EXHIBIT 10.59
[LOGO] AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
STANDARD INDUSTRIAL/COMMERCIAL SINGLE-TENANT LEASE -- NET
(DO NOT USE THIS FORM FOR MULTI-TENANT BUILDINGS)
1. Basic Provisions ("Basic Provisions").
1.1 Parties: This Lease ("Lease"), dated for reference purposes only,
June 4, 1999, is made by and between G&I XXXXX LLC, a Delaware limited
liability company ("Lessor") and EXODUS COMMUNICATIONS, INC., a
Delaware corporation ("Lessee"), (collectively the "Parties," or
individually a "Party").
1.2 Premises: That certain real property, including all improvements
therein or to be provided by Lessor under the terms of this Lease, and
commonly known as 0000 Xxxxx Xxxxxx, Xxxxx Xxxxx, located in the County
of Santa Xxxxx, State of California, and generally described as
(describe briefly the nature of the property and, if applicable, the
"Project", if the property is located within a Project) an
industrial/commercial building (the "Building") with an agreed rentable
area of 94,500 square feet ("Premises"). (See also Paragraph 2)
1.3 Term: Five (5) years and 7 months ("Original Term") commencing
July 1, 2003 ("Commencement Date") and ending January 31, 2009
("Expiration Date"). (See also Paragraph 3)
1.4 Early Possession: [Not applicable] ("Early Possession Date"). (See
also Paragraphs 3.2 and 3.3)
1.5 Base Rent: $108,675.00 per month ("Base Rent"), payable on the
first day of each month commencing July 1, 2003. (See also Paragraph 4)
[X] If this box is checked, there are provisions in this Lease for the
Base Rent to be adjusted. See Addendum 1.5
1.6 Base Rent Paid Upon Execution: $ None as Base Rent for the period
[Not applicable].
1.7 Security Deposit: $ See Addendum 1.7 ("Security Deposit"). (See
also Paragraph 5)
1.8 Agreed Use: Data Center processing and other lawful related uses.
(See also Paragraph 6)
1.9 Insuring Party: Lessor is the "Insuring Party" unless otherwise
stated herein. (See also Paragraph 8)
1.10 Real Estate Brokers: (See also Paragraph 15)
(a) Representation: The following real estate brokers (collectively,
the "Brokers") and brokerage relationships exist in this transaction
(check applicable boxes):
[X] Landmark Asset Management Group represents Lessor exclusively
("Lessor's Broker");
[X] The Commercial Property Services Company represents Lessee
exclusively ("Lessee's Broker"); or
[ ] represents both Lessor and Lessee ("Dual Agency").
(b) Payment to Brokers: Upon execution and delivery of this Lease by
both Parties, Lessor shall pay to the Broker the fee agreed to in their
separate written agreement
1.11 Guarantor. The obligations of the Lessee under this Lease are to
be guaranteed by [Not applicable] ("Guarantor"). (See also Paragraph 37)
1.12 Addenda and Exhibits. Attached hereto is an Addendum or Addenda
consisting of 19 pages and Exhibits A and B, all of which constitute a
part of this Lease.
2. Premises.
2.1 Letting. Lessor hereby leases to Lessee, and Lessee hereby leases
from Lessor, the Premises, for the term, at the rental, and upon all of
the terms, covenants and conditions set forth in this Lease. Unless
otherwise provided herein, any statement of size set forth in this
Lease, or that may have been used in calculating rental, is an
approximation which the Parties agree is reasonable and the rental based
thereon is not subject to revision whether or not the actual size is
more or less.
2.2 See Addendum 2.2
2.3 Compliance. Lessor makes no representation or warranty as to
whether the improvements on the Premises comply with applicable laws,
covenants or restrictions of record, building codes, regulations and
ordinances ("Applicable Requirements") NOTE: Lessee is responsible for
determining whether or not the zoning is appropriate for Lessee's
intended use, and acknowledges that past uses of the Premises may no
longer be allowed. If the Applicable Requirements are hereafter changed
(as opposed to being in existence at the commencement of the term of the
Prior Sublease (as defined in Addendum 2.2), which is addressed in
Paragraph 6.2(e) below) so as to require during the term of this Lease
the construction of an addition to or an alteration of the Building, the
remediation of any Hazardous Substance, or the reinforcement or other
physical modification of the Building ("Capital Expenditure"), Lessor
and Lessee shall allocate the cost of such work as follows:
(a) Subject to Paragraph 2.3(c) below, if such Capital Expenditures
are required as a result of the specific and unique use of the Premises
by Lessee as compared with uses by tenants in general, Lessee shall be
fully responsible for the cost thereof, provided, however that if such
Capital Expenditure is required during the last two (2) years of this
Lease and the cost thereof exceeds six (6) months' Base Rent, Lessee may
instead terminate this Lease unless Lessor notifies Lessee, in writing,
within ten (10) days after receipt of Lessee's termination notice that
Lessor has elected to pay the difference between the actual cost thereof
and the amount equal to six (6) months' Base Rent. If Lessee elects
termination, Lessee shall immediately cease the use of the Premises
which requires such Capital Expenditure and deliver to Lessor written
notice specifying a termination date at least ninety (90) days
thereafter. Such termination date shall, however, in no event be earlier
than the last day that Lessee could legally utilize the Premises without
commencing such Capital Expenditure.
(b) If such Capital Expenditure is not the result of the specific and
unique use of the Premises by Lessee (such as, governmentally mandated
seismic modifications), then Lessor and Lessee shall allocate the
obligation to pay for such costs pursuant to the provisions of Paragraph
7.1(c); provided, however, that if such Capital Expenditure is required
during the last two years of this and the cost thereof exceeds six (6)
months Base Rent Lessor shall have the option to terminate this Lease
upon ninety (90) days prior written notice to Lessee unless Lessee
notifies Lessor, in writing, within ten (10) days after receipt of
Lessor's termination notice that Lessee will pay the difference between
the actual cost of such Capital Expenditure and the amount equal to six
(6) months' Base Rent. If Lessor does not elect to terminate, and fails
to tender its share of any such Capital Expenditure, Lessee may advance
such funds and deduct same, with Interest, from Rent until Lessor's
share of such costs have been fully paid. If Lessee is unable to finance
Lessor's share, or if the balance of the Rent due and payable for the
remainder of this Lease is not sufficient to fully reimburse Lessee on
an offset basis, Lessee shall have the right to terminate this Lease
upon thirty (30) days written notice to Lessor.
(c) Notwithstanding the above, the provisions concerning Capital
Expenditures are intended to apply only to non-voluntary, unexpected,
and new Applicable Requirements. If the Capital Expenditures are instead
triggered by Lessee as a result of an actual or proposed change in use,
change in intensity of use, or modification to the Premises then, and in
that event, Lessee shall be fully responsible for the cost thereof, and
Lessee shall not have any right to terminate this Lease.
2.4 Acknowledgements. Lessee acknowledges that: (a) it has been
advised by Lessor and/or Brokers to satisfy itself with respect to the
condition of the Premises (including but not limited to the electrical,
HVAC and fire sprinkler systems, security, environmental aspects, and
compliance with Applicable Requirements), and their suitability for
Lessee's intended use; (b) Lessee has made such investigation as it
deems necessary with reference to such matters and assumes all
responsibility therefor as the same relate to its occupancy of the
Premises; and (c) neither Lessor, Lessor's agents, nor any Broker has
made any oral or written representations or warranties with respect to
said matters other than as set forth in this Lease. In addition, Lessor
acknowledges that: (a) Broker has made no representations, promises or
warranties concerning Lessee's ability to honor the Lease or suitability
to occupy the Premises; and (b) it is Lessor's sole responsibility to
investigate the financial capability and/or suitability of all proposed
tenants.
2.5 Lessee as Prior Owner/Occupant. The warranties made by Lessor in
Paragraph 2 shall be of no force or effect if immediately prior to the
Start Date Lessee was the owner or occupant of the Premises. In such
event, Lessee shall be responsible for any necessary corrective work.
3. Term. See Addendum 3.1
3.1 Term. The Commencement Date, Expiration Date and Original Term of
this Lease are as specified in Paragraph 1.3.
3.3 Delay In Possession. Lessor agrees to use its best commercially
reasonable efforts to deliver possession of the Premises to Lessee by
the Commencement Date. If, despite said efforts, Lessor is unable to
deliver possession as agreed, Lessor shall not be subject to any
liability therefor, nor shall such failure affect the validity of this
Lease. Lessee shall not, however, be obligated to pay Rent or perform
its other obligations until it receives possession of the Premises. If
possession is not delivered within sixty (60) days after the
Commencement Date, Lessee may, at its option, by notice in writing
within ten (10) days after the end of such sixty (60) day period, cancel
this Lease, in which event the Parties shall be discharged from all
obligations hereunder. If such written notice is not received by Lessor
within said ten (10) day period, Lessee's right to cancel shall
terminate. Except as otherwise provided, if possession is not tendered
to Lessee by the Start Date and Lessee does not terminate this Lease, as
aforesaid, any period of rent abatement that Lessee would otherwise have
enjoyed shall run from the date of delivery of possession and continue
for a period equal to what Lessee would otherwise have enjoyed under the
terms hereof, but minus any days of delay caused by the acts or
omissions of Lessee. If possession of the Premises is not delivered
within four (4) months after the Commencement Date, this Lease shall
terminate unless other agreements are reached between Lessor and Lessee,
in writing.
3.4 Lessee Compliance. Lessor shall not be required to tender
possession of the Premises to Lessee until Lessee complies with its
obligation to provide evidence of insurance (Paragraph 8.5). Pending
delivery of such evidence, Lessee shall be required to perform all of
its obligations under this Lease from and after the Start Date,
including the payment of Rent, notwithstanding Lessor's election to
withhold possession pending receipt of such evidence of insurance.
Further, if Lessee is required to perform any other conditions prior to
or concurrent with the Start Date, the Start Date shall occur but Lessor
may elect to withhold possession until such conditions are satisfied.
4. Rent.
4.1. Rent Defined. All monetary obligations of Lessee to Lessor under
the terms of this Lease (except for the Security Deposit) are deemed to
be rent ("Rent").
4.2 Payment. Lessee shall cause payment of Rent to be received by
Lessor in lawful money of the United States, without offset or deduction
(except as specifically permitted in this Lease), on or before the day
on which it is due. Rent for any period during the term hereof which is
for less than one (1) full calendar month shall be prorated based upon
the actual number of days of said month. Payment of Rent shall be made
to Lessor at its address stated herein or to such other persons or place
as Lessor may from time to time designate in writing. Acceptance of a
payment which is less than the amount then due shall not be a waiver of
Lessor's rights to the balance of such Rent, regardless of Lessor's
endorsement of any check so stating.
5. Security Deposit. See Addendum 1.7.
6. Use.
6.1 Use. Lessee shall use and occupy the Premises only for the Agreed
Use, or any other legal use which is reasonably comparable thereto, and
for no other purpose. Lessee shall not use or permit the use of the
Premises in a manner that is unlawful, creates damage, waste or a
nuisance, or that disturbs owners and/or occupants of, or causes damage
to neighboring properties. Lessor shall not unreasonably withhold or
delay its consent to any written request for a modification of the
Agreed Use, so long as the same will not impair the structural integrity
of the improvements on the Premises or the mechanical or electrical
systems therein, is not significantly more burdensome to the Premises.
If Lessor elects to withhold consent, Lessor shall within five (5)
business days after such request give written notification of same,
which notice shall include an explanation of Lessor's objections to the
change in use.
6.2 Hazardous Substances.
(a) Reportable Uses Require Consent. The term "Hazardous Substance"
as used in this Lease shall mean any product, substance, or waste whose
presence, use, manufacture, disposal, transportation, or release, either
by itself or in combination with other materials expected to be on the
Premises, is either: (i) potentially injurious to the public health,
safety or welfare, the environment or the Premises, (ii) regulated or
monitored by any governmental authority. Hazardous Substances shall
include, but not be limited to, hydrocarbons, petroleum, gasoline,
diesel fuel and/or crude oil or any products, by-products or fractions
thereof. Lessee shall not engage in any activity in or on the Premises
which constitutes a Reportable Use of Hazardous Substances without the
express prior written consent of Lessor and timely compliance (at
Lessee's expense) with all Applicable Requirements. "Reportable Use"
shall mean (i) the installation or use of any above or below ground
storage tank, (ii) the generation, possession, storage, use,
transportation, or disposal of a Hazardous Substance that requires a
permit from, or with respect to which a report, notice, registration or
business plan is required to be filed with, any governmental authority,
and/or (iii) the presence at the Premises of a Hazardous Substance with
respect to which any Applicable Requirements requires that a notice be
given to persons entering or occupying the Premises or neighboring
properties. Notwithstanding the foregoing, Lessee may use any ordinary
and customary materials reasonably required to be used in the normal
course of the Agreed Use, so long as such use is in compliance with all
Applicable Requirements, is not a Reportable Use, and does not expose
the Premises or neighboring property to any meaningful risk of
contamination or damage or expose Lessor to any liability therefor. In
addition, Lessor may condition its consent to any Reportable Use upon
receiving such additional assurances as Lessor reasonably deems
necessary to protect itself, the public, the Premises and/or the
environment against damage, contamination, injury and/or liability,
including, but not limited to, the installation (and removal on or
before Lease expiration or termination) of protective modifications
(such as concrete encasements) and/or increasing the Security Deposit.
See Addendum 6.2(a).
(b) Duty to Inform Lessor. If Lessee knows, or has reasonable cause
to believe, that a Hazardous Substance has come to be located in, on,
under or about the Premises, other than as previously consented to by
Lessor, Lessee shall immediately give written notice of such fact to
Lessor, and provide Lessor with a copy of any report, notice, claim or
other documentation which it has concerning the presence of such
Hazardous Substance.
(c) Lessee Remediation. Lessee shall not cause or permit any
Hazardous Substance to be spilled or released in, on, under, or about
the Premises (including through the plumbing or sanitary sewer system)
and shall promptly, at Lessee's expense, take all investigatory and/or
remedial action reasonably recommended, whether or not formally ordered
or required, for the cleanup of any contamination of, and for the
maintenance, security and/or monitoring of the Premises or neighboring
properties, that was caused or materially contributed to by Lessee, or
pertaining to or involving any Hazardous Substance brought onto the
Premises during the term of this Lease, by or for Lessee, or any third
party other than Lessor.
(d) Lessee Indemnification. Lessee shall indemnify, defend and hold
Lessor, its agents, employees, lenders and ground lessor, if any,
harmless from and against any and all loss of rents and/or damages,
liabilities, judgments, claims, expenses, penalties, and attorneys' and
consultants' fees arising out of or involving any Hazardous Substance
brought onto the Premises during the term of this Lease or the Prior
Sublease by or for Lessee, or any party other than Lessor (provided,
however, that Lessee shall have no liability under this Lease with
respect to underground migration of any Hazardous Substance under the
Premises from adjacent properties). Lessee's obligations shall include,
but not be limited to, the effects of any contamination or injury to
person, property or the environment created or suffered by Lessee, and
the cost of investigation, removal, remediation, restoration and/or
abatement, and shall survive the expiration or termination of this
Lease. No termination, cancellation or release agreement entered into by
Lessor and Lessee shall release Lessee from its obligations under this
Lease with respect to Hazardous Substances, unless specifically so
agreed by Lessor in writing at the time of such agreement.
(e) Lessor Indemnification. Lessor and its successors and assigns
shall indemnify, defend, reimburse and hold Lessee, its employees and
lenders, harmless from and against any and all environmental damages,
including the cost of remediation, which existed as a result of
Hazardous Substances on the Premises prior to the date of commencement
of the Prior Sublease or which are caused by the gross negligence or
willful misconduct of Lessor, its agents or employees. Lessor's
obligations, as and when required by the Applicable Requirements, shall
include, but not be limited to, the cost of investigation, removal,
remediation, restoration and/or abatement, and shall survive the
expiration or termination of this Lease.
(f) Investigations and Remediations. Lessor shall retain the
responsibility and pay for any investigations or remediation measures
required by governmental entities having jurisdiction with respect to
the existence of Hazardous Substances on the Premises prior to the date
of commencement of the Prior Sublease unless such remediation measure is
required as a result of Lessee's use (including "Alterations", as
defined in Paragraph 7.3(a) below) of the Premises, in which event
Lessee shall be responsible for such payment. Lessee shall cooperate
fully in any such activities at the request of Lessor, including
allowing Lessor and Lessor's agents to have reasonable access in
accordance with Section 32 of the Addendum to the Premises at reasonable
times in order to carry out Lessor's investigative and remedial
responsibilities.
(g) Lessor Termination Option. If a Hazardous Substance Condition
occurs during the term of this Lease, unless Lessee is legally
responsible therefor (in which case Lessee shall make the investigation
and remediation thereof required by the Applicable Requirements and this
Lease shall continue in full force and effect, but subject to Lessor's
rights under Paragraph 6.2(d) and Paragraph 13), Lessor may, at Lessor's
option, either (i) investigate and remediate such Hazardous Substance
Condition, if required, as soon as reasonably possible at Lessor's
expense, in which event this Lease shall continue in full force and
effect, or (ii) if the estimated cost to remediate such condition
exceeds twelve (12) times the then monthly Base Rent or $100,000,
whichever is greater, give written notice to Lessee, within thirty (30)
days after receipt by Lessor of knowledge of the occurrence of such
Hazardous Substance Condition, of Lessor's desire to terminate this
Lease as of the date sixty (60) days following the date of such notice.
In the event Lessor elects to give a termination notice, Lessee may,
within ten (10) days thereafter, give written notice to Lessor of
Lessee's commitment to pay the amount by which the cost of the
remediation of such Hazardous Substance Condition exceeds an amount
equal to twelve (12) times the then monthly Base Rent or $100,000,
whichever is greater. Lessee shall provide Lessor with said funds or
satisfactory assurance thereof within thirty (30) days following such
commitment. In such event, this Lease shall continue in full force and
effect, and Lessor shall proceed to make such remediation as soon as
reasonably possible after the required funds are available. If Lessee
does not give such notice and provide the required funds or assurance
thereof within the time provided, this Lease shall terminate as of the
date specified in Lessor's notice of termination. See Addendum 6.2(g).
6.3 Lessee's Compliance with Applicable Requirements. Except as
otherwise provided in this Lease, Lessee shall, at Lessee's sole
expense, fully, diligently and in a timely manner, materially comply
with all Applicable Requirements, the requirements of any applicable
fire insurance underwriter or rating bureau, and the recommendations of
Lessor's engineers and/or consultants which relate in any manner to the
Premises, as the same pertain to interpretation of the Applicable
Requirements without regard to whether said requirements are now in
effect or become effective after the Start Date. Lessee shall, within
ten (10) days after receipt of Lessor's written request, provide Lessor
with copies of all permits and other documents, and other information
evidencing Lessee's compliance with any Applicable Requirements
specified by Lessor, and shall immediately upon receipt, notify Lessor
in writing (with copies of any documents involved) of any threatened or
actual claim, notice, citation, warning, complaint or report pertaining
to or involving the failure of Lessee or the Premises to comply with any
Applicable Requirements.
6.4 Inspection; Compliance. Lessor and Lessor's "Lender" (as defined
in Paragraph 30 below) and consultants shall have the right to enter
into Premises at any time, in the case of an emergency, and otherwise at
reasonable times in accordance with Section 32 of the Addendum, for the
purpose of inspecting the condition of the Premises and for verifying
compliance by Lessee with this Lease. The cost of any such inspections
shall be paid by Lessor, unless a violation of Applicable Requirements,
or a contamination is found to exist, or the inspection is requested or
ordered by a governmental authority. In such case, Lessee shall upon
request reimburse Lessor for the reasonable cost of such inspections, so
long as such inspection is reasonably related to the violation or
contamination.
7. Maintenance; Repairs, Utility Installations; Trade Fixtures and
Alterations.
7.1 Lessee's Obligations.
(a) In General. Subject to the provisions of Addendum 2.2 and
Paragraphs 2.3 (Compliance), 6.3 (Lessee's Compliance with Applicable
Requirements), 7.2 (Lessor's Obligations), 9 (Damage or Destruction),
and 14 (Condemnation), Lessee shall, at Lessee's sole expense, keep the
Premises, Utility Installations, and Alterations in good order,
condition and repair (whether or not the portion of the Premises
requiring repairs, or the means of repairing the same, are reasonably or
readily accessible to Lessee, and whether or not the need for such
repairs occurs as a result of Lessee's use, any prior use, the elements
or the age of such portion of the Premises), including, but not limited
to, all equipment or facilities, such as plumbing, heating, ventilating,
air-conditioning, electrical, lighting facilities, boilers, pressure
vessels, fire protection system, fixtures, walls (interior and
exterior), foundations, ceilings, roofs, floors, windows, doors, plate
glass, skylights, landscaping, driveways, parking lots, fences,
retaining walls, signs, sidewalks and parkways located in, on, or
adjacent to the Premises. Lessee, in keeping the Premises in good order,
condition and repair, shall exercise and perform good maintenance
practices, specifically including the procurement and maintenance of the
service contracts required by Paragraph 7.1(b) below. Lessee's
obligations shall include restorations, replacements or renewals when
necessary to keep the Premises and all improvements thereon or a part
thereof in good order, condition and state of repair. Lessee shall,
during the term of this Lease, keep the exterior appearance of the
Building in a good and tenantable condition consistent with the exterior
appearance of other similar facilities of comparable age and size in the
vicinity, including, when necessary, the exterior repainting of the
Building.
(b) Service Contracts. Lessee shall, at Lessee's sole expense,
procure and maintain contracts, with copies to Lessor, in customary form
and substance for, and with contractors specializing and experienced in
the maintenance of the following equipment and improvements, if any, if
and when installed on the Premises: (i) HVAC equipment, (ii) boiler, and
pressure vessels, (iii) fire extinguishing systems, including fire alarm
and/or smoke detection, (iv) landscaping and irrigation systems, (v)
roof covering and drains, (vi) driveways and parking lots, (vii)
clarifiers (viii) basic utility feed to the perimeter of the Building,
and (ix) any other equipment, if reasonably required by Lessor.
(c) Replacement. Subject to Lessee's indemnification of Lessor as
set forth in Paragraph 8.7 below, and without relieving Lessee of
liability resulting from Lessee's failure to exercise and perform good
maintenance practices, if the Basic Elements described in Paragraph
7.1(b) cannot be repaired other than at a cost which is in excess of 50%
of the cost of replacing such Basic Elements, then such Basic Elements
shall be replaced by Lessor, and the cost thereof shall be prorated
between the Parties and Lessee shall only be obligated to pay, each
month during the remainder of the term of this Lease, on the date on
which Base Rent is due, an amount equal to the product of multiplying
the cost of such replacement by a fraction, the numerator of which is
one, and the denominator of which is the number of months of the useful
life of such replacement as such useful life is specified pursuant to
generally accepted accounting principles for depreciation thereof
(including interest on the unamortized balance at the Prime Rate (as
defined in Addendum 7.1), with Lessee reserving the right to prepay its
obligation at any time. See Addendum 7.1
7.2 Lessor's Obligations. Subject to the provisions of Addendum 2.2,
and Paragraphs 2.3 (Compliance), 9 (Damage or Destruction) and 14
(Condemnation), it is intended by the Parties hereto that Lessor have no
obligation, in any manner whatsoever, to repair and maintain the
Premises, or the equipment therein, all of which obligations are
intended to be that of the Lessee. It is the intention of the Parties
that the terms of this Lease govern the respective obligations of the
Parties as to maintenance and repair of the Premises, and they expressly
waive the benefit of any statute now or hereafter in effect to the
extent it is inconsistent with the terms of this Lease.
7.3 Utility Installations; Trade Fixtures; Alterations. See Addendum
7.3
(a) Definitions; Consent Required. The term "Utility Installations"
refers to all floor and window coverings, air lines, power panels,
electrical distribution, security and fire protection systems,
communication systems, lighting fixtures, HVAC equipment, plumbing, and
fencing in or on the Premises. The term "Trade Fixtures" shall mean
Lessee's machinery and equipment that can be removed without doing
material damage to the Premises. The term "Alterations" shall mean any
modification of the improvements, other than Utility Installations or
Trade Fixtures, whether by addition or deletion. "Lessee Owned
Alterations and/or Utility Installations" are defined as Alterations
and/or Utility Installations made by Lessee that are not yet owned by
Lessor pursuant to Paragraph 7.4(a) or that Lessee is permitted to
remove pursuant to Addendum 7.4. Lessee shall not make any Alterations
or Utility Installations to the Premises without Lessor's prior written
consent. Lessee may, however, make non-structural Utility Installations
to the interior of the Premises without such consent but upon notice to
Lessor, as long as they are not visible from the outside, do not involve
puncturing, relocating or removing any existing walls, and the
cumulative cost thereof during this Lease as extended does not exceed
$100,000 in any one year.
(b) Consent. Any Alterations or Utility Installations that Lessee
shall desire to make and which require the consent of the Lessor shall
be presented to Lessor in written form with detailed plans. Consent
shall be deemed conditioned upon Lessee's: (i) acquiring all applicable
governmental permits, (ii) furnishing Lessor with copies of both the
permits and the plans and specifications prior to commencement of the
work, and (iii) compliance with all conditions of said permits and other
Applicable Requirements in a prompt and expeditious manner. Any
Alterations or Utility Installations shall be performed in a workmanlike
manner with good and sufficient materials. Lessee shall promptly upon
completion furnish Lessor with as-built plans and specifications whether
or not such Alterations or Utility Installations require Lessor's
consent. For work which costs more than $1,000,000 excluding the cost of
any Trade Fixtures, Lessor may condition its consent upon Lessee
providing a lien and completion bond in an amount equal to one and one-
half times the estimated cost of such Alteration or Utility Installation
and/or upon Lessee's posting an additional Security Deposit with Lessor.
(c) Indemnification. Lessee shall pay, when due, all claims for
labor or materials furnished or alleged to have been furnished to or for
Lessee at or for use on the Premises, which claims are or may be secured
by any mechanic's or materialmen's lien against the Premises or any
interest therein. Lessee shall give Lessor not less than ten (10) days'
notice prior to the commencement of any work in, on or about the
Premises, and Lessor shall have the right to post notices of non-
responsibility. If Lessee shall contest the validity of any such lien,
claim or demand, then Lessee shall, at its sole expense defend and
protect itself, Lessor and the Premises against the same and shall pay
and satisfy any such adverse judgment that may be rendered thereon
before the enforcement thereof. If Lessor shall require, Lessee shall
furnish a surety bond in an amount equal to one and one-half times the
amount of such contested lien, claim or demand, indemnifying Lessor
against liability for the same. If Lessor elects to participate in any
such action, Lessee shall pay Lessor's attorneys' fees and costs.
7.4 Ownership; Removal; Surrender; and Restoration. See Addendum 7.4
(a) Ownership. Subject to Lessor's right to require removal or
elect ownership as hereinafter provided, all Alterations and Utility
Installations made by Lessee shall be the property of Lessee, but
considered a part of the Premises. Lessor may, at any time, elect in
writing to be the owner of all or any specified part of the Lessee Owned
Alterations and Utility Installations. Unless otherwise instructed per
Paragraph 7.4(b) hereof, all Lessee Owned Alterations and Utility
Installations shall, at the expiration or termination of this Lease,
become the property of Lessor and be surrendered by Lessee with the
Premises.
(b) Removal. By delivery to Lessee of written notice from Lessor
not earlier than ninety (90) and not later than thirty (30) days prior
to the end of the term of this Lease, Lessor may require that any or all
Lessee Owned Alterations or Utility Installations be removed by the
expiration or termination of this Lease. Lessor may require the removal
at any time of all or any part of any Lessee Owned Alterations or
Utility Installations made without the required consent.
(c) Surrender/Restoration. Lessee shall surrender the Premises by
the Expiration Date or any earlier termination date, with all of the
improvements, parts and surfaces thereof (except for those which Lessee
is permitted to remove pursuant to Addendum paragraph 7.4 or required to
remove pursuant to subparagraph 7.4(b) above) broom clean and free of
debris, and in good operating order, condition and state of repair,
ordinary wear and tear excepted. "Ordinary wear and tear" shall not
include any damage or deterioration that would have been prevented by
good maintenance practice. Lessee shall repair any damage occasioned by
the installation, maintenance or removal of Trade Fixtures, Lessee Owned
Alterations and/or Utility Installations, furnishings, and equipment as
well as the removal of any storage tank installed by or for Lessee, and
the removal, replacement, or remediation of any soil, material or
groundwater contaminated by Lessee. Trade Fixtures shall remain the
property of Lessee and shall be removed by Lessee. The failure by Lessee
to timely vacate the Premises pursuant to this Paragraph 7.4(c) without
the express written consent of Lessor shall constitute a holdover under
the provisions of Paragraph 26 below.
8. Insurance; Indemnity.
8.1 Payment For Insurance. Lessee shall pay for all insurance required
under Paragraph 8 except to the extent of the cost attributable to
liability insurance carried by Lessor under Paragraph 8.2(b) in excess
of $10,000,000 per occurrence. Premiums for policy periods commencing
prior to or extending beyond the Lease term shall be prorated to
correspond to the Lease term. Payment shall be made by Lessee to Lessor
within ten (10) days following receipt of an invoice. See Addendum 8.1
8.2 Liability Insurance.
(a) Carried by Lessee. Lessee shall obtain and keep in force a
Commercial General Liability Policy of Insurance protecting Lessee and
Lessor against claims for bodily injury, personal injury and property
damage based upon or arising out of the ownership, use, occupancy or
maintenance of the Premises and all areas appurtenant thereto. Such
insurance shall be on an occurrence basis providing single limit
coverage in an amount not less than $10,000,000 per occurrence with an
"Additional Insured-Managers or Lessors of Premises Endorsement" and
contain the "Amendment of the Pollution Exclusion Endorsement" for
damage caused by heat, smoke or fumes from a hostile fire. The Policy
shall not contain any intra-insured exclusions as between insured
persons or organizations, but shall include coverage for liability
assumed under this Lease as an "insured contract" for the performance of
Lessee's indemnity obligations under this Lease. The limits of said
insurance shall not, however, limit the liability of Lessee nor relieve
Lessee of any obligation hereunder. All insurance carried by Lessee
shall be primary to and not contributory with any similar insurance
carried by Lessor, whose insurance shall be considered excess insurance
only.
(b) Carried by Lessor. Lessor shall maintain liability insurance as
described in Paragraph 8.2(a), in addition to, and not in lieu of, the
insurance required to be maintained by Lessee. Lessee shall not be named
as an additional insured therein.
8.3 Property Insurance - Building, Improvements and Rental Value.
(a) Building and Improvements. The Insuring Party shall obtain and
keep in force a policy or policies in the name of Lessor, with loss
payable to Lessor, any groundlessor, and to any Lender(s) insuring loss
or damage to the Premises. The amount of such insurance shall be equal
to the full replacement cost of the Premises, as the same shall exist
from time to time, or the amount required by any Lenders, but in no
event more than the commercially reasonable and available insurable
value thereof. If Lessor is the Insuring Party, however, Lessee Owned
Alterations and Utility Installations, Trade Fixtures, and Lessee's
personal property shall be insured by Lessee under Paragraph 8.4 rather
than by Lessor. If the coverage is available and commercially
appropriate, such policy or policies shall insure against all risks of
direct physical loss or damage (including the perils of flood and/or
earthquake), including coverage for debris removal and the enforcement
of any Applicable Requirements requiring the upgrading, demolition,
reconstruction or replacement of any portion of the Premises as the
result of a covered loss. Said policy or policies shall also contain an
agreed valuation provision in lieu of any coinsurance clause, waiver of
subrogation, and inflation guard protection causing an increase in the
annual property insurance coverage amount by a factor of not less than
the adjusted U.S. Department of Labor Consumer Price Index for All Urban
Consumers for the city nearest to where the Premises are located. If
such insurance coverage has a deductible clause, the deductible amount
shall not exceed $5,000 per occurrence, and Lessee shall be liable for
such deductible amount in the event of an Insured Loss. See Addendum 8.3
(b) Rental Value. The Insuring Party shall obtain and keep in force
a policy or policies in the name of Lessor with loss payable to Lessor
and any Lender, insuring the loss of the full Rent for one (1) year.
Said insurance shall provide that in the event the Lease is terminated
by reason of an insured loss, the period of indemnity for such coverage
shall be extended beyond the date of the completion of repairs or
replacement of the Premises, to provide for one full year's loss of Rent
from the date of any such loss. Said insurance shall contain an agreed
valuation provision in lieu of any coinsurance clause, and the amount of
coverage shall be adjusted annually to reflect the projected Rent
otherwise payable by Lessee, for the next twelve (12) month period.
Lessee shall be liable for any deductible amount in the event of such
loss.
(c) Adjacent Premises. If the Premises are part of a larger
building, or of a group of buildings owned by Lessor which are adjacent
to the Premises, the Lessee shall pay for any increase in the premiums
for the property insurance of such building or buildings if said
increase is caused by Lessee's acts, omissions, use or occupancy of the
Premises.
8.4 Lessee's Property/Business Interruption Insurance.
(a) Property Damage. Lessee shall obtain and maintain insurance
coverage on all of Lessee's personal property, Trade Fixtures, and
Lessee Owned Alterations and Utility Installations. Such insurance shall
be full replacement cost coverage with a deductible of not to exceed
$5,000 per occurrence. The proceeds from any such insurance shall be
used by Lessee for the replacement of personal property, Trade Fixtures
and Lessee Owned Alterations and Utility Installations except in the
case of a casualty occurring during the final year of the term of this
Lease. Lessee shall provide Lessor with written evidence that such
insurance is in force.
(c) No Representation of Adequate Coverage. Lessor makes no
representation that the limits or forms of coverage of insurance
specified herein are adequate to cover Lessee's property, business
operations or obligations under this Lease.
8.5 Insurance Policies. Insurance required herein shall be by
companies duly licensed or admitted to transact business in the state
where the Premises are located, and maintaining during the policy term a
"General Policyholders Rating" of at least B+, IX, as set forth in the
most current issue of "Best's Insurance Guide", or such other rating as
may be required by a Lender. Lessee shall not do or permit to be done
anything which invalidates the required insurance policies. Lessee
shall, prior to the Start Date, deliver to Lessor certified copies of
policies of such insurance or certificates evidencing the existence and
amounts of the required insurance. No such policy shall be cancelable or
subject to modification except after thirty (30) days prior written
notice to Lessor. Lessee shall, at least thirty (30) days prior to the
expiration of such policies, furnish Lessor with evidence of renewals or
"insurance binders" evidencing renewal thereof, or Lessor may order such
insurance and charge the cost thereof to Lessee, which amount shall be
payable by Lessee to Lessor upon demand. Such policies shall be for a
term of at least one year, or the length of the remaining term of this
Lease, whichever is less. If either Party shall fail to procure and
maintain the insurance required to be carried by it, the other Party
may, but shall not be required to, procure and maintain the same.
8.6 Waiver of Subrogation. Without affecting any other rights or
remedies, Lessee and Lessor each hereby release and relieve the other,
and waive their entire right to recover damages against the other, for
loss of or damage to its property arising out of or incident to the
perils required to be insured against herein. The effect of such
releases and waivers is not limited by the amount of insurance carried
or required, or by any deductibles applicable hereto. The Parties agree
to have their respective property damage insurance carriers waive any
right to subrogation that such companies may have against Lessor or
Lessee, as the case may be, so long as the insurance is not invalidated
thereby.
8.7 Indemnity. Except for Lessor's gross negligence or willful
misconduct, Lessee shall indemnify, protect, defend and hold harmless
the Premises, Lessor and its agents, Lessor's master or ground lessor,
partners and Lenders, from and against any and all claims, loss of rents
and/or damages, liens, judgments, penalties, attorneys' and consultants'
fees, expenses and/or liabilities arising out of, involving, or in
connection with, the use and/or occupancy of the Premises by Lessee. If
any action or proceeding is brought against Lessor by reason of any of
the foregoing matters, Lessee shall upon notice defend the same at
Lessee's expense by counsel reasonably satisfactory to Lessor and Lessor
shall cooperate with Lessee in such defense. Lessor need not have first
paid any such claim in order to be defended or indemnified.
8.8 Exemption of Lessor from Liability. Lessor shall not be liable for
injury or damage to the person or goods, wares, merchandise or other
property of Lessee, Lessee's employees, contractors, invitees,
customers, or any other person in or about the Premises, whether such
damage or injury is caused by or results from fire, steam, electricity,
gas, water or rain, or from the breakage, leakage, obstruction or other
defects of pipes, fire sprinklers, wires, appliances, plumbing, HVAC or
lighting fixtures, or from any other cause, whether the said injury or
damage results from conditions arising upon the Premises or upon other
portions of the Building of which the Premises are a part, or from other
sources or places. Lessor shall not be liable for any damages arising
from any act or neglect of any other tenant of Lessor. Notwithstanding
Lessor's negligence or breach of this Lease, Lessor shall under no
circumstances be liable for injury to Lessee's business or for any loss
of income or profit therefrom. Nothing in this Paragraph 8.8 is intended
to relieve Lessor from its obligations, if any, under Paragraph 6.2 of
this Lease (including the Addendum).
9. Damage or Destruction.
9.1 Definitions.
(a) "Premises Partial Damage" shall mean damage or destruction to
the improvements on the Premises, other than Lessee Owned Alterations
and Utility Installations, which can reasonably be repaired in six (6)
months or less from the date of the damage or destruction.
Lessor shall notify Lessee in writing within thirty (30) days from the
date of the damage or destruction as to whether or not the damage is
Partial or Total.
(b) "Premises Total Destruction" shall mean damage or destruction
to the Premises, other than Lessee Owned Alterations and Utility
Installations and Trade Fixtures, which cannot reasonably be repaired in
six (6) months or less from the date of the damage or destruction.
Lessor shall notify Lessee in writing within thirty (30) days from the
date of the damage or destruction as to whether or not the damage is
Partial or Total.
(c) "Insured Loss" shall mean damage or destruction to improvements
on the Premises, other than Lessee Owned Alterations and Utility
Installations and Trade Fixtures, which was caused by an event required
to be covered by the insurance described in Paragraph 8.3(a),
irrespective of any deductible amounts or coverage limits involved.
(d) "Replacement Cost" shall mean the cost to repair or rebuild the
improvements owned by Lessor at the time of the occurrence to their
condition existing immediately prior thereto, including demolition,
debris removal and upgrading required by the operation of Applicable
Requirements, and without deduction for depreciation.
(e) "Hazardous Substance Condition" shall mean the occurrence or
discovery of a condition involving the presence of, or a contamination
by, a Hazardous Substance as defined in Paragraph 6.2(a), in, on, or
under the Premises.
9.2 Partial Damage - Insured Loss. If a Premises Partial Damage that
is an Insured Loss occurs, then Lessor shall, at Lessor's expense,
repair such damage (but not Lessee's Trade Fixtures or Lessee Owned
Alterations and Utility Installations) as soon as reasonably possible
and this Lease shall continue in full force and effect; provided,
however, that Lessee shall, at Lessor's election, make the repair of any
damage or destruction the total cost to repair of which is $10,000 or
less, and, in such event, Lessor shall make any applicable insurance
proceeds available to Lessee on a reasonable basis for that purpose.
Notwithstanding the foregoing, if the required insurance was not in
force or the insurance proceeds are not sufficient to effect such
repair, the Insuring Party shall promptly contribute the shortage in
proceeds (except as to the deductible which is Lessee's responsibility)
as and when required to complete said repairs. In the event, however,
such shortage was due to the fact that, by reason of the unique nature
of the improvements, full replacement cost insurance coverage was not
commercially reasonable and available, Lessor shall have no obligation
to pay for the shortage in insurance proceeds or to fully restore the
unique aspects of the Premises unless Lessee provides Lessor with the
funds to cover same, or adequate assurance thereof, within ten (10) days
following receipt of written notice of such shortage and request
therefor. If Lessor receives said funds or adequate assurance thereof
within said ten (10) day period, the party responsible for making the
repairs shall complete them as soon as reasonably possible and this
Lease shall remain in full force and effect. If such funds or assurance
are not received, Lessor may nevertheless elect by written notice to
Lessee within ten (10) days thereafter to: (i) make such restoration and
repair as is commercially reasonable with Lessor paying any shortage in
proceeds, in which case this Lease shall remain in full force and
effect, or have this Lease terminate thirty (30) days thereafter. Lessee
shall not be entitled to reimbursement of any funds contributed by
Lessee to repair any such damage or destruction. Premises Partial Damage
due to flood or earthquake shall be subject to Paragraph 9.3,
notwithstanding that there may be some insurance coverage, but the net
proceeds of any such insurance shall be made available for the repairs
if made by either Party; provided, however, that if Lessor actually
receives proceeds sufficient to cover the full amount of the loss,
excluding any deductible, this Paragraph 9.2 shall govern.
9.3 Partial Damage - Uninsured Loss. If a Premises Partial Damage that
is not an Insured Loss occurs, unless caused by a negligent or willful
act of Lessee (in which event Lessee shall make the repairs at Lessee's
expense), Lessor may either: (i) repair such damage as soon as
reasonably possible at Lessor's expense, in which event this Lease shall
continue in full force and effect, or (ii) terminate this Lease by
giving written notice to Lessee within thirty (30) days after receipt by
Lessor of knowledge of the occurrence of such damage. Such termination
shall be effective sixty (60) days following the date of such notice. In
the event Lessor elects to terminate this Lease, Lessee shall have the
right within ten (10) days after receipt of the termination notice to
give written notice to Lessor of Lessee's commitment to pay for the
repair of such damage without reimbursement from Lessor. Lessee shall
provide Lessor with said funds or satisfactory assurance thereof within
thirty (30) days after making such commitment. In such event this Lease
shall continue in full force and effect, and Lessor shall proceed to
make such repairs as soon as reasonably possible after the required
funds are available. If Lessee does not make the required commitment,
this Lease shall terminate as of the date specified in the termination
notice. See Addendum 9.3.
9.4 Total Destruction. Notwithstanding any other provision hereof, if
a Premises Total Destruction occurs, this Lease shall terminate sixty
(60) days following such Destruction. If the damage or destruction was
caused by the gross negligence or willful misconduct of Lessee, Lessor
shall have the right to recover Lessor's damages from Lessee, except as
provided in Paragraph 8.6.
9.5 Damage Near End of Term. If at any time during the last six (6)
months of this Lease there is damage for which the cost to repair
exceeds two (2) month's Base Rent, whether or not an Insured Loss,
Lessor may terminate this Lease effective sixty (60) days following the
date of occurrence of such damage by giving a written termination notice
to Lessee within thirty (30) days after the date of occurrence of such
damage. Notwithstanding the foregoing, if Lessee at that time has an
exercisable option to extend this Lease or to purchase the Premises,
then Lessee may preserve this Lease by, (a) exercising such option and
(b) providing Lessor with any shortage in insurance proceeds (or
adequate assurance thereof) needed to make the repairs on or before the
earlier of (i) the date which is ten days after Lessee's receipt of
Lessor's written notice purporting to terminate this Lease, or (ii) the
day prior to the date upon which such option expires. If Lessee duly
exercises such option during such period and provides Lessor with funds
(or adequate assurance thereof) to cover any shortage in insurance
proceeds, Lessor shall, at Lessor's commercially reasonable expense,
repair such damage as soon as reasonably possible and this Lease shall
continue in full force and effect. If Lessee fails to exercise such
option and provide such funds or assurance during such period, then this
Lease shall terminate on the date specified in the termination notice
and Lessee's option shall be extinguished.
9.6 Abatement of Rent; Lessee's Remedies.
(a) Abatement. In the event of Premises Partial Damage or Premises
Total Destruction or a Hazardous Substance Condition for which Lessee is
not responsible under this Lease, the Rent payable by Lessee for the
period required for the repair, remediation or restoration of such
damage shall be abated in proportion to the degree to which Lessee's use
of the Premises is impaired, but not to exceed the proceeds received
from the Rental Value insurance. All other obligations of Lessee
hereunder shall be performed by Lessee, and Lessor shall have no
liability for any such damage, destruction, remediation, repair or
restoration except as provided herein.
(b) Remedies. If Lessor shall be obligated to repair or restore the
Premises and does not commence, in a substantial and meaningful way,
such repair or restoration within ninety (90) days after such obligation
shall accrue, Lessee may, at any time prior to the commencement of such
repair or restoration, give written notice to Lessor and to any Lenders
of which Lessee has actual notice, of Lessee's election to terminate
this Lease on a date not less than sixty (60) days following the giving
of such notice. If Lessee gives such notice and such repair or
restoration is not commenced within thirty (30) days thereafter, this
Lease shall terminate as of the date specified in said notice. If the
repair or restoration is commenced within said thirty (30) days, this
Lease shall continue in full force and effect. "Commence" shall mean the
beginning of the actual work on the Premises. See Addendum 9.6.
9.7 Termination - Advance Payments. Upon termination of this Lease
pursuant to Paragraph 6.2(g) or Paragraph 9, an equitable adjustment
shall be made concerning advance Base Rent and any other advance
payments made by Lessee to Lessor. Lessor shall, in addition, return to
Lessee so much of Lessee's Security Deposit as has not been, or is not
then required to be, used by Lessor.
9.8 Waive Statutes. Lessor and Lessee agree that the terms of this
Lease shall govern the effect of any damage to or destruction of the
Premises with respect to the termination of this Lease and hereby waive
the provisions of any present or future statute to the extent
inconsistent herewith.
10. Real Property Taxes.
10.1 Definition of "Real Property Taxes." As used herein, the term
"Real Property Taxes" shall include any form of assessment; real estate,
general, special, ordinary or extraordinary, or rental levy or tax
(other than inheritance, personal income or estate taxes); improvement
bond; and/or license fee imposed upon or levied against any legal or
equitable interest of Lessor in the Premises, Lessor's right to gross
revenues therefrom, (But not any tax on Lessor's net income from all
sources) and/or Lessor's business of leasing, by any authority having
the direct or indirect power to tax and where the funds are generated
with reference to the Building address and where the proceeds so
generated are to be applied by the city, county or other local taxing
authority of a jurisdiction within which the Premises are located. The
term "Real Property Taxes" shall also include any tax, fee, levy,
assessment or charge, or any increase therein, imposed by reason of
events occurring during the term of this Lease, including but not
limited to, a change in the ownership of the Premises.
10.2 See Addendum 10.2
(a) Payment of Taxes. Lessee shall pay the Real Property Taxes
applicable to the Premises during the term of this Lease. Subject to
Paragraph 10.2(b), all such payments shall be made at least ten (10)
days prior to any delinquency date. Lessee shall promptly furnish Lessor
with satisfactory evidence that such taxes have been paid. If any such
taxes shall cover any period of time prior to or after the expiration or
termination of this Lease, Lessee's share of such taxes shall be
prorated to cover only that portion of the tax xxxx applicable to the
period that this Lease is in effect, and Lessor shall reimburse Lessee
for any overpayment. If Lessee shall fail to pay any required Real
Property Taxes, Lessor shall have the right to pay the same, and Lessee
shall reimburse Lessor therefor upon demand.
(b) Advance Payment. In the event Lessee incurs a late charge on any
Rent payment two (2) times during any twelve (12) month period, Lessor
may, at Lessor's option, estimate the current Real Property Taxes, and
require that such taxes be paid in advance to Lessor by Lessee, either:
(i) in a lump sum amount equal to the installment due, at least twenty
(20) days prior to the applicable delinquency date, or (ii) monthly in
advance with the payment of the Base Rent. If Lessor elects to require
payment monthly in advance, the monthly payment shall be an amount equal
to the amount of the estimated installment of taxes divided by the
number of months remaining before the month in which said installment
becomes delinquent. When the actual amount of the applicable tax xxxx is
known, the amount of such equal monthly advance payments shall be
adjusted as required to provide the funds needed to pay the applicable
taxes. If the amount collected by Lessor is insufficient to pay such
Real Property Taxes when due, Lessee shall pay Lessor, upon demand, such
additional sums as are necessary to pay such obligations. All monies
paid to Lessor under this Paragraph may be intermingled with other
monies of Lessor and shall not bear interest. In the event of a Breach
by Lessee in the performance of its obligations under this Lease, then
any balance of funds paid to Lessor under the provisions of this
Paragraph may, at the option of Lessor, be treated as an additional
Security Deposit.
10.3 Joint Assessment. If the Premises are not separately assessed,
Lessee's liability shall be an equitable proportion of the Real Property
Taxes for all of the land and improvements included within the tax
parcel assessed, such proportion to be reasonably determined by Lessor
from the respective valuations assigned in the assessor's work sheets or
such other information as may be reasonably available.
10.4 Personal Property Taxes. Lessee shall pay, prior to delinquency,
all taxes assessed against and levied upon Lessee Owned Alterations,
Utility Installations, Trade Fixtures, furnishings, equipment and all
personal property of Lessee. When possible, Lessee shall cause such
property to be assessed and billed separately from the real property of
Lessor. If any of Lessee's said personal property shall be assessed with
Lessor's real property, Lessee shall pay Lessor the taxes attributable
to Lessee's property within ten (10) days after receipt of a written
statement.
11. Utilities. Lessee shall pay for all water, gas, heat, light,
power, telephone, trash disposal and other utilities and services
supplied to the Premises, together with any taxes thereon. If any such
services are not separately metered to Lessee, Lessee shall pay a
reasonable proportion, to be determined by Lessor, of all charges
jointly metered.
12. Assignment and Subletting. See Addendum 12
12.1 Lessor's Consent Required.
(a) Lessee shall not voluntarily or by operation of law assign,
transfer, mortgage or encumber (collectively, "assign or assignment") or
sublet all or any part of Lessee's interest in this Lease or in the
Premises without Lessor's prior written consent, which consent shall not
be unreasonably withheld or delayed.
(b) A change in the control of Lessee shall constitute an
assignment requiring consent. The transfer, on a cumulative basis, of
twenty-five percent (25%) or more of the voting control of Lessee shall
constitute a change in control for this purpose.
(c) The involvement of Lessee or its assets in any transaction, or
series of transactions (by way of merger, sale, acquisition, financing,
transfer, leveraged buy-out or otherwise), whether or not a formal
assignment or hypothecation of this Lease or Lessee's assets occurs,
which results or will result in a reduction of the Net Worth of Lessee
by an amount greater than twenty-five percent (25%) of such Net Worth as
it was represented at the time of the execution of this Lease or at the
time of the most recent assignment to which Lessor has consented, or as
it exists immediately prior to said transaction or transactions
constituting such reduction, whichever was or is greater, shall be
considered an assignment of this Lease to which Lessor may withhold its
consent. "Net Worth of Lessee" shall mean the net worth of Lessee
(excluding any guarantors) established under generally accepted
accounting principles.
(d) An assignment or subletting without consent shall be a Default
curable after notice per Paragraph 13.1(c). If Lessee fails to cure such
Default within the applicable cure period, Lessor may either: (i)
terminate this Lease, or (ii) upon thirty (30) days written notice,
increase the monthly Base Rent to one hundred ten percent (110%) of the
Base Rent then in effect. Further, in the event of such Breach and
rental adjustment, (i) the purchase price of any option to purchase the
Premises held by Lessee shall be subject to similar adjustment to one
hundred ten percent (110%) of the price previously in effect, and (ii)
all fixed and non-fixed rental adjustments scheduled during the
remainder of the Lease term shall be increased to One Hundred Ten
Percent (110%) of the scheduled adjusted rent.
(e) Lessee's remedy for any breach of Paragraph 12.1 by Lessor
shall be limited to compensatory damages and/or injunctive relief.
12.2 Terms and Conditions Applicable to Assignment and Subletting.
(a) Regardless of Lessor's consent, any assignment or subletting
shall not: (i) be effective without the express written assumption by
such assignee or sublessee of the obligations of Lessee under this
Lease; (ii) release Lessee of any obligations hereunder; or (iii) alter
the primary liability of Lessee for the payment of Rent or for the
performance of any other obligations to be performed by Lessee.
(b) Lessor may accept Rent or performance of Lessee's obligations
from any person other than Lessee pending approval or disapproval of an
assignment. Neither a delay in the approval or disapproval of such
assignment nor the acceptance of Rent or performance shall constitute a
waiver or estoppel of Lessor's right to exercise its remedies for
Lessee's Default or Breach.
(c) Lessor's consent to any assignment or subletting shall not
constitute a consent to any subsequent assignment or subletting.
(d) In the event of any Default or Breach by Lessee, Lessor may
proceed directly against Lessee, any Guarantors or anyone else
responsible for the performance of Lessee's obligations under this
Lease, including any assignee or sublessee, without first exhausting
Lessor's remedies against any other person or entity responsible
therefore to Lessor, or any security held by Lessor.
(e) Each request for consent to an assignment or subletting shall
be in writing, accompanied by information relevant to Lessor's
determination as to the financial and operational responsibility and
appropriateness of the proposed assignee or sublessee, including but not
limited to the intended use and/or required modification of the
Premises, if any, together with a fee of $1,000 or three percent (3%) of
the current monthly Base Rent applicable to the portion of the Premises
which is the subject of the proposed assignment or sublease, whichever
is greater, as consideration for Lessor's considering and processing
said request. Lessee agrees to provide Lessor with such other or
additional information and/or documentation as may be reasonably
requested.
(f) Any assignee of, or sublessee under, this Lease shall, by
reason of accepting such assignment or entering into such sublease, be
deemed to have assumed and agreed to conform and comply with each and
every term, covenant, condition and obligation herein to be observed or
performed by Lessee during the term of said assignment or sublease,
other than such obligations as are contrary to or inconsistent with
provisions of an assignment or sublease to which Lessor has specifically
consented to in writing.
12.3 Additional Terms and Conditions Applicable to Subletting. The
following terms and conditions shall apply to any subletting by Lessee
of all or any part of the Premises and shall be deemed included in all
subleases under this Lease whether or not expressly incorporated
therein:
(a) Lessee hereby assigns and transfers to Lessor all of Lessee's
interest in all Rent payable on any sublease, and Lessor may collect
such Rent and apply same toward Lessee's obligations under this Lease;
provided, however, that until a Breach shall occur in the performance of
Lessee's obligations, Lessee may collect said Rent. Lessor shall not, by
reason of the foregoing or any assignment of such sublease, nor by
reason of the collection of Rent, be deemed liable to the sublessee for
any failure of Lessee to perform and comply with any of Lessee's
obligations to such sublessee. Lessee hereby irrevocably authorizes and
directs any such sublessee, upon receipt of a written notice from Lessor
stating that a Breach exists in the performance of Lessee's obligations
under this Lease, to pay to Lessor that portion of the Rent due and to
become due under the sublease demanded in such notice from Lessor,
provided that the amount demanded shall not exceed all amounts then due
and payable by Lessee hereunder, including any past due Rent, as current
Rent. Sublessee shall rely upon any such notice from Lessor and shall
pay all Rents demanded by to Lessor without any obligation or right to
inquire as to whether such Breach exists, notwithstanding any claim from
Lessee to the contrary.
(b) In the event of a Breach by Lessee, Lessor may, at its option,
require sublessee to attorn to Lessor, in which event Lessor shall
undertake the obligations of the sublessor under such sublease from the
time of the exercise of said option to the expiration of such sublease;
provided, however, Lessor shall not be liable for any prepaid rents or
security deposit paid by such sublessee to such sublessor or for any
prior Defaults or Breaches of such sublessor.
(c) Any matter requiring the consent of the sublessor under a
sublease shall also require the consent of Lessor.
(d) No sublessee shall further assign or sublet all or any part of
the Premises without Lessor's prior written consent.
(e) Lessor shall deliver a copy of any notice of Default or Breach
by Lessee to the sublessee, who shall have the right to cure the Default
of Lessee within the grace period, if any, specified in such notice. The
sublessee shall have a right of reimbursement and offset from and
against Lessee for any such Defaults cured by the sublessee.
13. Default; Breach; Remedies. See Addendum 13.1
13.1 Default; Breach. A "Default" is defined as a failure by the
Lessee to comply with or perform any of the terms, covenants, conditions
or rules under this Lease. A "Breach" is defined as the occurrence of
one or more of the following Defaults, and the failure of Lessee to cure
such Default within any applicable grace period:
(a) The abandonment of the Premises; or the vacating of the Premises
without providing a commercially reasonable level of security, or where
the coverage of the property insurance described in Paragraph 8.3 is
jeopardized as a result thereof, or without providing reasonable
assurances to minimize potential vandalism.
(b) The failure of Lessee to make any payment of Rent or any
Security Deposit required to be made by Lessee hereunder, whether to
Lessor or to a third party, when due, to provide reasonable evidence of
insurance or surety bond, or to fulfill any obligation under this Lease
which endangers or threatens life or property, where such failure
continues for a period of three (3) business days following written
notice to Lessee.
(c) The failure by Lessee to provide (i) reasonable written evidence
of compliance with Applicable Requirements, (ii) the service contracts,
(iii) the rescission of an unauthorized assignment or subletting, (iv) a
Tenancy Statement, (v) a requested subordination, (vi) any document
requested under Paragraph 42 (easements), or (vii) any other
documentation or information which Lessor may reasonably require of
Lessee under the terms of this Lease, where any such failure continues
for a period of ten (10) or in the case of any of the item set forth in
clauses (i), (ii) or (viii), thirty (30) days following written notice
to Lessee.
(d) A Default by Lessee as to the terms, covenants, conditions or
provisions of this Lease, or of the rules adopted under Paragraph 40
hereof, other than those described in subparagraphs 13.1(a), (b) or (c),
above, where such Default continues for a period of thirty (30) days
after written notice; provided, however, that if the nature of Lessee's
Default is such that more than thirty (30) days are reasonably required
for its cure, then it shall not be deemed to be a Breach if Lessee
commences such cure within said thirty (30) day period and thereafter
diligently prosecutes such cure to completion.
(e) The occurrence of any of the following events: (i) the making of
any general arrangement or assignment for the benefit of creditors; (ii)
becoming a "debtor" as defined in 11 U.S.C. Section 101 or any successor
statute thereto (unless, in the case of a petition filed against Lessee,
the same is dismissed within sixty (60) days); (iii) the appointment of
a trustee or receiver to take possession of substantially all of
Lessee's assets located at the Premises or of Lessee's interest in this
Lease, where possession is not restored to Lessee within thirty (30)
days; or (iv) the attachment, execution or other judicial seizure of
substantially all of Lessee's assets located at the Premises or of
Lessee's interest in this Lease, where such seizure is not discharged
within thirty (30) days; provided, however, in the event that any
provision of this subparagraph 13.1 (e) is contrary to any applicable
law, such provision shall be of no force or effect, and not affect the
validity of the remaining provisions.
(f) The discovery that any financial statement of Lessee given to
Lessor was materially false.
13.2 Remedies. If Lessee fails to perform any of its affirmative
duties or obligations, within ten (10) days after written notice (or in
case of an emergency, without notice), Lessor may, at its option,
perform such duty or obligation on Lessee's behalf, including but not
limited to the obtaining of reasonably required bonds, insurance
policies, or governmental licenses, permits or approvals. The costs and
expenses of any such performance by Lessor shall be due and payable by
Lessee upon receipt of invoice therefor. If any check given to Lessor by
Lessee shall not be honored by the bank upon which it is drawn, Lessor,
at its option, may require all future payments to be made by Lessee to
be by cashier's check. In the event of a Breach, Lessor may, with or
without further notice or demand, and without limiting Lessor in the
exercise of any right or remedy which Lessor may have by reason of such
Breach:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Lessee shall
immediately surrender possession to Lessor. In such event Lessor shall
be entitled to recover from Lessee: (i) the unpaid Rent which had been
earned at the time of termination; (ii) the worth at the time of award
of the amount by which the unpaid rent which would have been earned
after termination until the time of award exceeds the amount of such
rental loss that the Lessee proves could have been reasonably avoided;
(iii) the worth at the time of award of the amount by which the unpaid
rent for the balance of the term after the time of award exceeds the
amount of such rental loss that the Lessee proves could be reasonably
avoided; and (iv) any other amount necessary to compensate Lessor for
all the detriment proximately caused by the Lessee's failure to perform
its obligations under this Lease or which in the ordinary course of
things would be likely to result therefrom, including but not limited to
the cost of recovering possession of the Premises, expenses of
reletting, including necessary renovation and alteration of the
Premises, reasonable attorneys' fees, and that portion of any leasing
commission paid by Lessor in connection with this Lease applicable to
the unexpired term of this Lease. The worth at the time of award of the
amount referred to in provision (iii) of the immediately preceding
sentence shall be computed by discounting such amount at the discount
rate of the Federal Reserve Bank of the District within which the
Premises are located at the time of award plus one percent (1%). Efforts
by Lessor to mitigate damages caused by Lessee's Breach of this Lease
shall not waive Lessor's right to recover damages under Paragraph 12. If
termination of this Lease is obtained through the provisional remedy of
unlawful detainer, Lessor shall have the right to recover in such
proceeding any unpaid Rent and damages as are recoverable therein, or
Lessor may reserve the right to recover all or any part thereof in a
separate suit. If a notice and grace period required under Paragraph
13.1 was not previously given, a notice to pay rent or quit, or to
perform or quit given to Lessee under the unlawful detainer statute
shall also constitute the notice required by Paragraph 13.1. In such
case, the applicable grace period required by Paragraph 13.1 and the
unlawful detainer statute shall run concurrently, and the failure of
Lessee to cure the Default within the greater of the two such grace
periods shall constitute both an unlawful detainer and a Breach of this
Lease entitling Lessor to the remedies provided for in this Lease and/or
by said statute.
(b) Continue the Lease and Lessee's right to possession and recover
the Rent as it becomes due, in which event Lessee may sublet or assign,
subject only to reasonable limitations. Acts of maintenance, efforts to
relet, and/or the appointment of a receiver to protect the Lessor's
interests, shall not constitute a termination of the Lessee's right to
possession.
(c) Pursue any other remedy now or hereafter available under the
laws or judicial decisions of the state wherein the Premises are
located. The expiration or termination of this Lease and/or the
termination of Lessee's right to possession shall not relieve Lessee
from liability under any indemnity provisions of this Lease as to
matters occurring or accruing during the term hereof or by reason of
Lessee's occupancy of the Premises.
13.3 Inducement Recapture. Any agreement for free or abated rent or
other charges, or for the giving or paying by Lessor to or for Lessee of
any cash or other bonus, inducement or consideration for Lessee's
entering into this Lease, all of which concessions are hereinafter
referred to as "Inducement Provisions," shall be deemed conditioned upon
Lessee's full and faithful performance of all of the terms, covenants
and conditions of this Lease. Upon Breach of this Lease by Lessee, any
such Inducement Provision shall automatically be deemed deleted from
this Lease and of no further force or effect, and any rent, other
charge, bonus, inducement or consideration theretofore abated, given or
paid by Lessor under such an Inducement Provision shall be immediately
due and payable by Lessee to Lessor, notwithstanding any subsequent cure
of said Breach by Lessee. The acceptance by Lessor of Rent or the cure
of the Breach which initiated the operation of this paragraph shall not
be deemed a waiver by Lessor of the provisions of this paragraph unless
specifically so stated in writing by Lessor at the time of such
acceptance.
13.4 Late Charges. Lessee hereby acknowledges that late payment by
Lessee of Rent will cause Lessor to incur costs not contemplated by this
Lease, the exact amount of which will be extremely difficult to
ascertain. Such costs include, but are not limited to, processing and
accounting charges, and late charges which may be imposed upon Lessor by
any Lender. Accordingly, if any Rent shall not be received by Lessor
within five (5) days after such amount shall be due, then, without any
requirement for notice to Lessee, Lessee shall pay to Lessor a one-time
late charge equal to six percent (6%) of each such overdue amount. The
Parties hereby agree that such late charge represents a fair and
reasonable estimate of the costs Lessor will incur by reason of such
late payment. Acceptance of such late charge by Lessor shall in no event
constitute a waiver of Lessee's Default or Breach with respect to such
overdue amount, nor prevent the exercise of any of the other rights and
remedies granted hereunder. In the event that a late charge is payable
hereunder, whether or not collected, for three (3) consecutive
installments of Base Rent, then notwithstanding any provision of this
Lease to the contrary, Base Rent shall, at Lessor's option, become due
and payable quarterly in advance.
13.5 Interest. Any monetary payment due Lessor hereunder, other than
late charges, not received by Lessor, when due as to scheduled payments
(such as Base Rent) or within thirty (30) days following the date on
which it was due for non-scheduled payment, shall bear interest from the
date when due, as to scheduled payments, or the thirty-first (31st) day
after it was due as to non-scheduled payments. The interest ("Interest")
charged shall be equal to the prime rate reported in the Wall Street
Journal as published closest prior to the date when due plus four
percent (4%), but shall not exceed the maximum rate allowed by law.
Interest is payable in addition to the potential late charge provided
for in Paragraph 13.4.
13.6 Breach by Lessor.
(a) Notice of Breach. Lessor shall not be deemed in breach of this
Lease unless Lessor fails within a reasonable time to perform an
obligation required to be performed by Lessor. For purposes of this
Paragraph, a reasonable time shall in no event be more than thirty (30)
days after receipt by Lessor, and any Lender whose name and address
shall have been furnished Lessee in writing for such purpose, of written
notice specifying wherein such obligation of Lessor has not been
performed; provided, however, that if the nature of Lessor's obligation
is such that more than thirty (30) days are reasonably required for its
performance, then Lessor shall not be in breach if performance is
commenced within such thirty (30) day period and thereafter diligently
pursued to completion.
(b) Performance by Lessee on Behalf of Lessor. In the event that
neither Lessor nor Lender cures said breach within thirty (30) days
after receipt of said notice, or if having commenced said cure they do
not diligently pursue it to completion, or in the case of an emergency,
without waiting for the 30 day cure period to expire then Lessee may
elect to cure said breach at Lessee's expense and offset from Rent an
amount equal to two (2) month's Base Rent, and to pay an excess of such
expense under protest, reserving Lessee's right to reimbursement from
Lessor. Lessee shall document the cost of said cure and supply said
documentation to Lessor.
14. Condemnation. If the Premises or any portion thereof are taken
under the power of eminent domain or sold under the threat of the
exercise of said power (collectively "Condemnation"), this Lease shall
terminate as to the part taken as of the date the condemning authority
takes title or possession, whichever first occurs. If more than ten
percent (10%) of any building portion of the Premises, or more than
twenty-five percent (25%) of the land area portion of the Premises not
occupied by any building, is taken by Condemnation, Lessee may, at
Lessee's option, to be exercised in writing within ten (10) days after
Lessor shall have given Lessee written notice of such taking (or in the
absence of such notice, within ten (10) days after Lessee obtains
knowledge that the condemning authority shall have taken possession)
terminate this Lease as of the date the condemning authority takes such
possession. If Lessee does not terminate this Lease in accordance with
the foregoing, this Lease shall remain in full force and effect as to
the portion of the Premises remaining, except that the Base Rent shall
be reduced in proportion to the reduction in utility of the Premises
caused by such Condemnation. Condemnation awards and/or payments shall
be the property of Lessor, whether such award shall be made as
compensation for diminution in value of the leasehold, the value of the
part taken, or for severance damages; provided, however, that Lessee
shall be entitled to any compensation for Lessee's relocation expenses,
loss of business goodwill and/or Trade Fixtures, without regard to
whether or not this Lease is terminated pursuant to the provisions of
this Paragraph. All Alterations and Utility Installations made to the
Premises by Lessee, for purposes of Condemnation only, shall be
considered the property of the Lessee and Lessee shall be entitled to
any and all compensation which is payable therefor. In the event that
this Lease is not terminated by reason of the Condemnation, Lessor shall
repair any damage to the Premises caused by such Condemnation.
15. Brokers' Fee.
15.3 Representations and Indemnities of Broker Relationships. Lessee
and Lessor each represent and warrant to the other that it has had no
dealings with any person, firm, broker or finder (other than the
Brokers, if any) in connection with this Lease, and that no one other
than said named Brokers is entitled to any commission or finder's fee in
connection herewith. Lessee and Lessor do each hereby agree to
indemnify, protect, defend and hold the other harmless from and against
liability for compensation or charges which may be claimed by any such
unnamed broker, finder or other similar party by reason of any dealings
or actions of the indemnifying Party, including any costs, expenses,
and/or attorneys' fees reasonably incurred with respect thereto.
16. Estoppel Certificates. See Addendum 16
(a) Each Party (as "Responding Party") shall within ten (10) days
after written notice from the other Party (the "Requesting Party")
execute, acknowledge and deliver to the Requesting Party a statement in
writing in form similar to the then most current "Estoppel Certificate"
form published by the American Industrial Real Estate Association, plus
such additional information, confirmation and/or statements as may be
reasonably requested by the Requesting Party, or by any prospective
purchase of the Premises, or by any existing or prospective lender to
Lessor.
(c) If Lessor desires to finance, refinance, or sell the Premises,
or any part thereof, Lessee shall deliver within five (5) business days
after written request by Lessor, to any potential lender or purchaser
designated by Lessor such financial statements as may be reasonably
required by such lender or purchaser, including, but not limited to,
Lessee's financial statements for the past three (3) years. All such
financial statements shall be received by Lessor and such lender or
purchaser in confidence and shall be used only for the purposes herein
set forth.
17. Definition of Lessor. The term "Lessor" as used herein shall
mean the owner or owners at the time in question of the fee title to the
Premises, or, if this is a sublease, of the Lessee's interest in the
prior lease. In the event of a transfer of Lessor's title or interest in
the Premises or this Lease, Lessor shall deliver to the transferee or
assignee (in cash or by credit) any unused Security Deposit held by
Lessor. Except as provided in Paragraph 15, upon such transfer or
assignment and delivery of the Security Deposit, as aforesaid, the prior
Lessor shall be relieved of all liability with respect to the
obligations and/or covenants under this Lease thereafter to be performed
by the Lessor, and the transferee or assignee shall be responsible for
the performance of ??? obligations and covenants under this lease from
which the prior Lessor is ????. Subject to the foregoing, the
obligations and/or covenants in this Lease to be performed by the Lessor
shall be binding only upon the Lessor as hereinabove defined.
Notwithstanding the above, and subject to the provisions of Paragraph 20
below, the original Lessor under this Lease, and all subsequent holders
of the Lessor's interest in this Lease shall remain liable and
responsible with regard to the potential duties and liabilities of
Lessor pertaining to Hazardous Substances as outlined in Paragraph 6
above.
18. Severability. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect
the validity of any other provision hereof.
19. Days. Unless otherwise specifically indicated to the contrary,
the word "days" as used in this Lease shall mean and refer to calendar
days.
20. Limitation on Liability. Subject to the provisions of Paragraph
17 above, the obligations of Lessor under this Lease shall not
constitute personal obligations of Lessor, the individual partners of
Lessor or its or their individual partners, directors, officers or
shareholders, and Lessee shall look to the Premises, and to no other
assets of Lessor, for the satisfaction of any liability of Lessor with
respect to this Lease, and shall not seek recourse against the
individual partners of Lessor, or its or their individual partners,
directors, officers or shareholders, or any of their personal assets for
such satisfaction.
21. Time of Essence. Time is of the essence with respect to the
performance of all obligations to be performed or observed by the
Parties under this Lease.
22. No Prior or Other Agreements; Broker Disclaimer. This Lease
contains all agreements between the Parties with respect to any matter
mentioned herein, and no other prior or contemporaneous agreement or
understanding shall be effective. Lessor and Lessee each represents and
warrants to the Brokers that it has made, and is relying solely upon,
its own investigation as to the nature, quality, character and financial
responsibility of the other Party to this Lease and as to the nature,
quality and character of the Premises. Brokers have no responsibility
with respect thereto or with respect to any default or breach hereof by
either Party. The liability (including court costs and Attorneys' fees),
of any Broker with respect to negotiation, execution, delivery or
performance by either Lessor or Lessee under this Lease or any amendment
or modification hereto shall be limited to an amount up to the fee
received by such Broker pursuant to this Lease; provided, however, that
the foregoing limitation on each Broker's liability shall not be
applicable to any gross negligence or willful misconduct of such Broker.
23. Notices.
23.1 Notice Requirements. All notices required or permitted by this
Lease shall be in writing and may be delivered in person (by hand or by
courier) or may be sent by regular, certified or registered mail or U.S.
Postal Service Express Mail, return receipt requested with postage
prepaid, or by facsimile transmission, and shall be deemed sufficiently
given if served in a manner specified in this Paragraph 23. The
addresses noted adjacent to a Party's signature on this Lease shall be
that Party's address for delivery or mailing of notices. Either Party
may by written notice to the other specify a different address for
notice, except that upon Lessee's taking possession of the Premises, the
Premises shall constitute Lessee's address for notice. A copy of all
notices to Lessor shall be concurrently transmitted to such party or
parties at such addresses as Lessor may from time to time hereafter
designate in writing.
23.2 Date of Notice. Any notice sent by registered or certified mail,
return receipt requested, shall be deemed given on the date of delivery
shown on the receipt card, or if no delivery date is shown, the postmark
thereon. Notices delivered by United States Express Mail or overnight
courier that guarantee next day delivery shall be deemed given on the
next business day after delivery of the same to the Postal Service or
courier. Notices transmitted by facsimile transmission or similar means
shall be deemed delivered upon completion of legible transmission
provided a copy is also delivered via delivery or mail. If notice is
received on a Saturday, Sunday or legal holiday, it shall be deemed
received on the next business day.
24. Waivers. No waiver by Lessor of the Default or Breach of any
term, covenant or condition hereof by Lessee, shall be deemed a waiver
of any other term, covenant or condition hereof, or of any subsequent
Default or Breach by Lessee of the same or of any other term, covenant
or condition hereof. Lessor's consent to, or approval of, any act shall
not be deemed to render unnecessary the obtaining of Lessor's consent
to, or approval of, any subsequent or similar act by Lessee, or be
construed as the basis of an estoppel to enforce the provision or
provisions of this Lease requiring such consent. The acceptance of Rent
by Lessor shall not be a waiver of any Default or Breach by Lessee. Any
payment by Lessee may be accepted by Lessor on account of monies or
damages due Lessor, notwithstanding any qualifying statements or
conditions made by Lessee in connection therewith, which such statements
and/or conditions shall be of no force or effect whatsoever unless
specifically agreed to in writing by Lessor at or before the time of
deposit of such payment.
25. Recording. Either Lessor or Lessee shall, upon request of the
other, execute, acknowledge and deliver to the other a short form
memorandum of this Lease for recording purposes. The Party requesting
recordation shall be responsible for payment of any fees applicable
thereto.
26. No Right To Holdover. Lessee has no right to retain possession
of the Premises or any part thereof beyond the expiration or termination
of this Lease. In the event that Lessee holds over, then the Base Rent
shall be increased to an amount equal to two times the Base Rent
applicable during the month immediately preceding the expiration or
termination. Nothing contained herein shall be construed as consent by
Lessor to any holding over by Lessee.
27. Cumulative Remedies. No remedy or election hereunder shall be
deemed exclusive but shall, wherever possible, be cumulative with all
other remedies at law or in equity.
28. Covenants and Conditions; Construction of Agreement. All
provisions of this Lease to be observed or performed by Lessee are both
covenants and conditions. In construing this Lease, all headings and
titles are for the convenience of the Parties only and shall not be
considered a part of this Lease. Whenever required by the context, the
singular shall include the plural and vice versa. This Lease shall not
be construed as if prepared by one of the Parties, but rather according
to its fair meaning as a whole, as if both Parties had prepared it.
29. Binding Effect; Choice of Law. This Lease shall be binding upon
the parties, their personal representatives, successors and assigns and
be governed by the laws of the State in which the Premises are located.
Any litigation between the Parties hereto concerning this Lease shall be
initiated in the county in which the Premises are located.
30. Subordination; Attornment; Non-Disturbance.
30.1 Subordination. This Lease and any Option granted hereby shall be
subject and subordinate to any ground lease, mortgage, deed of trust, or
other hypothecation or security device (collectively, "Security
Device"), now or hereafter placed upon the Premises, to any and all
advances made on the security thereof, and to all renewals,
modifications, and extensions thereof. Lessee agrees that the holders of
any such Security Devices (in this Lease together referred to as
"Lessor's Lender") shall have no liability or obligation to perform any
of the obligations of Lessor under this Lease. Any Lender may elect to
have this Lease and/or any Option granted hereby superior to the lien of
its Security Device by giving written notice thereof to Lessee,
whereupon this Lease and such Options shall be deemed prior to such
Security Device, notwithstanding the relative dates of the documentation
or recordation thereof.
30.2 Attornment. Subject to the non-disturbance provisions of
Paragraph 30.3, Lessee agrees to attorn to a Lender or any other party
who acquires ownership of the Premises by reason of a foreclosure of a
Security Device, and that in the event of such foreclosure, such new
owner shall not: (i) be liable for any act or omission of any prior
lessor or with respect to events occurring prior to acquisition of
ownership; (ii) be subject to any offsets or defenses which Lessee might
have against any prior lessor; or (iii) be bound by prepayment of more
than one (1) month's rent.
30.3 Non-Disturbance. With respect to Security Devices entered into by
Lessor after the execution of this Lease, Lessee's subordination of this
Lease shall be subject to receiving a commercially reasonable non-
disturbance agreement (a "Non-Disturbance Agreement") from the Lender
which Non-Disturbance Agreement provides that Lessee's possession of the
Premises, and this Lease, including any options to extend the term
hereof, will not be disturbed so long as Lessee is not in Breach hereof
and attorns to the record owner of the Premises. Further, within sixty
(60) days after the execution of this Lease, Lessor shall use its
commercially reasonable efforts to obtain a Non-Disturbance Agreement
from the holder of any pre-existing Security Device which is secured by
the Premises. In the event that Lessor is unable to provide the Non-
Disturbance Agreement within said sixty (60) days, then Lessee may, at
Lessee's option, directly contact Lessor's lender and attempt to
negotiate for the execution and delivery of a Non-Disturbance Agreement.
30.4 Self-Executing. The agreements contained in this Paragraph 30
shall be effective without the execution of any further documents;
provided, however, that, upon written request from Lessor or a Lender in
connection with a sale, financing or refinancing of the Premises, Lessee
and Lessor shall execute such further writings as may be reasonably
required to separately document any subordination, attornment and/or
Non-Disturbance Agreement provided for herein.
31. Attorneys' Fees. If any Party or Broker brings an action or
proceeding involving the Premises to enforce the terms hereof or to
declare rights hereunder, the Prevailing Party (as hereafter defined) in
any such proceeding, action, or appeal thereon, shall be entitled to
reasonable attorneys' fees. Such fees may be awarded in the same suit or
recovered in a separate suit, whether or not such action or proceeding
is pursued to decision or judgment. The term, "Prevailing Party" shall
include, without limitation, a Party who substantially obtains or
defeats the relief sought, as the case may be, whether by compromise,
settlement, judgment, or the abandonment by the other Party of its claim
or defense. The attorneys' fees award shall not be computed in
accordance with any court fee schedule, but shall be such as to fully
reimburse all attorneys' fees reasonably incurred. In addition, Lessor
shall be entitled to attorneys' fees, costs and expenses incurred in the
preparation and service of notices of Default and consultations in
connection therewith, whether or not a legal action is subsequently
commenced in connection with such Default or resulting Breach.
32. Lessor's Access; Showing Premises; Repairs. Lessor and Lessor's
agents and any Lender and its agents shall have the right to enter the
Premises at any time, in the case of an emergency, and otherwise at
reasonable times for the purpose of showing the same to prospective
purchasers, lenders, or lessees, inspecting the Premises, and making
such alterations, repairs, improvements or additions to the Premises as
Lessor may deem necessary. All such activities shall be without
abatement of rent or liability to Lessee. Lessor may at any time place
on the Premises any ordinary "For Sale" signs and Lessor may during the
last six (6) months of the term hereof place on the Premises any
ordinary "For Lease" signs. Lessee may at any time place on or about the
Premises any ordinary "For Sublease" sign. See Xxxxxxxx 00
00. Auctions. Lessee shall not conduct, nor permit to be conducted,
any auction upon the Premises without Lessor's prior written consent.
Lessor shall not be obligated to exercise any standard of reasonableness
in determining whether to permit an auction.
34. Signs. Except for ordinary "For Sublease" signs, Lessee shall
not place any sign upon the Premises without Lessor's prior written
consent, which consent all not be unreasonably withheld or delayed. All
signs must comply with all Applicable Requirements.
35. Termination; Merger. Unless specifically stated otherwise in
writing by Lessor, the voluntary or other surrender of this Lease by
Lessee, the mutual termination or cancellation hereof, or a termination
hereof by Lessor for Breach by Lessee, shall automatically terminate any
sublease or lesser estate in the Premises; provided, however, that
Lessor may elect to continue any one or all existing subtenancies.
Lessor's failure within ten (10) days following any such event to elect
to the contrary by written notice to the holder of any such lesser
interest, shall constitute Lessor's election to have such event
constitute the termination of such interest.
36. Consents. Except as otherwise provided herein, wherever in this
Lease the consent of a Party is required to an act by or for the other
Party, such consent shall not be unreasonably withheld or delayed.
Lessor's actual reasonable costs and expenses (including, but not
limited to, architects', attorneys', engineers' and other consultants'
fees) incurred in the consideration of, or response to, a request by
Lessee for any Lessor consent, including, but not limited to, consents
to an assignment, a subletting or the presence or use of a Hazardous
Substance, shall be paid by Lessee upon receipt of an invoice and
supporting documentation therefor. Lessor's consent to any act,
assignment or subletting shall not constitute an acknowledgment that no
Default or Breach by Lessee of this Lease exists, nor shall such consent
be deemed a waiver of any then existing Default or Breach, except as may
be otherwise specifically stated in writing by Lessor at the time of
such consent. The failure to specify herein any particular condition to
Lessor's consent shall not preclude the imposition by Lessor at the time
of consent of such further or other conditions as are then reasonable
with reference to the particular matter for which consent is being
given. In the event that either Party disagrees with any determination
made by the other hereunder and reasonably requests the reasons for such
determination, the determining party shall furnish its reasons in
writing and in reasonable detail within ten (10) business days following
such request.
38. Quiet Possession. Subject to payment by Lessee of the Rent and
performance of all of the covenants, conditions and provisions on
Lessee's part to be observed and performed under this Lease, Lessee
shall have quiet possession and quiet enjoyment of the Premises during
the term hereof.
39. Options. See Addendum 39
39.1 Definition. "Option" shall mean: (a) the right to extend the term
of or renew this Lease or to extend or renew any lease that Lessee has
on other property of Lessor; (b) the right of first refusal or first
offer to lease either the Premises or other property of Lessor; (c) the
right to purchase or the right of first refusal to purchase the Premises
or other property of Lessor.
39.2 Options Personal To Original Lessee. Each Option granted to
Lessee in this Lease is personal to the original Lessee, and cannot be
assigned or exercised by anyone other than said original Lessee and only
while the original Lessee is in full possession of the Premises and, if
requested by Lessor, with Lessee certifying that Lessee has no intention
of thereafter assigning or subletting.
39.3 Multiple Options. In the event that Lessee has any multiple
Options to extend or renew this Lease, a later Option cannot be
exercised unless the prior Options have been validly exercised.
39.4 Effect of Default on Options.
(a) Lessee shall have no right to exercise an Option: (i) during the
period commencing with the giving of any notice of Default and
continuing until said Default is cured, (ii) during the period of time
any Rent is unpaid (without regard to whether notice thereof is given
Lessee), (iii) during the time Lessee is in Breach of this Lease, or
(iv) in the event that Lessee has been given three (3) or more notices
of separate Default, whether or not the Defaults are cured, during the
twelve (12) month period immediately preceding the exercise of the
Option.
(b) The period of time within which an Option may be exercised shall
not be extended or enlarged by reason of Lessee's inability to exercise
an Option because of the provisions of Paragraph 39.4(a).
(c) An Option shall terminate and be of no further force or effect,
notwithstanding Lessee's due and timely exercise of the Option, if,
after such exercise and prior to the commencement of the extended term,
(i) Lessee fails to pay Rent for a period of thirty (30) days after such
Rent becomes due (without any necessity of Lessor to give notice
thereof), or (ii) Lessor gives to Lessee three (3) or more notices of
separate Default during any twelve (12) month period, whether or not the
Defaults are cured.
40. Multiple Buildings. If the Premises are a part of a group of
buildings controlled by Lessor, Lessee agrees that it will observe all
reasonable rules and regulations which Lessor may make from time to time
for the management, safety, and care of said properties, including the
care and cleanliness of the grounds and including the parking, loading
and unloading of vehicles, and that Lessee will pay its fair share of
common expenses incurred in connection therewith.
41. Security Measures. Lessee hereby acknowledges that the rental
payable to Lessor hereunder does not include the cost of guard service
or other security measures, and that Lessor shall have no obligation
whatsoever to provide same. Lessee assumes all responsibility for the
protection of the Premises, Lessee, its agents and invitees and their
property from the acts of third parties, except those resulting from
Lessor's willful misconduct or gross negligence.
42. Reservations. Lessor reserves to itself the right, from time to
time, to grant, without the consent or joinder of Lessee, such
easements, rights and dedications that Lessor deems necessary, and to
cause the recordation of parcel maps and restrictions, so long as such
easements, rights, dedications, maps and restrictions do not
unreasonably interfere with the use of the Premises by Lessee. Lessee
agrees to sign any documents reasonably requested by Lessor to
effectuate any such easement rights, dedication, map or restrictions.
43. Performance Under Protest. If at any time a dispute shall arise
as to any amount or sum of money to be paid by one Party to the other
under the provisions hereof, the Party against whom the obligation to
pay the money is asserted shall have the right to make payment "under
protest" and such payment shall not be regarded as a voluntary payment
and there shall survive the right on the part of said Party to institute
suit for recovery of such sum. If it shall be adjudged that there was no
legal obligation on the part of said Party to pay such sum or any part
thereof, said Party shall be entitled to recover such sum or so much
thereof as it was not legally required to pay.
44. Authority. If either Party hereto is a corporation, trust,
limited liability company, partnership, or similar entity, each
individual executing this Lease on behalf of such entity represents and
warrants that he or she is duly authorized to execute and deliver this
Lease on its behalf. Each Party shall, within thirty (30) days after
request, deliver to the other Party satisfactory evidence of such
authority.
45. Conflict. Any conflict between the printed provisions of this
Lease and the typewritten or handwritten provisions shall be controlled
by the typewritten or handwritten provisions.
46. Offer. Preparation of this Lease by either Party or their agent
and submission of same to the other Party shall not be deemed an offer
to lease to the other Party. This Lease is not intended to be binding
until executed and delivered by all Parties hereto. See Addendum 46.
47. Amendments. This Lease may be modified only in writing, signed
by the Parties in interest at the time of the modification.
48. Multiple Parties. If more than one person or entity is named
herein as either Lessor or Lessee, such multiple Parties shall have
joint and several responsibility to comply with the terms of this Lease.
49. Mediation and Arbitration of Disputes. An Addendum requiring the
Mediation and/or the Arbitration of all disputes between the Parties
and/or Brokers arising out of this Lease [ ] is [X] is not attached to
this Lease.
50. See Addendum 50.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH
TERM AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE
SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY
AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE
ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF
LESSOR AND LESSEE WITH RESPECT TO THE PREMISES.
ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN
INDUSTRIAL REAL ESTATE ASSOCIATION OR BY ANY BROKER AS TO THE LEGAL
SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE
TRANSACTION TO WHICH IT RELATES. THE PARTIES ARE URGED TO:
1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS
LEASE.
2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE
CONDITION OF THE PREMISES. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE
LIMITED TO: THE POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF
THE PREMISES, THE STRUCTURAL INTEGRITY, THE CONDITION OF THE ROOF AND
OPERATING SYSTEMS, AND THE SUITABILITY OF THE PREMISES FOR LESSEE'S
INTENDED USE.
WARNING: IF THE PREMISES IS LOCATED IN A STATE OTHER THAN CALIFORNIA,
CERTAIN PROVISIONS OF THE LEASE MAY NEED TO BE REVISED TO COMPLY WITH
THE LAWS OF THE STATE IN WHICH THE PREMISES IS LOCATED.
The parties hereto have executed this Lease at the place and on the
dates specified above their respective signatures.
Executed at: Executed at:
on: on:
By LESSOR: C&I XXXXX LLC, By LESSEE:
a Delaware limited liability company EXODUS COMMUNICATIONS, INC.
By: G&I Investment Xxxxx LLC, a Delaware corporation
a Delaware limited liability company,
its managing member
By: G&I Investment Xxxxx Corp., By: /s/ XXXX XXXXXX
a Delaware corporation, Name: Xxxx Xxxxxx
its managing member Title: Vice President and General
Counsel
By: /s/ XXXXX XXXXXXX By: [SIGNATURE ILLEGIBLE]
Name: Xxxxx Xxxxxxx Name: [NAME ILLEGIBLE]
Title: Vice President Title: [TITLE ILLEGIBLE]
Address: Address:
c/o Landmark Asset, Management Group 0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxx Xxxxx, XX 00000
Xxxxxx Xxxxx, XX 00000 Telephone: (000) 000-0000
Telephone: (000) 000-0000 Facsimile: (000) 000-0000
Facsimile: (000) 000-0000 Federal ID No. Federal ID No.
NOTE: These forms are often modified to meet the changing requirements
of law and industry needs. Always write or call to make sure you
are utilizing the most current form: AMERICAN INDUSTRIAL REAL
ESTATE ASSOCIATION, 000 Xx. Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000. (000) 000-0000. Fax No. (000) 000-0000
ADDENDUM TO STANDARD
INDUSTRIAL/COMMERCIAL SINGLE-LESSEE LEASE - NET
THIS ADDENDUM (this "Addendum") is attached to and made a part of that
certain Standard Industrial/Commercial Single-Lessee Lease - Net, dated
June 4, 1999 (the "Lease"), by and between G&I XXXXX LLC, a Delaware
limited liability company ("Lessor"), and EXODUS COMMUNICATIONS, INC., a
Delaware corporation ("Lessee"). To the extent any provisions of this
Addendum are inconsistent with the provisions of the Lease, the terms of
this Addendum shall prevail.
1.5 Increases of Base Rent. Effective as of each February 1 during the
Term, commencing with February 1, 2004, the monthly Base Rent payable
under the Lease shall be increased as follows:
Increase Date Monthly Base Rent
2/l/2004 $ 114,345.00
2/1/2005 $ 120,015.00
2/1/2006 $ 126,630.00
2/1/2007 $ 132,300.00
2/l/2008 $ 138,915.00
1.7 Letter of Credit for Security Deposit.
(a) Upon execution of this Lease, Lessee shall deliver to Lessor
the Letter of Credit described below as security for Lessee's
performance of all of Lessee's covenants and obligations under this
Lease; provided, however, that neither the Letter of Credit nor any
Letter of Credit Proceeds (as defined below) shall be deemed an advance
rent deposit or an advance payment of any other kind, or a measure of
Lessor's damages upon Lessee's default. The Letter of Credit shall be
maintained in effect from the date hereof through the date which is one
hundred twenty (120) days after the Expiration Date, as the same may be
extended in accordance with the provisions of this Lease, provided that
upon Lessee's surrender of the Premises at the expiration of the Term,
Lessor and Lessee shall endeavor to determine as soon as practicable any
amounts owing by Lessee on account of its obligation to restore the
Premises, and within five (5) Business Days after payment of such amount
(and any other amounts owing to Lessor) and Lessee's fulfillment of any
other obligations to Lessor, Lessor shall return to Lessee the Letter of
Credit and any Letter of Credit Proceeds then held by Lessor (other than
those held for application by Lessor as provided below). Lessor shall
not be required to segregate the Letter of Credit Proceeds from its
other funds, and in no event shall Letter of Credit Proceeds or any
portion thereof be deemed to be held in trust for Lessee. No interest
shall accrue or be payable to Lessee with respect Letter of Credit
Proceeds. Lessor may (but shall not be required to) draw upon the Letter
of Credit and use the proceeds therefrom (the "Letter of Credit
Proceeds") or any portion thereof to cure any Breach under this Lease or
to compensate Lessor for any damage Lessor incurs as a result of
Lessee's failure to perform any of its obligations hereunder, it being
understood that any use of the Letter of Credit Proceeds shall not
constitute a bar or defense to any of Lessor's remedies set forth in
Paragraph 13 below. In such event and upon written notice from Lessor to
Lessee specifying the amount of the Letter of Credit Proceeds so
utilized by Lessor and the particular purpose for which such amount was
applied, Lessee shall immediately deliver to Lessor an amendment Letter
of Credit or a replacement Letter of Credit in an amount equal to one
hundred percent (100%) of the amount specified below. Lessee's failure
to deliver such replacement Letter of Credit to Lessor within five (5)
business days of Lessor's notice shall constitute a Breach hereunder. If
Lessee is not in default at the expiration or termination of this Lease,
within one hundred twenty (120) days after such expiration or
termination, or such earlier date as provided above, Lessor shall return
to Lessee the Letter of Credit or the balance of the Letter of Credit
Proceeds then held by Lessor; provided, however, that in no event shall
any such return be construed as an admission by Lessor that Lessee has
performed all of its obligations hereunder. No Lender (as defined in
Paragraph 30.1), nor any purchaser at any judicial or private
foreclosure sale of the Premises or any portion thereof, shall be
responsible to Lessee for such Letter of Credit or any Letter of Credit
Proceeds unless such holder or purchaser shall have actually received
the same.
(b) As used herein, Letter of Credit shall mean an unconditional,
irrevocable letter of credit (hereinafter referred to as the "Letter of
Credit") issued by a major "money center" bank satisfactory to Lessor in
its sole and absolute discretion (the "Bank"), drawings under which may
be made at an office of the Bank located in either New York, New York,
or San Francisco, California, or Los Angeles, California, naming Lessor
as beneficiary, in the amounts set forth below, and otherwise in form
and substance satisfactory to Lessor. The initial amount of the Letter
of Credit shall be Two Hundred Thousand Dollars ($200,000.00) during the
period from the execution of this Lease through June 30, 2002; not later
than July 1, 2002, the amount of the Letter of credit shall be increased
to Three Hundred Thousand Dollars ($300,000.00); and not later than July
1, 2003, the amount of the Letter of Credit shall be increased to Six
Hundred Thousand Dollars ($600,000.00), and shall be maintained in said
amount for so long as the Letter of Credit is required to be maintained
pursuant to subparagraph (a), above. In addition, should the Agreed Use
be amended to accommodate a material change in the business of Lessee or
to accommodate a sublessee or assignee, Lessee shall, upon thirty (30)
days' written notice from Lessor, cause the amount of the Letter of
Credit to be "increased to an amount necessary, in Lessor's reasonable
judgment, to account for any increased wear and tear that the Premises
may suffer as a result thereof. Furthermore, if a change in control of
Lessee occurs during the term of this Lease or the Prior Sublease (as
defined in Section 2.2 of this Addendum), and following such change in
control, (1) Lessee is not a publicly traded company, and (2) the
financial condition of Lessee is, in Lessor's reasonable judgment,
significantly reduced, Lessee shall, upon thirty days' written notice
from Lessor, cause the amount of the Letter of Credit to be increased,
effective on the later to occur of the expiration of thirty (30) days
after Lessor gives such notice, or the thirtieth (30th) day prior to the
Commencement Date, to an amount, which, in Lessor's reasonable judgment,
is commercially reasonable based on such change in financial condition.
The Letter of Credit shall be for an initial term of not less than one
year and shall provide: (i) that Lessor may make partial and multiple
draws thereunder, up to the face amount thereof, (ii) that Lessor may
draw upon the Letter of Credit up to the full amount thereof, as
determined by Lessor, and the Bank will pay to Lessor the amount of such
draw upon receipt by the Bank of a sight draft signed by Lessor and
accompanied by a written certification from Lessor to the Bank stating
either: (A) that a Breach has occurred and is continuing under this
Lease or (B) that Lessor has not received notice from the Bank that the
Letter of Credit will be renewed by the Bank for at least one (l) year
beyond the then applicable expiration date and Lessee has not furnished
Lessor with a replacement Letter of Credit as hereinafter provided; and
(iii) that, in the event of Lessor's assignment or other transfer of its
interest in this Lease, the Letter of Credit shall be freely
transferable by Lessor, without charge and without recourse, to the
assignee or transferee of such interest and the Bank shall confirm the
same to Lessor and such assignee or transferee. The Letter of Credit
shall further provide that a draw thereon pursuant to clause (ii)(B)
above may only be made during the thirty (30) day period preceding the
then applicable expiration date of the Letter of Credit. In the event
that no later than thirty (30) days prior to then applicable expiration
date of the Letter of Credit, neither (1) the Bank shall have notified
Lessor that the Letter of Credit will be renewed for at least one (1)
year beyond the then applicable expiration date, nor (2) Lessee shall
have delivered to Lessor a replacement Letter of Credit in the amount
required hereunder and otherwise meeting the requirements set forth
above, then Lessor shall be entitled to draw on the Letter of Credit as
provided above, and shall hold the proceeds of such draw as Letter of
Credit Proceeds pursuant to subparagraph (a) above and Paragraph 5 of
the Lease, provided that such drawing shall not constitute a waiver of
Lessor's right to declare a Breach of the Lease pursuant to subparagraph
13.1(c) of this Addendum.
(c) At any time during the Term, Lessee may replace any Letter of
Credit provided hereunder with another Letter of Credit meeting the
requirements hereunder, and Lessor shall cooperate in arranging a
simultaneous exchange of such Letters of Credit.
2.2 Lessee in Possession Under Sublease; Premises Leased "As-Is." The
parties acknowledge that immediately prior to the Commencement Date of
the Term of this Lease (also referred to sometimes in this Lease as the
"Start Date"), Lessee shall have been in possession of a portion of the
Premises consisting of an agreed rentable area of 82,474 square feet,
since July 1, 1999, pursuant to a sublease agreement between Talus
Corporation, a California corporation, formerly known as Scientific
Custom Metal Products International, Inc. ("Prior Lessee"), as
sublessor, and Lessee, as sublessee, made with the consent of Lessor
(the "Prior Sublease"). In addition, except in the event of commencement
of the Term (including, if applicable, Early Commencement (as defined in
Addendum Paragraph 3.1)) which occurs prior to the termination of the
CAT Sublease (as defined in Addendum Paragraph 3.1), Lessee shall also
have been in possession of the remaining portion of the Premises
(consisting of the CAT Space, as defined in Addendum Paragraph 3.1)
immediately prior to the Commencement Date, pursuant to the Prior
Sublease. The lease pursuant to which Prior Lessee currently leases the
Premises from Lessor, as the same may be amended from time to time, is
referred to herein as the "Prior Master Lease." Accordingly, the lease
of the Premises (including, but not limited to, the CAT Space) to Lessee
pursuant to this Lease shall be on an "As-Is, WITH ALL FAULTS" basis.
Lessor makes no representation or warranty of any nature to Lessee with
respect to the Premises or any part, element or component thereof,
including, but not limited to, electrical, plumbing, fire sprinkler,
life safety, lighting, or heating ventilating and air conditioning
("HVAC") systems, loading doors, roof, exterior walls, foundations or
other structural elements.
3.1 Condition to Commencement.
A. It shall be a condition to the commencement of the Term of
this Lease that Lessee shall not have defaulted under the Prior Sublease
beyond the expiration of any applicable cure period, and that the Prior
Sublease shall not have terminated for any reason prior to the scheduled
expiration date of June 30, 2003, except as provided below in this
Addendum Paragraph 3.1.
B. Notwithstanding the provisions of subparagraph A of this
Addendum Paragraph 3.1, in the event that the Prior Sublease is
terminated solely as a result of the termination of the Prior Master
Lease by Lessor due to a default of the Prior Lessee under the Prior
Master Lease, then so long as Lessee is not then in default under the
terms of the Prior Sublease, and no event shall have occurred and be
continuing which, under the terms of the Prior Sublease would constitute
a default of Lessee thereunder after the giving of notice or passage of
time, or both, then the Original Term of this Lease shall commence
immediately upon the termination of the Prior Master Lease and Prior
Sublease ("Early Commencement"). In the event of Early Commencement, the
Commencement Date hereunder shall be adjusted accordingly, but the
Expiration Date shall not be changed, and the Monthly Base Rent for any
period of the Original Term occurring prior to the originally scheduled
Commencement Date (i.e., July 1, 2003) due to Early Commencement shall
be determined for the applicable period in accordance with the following
schedule, subject to subparagraph C of this Addendum Paragraph 3.1:
Starting Date Ending Date Monthly Base Rent
7/1/1999 1/31/2000 $ 77,065.00
2/l/2000 1/31/2001 $ 80,918.00
2/1/2001 1/31/2002 $ 85,050.00
2/l/2002 1/31/2003 $ 89,775.00
2/1/2003 6/30/2003 $ 94,500.00
C. In addition, in the event of Early Commencement,
notwithstanding the provisions of subparagraph 1.7(b) of this Addendum,
above, Lessee shall cause the amount of the Letter of Credit to be
increased to Six Hundred Thousand Dollars ($600,000.00), within thirty
(30) days after the Commencement Date (as determined pursuant to this
Addendum Paragraph 3.1 based on Early Commencement), and the Letter of
Credit shall be maintained in said amount for so long as the Letter of
Credit is required to be maintained Pursuant to subparagraph 1.7(a) of
this Addendum 1.7.
D. The parties acknowledge that upon the commencement of the
Prior Sublease, and for a term continuing through December 31, 2001,
with an option to extend through December 31, 2006, a portion of the
Premises consisting of an agreed rentable area of 12,026 square feet
(the "CAT Space") is being subleased by Prior Lessee to Computer Access
Technology Corporation ("CAT"), pursuant to a Standard Office Lease--
Gross, between Prior Lessee and CAT, dated October 3, 1996, with
attached First Addendum to Lease Agreement (with attached Exhibits A and
B) (the "CAT Sublease"). If commencement of the Term of this Lease
(including, if applicable, Early Commencement) occurs prior to
termination of the CAT Sublease, then (i) pursuant to an assignment of
Prior Lessee's rights under the CAT Sublease by Prior Lessee to Lessee,
CAT shall remain in possession of the CAT Space as a subtenant of
Lessee, and Lessee shall be deemed to have taken possession of the
entire Premises upon commencement of the Term of this Lease (including,
if applicable, Early Commencement), (ii) there shall be no adjustment of
the amount of Monthly Base Rent or any other sums payable hereunder on
account of CAT remaining in possession of the CAT Space, and (iii)
Lessee shall be entitled to receive all rent payable by CAT under the
CAT sublease, and Addendum Paragraph 12.C shall not be applicable to any
portion of the term of the CAT Sublease occurring prior to December 31,
2006; provided, however, that any extension of the term of the CAT
Sublease beyond December 31, 2006, shall be subject to Paragraph 12 of
the Lease and this Addendum, including, but not limited to, Paragraph
12.C.
6.2(a) Consent to Diesel Fuel Tank(s). Lessor hereby consents to the
installation by Lessee of one or more above-ground diesel fuel tanks at
the Premises, provided that such installation shall be in compliance
with all Applicable Requirements, and Lessee shall obtain Lessor's prior
approval of the precise location thereof, and of the protective
enclosures or encasements thereof, which approval shall not be
unreasonably withheld or delayed.
6.2(g) Limitations on Lessor's Termination Option Under Paragraph
6.2(g); Lessee's Termination Option. Notwithstanding any provision of
subparagraph 6.2(g), Lessor shall not be permitted to exercise the
termination option under clause (ii) of subparagraph 6,2(g), (1) if
Lessor is subject to an order of a governmental agency with jurisdiction
over the Hazardous Substance Condition requiring Lessor to remediate the
same, unless such remediation cannot practicably be accomplished with
Lessee remaining in possession of the Premises, or (2) unless in
Lessor's reasonable judgment, continued occupancy of the Premises by
Lessee without remediation of the Hazardous Substance Condition poses a
risk of potential liability to Lessor. Furthermore, and notwithstanding
any provision of subparagraph 6.2(g), Lessor shall be under no duty to
remediate any Hazardous Substance Condition except to the extent Lessor
is subject to an order of a governmental agency with jurisdiction over
the Hazardous Substance Condition requiring Lessor to remediate the
same. To the extent Lessor is subject to an order of a governmental
agency with jurisdiction over the Hazardous Substance Condition
requiring Lessor to remediate the same, Lessor shall diligently proceed
with such remediation, in accordance with any remedial action plan
approved by the appropriate governmental agency(ies). In the event that
in the opinion of the environmental consultant hired by Lessor to
oversee the remediation, the remediation cannot practicably be completed
without Lessee vacating the Premises for a period which will exceed six
(6) months, Lessee shall have the option to terminate this Lease by
giving notice to Lessor within thirty (30) days after Lessee is notified
by Lessor that the remediation cannot practicably be completed without
Lessee vacating the Premises for a period which will exceed six (6)
months (which notification shall include notice of the date Lessor
requires Lessee to vacate the Premises for such remediation, which date
shall not be earlier than six (6) months after the date of such
notification, except to the extent it is reasonably necessary for Lessor
to commence such remediation on an earlier date in order to comply with
any order of a governmental agency requiring Lessor to remediate the
same, including any remedial action plan approved by the appropriate
governmental agency(ies)), such termination to be effective upon the
date set forth in Lessor's notice that Lessor requires Lessee to vacate
the Premises.
7.1 Additional Provisions Applicable to Paragraph 7.1. As used in the
Lease, the term "Prime Rate" means the prime rate of interest published
in the Wall Street Journal on the first day of the month in which the
applicable replacement Basic Element is installed at the property (or
the first day of such month on which the Wall Street Journal is
published), provided that if a range of interest rates is published for
the prime rate on such day, the highest rate in such range shall be
used. In the event that the generally accepted accounting principles
specifies a range of time for the useful life of any Basic Element which
is replaced, the shortest time allowed under generally accepted
accounting principles shall be used for the amortization period under
Paragraph 7.1 of the Lease.
7.3 Additional Provisions Applicable to Paragraph 7.3(a). The
following sentences are added to the end of Paragraph 7.3(a) of the
Lease: "In addition, Lessee may install satellite dishes, not to exceed
two (2) feet in diameter, on the roof of the Building only, without
Lessor's consent, but upon notice to Lessor, provided that such
satellite dishes are installed behind a roof screen, are not visible
from the street, and are installed in compliance with Applicable Law. If
Lessee wishes to use other satellite dishes and/or install satellite
dishes in any other manner or location, such installation shall be in
compliance with Applicable Law, and shall not be made without Lessor's
prior written approval of such installation, which approval shall not be
unreasonably withheld or delayed." Lessor shall not unreasonably
withhold or delay the granting of its consent (either as Lessor
hereunder, or as Lessor under the Prior Master Lease) to Alterations,
Utility Installations or Trade Fixtures which are consistent with the
types of Alterations, Utility Installations or Trade Fixtures approved
by Lessor in connection with Lessee's occupancy of the adjacent building
located at 0000 Xxxxx Xxxxxx, Xxxxx Xxxxx. Lessor shall not unreasonably
withhold or delay the granting of its consent to the installation by
Lessee of security fencing which will in part enclose the Building,
provided that such installation shall be in compliance with Applicable
Requirements, and Lessee shall obtain Lessor's prior written approval of
the precise location, height and type thereof. Lessee agrees that
reasonable considerations in determining such approval shall include,
but not be limited to, whether such security fencing unreasonably
interferes with the use or occupancy (including parking, ingress and
egress) of 0000 Xxxxx Xxxxxx or its marketability to prospective tenants
or subtenants.
7.4 Additional Provisions Applicable to Paragraph 7.4. To the extent
any item installed at, or any alteration or modification made to, the
Premises by Lessee during the term of the Prior Sublease would fall
within the definitions of any of "Utility Installations," "Trade
Fixtures," "Alterations" or "Lessee Owned Alterations and/or Utility
Installations" if the same were installed or made during the term of
this Lease, then for all purposes of this Lease, including but not
limited to, Paragraph 7.4, the same shall be deemed to constitute
"Utility Installations," "Trade Fixtures," "Alterations" or "Lessee
Owned Alterations and/or Utility Installations," as applicable, under
this Lease, except that if Lessor's consent to the same was either
obtained or not required under the terms of the Prior Sublease, then no
further consent to the same shall be required under Paragraph 7.3 of
this Lease. The following provisions are added at the end of Paragraph
7.4(c): "Without limiting the generality of the foregoing, prior to the
last day of the Lease term or any earlier termination date, and
subsequent to the removal of all satellite dishes and other equipment
which Lessee is entitled or required to remove from the roof upon the
termination of this Lease, Lessee shall replace the roof of the
Premises, and the replacement roof shall comply with the specifications
set forth on Exhibit B to this Lease." Notwithstanding any provisions of
subparagraph 7.4(a) to the contrary, but subject to the final sentence
of this Addendum Paragraph 7.4, Lessor acknowledges that the following
items installed at the Premises shall at all times during the term of
this Lease be and remain the Property of Lessee, and Lessee shall have
the right to remove the same upon the expiration of the term of the
Lease, subject to Lessee's obligations under subparagraph 7.4(c):
(a) Permanent and temporary generator systems including enclosures and
fuel tanks with the associated electronic and manual switch gear.
(b) Independent, stand-alone air-conditioning units, provided that
following the removal of such units the Building has a fully
functioning HVAC system adequate in Lessor's sole judgment for
general office purposes.
(c) Raised Flooring, Racking, Cage materials, cabinets and patch
panels.
(d) UPS Battery Systems including electrical switch gear.
(e) FM200 fire suppression canisters, piping and nozzles.
(f) VESDA or smoke sensor stations in ceiling or floor area.
(g) Inside or outside security cameras, access card reader stations,
VCR, multiplexer, monitors and computers.
(h) Partition and conference room furniture systems and freestanding,
cabinets, storage units.
(i) Telephone and voice mail system with desk stations and
receptionist, computers, servers, printers, phone sets.
(j) Fiber Muxes or other Telco equipment installed in MPOE rooms.
(k) Emergency distribution board and telephone backboard with
connectors.
(l) Maintenance bypass electronic and manual switch gear.
(m) Kitchen appliances like microwaves, refrigerators and vending
machines.
(n) Console monitors, screen projection and screens in command center.
(o) Bulletproof/resistant glass, provided that removal of the same
shall be conditioned upon replacement of the openings with other
glazing suitable in Lessor's reasonable judgment.
(p) Satellite dishes or other communications equipment.
(q) Electrical distribution equipment consisting of an automatic
transfer switch, parallel switch and bypass unit, parallel UPS
Units and several power distribution units installed inside the
Building by Lessee, inward from the most inward point(s) of
connection to all transformers, switches, meters and other
electrical distribution equipment installed by the public utility
providing power to the Building. The parties acknowledge that
Lessee intends to request that the City of Santa Xxxxx Power and
Electric Company to add two new 3000 AMP services to the Building,
including two transformers placed on the exterior of the Building
(one for each 3000 AMP service), and one or more power switches and
metering boxes inside the Building, which are not part of the
electrical distribution equipment that Lessee is entitled to remove
pursuant to this Addendum Paragraph 7.4.
(r) Customer and vendor equipment and related materials of the type
listed above in this Addendum Paragraph 7.4.
(s) Lessee, Lessee Customer and Lessee Vendor personal property which
is not attached to the Premises.
(t) Any Trade Fixtures similar or related to the foregoing items that
was installed by or for Lessee pursuant to the terms of the Lease.
Notwithstanding the foregoing, if the Lease terminates prior to the
scheduled Expiration Date (as the same may be extended in accordance
with Addendum Paragraph 39) as a result of a Breach by Lessee under the
Lease, then Lessee shall have no right to remove any of items listed in
subparagraphs (a), (b) or (q), above; provided that Lessor may require
Lessee to remove any of such items (or Lessor may remove such items at
Lessee's sole cost and expense), and any such items which Lessor does
not require Lessee to remove shall become the sole property of Lessor
upon termination of the Lease.
8.1 Additional Provisions Applicable to Paragraph 8.1. Notwithstanding
the provisions of Paragraph 8.1, Lessor, and not Lessee shall pay any
increases in the premiums for the property insurance covering the
Premises carried by Lessor pursuant to Paragraph 8.3 to the extent such
increase results from any acts or omissions occurring on, or the use or
occupancy of, any building(s) owned by Lessor which are adjacent to the
Building, and which arc not occupied by Lessee, either as a direct
tenant of Lessor, or as a subtenant.
8.3 Additional Provisions Applicable to Paragraph 8.3. Notwithstanding
the provisions of subparagraph 8.3(a), the deductible for earthquake
insurance may exceed $5,000, but shall not exceed the greater of
$100,000 or 20% of the replacement cost of the Building, as determined
by the insurer issuing the earthquake insurance policy.
9.3 Additional Provisions Applicable to Paragraph 9.3. In the event
Lessor elects to complete the repairs pursuant to clause (i) of
Paragraph 9.3, and fails to actually complete the same within six (6)
months after the date of damage or destruction, subject to extension for
Force Majeure (as defined below), Lessee shall have the right at any
time after the expiration of such six (6) month period, as the same may
be extended for Force Majeure, but prior to Lessor actually completing
such repairs, to terminate this Lease by giving written notice to
Lessor. As used in this Lease, "Force Majeure" shall mean strikes,
lockouts, labor disputes, shortages of material or labor, fire, flood or
other casualty, acts of God, any delays caused by Lessee or any other
cause beyond the control of Lessor.
9.6 Additional Provisions Applicable to Paragraph 9.6. If Lessor shall
be obligated to repair or restore the Premises pursuant to any provision
of Article 9, and it is possible, at additional cost, to commence such
repair or restoration earlier than ninety (90) days after such
obligation shall accrue and/or to accelerate the work so that the same
shall be completed prior to the deadline for Lessor to complete the same
pursuant to the applicable provision of Article 9, then upon Lessee's
written request, and subject to the conditions set forth below, Lessor
shall use its best efforts to commence such repair or restoration as
soon as is possible, subject to availability of labor and materials;
provided that (1) prior to incurring any additional costs to commence
such repair or restoration earlier than Lessor is obligated to do so or
to accelerate the work, Lessee shall have agreed, in writing, to pay all
such additional costs, and shall have deposited with Lessor, funds equal
to the amount reasonably estimated by Lessor as the total amount of such
additional costs to be incurred (provided that the amount of such
deposit shall not limit Lessee's liability to pay such additional costs,
and Lessor shall refund to Lessee upon completion of the repair and
restoration, the amount of such deposit, if any, in excess of the
additional costs incurred); and (2) in no event will Lessor be obligated
to commence any repair or restoration prior to obtaining all necessary
governmental permits and approvals therefor.
10.2 Contest of Real Property Taxes. Lessee may contest the amount of
Real Property Taxes assessed against the Premises, at its sole cost and
expense, including, but not limited to, any penalties or fees associated
with an unsuccessful contest. In the event Lessee elects to contest the
amount of Real Property Taxes, Lessee must pay the contested Real
Property Taxes under protest, and apply for a refund, or provide such
security as Lessor may require to prevent such taxes from becoming a
delinquent lien upon the Premises. Any refund of Real Property Taxes
paid by Lessee with respect to the term of this Lease shall belong to
Lessee, whether received as a result of a contest by Lessee or
otherwise, and regardless of when received. Lessee shall have no right
to any refund of Property Taxes applicable to any period of time other
than the term of this Lease, even if such refund is received during the
term of this Lease.
12. Additional Provisions Applicable to Assignment and Subletting.
A. The provisions of Paragraph 12 shall be fully operative
immediately upon execution of this Lease, and shall apply to the
occurrence of any transaction or event occurring after the execution of
the Lease, but prior to the commencement of the Term thereof, as well as
any transaction or event occurring during the Term thereof.
B. Notwithstanding any provision of Paragraph 12 of the Lease or
this Addendum, in the event of any change in the control of Lessee, such
change in control shall not constitute an assignment of the Lease so
long as Lessee is a publicly traded company immediately following such
change in control.
C. Notwithstanding any provision of Paragraph 12, Lessor, as a
condition to giving its consent to any assignment or subletting, may
require that Lessee pay to Lessor, as additional Rent under the Lease,
(i) in the case of an assignment where the Lease is the only asset
assigned by Lessee to the assignee, promptly after receipt by Lessee
(or any affiliate thereof or other person or entity designated by
Lessee) seventy-five percent (75%) of the amount, if any, by which
(A) any consideration (including, without limitation, payment for
leasehold improvements) paid by the assignee to Lessee or such
affiliate or other designated person or entity for the assignment or
otherwise attributable to the value of Lessee's interest in the
Lease exceeds (B) the Assignment or Subletting Costs (as defined
below);
(ii) in the case of an assignment where the Lease is not the only
asset assigned by Lessee to the assignee (e.g., an assignment in
connection with a sale of Lessee's operations at the Premises or an
assignment resulting from a change in control of Lessee where Lessee
is not a publicly traded company immediately following such change
in control), on a monthly basis, seventy-five percent (75%) of the
amount, if any, by which (A) the Prevailing Market Rent (as defined
below) for the Premises for each month of the term of the Lease
after the date of the assignment exceeds (B) the total amount of
Rent payable hereunder for each such month; as used herein, the term
"Prevailing Market Rent" for the Premises shall mean the total
monthly Rent that Lessor could obtain for each month of term of the
Lease remaining after the date of the assignment from a third party
desiring to lease the Premises for the remaining term of the Lease
after the date of the assignment, taking into account the age of the
Building, the size of the Premises, the quality of construction of
the Building, the other terms of this Lease, the rental and any
other consideration then being obtained for new leases of space
comparable to the Premises in the locality of the Building and all
other factors that would be relevant to a third party desiring to
lease the Premises for such term in determining the rental such
party would be willing to pay therefor, but excluding any rental
value attributable to any items Lessee is permitted to remove from
the Premises upon expiration of the term of this Lease pursuant to
Paragraph 7.4 of this Addendum; provided that if Lessee and Lessor
are unable to agree upon the Prevailing Market Rent within thirty
(30) days after the date of the assignment, then the Prevailing
Market Rent for the remaining term of this Lease shall be determined
by appraisal following the same procedures as set forth in Paragraph
39(c) of this Addendum for the determination of "Fair Market Rent"
for the first year of a Renewal Option Term; and
(iii) in the case of a sublease, on a monthly basis, seventy-five
percent (75%) of the amount, if any, by which (A) the rent paid to
Lessee (or any affiliate thereof or other person or entity designed
by Lessee) for the sublet space by the sublessee (such rent to
include all consideration paid for the sublet space) for each month
exceeds (B) the total amount of Rent payable under the Lease
attributable to the sublet space for such month; provided, however,
that in the case of a sublease, prior to paying any amounts to
Lessor pursuant to this Paragraph 12.C(iii), Lessee may recover out
of the rent or other consideration payable by the sublessee to
Lessee (or any affiliate thereof or other person or entity
designated by Lessee), and use such recovery to reimburse itself
for, a pro rata share of the Assignment or Subletting Costs incurred
in connection with such sublease, such pro rata share to be
determined by allocating an equal portion of the total amount of
Assignment or Subletting Costs incurred in connection with such
sublease to each month of the term of such sublease; if there is
more than one sublease under this Lease, the amounts (if any) to be
paid by Lessee to Lessor pursuant to this subparagraph (iii) shall
be separately calculated for each sublease and amounts due Lessor
with regard to any one sublease may not be offset against rental and
other consideration pertaining to or due under any other sublease.
As used herein, the term "Assignment or Subletting Costs" means the
total amount of any brokerage commissions paid by Lessee in connection
with a specific subletting or assignment (not to exceed commissions
typically paid in the market at the time of such subletting or
assignment), Lessee's reasonable costs of advertising the space for
sublease or assignment, Lessee's reasonable legal fees and expenses in
connection with such assignment or sublease, and any improvement
allowance or other inducement (such as moving expenses and lease
takeover obligations), paid by Lessee to the sublessee or assignee;
provided that, as a condition to Lessee recovering Assignment or
Subletting Costs pursuant to subparagraph (i) or (iii) of this Paragraph
12.C, Lessee shall provide to Lessor, within sixty (60) days of Lessor's
execution of Lessor's consent to the assignment or subletting, a
detailed accounting of the Assignment or Subletting Costs and supporting
documents, such as receipts and invoices, except that if any Assignment
or Subletting Costs are not determinable by such date, Lessee shall so
state in its accounting, identifying with reasonable specificity the
costs not determinable, and promptly after such costs are determinable,
but in no event later than thirty (30) days after effective date of the
assignment or ninety (90) days after the commencement of the term of
such sublease, as applicable, a supplemental accounting shall be
delivered to Lessor setting forth all Assignment or Subletting Costs and
supporting documents (if not previously delivered).
D. Notwithstanding any provision of Paragraph 12, the granting of a
security interest in the Lease by Lessee in connection with a senior
secured credit facility provided by Xxxxxxx, Sachs & Co. ("GS"), shall
not constitute an assignment of the Lease, and shall not require
Lessor's consent under the Lease; provided that GS shall not be entitled
to foreclose such security interest or otherwise take any possessory
interest in the Premises or any portion thereof, unless GS assumes all
of Exodus' obligations under the Lease and the Exodus Sublease (if the
term thereof shall not have expired), and cures all then uncured
defaults (if any) under the Lease and the Exodus Sublease (if the term
thereof shall not have expired).
13.1 Additional Breaches. In addition to the events set forth in
Paragraph 13.1, the occurrence of any of the following events shall
constitute a Breach under this Lease, and Lessor shall have all rights
and remedies available under the Lease in the event of a Breach as
result thereof:
(a) The termination of the Prior Sublease for any reason prior to
June 30, 2003, except under circumstances which, pursuant to Paragraph
3.1 of this Addendum result in Early Commencement of this Lease.
(b) The failure of Lessee to cause the amount of the Letter of
Credit to be increased as and when required in accordance with the
requirements of subparagraph 1.7(b) of this Addendum, or Paragraph 3.1
of this Addendum, if applicable, where such failure continues for a
period of three (3) business days following written notice to Lessee.
(c) Upon the election of Lessor, in the event that no later than
thirty (30) days prior to then applicable expiration date of the Letter
of Credit, neither (1) the Bank shall have notified Lessor that the
Letter of Credit will be renewed for at least one (1) year beyond the
then applicable expiration date, nor (2) Lessee shall have delivered to
Lessor a replacement Letter of Credit in the amount required hereunder
and otherwise meeting the requirements set forth in Paragraph 1.7 of
this Addendum.
(d) The occurrence of any Breach under (and as defined in) that
certain Standard Industrial/Commercial Single-Tenant Lease - Net, dated
as of January 29, 1999, between Lessor and Lessee, covering premises
located at 0000 Xxxxx Xxxxxx, Xxxxx Xxxxx.
16. Replacement of Paragraph 16(b). The following is substituted for
Paragraph 16(b): "(b) If the Responding Party shall fail to execute or
deliver a proposed Estoppel Certificate which is submitted to the
Responding Party by the Requesting Party within the ten day period set
forth in Paragraph 16(a) of the Lease, then the Responding Party shall
be deemed to have agreed that all matters set forth in such proposed
Estoppel Certificate are true and correct and shall be estopped from
denying the truth of any of the matters set forth in said proposed
Estoppel Certificate."
23.1 Notices. Any notice given to Lessee at the address set forth on
the signature page of the Lease shall be marked "Attention: Chief
Financial Officer." A duplicate of any notice given to Lessee under this
Lease shall be sent, in the manner required under Paragraph 23.1 of this
Lease, to Exodus Communications, Inc., Attention: Xxxx Xxxxxxxx, IDC
Manager, 0000 Xxxxx Xxxxxx, Xxxxx Xxxxx, XX 00000, Telephone: (408) 346-
1507, Facsimile: (000) 000-0000. A duplicate of any notice given to
Lessor under this Lease shall be sent, in the manner required under
Paragraph 23.1 of this Lease, to Lessor in care of DRA Advisors, Inc.,
1180 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Telephone:
(000) 000-0000, Facsimile: (000) 000-0000.
32. Lessor's Access to the Premises. Lessor acknowledges that Lessee
intends to operate a secure internet data center facility at the
Premises. Accordingly, except in the case of an emergency, Lessor, its
agents, any Lender or its agents shall give Lessee twenty-four (24)
hours' advance notice prior to entering the Premises, and Lessee shall
have the right to require that a representative of Lessee accompany any
parties entering the Premises. In the case of an emergency, Lessor or
its agents shall make such effort as is deemed appropriate by Lessor or
its agents under the circumstances to contact an on-site representative
of Lessee, if one is present at the Premises, prior to entering the
Premises; provided, however, that if an on-site representative cannot be
located after such effort is made, or if immediate entry to the Premises
without attempting to locate an on-site representative of Lessee is
deemed appropriate by Lessor or its agents due to the nature of the
emergency, Lessor or its agents may enter the Premises unaccompanied by
a representative of Lessee.
39. Option to Renew.
(a) Lessor hereby grants to Lessee two options (each, a "Renewal
Option") to renew the term of this Lease, each for an additional term of
five (5) years (each, a "Renewal Option Term"), upon and subject to the
terms and conditions set forth in this Paragraph 39 of this Addendum and
Paragraph 39 of the Lease. The first Renewal Option Term will commence
immediately following the Expiration Date of the initial term of this
Lease (the "Initial Term") and will terminate on the fifth anniversary
of the Expiration Date of the Initial Term. The first Renewal Option
shall be exercised, if at all, by written notice to Lessor on or before
the date that is twelve (12) months prior to the Expiration Date of the
Initial Term. The second Renewal Option Term will commence immediately
following the expiration date of the first Renewal Option Term and will
terminate on the fifth anniversary of the expiration date of the first
Renewal Option Term. The second Renewal Option shall be exercised, if at
all, by written notice to Lessor on or before the date that is twelve
(12) months prior to the expiration date of the first Renewal Option
Term. If Lessee exercises a Renewal Option, each of the terms, covenants
and conditions of this Lease shall apply during the applicable Renewal
Option Term as though the expiration date of the applicable Renewal
Option Term was the date originally set forth herein as the Expiration
Date of this Lease, provided that: (1) during the first Renewal Option
Term, there shall only be one more Renewal Option under this Paragraph
39, and during the Second Renewal Option Term, there shall be no further
Renewal Options under this Lease, (2) the monthly Base Rent to be paid
during the first year of the Renewal Option Term shall be the greater of
(i) one hundred five percent (105%) of the monthly Base Rent payable for
the month immediately prior to the commencement of the applicable
Renewal Option Term, or (ii) the Fair Market Rent, as hereinafter
defined, for the Premises for the Renewal Option Term, and (3) the
monthly Base Rent to be paid during each year after the first year of
the Renewal Option Term shall be equal to one hundred five percent
(105%) of the monthly Base Rent payable for the preceding year. As used
herein, the term "Fair Market Rent" for the Premises shall mean the
monthly Base Rent that Lessor could obtain for each month of the first
year of the applicable Renewal Option Term from a third party desiring
to lease the Premises for a five (5)-year term commencing at the
commencement of the applicable Renewal Option Term, taking into account
the increases in rent provided under clause (3), above, the age of the
Building, the size of the Premises, the quality of construction of the
Building, the other terms of this Lease, the rental and any other
consideration then being obtained for new leases of space comparable to
the Premises in the locality of the Building and all other factors that
would be relevant to a third party desiring to lease the Premises for a
five (5)-year term commencing at the commencement of the applicable
Renewal Option Term in determining the rental such party would be
willing to pay therefor, but excluding any rental value attributable to
any items Lessee is permitted to remove from the Premises upon
expiration of the term of this Lease pursuant to Paragraph 7.4 of this
Addendum.
(b) If Lessee exercises a Renewal Option, Lessor shall send to
Lessee, on or before the date that is one hundred twenty (120) days
prior to the Expiration Date of the Initial Term, in the case of the
first Renewal Option, or one hundred twenty (120) days prior to the
expiration date of the first Renewal Option Term, in the case of the
second Renewal Option, a notice setting forth the Fair Market Rent for
the Premises for the first year of the applicable Renewal Option Term.
If Lessee disputes Lessor's determination of the Fair Market Rent for
the first year of a Renewal Option Term, Lessee shall, within thirty
(30) days after the date of Lessor's notice setting forth Lessor's
determination thereof, send to Lessor a notice stating that Lessee
disagrees with Lessor's determination of Fair Market Rent for the first
year of the Renewal Option Term and elects to resolve the disagreement
as provided in subparagraph 39(c) below. If Lessee does not send to
Lessor a notice as provided in the previous sentence, Lessor's
determination of the Fair Market Rent shall be the basis for determining
the monthly Base Rent to be paid by Lessee hereunder during the first
year of the applicable Renewal Option Term. If Lessee elects to resolve
the disagreement as provided in subparagraph 39(c) below and such
procedures shall not have been concluded prior to the commencement of
the applicable Renewal Option Term, Lessee shall pay monthly Base Rent
in an amount equal to the greater of (i) one hundred five percent (105%)
of the monthly Base Rent payable for the month immediately prior to the
commencement of the applicable Renewal Option Term or (ii) the Fair
Market Rent (on a monthly basis) as determined by Lessor in the manner
provided above. If the amount of Fair Market Rent for the first year of
the applicable Renewal Option Term as finally determined pursuant to
subparagraph 39(c) is greater than Lessor's determination, Lessee shall
pay to Lessor the difference between the amount paid by Lessee and the
Fair Market Rent as so determined pursuant to subparagraph 39(c) within
thirty (30) days after the determination. If the Fair Market Rent for
the first year of the applicable Renewal Option Term as finally
determined pursuant to subparagraph 39(c) is less than Lessor's
determination, the difference between the amount paid by Lessee and the
Fair Market Rent as so determined pursuant to subparagraph 39(c) shall
be credited against the next installment(s) of monthly Base Rent due
from Lessee to Lessor hereunder.
(c) Any disagreement regarding the Fair Market Rent for the first
year of the applicable Renewal Option Term shall be resolved as follows:
(i) if, within thirty (30) days after Lessee's response to
Lessor's notice to Lessee of the Fair Market Rent, Lessor and Lessee
shall not have reached agreement as to the Fair Market Rent for the
first year of the applicable Renewal Option Term, they shall each select
one appraiser to determine the Fair Market Rent for the first year of
the applicable Renewal Option Term. Each such appraiser shall arrive at
a determination of the Fair Market Rent for the first year of the
applicable Renewal Option Term and submit their conclusions to Lessor
and Lessee within forty-five (45) days after the expiration of the
thirty (30) day period described in this subparagraph (i).
(ii) If only one appraisal is submitted within the requisite
time period, it shall be deemed to be the Fair Market Rent for the first
year of the applicable Renewal Option Term. If both appraisals are
submitted within such time period, and if the two appraisals so
submitted differ by less than five percent (5%) of the lower of the two,
the average of the two shall be the Fair Market Rent for the first year
of the applicable Renewal Option Term. If the two appraisals differ by
more than five percent (5%) of the lower of the two, then the two
appraisers shall immediately select a third appraiser who shall within
thirty (30) days after his or her selection make his or her own
determination of the Fair Market Rent for the first year of the
applicable Renewal Option Term and submit such determination to Lessor
and Lessee simultaneously. Neither Lessor nor Lessee shall advise the
third appraiser of the Fair Market Rent determinations delivered by the
first two appraisers, and Lessor and Lessee shall instruct the first two
appraisers not to advise the third appraiser of such determinations. If
the Fair Market Rent determined by the third appraiser is the average of
the determinations of the Fair Market Rent determined by the first two
appraisers, the third appraiser's determination of Fair Market Rent
shall be the Fair Market Rent. If such is not the case, Fair Market Rent
shall be the Fair Market Rent as determined by Lessor's appraiser or
Lessee's appraiser which is closest to the determination of Fair Market
Rent by the third appraiser.
(iii) All appraisers appointed pursuant to this Lease shall be
members of the American Institute of Real Estate Appraisers with not
less than ten (10) years' experience appraising commercial and
industrial properties in Santa Xxxxx county. Each party shall pay the
cost of the appraiser selected by such party and one-half of the cost
of the third appraiser, if necessary plus one-half of any other costs
incurred in resolving the disagreement pursuant to this subparagraph
39(c).
46. Counterparts; Facsimile Signatures. The Lease and this Addendum
may be signed in counterparts, and delivered by facsimile, and such
facsimile counterparts shall be valid and binding on Lessor and Lessee
with the same effect as if original signatures had been exchanged.
50. Parking. Subject to the rules and regulations promulgated from
time to time by Lessor, Lessee shall be entitled to use 49.7% of the
parking spaces for the 0000/0000 Xxxxx Xxxxxx complex for use by its
agents, servants, employees and invitees (individually and collectively
referred to as "Lessee's Invitees") for parking of passenger vehicles
with a capacity of 8 persons or less only. If Lessor in its sole
discretion agrees in writing to permit Lessee to use any parking spaces
or areas which could be used for parking spaces for any other purpose
(e.g., temporary storage of materials, satellite dish installation,
etc.), Lessee's then current number of parking spaces will automatically
be reduced by the number of spaces utilized for such purpose plus any
spaces which cannot be reasonably used for normal parking as a result
thereof. Lessee agrees that overnight parking is prohibited. Lessee also
agrees that under no circumstances shall Lessee's Invitees in any manner
interfere with occupancy and/or access to the property known as 0000
Xxxxx Xxxxxx, including, without limitation, interference with the
ingress or egress to the building, parking lot or shipping and receiving
areas. If Lessee commits, permits or allows any of the prohibited
activities described herein or in the rules and regulations then in
effect, then Lessor shall have the right, without notice, in addition to
such other rights and remedies that it may have, to remove or tow away
the vehicle(s) involved and charge the cost to Lessee, which cost shall
be immediately payable upon demand by Lessor. Lessee agrees that Lessor
or its designee may re-stripe the existing parking lots so as to
reconfigure the same, so long as such re-striping or reconfiguration
does not reduce the number of parking spaces that Lessee is otherwise
entitled to use under the Lease. Subject to the prior written approval
of Lessor, which approval shall not be unreasonably withheld or delayed,
Lessee may re-stripe the existing parking lots so as to reconfigure the
same, so long as such re-striping or reconfiguration does not reduce the
number of total parking spaces for the 0000/0000 Xxxxx Xxxxxx complex or
unreasonably interfere with the use or occupancy of 0000 Xxxxx Xxxxxx or
its marketability to prospective tenants and subtenants. Provided that
Lessee shall have obtained Lessor's approval of such restriping as
required under this Paragraph 50, then notwithstanding anything
contained in the Lease, Lessee shall not have any obligation to change
the striping or configuration of the parking lots back to the original
configuration at the termination of the Lease.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Addendum as of the
date of the Lease.
Lessee: EXODUS COMMUNICATIONS, INC.,
a Delaware corporation,
By: /s/ XXXX XXXXXX
Name: Xxxx Xxxxxx
Title: Vice President and General Counsel
Lessor: G&I XXXXX LLC,
a Delaware limited liability company
By: G&I Investment Xxxxx LLC,
a Delaware limited liability company,
its managing member
By: G&I Investment Xxxxx Corp.,
a Delaware corporation, its
managing member
By: /s/ XXXXX X. XXXXXXX
Name: Xxxxx X. Xxxxxxx
Title: Vice President
EXHIBIT A
[Intentionally omitted]
Exhibit B
SPECIAL CONDITIONS
for
XXXXX RESEARCH CENTER
2401 & 0000 Xxxxx Xxxxxx
Xxxxx Xxxxx, XX
ASBESTOS: The Contractor will conform to all state and local laws
concerning the removal and disposal of materials containing asbestos.
Asbestos may be present in, but not necessarily limited to, the
following areas: roof membrane, parapet flashing.
DECK (LOW AREAS): After the removal of the existing roofing membranes,
the slope of the deck is to be checked and any low areas are to be
filled with the appropriate material at the directions of the Owner's
engineer.
DRAINAGE/DOWNSPOUTS: The Contractor will be responsible for the removal
and reinstallation of all drains, screens, downspouts, gutters and
related drainage details. The Contractor will be responsible for the
contracting of plumbing and related work for all drains.
The Contractor shall be sure that all drains are open and have proper
fitting screens and that downspouts and gutters have been reinstalled
with proper water sealed attachments.
ELECTRICAL EQUIPMENT: The Contractor will be responsible for the removal
and reinstallation of all electrical jacks, conduits and related work
including the blocking and clamping of conduit pipes. The reroofing bids
shall include the cost of this work. The Contractor will be responsible
for confirming schedules of electrical users in the event interruptions
are necessary.
EXTRA PLY IN DRAINAGE CHANNELS: Contractor will be responsible for the
installation of an additional ply of roofing material in the drainage
channels. Bids will include this work.
HVAC CURB COUNTERFLASHING: The Contractor will be responsible for the
installation of counterflashing at the top of all HVAC curbs. The
flashing will be 26 Ga. Galvanized sheet metal flashing. The flashing
will counterflash the curb flashing (roofing material) a minimum of 3".
HVAC/DUCTWORK: The Contractor will be responsible for the removal and
reinstallation of all movable HVAC units and duct work if needed to
install the new roof membrane. If the Contractor must move units and
ductwork, the Contractor will be responsible for the alignment/leveling
of the unit, the proper attachment of the unit to the sleepers/curbing
and insure that the units/ductwork are reinstalled in a watertight
manner. All caulking, sealants, hardcasting and flex duct connectors
disturbed will be the responsibility of the Contractor to replace. The
cost of this work will be included in the base bid.
The Contractor will also be responsible for coordinating schedules of
mechanical equipment with users in the event shutdowns are necessary.
LOADING OF EQUIPMENT AND MATERIALS ONTO THE ROOF: It will be the
responsibility of the roofing contractor to load and store materials and
equipment onto the roof in manner that will not cause damage to the
beams, glulams, purlins, subpurlins, columns or deck sheathing, etc. IF
damages does occur, the contractor will be responsible for all damages.
INTERIOR DRAIN SUMPS: The Contractor will be responsible for the sumping
of the existing interior drains. The price for this work shall be
included in the base bid. The price will include labor and material cost
(framing materials, plywood, hardware, etc.) to install the sumps at a
depth of 2" (two inches) at each interior drain. The price shall include
drain plumbing.
METAL COPING: The existing parapet metal coping is to be saved and
reused.
PARAPET FLASHING (Concrete): The existing parapet flashing will be
removed, the parapet cleaned and primed with undiluted asphalt primer.
Install 2 (two) plies of Type IV felt in full mopping of Type III
asphalt to the parapet, then install the capsheet in a full mopping of
Type III asphalt, staggering the SBS laps from the plysheet laps.
"Blankets" will not be permitted. The flashing will be mechanically
fastened at the parapet top, with the appropriate fasteners. Reuse
parapet coping metal.
PERIMETER META: The existing gravel stop will be removed and replaced
with new metal of equal grade and dimensions. The new metal will be set
in mastic on top of the ply sheets. The flange will be nailed every 3"
staggered. The flange will be primed and flashed with 2 (two) additional
plies before the cap sheet is installed.
SANITARY FACILITIES: The contractor will provide portable toilet
facilities for their employees.
SITE MAINTENANCE: The Contractor is responsible to remove all
construction debris, nails, and trash each day. The Contractor is
responsible to open and keep drains clear of all debris.
SLEEPER/LEVELING BLOCK REPLACEMENT: The Contractor will be responsible
for the replacement of all HVAC sleepers and leveling blocks. The
sleeper and block material will be #2 Redwood. Wood dimensions will
equal existing materials. All pipe support blocks will be replaced with
#2 Redwood and set on All sleepers will be lag bolted to the substrate
with 5/8" lag screws. The screws will penetrate the Purlin or Gluelam
beam a minimum 4 1/2". Lag screws will be counter sunk.
SLEEPER, MECHANICAL EQUIPMENT SUPPORTS: The Contractor will be
responsible for the lag bolting of all roof mounted sleepers to the
substrate. All roof mounted sleepers will be flashed with 2 plies of
Type IV felt and SBS modified bitumen flashing sheets installed in full
moppings of Type III asphalt. Finished cuts will be sealed with flashing
cement. The price of this work will be included in the base bid.
UNSECURED SLEEPER/MECHANICAL EQUIPMENT SUPPORTS: The Contractor will be
responsible for the lag bolting of all unbolted roof-mounted sleepers to
the substrate. The Contractor will also be responsible for the
installation of flashing on all roof-mounted sleepers. The sleeper
flashing will consist of 2 plies of Type IV xxxxx and SBS modified
bitumen flashing sheets, installed in full mopping of Type III asphalt.
The Contractor's base bid will include the cost of this work.
VENTS, STACKS: The Contractor will be responsible for the proper
reinstallation and alignment of all vents, stacks, fans, etc. that are
related to any interior plumbing, heating or cooling equipment and
replacement of any missing vent or stack tops. Any metal found to be
rusted or damaged beyond repair shall be replaced and all bids should
include this.
Exhaust stacks must be realigned with interior ducts, so that original
service may be continued. The Contractor will be responsible for damages
incurred by Owner for alterations of performance in heating, cooling or
ventilation.
WATER TESTING: Contractor shall provide necessary labor and equipment to
water test any part of/or complete roof as directed by the Owners
Consultant.
THE CONTRACTOR WILL CONFORM TO ALL STATE AND LOCAL LAWS CONCERNING THE
REMOVAL, DISPOSAL OR USE OF ANY HAZARDOUS MATERIAL.
GENERAL CONDITIONS
SUBMITTALS
Product Data - Submit complete manufacturer's product data of all
material and systems to Owner for approval, consisting of complete
product description and specifications, complete performance test data,
Material Safety Data Sheet, complete preparation and installation
instructions, and other pertinent technical data required for complete
product and product use information.
Contractor is to submit written certification to the Owner by the
producer of the roofing materials to indicate that all materials
supplied will comply with all requirements of the appropriate ASTM
Standards and that all materials are suitable for roofing.
Contractor shall obtain all necessary permits and submit copies of the
same to Owner. Insurance binders for the following limits must be
received and on file at the project office prior to the commencement of
any work by your firm.
A. INSURANCE COVERAGE
1. Comprehensive General Liability Insurance, including Broad Form
Property Damage and Blanket Contractual Liability, for limit of
liability of no less than $2,000,000 combined single limits is
required.
2. Automobile Liability Insurance for $1,000,000 per accident,
Worker's Compensation and Employee's Liability must be verified
in writing and on file in the project office.
3. Additional Insured Endorsement. Hard Copy must be attached to
certificate Naming the following Additional Insureds as respects
to General Liability.
Additional Insureds: X. X. Xxxxxxxx & Associates, Inc.
X. XXXX RELEASES
1. Signed lien releases and copies of invoices for material
purchased for delivery to this project by the supplier or his
agent, must accompany the request for payment for same.
2. Lien releases will be required to be completed at the project
office prior to the release of any funds. Payment of all funds
will be made through the general offices by the Owner on approved
invoices less 10% retention.
QUALITY ASSURANCE
All work shall conform to the governing laws and the following building
codes: Uniform Building codes and local city and county codes.
In addition, the work shall strictly conform to the approved roofing
material manufacturer's written requirements, instructions and
specifications for this particular rook deck type and projection
conditions.
A licensed Roofing Inspector may be retained by the Owner under a
separate contract to inspect all materials and workmanship for roof
installation. Contractor shall provide this inspector free access to
materials and work areas for the purpose of performing his duties.
COORDINATION
The Contractor shall notify the Owner whenever roofing work is to be
done in sufficient time to arrange for inspection. The Contractor is
responsible for contacting the inspector when the work is done on
weekends, holidays or other such times. Work done without such
acknowledgment is subject to the Inspector's discretion concerning the
removal of said work.
Prior to the commencement of the built-up roofing work, a conference is
to be held at the site, attended by the Owner or his representative, the
Roofing Contractor, the Roofing Inspector and other parties who may have
an interest. The purpose of this conference shall be to review the
specifications, details, application requirements and other pertinent
aspects of the work.
Prior to beginning the work, the Contractor shall inspect all mechanical
and electrical equipment that may be affected by the roofing work.
It shall be the responsibility of the Roofing Contractor to ensure that
all the Owner's or Tenant's property shall be operating and in the same
condition upon completion of the roofing work as it was prior to
reroofing operations.
This inspection shall include the inside of the building as to fixtures,
insulation, etc., that may be affected by roofing operations.
If the contractor determines that defects exist prior to the start of
his roofing construction, he shall bring this to the Owners's attention
in writing. Otherwise, the Roofing Contractor shall be considered
responsible for any damage incurred.
PRODUCT DELIVERY, STORAGE AND HANDLING
Deliver, store and handle all materials in such a manner as to avoid all
types of damage. Keep all materials in factory wrappings and containers
until ready for use.
Handle all materials to avoid damage, store rolled goods on ends only,
and discard rolls which have been flattened, creased or otherwise
damaged.
Do not dilute primers, roofing cements or asphalt. Keep containers
closed until material is used. Do not allow mixing of various bituminous
classes.
Insulation, ply sheets, etc. shall be dry when applied and shall be
protected from the weather during installation. Any materials damaged by
exposure to the elements or other cause shall be rejected and promptly
removed from the site.
CLEAN-UP
Remove smears and asphalt runs from adjacent surfaces immediately, as
the work progresses. Exercise particular care to prevent smearing or
staining of surrounding surfaces which will be exposed in the finished
work, and repair any damage done to same as a result of this work
without additional cost to Owner.
Remove all cartons, debris, debris from removal process, emptied
containers, etc., as the work progresses, but not less than daily and
finally at completion of work of this section. Legally dispose of same
off the site.
GUARANTEE
The Manufacturer of the roofing materials shall be liable for any of
their defective materials.
The Roofing Contractor will provide the Owner a 3-year, labor and
materials warranty.
The Owner shall have the roof inspected by an independent professional
on an annual basis and shall perform all necessary maintenance.
**END OF SECTION**
DEMOLITION SECTION 02120
PART 1 -- GENERAL
1.1 RELATED DOCUMENTS
The Standard Provisions of LANDMARK ASSET MANAGEMENT GROUP and Special
Provisions shall apply to all work of this section.
1.2 DESCRIPTION OF WORK
A. The work consists of furnishing all labor, materials, equipment,
services and Transportation required to complete the removal of
existing membrane, flashing, sheet metal and related items as
specified herein. Access to the roof will also be designated by the
Owner's Agent.
B. Related Work Specified Elsewhere
Built-up Roofing: Section 07500
Flashing and Sheet Metal: Section 07600
1.3 JOB CONDITIONS
The removal of existing roof shall be by an approved method. Any damage
to the deck due to negligence shall be reported and repaired at the
Contractor's expense. All work requiring the removal, disconnection or
handling of electrical and mechanical equipment shall be done by a
licensed electrical and mechanical Contractor and shall be part of this
contract. Mechanical and electrical equipment damaged by the Contractor
shall be repaired at the Contractor's expense.
1.4 DEMOLITION AND REMOVAL
All work shall be performed in accordance with the requirements of the
Owner as to location of equipment and movement and storage of materials
and debris. All materials shall be handled at the location designated by
the Owner and shall be done so via closed chutes and closed containers
so as to cause as little dust and pollution as possible. The Contractor
shall not remove more roofing than can be replaced in the same day.
** END OF SECTION **
BUILT-UP ROOFING SECTION 07500
PART 1 - GENERAL
1.1 RELATED DOCUMENTS
The Standard Provisions of LANDMARK ASSET MANAGEMENT GROUP and Special
Provisions shall apply to all work of this section.
1.2 DESCRIPTION OF WORK
A. The work consists of furnishing all labor, materials, equipment,
services and transportation required to complete the installation of
new built-up roofing over kraft paper, flashings, sheet metal,
jacks, drains and the reinstallation of drains and related items as
specified in the contract documents.
B. Related Work Specified Elsewhere
Demolition and Romoval: Section 02120
Flashing and Sheet Metal: Section 07600
1.3 STANDARDS
UL-Listed Products: Provide xxxxx and bitumens which have been tested
and listed by UL and bear the UL label on each package, or are shipped
to the Project with a UL certification of compliance.
1.4 SUBMITTALS
Manufacturer's Data: Submit to the Owner 3 copies each of
specifications, installation instructions, Material Safety Data Sheets,
and general recommendations from the roofing materials manufacturer, for
each type of roofing product required, including sheet metal work and
miscellaneous products. Include manufacturer's data substantiating that
the materials comply with the requirements and those of SMACNA for metal
work.
1.5 GUARANTEE-WARRANTY
The manufacturer of the roofing materials shall be liable for any of
their defective materials.
The Roofing Contractor will provide the Owner a 3-year, labor and
materials warranty.
The Owner shall have the roof inspected by an independent professional
on an annual basis and shall perform all necessary maintenance.
1.6 PRODUCT HANDLING
Deliver, store and handle all materials in such a manner as to avoid all
types of damage. Keep all materials in factory wrappings and containers
until ready for use. If the materials are stored on site, they shall be
kept on pallets and protected by tarpaulins.
Handle all materials to avoid damage, store rolled goods on ends only,
discard rolls which have been flattened, creased or otherwise damaged.
Do not dilute primers, roofing cements, or asphalt. Keep containers
closed until material is used. Do not allow mixing of various bituminum
classes.
BUILT-UP ROOFING SECTION 07500
PART 2 - PRODUCTS
2.1 MATERIALS
A. Basic Bid Only:
Built-up roofing system shall be a 4-ply ASTM D-2178-Type VI glass
reinforced system over kraft paper all in accordance with the standards
established by these specifications or equivalent by another
manufacturer approved by the Owner, prior to the bid date.
Manufacturer Specification Number
------------ --------------------
GAF N-B-4-M(ASTM TYPE VI)
Manville 4 GNC (ASTM TYPE VI)
1. Base Sheet. ASTM D-4601, Type II
2. Ply Sheets: ASTM D-2718, Type VI
3. Mineral Surfaced Cap Sheet, ASTM D-3909
B. Cant Strips: Fiber board, nominal 4" face.
C. Asphalt: Steep Asphalt ASTM D-312-III
D. Flashing Materials:
1. Asphalt Primer: ASTM No. D41-70
2. Base Flashing: Ruberoid Mop (granule), DynaFlex (granule), ASTM
No. D-412
3. Plastic Cement: ASTM NO. D2822-69
4. Fibrated Aluminum Roof Coating ASTM D2824-85 Type III
PART 3-EXECUTION
3.1 PREPARATION OF ROOF DECKS
Decks shall be smooth, dry, and have a firm surface and be swept clean
of all dust. All foreign material and coatings shall be removed. Roofing
shall be applied only during dry weather.
3.2 ROOFING APPLICATION
Kraft paper shall be spot nailed prior to placement of the first ply
sheet. Base ply shall be mechanically secured 9" on center at side laps
and 18" on center on two lines 12" from each edge (staggered).
Berryfast, Bostitch and Senco systems may be used in accordance with the
manufacturer's and Factory Mutual recommendations.
Ply sheet may be applied by a mechanical felt layer or rolled into hand
mopping of hot bitumen. It shall be shingled in, free of buckles and
fishmouths. Each ply shall be so laid so that the flow of water is over
or parallel to (but never against) the lap. End laps shall be a minimum
of 12 inches apart. Embed the full 36 inch width of each ply in hot
bitumen. The hot bitumen shall be applied at a nominal rate of 25
lb./100 square feet (minimum of 20 pounds and maximum of 35 pounds) of
ply sheet on this slope.
BUILT-UP ROOFING SECTION 07500
The asphalt shall be sufficiently hot to insure a complete bond of ply
to ply High melt = 000 (xxxxxxx) Xxxxxxxxxx minimum and 500 degree
Fahrenheit maximum. Low melt 350 degree Fahrenheit minimum and 450
(degrees) Fahrenheit maximum) hand mopping. Brooming is required for
both felt layers and hand mopping. Brooming is essential and must be
done promptly and effectively to eliminate voids and insure adequate
adhesion. A moderately soft, commercial type push-broom should be used
for this purpose. When "rolling in" by hand, the mopping asphalt shall
be kept within 6 feet of the roll. Keep the mop full and flow the
asphalt on the roof. Do not scrub with mop.
Capsheet shall be applied over and parallel to the underlying roofing
and lapped, so that the flow of water is over or parallel to but never
against the laps. Embed capsheet into hot asphalt applied at a nominal
rate of 25 lbs./100 square feet with 2" side and end laps. End laps to
be broken not less than 3 feet apart. The capsheet shall be applied free
of buckles, wrinkles, blisters, fishmouths or voids of any description
between it and the mopping asphalt.
Tension shall be placed on the ends of capsheet lengths as they are
placed to insure that the sheet lies flat in the asphalt.
Weather conditions, such as temperature, wind, sun, etc., must be given
consideration when the temperature gets below 50 F. as cracks, non-
adhesion, and fishmouths are more likely to occur. Loose granules shall
be embedded into overrun of hot asphalt at side and end laps.
3.3 ASPHALT
The appropriate temperature of asphalt at the point of application is
critical to the construction of a good waterproofing membrane. For best
results in application, asphalt should be at the Equiviscous
Temperature, at the point of application (mop bucket, mechanical mopper
or felt layer).
If this approximate temperature cannot be maintained at the point of
application, operations shall be discontinued. In order to achieve this
EVT temperature at the point of application, the asphalt must be heated
to a higher temperature in the kettle or tanker.
Overheating of asphalts for extended periods of time (i.e. overnight)
can modify their physical properties and thus their ability to perform
the waterproofing function. Periodically, roof samples will be tested
for conformances to ASTM standards by Owner's Engineer.
Asphalt shall not be heated above the following maximum temperature:
Steep Type III Kettle Temperature 500 F
3.4 FLASHINGS
A. Materials for metal flashings and galvanized sheet metal gravel
stops are specified in Section 07600.
B. Flashing of roofing shall conform to the following requirements:
1. Apply asphalt primer to vertical wall surfaces, to which the
flashing is to be applied, to 4" above top edge of cant strip.
C. Roof Penetrations: Turn back edges of first roofing sheet over
succeeding sheets at penetrations through roof to form a dam against
flow of asphalt through hole in deck. Place galvanized metal roof
jacks on top layer of xxxxx set in mastic. Seal flanges by layering
with 1 (8") strip of ply set in hot asphalt then overlay with a 10"
strip of roofing ply set in hot asphalt. Extend capsheet to edge of
penetrations and seal with mastic at joint.
D. Ring-Type Drains: Remove ring, clamps and flashing. Thoroughly clean
drains and apply flashing compound 1/8 inch thick in ring groove
base of outlet. Apply base and ply sheets per specifications,
extending all plies
BUILT-UP ROOFING SECTION 07500
and moppings over the surface of the drain base (under clamping
ring). Metal shall be a minimum 30" square lead (2 1/2 lb. to 4
lb.).
Metal flashing shall be primed on both sides and allow to dry prior to
embedment in a solid uniform layer of flashing cement metal and flashing
cement shall extend over the drain base (under the clamping ring). Apply
two stripping plies of felt over the built-up plies and clamping ring
with the first ply extending at least 4" beyond the outer edge of the
flange. The second ply shall extend beyond the first ply a minimum of
2". Install cap sheet as specified. Set the clamping ring in a solid
uniform layer of plastic cement and tighten.
3.5 CLEANUP
A. At completion of roofing, remove all tools and implements from the
site.
B. Remove all excess materials, cartons, and wrappings from site; clean
off spattering from adjacent surfaces.
If spatterings cannot be cleaned off, Contractor shall be
responsible for having a contractor specializing in the damaged
finish repair the surface to its specified condition.
**END OF SECTION**
FLASHING AND SHEET METAL Section 07600
PART 1 - General
1.1 RELATED DOCUMENTS
The standard provisions of LANDMARK ASSET MANAGEMENT GROUP and Special
Provisions shall apply to all work of this section.
1.2 DESCRIPTION OF WORK
Flashing details shall be in accordance with the approved roofing system
manufacturer's recommendations for the wall, edge and projection
conditions. Metal shall be primed with cut-back primer prior to the
installation.
Collars and flanges shall be flashed as per the roofing system. All
walls shall be completely cleaned and primed to receive new flashings.
Cant strips shall be installed at all angles.
1.3 JOB CONDITIONS
Do not proceed with the installation of flashing and sheet metal work
until curb and substrate construction, cant strips, blocking, reglets
and other construction to receive the work are completed and inspected
by the on site inspector or the Owner's representation.
PART 2 - PRODUCTS
2.1 MATERIALS (WHERE NEW MATERIALS ARE REQUIRED)
A. Metal Flashing (and Counter Flashing):
1. Zinc-Coated Steel Sheet: Commercial quality carbon steel
sheets with minimum 0.20 percent copper content, complying with
ASTM A526; hotdip galvanized to comply with ASTM A525, G90, mill
phosphatized to receive paint finish, 24 gauge thickness, except
as otherwise indicated.
B. Miscellaneous Materials:
1. For metal work, provide the type of solder and fasteners
recommended by the producer of the metal sheets, for fabrication
and installation.
2. Roofing Cement: FS-SS-C-153, Type I asphaltic base.
3. Bituminous Coating: FS-TT-C-494, or Mil-C-18480, or SSPC-
Paint 12, cold applied bituminous mastic, compounded for 15-mil,
dry-film-thickness coating.
Comply with metal producer's recommendations for tinning, soldering,
and cleaning flux from metal.
2.2 FABRICATED PRODUCTS
A. Fabricated Metal Flashing and Trim:
1. Shop-fabricate metal flashing, trim, expansion joints and
similar items to comply with profiles and sizes existing and to
comply with standard industry details as shown by SMACNA in the
"Architectural Sheet Metal Manual." Except as otherwise indicated,
provide soldered, flatlock seams and fold back metal to form a hem
on the concealed side of exposed edges. Comply with metal
producer's recommendations for tinning, soldering, and cleaning
flux from metal.
FLASHING AND SHEET METAL Section 07600
PART 3 -- EXECUTION
3.1 GENERAL INSTALLATION REQUIREMENTS
A. Comply with Manufacturer's instructions and recommendations for
handling and installation of flashing and sheet metal work.
B. Performance: Coordinate the work with other work for the correct
sequencing of items which make up the entire membrane or system of
weatherproofing or waterproofing and rain drainage. It is required
that the flashing and sheet metal work be permanently watertight,
and that flashing meet the requirements for the flashing endorsement
specified in Section 07500.
3.2 INSTALLATION OF METAL WORK
A. Comply with details and profiles as existing and comply with SMACNA.
"Architectural Sheet Metal Manual" recommendations for installation
of the work, where practical, or as directed by the Owner's Agent.
B. Comply with metal producer's recommendations for tinning, soldering
and cleaning the joints.
C. To provide for thermal expansion, all exposed sheet metal work shall
not exceed 10 feet in length. Nailing of sheet metal shall be
accordance with SMACNA, where practical, or as directed by the
Owners Agent.
D. Conceal fasteners and expansion provisions wherever possible. Fold
back edges on concealed side of exposed edges to form a hem.
E. Unless noted otherwise, separate dissimilar metals with a coating of
neoprene base paint or approved neoprene or rubber tape.
1. Painting by other contractors.
**END OF SECTION**
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this "Amendment") is made as of June 4,
1999, by and between G&I XXXXX LLC, a Delaware limited liability company
("Lessor"), and EXODUS COMMUNICATIONS, INC., a Delaware corporation
("Lessee").
R E C I T A L S
A. Lessor and Lessee have previously entered into that certain
Standard Industrial/Commercial Single-Tenant Lease-Net, dated as of
January 29, 1999, with attached Addendum (the "Original Lease"),
covering certain premises commonly known as 0000 Xxxxx Xxxxxx, Xxxxx
Xxxxx, Xxxxxxxxxx (the "Premises").
X. Xxxxxx and Lessee are also concurrently with the execution of this
Amendment entering into a Standard Industrial/Commercial Single-Tenant
Lease-Net, covering certain premises commonly known as 0000 Xxxxx
Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx (the "2403 Xxxxx Lease").
X. Xxxxxx and Lessee desire to amend the Original Lease in connection
with entering into the 2403 Xxxxx Lease, in order to add a cross-default
provision and certain other technical amendments, as more fully set
forth hereinbelow.
NOW THEREFORE, in consideration of the agreements of Lessor and Lessee
herein contained and other valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Lessor and Lessee hereby
agree as follows:
1. Use of Terms. As used herein, terms shall have the same meanings as
in the Original Lease. The term "Lease" as used in the Original Lease
and in this Amendment shall mean the Original Lease as modified by this
Amendment.
2. Cross-Default Provision. In addition to the events set forth in
Paragraph 13.1 of the Original Lease (including Paragraph 13.1 of the
Addendum thereto), the occurrence of any Breach under (and as defined
in) the 2403 Xxxxx Lease shall constitute a Breach under the Lease, and
Lessor shall have all rights and remedies available under the Lease in
the event of a Breach as result thereof.
3. Technical Amendments.
(a) Paragraph 7.1(a) of the Original Lease is amended by adding the
words "and Paragraphs" in the first line thereof, immediately following
the interlineated words "Addendum 2.2" and preceding the words "2.3
(Compliance)".
(b) Paragraph 39(b) of the Addendum to the Original Lease is amended
by deleting the words "one hundred fifty (150)", appearing at the end of
the third line and beginning of the fourth line thereof, and
substituting the words "one hundred twenty (120)" therefor.
(c) Paragraph 50 of the Addendum to the Original Lease is amended
by: (i) adding the words "or its designee" on the 20th line thereof,
immediately following the words "Lessee agrees that Lessor" and
preceding the word "may", and (ii) deleting the words "Paragraph 29"
appearing on the fourth line from the end of Paragraph 50, and
substituting the words "Paragraph 50" therefor.
4. Counterparts; Facsimile Signatures. This Amendment may be signed in
counterparts, and delivered by facsimile, and such facsimile
counterparts shall be valid and binding on Lessor and Lessee with the
same effect as if original signatures had been exchanged.
5. Ratification. The Original Lease, as modified hereby, is hereby
ratified and confirmed in all respects.
6. Successors and Assigns. This Amendment shall bind and inure to the
benefit of Lessor and Lessee and their respective legal representatives
and successors and assigns.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Amendment as of
the date first above written.
Lessee: EXODUS COMMUNICATIONS, INC.
a Delaware corporation,
By: /s/ XXXX XXXXXX
Name: Xxxx Xxxxxx
Title: Vice President and General Counsel
Lessor: G&I XXXXX LLC,
a Delaware limited liability company
By: G&I Investment Xxxxx LLC,
a Delaware limited liability company, its
managing member
By: G&I Investment Xxxxx Corp.,
a Delaware corporation, its
managing member
By: /s/ XXXXX X. XXXXXXX
Name: Xxxxx X. Xxxxxxx
Title: Vice President
