* * * * * * * * * * * * * * * * * * * *
LEASE
OAKMEAD WEST
* * * * * * * * * * * * * * * * * * * *
Between
XXXXXXX NAVIGATION LIMITED
(Tenant)
and
CARRAMERICA REALTY OPERATING PARTNERSHIP, L.P.
(Landlord)
TABLE OF CONTENTS
Page
[Table of Contents appears at the end of the Lease]
LEASE
THIS LEASE (the "Lease") is dated as of May 11, 2005 (for reference
purposes only) between CARRAMERICA REALTY OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership ("Landlord") and the Tenant as named in the
Schedule below. The term "Project" means the seven (7) buildings, the land
appurtenant thereto ("Land"), and other improvements located thereon commonly
known as "Oakmead West", located in Sunnyvale, California. The "Premises" means
that portion of the Project leased to Tenant and described in the Schedule and
outlined on Exhibit A. The buildings in which the Premises are located shall be
referred to herein as the "Buildings". The following schedule (the "Schedule")
is an integral part of this Lease. Terms defined in this Schedule shall have the
same meaning throughout the Lease.
SCHEDULE
1. Tenant: XXXXXXX NAVIGATION LIMITED, a California corporation
2. Premises: Building A, located at 000 XxXxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxx and Building B located at 000 Xxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxx
3. Intentionally Omitted
4. Rentable Square Footage of the Premises:
Building A 75,093 rentable square feet
Building B 63,781 rentable square feet
Total 138,874 rentable square feet
5. Tenant's Proportionate Share: 100% of each Building, 32.60% of the
Project (based upon 425,981 rsf in the Project)
6. Lease Payments Upon Execution: Prepaid Base Rent equal to One Hundred
Forty-Five Thousand Eight Hundred Seventeen and 70/100 Dollars
($145,817.70) and Prepaid Operating Cost/Tax Share Rent equal to
Forty-Seven Thousand Two Hundred Seventeen and 16/100 Dollars
($47,217.16).
7. Permitted Use: General office, warehouse, light assembly and
manufacturing, research and development
8. Tenant's Real Estate Broker for this Lease: Liberty Greenfield, LLLP
and Colliers International
9. Landlord's Real Estate Broker for this Lease: None
10. Tenant Improvements: See Tenant Improvement Agreement attached hereto
as Exhibit C
11. Target Delivery Date: July 1, 2005
Commencement Date: Six (6) months following the date that Landlord
delivers possession of the Premises to Tenant in the condition
required hereunder (the "Premises Delivery Date"), but in no event
shall the Commencement Date be before January 1, 2006.
Rent Commencement Date: One (1) month following the Commencement Date.
12. Term/Termination Date: The Term of this Lease shall be for seven (7)
years commencing on the Commencement Date and expiring on the calendar
day preceding the seventh (7th) anniversary of the Commencement Date
(the "Termination Date"); provided, however, that if the Commencement
Date shall occur on a date other than the first day of a calendar
month, the Termination Date shall be the last day of the calendar
month in which the seventh (7th) anniversary of the Commencement Date
occurs.
13. Parking Stalls: Five hundred twenty-eight (528) parking spaces, of
which eight (8) spaces shall be designated as "Xxxxxxx Navigation
Visitor Parking", subject to applicable Governmental Requirements (as
defined in Section 5.1(c)(iii) below), including any applicable
transportation management program applicable to the Project. Such
Reserved Spaces shall be designated by signs or other markings to be
installed by Tenant, subject to Landlord's reasonable approval.
14. Base Rent:
Monthly Annual
Period Base Rent Base Rent
------ --------- ---------
1st Lease Year $145,817.70 $1,749,812.40
-------------- ----------- -------------
2nd Lease Years $150,192.23 $1,802,306.77
--------------- ----------- -------------
3rd Lease Year $154,698.00 $1,856,375.98
-------------- ----------- -------------
4th Lease Year $159,338.94 $1,912,067.25
-------------- ----------- -------------
5th Lease Year $164,119.11 $1,969,429.27
-------------- ----------- -------------
6th Lease Year $169,042.68 $2,028,512.15
-------------- ----------- -------------
7th Lease Year $174,113.96 $2,089,367.51
-------------- ----------- -------------
15. Renewal Options: Two (2) options to extend for a period of five years
each
Exhibit A - PLAN OF THE PREMISES
Exhibit B - RULES AND REGULATIONS
Exhibit C - TENANT IMPROVEMENT AGREEMENT
Exhibit D - COMMENCEMENT DATE CONFIRMATION (see Section 1.1)
Exhibit E - ENVIRONMENTAL QUESTIONNAIRE
1. LEASE AGREEMENT. On the terms stated in this Lease, Landlord leases the
Premises to Tenant, and Tenant leases the Premises from Landlord, for the Term
beginning on the Commencement Date and ending on the Termination Date, unless
extended or sooner terminated pursuant to this Lease.
1.1 Commencement Date.
(a) The Commencement Date of this Lease is the date set forth in the
Schedule, and the parties agree that if the Premises Delivery Date does not
occur on or before July 1, 2005 for any reason, then this Lease shall not be
void or voidable by either party and Landlord shall not be liable to Tenant for
any loss or damage resulting therefrom.
(i) The parties acknowledge and agree that if the Premises Delivery
Date does not occur on or before July 1, 2005, Tenant may be subject to the
holdover provisions of its current lease, and that Tenant may be required
to pay to its current landlord holdover rent as well as certain penalties
and damages. Accordingly, notwithstanding Section 1.1(a) above, if the
Premises Delivery Date does not occur on or before September 1, 2005 (the
"Premises Delivery Deadline"), then, for each calendar month after the
Premises Delivery Deadline in which the Premises Delivery Date does not
occur, Tenant shall be entitled to a credit against Base Rent payable
hereunder equal to twice the Monthly Base Rent payable hereunder for the
first Lease Year (i.e., Two Hundred Ninety-One Thousand Six Hundred Thirty
Five and 40/100 Dollars ($291,635.40)); provided, however, that (A) if
Landlord's delivery of a portion of the Premises would mitigate Tenant's
obligation to pay holdover rent, penalties or damages to its current
landlord and if Tenant determines, in its commercially reasonable
discretion, to accept Landlord's delivery of a portion of the Premises,
then, upon Tenant's taking possession of such portion of the Premises, the
amount of the credit under this Section 1.1(a)(i) shall be proportionately
reduced on the basis of the number of rentable square feet of the portion
of the Premises delivered to Tenant in proportion to the total rentable
square feet of the Premises; and (B) Tenant shall not be entitled to a
credit under this Section 1.1(a)(i) if Tenant substantially completes the
Tenant Improvement Work on or before January 1, 2006. Tenant shall exercise
reasonable efforts to substantially complete the Tenant Improvement Work on
or before January 1, 2006 using standard working methods without the
payment of overtime; provided, however, that at Landlord's option, Landlord
may require Tenant to pay for overtime, in which event Landlord shall
reimburse Tenant for reasonable overtime expenses within thirty (30) days
after Landlord's receipt of a reasonably detailed invoice therefor.
(ii) Notwithstanding the foregoing, if the Premises Delivery Date does
not occur on or before April 1, 2006 (the "Outside Delivery Deadline"),
Tenant shall have the right to cancel this Lease by giving written notice
of such cancellation to Landlord at any time after the Outside Delivery
Deadline and prior to the date Landlord delivers possession of the Premises
to Tenant, in which case this Lease shall be cancelled effective thirty
(30) days after Landlord's receipt of Tenant's cancellation notice, unless
Landlord delivers possession of the Premises to Tenant within said thirty
(30) day period.
(iii) The Premises Delivery Deadline and the Outside Delivery Deadline
shall be extended by the number of days that the Premises Delivery Date is
delayed due to any act, neglect, failure or omission of Tenant or any
Tenant Parties (as defined in Section 8.2(a) below) or due to fire or other
damage to or destruction of the Premises. Tenant's rent credit and
cancellation right as herein described shall constitute Tenant's sole and
exclusive remedy for the failure of the Premises Delivery Date to occur by
the Premises Delivery Deadline or the Outside Delivery Deadline,
respectively. Any rent credit granted to Tenant pursuant to Section
1.1(a)(i) above shall be applied against the first monthly installments of
Base Rent payable hereunder until the rent credit is exhausted.
(b) Following the Commencement Date, Landlord shall prepare and deliver to
Tenant a Commencement Date Confirmation substantially in the form attached
hereto as Exhibit D that sets forth the Commencement Date, the Rent Commencement
Date and the Termination Date for this Lease. Tenant shall execute the
Commencement Date Confirmation and deliver the executed original of the same to
Landlord within five (5) business days after Tenant's receipt thereof. Tenant's
failure to timely execute and return the Commencement Date Confirmation document
to Landlord shall be conclusive evidence of Tenant's agreement with the
information as set forth therein. This Lease shall be a binding contractual
obligation of Landlord and Tenant effective upon the mutual execution and
delivery hereof, notwithstanding the later commencement of the Lease Term.
1.2 Termination Date. The Termination Date of this Lease is set forth in
the Schedule.
1.3 Early Occupancy. During the period commencing on the Premises Delivery
Date and ending on the Commencement Date (the "Early Occupancy Period"), Tenant
shall be permitted to occupy the Premises for the purpose of installing
leasehold improvements, furniture, trade fixtures, equipment and cabling,
subject to the terms and conditions set forth in the Tenant Improvement
Agreement. Tenant's occupancy of the Premises during the Early Occupancy Period
shall be subject to all of the terms, covenants and conditions of this Lease,
except that Landlord agrees that Tenant's obligation to pay Base Rent, Operating
Cost Share Rent and Tax Share Rent (as such terms are defined in Sections 2.1(a)
through 2.1(c) below) during the Early Occupancy Period shall be waived. Tenant
shall, however, pay the cost of all utilities and other services provided to the
Premises during the Early Occupancy Period. Prior to Tenant's entry in the
Premises, Tenant shall furnish to Landlord certificates of insurance
satisfactory to Landlord evidencing Tenant's compliance with the requirements of
Section 8.3 below.
1.4 Cancellation Right. The parties acknowledge that (a) concurrently
herewith, Tenant and Landlord's affiliate, Square 24 Associates, dba Square 24
Associates, L.P., a District of Columbia limited partnership ("Square 24"), are
entering into that certain lease agreement for certain premises in the building
commonly known as 000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx, in the project
commonly known as "Sunnyvale Technology Park" (the "Other Lease"), (b) the
Premises are subject to an existing lease (the "Existing Lease") between
Landlord and the existing tenant (the "Existing Tenant") of the Premises, and
(c) Tenant's ability to receive timely delivery of the Premises is a material
consideration of Tenant's decision to enter into this Lease and the Other Lease.
Therefore, Landlord shall deliver to Tenant a written statement certified by
Landlord that (i) Landlord and the Existing Tenant have entered into an
agreement terminating the Existing Lease effective on or before June 30, 2005,
and (ii) under the terms of such agreement, the Existing Tenant is required to
vacate the Premises on or before June 30, 2005. If Landlord fails to deliver
such statement to Tenant within ten (10) business days after the receipt by
Landlord and Square 24 of this Lease and the Other Lease, respectively, both
duly executed by Tenant, then Tenant shall have the right to cancel this Lease
and the Other Lease upon written notice to Landlord and Square 24; provided,
however, that Tenant shall provide such written notice within three (3) days
after the expiration of said ten (10) business day period. Tenant's cancellation
under this Section 1.4 shall terminate this Lease and the Other Lease effective
as of the date of Landlord's and Square 24's receipt of Tenant's written notice,
and Landlord and Square 24 shall, on or before the effective date of such
termination or as soon thereafter as reasonably practicable, refund to Tenant
the Prepaid Base Rent and Prepaid Operating Cost/Tax Share Rent paid by Tenant
pursuant to Section 2.1 of this Lease and Section 2.1 of the Other Lease,
respectively, and the parties shall be released from all further obligations
under this Lease and the Other Lease.
2. RENT.
2.1 Types of Rent.
(a) Base Rent. Beginning on the Rent Commencement Date, Tenant shall pay to
Landlord base rent for the Premises ("Base Rent") in monthly installments, in
advance, on or before the first day of each month of the Term in the amount set
forth on the Schedule; provided, however, that, upon Tenant's execution and
delivery of this Lease to Landlord, Tenant shall pay to Landlord the Prepaid
Base Rent set forth in Item 6 of the Schedule, which shall be applied to the
first monthly installment of Base Rent payable by Tenant beginning on the Rent
Commencement Date; provided, however, that if the Rent Commencement Date is a
day other than the first day of a calendar month, then (i) the Prepaid Base Rent
shall be applied to the Base Rent for the partial month in which the Rent
Commencement Date occurs and the next succeeding calendar month, and (ii) the
Prorated First Base Rent Payment (as defined below) shall be payable by Tenant
on or before the first full calendar month following the Rent Commencement Date.
The "Prorated First Base Rent Payment" means the remaining amount of Base Rent
payable by Tenant for the first full calendar month following the Rent
Commencement Date, after the Prepaid Rent is applied as provided above. All such
prorations shall be made on the basis of the actual number of days in the
applicable month.
(b) Operating Cost Share Rent. Beginning on the Commencement Date, Tenant
shall pay to Landlord the following (collectively, "Operating Cost Share Rent"),
monthly in advance in an estimated amount: (i) Tenant's Proportionate Share (as
set forth in the Schedule) of Operating Costs for the applicable Fiscal Year (as
defined in Section 2.3(e) below), plus (ii) a management fee equal to three
percent (3%) of the total Rent payable under this Lease for the applicable
Fiscal Year. The definition of Operating Costs and the method for billing and
payment of Operating Cost Share Rent are set forth in Sections 2.2, 2.3 and 2.4.
(c) Tax Share Rent. Beginning on the Commencement Date, Tenant shall pay to
Landlord Tenant's Proportionate Share of Taxes for the applicable Fiscal Year
("Tax Share Rent"), monthly in advance in an estimated amount. A definition of
Taxes and the method for billing and payment of Tax Share Rent are set forth in
Sections 2.2, 2.3 and 2.4.
Notwithstanding the foregoing, upon Tenant's execution and delivery of
this Lease to Landlord, Tenant shall pay to Landlord the Prepaid Operating
Cost/Tax Share Rent set forth in Item 6 of the Schedule, which shall be applied
to the first monthly installments of Operating Cost Share Rent and Tax Share
Rent payable by Tenant beginning on the Commencement Date; provided, however,
that if the Commencement Date is a day other than the first day of a calendar
month, then (i) the Prepaid Operating Cost/Tax Share Rent shall be applied to
the Operating Cost Share Rent and Tax Share Rent for the partial month in which
the Commencement Date occurs and the next succeeding calendar month and (ii) the
Prorated First Additional Rent Payment (as defined below) shall be payable by
Tenant on or before the first full calendar month following the Commencement
Date. The "Prorated First Additional Rent Payment" means the remaining amount of
Operating Cost Share Rent and Tax Share Rent payable by Tenant for the first
full calendar month following the Commencement Date, after the Prepaid Operating
Cost/Tax Share Rent is applied as provided above. All such prorations shall be
made on the basis of the actual number of days in the applicable month.
(d) Definition of Rent. As used in this Lease, the term "Rent" means Base
Rent, Operating Cost Share Rent, Tax Share Rent and all other costs, expenses,
liabilities, and amounts which Tenant is required to pay under this Lease
("Additional Rent"), including any interest for late payment. Tenant's agreement
to pay Rent is an independent covenant, with no right of setoff, deduction or
counterclaim of any kind.
(e) Rent Payments. Tenant shall pay Rent under this Lease in the form of a
check to Landlord at the following address:
CarrAmerica Realty Operating Partnership, L.P.
t/a Oakmead West
P.O. Box 642922 Xxxxxxxxxx, XX 00000-0000
or by wire transfer as follows:
Account Name: CarrAmerica Realty Operating Partnership, L.P.
t/a Oakmead West
Bank Name: PNC Bank
Transit Number: 000-000-000
Account Number: 1004339188
Notification: Lease Administration (CarrAmerica Realty
Operating Partnership, L.P. re
Xxxxxxx Navigation Limited)
Telephone: (000) 000-0000
or in such other manner as Landlord may notify Tenant.
2.2 Payment of Operating Cost Share Rent and Tax Share Rent.
(a) Payment of Estimated Operating Cost Share Rent and Tax Share Rent.
(i) Before the Commencement Date and on or before April 1 of each
succeeding Fiscal Year, or as soon as reasonably possible thereafter,
Landlord shall give Tenant notice of Landlord's estimate of the payments to
be made pursuant to Sections 2.1(b) and 2.1(c) above for such Fiscal Year.
Landlord may revise these estimates by written notice to Tenant whenever it
obtains more accurate information, such as the final real estate tax
assessment or tax rate for the Project, in which event subsequent monthly
payments by Tenant for such Fiscal Year shall be based upon such revised
estimate.
(ii) Within ten (10) days after receiving Landlord's notice regarding
the original or revised estimate of the monthly payments to be made
pursuant to Sections 2.1(b) and 2.1(c) above for a particular Fiscal Year,
Tenant shall pay Landlord an amount equal to the product of such estimated
monthly payments (as set forth in Landlord's notice), multiplied by the
number of months that have elapsed in the applicable Fiscal Year to the
date of such payment including the current month, minus any payments on
account thereof previously made by Tenant for the months elapsed. On the
first day of each month thereafter, Tenant shall pay Landlord the estimated
monthly payments as set forth in Landlord's most recent notice, until a new
estimate becomes applicable.
(b) Correction of Operating Cost Share Rent and Tax Share Rent. Within one
hundred fifty (150) days after the close of each Fiscal Year or as soon after
such 150-day period as practicable, Landlord shall deliver to Tenant a statement
of (i) Operating Costs and Taxes for such Fiscal Year, and (ii) the payments
made by Tenant under Section 2.2(a) above for such Fiscal Year (the "Annual
Expense Statement"). If, on the basis of any Annual Expense Statement, Tenant
owes an amount that is less than the estimated payments previously made by
Tenant for the applicable Fiscal Year, Landlord, at its election, shall either
promptly refund the amount of the overpayment to Tenant or, if this Lease is
still in effect, credit such excess against Tenant's subsequent obligations to
pay Operating Costs and Taxes. If, on the basis of any Annual Expense Statement,
Tenant owes an amount that is more than the estimated payments previously made
by Tenant for the applicable Fiscal Year, Tenant shall pay the deficiency to
Landlord within twenty (20) days after Landlord's delivery of such Annual
Expense Statement to Tenant. The obligations of Landlord and Tenant under this
Section to promptly refund any overpayment or pay any deficiency, as
appropriate, shall survive the expiration or earlier termination of this Lease.
2.3 Definitions.
(a) Included Operating Costs.
(i) "Operating Costs" means any reasonable expenses, costs and
disbursements of any kind other than Taxes, paid or incurred by Landlord in
connection with the management, maintenance, operation and repair of the
Project or any part thereof, and of the personal property, trade fixtures,
machinery, equipment, systems and apparatus used in connection therewith,
including, without limitation, (1) all costs to operate, maintain, repair,
replace, supervise, insure and administer the common areas of the Project,
including, without limitation, all costs of resurfacing and restriping the
parking areas of the Project; (2) all costs and expenses paid or incurred
by Landlord in connection with the obtaining of insurance on the Buildings
and/or the Project or any part thereof or interest therein, and any
deductibles paid under policies of any such insurance; (3) except for costs
and expenses which are the sole responsibility of Tenant pursuant to
Section 3.3(b) below, all costs paid or incurred by Landlord to perform
Landlord's Repair Obligations (as defined in pursuant to Section 3.3(b)
below), (4) the cost of providing those services required to be furnished
by Landlord under this Lease, and (5) the cost of all electricity, water,
gas, sewers, oil and other utilities (collectively, "Utilities"), including
any surcharges imposed, serving the Project or any part thereof (but
excluding the cost of Utilities directly billed to Tenant or other tenants
in the Project), and any amounts, taxes, charges, surcharges, assessments
or impositions levied, assessed or imposed upon the Project or any part
thereof, or upon Tenant's use and occupancy thereof, as a result of any
rationing of Utilities services or restriction on the use of Utilities
affecting the Project or any part thereof. Any Operating Costs that
constitute capital expenditures (collectively, "Included Capital Items")
shall be amortized by Landlord, with interest at a rate of ten percent
(10%) per annum, over the estimated useful life of such item, and such
amortized costs shall be included in Operating Costs only for that portion
of the useful life of the Included Capital Item which falls within the
Term, unless the cost of the Included Capital Item is less than Ten
Thousand Dollars ($10,000) in which case it shall be expensed in the year
in which it was incurred.
(ii) If the Project contains more than one building, then Operating
Costs shall include (1) all Operating Costs fairly allocable to the
Buildings, and (2) a proportionate share (based on the gross rentable area
of the Buildings as a percentage of the gross rentable area of all of the
buildings in the Project) of all Operating Costs which relate to the
Project in general and are not fairly allocable to any one building in the
Project.
(iii) Intentionally omitted.
(iv) Intentionally omitted.
(b) Excluded Operating Costs. Operating Costs shall not include:
(i) costs of installing leasehold improvements for tenants or
occupants or prospective tenants or occupants of the Project;
(ii) interest and principal payments on mortgages or any other debt
costs (except as provided in Section 2.3(a) above with regard to Included
Capital Items), or rental payments on any ground lease of the Project;
(iii) real estate brokers' leasing commissions;
(iv) legal fees, space planner fees and advertising expenses incurred
with regard to leasing the Project or portions thereof;
(v) legal expenses incurred in connection with disputes with tenants
that pertain solely to the particular tenant or its premises (as opposed to
disputes with other tenants that pertain to tenants generally or the
Project, or disputes where the tenants of the Project would receive
benefits if Landlord prevails);
(vi) the cost of damage and repairs necessitated by the gross
negligence or willful misconduct of Landlord;
(vii) any cost or expenditure for which Landlord is reimbursed, by
insurance proceeds or otherwise, except by Operating Cost Share Rent;
(viii) the cost of any service furnished to any tenant of the Project
which Landlord does not make available to Tenant;
(ix) depreciation (except on any Included Capital Items);
(x) legal and auditing fees incurred for the benefit of Landlord such
as collecting delinquent rents, preparing tax returns and other financial
statements, and audits other than those incurred in connection with the
preparation of reports required pursuant to Section 2.2 above;
(xi) the wages of any employee for services not related directly to
the management, maintenance, operation and repair of the Project;
(xii) fines, penalties and interest incurred by Landlord for late
payment by Landlord or violations of law;
(xiii) the cost of capital expenditures to correct violations of
Governmental Requirements existing in the Project as of the date of this
Lease, based on the current interpretation of Governmental Requirements by
applicable governmental authority(ies) as of the date of this Lease;
(xiv) costs of any investigation or monitoring of site conditions or
any clean-up, containment, restoration, removal or remediation of Hazardous
Substances ("Remedial Work") pertaining to the Prior Contamination (as
defined in Section 28.6 below), and costs arising from any use, storage,
treatment, transportation, release or disposal of Hazardous Substances on
or about the Project by Landlord, its agents, employees or contractors; and
(xv) without limiting the provisions of clause (xii) above, costs
incurred to comply with Governmental Requirements with respect to any
Hazardous Substance which was in existence in the Project prior to the
Commencement Date, and which was of such a nature that a federal, state or
municipal governmental or quasi-governmental authority, if it had then had
knowledge of the presence of such Hazardous Substance, in the state, and
under the conditions that it then existed in the Project, would have then
required the removal, remediation or other similar action with respect to
such Hazardous Substance; and costs incurred with respect to any Hazardous
Substance that is brought into the Project after the date hereof by
Landlord or any other tenant of the Project or by anyone other than Tenant
or Tenant Parties and are of such a nature, at that time, that a federal,
state or municipal governmental or quasi-governmental authority, if it had
then had knowledge of the presence of such Hazardous Substance, in the
state, and under the conditions, that it then exists in the Project, would
have then required the removal, remediation or other action with respect to
such Hazardous Substance.
(c) Taxes.
(i) "Taxes" means any and all taxes, assessments and charges of any
kind, general or special, ordinary or extraordinary, levied against the
Project, which Landlord shall pay or become obligated to pay in connection
with the ownership, leasing, renting, management, use, occupancy, control
or operation of the Project or of the personal property, fixtures,
machinery, equipment, systems and apparatus used in connection therewith.
Taxes shall include real estate taxes, personal property taxes, sewer
rents, water rents, special or general assessments, transit taxes, ad
valorem taxes, and any tax levied on the rents hereunder or the interest of
Landlord under this Lease (the "Rent Tax"). Taxes shall also include all
fees and other costs and expenses paid by Landlord in reviewing any Taxes
and in seeking a refund or reduction of any Taxes, whether or not the
Landlord is ultimately successful. Taxes shall also include any assessments
or fees paid to any business park owners association, or similar entity,
which are imposed against the Project pursuant to any Covenants, Conditions
and Restrictions ("CC&R's") recorded against the Project and any
installments of principal and interest required to pay any existing or
future general or special assessments for public improvements, services or
benefits, and any increases resulting from reassessments imposed in
connection with any change in ownership or new construction.
(ii) If the Project contains more than one building, then Taxes shall
include (1) all Taxes fairly allocable to the Buildings, and (2) a
proportionate share (based on the gross rentable area of the Buildings as a
percentage of the gross rentable area of all of the buildings in the
Project) of all Taxes which relate to the Project in general and are not
fairly allocable to any one building in the Project.
(iii) For any year, the amount to be included in Taxes (1) from taxes
or assessments payable in installments, shall be the amount of the
installments (with any interest) due and payable during such year, and (2)
from all other Taxes, shall at Landlord's election be the amount accrued,
assessed, or otherwise imposed for such year or the amount due and payable
in such year. If Taxes for any period during the Term are increased after
payment thereof for any reason, including, without limitation, error or
reassessment by applicable governmental or municipal authorities, and such
increase results in Tenant having underpaid Tax Share Rent hereunder, then
Tenant shall pay to Landlord, within thirty (30) days after demand, the
amount of such underpayment. Similarly, if Taxes for any period during the
Term are decreased after payment thereof for any reason, and such decrease
results in Tenant having overpaid Tax Share Rent hereunder, then Landlord
shall return to Tenant the amount of such overpayment within thirty (30)
days after Landlord's receipt of such overpayment. The obligations of
Landlord and Tenant under this Section to promptly refund any overpayment
or pay any deficiency, as appropriate, shall survive the expiration or
earlier termination of this Lease. Taxes shall not include any net income
(except Rent Tax), capital, stock, succession, transfer, franchise, gift,
estate or inheritance tax, except to the extent that such tax shall be
imposed in lieu of any portion of Taxes.
(iv) Notwithstanding anything to the contrary set forth in this Lease,
Tenant shall reimburse Landlord upon demand for any and all taxes payable
by Landlord (other than net income taxes) whether or not now customary or
within the contemplation of the parties hereto: (1) imposed upon, measured
by or reasonably attributable to the cost or value of Tenant's equipment,
furniture, trade fixtures and other personal property located in the
Premises or by the cost or value of any leasehold improvements made in or
to the Premises by or for Tenant, other than Building-standard improvements
made by Landlord, if any, regardless of whether title to such improvements
shall be in Tenant or Landlord; (2) imposed upon or measured by the Base
Rent payable hereunder, including, without limitation, any gross income tax
or excise tax levied by the city or county in which the Project is located,
the federal government or any other governmental body with respect to the
receipt of such rental; (3) imposed upon or with respect to the possession,
leasing, operation, management, maintenance, alteration, repair, use or
occupancy by Tenant of the Premises or any portion thereof; or (4) imposed
upon this transaction or any document to which Tenant is a party creating
or transferring an interest or an estate in the Premises.
(d) Lease Year. "Lease Year" means each consecutive twelve month period
beginning with the Commencement Date, except that if the Commencement Date is
not the first day of a calendar month, then the first Lease Year shall be the
period from the Commencement Date through the final day of the calendar month
during which the first anniversary of the Commencement Date occurs, and
subsequent Lease Years shall be each succeeding twelve month period during the
Term following the first Lease Year.
(e) Fiscal Year. "Fiscal Year" means each calendar year during which any
portion of the Term occurs (e.g., the first Fiscal Year shall be the calendar
year during which the Commencement Date occurs).
2.4 Computation of Base Rent and Rent Adjustments.
(a) Prorations. If (i) the Commencement Date is a date other than January
1, (ii) the Termination Date is a date other than December 31, (iii) this Lease
terminates early, or (iv) the size of the Premises increases or decreases, then
in each such event, the Base Rent, the Operating Cost Share Rent and Tax Share
Rent shall be equitably adjusted to reflect such event on a basis determined by
Landlord to be consistent with the principles underlying the provisions of this
Section 2.
(b) Interest Rate. Any sum due from Tenant to Landlord not paid when due
shall bear interest from the date due until paid at the lesser of twelve percent
(12%) per annum or the maximum rate permitted by law (the "Interest Rate").
(c) Intentionally omitted.
(d) Books and Records. Landlord shall maintain books and records reflecting
the Operating Costs and Taxes in accordance with sound accounting and management
practices. Tenant and a certified public accountant employed by a certified
public accounting firm and working on a non-contingency fee basis shall have the
right to inspect Landlord's records at Landlord's applicable local office or
other location within the County of Santa Clara, California, designated by
Landlord upon at least seventy-two (72) hours' prior notice during normal
business hours during the ninety (90) days following Landlord's delivery of the
Annual Expense Statement to Tenant. The results of any such inspection shall be
kept strictly confidential by Tenant and its agents, and Tenant and its
certified public accountant must agree, in their contract for such services, to
such confidentiality restrictions and shall specifically agree that the results
shall not be made available to any other tenant of the Project (and in
connection with the foregoing, prior to exercising its rights hereunder, Tenant
and its agents shall sign a confidentiality agreement reasonably acceptable to
Landlord). Unless Tenant sends to Landlord any written exception to an Annual
Expense Statement within said ninety (90) day period, such Annual Expense
Statement shall be deemed final and accepted by Tenant and Tenant waives any
other rights pursuant to applicable law to inspect Landlord's books and records
and/or to contest the amount of Operating Costs and/or Taxes due hereunder.
Tenant shall pay the amount shown on any Annual Expense Statement in the manner
prescribed in this Lease, whether or not Tenant takes any such written
exception, without any prejudice to such exception. If Tenant makes a timely
exception, Landlord shall, within thirty (30) days after Landlord's receipt of
Tenant's written exception or as soon after such thirty (30) day period as is
reasonably practicable, cause an independent certified public accountant to
issue a final and conclusive resolution of Tenant's exception. If, according to
such accountant, Landlord's original determination of annual Operating Costs and
Taxes overstated the amounts thereof, in the aggregate, by seven percent (7%) or
less or understated the amounts thereof, then Tenant shall pay the cost of the
certification, and, in the case of an understatement, shall pay to Landlord the
deficiency in Tenant's payment of Operating Costs and Taxes within thirty (30)
days following Tenant's receipt of such certification. If, according to such
certification, Landlord's original determination of annual Operating Costs and
Taxes overstated the amounts thereof, in the aggregate, by more than seven
percent (7%), then Landlord shall pay the cost of the certification. In the
event of Landlord's overstatement, Landlord shall, at its election, either
refund the amount of Tenant's overpayment of Operating Costs and Taxes within
thirty (30) days after such certification or, if this Lease is still in effect,
credit such overpayment against Tenant's subsequent obligations to pay Operating
Costs and Taxes.
(e) Miscellaneous. So long as an Event of Default under Section 12.1(a)
below exists under this Lease, Tenant shall not be entitled to any refund of any
amount from Landlord until Tenant cures such Event of Default. If this Lease is
terminated for any reason prior to the annual determination of Operating Cost
Share Rent or Tax Share Rent, either party shall pay the full amount due to the
other within fifteen (15) days after Landlord's notice to Tenant of the amount
when it is determined. Landlord may commingle any payments made with respect to
Operating Cost Share Rent and Tax Share Rent, without payment of interest.
2.5 Additional Rent Upon Default by Tenant. Landlord and Tenant acknowledge
that to induce Tenant to enter into this Lease, and in consideration of Tenant's
agreement to perform all of the terms, covenants and conditions to be performed
by Tenant under this Lease, as and when performance is due during the Term,
Landlord has incurred (or will incur) significant costs, including, without
limitation, the following: (a) payment of the Construction Allowance (as
described in the Tenant Improvement Agreement), (b) commissions to Tenant's real
estate broker, and (c) attorneys' fees and related costs incurred and/or paid by
Landlord in connection with the negotiation and preparation of this Lease
(collectively, the "Inducements"). Landlord and Tenant further acknowledge that
Landlord would not have granted the Inducements to Tenant but for Tenant's
agreement to perform all of the terms, covenants, conditions and agreements to
be performed by it under this Lease for the entire Term, and that Landlord's
agreement to incur such expenditures and grant such concessions is, and shall
remain, conditioned upon Tenant's faithful performance of all of the terms,
covenants, conditions and agreements to be performed by Tenant under this Lease
for the entire Term. Accordingly, if an Event of Default by Tenant shall occur
hereunder, Landlord shall be relieved of any unfulfilled obligation to grant
Inducements hereunder, or to incur further expenses in connection therewith, and
Tenant shall pay, as liquidated damages for Landlord's granting the Inducements
and not as a penalty, within ten (10) days after the occurrence of the Event of
Default, as Additional Rent, the unamortized amount of those Inducements
incurred or granted prior to the date of the Event of Default (the "Pre-Default
Inducements"). Landlord may or, at Tenant's request, shall, after the occurrence
of an Event of Default, forward a statement to Tenant setting forth the amount
of the Pre-Default Inducements, but the failure to deliver such a statement
shall not be or be deemed to be a waiver of the right to collect the unamortized
amount of the Pre-Default Inducements or to extend the date upon which such
amount shall be due and payable. For purposes of this Section 2.5, the
unamortized amount of the Pre-Default Inducements shall equal the remaining
principal component, measured on the date of the Event of Default, of a
level-payment amortization over the initial Term of this Lease of a principal
amount equal to the Pre-Default Inducements, including interest at the rate of
twelve percent (12%) per annum. Notwithstanding the foregoing, Landlord agrees
that it will seek to enforce its right to recover Pre-Default Inducements only
in connection with a bankruptcy of Tenant where this Lease is rejected or deemed
rejected under Section 362 of the Bankruptcy Code.
3. PREPARATION AND CONDITION OF PREMISES; TENANT'S POSSESSION; REPAIRS AND
MAINTENANCE.
3.1 Condition of Premises. Except as specified in this Section 3.1 below,
Landlord is leasing the Premises to Tenant "as is", without any obligation to
alter, remodel, improve, repair or decorate any part of the Premises and without
any express or implied representations or warranties of any kind, including,
without limitation, any representation or warranty regarding the condition of
the Buildings or the Project or the suitability of any of the foregoing for the
conduct of Tenant's business; provided, however, that, as of the Premises
Delivery Date, the Premises shall comply in all material respects with all
applicable Governmental Requirements (as interpreted by applicable governmental
or quasi-governmental authorities as of the Premises Delivery Date), without
regard to any specific manner of use of the Premises by Tenant (e.g., as a
"place of public accommodation" under the Americans with Disabilities Act (the
"ADA")). If Landlord or Tenant receives written notice from any governmental or
quasi-governmental authority that any portion of the Premises violated
Governmental Requirements as of the Premises Delivery Date, Landlord shall not
be liable to Tenant for any damages, but Landlord, at no cost to Tenant, shall,
as Tenant's sole remedy, perform such work or take such other action as may be
necessary to cure such violation, but only to the extent that such violation
materially and adversely affects Tenant's use or occupancy of the Premises.
3.2 Tenant's Possession. Tenant shall be entitled to possession of the
Premises upon commencement of the Term, together with the nonexclusive right to
use, in common with Landlord, other tenants, and occupants of the Project, the
common areas of the Project, as such common areas may be changed from time to
time, subject to the applicable provisions of this Lease (including, without
limitation, Section 27 below). Tenant's taking possession of any portion of the
Premises shall be conclusive evidence that the Premises were in good order,
repair and condition.
3.3 Repairs and Maintenance.
(a) Tenant's Obligations.
(i) Except to the extent expressly Landlord's obligation under Section
3.3(b) below, Tenant shall, throughout the Term at its sole cost and
expense, (1) keep and maintain the Premises in good order and condition,
and repair and replace every part thereof ("Tenant's Repair Obligations"),
including, without limitation, the following: (A) glass, windows, window
frames, window casements (including the repairing, resealing, cleaning and
replacing of both interior and exterior windows) and skylights; (B)
interior and exterior doors, door frames and door closers; (C) interior
lighting (including, without limitation, light bulbs and ballasts); (D) the
Building Systems (as defined in Section 3.3(b) below), or portions of the
Building Systems, that exclusively serve the Premises, including, without
limitation, any specialty or supplemental Building Systems installed by or
for Tenant and all heating, ventilating and air conditioning ("HVAC")
systems and equipment and all electrical facilities and equipment,
including lighting fixtures, lamps, fans and any exhaust equipment and
systems, electrical motors and all other appliances and equipment of every
kind and nature located in, upon or about the Premises; (E) all
communications systems serving the Premises; (F) all of Tenant's security
systems in or about or serving the Premises; (G) Tenant's signage; and (H)
interior demising walls and partitions (including painting and
wallcoverings), equipment, floors, and any roll-up doors, ramps and dock
equipment, (2) furnish all expendables, including light bulbs, paper goods
and soaps, used in the Premises, and (3) to the extent that Landlord
notifies Tenant in writing of its intention to no longer arrange for such
monitoring, cause the fire alarm systems serving the Premises to be
monitored by a monitoring or protective services firm approved by Landlord
in writing.
(ii) Tenant shall also be responsible for all pest control within the
Premises, and for all trash removal and disposal from the Premises. With
respect to any HVAC systems and equipment exclusively serving the Premises,
Tenant shall obtain HVAC systems preventive maintenance contracts with
bimonthly or monthly service in accordance with manufacturer
recommendations, which shall be subject to the reasonable prior written
approval of Landlord and paid for by Tenant, and which shall provide for
and include replacement of filters, oiling and lubricating of machinery,
parts replacement, adjustment of drive belts, oil changes and other
preventive maintenance, including annual maintenance of duct work, interior
unit drains and caulking of sheet metal, and recaulking of jacks and vents
on an annual basis. Tenant shall have the benefit of all warranties
available to Landlord regarding the HVAC systems and equipment.
(iii) Tenant's repair, maintenance and replacement obligations shall
be performed under the supervision and subject to the prior approval of
Landlord, and within any reasonable period of time specified by Landlord;
provided, however, that (1) with respect to the Building Systems that
exclusively serve the Premises, Landlord may elect to perform all or some
of the foregoing maintenance, repairs and replacement itself, at Tenant's
expense, and (2) if Tenant fails to perform Tenant's Repair Obligations,
Landlord may immediately perform any such work at Tenant's expense. Tenant
shall pay to Landlord all costs and expenses incurred by Landlord and
required to be paid by Tenant under this Section 3.3(a) within ten (10)
days after receipt of an invoice therefor.
(b) Landlord's Obligations.
(i) Subject to the provisions of Sections 3.1(a), 9 and 10 hereof,
Landlord shall maintain, repair and replace the following items
("Landlord's Repair Obligations"): (1) the non-structural portions of the
roof of the Buildings, including the roof coverings (provided that Tenant
installs no additional air conditioning or other equipment on the roof that
damages the roof coverings, in which event Tenant shall pay all costs
resulting from the presence of such additional equipment); (2) the HVAC,
plumbing, sewer, drainage, electrical, fire protection, elevator,
escalator, life safety and security systems and equipment and other
mechanical, electrical and communications systems and equipment
(collectively, the "Building Systems") serving the Buildings and/or the
Project, excluding any specialty or supplemental Building Systems installed
by or for Tenant and also excluding the Building Systems (or portions of
the Building Systems) that exclusively serve the Premises; and (3) the
parking areas of the Project, pavement, landscaping, sprinkler systems,
sidewalks, driveways, curbs, and lighting systems in the common areas of
the Project. Landlord's Repair Obligations also includes the routine repair
and maintenance of the load bearing and exterior walls of the Buildings,
including, without limitation, any painting, sealing, patching and
waterproofing of such walls.
(ii) Subject to the provisions of Sections 3.1(a), 9 and 10 hereof,
Landlord, at its own cost and expense, agrees to repair and maintain the
structural portions of the roof (specifically excluding the roof
coverings), the foundation, the footings, the floor slab, and the load
bearing walls and exterior walls of the Buildings (excluding any glass and
any routine maintenance, including, without limitation, any painting,
sealing, patching and waterproofing of such walls); provided, however, that
subject to the provisions of Section 8.6 below, any damage arising from the
acts of Tenant or any Tenant Parties (as defined in Section 8.2(a) below)
shall be repaired by Landlord at Tenant's sole expense, and Tenant shall
pay to Landlord all costs and expenses of any such repair within ten (10)
days after receipt of an invoice therefor. Landlord may, but shall not be
required to, enter the Premises at all reasonable times to make such
repairs, alterations, improvements or additions to the Buildings or to any
equipment located in the Buildings as Landlord shall desire or deem
necessary or as Landlord may be required to do by governmental or
quasi-governmental authority or court order or decree. The cost of any
repairs made by Landlord on account of Tenant's default, or on account of
the misuse or neglect by Tenant or any Tenant Parties anywhere in the
Project, shall constitute Additional Rent payable by Tenant within ten (10)
days after receipt of an invoice therefor. As a condition precedent to all
of Landlord's repair and maintenance obligations under this Lease, Tenant
must have notified Landlord of the need of such repairs or maintenance.
(iii) Tenant hereby waives any and all rights under and benefits of
subsection 1 of Section 1932 and Sections 1941 and 1942 of the California
Civil Code and any similar or successor law, statute or ordinance now or
hereafter in effect regarding Tenant's right to make repairs and deduct the
cost of such repairs from the Rent due under this Lease.
4. SERVICES AND UTILITIES. Beginning on the Premises Delivery Date, Tenant
shall promptly pay, as the same become due, all charges for water, gas,
electricity, telephone, sewer service, waste pick-up and any other utilities,
materials and services furnished directly to or used by Tenant on or about the
Premises during the Term, including, without limitation, (a) meter, use and/or
connection fees, hook-up fees, or standby fees, and (b) penalties for
discontinued interrupted service. If any utility service is not separately
metered to the Premises, then Tenant shall pay its pro rata share of the cost of
such utility service with all others served by the service not separately
metered. However, if Landlord reasonably determines that Tenant is using a
disproportionate amount of any utility service (whether or not separately
metered), then Landlord, at its election, may (i) periodically charge Tenant, as
Additional Rent, a sum equal to Landlord's reasonable estimate of the cost of
Tenant's excess use of such utility service, and/or (ii) install, at Tenant's
expense, a separate meter to measure the utility service supplied to the
Premises. Any interruption or cessation of utilities resulting from any causes,
including any entry for repairs pursuant to this Lease, and any renovation,
redecoration or rehabilitation of any area of the Project, shall not render
Landlord liable for damages to either person or property or for interruption or
loss to Tenant's business, nor be construed as an eviction of Tenant, nor work
an abatement of any portion of Rent, nor relieve Tenant from fulfillment of any
covenant or agreement hereof; provided, however, that if (1) an interruption of
the Project services occurs, (2) such interruption prevents Tenant from
occupying, and Tenant does not occupy, all or a material portion of the Premises
for the Permitted Use for a period of at least seven (7) consecutive days, and
(3) such interruption was caused solely by the negligence or willful misconduct
of Landlord, its agents or employees, then monthly Rent shall thereafter be
abated until the earlier of (i) the date on which such interruption ceases or
(ii) the date on which Tenant resumes occupying all or a material portion of the
Premises. Such abatement shall be in proportion to the ratio that the amount of
rentable square feet of the Premises that Tenant is prevented from occupying and
does not occupy for the Permitted Use bears to the total rentable square feet of
the Premises; provided, however, that if the portion of the Premises that Tenant
is prevented from occupying and does not occupy for the Permitted Use is so
significant as to prevent Tenant from conducting business in the Premises, then
the full amount of monthly Rent shall be abated during the abatement period
described in the preceding sentence. Tenant acknowledges and agrees that the
abatement set forth in this Section shall be its sole remedy in the event of a
cessation or interruption in the provision of Project services, and Tenant shall
not have any right to offset or deduct any costs or expenses incurred by Tenant
in connection therewith against Rent.
5. ALTERATIONS AND REPAIRS.
5.1 Landlord's Consent and Conditions.
(a) Tenant shall not make any improvements or alterations to the Premises
(the "Alterations") without in each instance submitting plans and specifications
for the Alterations to Landlord and obtaining Landlord's prior written consent.
Tenant shall pay Landlord's standard charge (or, if Landlord does not have a
standard charge, then Landlord's actual costs incurred) for review of all of the
plans and all other items submitted by Tenant. Landlord will be deemed to be
acting reasonably in withholding its consent for any Alterations which (i)
impacts the base structural components or the Building Systems, (ii) impacts any
other tenant's premises, (iii) is visible from outside the Premises, or (iv)
would utilize building materials or equipment which are inconsistent with
Landlord's standard building materials and equipment for the Project.
(b) Tenant shall pay for the cost of all Alterations, including the cost of
any and all approvals, permits, fees and other charges which may be required as
a condition of performing such Alterations.
(c) The following requirements shall apply to all Alterations:
(i) At least seven (7) days before beginning any Alterations, Tenant
shall furnish to Landlord (1) written notice of the expected commencement
date of the Alterations to permit Landlord to post and record a notice of
nonresponsibility, (2) building permits, and (3) certificates of insurance
satisfactory to Landlord.
(ii) Tenant shall not take any action which would violate Landlord's
labor contracts or which would cause a work stoppage, picketing, labor
disruption or dispute, or interfere with Landlord's or any other tenant's
or occupant's business or with the rights and privileges of any person
lawfully in the Project ("Labor Disturbance"). Tenant shall take the
actions necessary to resolve any Labor Disturbance, and shall have pickets
removed and, at the request of Landlord, immediately terminate any work in
the Premises that gave rise to the Labor Disturbance, until Landlord gives
its written consent for the work to resume. Tenant shall have no claim for
damages against Landlord or any of the Landlord Parties as a result of the
above actions.
(iii) The Alterations shall be performed in a good and workmanlike
manner, meeting the standard for construction and quality of materials in
the Project, and shall comply with all insurance requirements and all
applicable laws, ordinances, regulations or requirements of the United
States of America, the State of California, or the ordinances, regulations
or requirements of the local municipal or county governing body or other
lawful authorities having jurisdiction over the Project, including, without
limitation, any such laws, ordinances, regulations or requirements relating
to hazardous materials or substances, as those terms are defined by
applicable laws now or hereafter in effect (collectively, "Governmental
Requirements").
(iv) Tenant shall perform all Alterations so as to minimize or prevent
disruption to other tenants, and Tenant shall comply with all reasonable
requests of Landlord in response to complaints from other tenants.
(v) Tenant shall perform all Alterations in compliance with any
reasonable "Policies, Rules and Procedures for Construction Projects" which
may be in effect at the time the Alterations is performed.
(vi) All Alterations shall be performed only by contractors or
mechanics approved by Landlord, which approval shall not be unreasonably
withheld, conditioned or delayed; provided, however, that (1) Landlord may,
in its sole discretion, specify engineers, general contractors,
subcontractors, and architects to perform work affecting the Building
Systems; and (2) if Landlord consents to any Alterations that requires work
to be performed outside the Premises, Landlord may elect to perform such
work at Tenant's expense.
(vii) Tenant shall permit Landlord to supervise all Alterations,
including, without limitation, the right (but not an obligation) to inspect
the construction work during the progress thereof, and to require
corrections of faulty construction or any material deviation from the plans
for such Alterations as approved by Landlord; provided, however, that no
such inspection shall be deemed to create any liability on the part of
Landlord, or constitute a representation by Landlord or any person hired to
perform such inspection that the work so inspected conforms with such plans
or complies with any Governmental Requirements, and no such inspection
shall give rise to a waiver of, or estoppel with respect to, Landlord's
continuing right at any time or from time to time to require the correction
of any faulty work or any material deviation from such plans.
(viii) Tenant shall reimburse Landlord for actual and reasonable costs
incurred by Landlord in connection with its management and supervision of
the progress of the Alterations; provided, however, that Tenant shall have
no obligation to pay Landlord under this Section 5.1(c)(viii) in the case
of Alterations costing less than Twenty-Five Thousand Dollars ($25,000.00).
(ix) Upon completion, Tenant shall furnish Landlord with contractor's
affidavits and full and final statutory waivers of liens, as-built plans
and specifications, and receipted bills covering all labor and materials,
and all other close-out documentation related to the Alterations, including
any other information required under any "Policies, Rules and Procedures
for Construction Projects" which may be in effect at the time.
5.2 No Liens. Tenant has no authority to cause or permit any lien or
encumbrance of any kind to affect Landlord's interest in the Project; any such
lien or encumbrance shall attach to Tenant's interest only. If any mechanic's
lien shall be filed or claim of lien made for work or materials furnished to
Tenant, then Tenant shall at its expense within ten (10) days thereafter either
discharge or contest the lien or claim. If Tenant contests the lien or claim,
then Tenant shall (a) within such ten (10) day period, provide Landlord adequate
security for the lien or claim, (b) contest the lien or claim in good faith by
appropriate proceedings that operate to stay its enforcement, and (c) pay
promptly any final adverse judgment entered in any such proceeding. If Tenant
does not comply with these requirements, Landlord may discharge the lien or
claim, and the amount paid, as well as attorney's fees and other expenses
incurred by Landlord, shall constitute Additional Rent payable by Tenant on
demand.
5.3 Ownership of Improvements. All Alterations as defined in this Section
5, partitions, related hardware, and all other improvements and all fixtures,
except trade fixtures, furniture and other personal property (which shall remain
Tenant's property), constructed in the Premises by either Landlord or Tenant,
(a) shall, subject to Tenant's right to use and depreciate (to the extent paid
for by Tenant) the same during the Term, become Landlord's property upon
installation without compensation to Tenant, unless Landlord consents otherwise
in writing, and (b) shall, at Landlord's option, either (i) be surrendered to
Landlord with the Premises at the termination of this Lease or of Tenant's right
to possession, or (ii) be removed in accordance with Section 14 below; provided,
however, that if Tenant's request for Landlord's approval of any proposed
Alterations contains a request, in all capital letters, that Landlord identify
any portion of such Alterations that Landlord will require Tenant to remove as
provided above, then Landlord will, at the time it approves such Alterations,
identify such portion of the Alterations, if any, that Landlord will require
Tenant to so remove.
6. USE OF PREMISES.
6.1 Limitation on Use. Tenant shall use the Premises only for the Permitted
Use stated in the Schedule and Tenant shall not use or permit the Premises or
the Project to be used for any other purpose or purposes whatsoever without the
prior written consent of Landlord, which may be withheld in Landlord's sole
discretion. Tenant shall not allow any use of the Premises which will negatively
affect the cost of coverage of Landlord's insurance on the Project. Tenant shall
not allow any inflammable or explosive liquids or materials to be kept on the
Premises. Tenant shall not allow any use of the Premises which would cause the
value or utility of any part of the Premises to diminish or would interfere with
any other tenant or with the operation of the Project by Landlord. Tenant shall
not permit any nuisance or waste to occur in, on, or about the Project, or allow
any offensive noise or odor in or around the Project. At the end of each
business day, or more frequently if necessary, Tenant shall deposit all garbage
and other trash (excluding any inflammable, explosive and/or hazardous
materials) in trash bins or containers approved by Landlord in locations
designated by Landlord from time to time. If any governmental authority shall
deem the Premises to be a "place of public accommodation" under the Americans
with Disabilities Act ("ADA") or any other comparable law as a result of
Tenant's use, Tenant shall either modify its use to cause such authority to
rescind its designation or be responsible for any alterations, structural or
otherwise, required to be made to the Premises under such laws.
6.2 Signs. Tenant shall not place on any portion of the Premises any sign,
placard, lettering, banner, displays, graphic, decor or other advertising or
communicative material which is visible from the exterior of the Premises
without Landlord's prior written approval. Any approved signs shall strictly
conform to all Governmental Requirements, any CC&R's recorded against the
Project, and Landlord's signage standards in effect at the time, and shall be
installed and removed at Tenant's expense. Tenant, at its sole expense, shall
maintain such signs in good condition and repair during the Term. Prior to the
expiration or earlier termination of this Lease, Tenant at its sole cost shall
remove all of its exterior signage and repair any and all damage caused to the
Buildings and/or Project (including and fading or discoloration) by such signs
and/or the removal of such signs from the Building and/or Project.
6.3 Parking. Tenant shall have the non-exclusive right to park in the
Project's parking facilities in common with other tenants of the Project upon
terms and conditions, as may from time to time be established by Landlord.
Tenant agrees not to overburden the parking facilities (i.e., use more than the
number of unassigned parking stalls indicated on the Schedule) and agrees to
cooperate with Landlord and other tenants in the Project in the use of the
parking facilities. Landlord reserves the right in its reasonable discretion to
determine whether the parking facilities are becoming crowded and to allocate
and assign parking passes among Tenant and the other tenants in the Project.
Tenant's use of the parking facilities shall be at no charge, provided that
Landlord shall have the right to charge Tenant the portion that Landlord deems
allocable to Tenant of any charges (e.g., fees or taxes) imposed by the Regional
Air Quality Control Board or other governmental or quasi-governmental agency in
connection with the parking facilities (e.g., in connection with operation or
use of the parking facilities). Landlord shall not be liable to Tenant, nor
shall this Lease be affected, if any parking is impaired by (or if any parking
charges are imposed as a result of) any moratorium, initiative, referendum, law,
ordinance, regulation or order passed, issued or made by any governmental or
quasi-governmental body. Tenant's continued right to use the parking spaces is
conditioned upon Tenant abiding by all rules and regulations which are
prescribed from time to time for the orderly operation and use of the parking
facility where the parking passes are located, including any sticker or other
identification system established by Landlord, Tenant's cooperation in seeing
that Tenant's employees and visitors also comply with such rules and regulations
and Tenant not being in default under this Lease. Landlord specifically reserves
the right to change the size, configuration, design, layout and all other
aspects of the Project parking facility at any time and Tenant acknowledges and
agrees that Landlord may, without incurring any liability to Tenant and without
any abatement of Rent under this Lease, from time to time, close-off or restrict
access to the Project parking facility for purposes of permitting or
facilitating any such construction, alteration or improvements. Landlord may
delegate its responsibilities hereunder to a parking operator in which case such
parking operator shall have all the rights of control attributed hereby to the
Landlord. The parking passes rented by Tenant pursuant to this Section 6.3 are
provided to Tenant solely for use by Tenant's own personnel and such passes may
not be transferred, assigned, subleased or otherwise alienated by Tenant without
Landlord's prior approval.
6.4 Prohibition Against Use of Roof and Structure of Buildings.
(a) Except as otherwise provided in this Lease, Tenant shall be prohibited
from using all or any portion of the roof of the Buildings or any portion of the
structure of the Buildings during the Term of this Lease (or any extensions
thereof) for any purposes (including without limitation for the installation,
maintenance and repair of a satellite dish and/or other telecommunications
equipment), without Landlord's prior written consent, which Landlord may
withhold in its sole and absolute discretion. Notwithstanding the foregoing, (a)
Landlord shall grant Tenant with reasonable access to the roof of the Buildings
as may be reasonably necessary to allow Tenant to perform its HVAC and other
maintenance obligations hereunder, provided that such access shall be subject to
any reasonable rules and restrictions that Landlord may impose from time to
time; and (b) Tenant may, subject to Landlord's reasonable installation, use and
removal requirements, use the roof for the installation and maintenance of
surveying and GPS equipment and monitors (including, without limitation, cable
and antenna connections) to service Tenant's business in the Premises. Landlord
has made no representations or promise as to the suitability or effectiveness of
any part of the roof for Tenant's proposed use, or as to any Governmental
Requirements applicable to Tenant's proposed use.
(b) Tenant shall submit to Landlord Tenant's plans and specifications for
the rooftop equipment, which must include, without limitation, the design, size
and features of the rooftop equipment and mounting structure, floor and power
load requirements, cabling installations, the means of affixing or mounting the
rooftop equipment, and the means of connecting the rooftop equipment to the
Building's electrical system and to the Premises. Tenant acknowledges and agrees
that Tenant's use of any portion of the roof of the Building shall be subject to
Landlord's reasonable approval of location, plans and installation pursuant to
Section 5 of this Lease and such rules and regulations as Landlord may
prescribe, including, without limitation, with regard to (a) the location, size,
type and methods of installation of the proposed rooftop equipment, (b)
requirements to prevent electrical, electromagnetic, radio frequency or other
interference with other telecommunication equipment on or about the Project, (c)
restrictions on penetration of the roof surface, (d) rooftop access rights, and
(e) removal requirements upon the expiration or earlier termination of this
Lease.
(c) Nothing herein shall limit or restrict Landlord's rights under Section
11.13, or require Landlord to obtain Tenant's consent prior to exercising such
rights.
(d) For the avoidance of doubt, Landlord acknowledges that, subject to the
foregoing and other applicable provisions of this Lease, Tenant may install and
maintain a GPS system and related equipment upon the roof of each Building to
the extent necessary to the operation of Tenant's business in the Premises.
7. GOVERNMENTAL REQUIREMENTS AND BUILDING RULES.
7.1 Compliance in Premises. Tenant shall, at its sole cost and expense, (1)
comply with all Governmental Requirements; with any occupancy certificate issued
for the Premises; and with the provisions of all recorded documents affecting
the Premises, insofar as any thereof relates to or affects the condition, use or
occupancy of the Premises; and (2) take all proper and necessary action to cause
the Premises, including any repairs, replacements, alterations and improvements
thereto, to be maintained, constructed, used and occupied in compliance with
applicable Governmental Requirements, including any applicable code and ADA
requirements, whether or not such requirements are based on Tenant's use of the
Premises, and further to assume all responsibility to ensure that the Premises
continues to comply with all Governmental Requirements, including applicable
code and ADA requirements, throughout the Term. Tenant shall be responsible, at
its sole cost and expense, to make all alterations to the Premises as are
required to comply with the governmental rules, regulations, requirements or
standards described in this Section 7.1. The judgment of any court of competent
jurisdiction or the admission of Tenant in any judicial action, regardless of
whether Landlord is a party thereto, that Tenant has violated any of said
governmental measures, shall be conclusive of that fact as between Landlord and
Tenant.
7.2 Compliance in Common Areas. Subject to reimbursement as an Operating
Cost as provided in Section 2 above, Landlord shall perform any work required
under any applicable Governmental Requirements, including the ADA, to be
performed in the common areas of the Project, except that Tenant shall be solely
responsible for all such compliance work which is required as a result of
Tenant's use or activities or which relate to the initial Tenant Improvements or
Tenant's proposed alterations or repairs. With respect to any code compliance
work required outside the Premises for which Tenant is responsible hereunder,
Landlord shall have the right to perform such work, or require that Tenant
perform such work with contractors, subcontractors, engineers and architects
approved by Landlord; and if Landlord elects to perform such work outside the
Premises, Tenant shall reimburse Landlord for the cost of such work within ten
(10) days following receipt of invoices therefor. Except as expressly provided
in this Lease, Landlord makes no representations or warranties regarding whether
the Project or the Premises complies with applicable Governmental Requirements
as of the date of this Lease.
7.3 Rules and Regulations. Tenant shall also comply with all reasonable
rules for the Project which may be established and amended from time to time by
Landlord. The present rules and regulations are contained in Exhibit B. Failure
by another tenant to comply with the rules or failure by Landlord to enforce
them shall not relieve Tenant of its obligation to comply with the rules or make
Landlord responsible to Tenant in any way. Landlord shall use reasonable efforts
to apply the rules and regulations uniformly with respect to Tenant and any
other tenants in the Project under leases containing rules and regulations
similar to this Lease. If Tenant performs alterations or repairs, Tenant shall
comply with the provisions of Section 5 of this Lease.
8. WAIVER OF CLAIMS; INDEMNIFICATION; INSURANCE.
8.1 Waiver of Claims. Neither Landlord nor the other Landlord Parties (as
defined below) shall be liable to Tenant or to any Tenant Parties (as defined
below), and Tenant waives all claims against Landlord and such other Landlord
Parties, for any injury to or death of any person or for loss of use of or
damage to or destruction of property in or about the Premises or Project by or
from any cause whatsoever, including without limitation, earthquake or earth
movement, gas, fire, oil, electricity or leakage from the roof, walls, basement
or other portion of the Premises or Project, except only, with respect to any
Landlord Party, to the extent such injury, death or damage is caused by the
gross negligence or willful misconduct of such Landlord Party and not covered by
the insurance required to be carried by Tenant hereunder or except to the extent
such limitation on liability is prohibited by law. The provisions of this
Section 8.1 shall survive the expiration or earlier termination of this Lease
until all claims within the scope of this Section 8.1 are fully, finally, and
absolutely barred by the applicable statutes of limitations.
8.2 Indemnification.
(a) Tenant shall indemnify, protect, defend (by counsel reasonably
satisfactory to Landlord) and hold harmless Landlord and its officers,
directors, employees and agents (each, a "Landlord Party" and collectively, the
"Landlord Parties"), and each of them, against any and all obligations, losses,
claims, actions (including remedial or enforcement actions of any kind and
administrative or judicial proceedings, suits, orders or judgments), causes of
action, liabilities, penalties, damages (including consequential and punitive
damages), costs and expenses (including reasonable attorneys' and consultants'
fees and expenses) (collectively, "Claims") arising from any of the following,
including, but not limited to, Claims brought by or on behalf of employees of
Tenant, with respect to which Tenant waives, for the benefit of the Landlord
Parties, any immunity to which Tenant may be entitled under any worker's
compensation laws: (i) any cause in, on or about the Premises, (ii) any act or
omission or negligence of Tenant or any person or entity claiming by or through
Tenant (including any assignee or subtenant), or any of their respective
members, partners, employees, contractors, agents, customers, visitors,
licensees or other persons in or about the Project by reason of Tenant's
occupancy of the Premises (each a "Tenant Party" and, collectively, "Tenant
Parties"), or (iii) Tenant's breach of its obligations under this Lease, either
prior to, during, or after the expiration of the Lease Term (including, without
limitation, Tenant's failure to surrender the Premises in accordance with
Section 14 below); provided, however, that, with respect to any Landlord Party,
Tenant's obligations under this Section shall be inapplicable to the extent such
Claims arise from the gross negligence or willful misconduct of such Landlord
Party and are not covered by the insurance required to be carried by Tenant
hereunder, or to the extent such obligations are prohibited by applicable law.
(b) Tenant's duty to defend Landlord and the other Landlord Parties under
this Section 8.2 is separate and independent of Tenant's duty to indemnify the
Landlord Parties. The duty to defend includes claims for which the Landlord
Parties may be liable without fault or strictly liable. The duty to defend
applies regardless of whether the issues of negligence, liability, fault,
default, or other obligation on the part of Tenant Parties have been determined.
The duty to defend applies immediately, regardless of whether any Landlord
Parties have paid any sums or incurred any detriment arising out of or relating
(directly or indirectly) to any Claims. The parties expressly intend that
Landlord Parties shall be entitled to obtain summary adjudication or summary
judgment regarding Tenant's duty to defend the Landlord Parties at any stage of
any claim or suit within the scope of this Section.
(c) Tenant's obligations under this Section shall survive the expiration or
earlier termination of this Lease until all Claims within the scope of this
Section 8.2 are fully, finally, and absolutely barred by the applicable statutes
of limitations.
8.3 Tenant's Insurance. Tenant shall maintain insurance as follows, with
such other terms, coverages and insurers, as Landlord shall reasonably require
from time to time:
(a) Commercial General Liability Insurance, with (i) Contractual Liability
including the indemnification provisions contained in this Lease, (ii) a
severability of interest endorsement, and (iii) limits of not less than Five
Million Dollars ($5,000,000) combined single limit per occurrence, not less than
Five Million Dollars ($5,000,000) in the aggregate for bodily injury, sickness
or death, and property damage, and umbrella coverage of not less than Five
Million Dollars ($5,000,000).
(b) Special Causes of Loss (ISO form CP 10 30 10/00 or its substantive
equivalent) Insurance covering the replacement cost of all leasehold
improvements, trade fixtures and personal property in or on the Premises, with a
deductible not greater than Twenty-Five Thousand Dollars ($25,000.00).
(c) Business Income insurance and extra expense coverage with coverage
amounts that shall reimburse Tenant for all rental, expense and other payment
obligations of Tenant under this Lease for a period of not less than one (1)
year.
(d) Workers' compensation or similar insurance in form and amounts required
by law, and Employer's Liability with not less than the following limits:
Each Accident: $500,000
Disease--Policy Limit: $500,000
Disease--Each Employee: $500,000
Tenant's insurance shall be primary and not contributory to that carried by
Landlord, its agents, or mortgagee. Landlord, Landlord's building manager, if
any, and, if Landlord requests, any Security Holder (as defined in Section 16.1
below), shall be named as additional insureds under the insurance required of
the Tenant in Section 8.3(a). The company or companies writing any insurance
which Tenant is required to maintain under this Lease, as well as the form of
such insurance, shall at all times be subject to Landlord's approval, and any
such company shall be licensed to do business in the State of California. Such
insurance companies shall have a A.M. Best rating of A VI or better.
(e) Tenant shall cause any contractor of Tenant performing work on the
Premises to maintain insurance as follows, with such other terms, coverages and
insurers, as Landlord shall reasonably require from time to time:
(i) Commercial General Liability Insurance, including contractor's
liability coverage, contractual liability coverage, completed operations
coverage, broad form property damage endorsement, and contractor's
protective liability coverage, to afford protection with limits, for each
occurrence, of not less than One Million Dollars ($1,000,000) with respect
to personal injury, death or property damage.
(ii) Workers' compensation or similar insurance in form and amounts
required by law, and Employer's Liability with not less than the following
limits:
Each Accident: $500,000
Disease--Policy Limit: $500,000
Disease--Each Employee: $500,000
Such insurance shall contain a waiver of subrogation provision in favor of
Landlord and its agents. Tenant's contractor's insurance shall be primary and
not contributory to that carried by Tenant, Landlord, their agents or
mortgagees. Tenant and Landlord, Landlord's building manager, if any, and, if
Landlord requests, any Security Holder shall be named as additional insured on
Tenant's contractor's insurance policies.
8.4 Insurance Certificates. Tenant shall deliver to Landlord certificates
evidencing all required insurance no later than five (5) days prior to the
Commencement Date and each renewal date. Each certificate will provide for
thirty (30) days prior written notice of cancellation to Landlord and Tenant.
8.5 Landlord's Insurance. Subject to reimbursement as an Operating Cost in
accordance with the provisions of Section 2 hereof, Landlord shall procure and
maintain in effect throughout the Term of this Lease commercial general
liability insurance, property insurance and/or such other types of insurance as
Landlord reasonably deems necessary or advisable to carry. Such coverages shall
be in such amounts, from such companies and on such other terms and conditions
as Landlord may from time to time reasonably determine, and Landlord shall have
the right, but not the obligation, to change, cancel, decrease or increase any
insurance coverages in respect of the Buildings, add additional forms of
insurance as Landlord shall deem reasonably necessary, and/or obtain umbrella or
other policies covering both the Buildings and other assets owned by or
associated with Landlord or its affiliates, in which event the cost thereof
shall be equitably allocated.
8.6 Waiver of Subrogation. Landlord and Tenant hereby waive and release any
and all rights of recovery against the other party, including officers,
employees, agents and authorized representatives (whether in contract or tort)
of such other party, that arise or result from any and all loss of or damage to
any property of the waiving party located within or constituting part of the
Buildings, to the extent of amounts payable under a standard ISO Commercial
Property insurance policy, or such additional property coverage as the waiving
party may carry (with a commercially reasonable deductible), whether or not the
party suffering the loss or damage actually carries any insurance, recovers
under any insurance or self-insures the loss or damage. Each party shall have
their property insurance policies issued in such form as to waive any right of
subrogation as might otherwise exist. This mutual waiver is in addition to any
other waiver or release contained in this Lease.
9. FIRE AND OTHER CASUALTY.
9.1 Termination. If a fire or other casualty causes damage to the Premises,
and sufficient insurance proceeds will be available to Landlord to cover the
cost of restoration, Landlord shall engage a registered architect to estimate,
within one (1) month of the casualty, to both Landlord and Tenant the amount of
time needed to restore the Premises to tenantability, using standard working
methods without the payment of overtime and other premiums. If the time needed
exceeds nine (9) months from the date of the casualty, or two (2) months
therefrom if the casualty occurred during the last twelve (12) months of the
Lease, then either Landlord or Tenant may terminate this Lease, by notice to the
other party within ten (10) days after the notifying party's receipt of the
architect's estimate. If sufficient insurance proceeds will not be available to
Landlord to cover the cost of restoration to the Premises, Landlord may
terminate this Lease by written notice to Tenant. Any termination pursuant to
this Section 9.1 shall be effective thirty (30) days from the date of such
termination notice and Rent shall be paid by Tenant to that date, with an
abatement for any portion of the Premises which has been rendered untenantable
as a result of the casualty (except to the extent that (a) the casualty was
caused by the gross negligence or intentional misconduct of Tenant, its agents,
employees, contractors, subtenants or assignees, or (b) provided the same does
not result from Landlord's breach of its obligations under Section 8.5 above,
Landlord does not receive insurance proceeds sufficient to cover the rent
interruption during such period).
9.2 Restoration. If a casualty causes damage to the Premises but this Lease
is not terminated for any reason, then subject to the rights of any mortgagees
or ground lessors, Landlord shall obtain the applicable insurance proceeds and
diligently restore the Premises to substantially their prior condition, except
for modifications required by then applicable Governmental Requirements;
provided, however, that, within ten (10) days following notice to Tenant from
Landlord (whether or not this Lease is terminated pursuant to Section 9.1
above), Tenant shall irrevocably and unconditionally assign to Landlord (or to
any party designated by Landlord) all insurance proceeds payable to Tenant under
Tenant's insurance required under Section 8.3(b) above which pertain to the
repair and restoration of the leasehold improvements in the Premises, including
any leasehold improvements performed by or on behalf of Tenant pursuant to
Section 5 above; and provided further, that if the cost of repair and
restoration by Landlord of the leasehold improvements in the Premises exceeds
the amount of insurance proceeds received by Landlord from Tenant's insurance
carrier, the cost of such repair and restoration shall be promptly paid by
Tenant to Landlord, but in any event prior to Landlord's commencement of repair
of the damage. Notwithstanding the foregoing, Landlord shall have no obligation
with respect to, and if Landlord elects or is required to perform any
restoration hereunder, Tenant shall be responsible for and shall, repair and
replace at its sole cost all of Tenant's equipment, furniture, trade fixtures
and other personal property in the Premises, including, without limitation, any
telecommunications wires, cables and related devices located in or serving the
Premises. Rent shall be abated on a per diem basis during the restoration for
any portion of the Premises which is untenantable, except to the extent that (a)
the casualty was caused by the gross negligence or intentional misconduct of
Tenant, its agents, employees, contractors, subtenants or assignees, (b)
Landlord is delayed in completing the repair or restoration as a result of any
act, omission, neglect or failure of Tenant or any of Tenant's agents,
employees, contractors or subcontractors or (c) provided the same does not
result from Landlord's breach of its obligations under Section 8.5 above,
Landlord does not receive insurance proceeds sufficient to cover the rent
interruption during such period. Tenant shall not be entitled to any
compensation or damages from Landlord for loss of the use of the Premises,
damage to Tenant's personal property and trade fixtures or any inconvenience
occasioned by such damage, repair or restoration. Tenant hereby waives the
provisions of Section 1932, Subdivision 2, and Section 1933, Subdivision 4, of
the California Civil Code, and the provisions of any similar law hereinafter
enacted.
10. EMINENT DOMAIN. If a part of the Project is taken by eminent domain or
deed in lieu thereof that is so substantial that the Premises cannot reasonably
be used by Tenant for the operation of its business, then Tenant may terminate
this Lease effective as of the date of the taking. If any substantial portion of
the Project is taken without affecting the Premises, then Landlord may terminate
this Lease as of the date of such taking. Rent shall xxxxx from the date of the
taking in proportion to any part of the Premises taken. The entire award for a
taking of any kind shall be paid to Landlord, and Tenant shall have no right to
share in the award; provided, however, that (a) the foregoing shall not be
deemed to prohibit Tenant from filing a separate claim at its sole cost and
expense for an award or portion thereof separately designated for (i) relocation
costs, and (ii) moving expenses, and (b) Tenant shall be entitled to the
unamortized portion of the value of all Alterations performed in the Premises by
Tenant during the Term (such amortization to be calculated on a straight-line
basis over the Term of this Lease, without regard to any future extension terms
as of the date of the Taking). All obligations accrued to the date of the taking
shall be performed by the party liable to perform said obligations, as set forth
herein. Tenant hereby waives any and all rights it might otherwise have pursuant
to Section 1265.130 of the California Code of Civil Procedure.
11. RIGHTS RESERVED TO LANDLORD.
Landlord may exercise at any time any of the following rights respecting
the operation of the Project without liability to Tenant of any kind:
11.1 Name. To change the name of the Project.
11.2 Signs. To install, modify and/or maintain any signs on the exterior
and in the interior of the Buildings or on the Project, and to approve at its
sole discretion, prior to installation, any of Tenant's signs in the Premises
visible from the common areas or the exterior of the Premises.
11.3 Window Treatments. To approve, at its discretion, prior to
installation, any shades, blinds, ventilators or window treatments of any kind,
as well as any lighting within the Premises that may be visible from the
exterior of the Premises or any interior common area.
11.4 Keys. To retain and use at any time passkeys to enter the Premises or
any door within the Premises, subject to Section 11.5 below. Tenant shall not
alter or add any lock or bolt without Landlord's prior written consent.
11.5 Access. To have access to the Premises with twenty-four hours' prior
notice (except in the case of an emergency, in which case Landlord shall have
the right to immediate access) to inspect the Premises, to post notices of
non-responsibility in connection with any Alterations, to make repairs,
alterations, additions or improvements to the Premises, and to perform any other
obligations of Landlord hereunder, all without abatement of Rent. Landlord
shall, subject to Tenant's compliance with its obligations pursuant to this
Section 11.5, follow Tenant's commercially reasonable security requirements in
connection with any entry by Landlord into the Premises. If Tenant requires that
all persons entering the Premises shall be attended by a representative of
Tenant, Tenant shall make a representative available upon 24 hours' prior
telephone notice by Landlord. In the event of an emergency, however, Landlord
shall use good-faith efforts to follow Tenant's security requirements, but
Landlord will be required to give only such notice that it in good faith
believes is feasible under the circumstances and need not wait to be accompanied
by Tenant or its employees or representatives (although these parties may still
accompany Landlord if they are available and wish to do so).
11.6 Preparation for Reoccupancy. To decorate, remodel, repair, alter or
otherwise prepare the Premises for reoccupancy at any time after Tenant abandons
the Premises, without relieving Tenant of any obligation to pay Rent.
11.7 Heavy Articles. To approve the weight, size, placement and time and
manner of movement within the Premises of any safe, central filing system or
other heavy article of Tenant's property. Tenant shall move its property
entirely at its own risk. Landlord's approval under this Section 11.7 shall not
be unreasonably withheld, conditioned or delayed. In determining whether to
grant such approval, Landlord may (i) elect to retain a structural consultant to
review the impact, if any, of any such heavy articles on the Project, and Tenant
shall reimburse Landlord for all costs associated with such structural review,
or (ii) require Tenant to provide Landlord with documentation reasonably
satisfactory to Landlord and prepared by a structural consultant that the heavy
article will not result in any damage to the Project. Without limiting the
grounds upon which Landlord may reasonably withhold its approval under this
Section, it shall be reasonable for Landlord to withhold its approval if, in
Landlord's reasonable opinion, the heavy article will damage any portion of the
Project.
11.8 Show Premises. To show the Premises to prospective purchasers,
tenants, brokers, lenders, mortgagees, investors, rating agencies or others at
any reasonable time, provided that Landlord gives no less than twenty-four (24)
hours' prior notice to Tenant and such showing does not materially interfere
with Tenant's use of the Premises.
11.9 Intentionally Omitted
11.10 Use of Lockbox. To designate a lockbox collection agent for
collections of amounts due Landlord. In that case, the date of payment of Rent
or other sums shall be the date of the agent's receipt of such payment or the
date of actual collection if payment is made in the form of a negotiable
instrument thereafter dishonored upon presentment. However, Landlord may reject
any payment for all purposes as of the date of receipt or actual collection by
mailing to Tenant within a reasonable time after such receipt or collection a
check equal to the amount sent by Tenant.
11.11 Repairs and Alterations. To make repairs or alterations to the
Project, to close entrances, doors, corridors, elevators and other facilities in
the Project or to temporarily suspend services or use of common areas in the
Project. Landlord may perform any such repairs or alterations during ordinary
business hours. Landlord may do or permit any work on any nearby building, land,
street, alley or way. Notwithstanding any provision in the foregoing to the
contrary, Landlord shall make commercially reasonable efforts to give Tenant at
least twenty-four (24) hours' prior notice (which may be written or verbal) of
any scheduled repair or alteration to be made by Landlord to the Project that
may materially interfere with Tenant's access to, or operation of business in,
the Premises; provided, however, that in the event of an emergency, Landlord
shall provide such notice as is reasonable under the circumstances.
11.12 Intentionally Omitted
11.13 Use of Roof. To install, operate, maintain and repair any satellite
dish, antennae, equipment, or other facility on the roof of each Building or to
use the roof of the Buildings in any other manner, or to allow any entity
selected by Landlord to undertake the foregoing, provided that such
installation, operation, maintenance, repair or use does not unreasonably
interfere with Tenant's use of the Premises or Tenant's installation and
maintenance of a GPS system and related equipment pursuant to Section 6.4 above.
11.14 Other Actions. To take any other action which Landlord deems
reasonable in connection with the operation, maintenance or preservation of the
Buildings and the Project.
12. EVENTS OF DEFAULT.
12.1 Tenant's Default. The occurrence of any one or more of the following
events (each, an "Event of Default") shall constitute a breach of this Lease by
Tenant:
(a) Tenant fails to pay any Rent when due and such failure continues for
five (5) days or more following Landlord's notice of such failure.
(b) Tenant fails to perform its obligations under Section 16
(Subordination), Section 17 (Assignment and Sublease), Section 19 (Estoppel
Certificate) or Section 28 (Hazardous Substances).
(c) Tenant (i) abandons the Premises, or (ii) vacates the Premises without
providing a commercially reasonable level of security, or without providing
reasonable assurances to minimize potential vandalism.
(d) Tenant fails to perform any obligation to Landlord under this Lease
other than those described in Sections 12.1(a), 12.1(b) or 12.1(c) above, and
such failure continues for ten (10) days after written notice from Landlord or
Landlord's agent, except that if Tenant begins to cure its failure within the
ten (10) day period but cannot reasonably complete its cure within such period,
then, so long as Tenant continues to diligently attempt to cure its failure, the
ten (10) day period shall be extended to sixty (60) days, or such lesser period
as is reasonably necessary to complete the cure.
(e) One of the following credit defaults occurs:
(i) Tenant (or any guarantor of Tenant's obligations hereunder)
commences any proceeding under any law relating to bankruptcy, insolvency,
reorganization or relief of debts, or seeks appointment of a receiver,
trustee, custodian or other similar official for the Tenant (or the
guarantor) or for any substantial part of its property, or any such
proceeding is commenced against Tenant (or the guarantor) and either
remains undismissed for a period of thirty (30) days or results in the
entry of an order for relief against Tenant (or the guarantor) which is not
fully stayed within seven (7) days after entry;
(ii) Tenant (or any guarantor of Tenant's obligations hereunder)
becomes insolvent or bankrupt, does not generally pay its debts as they
become due, or admits in writing its inability to pay its debts, or makes a
general assignment for the benefit of creditors;
(iii) Any third party obtains a levy or attachment under process of
law against Tenant's leasehold interest.
(f) Tenant fails to cure any default under the Other Lease (as defined in
Section 1.4 above), within any applicable times permitted under the Other Lease
(and any Event of Default under this Lease shall, at Landlord's election,
constitute a default under the Other Lease).
Tenant acknowledges and agrees that, notwithstanding the foregoing
provisions of this Section 12, Tenant shall be in default for purposes of
Section 1161 of the California Code of Civil Procedure immediately following
Tenant's failure to perform or comply with any covenants, agreements, terms or
conditions of this Lease to be performed or observed by Tenant, including,
without limitation, Tenant's failure to pay Rent when due, and that any notices
required to be given by Landlord under this Section 12 shall, in each case, be
in lieu of, and not in addition to, any notice required under Section 1161 of
the California Code of Civil Procedure, and shall be deemed to satisfy the
requirement, if any, that notice be given pursuant to such section.
12.2 Landlord Defaults. Landlord shall be in default hereunder if Landlord
has not begun and pursued with reasonable diligence the cure of any failure of
Landlord to meet its obligations hereunder within thirty (30) days after the
receipt by Landlord of written notice from Tenant of the alleged failure to
perform. Except as expressly provided in this Lease or except in the case of
constructive eviction (as evidenced by a final, unappealable judgment by a court
of competent jurisdiction), in no event shall Tenant have the right to terminate
or rescind this Lease as a result of Landlord's default as to any covenant or
agreement contained in this Lease. Tenant hereby waives such remedies of
termination and rescission and hereby agrees that Tenant's remedies for default
hereunder and for breach of any promise or inducement shall be limited to a suit
for damages and/or injunction. In addition, Tenant hereby covenants that, prior
to the exercise of any such remedies, Tenant will give notice and a reasonable
time to cure any default by Landlord to any holder of a mortgage or deed of
trust encumbering Landlord's interest in the Project of which Tenant has been
given notice. Notwithstanding anything contained herein to the contrary,
Landlord shall not be in default under this Lease to the extent Landlord is
unable to perform any of its obligations on account of any prevention, delay,
stoppage due to strikes, lockouts, inclement weather, labor disputes, inability
to obtain labor, materials, fuels, energy or reasonable substitutes therefor,
governmental restrictions, regulations, controls, actions or inaction, civil
commotion, fire or other acts of god, national emergency, acts of war or
terrorism or any other cause of any kind beyond the reasonable control of
Landlord (except financial inability).
13. LANDLORD REMEDIES. UPON ANY EVENT OF DEFAULT BY TENANT (WITHIN THE
MEANING XX XXXXXXX 00.0 XXXXX), XXXXXXXX SHALL HAVE THE FOLLOWING REMEDIES, IN
ADDITION TO ALL OTHER RIGHTS AND REMEDIES PROVIDED BY LAW OR OTHERWISE PROVIDED
IN THIS LEASE, TO WHICH LANDLORD MAY RESORT CUMULATIVELY OR IN THE ALTERNATIVE:
13.1 Termination of Lease. Landlord may elect by notice to Tenant to
terminate this Lease, in which event, Tenant shall immediately vacate the
Premises and deliver possession to Landlord.
13.2 Civil Code Section 1951.4 Remedy. Even though Tenant has breached this
Lease, this Lease shall continue in effect for so long as Landlord does not
terminate Tenant's right to possession, and Landlord shall have all of its
rights and remedies, including the right, pursuant to California Civil Code
Section 1951.4, to recover all rent as it becomes due under this Lease, if
Tenant has the right to sublet or assign, subject only to reasonable
limitations. Acts of maintenance or preservation or efforts to relet the
Premises or the appointment of a receiver upon initiative of Landlord to protect
Landlord's interest under this Lease shall not constitute a termination of
Tenant's right to possession unless written notice of termination is given by
Landlord to Tenant.
13.3 Lease Termination Damages. If Landlord elects to terminate this Lease,
then this Lease shall terminate on the date for termination set forth in such
notice. Tenant shall immediately vacate the Premises and deliver possession to
Landlord, and Landlord may repossess the Premises and may, at Tenant's sole
cost, remove any of Tenant's signs and any of its other property, without
relinquishing its right to receive Rent or any other right against Tenant. On
termination, Landlord has the right to recover from Tenant as damages:
(a) The worth at the time of award of unpaid Rent and other sums due and
payable which had been earned at the time of termination; plus
(b) The worth at the time of award of the amount by which the unpaid Rent
and other sums due and payable which would have been earned after termination
until the time of award exceeds the amount of such Rent loss that Tenant proves
could have been reasonably avoided; plus
(c) The worth at the time of award of the amount by which the unpaid Rent
and other sums due and payable for the balance of the Term after the time of
award exceeds the amount of such Rent loss that Tenant proves could be
reasonably avoided; plus
(d) Any other amount necessary to compensate Landlord for all the detriment
proximately caused by Tenant's failure to perform Tenant's obligations under
this Lease, or which, in the ordinary course of things, would be likely to
result therefrom, including, without limitation, any costs or expenses incurred
by Landlord: (i) in retaking possession of the Premises; (ii) in maintaining,
repairing, preserving, restoring, replacing, cleaning, altering or
rehabilitating the Premises or any portion thereof, including such acts for
reletting to a new tenant or tenants; (iii) for leasing commissions; or (iv) for
any other costs necessary or appropriate to relet the Premises; plus
(e) At Landlord's election, such other amounts in addition to or in lieu of
the foregoing as may be permitted from time to time by the laws of the State of
California.
The "worth at the time of award" of the amounts referred to in Sections
13.3(a) and 13.3(b) is computed by allowing interest at the Interest Rate on the
unpaid rent and other sums due and payable from the termination date through the
date of award. The "worth at the time of award" of the amount referred to in
Section 13.3(c) is computed by discounting such amount at the discount rate of
the Federal Reserve Bank of San Francisco at the time of award plus one percent
(1%). Tenant waives redemption or relief from forfeiture under California Code
of Civil Procedure Sections 1174 and 1179, or under any other present or future
law, if Tenant is evicted or Landlord takes possession of the Premises by reason
of any Event of Default by Tenant hereunder.
13.4 Landlord's Remedies Cumulative. All of Landlord's remedies under this
Lease shall be in addition to all other remedies Landlord may have at law or in
equity, including, without limitation, the remedy described in California Civil
Code Section 1951.4 (pursuant to which Landlord may continue this Lease in
effect after Tenant's breach and abandonment and recover rent as it becomes due
if Tenant has the right to sublet or assign the Lease, subject to reasonable
limitations). Waiver by Landlord of any breach of any obligation by Tenant shall
be effective only if it is in writing, and shall not be deemed a waiver of any
other breach, or any subsequent breach of the same obligation. The possession of
Tenant's funds, negotiation of Tenant's negotiable instruments, or acceptance of
Tenant's payment by Landlord or its agents shall not constitute a waiver of any
breach by Tenant, and if such possession, negotiation or acceptance occurs after
Landlord's notice to Tenant, or termination of this Lease or of Tenant's right
to possession, such possession, negotiation or acceptance shall not affect such
notice or termination. Acceptance of payment by Landlord after commencement of a
legal proceeding or final judgment shall not affect such proceeding or judgment.
Landlord may advance such monies and take such other actions for Tenant's
account as reasonably may be required to cure or mitigate any default by Tenant.
Tenant shall immediately reimburse Landlord for any such advance, and such sums
shall bear interest at the Interest Rate until paid.
13.5 WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH PARTY WAIVES TRIAL BY JURY IF ANY LEGAL PROCEEDING IS BROUGHT BY THE OTHER
IN CONNECTION WITH THIS LEASE. EACH PARTY SHALL BRING ANY ACTION AGAINST THE
OTHER IN CONNECTION WITH THIS LEASE IN A FEDERAL OR STATE COURT LOCATED IN
CALIFORNIA, CONSENTS TO THE JURISDICTION OF SUCH COURTS, AND WAIVES ANY RIGHT TO
HAVE ANY PROCEEDING TRANSFERRED FROM SUCH COURTS ON THE GROUND OF IMPROPER VENUE
OR INCONVENIENT FORUM. THE PROVISIONS OF THIS SECTION 13.5 SHALL SURVIVE THE
EXPIRATION OR EARLIER TERMINATION OF THIS LEASE.
14. SURRENDER. Upon the expiration or earlier termination of this Lease for
any reason, Tenant shall surrender the Premises to Landlord in its condition
existing as of the date Landlord delivers possession of the Premises to Tenant,
normal wear and tear and damage by fire or other casualty excepted, with all
interior walls repaired and repainted if marked or damaged, all carpets
shampooed and cleaned, all broken, marred or nonconforming acoustical ceiling
tiles replaced, all windows washed, the plumbing and electrical systems and
lighting in good order and repair, including replacement of any burned out or
broken light bulbs or ballasts, the HVAC equipment serviced and repaired by a
reputable and licensed service firm acceptable to Landlord, and all floors
cleaned and waxed, all to the reasonable satisfaction of Landlord. Tenant shall
remove from the Premises and the Project all of Tenant's trade fixtures,
furniture, moveable equipment and other personal property, and any Alterations
which Landlord elects to be removed pursuant to Section 5.3, and shall restore
the Premises to its condition prior to their installation, including, without
limitation, repairing all damage caused by the installation or removal of any of
the foregoing items. If Tenant does not timely remove such property, then Tenant
shall be conclusively presumed to have, at Landlord's election: (a) conveyed
such property to Landlord without compensation or (b) abandoned such property,
and Landlord may dispose of or store any part thereof in any manner at Tenant's
sole cost, without waiving Landlord's right to claim from Tenant all expenses
arising out of Tenant's failure to remove the property, and without liability to
Tenant or any other person. Landlord shall have no duty to be a bailee of any
such personal property. If Landlord elects to consider such property abandoned,
Tenant shall be liable to Landlord for the costs of: (i) removal of any such
Alterations or personal property, (ii) storage, transportation, and disposition
of the same, and (iii) repair and restoration of the Premises, together with
interest thereon at the Interest Rate from the date of expenditure by Landlord.
15. HOLDOVER. Tenant shall have no right to holdover possession of the
Premises after the expiration or termination of this Lease without Landlord's
prior written consent which Landlord may withhold in its sole and absolute
discretion. If, however, Tenant retains possession of any part of the Premises
after the Term, Tenant shall become a tenant at sufferance only, for the entire
Premises upon all of the terms of this Lease as might be applicable to such
tenancy, except that, if Landlord, at Landlord's sole option, permits Tenant to
remain in the Premises as a month-to-month tenant, such tenancy shall be upon
all of the terms of this Lease, including without limitation, with respect to
the payment of Additional Rent, except that Tenant shall pay (a) for the first
ninety (90) days of such holding over, Base Rent equal to one hundred
twenty-five percent (125%) of the Market Rate (as defined in Section 31.3 below)
for the Premises (as reasonably determined by Landlord); and (b) thereafter,
Base Rent equal to one hundred fifty percent (150%) of the of the Market Rate
(as defined in Section 31.3 below), computed on a monthly basis for each full or
partial month Tenant remains in possession. Tenant shall also protect, defend,
indemnify and hold Landlord harmless from and against all Claims resulting from
such failure, including, without limiting the generality of the foregoing, any
claims made by any succeeding tenant founded upon such failure to surrender and
any lost profits to Landlord resulting therefrom. No acceptance of Rent or other
payments by Landlord under these holdover provisions shall operate as a waiver
of Landlord's right to regain possession or any other of Landlord's remedies.
16. SUBORDINATION TO GROUND LEASES AND MORTGAGES.
16.1 Subordination. Subject to the provisions of Section 16.5 below, this
Lease shall be subordinate to any present or future ground lease or mortgage
(each a "Superior Interest") respecting the Project, and any amendments to such
ground lease or mortgage, at the election of the ground lessor or mortgagee (a
"Security Holder"), as the case may be, effected by notice to Tenant in the
manner provided in this Lease. The subordination shall be effective upon such
notice, but at the request of Landlord or such Security Holder, Tenant shall
within ten (10) days after the request, execute and deliver to the requesting
party any reasonable documents provided to evidence the subordination. Any
mortgagee has the right, at its sole option, to subordinate its mortgage to the
terms of this Lease, without notice to, nor the consent of, Tenant.
16.2 Termination of Ground Lease or Foreclosure of Mortgage. If any ground
lease is terminated or mortgage foreclosed or deed in lieu of foreclosure given
and the Security Holder or purchaser at a foreclosure sale shall thereby become
the owner of the Project, Tenant shall attorn to such Security Holder or
purchaser without any deduction or setoff by Tenant, and this Lease shall
continue in effect as a direct lease between Tenant and such Security Holder or
purchaser. The Security Holder or purchaser shall be liable as Landlord only
during the time such Security Holder or purchaser is the owner of the Project.
At the request of Landlord or any Security Holder, Tenant shall execute and
deliver within ten (10) days after the request any document furnished by the
requesting party to evidence Tenant's agreement to attorn.
16.3 Security Deposit. Any Security Holder shall be responsible for the
return of any security deposit by Tenant only to the extent the security
deposit, if any, is received by such Security Holder.
16.4 Notice and Right to Cure. Tenant agrees to send by registered or
certified mail to any Security Holder identified in a notice from Landlord to
Tenant, a copy of any notice of default sent by Tenant to Landlord. If Landlord
fails to cure such default within the required time period under this Lease, but
any Security Holder begins to cure within ten (10) days after such period and
proceeds diligently to complete such cure, then such Security Holder shall have
such additional time as is necessary to complete such cure, including any time
necessary to obtain possession if possession is necessary to cure, and Tenant
shall not begin to enforce its remedies so long as the cure is being diligently
pursued.
16.5 Non-Disturbance Agreement. With respect to any Superior Interest to
which this Lease is now or shall hereafter become subordinate, Landlord shall
obtain from the Security Holder, for the benefit of Tenant, a non-disturbance
agreement, in the customary form of such Security Holder, providing generally
that as long as Tenant is not in default under this Lease, this Lease will not
be terminated if such Security Holder acquires title to the Buildings or Project
by reason of foreclosure proceedings, acceptance of a deed in lieu of
foreclosure, or termination of the leasehold interest of Landlord, provided that
Tenant attorns to such Security Holder in accordance with its requirements.
16.6 Definitions. As used in this Section 16, "mortgage" shall include
"trust deed" and "deed of trust"; "mortgagee" shall include "trustee",
"beneficiary" and the mortgagee of any ground lessee; and "ground lessor",
"mortgagee", and "purchaser at a foreclosure sale" shall include, in each case,
all of its successors and assigns, however remote.
17. ASSIGNMENT AND SUBLEASE.
17.1 In General. Subject to the provisions of Section 17.5 below, Tenant
shall not, without Landlord's prior written consent (which consent shall not be
unreasonably withheld, conditioned or delayed), in each case: (a) make or allow
any assignment or transfer, by operation of law or otherwise, of any part of
Tenant's interest in this Lease, (b) sublet any part of the Premises, or (c)
permit anyone other than Tenant and its employees to occupy any part of the
Premises (all of the foregoing are hereinafter sometimes referred to
individually as a "Transfer", and collectively as "Transfers", any person to
whom any Transfer is made or sought to be made is hereinafter sometimes referred
to as a "Transferee", and any person by whom any Transfer is made or sought to
be made is hereinafter sometimes referred to as a "Transferor"). Tenant shall
remain primarily liable for all of its obligations under this Lease,
notwithstanding any Transfer. No consent granted by Landlord shall be deemed to
be a consent to any subsequent Transfer. Tenant shall pay all of Landlord's
actual attorneys' fees and other expenses incurred in connection with any
consent requested by Tenant or in considering any proposed Transfer, up to a
maximum amount of Two Thousand Five Hundred Dollars ($2,500.00) per proposed
Transfer (unless there is a dispute in connection with the proposed Transfer, in
which event the provisions of Section 25.26 below shall apply). Subject to the
provisions of Section 17.5 below, any Transfer without Landlord's prior written
consent shall be void. If Tenant shall assign this Lease or sublet or otherwise
Transfer the entire Premises to any party other than a Permitted Transferee (as
defined below), any rights of Tenant to renew this Lease, to extend the Term or
to lease additional space in the Project shall be extinguished thereby and will
not be transferred to the Transferee, all such rights being personal to the
Tenant named herein. In addition, Tenant shall not, without Landlord's prior
written consent, which Landlord may withhold in its sole discretion, mortgage,
pledge or encumber this Lease, the term or estate hereby granted or any interest
hereunder.
17.2 Landlord's Consent. Landlord will not unreasonably withhold its
consent to any proposed Transfer. It shall be reasonable for Landlord to
withhold its consent to any Transfer if (a) an Event of Default exists under
this Lease, (b) the proposed Transferee is a tenant in the Project, an affiliate
of such a tenant, or is negotiating with Landlord or has negotiated with
Landlord during the six (6) month period immediately preceding Tenant's request
for consent to lease space in the Project or in another project owned by
Landlord in the vicinity of the Project, (c) the financial responsibility,
nature of business, and character of the proposed Transferee are not all
reasonably satisfactory to Landlord, (d) in the reasonable judgment of Landlord
the purpose for which the Transferee intends to use the Premises (or a portion
thereof) is not in keeping with Landlord's standards for the Project or are in
violation of the terms of this Lease or any other leases in the Project, (e) the
proposed Transferee is a government entity, or (f) the proposed effective rent
under the sublease or other Transfer is less than eighty percent (80%) of the
effective rent then being quoted by Landlord for comparable space in the Project
for a comparable term, calculated using a present value analysis; provided,
however, that if no comparable space in the Project is available for lease for a
comparable term at the time of the proposed Transfer, then the foregoing
restriction on the proposed effective rent under the sublease or other Transfer
shall be inapplicable. The foregoing shall not exclude any other reasonable
basis for Landlord to withhold its consent.
17.3 Procedure.
(a) Tenant shall notify Landlord of any proposed Transfer at least thirty
(30) days prior to its proposed effective date. The notice (the "Transfer
Notice") shall include the name and address of the proposed Transferee, its
corporate affiliates in the case of a corporation and its partners in the case
of a partnership, a description of the portion of the Premises that is subject
to the Transfer (the "Transfer Premises"), a calculation of the Transfer Premium
(as defined in Section 17.5 below) payable in connection with the Transfer, an
executed copy of the proposed Transfer agreement, and sufficient information to
permit Landlord to determine the financial responsibility and character of the
proposed Transferee (including, without limitation, the most recent financial
statements for the proposed Transferee). Landlord shall approve or disapprove of
the proposed Transfer within fifteen (15) days (the "Review Period") after
Landlord's receipt of the applicable Transfer Notice. If Landlord fails to
notify Tenant in writing of such approval or disapproval within such Review
Period, Landlord shall be deemed to have disapproved such Transfer; provided,
however, that if, within five (5) business days after the Review Period, Tenant
furnishes Landlord with a second Transfer Notice (the "Second Transfer Notice"),
which specifies that "Landlord's failure to respond to this Transfer Notice
shall constitute Landlord's approval of the proposed Transfer", then Landlord's
failure to approve or disapprove the proposed Transfer within ten (10) days
after receipt of the Second Transfer Notice shall constitute Landlord's approval
of the Transfer.
(b) As a condition to the effectiveness of any assignment of this Lease,
the assignee shall execute and deliver to Landlord, at least fifteen (15) days
prior to the effective date of the assignment, Landlord's standard form of
Consent to Assignment, providing for, among other things, an assumption of all
of the obligations of Tenant under this Lease. As a condition to the
effectiveness of any other Transfer, Transferee shall execute and deliver to
Landlord, at least fifteen (15) days prior to the effective date of such
Transfer, Landlord's standard consent form, providing, among other things, (i)
the Transferee's obligation to indemnify Landlord and the other Landlord Parties
consistent with Tenant's indemnification obligations in Section 8.2 above, and
(ii) the Transferee's agreement that any such Transfer shall be subordinate and
subject to the provisions of this Lease, and if this Lease shall be terminated
during the term of any such Transfer, Landlord shall have the right to: (1)
treat such Transfer as cancelled and repossess the Transfer Premises by any
lawful means, or (2) require that the Transferee attorn to and recognize
Landlord as its landlord under any such Transfer. If Tenant shall default and
fail to cure within the time permitted for cure under Section 12 above, Landlord
is hereby irrevocably authorized, as Tenant's agent and attorney-in-fact, to
direct any Transferee to make all payments under or in connection with the
Transfer directly to Landlord (which Landlord shall apply towards Tenant's
obligations under this Lease) until such default is cured.
17.4 Change of Management or Ownership. Any transfer of the direct or
indirect power to affect the management or policies of Tenant or direct or
indirect change in 50% or more of the ownership interest in Tenant shall
constitute an assignment of this Lease.
17.5 Permitted Transfers. Notwithstanding the provisions of Section 17.1
above, if Tenant is not then in default of this Lease, Tenant may assign this
Lease or sublet any portion of the Premises (hereinafter collectively referred
to as a "Permitted Transfer") to (a) a parent or subsidiary of Tenant, or an
entity under common control with Tenant, (b) any successor entity to Tenant by
way of merger, consolidation or other non-bankruptcy corporate reorganization,
or (c) an entity which acquires all or substantially all of Tenant's assets
(collectively, "Permitted Transferees", and, individually, a "Permitted
Transferee"); provided that (i) at least ten (10) business days prior to the
Transfer, Tenant notifies Landlord of such Transfer, and supplies Landlord with
any documents or information reasonably requested by Landlord regarding such
Transfer or Permitted Transferee, including, but not limited to, copies of the
sublease or instrument of assignment and copies of documents establishing to the
reasonable satisfaction of Landlord that the transaction in question is one
permitted under this Section 17.5, (ii) at least ten (10) business days prior to
the Transfer, Tenant furnishes Landlord with a written document executed by the
proposed Permitted Transferee in which, in the case of an assignment, such
entity assumes all of Tenant's obligations under this Lease with respect to the
Transfer Premises, and, in the case of a sublease, such entity agrees to
sublease the Transfer Premises subject to this Lease, (iii) in the case of a
Transfer pursuant to clause (b) above, the successor entity must have a net
worth (computed in accordance with generally accepted accounting principles,
except that intangible assets such as goodwill, patents, copyrights, and
trademarks shall be excluded in the calculation ("Net Worth")) at the time of
the Transfer that is at least equal to the Net Worth of Tenant immediately prior
to such Transfer, and (iv) any such proposed Transfer is made for a good faith
operating business purpose and not, whether in a single transaction or in a
series of transactions, be entered into as a subterfuge to evade the obligations
and restrictions relating to Transfers set forth in this Section 17.
17.6 Transfer Premium.
(a) If Landlord consents to a Transfer, as a condition thereto which the
parties hereby agree is reasonable, Landlord shall be entitled to receive, as
Additional Rent hereunder, seventy-five percent (75%) of any Transfer Premium
derived from such Transfer. As used herein, the term "Transfer Premium" means
(i)(A) in the case of an assignment, any consideration (including, without
limitation, payment for leasehold improvements) paid by the assignee on account
of such assignment, and (B) in the case of any other Transfer, all rent,
additional rent or other consideration paid by the Transferee to the Transferor
pursuant to such Transfer in excess of the base rent and additional rent payable
by such Transferor during the term of the Transfer on a per rentable square foot
basis, minus (ii) (AA) any brokerage commissions (not to exceed commissions
typically paid in the market at the time of such subletting or assignment) and
reasonable attorneys' fees paid by Transferor in connection with the Transfer
and (BB) the reasonable cost of Alterations made to the Transfer Premises at
Tenant's cost to effect the Transfer (not to exceed Five Dollars ($5.00) per
rentable square foot of the Transfer Premises) (collectively, "Recoverable
Expenses"), unless the deduction of such Recoverable Expenses is waived by
Transferor pursuant to Section 17.5(b) below. For purposes of calculating the
Transfer Premium in connection with a sublease, the Recoverable Expenses shall
be deducted, on an amortized basis, without interest, over the term of the
sublease. Payment of the portion of the Transfer Premium due Landlord hereunder
shall be a joint and several obligation of Tenant and the Transferee, and shall
be made to Landlord as follows: (1) in the case of an assignment, the Transferor
shall pay the portion of the Transfer Premium due to Landlord within ten (10)
days after the Transferor receives the consideration described in clause (i)(A)
above; and (2) in the case of any other Transfer, on the first day of each month
during the term of the Transfer, the Transferee shall pay directly to Landlord
seventy-five percent (75%) of the amount by which the rent, additional rent or
other consideration due from the Transferee for such month exceeds (x) the base
rent and additional rent payable by the applicable Transferor for said month
which is allocable to the Transfer Premises, plus (y) the amortized amount of
Recoverable Expenses allocated to such month, unless such Recoverable Expenses
are waived by Transferor pursuant to Section 17.5(b).
(b) Within sixty (60) days after the effective date of any Transfer,
Transferor shall provide Landlord a written statement, together with reasonably
detailed invoices therefor, certifying the total amount of Recoverable Expenses
in connection with any Transfer and Tenant's calculation of the Transfer
Premium. If Transferor fails to provide such statement and invoices to Landlord
within the sixty (60) day period, Transferor shall be deemed to have waived the
deduction of Recoverable Expenses in determining the Transfer Premium. Landlord
or its authorized representatives shall have the right, upon at least
seventy-two (72) hours' prior notice, during normal business hours, to audit the
books, records and papers of Tenant, and any other Transferor, relating to a
Transfer, and shall have the right to make copies thereof. If the Transfer
Premium respecting any Transfer shall be found to be understated, Tenant shall,
within ten (10) days after demand, pay the deficiency; and, if understated by
more than seven percent (7%), Tenant shall pay Landlord's costs of such audit.
17.7 Recapture. In the case of a proposed assignment of this Lease or the
sublease or other Transfer of one hundred percent (100%) of either Building A or
Building B to any party other than a Permitted Transferee, Landlord may
terminate this Lease as to the Transfer Premises by giving Tenant written notice
(the "Recapture Notice") within thirty (30) days after Landlord's receipt of the
proposed fully executed Transfer agreement submitted by Tenant for Landlord's
consent. Such termination shall be effective as of the termination date set
forth in Landlord's Recapture Notice, and all obligations of Landlord and Tenant
under this Lease as to such terminated space shall expire as of such termination
date, except those that expressly survive any termination of this Lease. In the
event of a recapture by Landlord, if this Lease shall be canceled with respect
to less than the entire Premises, the Rent reserved herein shall be prorated on
the basis of the number of rentable square feet retained by Tenant in proportion
to the number of rentable square feet contained in the Premises, and this Lease
as so amended shall continue thereafter in full force and effect, and upon
request of either party, the parties shall execute written confirmation of the
same.
17.8 Tenant Remedies. Notwithstanding anything to the contrary in this
Lease, if Tenant claims that Landlord has unreasonably withheld or delayed its
consent under this Section 17 or otherwise has breached or acted unreasonably
under this Section 17, Tenant's sole remedies shall be declaratory judgment and
an injunction for the relief sought or monetary damages, and Tenant hereby
waives all other remedies, including, without limitation, any right provided
under California Civil Code Section 1995.310 or other applicable laws to
terminate this Lease; provided, however, nothing contained in this Section 17.8
is intended to limit Tenant's rights and remedies in the event Landlord is
adjudged by a court of competent jurisdiction to have acted in bad faith in
withholding or delaying its consent to a proposed Transfer.
18. CONVEYANCE BY LANDLORD. If Landlord shall at any time transfer its
interest in the Project or this Lease, Landlord shall be released from any
obligations occurring after such transfer, except the obligation to return to
Tenant any security deposit not delivered to its transferee, and Tenant shall
look solely to Landlord's successors for performance of such obligations. This
Lease shall not be affected by any such transfer.
19. ESTOPPEL CERTIFICATE. Each party shall, within ten (10) days after
receiving a request from the other party, execute, acknowledge in recordable
form, and deliver to the other party or its designee a certificate stating,
subject to a specific statement of any applicable exceptions, that this Lease as
amended to date is in full force and effect, that Tenant is paying Rent and
other charges on a current basis, and that to the best of the knowledge of the
certifying party, the other party has committed no uncured defaults and has no
offsets or claims. The certifying party may also be required to state the date
of commencement of payment of Rent, the Commencement Date, the Termination Date,
the Base Rent, the current Operating Cost Share Rent and Tax Share Rent
estimates, the status of any improvements required to be completed by Landlord,
the amount of any security deposit, and such other matters as may be reasonably
requested. A party's failure to deliver a certificate within the ten (10) day
period set forth above shall not constitute a breach under this Lease unless
such party fails to deliver such certificate within an additional ten (10) days
after the delivery of a notice to such party by the other party. Tenant's
failure to execute or deliver an estoppel certificate within the second ten (10)
day period shall constitute an acknowledgment by Tenant that the statements
included in the estoppel certificate are true and correct, without exception.
Either party's failure to execute or deliver an estoppel certificate or other
document or instrument required under this Section 19 within the second ten (10)
day period shall be a material breach of this Lease.
20. INTENTIONALLY OMITTED.
21. INTENTIONALLY OMITTED.
22. NOTICES. All notices, consents, approvals and similar communications to
be given by one party to the other under this Lease, shall be given in writing,
mailed or personally delivered as follows:
22.1 Landlord. To Landlord as follows:
CarrAmerica Realty Operating Partnership, L.P.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Market Officer
with a copy to:
CarrAmerica Realty Operating Partnership, L.P.
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn: Lease Administration
or to such other person at such other address as Landlord may designate
by notice to Tenant.
22.2 Tenant. To Tenant as follows:
Prior to the Commencement Date:
Xxxxxxx Navigation Limited
000 X Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Real Estate Department
With a copy to:
Xxxxxxx Navigation Limited
000 X Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: General Counsel
After the Commencement Date:
Xxxxxxx Navigation Limited
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Real Estate Department
With a copy to:
Xxxxxxx Navigation Limited
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: General Counsel
or to such other person at such other address as Tenant may designate
by notice to Landlord.
Mailed notices shall be sent by United States certified or registered mail,
or by a reputable national overnight courier service, postage prepaid. Mailed
notices shall be deemed to have been given on the earlier of actual delivery or
three (3) business days after posting in the United States mail in the case of
registered or certified mail, and one (1) business day in the case of overnight
courier. Tenant hereby appoints as its agent to receive the service of process
in any action, or any notice required by law to be given prior to the
commencement of any action, for recovery of possession of the Premises or any
part thereof, and to receive service of all notices hereunder (including
dispossessory or distraint proceedings and notices thereunder), the person in
charge of or occupying the Premises at the time, and, if no person shall be in
charge of or occupying the same, then such service may be made by attaching the
same on the main entrance of the Premises.
23. QUIET POSSESSION. So long as Tenant shall perform all of its
obligations under this Lease, Tenant shall enjoy peaceful and quiet possession
of the Premises against any party claiming through the Landlord, subject to all
of the terms of this Lease.
24. REAL ESTATE BROKERS. Tenant represents to Landlord that Tenant has not
dealt with any real estate broker with respect to this Lease except for any
broker(s) listed in the Schedule, and no other broker is in any way entitled to
any broker's fee or other payment in connection with this Lease. Tenant shall
indemnify and defend Landlord against any Claims by any other broker or third
party for any payment of any kind in connection with this Lease.
25. MISCELLANEOUS.
25.1 Successors and Assigns. Subject to the limits on Tenant's assignment
contained in Section 17, the provisions of this Lease shall be binding upon and
inure to the benefit of all successors and assigns of Landlord and Tenant.
25.2 Date Payments Are Due. Except for payments to be made by Tenant under
this Lease which are due upon demand or are due in advance (such as Base Rent),
and except as otherwise expressly provided in this Lease, Tenant shall pay to
Landlord any amount for which Landlord renders a statement of account within ten
(10) days after Tenant's receipt of Landlord's statement.
25.3 Meaning of "Landlord", "Re-Entry", "including" and "Affiliate". The
term "Landlord" means only the owner of the Project and the lessor's interest in
this Lease from time to time. The words "re-entry" and "re-enter" are not
restricted to their technical legal meaning. The words "including" and similar
words shall mean "without limitation." The word "affiliate" shall mean a person
or entity controlling, controlled by or under common control with the applicable
entity. "Control" shall mean the power directly or indirectly, by contract or
otherwise, to direct the management and policies of the applicable entity.
25.4 Time of the Essence. Time is of the essence of each provision of this
Lease.
25.5 No Option. The submission of this Lease to Tenant for review or
execution does not create an option or constitute an offer to Tenant to lease
the Premises on the terms and conditions contained herein or a reservation of
the Premises in favor of Tenant, and this Lease shall not become effective
unless and until it has been executed and delivered by both Landlord and Tenant.
25.6 Severability. If any provision of this Lease is determined to be
invalid, illegal or unenforceable, then such provision will be enforced to the
maximum extent possible and the other provisions will remain fully effective and
enforceable.
25.7 Governing Law. This Lease shall be governed in all respects by the
laws of the state in which the Project is located, without regard to the
principles of conflicts of laws.
25.8 Lease Modification. Tenant agrees to modify this Lease in any way
requested by a mortgagee which does not cause increased expense to Tenant or
otherwise materially adversely affect Tenant's interests under this Lease.
25.9 No Oral Modification. No modification of this Lease shall be effective
unless it is a written modification signed by both parties.
25.10 Landlord's Right to Cure. If Tenant fails to perform any obligations
under this Lease, Landlord may cure any such failure on Tenant's behalf and any
expenses incurred shall constitute Additional Rent due from Tenant on demand by
Landlord. Landlord's right to cure under this Section shall apply after
applicable notice and cure periods, if any; provided, however, that Landlord may
cure Tenant's failure immediately in the case of an emergency.
25.11 Captions. The captions used in this Lease shall have no effect on the
construction of this Lease.
25.12 Authority. Landlord and Tenant each represents to the other that it
has full power and authority to execute and perform this Lease.
25.13 Landlord's Enforcement of Remedies. Landlord may enforce any of its
remedies under this Lease either in its own name or through an agent.
25.14 Entire Agreement. This Lease, together with all Exhibits, constitutes
the entire agreement between the parties. No representations or agreements of
any kind have been made by either party which are not contained in this Lease.
25.15 Landlord's Title. Landlord's title shall always be paramount to the
interest of Tenant, and nothing in this Lease shall empower Tenant to do
anything which might in any way impair Landlord's title.
25.16 Light and Air Rights. Landlord does not grant in this Lease any
rights to light and air in connection with Project. Landlord reserves to itself,
the Project, the Building below the improved floor of each floor of the
Premises, the Building above the ceiling of each floor of the Premises, the
exterior of the Premises and the areas on the same floor outside the Premises,
along with the areas within the Premises required for the installation and
repair of utility lines and other items required to serve other tenants of the
Project.
25.17 Singular and Plural; Joint and Several Liability. Wherever
appropriate in this Lease, a singular term shall be construed to mean the plural
where necessary, and a plural term the singular. For example, if at any time two
parties shall constitute Landlord or Tenant, then the relevant term shall refer
to both parties together. If more than one individual or entity comprises
Tenant, the obligations imposed on each individual or entity that comprises
Tenant under this Lease shall be joint and several. 25.18 No Recording by
Tenant. Tenant shall not record in any public records any memorandum or any
portion of this Lease.
25.19 Exclusivity. Landlord does not grant to Tenant in this Lease any
exclusive right except the right to occupy the Premises.
25.20 No Construction Against Drafting Party. The rule of construction that
ambiguities are resolved against the drafting party shall not apply to this
Lease.
25.21 Survival. The waivers of claims or rights, the releases and the
obligations of Tenant under this Lease to indemnify, protect, defend and hold
harmless Landlord and other Landlord Parties shall survive the expiration or
earlier termination of this Lease, and so shall all other obligations or
agreements of Landlord or Tenant hereunder which by their terms survive the
expiration or earlier termination of this Lease.
25.22 Rent Not Based on Income. No Rent or other payment in respect of the
Premises shall be based in any way upon net income or profits from the Premises.
Tenant may not enter into or permit any sublease or license or other agreement
in connection with the Premises which provides for a rental or other payment
based on net income or profit.
25.23 Project Manager and Service Providers. Landlord may perform any of
its obligations under this Lease through its employees or third parties hired by
the Landlord.
25.24 Late Charge and Interest on Late Payments. Without limiting the
provisions of Section 12.1, if Tenant fails to pay any installment of Rent or
other charge to be paid by Tenant pursuant to this Lease within ten (10) days
after the same becomes due and payable, then Tenant shall pay a late charge
equal to the greater of five percent (5%) of the amount of such payment or $250.
In addition, interest shall be paid by Tenant to Landlord on any late payments
of Rent from the date due until paid at the rate provided in Section 2.4(b).
Such late charge and interest shall constitute Additional Rent due and payable
by Tenant to Landlord upon the date of payment of the delinquent payment
referenced above. Notwithstanding the provisions of this Section 25.24 to the
contrary, no late charge shall be assessed the first time during any Lease Year
that Rent is not paid on the date on which it is due and payable, so long as
Tenant shall pay any such delinquent amount within three (3) days after notice
of such delinquency from Landlord.
25.25 Tenant's Financial Statements. Within ten (10) days after Landlord's
written request therefor, Tenant shall deliver to Landlord the current audited
annual and quarterly financial statements of Tenant, and annual audited
financial statements of the two (2) years prior to the current year's financial
statements, each with an opinion of a certified public accountant, including a
balance sheet and profit and loss statement for the most recent prior year, all
prepared in accordance with generally accepted accounting principles
consistently applied. Notwithstanding the foregoing, as long as Tenant's
financial statements are readily available over the Internet or otherwise
publicly available, Tenant shall not be obligated to deliver them to Landlord
hereunder.
25.26 Attorneys' Fees. In any arbitration, quasi-judicial or administrative
proceedings or any action in any court of competent jurisdiction, brought by
either party to enforce any covenant or any of such party's rights or remedies
under this Lease, including any action for declaratory relief, or any action to
collect any payments required under this Lease or to quiet title against the
other party, the prevailing party shall be entitled to reasonable attorneys'
fees and all costs, expenses and disbursements in connection with such action,
including the costs of reasonable investigation, preparation and professional or
expert consultation, which sums may be included in any judgment or decree
entered in such action in favor of the prevailing party. In addition, Tenant
shall pay the attorneys' fees and other costs Landlord incurs in enforcing this
Lease where an action or proceeding is not brought.
25.27 Other Improvements. If portions of the Project or property adjacent
to the Project (collectively, the "Other Improvements") are owned by an entity
other than Landlord, then, so long as Tenant's rights under this Lease
(including, without limitation, Tenant's use and occupancy of, and access to,
the Premises, parking areas, and/or Project) are not materially impaired,
impeded, or otherwise materially and adversely affected, or Tenant's costs or
expenses payable under this Lease materially increased, Landlord may, at its
option, enter into an agreement with the owner or owners of any of the Other
Improvements to provide (a) for reciprocal rights of access, use and/or
enjoyment of the Project and the Other Improvements, (b) for the common
management, operation, maintenance, improvement and/or repair of all or any
portion of the Project and all or any portion of the Other Improvements, (c) for
the allocation of a portion of Operating Costs and Taxes to the Other
Improvements and the allocation of a portion of the operating expenses and taxes
for the Other Improvements to the Project, (d) for the use or improvement of the
Other Improvements and/or the Project in connection with the improvement,
construction, and/or excavation of the Other Improvements and/or the Project,
and (e) for any other matter which Landlord deems appropriate or necessary.
Nothing contained herein shall be deemed or construed to limit or otherwise
affect Landlord's right to sell all or any portion of the Project or any other
of Landlord's rights described in this Lease.
25.28 Security. Landlord shall be the sole determinant of the type and
amount of security services to be provided to the Project, if any. In all
events, Landlord shall not be liable to Tenant, and Tenant hereby waives any
claim against Landlord, for (a) any unauthorized or criminal entry of third
parties into the Premises or the Project, (b) any damage to persons, or (c) any
loss of property in and about the Premises or the Project, by or from any
unauthorized or criminal acts of third parties, regardless of any action,
inaction, failure, breakdown, malfunction and/or insufficiency of the security
services provided by Landlord.
26. UNRELATED BUSINESS INCOME. If Landlord is advised by its counsel at any
time that any part of the payments by Tenant to Landlord under this Lease may be
characterized as unrelated business income under the United States Internal
Revenue Code and its regulations, then Tenant shall enter into any amendment
proposed by Landlord to avoid such income, so long as the amendment does not
require Tenant to make more payments or accept fewer services from Landlord,
than this Lease provides.
27. PROJECT RENOVATIONS. It is specifically understood and agreed that
Landlord has made no representation or warranty to Tenant and has no obligation
and has made no promises to alter, remodel, improve, renovate, repair or
decorate the Premises or any part thereof and that no representations respecting
the condition of the Premises have been made by Landlord to Tenant except as
specifically set forth herein. However, Tenant hereby acknowledges that Landlord
may during the Lease Term renovate, improve, alter, or modify (collectively, the
"Renovations") the Project, including without limitation the parking and common
areas, and related systems and equipment, which Renovations may include, without
limitation, modifying the common areas to comply with Governmental Requirements,
including regulations relating to the physically disabled, seismic conditions,
and building safety and security; and in connection with any Renovations,
Landlord may, among other things, erect scaffolding or other necessary
structures in the Project, limit or eliminate access to portions of the Project,
including portions of the common areas, or perform work in the Project, which
work may create noise, dust or leave debris in the Project. Tenant hereby agrees
that such Renovations and Landlord's actions in connection with such Renovations
shall in no way constitute a constructive eviction of Tenant nor entitle Tenant
to any abatement of Rent. Landlord shall have no responsibility or for any
reason be liable to Tenant for any direct or indirect injury to or interference
with Tenant's business arising from the Renovations, nor shall Tenant be
entitled to any compensation or damages from Landlord for loss of the use of the
whole or any part of the Premises or of Tenant's personal property or
improvements resulting from the Renovations or Landlord's actions in connection
with such Renovations, or for any inconvenience or annoyance occasioned by such
Renovations or Landlord's actions. Notwithstanding any provisions to the
contrary contained herein, Landlord shall use commercially reasonable efforts in
the performance of any Renovations to minimize interference with the conduct of
Tenant's business in the Premises and Tenant's parking rights hereunder; and,
with respect to any Renovations which could interfere with the conduct of
Tenant's business in the Premises or Tenant's parking rights hereunder, Landlord
shall, except in the event of an emergency, provide Tenant with at least
twenty-four (24) hours' prior notice (which may be verbal and/or be sent by
e-mail to Tenant's facilities manager).
28. HAZARDOUS SUBSTANCES.
28.1 Prohibition Against Hazardous Substances.
(a) Except for de minimis quantities of general office supplies customarily
used by office tenants in the ordinary course of their business, such as copier
toner, liquid paper, glue, ink and cleaning solvents (which supplies Tenant
agrees to use in compliance with all applicable Governmental Requirements),
Tenant shall not cause or permit any Hazardous Substances to be brought upon,
produced, stored, used, discharged or disposed of in or near the Project without
Landlord's prior written consent, which Landlord may give or withhold in its
sole discretion. Any handling, transportation, storage, treatment, disposal or
use of any Hazardous Substances in or about the Project by Tenant, its agents,
employees, contractors or invitees shall strictly comply with all applicable
Governmental Requirements. Tenant shall be solely responsible for obtaining and
complying with all permits necessary for the maintenance and operation of its
business, including, without limitation, all permits governing the use,
handling, storage, treatment, transport, discharge and disposal of Hazardous
Substances. Tenant shall indemnify, defend and hold Landlord harmless from and
against any Claims (including, without limitation, diminution in value of the
Premises or the Project, damages for the loss or restriction on use of leasable
space or of any amenity of the Premises or the Project, damages arising from any
adverse impact on marketing of space in the Project, Remedial Work, and sums
paid in settlement of claims) which result from or arise out of the use,
storage, treatment, transportation, release, or disposal of any Hazardous
Substances on or about the Project by Tenant or any Tenant Parties.
(b) Landlord shall have the right, at any time, but not more than once per
calendar year (unless Landlord has reasonable cause to believe that Tenant has
failed to fully comply with the provisions of this Section 28, or unless
required by any lender or governmental agency), to inspect the Premises and
conduct tests and investigations to determine whether Tenant is in compliance
with the provisions of this Section 28. The reasonable costs of all such
inspections, tests and investigations shall be borne solely by Tenant. The
foregoing rights granted to Landlord shall not, however, create (i) a duty on
Landlord's part to inspect, test, investigate, monitor or otherwise observe the
Premises or the activities of Tenant or any Tenant Party with respect to
Hazardous Substances, including, but not limited to, Tenant's operation, use or
remediation thereof, or (ii) liability on the part of Landlord or any Landlord
Party for Tenant's use, storage, treatment, transportation, release, or disposal
of any Hazardous Substances, it being understood that Tenant shall be solely
responsible for all liability in connection therewith.
28.2 Landlord Notification. Tenant shall promptly provide Landlord with
complete copies of all documents, correspondence and other written materials
directed to or from, or relating to, Tenant concerning environmental issues at
the Premises or the Project, including, without limitation, documents relating
to the release, potential release, investigation, compliance, cleanup and
abatement of Hazardous Substances, and any claims, causes of action or other
legal documents related to same. Within twenty-four (24) hours of any
unauthorized release, spill or discharge of Hazardous Substances, in, on, or
about the Premises or Project, Tenant shall provide written notice to Landlord
fully describing the event. Tenant shall also provide Landlord with a copy of
any document or correspondence submitted by or on behalf of Tenant to any
regulatory agency as a result of or in connection with the unauthorized release,
spill or discharge. Within twenty-four (24) hours of receipt by Tenant of any
warning, notice of violation, permit suspension or similar disciplinary measure
relating to Tenant's actual or alleged failure to comply with any environmental
law, rule, regulation, ordinance or permit, Tenant shall provide written notice
to Landlord.
28.3 Remedial Work. If any Remedial Work is required under any Governmental
Requirements as a result of the use, storage, treatment, transportation,
release, or disposal of any Hazardous Substances on or about the Project by
Tenant or any Tenant Parties, then Tenant shall perform or cause to be performed
the Remedial Work in compliance with Governmental Requirements or, at Landlord's
option, Landlord may cause such Remedial Work to be performed and Tenant shall
reimburse Landlord for the reasonable costs thereof within thirty (30) days
after demand therefor. All Remedial Work performed by Tenant shall be performed
by one or more contractors, selected by Tenant and reasonably approved in
advance in writing by Landlord, and under the supervision of a consulting
engineer selected by Tenant and reasonably approved in advance in writing by
Landlord. All costs and expenses of such Remedial Work shall be paid by Tenant,
including, without limitation, the charges of such contractor(s), the consulting
engineer and Landlord's reasonable attorneys' and experts' fees and costs
incurred in connection with monitoring or review of such Remedial Work.
28.4 Environmental Questionnaire. Prior to execution of this Lease, Tenant
shall complete, execute and deliver to Landlord an Environmental Questionnaire
and Disclosure Statement. The completed Environmental Questionnaire shall be
deemed incorporated into this Lease for all purposes, and Landlord shall be
entitled to rely fully on the information contained therein. Tenant shall
immediately update and resubmit to Landlord the Environmental Questionnaire if
changes occur in the nature, content, handling, storage, use, treatment,
transport, discharge, or disposal of the Hazardous Substances described therein.
Attached hereto as Exhibit E is a form of Environmental Questionnaire to be
executed in accordance with the foregoing provision.
28.5 Survival. Tenant's obligations under this Section 28 shall survive the
expiration or earlier termination of this Lease until all Claims within the
scope of this Section 28 are fully, finally, and absolutely barred by the
applicable statutes of limitations. If it is determined by Landlord that the
condition of all or any portion of the Premises or the Project is not in
compliance with the provisions of this Section 28, including, but not limited to
all applicable Governmental Requirements relating to Hazardous Substances, at
the expiration or earlier termination of this Lease, then Landlord, in its sole
discretion, may require Tenant to hold over possession of the Premises until
Tenant can surrender the Premises to Landlord in the condition required under
Section 14 above and in full compliance with the provisions of this Section 28.
The burden of proof under this Section 28.5 shall be upon Tenant. For purposes
of Section 14, the term "normal wear and tear" shall not include any
deterioration in the condition or diminution of the value of any portion of the
Premises or the Project in any manner whatsoever related directly or indirectly
to Hazardous Substances. Any such holdover by Tenant shall be with Landlord's
consent, will not be terminable by Tenant in any event or circumstance and will
otherwise be subject to Section 15 above.
28.6 Prior Contamination. Tenant hereby acknowledges that Landlord has
informed Tenant that certain chlorinated volatile organic compounds may be
present in the groundwater under the Project as of the date of this Lease (the
"Prior Contamination"). Tenant hereby covenants for the benefit of Landlord that
it will not use or store any chlorinated volatile organic compounds on the
Premises or within the Project. Tenant agrees and acknowledges that: (a) except
as expressly provided in this Lease, neither Landlord nor any of Landlord's
representatives have made any representations or warranties about the
environmental condition of the Project or the accuracy or completeness of any
environmental reports made available to Tenant regarding the Land; (ii) Tenant
is sophisticated, knowledgeable and experienced in the analysis of environmental
matters and that Tenant has entered into this Lease with the intention of making
and relying upon its own (or its experts') investigation of the environmental
condition of the Project; and (iii) Tenant is not relying upon any
representations or warranties purportedly made by Landlord or anyone acting or
claiming to act on Landlord's behalf concerning the Project.
28.7 Landlord's Remedial Work.
(a) In the event that any Remedial Work is required by Governmental
Requirements to be performed in the Project as a result of Hazardous Substances
that are regulated by any local government authority, the State of California or
the United States government as of the Commencement Date and that are located in
the Project as of the Commencement Date ("Pre-Existing Hazardous Substances"),
then, except to the extent such Remedial Work is required solely by reason of
any negligent or intentional misconduct by Tenant or any Tenant Parties,
Landlord shall perform or cause to be performed, at no cost to Tenant, the
Remedial Work in compliance with all Governmental Requirements. Landlord's
performance of any Remedial Work shall not render Landlord liable for damages to
either person or property or for interruption or loss to Tenant's business, nor
be construed as an eviction of Tenant, nor work an abatement of any portion of
Rent, nor relieve Tenant from fulfillment of any covenant or agreement hereof;
provided, however, that if (i) Tenant is prevented from using all or part of the
Premises as a result of Landlord's Remedial Work (an "Environmental
Interruption"), (ii) such Environmental Interruption continues for five (5)
consecutive business days after Landlord's receipt of notice thereof from
Tenant, and (iii) the Remedial Work is not required by reason of the use,
storage, treatment, transportation, release, or disposal of any Hazardous
Substances on or about the Project by Tenant or any Tenant Parties, then Rent
payable under this Lease shall be equitably abated or reduced for such time that
Tenant continues to be prevented from using all or part of the Premises in the
proportion that the rentable square feet affected by the Environmental
Interruption bears to the total rentable square feet of the Premises. For the
avoidance of doubt, Tenant shall not be liable or responsible for Remedial Work
with respect to Pre-Existing Hazardous Substances, unless and except to the
extent exacerbated by the use, storage, treatment, transportation, release or
disposal of any Hazardous Substances on or about the Project by Tenant or any
Tenant Parties.
(b) Landlord shall indemnify and hold Tenant harmless from any Claims to
the extent any such Claim results from or arises out of the negligent use,
storage, treatment, transportation, release, or disposal of any Hazardous
Substances on or about the Project by Landlord, its agents, employees, or
contractors. Landlord's liability under the foregoing indemnity (i) is personal
to Tenant and may not be assigned to or relied upon by any third party other
than a Permitted Transferee without Landlord's prior written consent, which may
be withheld in Landlord's sole and absolute discretion, (ii) is limited to
Tenant's actual, out of pocket costs incurred in connection with complying with
any order of any applicable state or federal agencies relating to the
remediation, removal, disposal or monitoring ("Compliance Order") of Hazardous
Substances on or about the Project as a result of the negligent use, storage,
treatment, transportation, release, or disposal by Landlord, its agents,
employees or contractors, and to reasonable consultants fees and costs and
reasonable attorneys' fees and costs incurred in defending against a proposed
Compliance Order, so long as Landlord may select the attorney to defend Tenant
and have sole authority to make all settlement and other decisions in regard to
the proceedings, including the decision whether to challenge the Compliance
Order (and any related order or action) by appeal or court challenge, and (iii)
specifically excludes any claims, costs, damages or losses for personal injury,
property damage, punitive damages, damage to business, lost profits, or
consequential damages incurred by Tenant or any third party.
28.8 Definition of "Hazardous Substances". "Hazardous Substances" means any
hazardous or toxic substances, materials or waste which are or become regulated
by any local government authority, the state in which the Project is located or
the United States government, including those substances described in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601 et seq., the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. Section 6901 et seq., any other applicable federal,
state or local law, and the regulations adopted under these laws.
29. EXCULPATION. Landlord shall have no personal liability under this
Lease; its liability shall be limited solely and exclusively to an amount which
is equal to the lesser of (a) the interest of Landlord in the Project or (b) the
equity interest Landlord would have in the Project if the Project were
encumbered by third-party debt in an amount equal to eighty percent (80%) of the
value of the Project (as such value is determined by an arms' length licensed
appraiser reasonably acceptable to Landlord and Tenant). In no event shall
Landlord's liability extend to any other property or assets of Landlord, nor
shall any officer, director, employee, agent, shareholder, partner, member or
beneficiary of Landlord be personally liable for any of Landlord's obligations
hereunder. Further, in no event shall Landlord be liable under any circumstances
for any consequential damages or for injury or damage to, or interference with,
Tenant's business, including but not limited to, loss of profits, loss of rents
or other revenues, loss of business opportunity, loss of goodwill, or loss of
use, however occurring.
30. COMMUNICATIONS AND COMPUTER LINES. Tenant may install, maintain,
replace, remove or use any communications or computer wires and cables
(collectively, the "Lines") at the Project in or serving the Premises, provided
that (a) Tenant shall obtain Landlord's prior written consent, use an
experienced and qualified contractor approved in writing by Landlord, and comply
with all of the other provisions of this Lease, (b) an acceptable number of
spare Lines and space for additional Lines shall be maintained for existing and
future occupants of the Project, as determined in Landlord's reasonable opinion,
(c) the Lines therefor (including riser cables) shall be appropriately insulated
to prevent excessive electromagnetic fields or radiation, and shall be
surrounded by a protective conduit reasonably acceptable to Landlord, (d) any
new or existing Lines servicing the Premises shall comply with all Governmental
Requirements, and (e) Tenant shall pay all costs in connection with the
foregoing. Landlord reserves the right to require that Tenant remove any Lines
located in or serving the Premises which are installed in violation of these
provisions, or which are at any time in violation of any Governmental
Requirements or represent a dangerous or potentially dangerous condition. Tenant
shall remove any or all Lines installed by or for Tenant within or serving the
Premises upon expiration or sooner termination of this Lease. If Tenant fails to
remove such Lines as required by Landlord, or violates any other provision of
this Section, Landlord may, after ten (10) days' written notice to Tenant,
remove such Lines or remedy such other violation, at Tenant's expense (without
limiting Landlord's other remedies available under this Lease or Governmental
Requirements).
31. OPTION TO EXTEND.
31.1 Renewal Option. Subject to the terms and conditions set forth below,
Landlord hereby grants to Tenant two (2) successive options to extend the Term
of this Lease (each, a "Renewal Option") for additional periods of five (5)
years each (each, a "Renewal Term"). The second Renewal Option may be exercised
only if the first Renewal Option has been duly exercised. Each Renewal Term
shall be upon the same terms, covenants and conditions of this Lease, including
provisions regarding payment of Additional Rent, which shall remain payable on
the terms herein set forth, except that (a) the Base Rent payable by Tenant
during the Renewal Terms shall be as determined in accordance with Sections 31.3
and 31.4 below, (b) Tenant shall continue to possess and occupy the Premises in
their existing condition, "as is" as of the commencement of each Renewal Term,
and Landlord shall have no obligation to repair, remodel, improve or alter the
Premises, to perform any other construction or other work of improvement upon
the Premises, or to provide Tenant with any construction or refurbishing
allowance whatsoever, and (c) Tenant shall have no further rights to extend the
Term of this Lease after the expiration of the second Renewal Term.
31.2 Conditions of Exercise. To exercise each Renewal Option, Tenant must
deliver an unconditional binding notice to Landlord via certified mail or hand
delivery not sooner than three hundred sixty-five (365) days nor later than two
hundred forty (240) days prior to the then current Termination Date. If Tenant
fails to timely give its notice of exercise, Tenant will be deemed to have
waived the applicable (and any subsequent) Renewal Option.
31.3 Market Rate Calculation. The Base Rent payable by Tenant for the
Premises during each Renewal Term shall be the Market Rate (as defined below)
for the Premises, valued as of the commencement of such Renewal Term, determined
in the manner hereinafter provided. As used herein, the term "Market Rate" shall
mean the annual amount of Base Rent that a willing tenant would pay, and that a
willing landlord would accept, at arm's length, for space comparable to the
Premises within the Project or other comparable first class office/R&D projects
in the vicinity of the Project (the "Comparison Projects"), based upon binding
lease transactions for tenants in the Comparison Projects that, where possible,
commence or are to commence within six (6) months prior to or within six (6)
months after the commencement of the Renewal Term ("Comparison Leases").
Comparison Leases shall include renewal and new non-renewal tenancies, but shall
exclude subleases and leases of space subject to another tenant's expansion
rights. Rental rates payable under Comparison Leases shall be adjusted to
account for variations between this Lease and the Comparison Leases with respect
to: (a) the length of the Renewal Term compared to the lease term of the
Comparison Leases; (b) rental structure, including, without limitation, rental
rates per rentable square foot (including type, gross or net, and if gross,
adjusting for base year or expense stop), additional rental, escalation
provisions, all other payments and escalations; (c) the size of the Premises
compared to the size of the premises of the Comparison Leases; (d) location,
floor levels and efficiencies of the floor(s) for which the determination is
being made; (e) free rent, moving expenses and other cash payments, allowances
or other monetary concessions affecting the rental rate; (f) the age and quality
of construction of the Buildings (including compliance with applicable codes on
the applicable floors); and (g) leasehold improvements and/or allowances,
including the amounts thereof in renewal leases, and taking into account, in the
case of renewal leases (including this Lease), the value of existing leasehold
improvements to the renewal tenant.
31.4 Base Rent Determination. The Base Rent payable by Tenant for the
Premises during each Renewal Term shall be determined as follows:
(a) Not sooner than three hundred sixty-five (365) days nor later than two
hundred seventy (270) days prior to the then current Termination Date, Tenant
may notify Landlord of Tenant's interest in exercising a Renewal Option. If
Tenant gives Landlord such notice, Landlord and Tenant shall negotiate in good
faith to determine the Market Rate for the Premises for the applicable Renewal
Term. If Landlord and Tenant are able to agree on such Market Rate prior to the
date that that is two hundred forty (240) days prior to the then current
Termination Date (the "Exercise Deadline"), then such agreement shall constitute
a determination of the Market Rate for purposes of this Section, and the parties
shall immediately execute an amendment to this Lease stating the Base Rent for
the applicable Renewal Term. If Landlord and Tenant are unable to agree on the
Market Rate for the applicable Renewal Term prior to the Exercise Deadline,
Tenant may (i) exercise the applicable Renewal Option in accordance with the
provisions of Section 31.2 above, in which case the determination of Market Rate
shall be made in accordance with Subsections 31.4(c), (d), and (e) below, or
(ii) elect not to exercise the Renewal Option.
(b) If Tenant does not notify Landlord of its interest in exercising the
applicable Renewal Option pursuant to Section 31.4(a) above, but provides
Landlord with its unconditional binding notice of exercise pursuant to Section
31.2 above, then, prior to the commencement of the applicable Renewal Term,
Landlord shall deliver to Tenant a good faith written proposal of the Market
Rate. Within twenty-one (21) days after receipt of Landlord's proposal, Tenant
shall notify Landlord in writing (1) that Tenant accepts Landlord's proposal or
(2) that Tenant elects to submit the determination of Market Rate to arbitration
in accordance with Subsections 31.4(c) through 31.4(d) below. If Tenant does not
give Landlord a timely notice in response to Landlord's proposal, Landlord's
proposal of Market Rate shall be binding upon Tenant. If Tenant timely elects to
submit the determination of Market Rate to arbitration, Landlord and Tenant
shall first negotiate in good faith in an attempt to determine the Market Rate.
If Landlord and Tenant are able to agree within thirty (30) days following the
delivery of Tenant's notice to Landlord electing arbitration (the "Negotiation
Period") (or if Tenant accepts Landlord's initial proposal), then such agreement
shall constitute a determination of Market Rate for purposes of this Section,
and the parties shall immediately execute an amendment to this Lease stating the
Base Rent for the applicable Renewal Term.
(c) If Tenant exercises the Renewal Option as described in Section 31.4(a)
above, or if Landlord and Tenant are unable to agree on the Market Rate within
the Negotiating Period as described in Section 31.4(b) above, then within
fifteen (15) days after Tenant's exercise or the expiration of the Negotiating
Period, as the case may be, the parties shall meet and concurrently deliver to
each other in envelopes their respective good faith estimates of the Market Rate
(set forth on a net effective rentable square foot per annum basis). Each
party's estimate may be more or less than such party's proposals of Market Rate,
if any, made under Section 31.4(a) above. If the higher of the parties'
estimates is not more than one hundred five percent (105%) of the lower, then
the Market Rate shall be the average of the two. Otherwise, the dispute shall be
resolved by arbitration in accordance with Subsections 31.4(d) and 31.4(e)
below.
(d) Within seven (7) days after the exchange of estimates, the parties
shall select as an arbitrator an independent real estate broker with at least
five (5) years of experience in leasing commercial office space in the
metropolitan area in which the Project is located (a "Qualified Appraiser"). If
the parties cannot agree on a Qualified Appraiser, then within a second period
of seven (7) days, each shall select a Qualified Appraiser and within ten (10)
days thereafter the two appointed Qualified Appraisers shall select an
independent Qualified Appraiser and the independent Qualified Appraiser shall be
the sole arbitrator. If one party shall fail to select a Qualified Appraiser
within the second seven (7) day period, then the Qualified Appraiser chosen by
the other party shall be the sole arbitrator.
(e) Within twenty-one (21) days after submission of the matter to the
arbitrator, the arbitrator shall determine the Market Rate by choosing whichever
of the estimates submitted by Landlord and Tenant the arbitrator judges to be
more accurate. The arbitrator shall notify Landlord and Tenant of its decision,
which shall be final and binding. If the arbitrator believes that expert advice
would materially assist him, the arbitrator may retain one or more qualified
persons to provide expert advice. The fees of the arbitrator and the expenses of
the arbitration proceeding, including the fees of any expert witnesses retained
by the arbitrator, shall be paid by the party whose estimate is not selected.
Each party shall pay the fees of its respective counsel and the fees of any
witness called by that party.
(f) Until the matter is resolved by agreement between the parties or a
decision is rendered in any arbitration commenced pursuant to this Section 31,
Tenant's monthly payments of Base Rent shall be in an amount equal to Landlord's
determination of the Market Rate. Within ten (10) business days following the
resolution of such dispute by the parties or the decision of the arbitrator, as
applicable, Tenant shall pay to Landlord, or Landlord shall pay to Tenant, the
amount of any deficiency or excess, as the case may be, in the Base Rent
theretofore paid.
31.5 General Requirements. Tenant's right to exercise the Renewal Options
is personal to, and may be exercised only by, the original named Tenant under
this Lease and any Permitted Transferee, and only if the original named Tenant
or any Permitted Transferee continues to occupy the entire Premises at the time
of such exercise. If Tenant shall assign this Lease or sublet one hundred
percent (100%) of either Building A or Building B under a sublease which is
effective at any time during the final twelve (12) months of the initial Term,
then, unless such assignment or sublease was to a Permitted Transferee, Tenant's
right to exercise the Renewal Options shall, immediately upon such assignment or
subletting, simultaneously terminate and be of no further force or effect. No
assignee or subtenant other than a Permitted Transferee shall have any right to
exercise the Renewal Options granted herein. In addition, if an Event of Default
is continuing uncured under this Lease at the time it exercises any Renewal
Option or at any time thereafter until the commencement of the applicable
Renewal Term or if an Event of Default has occurred at any time prior to its
exercise of a Renewal Option, Landlord shall have, in addition to all of its
other rights and remedies under this Lease, the right (but not the obligation)
to terminate the remaining Renewal Options and to unilaterally revoke Tenant's
exercise of any Renewal Option, in which case this Lease shall expire on the
then current Termination Date, unless earlier terminated pursuant to the terms
hereof, and Tenant shall have no further rights under this Lease to renew or
extend the Term.
32. RIGHT OF FIRST OFFER.
32.1 First Offer Space; Exercise. Subject to the conditions set forth in
this Section 34, Tenant shall have a right of first offer to lease the building
in the Project located at 000 Xxxxxxx Xxxxx (the "First Offer Space"), in the
event that the First Offer Space becomes available for lease to third parties
during the Term. Prior to leasing any of the First Offer Space to a third party,
Landlord will give notice to Tenant (an "Offering Notice") specifying Landlord's
good faith estimate of (1) the Base Rent which Landlord proposes to charge for
such First Offer Space, (2) the approximate date upon which such First Offer
Space is anticipated to be available for delivery, and (3) any other material
conditions or provisions relating to the leasing of such First Offer Space which
vary from the provisions of this Lease. If Tenant wishes to lease the First
Offer Space on the terms specified by Landlord in the Offering Notice, Tenant
shall so notify Landlord within ten (10) days after receipt thereof, which
notice shall be unconditional and irrevocable. Tenant may exercise its right of
first offer only with respect to all of the First Offer Space identified in the
Offering Notice, and only if Tenant intends to occupy such First Offer Space in
connection with its own reasonably foreseeable needs.
32.2 Terms and Conditions. If Tenant timely exercises its right to lease
the First Offer Space, then except as specified in this Section 34 or in the
Offering Notice (which shall govern to the extent of any conflict with this
Lease), the First Offer Space leased by Tenant shall become part of the Premises
on all of the terms and conditions of this Lease for the remainder of the Term,
provided that (i) the Base Rent for such First Offer Space shall be determined
as specified above, (ii) Tenant's Proportionate Share shall be adjusted to
reflect the addition of such First Offer Space, and (iii) the First Offer Space
shall be delivered in its then existing "as is" condition, without obligation on
the part of Landlord to make any repairs or construct any improvements thereto
in connection with Tenant's contemplated use, or to demolish existing
improvements therein, except as set forth in the Offering Notice, and Tenant
shall be responsible for the construction and installation in accordance with
the provisions of Section 5 above of any tenant improvements it desires to
install within such First Offer Space, at Tenant's sole cost and expense. Except
as may be provided to the contrary in the Offering Notice, Tenant shall commence
paying Base Rent and all Additional Rent with respect to the First Offer Space
leased by Tenant hereunder on the date of delivery of such First Offer Space to
Tenant in the condition required hereunder. Promptly following Tenant's timely
exercise of its right to lease any of the First Offer Space, Landlord shall
prepare, and Landlord and Tenant shall execute, an amendment to this Lease
reflecting the addition of such First Offer Space. Tenant's right of first offer
under this Section 32 shall be a one-time right as to any particular First Offer
Space. If Tenant fails to timely notify Landlord that it wishes to lease any
portion of the First Offer Space identified in an Offering Notice, or if Tenant
fails to execute and deliver said lease amendment to Landlord within ten (10)
business days following receipt thereof by Tenant, Landlord may thereafter lease
such portion of the First Offer Space to any person on terms and conditions it
may deem appropriate in Landlord's sole discretion and Tenant shall have no
further rights with respect to such portion of the First Offer Space; provided,
however, if Landlord does not lease such First Offer Space within one hundred
eighty (180) days after the expiration of said five (5) business day period, any
further transaction shall be deemed a new determination by Landlord to lease
such First Offer Space and the provisions of this paragraph shall again be
applicable.
32.3 Conditions to Exercise. Notwithstanding anything to the contrary set
forth herein, if Tenant is in material default under this Lease (after any
applicable notice and cure period) at the time an Offering Notice would
otherwise be required to be sent under this Section 32, or any other time
following Tenant's exercise of its right to lease the First Offer Space and
prior to the date upon which possession of the First Offer Space is to be
delivered to Tenant, Landlord shall have, in addition to all of its other rights
and remedies under this Lease, the right (but not the obligation) to terminate
Tenant's rights under this Section 32, and in such event Landlord shall not be
required to deliver the Offering Notice or to deliver possession of the First
Offer Space to Tenant. Nothing contained in this Section 32 shall be deemed to
impose any obligation on Landlord to refrain from negotiating with the existing
occupant of the First Offer Space, to withhold the First Offer Space from the
market, or to take any other action or omit to take any other action in order to
make the First Offer Space available to Tenant. The rights of Tenant pursuant to
this Section 32 shall automatically terminate upon the Termination Date, as
extended.
32.4 Rights Personal to Tenant. Tenant's right to lease the First Offer
Space is personal to, and may be exercised only by, the original named Tenant
under this Lease or a Permitted Transferee. If Tenant shall assign this Lease or
sublet one hundred percent (100%) of either Building A or Building B under a
sublease which is effective at any time during the final twelve (12) months of
the initial Term, then immediately upon such assignment or subletting, Tenant's
right to lease the First Offer Space shall simultaneously terminate and be of no
further force or effect. No assignee or subtenant other than the Permitted
Transferees shall have any right to lease the First Offer Space hereunder.
33. USE OF TRACTORS. Tenant shall have the right to use, operate and
maintain tractors in the Project to the extent necessary for the operation of
Tenant's business in the Premises, subject to the provisions of this Section 33.
33.1 Landlord has made no representations or promise as to the suitability
or effectiveness of any part of the Project for, or as to any Governmental
Requirements applicable to, Tenant's proposed use, operation and maintenance of
such tractors.
33.2 Tenant shall designate parking spaces for such tractors in the parking
area, provided that such parking spaces shall be subject to the reasonable
approval of Landlord. Landlord's approval of such parking spaces shall in no
event increase the number of parking spaces to which Tenant is entitled as set
forth in the Schedule. Landlord reserves the right to require that parking
spaces for the tractors be relocated to another location as Landlord shall
reasonably designate.
33.3 Tenant, at its expense, shall at all times keep the tractors in good
order, condition and repair. With respect to all operations relating to the
tractors, Tenant shall conduct its business and control its agents, employees
and invitees in such manner as not to create any nuisance, or interfere with,
annoy or disturb any other licensee or tenant of the Project or Landlord in its
operation of the Project.
33.4 Any damage to the parking areas or any other portion of the Project
from Tenant's operation, use, or maintenance of tractors, shall be repaired at
Tenant's sole cost and expense. Tenant shall reimburse Landlord for any costs
and expenses so incurred by Landlord within thirty (30) days after Landlord's
written request therefor.
33.5 Tenant, at its expense, shall comply with all Governmental
Requirements applicable to the maintenance, operation, and use of the tractors.
33.6 Tenant, at its expense, shall remove or relocate the tractors on a
temporary basis upon notice from Landlord at any time Landlord determines such
removal or relocation is reasonably necessary or appropriate for the expeditious
repair, replacement, alteration, improvement or additions to or of the Project,
or to access any area for Project needs.
33.7 Tenant assumes full responsibility for protecting from theft or damage
the tractors and any other tools or equipment that Tenant may use in connection
with the operation, use, or maintenance thereof, assumes all risk of theft, loss
or damage, and waives any Claim with respect thereto against Landlord and the
other Landlord Parties. Tenant shall cause the insurance policies required to be
maintained pursuant to Section 8 to cover the tractors and any Claims arising in
connection with the presence, use, operation, repair, maintenance, or removal
thereof. Tenant hereby agrees to protect, defend, indemnify and hold Landlord
and the other Landlord Parties, and each of them, harmless from and against any
and all Claims arising from or connected in any way with the tractors or the
operations of Tenant or any Tenant Parties in connection therewith (except, with
respect to any Landlord Party, to the extent caused by the gross negligence or
willful misconduct of such Landlord Party or otherwise prohibited by
Governmental Requirements), including, without limitation, (i) all foreseeable
and unforeseeable consequential damages, (ii) any violation of Governmental
Requirements, and (iii) any personal injuries or property damage. The foregoing
indemnity shall survive the expiration or earlier termination of this Lease.
Signatures follow on next page.
IN WITNESS WHEREOF, the parties hereto have executed this Lease.
LANDLORD:
CARRAMERICA REALTY OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: CarrAmerica Realty Corporation,
a Maryland corporation, its general partner
By:/s/ Xxxxxxxxxxx Xxxxxxxx
Xxxxxxxxxxx Xxxxxxxx
Managing Director
Date of Execution:
TENANT:
XXXXXXX NAVIGATION LIMITED,
a California corporation
By:/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
President and Chief Executive Officer
By: /s/ Xxxxx Xxxxx
Xxx Xxxxx
Chief Financial Officer
Date of Execution: 5/11/05
EXHIBIT A
DESCRIPTION OF PREMISES
[See Attached]
[pictoral image of premises omitted]
EXHIBIT B
RULES AND REGULATIONS
1.Tenant shall not place anything, or allow anything to be placed near the glass
of any window, door, partition or wall which may, in Landlord's judgment, appear
unsightly from outside of the Project.
2. The sidewalks, exits and entrances located in the common areas of the Project
shall not be obstructed by Tenant or used by Tenant for any purposes other than
for ingress to and egress from the Premises. Tenant shall lend its full
cooperation to keep such areas free from all obstruction and in a clean and
sightly condition and shall move all supplies, furniture and equipment as soon
as received directly to the Premises and move all such items and waste being
taken from the Premises (other than waste customarily removed by employees of
the Buildings) directly to the shipping platform at or about the time arranged
for removal therefrom.
3. Tenant shall not bring upon, use or keep in the Premises or the Project any
kerosene, gasoline or inflammable or combustible fluid or material, or any other
articles deemed hazardous to persons or property.
4. Landlord shall have sole power to direct electricians as to where and how
telephone and other wires are to be introduced. No boring or cutting for wires
is to be allowed without Landlord's prior written consent. The location of
telephones, call boxes and other office equipment affixed to the Premises shall
be subject to Landlord's prior approval.
5. Upon termination of the Lease, Tenant shall deliver to Landlord all keys and
passes for offices, rooms, parking lot and toilet rooms which shall have been
furnished Tenant. If the keys so furnished are lost, Tenant shall pay Landlord
therefor.
6. Tenant shall not install linoleum, tile, carpet or other floor covering so
that the same shall be affixed to the floor of the Premises in any manner except
as approved by Landlord.
7. No furniture, packages, supplies, equipment or merchandise will be received
in the Project, except between the hours of 7:00 a.m. and 6:00 p.m.
8. Without Landlord's prior written consent, which consent shall not be
unreasonably withheld, Tenant shall not use the name of the Project or any
picture of the Project in connection with, or in promoting or advertising the
business of, Tenant, except Tenant may use the address of the Project as the
address of its business.
9. Tenant assumes full responsibility for protecting the Premises from theft,
robbery and pilferage, which may arise from a cause other than Landlord's
negligence, which includes keeping doors locked and other means of entry to the
Premises closed and secured.
10. Peddlers, solicitors and beggars shall be reported to the office of the
Project or as Landlord otherwise requests.
11. Tenant shall not advertise the business, profession or activities of Tenant
conducted in the Project in any manner which violates the letter or spirit of
any code of ethics adopted by any recognized association or organization
pertaining to such business, profession or activities.
12. Tenant shall not make or permit any noise, vibration or odor to emanate from
the Premises, or do anything therein tending to create, or maintain, a nuisance.
13. Tenant acknowledges that security problems may occur which may require the
employment of extreme security measures in the day-to-day operation of the
Project.
Accordingly:
(a) Landlord may, at any time, or from time to time, or for regularly
scheduled time periods, as deemed advisable by Landlord and/or its agents, in
their sole discretion, require that persons entering or leaving the Project
identify themselves to watchmen or other employees designated by Landlord, by
registration, identification or otherwise.
(b) Tenant agrees that it and its employees will cooperate fully with
Project employees in the implementation of any and all security procedures.
(c) Such security measures shall be the sole responsibility of Landlord,
and Tenant shall have no liability for any action taken by Landlord in
connection therewith, it being understood that Landlord is not required to
provide any security procedures and shall have no liability for such security
procedures or the lack thereof.
14. Tenant shall not disturb the quiet enjoyment of any other tenant.
15. Landlord may retain a pass key to the Premises and, subject to the
applicable provisions of the Lease, be allowed admittance thereto at all times
to enable its representatives to examine the Premises from time to time and to
exhibit the same and Landlord may place and keep on the windows and doors of the
Premises at any time signs advertising the Premises for Rent.
16. No equipment, mechanical ventilators, awnings, special shades or other forms
of window covering shall be permitted either inside or outside the windows of
the Premises without Landlord's prior written consent, and then only at the
expense and risk of Tenant, and they shall be of such shape, color, material,
quality, design and make as may be approved by Landlord.
17. Tenant shall not during the term of this Lease canvas or solicit other
tenants of the Project for any purpose.
18. Subject to Section 6.4 of the Lease, pursuant to which Tenant may install
and maintain certain GPS equipment on the roof of each Building, Tenant shall
not install or operate any phonograph, musical or sound- producing instrument or
device, radio receiver or transmitter, TV receiver or transmitter, or similar
device in the Buildings, nor install or operate any antenna, aerial, wires or
other equipment inside or outside the Buildings, nor operate any electrical
device from which may emanate electrical waves, which may interfere with or
impair radio or television broadcasting or reception from or in the Project or
elsewhere, without in each instance Landlord's prior written approval. The use
thereof, if permitted, shall be subject to control by Landlord to the end that
others shall not be disturbed.
19. Tenant shall promptly remove all rubbish and waste from the Premises.
20. Tenant shall not exhibit, sell or offer for sale, rent or exchange in the
Premises or at the Project any article, thing or service, except those
ordinarily embraced within the use of the Premises specified in Section 6 of
this Lease, without Landlord's prior written consent.
21. Tenant shall not overload any floors in the Premises or any public corridors
or elevators in the Buildings.
22. Except as permitted under the Lease, Tenant shall not do any painting in the
Premises, or xxxx, paint, cut or drill into, drive nails or screws into, or in
any way deface any part of the Premises, outside or inside, without Landlord's
prior written consent.
23. Whenever Landlord's consent, approval or satisfaction is required under
these Rules, then unless otherwise stated, any such consent, approval or
satisfaction must be obtained in advance, such consent or approval may be
granted or withheld in Landlord's sole discretion, and Landlord's satisfaction
shall be determined in its sole judgment.
24. Tenant and its employees shall cooperate in all fire drills conducted by
Landlord in the Buildings or Project.
EXHIBIT C
TENANT IMPROVEMENT AGREEMENT
This Tenant Improvement Agreement is attached to and forms a part of
the Lease dated as of May 11, 2005 (the "Lease"), by and between CARRAMERICA
REALTY OPERATING PARTNERSHIP, L.P., a Delaware limited partnership ("Landlord")
and XXXXXXX NAVIGATION LIMITED, a California corporation ("Tenant"), pertaining
to certain premises located at 000 XxXxxxxx Xxxxx and 000 Xxxxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxxxx (collectively, the "Premises"). Except where clearly
inconsistent or inapplicable, the provisions of the Lease are incorporated into
this Tenant Improvement Agreement, and capitalized terms used without being
defined in this Tenant Improvement Agreement shall have the meanings given them
in the Lease.
The purpose of this Tenant Improvement Agreement is to set forth the
respective responsibilities of Landlord and Tenant with respect to the design
and construction of all alterations, additions and improvements which Tenant may
deem necessary or appropriate to prepare the Premises for occupancy by Tenant
under the Lease. Such alterations, additions and improvements to the Premises
are referred to in this Tenant Improvement Agreement as the "Tenant
Improvements," and the work of constructing the Tenant Improvements is referred
to as the "Tenant Improvement Work".
Landlord and Tenant agree as follows:
1. General.
1.1 Tenant is solely responsible for designing the Tenant Improvements and
performing the Tenant Improvement Work (subject to Landlord's rights of review
and approval set forth in this Tenant Improvement Agreement).
1.2 Landlord's sole interest in reviewing and approving the Construction
Drawings (as hereinafter defined) is to protect the Premises and Landlord's
interests, and no such review or approval by Landlord shall be deemed to create
any liability of any kind on the part of Landlord, or constitute a
representation on the part of Landlord or any person consulted by Landlord in
connection with such review and approval that the Space Plans or Final Working
Drawings are correct or accurate, or are in compliance with any Governmental
Requirements.
1.3 Landlord shall contribute (subject to the terms and conditions set
forth in this Tenant Improvement Agreement) the amount specified in Section 4.1
below as the "Construction Allowance," towards the costs of designing the Tenant
Improvements and performing the Tenant Improvement Work.
1.4 Tenant shall be responsible for all costs of designing the Tenant
Improvements and performing the Tenant Improvement Work to the extent such costs
exceed the Construction Allowance.
1.5 On reasonable prior notice, Landlord will permit Tenant and Tenant's
Agents (as defined below) to enter the Premises from time to time prior to the
Commencement Date as may be reasonably necessary or appropriate. Tenant shall
indemnify, protect, defend and hold Landlord and the other Landlord Parties
harmless from and against any and all Claims suffered or incurred by Landlord or
the other Landlord Parties arising from such entry.
2. Design and Approval of the Tenant Improvements.
2.1 Selection of Tenant's Architect; Construction Drawings.
(a) Tenant shall retain an architect/space planner ("Tenant's Architect")
to prepare the Construction Drawings, and shall retain engineering consultants
(the "Engineers") to prepare all plans and engineering working drawings relating
to the structural, mechanical, electrical, plumbing, HVAC, life-safety and
sprinkler work, if any, in the Premises in connection with the Tenant
Improvements. Tenant's Architect and Engineers shall be subject to the written
approval of Landlord, which approval will not be unreasonably withheld or
delayed; provided, however, that Landlord hereby approves AP+I Design, Inc. and
its subcontractors as Tenant's Architect and Engineers. The plans and drawings
to be prepared by Tenant's Architect and the Engineers hereunder shall be known,
collectively, as the "Construction Drawings".
(b) All Construction Drawings shall be subject to Landlord's approval,
which approval shall not be unreasonably withheld or delayed. Landlord shall, if
available, supply Tenant with a set of drawings of the Buildings which Tenant
may use in connection with the preparation of the Construction Drawings, but
Tenant agrees that Landlord shall have no liability for the completeness or
accuracy thereof, and Tenant's Architect shall be responsible for performing all
necessary field measurements and confirming the completeness and accuracy of
such drawings.
2.2 Space Plans. Prior to drafting any Construction Drawings, Tenant shall
furnish Landlord with Tenant's final space plans for the Premises ("Space
Plans"). The Space Plans shall show locations of all proposed improvements,
including partitions, cabinetry, equipment and fixtures, shall identify
materials and finishes by location, and shall specify the location of any
proposed structural floor penetrations, the location and extent of floor loading
in excess of Building capacity, if any, any special HVAC requirements, the
location and description of any special plumbing requirements, and any special
electrical requirements. In addition, the Space Plans shall show telephone and
telecommunications facilities, and computer and electronic data facilities.
Landlord shall approve or disapprove the Space Plans by written notice given to
Tenant within ten (10) business days after receipt of the Space Plans. Landlord
shall not unreasonably withhold its approval of the Space Plans, provided that,
without limiting the generality of the foregoing, Landlord shall be entitled to
withhold its consent to the Space Plans if, in Landlord's good faith judgment,
any one or more of the following situations exist: (a) the proposed Tenant
Improvements will adversely affect the exterior appearance of the Buildings; or
(b) the proposed Tenant Improvements may impair the structural strength of the
Buildings, adversely affect any Building Systems or materially adversely affect
the value of the Buildings; or (c) the specifications for the proposed Tenant
Improvements are not consistent with, or would detract from, the character or
image of the Project. If Landlord disapproves the Space Plans, Landlord shall
return the Space Plans to Tenant with a statement of Landlord's reasons for
disapproval, or specifying any required corrections and/or revisions. Landlord
shall approve or disapprove of any revisions to the Space Plans by written
notice given to Tenant within five (5) business days after receipt of such
revisions. This procedure shall be repeated until Landlord approves the Space
Plans.
2.3 Final Working Drawings. Following Landlord's approval of the Space
Plans, Tenant shall cause Tenant's Architect and the Engineers to prepare and
submit for Landlord's approval complete and detailed construction plans and
specifications, including a fully coordinated set of architectural, structural,
mechanical, fire protection, electrical and plumbing working drawings for the
Tenant Improvement Work, in a form which is sufficiently complete to permit
subcontractors to bid on the work, obtain all required Permits (as hereinafter
defined) and commence construction (the "Final Working Drawings"). Tenant shall
furnish Landlord with four (4) copies signed by Tenant of such Final Working
Drawings. Landlord shall approve or disapprove of the Final Working Drawings by
giving written notice to Tenant within ten (10) business days after receipt
thereof. Landlord shall not unreasonably withhold or delay its approval of the
Final Working Drawings, provided that, without limiting the generality of the
foregoing, Landlord shall be entitled to withhold its consent to the Final
Working Drawings for any of the reasons specified in Section 2.2 above, or if in
Landlord's good faith judgment, the Final Working Drawings are inconsistent
with, or do not conform to, the Space Plans. If Landlord disapproves the Final
Working Drawings, Landlord shall return the Final Working Drawings to Tenant
with a statement of Landlord's reasons for disapproval and/or specifying any
required corrections or revisions. Landlord shall approve or disapprove of any
such revisions to the Final Working Drawings within five (5) business days after
receipt of such revisions. This procedure shall be repeated until Landlord
approves the Final Working Drawings (as so approved, the "Approved Working
Drawings").
3. Construction of Tenant Improvements.
3.1 Contracts with Tenant's Contractor and Subcontractors.
(a) Tenant shall retain a licensed general contractor as the contractor for
the construction of the Tenant Improvements ("Tenant's Contractor"). Tenant's
Contractor must be experienced in the performance of work comparable to the work
of the Tenant Improvements in buildings comparable to the Buildings, and shall
be subject to Landlord's prior approval, which approval shall not be
unreasonably withheld or delayed; provided, however, that Landlord hereby
approves XxXxxxxx Construction as Tenant's Contractor. All subcontractors,
laborers, materialmen and suppliers used by Tenant (such subcontractors,
laborers, materialmen and suppliers, together with Tenant's Contractor, are
collectively referred to herein as "Tenant's Agents") must be approved in
writing by Landlord, which approval shall not be unreasonably withheld;
provided, however, that Landlord reserves the right to require that any work to
be performed on the life-safety, electrical, plumbing, heating, ventilation,
air-conditioning, fire-protection, telecommunications or other Building Systems
serving the Premises (whether such systems are located within or outside the
Premises) be performed by subcontractors specified by Landlord.
(b) Tenant shall furnish Landlord with true and correct copies of all
construction contracts between or among Tenant, Tenant's Contractor and all
subcontractors relating to the Tenant Improvement Work, provided that Landlord's
review of such contracts shall not relieve Tenant from its obligations under
this Tenant Improvement Agreement nor shall such review be deemed to constitute
Landlord's representation that such contracts comply with the requirements of
this Tenant Improvement Agreement. All such contracts shall expressly provide
that (i) the work to be performed thereunder shall be subject to the terms and
conditions of this Tenant Improvement Agreement, including, without limitation,
that such work shall comply with the Tenant Construction Rules and Regulations
attached hereto as Schedule 1, and (ii) the Tenant Improvement Work (or in the
case of a subcontractor, the portion thereof performed by such subcontractor)
shall be warranted in writing to Tenant and Landlord to be free from any defects
in workmanship and materials for a period of not less than one (1) year from the
date of completion of the Tenant Improvement Work. Tenant agrees to give to
Landlord any assignment or other assurances which may be necessary to permit
Landlord to directly enforce such warranties (such warranties shall include,
without additional charge, the repair of any portion of the Buildings or common
areas of the Project which may be damaged as a result of the removal or
replacement of the defective Tenant Improvements). Tenant shall cause Tenant's
Agents to engage only labor that is harmonious and compatible with other labor
working in the Project. In the event of any labor disturbance caused by persons
employed by Tenant or Tenant's Contractor, Tenant shall immediately take all
actions necessary to eliminate such disturbance. If at any time any of Tenant's
Agents interferes with any other occupant of the Project, or hinders or delays
any other work of improvement in the Project, or performs any work which may or
does impair the quality, integrity or performance of any portion of the Project,
including any Building Systems, Tenant shall cause such subcontractor, laborer,
materialman or supplier to leave the Premises and remove all tools, equipment
and materials immediately upon written notice delivered to Tenant, and, without
limiting Tenant's indemnity obligations set forth in Section 8 of the Lease,
Tenant shall reimburse Landlord for all costs, expenses, losses or damages
incurred or suffered by Landlord resulting from the acts or omissions of
Tenant's Agents in or about the Buildings.
3.2 Permits. Following approval of the Final Working Drawings, Tenant shall
obtain all building permits and other permits, authorizations and approvals
which may be required in connection with, or to satisfy all Governmental
Requirements applicable to, the construction of the Tenant Improvements in
accordance with the Approved Working Drawings (the "Permits"). Tenant shall
provide Landlord with copies of any documents or applications filed by Tenant to
obtain Permits concurrently with any such filing, but in no event shall Tenant
file any such documents or applications until the Final Working Drawings have
been approved. Tenant agrees that neither Landlord nor Landlord's consultants
shall be responsible for obtaining any Permits or the certificate of occupancy
for the Premises, and that obtaining the same shall be Tenant's responsibility;
provided, however, that Landlord will cooperate with Tenant in executing permit
applications and performing other ministerial acts reasonably necessary to
enable Tenant to obtain any such Permits or certificate of occupancy. Any
amendments or revisions to the Approved Working Drawings that may be necessary
to obtain any such Permits, or which may be required by city officials or
inspectors to comply with code rulings or interpretations, shall be prepared by
Tenant's Architect, at Tenant's expense (provided that to the extent funds are
available, such expense may be reimbursed from the Construction Allowance), and
submitted to Landlord for Landlord's review and approval as a Change Order under
Section 5 below. If Landlord disapproves of such amendments or revisions,
Landlord shall return the same to Tenant with a statement of Landlord's reasons
for disapproval, or specifying any required corrections. This procedure shall be
repeated until Landlord approves the amendments or revisions and all Permits
have been obtained for the Approved Working Drawings, as so amended.
3.3 Commencement of Work. At least ten (10) days prior to the commencement
of construction of the Tenant Improvements, or the delivery of any construction
materials for the Tenant Improvement Work to the Premises, whichever is earlier,
Tenant shall submit to Landlord a notice specifying the date Tenant will
commence construction of the Tenant Improvements, the estimated date of
completion of the Tenant Improvements and the construction schedule provided by
Tenant's Contractor. In addition, prior to the commencement of construction of
the Tenant Improvements, or the delivery of any construction materials for the
Tenant Improvement Work to the Premises, whichever is earlier, Tenant shall
submit to Landlord the following: (a) all Permits required to commence
construction of the Tenant Improvements; (b) a copy of the executed construction
contract with Tenant's Contractor, in the form previously approved by Landlord,
together with a detailed breakdown, by trade, of the final costs to be incurred,
or which have theretofore been incurred, in connection with the design and
construction of the Tenant Improvements, which costs of construction form a
basis for the amount of the construction contract; and (c) true and correct
copies of all policies of insurance, or original certificates thereof executed
by an authorized agent of the insurer or insurers, together with any
endorsements referred to in Section 3.5 below, confirming to Landlord's
reasonable satisfaction compliance with the insurance requirements of this
Tenant Improvement Agreement.
3.4 Performance of Work. All work performed by Tenant's Contractor shall
strictly conform to the Approved Working Drawings, shall comply with all
Governmental Requirements (including building codes) and all applicable
standards of the American Insurance Association and the National Electrical Code
and all building material manufacturer's specifications, shall comply with all
rules and regulations from time to time adopted by Landlord to govern
construction in or about the Project, including the Tenant Construction Rules
and Regulations attached hereto as Schedule 1, and shall be performed in a good
and professional manner and so as not to interfere with the occupancy of any
other tenant of the Project, the performance of any other work within the
Project, or with Landlord's maintenance or operation of the Project. At all
times during construction of the Tenant Improvements, Landlord and Landlord's
employees and agents shall have the right to enter the Premises to inspect the
Tenant Improvement Work, and to require the correction of any faulty work or any
material deviation from the Approved Working Drawings. Tenant shall not close-up
any Tenant Improvement Work affecting the life safety, telecommunications,
heating, ventilation and air conditioning, plumbing, electrical or other
Building Systems in the Premises until the same have been inspected and approved
by Landlord's agents. No inspection or approval by Landlord of any such work
shall constitute an endorsement thereof or any representation as to the adequacy
thereof for any purpose or the conformance thereof with any Governmental
Requirements, and Tenant shall be fully responsible and liable therefor. In
addition to the Construction Administration Costs under Section 4.3 below,
Tenant shall reimburse Landlord for the cost of any repairs, corrections or
restoration which must be made, in Landlord's good faith judgment, to the
Premises if caused by Tenant's Contractor or any other of Tenant's Agents.
3.5 Insurance. At all times during the construction of the Tenant
Improvements (and in the case of Products and Completed Operations Coverage, for
5 years following completion of the Tenant Improvement Work), in addition to the
insurance required to be maintained by Tenant under the Lease, Tenant shall
require all of Tenant's Agents to maintain (a) Commercial General Liability
Insurance with limits of not less than $2,000,000 combined single limit for
bodily injury and property damage, including personal injury and death, and
Contractor's Protective Liability, and Products and Completed Operations
Coverage in an amount not less than $500,000 per incident, $1,000,000 in the
aggregate; (b) Comprehensive automobile liability insurance with a policy limit
of not less than $1,000,000 each accident for bodily injury and property damage,
providing coverage at least as broad as the Insurance Services Office (ISO)
Business Auto Coverage form covering Automobile Liability, code 1 "any auto",
and insuring against all loss in connection with the ownership, maintenance and
operation of automotive equipment that is owned, hired or non-owned; (c)
Worker's Compensation with statutory limits and Employer's Liability Insurance
with limits of not less than $100,000 per accident, $500,000 aggregate disease
coverage and $100,000 disease coverage per employee. In addition, Tenant shall
carry "Builder's All Risk" insurance in an amount approved by Landlord covering
the construction of the Tenant Improvements, including such extended coverage
endorsements as may be reasonably required by Landlord, it being understood and
agreed that the Tenant Improvements shall be insured by Tenant pursuant to
Section 8 of the Lease immediately upon completion thereof. Tenant's liability
insurance shall be written on an "occurrence" basis and shall name Landlord, the
holder of any Superior Interests and Landlord's designated agents as additional
insureds (by endorsement reasonably acceptable to Landlord). The "Builder's All
Risk" insurance shall name Landlord and such other parties as Landlord may
specify as the loss payee(s) with respect to all proceeds received therefrom.
All of the insurance required to be carried by Tenant hereunder shall provide
that it is primary insurance, and not excess over or contributory with any other
valid, existing, and applicable insurance in force for or on behalf of Landlord,
shall provide that Landlord shall receive thirty (30) days' written notice from
the insurer prior to any cancellation or change of coverage, and shall be placed
with companies which are rated A:VI or better by Best's Insurance Guide and
licensed to business in the State of California. All deductibles and
self-insured retentions under Tenant's policies are subject to Landlord's
reasonable approval, and all insurance, except Workers' Compensation, maintained
by Tenant's Agents shall preclude subrogation claims by the insurer against
anyone insured thereunder. Tenant's compliance with the provisions of this
Section shall in no way limit Tenant's liability under any of the other
provisions of the Lease.
3.6 Liens. Tenant shall keep the Premises free from any liens arising out
of work performed, materials furnished or obligations incurred by Tenant. Should
Tenant fail to remove any such lien within five (5) days after notice to do so
from Landlord, Landlord may, in addition to any other remedies, record a bond
pursuant to California Civil Code Section 3143 and all costs and obligations
incurred by Landlord in so doing shall immediately become due and payable by
Tenant to Landlord as Additional Rent under the Lease. Landlord shall have the
right to post and keep posted on the Premises any notices that may be required
or permitted by Governmental Requirements, or which Landlord may deem to be
proper, for the protection of Landlord and the Building from such liens.
Promptly following completion of construction, Tenant shall provide Landlord a
copy of a final unconditional lien release from Tenant's Contractor and each of
Tenant's Agents who performed work or supplied materials for the Tenant
Improvements. Upon completion of construction, Tenant shall promptly record a
Notice of Completion in accordance with California Civil Code Section 3093 and
provide a copy thereof to Landlord.
4. Responsibility for Design and Construction Costs.
4.1 Construction Allowance. Landlord will contribute to the costs of
designing the Tenant Improvements and performing the Tenant Improvement Work, as
depicted on the Approved Working Drawings, to the extent of the lesser of (a)
Two Million Eighty-Three Thousand One Hundred Ten Dollars ($2,083,110.00)
(calculated at the rate of $15.00 per square foot of rentable area in the
Premises) or (b) the actual cost for such work (the "Construction Allowance").
Tenant shall pay all costs in excess of the Construction Allowance for the
design and construction of the Tenant Improvements. Except as otherwise
specified in this Tenant Improvement Agreement, the Construction Allowance may
be applied only to the payment or reimbursement of: (i) costs of preparing the
Space Plans and Final Working Drawings, the cost of obtaining Permits and other
similar approvals and the costs and expenses incurred by Landlord in connection
with coordinating and supervising the Tenant Improvement Work, including,
without limitation, the Construction Administration Costs; and (ii) documented
costs of labor and materials incorporated into the Tenant Improvements
(including all costs of relocating and installing data and telephone cabling [up
to a maximum of $6.00 per square foot of rentable area in the Premises], but
excluding all costs of furnishings, fixtures, equipment, signage and other
personal property).
4.2 Disbursement of Construction Allowance.
(a) Landlord shall pay the Construction Allowance to Tenant on a progress
payment basis within forty-five (45) days after Landlord's receipt of a
disbursement request from Tenant, provided that (i) in no event shall Landlord
be required to make such progress payments more than once per calendar month;
(ii) Tenant's disbursement request shall comply with Section 4.2(b) below; (iii)
in the event the cost of the Tenant Improvements (the "Tenant Improvement Cost")
exceeds the Construction Allowance, Tenant shall pay an amount equal to its
proportionate share of each progress payment, which amount bears the same ratio
to the total amount of the progress payment in question as the amount of the
total excess Tenant Improvements cost bears to the total Tenant Improvement Cost
and, subject to clause (iv), Landlord shall pay the remainder of such progress
payment ("Landlord's Share"); (iv) Landlord shall have the right to retain ten
percent (10%) of the progress payment requested (or, if Landlord is required to
pay only Landlord's Share of such progress payment, ten percent (10%) of
Landlord's Share); (v) Landlord shall have no obligation to disburse any portion
of the Construction Allowance for any request received by Landlord on or after
March 1, 2006; (vi) the Lease is then in full force and effect; (vii) Tenant is
not then in default of any of its obligations under the Lease, including,
without limitation, Tenant's obligations under this Tenant Improvement Agreement
to perform Tenant Improvement Work in accordance with the Approved Working
Drawings and all Governmental Requirements; and (viii) Landlord shall have the
right to deduct from any payment required to be made hereunder the Construction
Administration Costs, as described in Section 4.3 below.
(b) Tenant's disbursement request shall (i) show a schedule, by trade, of
the percentage of completion of the Tenant Improvements, detailing the portion
of the work completed and the portion not completed, as certified by Tenant's
Architect, and (ii) be accompanied by (A) invoices for work actually performed,
construction in place and materials delivered to the site (as may be applicable)
describing in reasonable detail such work, construction and/or materials; (B)
the conditional release of all mechanic's lien rights by all contractors,
suppliers, laborers and others covered by the disbursement request; (C) evidence
that no mechanic's liens have been recorded against the Project; (D) if Tenant
makes more than one request for payment, evidence (such as unconditional
releases of mechanic's lien rights) to Landlord's satisfaction that the prior
progress payment(s) has been paid to the respective contractors, suppliers,
laborers and others covered by Tenant's request for such prior progress
payment(s); and (E) all other information reasonably requested by Landlord.
(c) The amount retained by Landlord under clause (iv) of Section 4.2(a)
above shall be disbursed by Landlord after (i) Tenant's delivery to Landlord of
a certificate of Tenant's Architect, in a form reasonably acceptable to
Landlord, certifying that the construction of the Tenant Improvements has been
completed in accordance with the Approved Working Drawings; (ii) Tenant's
delivery to Landlord of "as-built" drawings in CAD format showing the Tenant
Improvements (updated by Tenant's Architect as necessary to reflect all changes
made to the Approved Working Drawings during the course of construction); (iii)
a detailed breakdown of Tenant's final and total construction costs, together
with receipted invoices (or such other proof of payment as Landlord shall
reasonably require) showing full payment thereof; (iv) properly executed
mechanics' lien releases in compliance with both California Civil Code Section
3262(d)(2) and either Section 3262(d)(3) or Section 3262(d)(4) from all of
Tenant's Agents; and (v) copies of all Permits, licenses, certificates and other
governmental authorizations and approvals necessary in connection with, and
indicating final approval of, the Tenant Improvement Work, and which may be
necessary for the operation of Tenant's business within the Premises.
Notwithstanding any provision in the foregoing to the contrary, Tenant shall, in
any xxxxx, xxxxxx the documents described in clauses (i) through (v) above to
Landlord within thirty (30) days following the date Tenant commences business
operations in the Premises.
4.3 Construction Administration Costs. Tenant shall pay to Landlord all of
Landlord's actual out-of-pocket costs incurred in connection with the Tenant
Improvement Work, including, without limitation, all reasonable management,
engineering, outside consulting and construction fees incurred by or on behalf
of Landlord for the review and approval of the Space Plans and Construction
Drawings (collectively, the "Construction Administration Costs"). Landlord shall
be entitled to charge the amount of the Construction Administration Costs
against the Construction Allowance required to be contributed by Landlord
hereunder, or if funds are not available from the Construction Allowance for
such purposes, Tenant will pay such amounts within twenty (20) days following
delivery of Landlord's invoice.
4.4 Tenant's Lease Default. Notwithstanding any terms and conditions to the
contrary contained in this Lease, if a material Event of Default has occurred at
any time on or before the Commencement Date, then (a) in addition to all other
rights and remedies granted to Landlord pursuant to the Lease, Landlord shall
have the right to withhold disbursement of all or any portion of the
Construction Allowance and/or Landlord may cause Tenant's Contractor to cease
the construction of the Tenant Improvements, and (b) all other obligations of
Landlord under the terms and conditions of this Tenant Improvement Agreement
shall be suspended until such time as such Event of Default is cured pursuant to
the terms and conditions of the Lease.
5. Change Orders. Landlord will not unreasonably withhold its approval of
(a) any request by Tenant, or by Tenant's Contractor with Tenant's approval, to
amend or change the Approved Working Drawings, or (b) any change or amendment to
the Approved Working Drawings that may be necessary to obtain any Permits, or
which may be required by city officials or inspectors to comply with code
rulings or interpretations (any of the foregoing, a "Change Order"), provided
such Change Order does not diminish the quality of construction of the Tenant
Improvements. Without limiting the generality of the foregoing, however, Tenant
acknowledges that it shall not be unreasonable for Landlord to withhold consent
to any Change Order if any of the circumstances listed in clauses 2.2(a) through
2.2(c) of this Tenant Improvement Agreement apply. No material changes or
modifications to the Approved Working Drawings shall be made unless by written
Change Order signed by Landlord and Tenant. Tenant shall pay all costs
attributable to Change Orders, including costs incurred by Landlord in reviewing
proposed Change Orders (provided that to the extent funds are available, such
costs may be paid or reimbursed from the Construction Allowance).
6. Ownership of Tenant Improvements. The Tenant Improvements shall be
deemed, effective upon installation, to be a part of the Premises and shall be
deemed to be the property of Landlord (subject to Tenant's right to use and
depreciate (to the extent paid for by Tenant) the same during the Term of the
Lease), and shall be surrendered at the expiration or earlier termination of the
Term, unless Landlord shall have conditioned its approval of the Final Working
Drawings or any Change Order on Tenant's agreement to remove any items thereof,
in which event, prior to the expiration or termination of the Term, the
specified items shall be removed at Tenant's expense, any damage caused by such
removal shall be repaired, and the Premises shall be restored to their condition
existing prior to the installation of the items in question, normal wear and
tear excepted. The removal, repair and restoration described above shall, at
Landlord's sole election, be performed either by Tenant or by Landlord; and if
such work shall be performed by Landlord, Tenant shall pay to Landlord, within
twenty (20) days following Landlord's demand, the reasonable cost and expense of
such work.
SCHEDULE 1
TENANT CONSTRUCTION RULES AND REGULATIONS
The rules and regulations governing construction by Tenant in the
Buildings at the time of the execution of the Lease to which this Schedule is
attached are as follows (capitalized terms used without being defined in this
Schedule shall have the meanings given them in the Lease):
1. Prior to commencement of any construction, Tenant's Contractor shall
coordinate with Landlord's representatives to ensure that all employees and
subcontractors of Tenant's Contractor have received instruction regarding
Landlord's requirements for safety, security and fire prevention. All work to be
performed shall be coordinated with the managing agent of the Buildings or its
representative. During construction, Tenant shall coordinate all construction
activities with Landlord's Project manager so as to minimize the disruption
caused by such construction, and so as not to interfere with other construction
in the Project or the rights of Landlord, other tenants or occupants. Tenant and
Tenant's Agents shall take all safety measures necessary to protect Landlord,
its employees and contractors, other tenants and users of the Project and the
general public, and the property of each, from injury or damage resulting from
the performance of the Tenant Improvement Work.
2. Tenant acknowledges that certain construction activities (including,
without limitation, jackhammering and use of "shot" type mechanical fasteners
which create excessive or explosive type noises) must be completed, on a daily
basis, not later than 6:30 a.m. on weekdays, and may not resume until at least
6:30 p.m. on weekdays. Tenant shall make prior arrangements with Landlord's
representatives if any construction work is to be performed between 6:30 p.m.
and 6:30 a.m. or on weekends, and Landlord may charge Tenant or Tenant's
Contractor a reasonable sum, as determined by Landlord, to defray the cost of
providing for a representative of Landlord or Landlord's Project manager, and/or
additional security personnel, to be present at all times.
3. All construction work and all storage and staging of materials,
tools and equipment shall be confined to the Premises, unless Landlord gives
written permission to use areas outside the Premises. Common and public areas of
the Project and the sidewalk and curbs in front of or adjacent to the Buildings
shall not be used or obstructed by Tenant or by Tenant's Agents without written
approval of Landlord. All storage of materials, tools and equipment within the
Premises or the Project shall be at Tenant's risk. Tenant shall immediately
relocate, at Tenant's expense, any materials found by Landlord to be stored in
an unsafe manner. Landlord shall not be responsible for lost, stolen or damaged
materials, tools or equipment stored or staged in the Project.
4. All deliveries shall be scheduled so that materials are stocked in
Tenant's Premises prior to normal business hours of the Project. No deliveries
shall be made through the common or public areas of the Project, or to the
sidewalk in front of or adjacent to the Project during business hours. No hand
trucks shall be used in any portion of the Project, including common areas,
except those equipped with rubber tires and side guards.
5. Landlord will not provide off-street parking for Tenant's Agents'
vehicles. Loading zones are for loading and unloading purposes only, and no
parking in loading zones is permitted. Vehicles parked illegally will be subject
to towing at the expense of Tenant or the vehicle owner.
6. Tenant and Tenant's Contractor shall be responsible for ensuring
that all doors, gates and windows are closed and locked at all times when not in
immediate use.
7. Tenant's Agents are not permitted to transport tools or materials in
wheelbarrows or wheeled vehicles in the common or public areas of the Project
during normal business hours.
8. All construction shall be performed so as to prevent dust from
filtering through to other parts of the Project. All painting shall be shielded
and other parts of the Project shall be protected from all fumes and spray. All
temporary partitions and dust-proof barriers shall be furnished and installed by
Tenant and shall remain intact at all times. Should any panel be removed, torn
or otherwise displaced or damaged, it will be reattached or repaired and Tenant
will be backcharged at a reasonable labor and material charge.
9. Hazardous and/or inflammable materials brought onto the Premises or
into the Project in connection with Tenant's construction shall be used and
stored in containers which conform to all applicable laws and regulations, and
shall be used in a manner which prevents their accidental release. Upon bringing
Hazardous Substances into the Project, Tenant or Tenant's Contractor shall
immediately provide Landlord's Project manager with a copy of the Material
Safety Data Sheet (M.S.D.S.) for such Hazardous Substances. In addition, a new
M.S.D.S. shall be provided whenever M.S.D.S. information is revised. Hazardous
Substances, including empty containers and hazardous wastes, shall not be
discarded in the Premises or the Project, but shall be removed immediately and
disposed of in a proper, lawful manner. Tenant's Contractor shall comply with
all federal and state O.S.H.A. Safety Regulations.
10. Tenant and Tenant's Contractor shall maintain the Premises and
related Project facilities, surfaces and glass in a clean, orderly condition
during the progress of construction, and shall clean up debris and remove trash
daily, to the satisfaction of Landlord. Tenant shall make arrangements to remove
dirt and debris from work after the end of each workday. No individual trash or
storage containers will be allowed in the common or public areas of the Project.
Any containers provided by Landlord to Tenant for construction debris shall be
at Tenant's expense. Where Landlord does not provide containers for removal of
debris, Tenant or Tenant's Contractor shall arrange for trash removal service by
a debris or scavenger service approved by Landlord. Any dirt, debris,
construction materials or equipment remaining in the common or public areas of
the Project, or in service corridors or adjoining unoccupied spaces, after
commencement of normal business hours, will be removed by Landlord, and Tenant
will be backcharged at a reasonable rate for labor and material charges.
11. Electrical power shall be provided at Tenant's expense at a
suitable existing electrical outlet or other source reasonably near the boundary
of the Premises. Tenant shall be responsible for installing a temporary
electrical panel and arranging for commencement of electrical, water and other
utility services in Tenant's name as early in the construction process as is
possible. Temporary or portable wiring beyond the outlet or other source shall
be furnished and installed by and at the expense of Tenant and shall comply with
all applicable laws and codes. All temporary electrical connections must be
approved in advance by Landlord's representatives prior to installation. Tenant
and Tenant's Agents shall use their respective best efforts to use the minimal
amount of water necessary for work and cleanup of the Premises.
12. Construction workers are not permitted to eat or smoke in the
common or public areas of the Project.
13. Tenant shall not attach or cause to be attached to any wall or
structural member of the Buildings any equipment that may, by virtue of its size
or weight, cause structural damage. Tenant shall not exceed the load as set
forth in the plans and specifications for the floors of the Buildings and shall
not do anything that might in any way alter or affect the structural strength of
the Buildings.
14. If appropriate, as determined by Landlord or as required by any
Governmental Requirements, a smoke and/or heat detector shall be installed in
Tenant's space, at Tenant's expense, during the time any construction work is
being performed in the Premises. The smoke and/or heat detector shall be
connected by Landlord's specified contractor, at Tenant's expense, to the
central system, if such control system is available.
15. Except to the extent provided in the Lease to the contrary,
expenses incurred by Landlord in respect of the work performed by or on behalf
of Tenant shall be paid by Tenant immediately upon receipt of an invoice from
Landlord and shall be delinquent if not paid within ten (10) days. Late charges,
interest and collection expenses on delinquent payments shall be charged to
Tenant in the manner set forth in the Lease for delinquent payment of rents.
EXHIBIT D
COMMENCEMENT DATE CONFIRMATION
THIS CONFIRMATION AGREEMENT is entered into as of _______________ __,
20__ by and between CarrAmerica Realty Operating Partnership, L.P., a Delaware
limited partnership ("Landlord"), and XXXXXXX NAVIGATION LIMITED, a California
corporation ("Tenant"), with respect to that certain Lease dated as of May 11,
2005 (the "Lease") respecting certain premises (the "Premises") located in the
buildings commonly known as 000 XxXxxxxx Xxxxx and 000 Xxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxx.
Pursuant to Section 1.1 of the Lease, Landlord and Tenant hereby
confirm and agree that the Commencement Date (as defined in the Lease) is
________________ __, 20___, the Rent Commencement Date (as defined in the Lease)
is ________________ __, 20___, and that the Termination Date (as defined in the
Lease) is _______________ __, 20__.
This Confirmation Agreement supplements, and shall be a part of, the
Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered
this Confirmation Agreement as of the day and year first above written.
LANDLORD:
CARRAMERICA REALTY OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: CarrAmerica Realty Corporation,
a Maryland corporation, its general partner
By:__________________________________________________
Xxxxxxxxxxx Xxxxxxxx
Managing Director
Date of Execution:____________________________________________
TENANT:
XXXXXXX NAVIGATION LIMITED,
a California corporation
By:___________________________________________________________
Xxxxxx X. Xxxxxxxx
President and Chief Executive Officer
By:___________________________________________________________
Xxx Xxxxx
Chief Financial Officer
Date of Execution:____________________________________________
EXHIBIT E
ENVIRONMENTAL QUESTIONNAIRE
_________As a new tenant of the Project, answer based upon: (1) any existing or
previous operations of the same kind which Tenant has conducted elsewhere, and
(2) Tenant's plans for the new space. For each answer, specify which
operation(s) you are describing.
1. Solid Waste.
a. Does the facility have an EPA Hazardous Waste generator number?
b. Does the facility produce Hazardous Waste? Other chemical waste?
c. Describe each type of waste generated (whether or not hazardous).
d. If the facility produces hazardous waste, is it classified as a
large quantity generator, small quantity generator or conditionally exempt small
quantity generator?
e. Are hazardous waste manifests maintained for three years on site?
f. Please identify the waste disposal contractor.
2. Wastewater.
a. Does the facility produce any "process wastewater," meaning any
wastewater that has come in contact with chemicals or other materials in process
(essentially, any discharge of water other than from sinks and toilets)?
b. If so, please describe each type of process wastewater produced.
c. Is any water discharged down the floor drains?
d. Does the facility have a permit for its wastewater discharges?
3. Air Emissions.
a. Does the facility emit any chemicals or wastes into the air?
b. Does the facility have an air permit?
c. Does the facility treat any of its air emissions to remove air
pollutants?
d. Describe the ventilation system for the facility.
4. General.
a. Has the facility ever been charged with any violation of, or found
in violation of any environmental requirements? If yes, please describe.
b. Are you aware of any testing of soil or groundwater to determine
whether any contamination exists in or around the facility? If so, please
provide results.
c. Please describe any hazardous materials present on site, their
respective quantities and the containment measures for those materials.
TABLE OF CONTENTS
Page
1. LEASE AGREEMENT.......................................................1
2. RENT..................................................................3
3. PREPARATION AND CONDITION OF PREMISES; TENANT'S POSSESSION;
REPAIRS AND MAINTENANCE..............................................11
4. SERVICES AND UTILITIES...............................................14
5. ALTERATIONS AND REPAIRS..............................................14
6. USE OF PREMISES......................................................17
7. GOVERNMENTAL REQUIREMENTS AND BUILDING RULES.........................19
8. WAIVER OF CLAIMS; INDEMNIFICATION; INSURANCE.........................20
9. FIRE AND OTHER CASUALTY..............................................23
10. EMINENT DOMAIN.......................................................24
11. RIGHTS RESERVED TO LANDLORD..........................................24
12. EVENTS OF DEFAULT....................................................26
13. LANDLORD REMEDIES....................................................28
14. SURRENDER............................................................30
15. HOLDOVER.............................................................30
16. SUBORDINATION TO GROUND LEASES AND MORTGAGES.........................31
17. ASSIGNMENT AND SUBLEASE..............................................32
18. CONVEYANCE BY LANDLORD...............................................36
19. ESTOPPEL CERTIFICATE.................................................36
20. INTENTIONALLY OMITTED................................................36
21. INTENTIONALLY OMITTED................................................36
22. NOTICES..............................................................36
23. QUIET POSSESSION.....................................................38
24. REAL ESTATE BROKERS..................................................38
25. MISCELLANEOUS........................................................38
26. UNRELATED BUSINESS INCOME............................................41
27. PROJECT RENOVATIONS..................................................42
28. HAZARDOUS SUBSTANCES.................................................42
29. EXCULPATION..........................................................46
30. COMMUNICATIONS AND COMPUTER LINES....................................46
31. OPTION TO EXTEND.....................................................46
32. RIGHT OF FIRST OFFER.................................................50
33. USE OF TRACTORS......................................................51
