessee has
taken occupancy of any portion of the Premises for the conduct of its business),
unless the reason for the delay is due to Tenant Delay (in which event the-
Commencement Date shall occur on the date that there would have been Substantial
Completion of the Shell and Core Work but for the Tenant Delay):
4. CONSTRUCTION BY LESSEE'S CONTRACTOR. Except as otherwise provided in
the Lease or this EXHIBIT C, Lessor shall not have any responsibility or
obligations whatsoever for the design or construction of any of the Tenant
Improvements or for the timeliness in completion of the Tenant Improvements,
including deficiencies in the quality or adequacy of the labor or material
constructed in the Premises. Except as otherwise provided herein, Lessee
understands and acknowledges that the occurrence of the Commencement Date of the
Original Term is not contingent on the completion of the Tenant Improvements by
Lessee's Contractor.
5. CERTAIN DEFINITIONS.
5.1. SUBSTANTIAL COMPLETION. The date of "Substantial Completion" of
the Shell and Core Work shall be the date that Lessor has substantially
completed Lessor's work described in Paragraph 3.3 above, exclusive of any
Tenant Improvements or other work
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performed by or on behalf of Lessee, and minor "punch list" items of work and
adjustment of Shell and Core Work that can be completed in the following thirty
(30) day period without, in Lessor's reasonable judgment, causing substantial
interference with the construction of Lessee's desired Tenant Improvements.
5.2. EVENTS OF FORCE MAJEURE. "Events of Force Majeure" shall mean
any acts of God, government or other force beyond the reasonable control of the
parties, whether caused by weather, labor disputes (to the extent the labor
dispute results in a "lock out" of the construction site), governmental actions
or inactions (other than in the normal permitting process), civil commotions,
fire, water, earthquake or other casualty or delay of third parties not under
the control of the parties, whereby the effect of such event results in a party
being prevented from substantially performing during such event and any
reasonable period of time following such event where performance continues to be
substantially hindered or impaired by continuing adverse conditions. For
example, a three (3) day rain deluge may, result in several additional days of
delay as Lessor recovers from the effects of the deluge, except that Lessor
shall make commercially reasonable efforts to minimize any additional delays.
5.3. TENANT DELAY. The term "Tenant Delay" means Lessee's failure to
furnish the information and/or assistance as and when required of Lessee
pursuant to the Lease, this EXHIBIT C, or the Addendum, and including without
limitation Lessee's failure to render Lessee's approval or disapproval, or
Lessee's or Lessee's agents failure to make submissions to Lessor, within the
time limits specified in this EXHIBIT C; or Lessee's changes in Plans and/or
Final Plans following approval by Lessor and Lessee of the foregoing; or
Lessee's interference with the construction process; or delays caused by
Lessee's agents, including without limitation Lessee's contractors and
subcontractors; or delays resulting from building code .requirements due to any
special requirements of Lessee and/or the requirement for material or labor that
is not readily available, if Lessee fails to make alternative arrangements to
comply with such requirements or select other material or labor that is readily
available within three (3) business days following Lessor's notice. Any
incremental costs to Lessor associated with any Tenant Delay will be passed on
to and shall be borne solely by Lessee. Notwithstanding the foregoing, no Tenant
Delay shall be deemed to have occurred unless and until Lessor has provided
written notice to Lessee specifying the action or inaction that Lessor contends
constitutes Tenant Delay. If such action or inaction is not cured within one (1)
business day after receipt of such notice, then a Tenant Delay, as set forth in
such notice, shall be deemed to have occurred commencing as of the date such
notice is received or deemed received and continuing for the number of business
days the completion of Lessor's Shell and Core Work was in fact delayed as a
direct result of such action or inaction.
5.4. DELAY IN COMMENCEMENT DATE. Notwithstanding anything to the
contrary contained in this Lease, the Commencement Date shall be delayed by one
(1) business day for each business day of delay in the Substantial Completion of
the Tenant Improvements caused by "Landlord Delay" (as such term is defined
below), including without limitation delays in the Substantial Completion of the
Tenant Improvements caused by Lessor's failure to substantially complete its
Shell and Core Work by the deadlines set forth in .Sections 3.3 for reasons
other than Tenant Delay and Events of Force Majeure. No Landlord Delay shall be
deemed to have occurred unless and until Lessee has provided written notice to
Lessor specifying the action or inaction that Lessee contends constitutes
Landlord Delay. If such action or inaction is not cured
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within one (1) business day after receipt of such notice, then a Landlord Delay,
as set forth in the notice, shall be deemed to have occurred commencing as of
the date such notice is received or deemed received by Lessor and continuing for
the number of days the Substantial Completion of the Premises was in fact
delayed as a direct result of such Landlord Delay. The term."Landlord Delay"
shall mean any delay in the completion of the Tenant Improvements which is due
to any wrongful or negligent act or omission of Lessor or Lessor's agents or
contractors (excluding acts or omissions while acting as agent for Lessee). The
term Landlord Delay shall also include, to the extent the completion of the
Tenant Improvements is delayed as a result thereof: (1) Lessor's delay in
responding to Lessee's requests for authorizations or approvals beyond the time
periods required in this Exhibit C; (2) delay attributable to the wrongful or
negligent acts or failures to act of Lessor or Lessor's agents or contractors;
(3) delay attributable to the wrongful or negligent interference of Lessor or
Lessor's agents or contractors with the completion of the Tenant Improvements,
or the wrongful or negligent failure or refusal of Lessor or Lessor's agents or
contractors to permit Lessee or Lessee's agents or contractors access to and use
of 'the Building or any Building facilities or services; (4) delay attributable
to Lessor giving Lessee incorrect or incomplete building requirements or base
building plans, or revisions made to such building requirements or base building
plans subsequent to the delivery of such items to Lessee; and (5) delay
attributable to Lessor's delay, in violation of the terms of this Exhibit _C, in
administering and paying when due the T.I. Allowance.
5.5. MISCELLANEOUS. During the period of construction of the Tenant
Improvements prior to the Commencement Date, Lessee and Lessee's contractors,
subcontractors and materialmen shall be charged for all electrical and water
charges in connection with the construction of the Tenant Improvements.
5.6. Presence of Hazardous Materials. In the event that during the
installation of the Tenant Improvements the Premises are determined to contain
Hazardous Materials (including without limitation asbestos) not brought onto the
Premises by Lessee or Lessee's employees, agents or contractors, then Lessor at
Lessor's sole cost and expense shall remove, encapsulate, contain or otherwise
dispose of such Hazardous Materials in accordance with Applicable Requirements.
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SCHEDULE 3.3
SHELL AND CORE WORK
Lessor shall complete the following work as part of the Core and Shell
renovation:
GENERAL
All dry rot and termite damage to be repaired (now complete).
All wood elements within the Premises to be sandblasted (now complete).
Access to the Premises to be compliant with all applicable laws including ADA
(but excluding, bathrooms in the Premises, which shall be at Lessee's
expense) by the Commencement Date, subject to postponement due to
Tenant Delay and Events of Force Majeure.
Exterior security lighting in the parking areas by the Commencement Date,
subject to postponement due to Tenant Delay and Events of Force
Majeure.
Landscaping by the Commencement Date, subject to postponement due to Tenant
Delay and Events of Force Majeure.
Parking areas paved and striped by the Commencement Date, subject to
postponement due to Tenant Delay and Events of Force Majeure.
Lessee to be responsible for security within the Premises.
FLOOR SLAB
Concrete floor to be filled and/or grinded in damaged areas by August 1, 2000,
subject to postponement due to Tenant Delay and Events of Force
Majeure.
INTERIOR WALLS
"AS-IS", except that any holes in the demising wall separating the 0000 Xxxxxxx
Xxxxx portion of the Premises from the 0000 Xxxxxxx Xxxxx portion of
the Premises shall be filled and smoothed by September 1, 2000, subject
to postponement due to Tenant Delay and Events of Force Majeure.
ROOF STRUCTURE
Structure to be seismically upgraded to meet (presently Applicable Requirements
(now complete).
Panelized sheathing system using plywood as required (now complete).
Install a new exterior roof on the Building having at least a ten (10) year
materials warranty. (and Lessee understands that the warranty will be
voided (in which event Lessee shall be . responsible for repair and
replacement costs) in the event of any modification or penetrations to
the roof by Lessee following its installation) by August 1, 2000,
subject to postponement due to Tenant Delay and Events of Force
Majeure.
INSULATION
R-19 insulation by August 1, 2000, subject to postponement due to Tenant Delay
and Events of Force Majeure.
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SHEET METAL
Draft on curtains or stops as required, by August 1, 2000, subject -to
postponement due to Tenant Delay and Events of Force Majeure.
Hatch and ladder, if required by present Applicable Requirements, by August 1,
2000, subject to postponement due to Tenant Delay and Events of Force
Majeure.
UTILITY PLATFORMS
Platformsand enclosures as required for the installation of all building systems
including HVAC and electrical equipment by September 1, 2000, subject to
postponement due to Tenant Delay and Events of Force Majeure.
ROOF DRAINS
Interior cast iron piped roof drains to exterior by September 1, 2000, subject
to postponement due to Tenant Delay and Events of Force Majeure.
Exterior roof and overflow drains by September 1, 2000, subject to postponement
due to Tenant Delay and Events of Force Majeure.
H.V.A.C.
1. Lessor to bear the cost of purchasing and placing (but not connecting to
power, water or otherwise installing) on the rooftop of the Building air
conditioning units to service the Premises, having a maximum capacity of one
hundred twenty-six (126) tons in the aggregate, no later than sixty (60)
calendar days following Lessee's execution of the ease, subject to postponement
due to Tenant Delay and Events of Force Majeure. Lessee at Lessee's expense
shall be responsible for the purchase and installation of any additional air
conditioning units desired or required by Lessee in excess of one hundred
twenty-six (126) tons, and also the purchase and installation of all, HVAC
ductwork and distribution within the Premises, the electrical connections to the
subpanel, condensate drains, low voltage conduits, and any necessary HVAC plenum
supply and return deemed necessary by Lessee, with the cost of the foregoing
being borne by Lessee subject to reimbursement out of the T.I. Allowance, and
such work not being deemed part of Lessor's Shell and Core Work.
LIFE SAFETY/ FIRE SPRINKLER SYSTEM (applicable only to unoccupied space that has
not been improved with Tenant Improvements)
1. Cause the life safety systems of the Premises, including the fire
sprinkler system, to be in compliance with present Applicable Laws, A later than
sixty (60) days following the full execution and delivery of the Lease, subject
to postponement due to Tenant Delay and Events of Force Majeure; adjustments of
the fire sprinkler system to satisfy building code requirements that are
affected by the design of Lessee's Tenant Improvements shall be Lessee's
responsibility;
2. Main floor shut-off valves, alarms, primary loop piping, distribution
piping and heads installed with deflectors at roof structure, no later than
sixty (60) days following the full
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execution and delivery of the Lease, subject to postponement due to Tenant Delay
and Events of Force Majeure.
PLUMBING/ ELECTRICAL
1. Cause electricity, water and sewer connections' brought to the Premises
and available for hook-up (but Lessee and not Lessor shall be responsible for
electricity, water and sewer distribution within the Premises, and such shall
not be deemed part of Lessor's Shell and Core Work), by approximately September
1, 2000, subject to postponement due to Tenant Delay and Events of Force Majeure
(but temporary power will be available to Lessee). [The construction of rest
rooms within the Premises, including the distribution of electricity, water and
sewer therein, shall be deemed a part of the Tenant Improvements, to be paid for
by Lessee subject to reimbursement out of the T.I. Allowance. ] The electrical
service for Lessee will consist of one 1,000 amp switchboard and main
distribution panel; provided, however, that if the local electrical utility
company is agreeable to providing at least 2,900 amps to the Project, then
Lessee shall be entitled to one 1,600 amp switchboard and main distribution
panel. Lessee at Lessee's expense shall be responsible for the purchase and
installation of step down transformers, and such shall not be deemed part of
Lessor's Shell and Core Work.
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