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EXHIBIT 10.14
THIS LEASE, dated for reference purposes, the 20th day of December, 1991
between Governor Park Plaza Associates a Limited Partnership, having its
principal office at 0000 Xxxxxxxxx Xxxxx, Xxx. 000, Xxx Xxxxx, Xxxxxxxxxx, and
having a Federal Tax Identification Number of #00-0000000 (hereinafter referred
to as "Landlord"), and XEROX CORPORATION, a New York corporation, having its
principal office at 000 Xxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000
(hereinafter referred to as "Tenant").
WITNESSETH:
1. DESCRIPTION
Landlord has constructed a development on certain land, as shown on
Exhibit A attached hereto and made a part hereof (hereinafter referred
to as the "Complex"), which contains parking areas, common areas and
one or more buildings and/or future building sites, including Building
1 containing 61,808 rentable square feet, known as Governor Park Plaza
and located at 0000 Xxxxxxxxx Xxxxx in the City of Xxx Xxxxx, Xxxxx xx
Xxxxxxxxxx, 00000 (hereinafter referred to as the "Building").
Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the following space in the Building, the space consisting of
7,042 rentable square feet (6,350 usable square feet) on the first
floor of Building 1 and known as Suite 120, as shown on Exhibit B
attached hereto and made a part hereof (hereinafter referred to as the
"Demised Premises"), together with the use in common with other
tenants of the Building of the hallways, corridors, lobby, lavatories,
elevators, stairways and other common areas and facilities of the
Building appurtenant thereto, and together with the sidewalks,
driveways and parking facilities provided for in Paragraph 10(h)
hereof (all together hereinafter referred to as the "Premises").
2. TERM
The term of this Lease is three (3) years, to scheduled to commence on
the first day of February, 1992 (hereinafter referred to as the
"Commencement Date"), and to end on the thirty first day of January,
1993 (hereinafter referred to as the "Expiration Date"), both dates
inclusive, unless the term be extended pursuant to Paragraph 16 or
Exhibit C hereof, or earlier terminated as provided herein.
3. RENT
The base monthly rental shall be fully serviced and shall be at the
rate of:
$0.80 per rentable square foot for months 1 through 12,
$1.59 per rentable square foot for months 13 through 24,
$1.65 per rentable square foot for months 25 through 36,
to be paid in advance on or before the first day of each month during
the term hereof; provided however, that if the term of this Lease
should commence on the date other than the first day of the month, the
first and last month's rent shall be prorated.
4. USE
The Demised Premises may be used and occupied for general office
purposes, including by way of specification (but without limiting the
generality of the foregoing), offices, research and development,
training, customer service demonstration areas and computer areas.
Landlord covenants, warrants and represents that there are no zoning
ordinances or other prohibitions restricting or limiting the use of
the Demised Premises for the purposes herein specified. Should any
law, regulation or other governmental order restrict or limit Tenant's
use of the Demised Premises, then Tenant
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may cancel this Lease upon written notice to Landlord within ninety
(90) days following that date upon which Tenant shall have become
aware of such law, regulation or order and thereupon Tenant shall have
no further obligation to Landlord either hereunder or otherwise. In
addition, Tenant may use all or any part of the Demised Premises for
any lawful purpose then permitted by the zoning ordinances and the
certificate of occupancy.
Tenant may, if Tenant so elects, and for Tenant's sole use, install
and operate within the Demised Premises microwave ovens and install
and operate within the Demised Premises vending machines to dispense
hot and cold beverages, ice cream, candy, food and cigarettes;
such machines shall be maintained in a neat and sanitary condition and
shall comply with all applicable laws and ordinances.
5. PREPARATION OF PREMISES
Landlord shall, at Landlord's sole cost and expense perform all work
and furnish all materials necessary to complete the Demised Premises
in accordance with Preliminary Plans and Specifications which shall be
agreed to by Tenant and Landlord. Such plans and specifications shall
be deemed to be Exhibit B-1, attached hereto and made a part hereof.
Landlord, using Landlord's Architect and Engineer, at Landlord's sole
cost and expense, shall prepare complete final Architectural and
Engineering drawings and Specifications (hereinafter referred to as
"AE&S Drawings") in accordance with those Preliminary Plans and
Specifications submitted by Tenant and approved, or deemed approved,
by Landlord. Landlord agrees to make revisions to the AE&S Drawings
as required by Tenant, at no additional cost to Tenant. The AE&S
Drawings agreed to by Tenant and Landlord on or before DECEMBER
26, 1991 will be the drawings provided to Landlord's General Contractor
for the construction of the Demised Premises and such drawings shall
be deemed to be Exhibit C, attached hereto and made a part hereof.
Such final AE&S drawings shall be stamped, as may be necessary, by a
licensed Engineer so that Building Permits and/or other required
Permits may be obtained.
Landlord shall provide in the Demised Premises, in addition to the
Tenant Improvements herein described as Exhibit C, the following, all
in good condition and proper working order:
1. Ceiling grid: material and installation.
2. Ceiling tile: material only.
3. Building standard mini blinds: material and installation, on
all exterior and atrium windows.
4. Main HVAC System to include on the floor main supply and
return ductwork: Branch ducts and diffusers to the space are
not included in the shell.
5. Lighting installed in accordance with the building standard
plan.
6. Dry wall, tape and bed the interior of all exterior walls,
cores, demising walls, and all columns.
7. Provide electrical service to, and a distribution panel in,
the Demised Premises.
9. Landlord shall provide an allowance towards the purchase and
installation of a telephone communication system to include
telephone sets, telecommunication wiring and labor to install
to be specified by Tenant as detailed in Exhibit B-1, and such
allowance shall not exceed $12,000.00.
10. Landlord shall provide an allowance towards the purchase and
installation of computer network cabling and such allowance
shall not exceed $3,000.00.
12. Adequate preventive measures so as to eliminate or
substantially reduce noise and/or vibration from external
sources, such as vehicular or railroad traffic.
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13. Complete final architectural and engineering drawings and
specifications, stamped as may be necessary by a licensed
engineer and/or architect so that building and/or other
required permits may be obtained.
Landlord and Tenant acknowledge that Landlord may be performing work
in the Building simultaneously with Tenant's work, and Landlord and
Tenant agree to cooperate with each other in the conduct of their
work, recognizing the amount of space each party will be working on,
in terms of fairly allocating access to the freight elevator, truck
loading dock and like facilities.
If the Premises and Demised Premises are not so completed on or before
the Scheduled Commencement Date as hereinbefore set forth, then the
term of this Lease and the obligation of Tenant to pay rent shall not
commence until the Premises are completed pursuant to the foregoing
paragraph, and Landlord shall have given Tenant at least fifteen (15)
days written notice prior to the date the Premises are so completed.
In the event Landlord fails to so complete the Building and the
Premises for causes beyond Landlord's control, such as strikes,
governmental restrictions, and acts of God, then the Commencement Date
shall be postponed for the period of such delay, provided however,
that if the Landlord fails to so complete the Premises (for a cause
either within or beyond Landlord's control) on or before February 1,
1992, then Tenant, at Tenant's reasonable discretion, may cancel this
Lease by giving written notice to Landlord and thereupon Tenant shall
have no further obligation to Landlord either hereunder or otherwise.
In the event the Demised Premises are not completed on or before the
Commencement Date for the reasons set forth in the preceding paragraph
permitting postponement of the Commencement Date, then Landlord and
Tenant promptly shall execute a document in the form attached hereto
as Exhibit D and made a part hereof, to establish the Commencement
Date. In the event the delay in the Commencement Date was caused by
Tenant, then the Expiration date shall be extended for a like period
so as to provide for the full term as set forth in Paragraph 2 hereof,
but in the event the delay in the Commencement Date was caused by
force majeure or by delay by the Landlord, then Tenant shall have the
option (a) to extend the Expiration Date by a like period so as to
provide for the full term as set forth in Paragraph 2 hereof, or (b)
not to extend the Expiration Date.
Tenant hereby designates XXXX X' XXXXXX as its representative with
authority to approve changes in design or construction, and to inspect
and approve workmanship and material. In all cases, his/her signature
shall be final and binding upon Tenant with respect to the authority
herein granted to him/her. All alternates either of additions or
deletions, agreed to between Landlord and Tenant must be in writing
and must be agreed to by Tenant's representative to be binding.
Tenant reserves the right to designate an alternate representative by
notice to Landlord.
Landlord hereby guarantees that the work shall be free from defects
for a period of one (1) year from the completion date. Landlord shall
at Landlord's sole cost and expense, promptly correct any portion of
the work found to be defective during the one (1) year period, and any
other portion of the work damaged or destroyed in the course of such
correction.
Upon completion and acceptance of the Demised Premises, Landlord shall
if requested by Tenant at no expense to Tenant furnish Tenant with a
complete set of "As-Built" drawings setting forth all improvements to
the Demised Premises.
6. TELEPHONE EQUIPMENT
Landlord shall provide suitable non-exclusive space for installation
of Tenant's telephone relay cabinets, power panels and electric
panels. Such space will be in addition to the Demised Premises and
shall be provided at no additional cost to Tenant.
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7. MAINTENANCE AND REPAIRS
Landlord shall, at Landlord's sole expense, maintain and repair the
Premises and the Building in a first-class condition, with all systems
properly functioning. Upon notification by Tenant, Landlord shall
promptly repair any damage to or defect in the Premises and the
Building; provided however, that if such damage is occasioned by fault
or neglect of the Tenant (except as provided in Paragraph 18 hereof)
and there shall not be in effect at the time such damage occurred a
policy or policies of insurance insuring Landlord against any loss
resulting from such damage, then Tenant shall reimburse Landlord for
the cost of repairs, or if the proceeds of such insurance are
insufficient to cover the cost of such repairs, then Tenant shall
reimburse Landlord the difference between such cost and the proceeds
which Landlord received.
8. ALTERATIONS
Tenant shall have the right to make such alterations and modifications
to the Demised Premises as Tenant may deem desirable provided such
non-structural alterations and modifications do not exceed $5,000.00
per occurrence. Should Tenant desire to make any alterations or
modifications which exceed $5,000.00 per occurrence or any structural
alterations or modifications, then Tenant agrees to first obtain
Landlord's consent, which consent shall not be unreasonably withheld or
delayed. Should Landlord fail to respond to Tenant's request within
five (5) days, then Landlord's consent shall be deemd given. All of
Tenant's construction to the Demised Premises shall be performed in a
good and workmanlike manner in accordance with applicable building
codes, regulations and all other legal requirements. Any damage to
the Building resulting from such alterations or modifications shall be
repaired at Tenant's expense.
9. SIGNS AND BUILDING NAME
Tenant at Landlord's expense shall have the right to be listed on the
Building lobby directory, if any, and to have identification signs
outside of the Demised Premises, within the Building in conformance
with Landlord's approved signage plan for the Complex. Tenant at
Tenant's expense shall have the right to require to be installed
and/or removed in conformance with Landlord's approved signage plan
for the Complex, at Tenant's option, an illuminated or nonilluminated
sign on an exterior wall of the Building, and/or a monument sign,
provided such sign does not violate any governmental law, ordinance or
regulation.
10. SERVICES
Landlord shall furnish the following installations and/or services to
Tenant at Landlord's cost and expense, all of which shall be adequate
for the intended use of the Premises and in conformity with that
furnished in local first-class buildings of similar nature. These
services shall be provided between the hours of 7 a.m. to 6 p.m. on
normal business days, and 9 a.m. to 1 p.m.. on Saturdays, except, all
equipment necessary to operate heating, ventilating and air
conditioning systems shall be operate sufficiently in advance and
during these hours so as to provide such services and all cleaning
services shall be provided before or after such hours.
(a) Elevator service, with a minimum of one elevator subject to
call at all times.
(b) Year round air conditioning system capable of producing and
maintaining the following conditions throughout the Demised
Premises, regardless of outside temperature.
(i) Temperature and Humidity - inside temperature to be
maintained at:
Summer: 74 degrees FDB +/- 2 degrees FDB relative
humidity 50% maximum.
Winter: 72 degrees FDB +/- 2 degrees FDB relative
humidity 25% minimum.
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(ii) Temperature Control - areas having excessive heat
gain or heat loss or are affected by solar-radiation
at different times of the day shall be independently
zoned and controlled so that the interior temperature
condition stipulated above can be maintained.
(iii) Air Movement - in conference rooms and toilet areas,
a mechanical ventilation system shall be furnished to
provide for the exhausting of stale air and smoke as
well as providing a comfortable circulation of air.
(iv) Drafts, Noise and Vibration - the heating, air
conditioning and ventilating From systems shall be
free from objectionable drafts, noise and vibration.
(v) Filtration - all air conditioned supply air shall be
adequately filtered so as to maintain a clean, dust
free, non-toxic and odorless environment.
(vi) Ventilation - the air conditioning system shall
supply not less than 25% of fresh air wile in
operation. In toilets exhaust air quantities of at
least 50 cu. ft./minute for each water closet or
urinal or 2 cu. ft. per square foot of floor area,
whichever is greater, is to be provided.
(vii) Service and maintain an existing stand alone air
conditioner in the Demised Premises commonly known as
a CONTEMPO unit.
(c) All utility services. In addition, Landlord shall furnish, at
its sole cost and expense, all necessary utilities including
electricity, to the exterior common areas, including the
walkways, driveways and parking area.
(d) Adequate insect and vermin control.
(e) Adequate security services for the Premises and the Building
including fire and burglar alarm devices.
(f) Initial or first installation of lamps and/or bulbs as well as
future replacement, as required, of lamps and/or bulbs,
ballasts and starters to maintain a light level of 75 foot
candles at desk level.
(g) Landlord acknowledges that the availability of sufficient
parking is a material inducement to the entering into of this
Lease by Tenant. Landlord represents that it has sufficient
parking available to provide at no cost to Tenant and for
Tenant's exclusive use at least 3.9 paved parking spaces for
every 1,000 rentable square feet in the Demised Premises of
which 2 spaces shall be in the open parking area and shall be
marked exclusive to Tenant, all of which shall be no more than
100 feet from any public entrance to the Building. There
shall be a minimum of 350 square feet allocated for each
parking space including aisle and turnaround space.
(i) Landlord shall provide, at no expense to Tenant, cleaning
service, trash removal, and window washing for the Demised
Premises and the Premises in accordance with the Cleaning
Schedule marked Exhibit E and attached hereto and made a part
hereof.
Tenant acknowledges that any one or more of the services provided for
in Paragraph 10 hereof may be interrupted or suspended by reason of
accident, repair, alterations or improvements necessary to be made,
strikes, lockout, and except as hereinafter provided, Landlord shall
not be liable to Tenant therefore, provided however, that (a) Landlord
shall use its best efforts to restore such services as soon as
reasonably possible, (b) in the event such services is not restored
within ten (10) business days, whether or not through the fault of
Landlord, to the extent that Tenant cannot reasonably use all or any
part of the Premises, rent and other charges shall xxxxx as to such
part effective on the eleventh (11) business day and continue abated
until such service is restored, and (c) in the event such interruption
continues for thirty (30) calendar days, whether or not through the
fault of Landlord, then Tenant shall have the right and option to
cancel and terminate this Lease, on ten (10) days written notice to
Landlord, and thereafter shall be relieved of all further liability
under this Lease.
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11. REDECORATING
DELETED IN ITS ENTIRETY
12. COMPLIANCE WITH LAW
Landlord covenants that the Demised Premises, the Premises and the
Building, and the fixtures and appurtenances thereto (except those
installed by Tenant) do conform or that Landlord will promptly cause
them to conform to every applicable requirement of law or duly
constituted authority or the requirements of the carriers of all
insurance on or relating to the Demised Premises, the Premises or the
Building whether such insurance be furnished by Landlord or Tenant and
that Landlord will, at its sole risk and expense, at all times during
the term hereof promptly comply with all such requirements. The
Tenant shall comply with all applicable statutes, ordinances, rules
and regulations of federal, state and municipal governments and all
applicable rules and regulations of the Board of Fire Underwriters as
such statutes, ordinances, rules and regulations pertain to Tenant's
use of the Demised Premises.
Landlord shall also comply with all applicable city, county, state and
federal ordinances in effect from time to time with respect to
facilities for the handicapped in the Demised Premises, the Premises
and the Building.
13. LANDLORD'S TITLE, AUTHORITY AND QUIET ENJOYMENT
Landlord covenants and represents that it has good and marketable
title to the Building and the Complex, free and clear of all ground
leases, liens and mortgages or deeds of trust affecting Tenant's
possession of the Demised Premises, Tenant's use of the Premises, or
the rights granted to Tenant hereunder, except: a mortgage/deed of
trust dated Nov. 2, 1987 from Landlord, as mortgagor, and NEW ENGLAND
MUTUAL LIFE INSURANCE COMPANY, a MASSACHUSETTS CORPORATION, as
mortgagee/beneficiary of deed of trust.
In the event this Lease or the leasehold estate created hereunder is
subject to the prior rights of any mortgagee/beneficiary of deed of
trust or ground lessor, then Landlord shall secure from such
mortgagee/beneficiary of deed of trust or ground lessor a written
agreement in recordable form, in the form of Exhibit "F",
Non-Disturbance and Attornment Agreement (executed and acknowledged by
and on behalf of such mortgagee/beneficiary of deed of trust, or
ground lessor), which provides, among other things that Tenant, so
long as Tenant is not in default hereunder, may remain in possession
of the Demised Premises pursuant to the terms hereof and without
diminution of Tenant's rights should Landlord become in default with
respect to such mortgage or ground lease or should the Premises become
the subject of any action to foreclose any mortgage or to dispossess
Landlord. Such agreement shall be secured and furnished to Tenant at
the same time this executed Lease is delivered to Tenant.
Landlord covenants and represents that it has full and complete
authority to enter into this Lease under all of the terms, conditions
and provisions set forth herein, and so long as Tenant keeps and
substantially performs each and every term, provision and condition
herein contained on the part of Tenant to be kept and performed,
Tenant shall peacefully and quietly enjoy the Premises without
hindrance or molestation by Landlord or by any other person claiming
by, through or under Landlord.
14. SUBORDINATION
The priority of this Lease and the leasehold estate of Tenant created
hereunder are and shall be subject and subordinate to the lien of any
mortgage or ground lease, whether such mortgage is placed against the
fee or leasehold estate, which may now or hereafter affect the
Building and to all renewals, modifications, consolidations,
replacements and extensions thereof, and advances thereunder,
effective upon the date the mortgagee or ground lessor, as the case
may be, shall deliver to Tenant a written agreement in the form of
Exhibit "F", Non-Disturbance and Attornment
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Agreement (executed and acknowledged by and on behalf of the
mortgagee/beneficiary of deed of trust, or ground lessor) in
recordable form which provides, among other things that Tenant, so
long as Tenant is not in default hereunder, may remain in possession
of the Demised Premises pursuant to the terms hereof and without any
diminution of the Tenant's rights should Landlord become in default
with respect to such mortgage or ground lease or should the Premises
become the subject of any action to foreclose any mortgage or to
dispossess Landlord. Any fee which Landlord's lender or ground lessor
may charge for such agreement shall be paid by Landlord.
15. ASSIGNMENT AND SUBLETTING
Tenant shall have the right to assign this Lease or to sublease all or
any portion of the Demised Premises, with Landlord's consent which
consent shall not be unreasonably withheld or delayed. Should
Landlord fail to respond to Tenant's request within five (5) days
Landlord's consent shall be deemed given. Any such assignment or
subletting shall not relieve Tenant of its obligations hereunder.
In the event Tenant sells the operating unit which occupies the
Demised Premises to another company, then anything to the contrary in
this paragraph notwithstanding, Tenant shall have the right to assign
this Lease to such other company, but Tenant shall not thereby be
released of liability under this Lease.
16. LEASE EXTENSION
If this Lease shall not have been terminated pursuant to any
provisions hereof and Tenant is not in default under the terms
hereunder, then Tenant may, at Tenant's option, extend the term of
this Lease for one (1) successive additional term of three (3) years,
commencing on the expiration of the original term, or the immediately
preceding additional term as the case may be, and in the event Tenant
has elected to exercise its option to lease additional space pursuant
to Paragraph 25 the option provided for herein shall include such
additional space. At least nine (9) months prior to the expiration of
the initial term or any extended term, as the case may be, Tenant
shall request from Landlord the fair market rental rate being charged
in the Building, should Tenant desire to extend the term of this
Lease. At least eight (8) months prior to the expiration of the
initial or any extended term Landlord shall notify Tenant, in writing,
the applicable rental rate for the next succeeding option period.
Tenant may exercise such option by giving Landlord written notice by a
date which is the later to occur of (a) six (6) months prior to the
expiration of the original term or the additional term, as the case
may be, and (b) sixty (60) days after receipt by Tenant of Landlord's
notice of the applicable rental rate, as hereinabove provided, and (c)
fifteen (15) days after the fair market rental rate has been
determined by arbitration. Upon the giving by Tenant to Landlord of
such written notice and the compliance by Landlord and Tenant with the
foregoing provisions of this Paragraph 16, the term of this Lease
shall by deemed to be automatically extended upon all the covenants,
agreements, terms, provisions and conditions, set forth in this Lease,
except rental which:
(a) During the first renewal term shall be limited to a maximum of
90% of the then fair market rental rate,
(b) Or if Tenant elects, the rental rate schedule shall be as
follows:
$1.65 per rentable square foot for months 36 through 48,
$1.70 per rentable square foot for months 49 through 60,
$1.75 per rentable square foot for months 61 through 72,
(c) Upon execution of this extension option, Landlord shall repaint
the Demised Premises with two (2) coats of prime quality paint;
repainting shall be performed in a workmanlike manner with a
minimum of interference with Tenant's normal business
operations and replace all carpeting, with a quality comparable
to the initial installation, in the Demised Premises and in any
adjoining lobby/reception area, and except for such terms and
conditions as shall be inapplicable during any additional term
or in connection with this Paragraph 16.
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The term "month" as used in this paragraph shall mean (a) if the
Expiration Date is the last day of a calendar month, a calendar month,
or (b) if the Expiration Date is not the last day of a calendar month,
the period between the Expiration Date and the date in the preceding
month which is one (1) day after the date in the month of the
Expiration Date, e.g., if the Expiration Date falls on May 19, one (1)
"month" prior thereto would be April 20 and two (2) "months" prior
thereto would be March 20.
With respect to the lease extensions, the applicable "fair market
rental rate" shall be that rate charged for space of comparable size
and condition in comparable buildings, including the Building, located
in the geography commonly known as the Golden Train area of the City
of San Diego, taking into consideration the location, quality and age
of the building, floor level, extent of leasehold improvements
(existing or to be provided) including the amount spent by Tenant for
leasehold improvements over building standard in the Demised Premises,
rental abatements, lease takeover/assumptions, moving expenses and
other concessions, term of lease, extent of services to be provided,
distinction between "gross" and "net" lease, a base year or amount for
escalation purposes "both operating costs and ad valorem/real estate
taxes" and the time the particular rental rate under consideration
becomes or is to become effective, or any other relevant term or
condition, including any allowances for leasehold improvements, thus,
the "fair market value" rental rate may be a rental rate with or
without an allowance and/or with or without various other concessions
as set forth hereinabove.
In the event Tenant disagrees with Landlord's determination of the
fair market rental rate, Tenant shall promptly so notify Landlord and
Landlord and Tenant shall thereupon negotiate in good faith to attempt
to agree upon a mutually acceptable fair market rental rate, but in
the event agreement has not been reached within thirty (30) days after
Tenant's receipt of Landlord's Notice, then Tenant shall have the
option to demand arbitration as provided in Paragraph 46 hereof.
If Tenant fails or omits to so give to Landlord the first written
notice referred to above, it shall be deemed, without further notice
and without further agreement between the parties hereto, that Tenant
elected not to exercise the options granted Tenant pursuant to this
Paragraph 16 to extend the term of this Lease for additional periods.
17. TAXES, ETC.
Landlord shall pay all real estate taxes, assessments, water and sewer
rates and charges, and any other charges which may be levied, assessed
or charged against the Building and/or the Complex. Landlord shall
further make all payments required to be made under the terms of any
mortgage or deed of trust or ground lease which is now or hereafter a
lien on the building or the Complex which is superior to this Lease
and all payments required to be made under any ground lease. Landlord
shall have a reasonable time to cure a default under the terms of the
mortgage or deed of trust, before constituting an event of default by
Landlord as hereinafter described in Paragraph 23 of this Lease.
18. INSURANCE AND WAIVER OF LIABILITY
Landlord shall provide, at its expense, throughout the term of this
Lease, comprehensive general liability insurance covering the Building
and the Premises, except when caused by the sole negligence of Tenant
or Tenant's failure to perform its obligations under this Lease. The
policy or policies evidencing such insurance shall provide that same
may not be cancelled or amended without fifteen (15) days prior
written notice to Tenant, and shall provide for a combined coverage of
bodily injury and property damage in an amount not less than Five
Million Dollars ($5,000,000). Such policy or policies shall be issued
by an insurance company licensed to do business in the state in which
the Building is situate. Upon Tenant's request, Landlord shall submit
to Tenant suitable evidence that the foregoing policy or policies are
in effect.
Tenant shall provide, at its expense, throughout the term of this
Lease, comprehensive general liability insurance covering the Building
and the Premises when caused by the sole negligence of Tenant or
Tenant's failure to perform its obligations under this Lease. The
policy or policies evidencing such insurance shall provide that same
may not be cancelled or amended without fifteen (15) days prior
written notice to Landlord,
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and shall provide for a combined coverage of bodily injury and
property damage in an amount not less than Five Million Dollars
($5,000,000). Such policy or policies shall be issued by an
insurance company licensed to do business in the state in which the
Building is situate. Upon Landlord's request, Tenant shall submit to
Landlord suitable evidence that the foregoing policy or policies are
in effect. Notwithstanding the foregoing, Tenant may insure the
foregoing risks under its blanket policy, or elect to self-insure such
risks.
Landlord, for itself and its insurers, hereby releases Tenant with
respect to any liability (including that deriving from the fault or
neglect of Tenant, assignees, subtenants, its agents, employees or
other persons under its or their direction or control) which Tenant
might otherwise have for any damage to the Building or the Demised
Premises by fire, other casualty or cause which Landlord could have
covered by a standard fire insurance policy with extended coverage
endorsement. The term "Tenant" as used in this paragraph shall
include any subsidiary of Tenant and any assignee or subtenant of
Tenant.
Landlord shall insure the Building against fire or other casualty with
extended coverage endorsement with an insurance company selected by
Landlord and Landlord shall cause the policy evidencing such insurance
to include provision permitting such release of liability if such a
provision is obtainable from such insurer at no additional expense to
Landlord. If such insurer will not include such a provision in such
policy, or if the inclusion of such provision in such policy would
involve an additional expense for Landlord, Landlord shall so notify
Tenant within a reasonable time. Where such a provision is obtainable
from such insurer and Tenant notifies Landlord in writing within a
reasonable time thereafter that Tenant desires Landlord to cause such
a provision to be included in such policy at the expense of Tenant,
Landlord shall cause such a provision to be included, and Tenant
agrees to pay promptly all expenses incurred by Landlord as a result
of such inclusion.
19. DAMAGE
In the event that the Building or Premises are damaged for any reason
whatsoever and Tenant is unable, in Tenant's reasonable business
judgement, to carry on its normal business operations for a period of
forty five (45) days or more, Tenant's shall have the right to
terminate this Lease by giving written notice of such termination to
the Landlord no later than thirty (30) days after the occurrence of
such damage. Upon such termination, Tenant's obligations hereunder
and each of them, including the obligation to pay rent, shall cease
and determine as of the day the Premises were so damaged. If in
Tenant's reasonable business judgement, it is unable to carry on its
normal business operations for a period of less than forty five (45)
days because of such damage, rent shall xxxxx (or any free rent period
provided for in Paragraph 3 hereof shall be extended) for the period
the Premises are untenantable.
In the event the Premises are partially damaged by fire or other
casualty and Tenant shall determine that it is able to carry on its
normal business operations, Tenant shall pay rent for only such
portion of the Premises which Tenant in its determination may
reasonably occupy during the time required to make repairs. All
repairs necessary to restore the Premises to its original condition
shall be:
(a) commenced within thirty (30) days after the occurrence of such
damage;
(b) performed in a diligent and workmanlike manner with material
of at least the same quality utilized originally in the
construction of the Premises;
(c) completed by Landlord at Landlord's sole expense with a
minimum of interference with Tenant's normal business
operations.
If in Tenant's determination Landlord shall not have performed any of
the above obligations in strict compliance therewith, then Tenant may,
but shall not be required to, undertake such obligations, and all
costs and expenses incurred by Tenant as a result thereof may be
deducted from any rent or other payment due or to become due
hereunder.
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20. CONDEMNATION
In the event the Building or the Complex shall be condemned for public
use or voluntarily transferred to a public or quasi-public body in
lieu of proceeding to a judgment of condemnation, this Lease shall
terminate and rent shall be adjusted to the date of termination. In
the event a portion of the Building or the Complex shall be condemned
for public use or voluntarily transferred to a quasi-public body in
lieu of proceeding to a judgment of condemnation and Tenant is unable,
in Tenant's reasonable business judgement, to carry on its normal
business operations for a period of forty five (45) day's or more,
Tenant-shall have the right to terminate this Lease by giving written
notice of such termination to the Landlord no later than thirty (30)
days after the occurrence of such condemnation or transferal. Upon
such termination, Tenant's obligations hereunder and each of them,
including the obligation to pay rent, shall cease and determine as of
the date of termination. If in Tenant's determination, it is unable
to carry on its normal business operations for a period of less than
forty five (45) days because of such partial condemnation, rent shall
xxxxx for the period the Premises are untenantable.
In the event a portion of the Building or Complex shall be condemned
for public use or voluntarily transferred to a public or quasi-public
body in lieu of proceeding to a judgment of condemnation, and Tenant
shall determine that it is able to carry on its normal business
operations, Tenant shall pay rent for only such portion which Tenant
in its determination may reasonably occupy after such partial
condemnation or transfer. All repairs necessary to restore the
Demised Premises, Premises, Building or the Complex as nearly as
possible to its original condition shall be:
(a) commenced within thirty (30) days after the taking or
transfer;
(b) performed in a diligent and workmanlike manner with material
of at least the same quality utilized originally in the
construction of the Building or Complex.
(c) completed by Landlord at Landlord's sole expense with a
minimum of interference with Tenant's normal business
operations.
If in Tenant's determination Landlord shall not have performed any of
the above obligations in strict compliance therewith, then Tenant may,
but shall not be required to, undertake such obligations, and all
costs and expenses incurred by Tenant as a result thereof may be
deducted from any rent or other payment due or to become due
hereunder. Tenant is hereby granted a lien upon any award or
settlement resulting from the condemnation to the extent that Tenant
has not been reimbursed for any cost or expense which Tenant may have
incurred hereunder.
Except as provided in the paragraph immediately preceding, Tenant
shall not be entitled to any award or settlement resulting from the
condemnation, provided that nothing contained herein shall be
construed to in any way restrict or limit Tenant from asserting a
claim for any damages resulting from the taking of any leasehold
improvements paid for by Tenant or moving expenses incurred as a
result of such condemnation.
21. DEFAULT BY TENANT
The occurrence of any one or more of the following events shall
constitute an event of default by Tenant:
(a) the failure by Tenant to make any payment of rent or any
other payment required to be made by Tenant hereunder, as and
when due, where such failure shall continue for a period of ten
(10) days after receipt of written notice thereof by Tenant
from Landlord;
(b) the failure by Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease where such
failure shall continue for a period of thirty (30) days after
receipt of written notice thereof by Tenant from Landlord,
provided, however, that if the nature of Tenant's default is
such that it cannot be cured solely by payment of money and
that more than thirty (30) days may be reasonably required for
such cure, then Tenant shall not be deemed to be in default if
Tenant shall commence such cure within such thirty (30) day
period and shall thereafter diligently prosecute such cure to
completion;
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(c) (i) the making of any general arrangement or any
assignment by Tenant for the benefit of creditors;
(ii) the filing by or against Tenant of a petition to have
Tenant adjudged a bankrupt or a petition of
reorganization or arrangement under any law relating
to bankruptcy (unless, in the case of a petition
filed against Tenant, when such petition is dismissed
within ninety (90) days);
(iii) the appointment of a trustee or receiver to take
possession of substantially all of Tenant's assets;
(iv) the attachment, execution or other judicial seizure
of substantially all of Tenant's assets.
22. LANDLORD'S REMEDIES
Upon the occurrence of an event of default under this Lease by Tenant,
then Landlord in addition to other rights or remedies it may have,
shall have the right to terminate this Lease upon fifteen (15) days
written notice to Tenant, and also the right, with or without
termination of this Lease, of reentry upon and taking possession of
the Demised Premises and Landlord may remove all persons and property
from the Demised Premises; such property may be removed and stored in
any other place in the Building or in any other reasonably secure
place for the account of and at the expense and risk of Tenant.
Tenant hereby waives all claims for damages which may be caused by the
reentry of Landlord and taking possession of the Demised Premises or
removing or storing the furniture and property as herein provided and
shall save Landlord harmless from any costs or damages occasioned
Landlord thereby, and no such reentry shall be considered or be
construed to be a forcible entry. Should Landlord elect to reenter,
as herein provided, or should it take possession pursuant to legal
proceedings or pursuant to any notice provided for by law, Landlord
may either terminate this Lease or, Landlord may from time to time,
without terminating this Lease, relet the Demised Premises or any part
thereof for such term or terms and at such rental or rentals and upon
such other terms and conditions as may be reasonable, with the right
to make minor alterations and repairs to the Demised Premises. Rental
received by Landlord from such reletting shall be applied first, to
the payment of any costs of such reletting including reasonable
brokerage and attorney's fee; and the residue, if any, shall be held
by Landlord and applied in payment of future rent as the same may
become due and payable hereunder. Should such rentals received from
such reletting in any during month be less than one-twelfth (1/12) of
the annual rent reserve hereunder, then Tenant shall pay such
deficiency to Landlord. Such deficiency shall be calculated and paid
monthly. No such reentry or taking possession of the Demised Premises
by Landlord shall be construed as an election on its part to terminate
this Lease, unless written notice of such intention be given to
Tenant, in which event Tenant's obligations to Landlord shall
forthwith cease, or unless the termination thereof be decreed by a
court of competent jurisdiction.
23. DEFAULT BY LANDLORD
The occurrence of any one or more of the following events shall
constitute an event of default by Landlord:
(a) The failure by Landlord to make any payment required to be
made by Landlord hereunder, as and when due, where such
failure shall continue for a period of ten (10) days after
receipt of written notice thereof from Tenant to Landlord;
(b) The failure by Landlord to observe or perform any of the
covenants, conditions or provisions of this Lease where such
failure shall continue for a period of thirty (30) days after
receipt of written notice thereof from Tenant to Landlord;
provided however, that if the nature of Landlord's default is
such that it cannot be cured solely by payment of money and
that more than thirty (30) days may be reasonably required for
such cure, then Landlord shall not be deemed to be in default
if Landlord shall commence such cure within such thirty (30)
day period and shall thereafter diligently prosecute such cure
to completion.
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24. TENANTS REMEDIES
Upon the occurrence of an event of default under this Lease by
Landlord, then Tenant in addition to other rights or remedies it may
have, at Tenant's sole option, may set off any amount owed to Tenant
by Landlord against any rent or other payment due or to become due
hereunder or perform any obligations of Landlord (which Landlord has
failed to perform) in which event Tenant shall have the right to set
off any expense incurred thereby against any rent or other payment due
or to become due hereunder.
25. ADDITIONAL SPACE
Landlord hereby grants to Tenant the right to lease additional space
contiguous to the Demised Premises and any other location in Building
1 upon the following terms and conditions:
(a) No later than four (4) months prior to the time additional
space in Building 1 by Tenant, Tenant shall notify Landlord in
writing that Tenant elects to exercise this right.
(b) Within fifteen (15) days after Landlord receives such notice,
Landlord shall inform Tenant in writing the exact date
additional space shall be available for preparation by Tenant.
Provided that Tenant exercises this right Between months 1 and
12 inclusive of this original Term Landlord agrees to
contribute toward the preparation of additional space the same
sum of dollars per rentable square foot as was required
buildout Tenant's original improvements multiplied by the
number of additional rentable square feet. If however, Tenant
exercises this right between months 13 and 36 inclusive of
this original Term, Landlord agrees to only perform touch-up
painting and carpet cleaning for any additional rentable
square feet to be leased. All improvements required to be
made hereunder shall be of the same and/or similar quality
required to be furnished with respect to the completion of the
Demised Premises.
(c) The rent for any additional space shall be computed at the
same annual rate per square foot as the rent for the space
described in Paragraph 1 hereof and shall commence on the date
the additional space has been completed in accordance with (b)
above as the case may be.
(h) The term of the Lease for such additional space shall be the
balance of the term of this Lease and any additional term
thereof.
(i) Landlord shall provide Tenant with additional parking spaces
in the event Tenant elects to lease additional space in the
same ratio set forth in Paragraph 10 (h).
(j) All of the terms and conditions of this Lease not inconsistent
with this Paragraph 25 shall govern the leasing of any
additional space.
(k) Any space added to the Demised Premises pursuant to this
Paragraph 25 shall thereafter be deemed to be a part of and
included in the Demised Premises.
26. DOWNSIZE AND RETURN OF SPACE
DELETED IN ITS ENTIRETY
27. RIGHT OF FIRST REFUSAL TO PURCHASE
DELETED IN ITS ENTIRETY
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28. FIRST RIGHT TO LEASE
If, during the original or any additional term hereof, Landlord elects
to lease any space in Building 2 of Xxxxxxxx Xxxx Xxxxx, 0000
Xxxxxxxxx Xxxxx, then Landlord shall first offer such space in writing
to Tenant on terms and conditions no less favorable than those offered
to third parties. If within twelve (12) days after receipt of such
offer, Tenant does not notify Landlord that Tenant elects to lease
such space, then Landlord shall be relieved of any obligations to
Tenant with regard to any such offering; provided, however, that a
failure by Tenant to lease any specific space when so offered by
Landlord shall not relieve Landlord of its obligation to first offer
Tenant any other space in Building 2 if, as and when Landlord elects
to offer such other space to third parties.
29. RENT ABATEMENT
Should Tenant or those holding by, through or under Tenant not occupy
all or any portion of the Demised Premises for any period during the
term hereof or any additional term for any reason whatsoever, then
anything herein to the contrary notwithstanding, Landlord and Tenant
shall mutually agree to the percentage of the monthly rent for which
Tenant is or might be obligated to pay based on the previous 6 month
Operating Expense history for the Complex, and which the parties agree
constitutes the cost of providing the services set forth in Paragraph
10 shall xxxxx for as long as that portion of the Demised Premises are
not so occupied.
30. DELIVERY OF EXECUTED LEASE AND RELATED DOCUMENTS
Within fifteen (15) days after Tenant delivers to Landlord four (4)
duplicate originals of this Lease duly executed by Tenant, Landlord
shall deliver to Tenant two (2) fully executed originals of this Lease
accompanied by agreements in the Form of Exhibit "F" (Non-Disturbance
and Attornment Agreement) duly executed and acknowledged by and on
behalf of each mortgagee/beneficiary of deed of trust referred to in
Paragraph 13 hereof, and if requested by Tenant, a Memorandum of Lease
in the form of Exhibit "G" duly executed and acknowledged by and on
behalf of Landlord (said executed Lease, Non-Disturbance Agreement(s)
and Memorandum of Lease are together referred to herein as the Lease
and Related Documents"). In the event Landlord shall fail to deliver
the fully executed Lease and Related Documents as herein required,
Tenant may, if Tenant so elects, withdraw its execution and delivery
of this Lease by giving Landlord written notice of such withdrawal.
Upon such withdrawal neither party shall have any rights against the
other either hereunder or otherwise except that Landlord shall
forthwith return to Tenant any sums which Tenant shall have paid to
Landlord prior to such withdrawal.
31. TERMINATION
Landlord hereby grants to Tenant the right to terminate this Lease at
any time during the initial term upon one hundred and eighty (180)
days prior written notice to Landlord. In the event Tenant elects to
terminate the Lease as herein provided, Tenant shall pay to Landlord
an amount equal to thirty-five percent (35%) of the annual rental set
forth in Paragraph 3 hereof (as it may have been amended by Paragraphs
16, 25 and 26 hereof) from the date of termination through the balance
of the unexpired term of the Lease. Such payment shall be made on or
before the date such termination becomes effective.
32. COMPETITORS OF TENANT
DELETED IN ITS ENTIRETY
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33. NOTICES
All notices shall be sent U. S. Registered Mail, Return Receipt
Requested to the following addresses:
TO LANDLORD: TO TENANT:
Governor Park Associates Xerox Corporation
c/o Nexus Development Corp. Attention: RE/GSD Lease Administration
0000 Xxxxxxxxx Xx., Xxx. 000 000 Xxxx Xxxxx Xxxx
Xxx Xxxxx, XX 00000 X.X. Xxx 0000
Xxxxxxxx, Xxxxxxxxxxx 00000
WITH A COPY TO:
Xerox Corporation
Attention: Manager,
Real Estate Operations
Western United States
0000 X. 0xx Xx., Xxx. 000
Xxxxx Xxx, XX 00000
Any notice shall be deemed to have been given on the date set forth on
the Registry Receipt given to the sender at the time of mailing, except
that for purposes of Paragraphs 21 and 23 hereof, such notice shall be
deemed to have been received on the earlier of (a) the date set forth on
the Return Receipt, (b) the date of delivery as shown on the Post Office
records, or (c) the date delivery was refused as shown on the Post
Office records.
Except as otherwise provided in this Lease, all correspondence to Tenant
with respect to this Lease or any of the provisions hereof shall be sent
to the addresses of Tenant set forth above, and any and all
correspondence sent to Tenant at the Demised Premises or any location
other than as stated herein, and any documents signed by Tenant at the
Demised Premises as a result thereof shall be null and void and of no
force and effect. Either party, by notice to the other, shall have the
right to change the address(es) for notice(s) to be sent to such party,
and to add or substitute entities to which a copy of any notice shall be
sent by the other party.
34. BROKERAGE
Landlord and Tenant acknowledge that XX. X. XXXXXX, OF XXXXX-XXXXX AND
COMPANY, is the real estate broker which brought about this lease
transaction, and Landlord shall pay the brokerage commission to such
broker pursuant to separate agreement. Landlord hereby indemnities
Tenant against the claims of any other broker arising from Landlord's
acts, and Tenant hereby indemnifies Landlord against the claims of any
other broker arising from Tenant's acts.
35. ESTOPPEL CERTIFICATE
Landlord and Tenant shall, at any time upon not less than twenty (20)
days prior written notice, execute and deliver to a prospective new
landlord, lender, or assignee or subtenant of Tenant, as the case may
be, a statement in writing (i) certifying that this Lease is unmodified
and in full force and effect (or if modified, stating the nature of such
modification and certifying that this Lease, as so modified, is in full
force and effect), (ii) the date to which the rent and other charges are
paid in advance, if any, and (iii) acknowledging that there are not, to
the party's knowledge, any uncured defaults or unfulfilled obligations
on the part of the other party hereunder, or specifying such defaults or
unfulfilled obligations if any are claimed.
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36. INDUSTRIAL DEVELOPMENT BONDS
Landlord covenants, warrants and represents that tax exempt Industrial
Development Bonds, sometimes referred to as Industrial Revenue Bonds
("I.R.B.s") were not used in financing the Complex or the Building. If it is
subsequently determined that tax exempt I.R.B.s were used in such financing,
Tenant shall have the right and option to terminate this Lease and thereafter
be relieved of all further liability hereunder.
In the event Landlord elects to finance the Complex or Building with tax
exempt I.R.B.s during the term (or any additional term) of this Lease and
Tenant occupies ten percent (10%) or more of the Building or Complex, then
Landlord shall promptly so notify Tenant and Landlord hereby indemnifies and
holds Tenant harmless from any loss by or claim against Tenant as a result of
such tax exempt I.R.B. financing, and Landlord hereby releases Tenant from
any liability to Landlord as a result of such tax exempt I.R.B. financing.
In addition, Tenant shall have the right and option to terminate this Lease,
as hereinabove provided.
37. ASBESTOS AND CONTAMINATION
Landlord covenants, warrants and represents that the Premises and the
Building are free of any friable asbestos containing materials and that any
non-friable asbestos containing materials in the Premises or the Building are
identified in Exhibit attached hereto.
-----
Landlord covenants, warrants and represents that to the best of its
knowledge, after thorough investigation, the Premises and the Building
(including the land thereunder) do not contain any environmental contaminants
("toxic contamination") of any kind (including PCBs, except for PCBs that are
totally contained within light fixtures and exterior transformers). At any
time during the term of this Lease, Tenant shall have the right and option,
at Tenant's expense, to investigate the Building for the presence of asbestos
and PCBs and to investigate the land for the presence of toxic contamination.
Landlord agrees to indemnify and hold Tenant harmless from any claims or
actions related to or arising out of any subsequent discovery of friable
asbestos or toxic contamination at the Premises or the Building (including
the land thereunder). In the event of such a finding, or in the event of any
breach of a covenant, warranty or representation by Landlord under this
paragraph, Tenant shall have the option of terminating this Lease without
penalty of any kind and be released from any liability under the Lease after
the date of such termination.
38. HOLDOVER
If Tenant shall remain in possession of the Demised Premises after expiration
of the original or any additional term hereof, Tenant's occupancy shall be a
month-to-month tenancy at 1.25 times the rental rate applicable to the last
month of the unexpired term and under all of the other terms, conditions and
provisions hereof except those pertaining to the term of the Lease. Landlord
hereby grants to Tenant the right to holdover for up to three (3) months.
39. SURRENDER
Upon any termination or expiration of this Lease, Tenant shall surrender the
Demised Premises in the same condition as existed at the commencement of the
term, except for normal wear and tear and damage caused by the elements,
casualty, or any other cause for which Tenant might not be liable, provided,
however, that Tenant shall have the option, but not the obligation, to remove
any or all of the improvements and alterations made to the Demised Premises by
Tenant or at Tenant's expense. Any damage to the Demised Premises resulting
from the removal of such improvements or alterations shall be repaired by
Tenant at Tenant's expense.
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40. ROOF-TOP ANTENNA
DELETED IN ITS ENTIRETY
41. MODIFICATION OF LEASE
The terms, covenants and conditions of this Lease may not be changed
orally but only by an instrument in writing signed by the party against
whom enforcement of the change is sought. The failure of either party
hereto to insist in any one or more cases upon the strict performance of
any term, covenant or condition of this Lease to be performed or
observed by the other party hereto shall not constitute a waiver or
relinquishment for the future of any such term, covenant or condition.
42. MEMORANDUM OF LEASE
Neither party shall record this Lease or any of the exhibits and/or
riders attached hereto, (except that Tenant may record the executed
Non-Disturbance and Attornment Agreement) but at the request of either
party, Landlord and Tenant shall enter into a "short form" or Memorandum
of Lease in recordable form, attached hereto as Exhibit "G" and made a
part hereof, which may be recorded and which shall set forth the
parties, the legal description of the land underlying the Building or
Complex, a description of the Demised Premises, the Commencement Date
and Expiration Date of the term of the Lease, and any options and/or
restrictions in this Lease desired to be included by either party.
43. PARAGRAPH CAPTIONS
Paragraph captions herein are for Landlord's and Tenant's convenience
only, and neither limit nor amplify the provisions of this Lease.
44. ENTIRE AGREEMENT
This Lease represents the entire agreement between Landlord and Tenant
and supercedes all prior agreements both written and oral. The terms,
covenants and conditions of this Lease shall be binding upon and shall
inure to the benefit of Landlord and Tenant and their respective
executors, administrators, heirs, distributees, legal representatives,
successors and assigns. The term "Tenant" as used in this Lease shall
include Xerox Corporation and any subsidiary (or any subsidiary of any
subsidiary) of Xerox Corporation.
45. CHOICE OF LAW AND INTERPRETATION
This Lease shall be governed by the law of the State in which the
Complex is situate. Should any provisions of this Lease require
judicial interpretation, it is agreed that the court interpreting or
construing the same shall not apply a presumption that the terms of any
such provision shall be more strictly construed against one party or the
other by reason of the rule of construction that a document is to be
construed most strictly against the party who itself or through its
agent prepared the same, it being agreed that the agents of all parties
hereto have participated in the preparation of this Lease.
46. ARBITRATION OF DISPUTES
All disputes between Landlord and Tenant with respect to Paragraph 16 of
this Lease, with respect to the determination of fair market value
rental rates, shall be decided by arbitration. Tenant shall have the
right, by giving written notice to Landlord, setting forth in detail the
nature of the dispute, to request arbitration. The dispute shall be
submitted to arbitration as follows:
Within fifteen (15) business days after delivery of the above notice,
each party (Landlord and Tenant) shall appoint a person to act as an
arbitrator in its behalf.
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Within five (5) business days thereafter, the two appointed arbitrators
shall jointly appoint a third arbitrator. The dispute shall be
arbitrated by said three arbitrators. A majority decision of the three
arbitrators shall control. All of the arbitrators shall be persons
having at least ten (10) years experience in dealing with the commercial
leases in office buildings within the City of San Diego, State of
California, and none shall have any interest in the Building or the
Complex or be or have been associated or affiliated with either Landlord
or Tenant.
In the event Landlord and Tenant, or the two arbitrators fail or refuse
to appoint an arbitrator within the time set forth herein, then either
party shall have the right to petition the senior judge (in terms of
years of service), of the United States District Court of the applicable
Federal District in which the Building is situated to appoint such
arbitrator and the arbitrator appointed by said judge shall serve in
said capacity.
NOTICE: BY INITIALLING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY
DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF
DISPUTES' PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY
CALIFORNIA LAW, AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO
HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALLING IN
THE SPACE BELOW, YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND
APPEAL, UNLESS SUCH RIGHTS ARE SPECIFICALLY INCLUDED IN THE 'ARBITRATION
OF DISPUTES' PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER
AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE
AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO
THIS ARBITRATION PROVISION IS VOLUNTARY. WE HAVE READ AND UNDERSTAND
THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS
INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION TO NEUTRAL
ARBITRATION.
[SIG] [SIG]
---------------------- --------------------
INITIALLED BY LANDLORD INITIALLED BY TENANT
47. EXHIBITS AND RIDERS
Attached hereto and made a part hereof are the following:
EXHIBIT A: COMPLEX
EXHIBIT B: DEMISED PREMISES
EXHIBIT B-1: PRELIMINARY SPACE PLAN
EXHIBIT C: PLANS AND SPECIFICATIONS
EXHIBIT D: LEASE TERM AGREEMENT
EXHIBIT E: CLEANING SCHEDULE
EXHIBIT F: NON-DISTURBANCE AND ATTORNMENT AGREEMENT
EXHIBIT G: MEMORANDUM OF LEASE
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of the
day and year first above written.
WITNESS: GOVERNOR PARK ASSOCIATES
a California Limited Partnership
By: /s/ XXXXXXX X. XXXXX
------------------------------- ---------------------------------
Xxxxxxx X. Xxxxx
Its: Managing Partner
(Landlord)
WITNESS: XEROX CORPORATION
[SIG] By: /s/ XXXX X. XXXXX
------------------------------- --------------------------------
Xxxx X. Xxxxx
Manager, Real Estate Operations
Western United States
(Tenant)
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EXHIBIT A
"COMPLEX"
[GRAPHIC]
20
EXHIBIT B
"DEMISED PREMISES"
Building I
0000 Xxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Suite 120
1st floor
[GRAPHIC]
21
EXHIBIT Bl
PRELIMINARY SPACE PLANS
23
22
EXHIBIT D
LEASE TERM AGREEMENT
AGREEMENT made and entered into the _________ day of ____________________ 19__,
by and between ______________________________, a corporation/partnership,
having its principal office at
__________________________________________________ (hereinafter referred to as
"Landlord"), and XEROX CORPORATION, a New York corporation, having its principal
office at 000 Xxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 (hereinafter referred
to as "Tenant"),
W I T N E S S E T H:
WHEREAS, by Lease (hereinafter called the "Lease") made the __________ day of
____________________, 19__, Landlord demised and leased unto Tenant
certain Demised Premises in a Building known as and/or located at
________________________________________ for a term of __________ (__________)
years commencing on __________ _____, 19__, and ending on __________ _____,
19__ unless sooner terminated or extended as provided therein, and
WHEREAS, the Tenant did not enter into occupancy of the Demised Premises until
__________ _____, 19__ and
WHEREAS, pursuant to Exhibit C of the Lease, Landlord and Tenant now desire to
set forth the correct Commencement Date of the term and to adjust the
Expiration Date of the term to provide for a full term of the Lease of
____________________ (__________) years,
NOW, THEREFORE, Landlord and Tenant do hereby agree as follows:
1. The term of the Lease commenced on ____________________, 19__
and shall continue until ______, 19__ unless sooner terminated or
extended as provided therein.
2. Except as hereby amended, the Lease shall continue in full force and
effect.
3. This agreement shall be binding on the parties hereto, their heirs,
executors, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be duly
executed as of the day and year first above written.
Witness:
____________________ By:____________________
(Landlord)
Witness: XEROX CORPORATION
____________________ By:____________________
(Tenant)
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EXHIBIT E
CLEANING SCHEDULE
NIGHTLY
(between the hours of 6:00 p.m. and 6:00 a.m., Monday through Friday, Legal
Holidays excepted).
1. Clean lavatories as follows:
(a) Sweep and wash floors, using an odorless disinfectant in wash
water.
(b) Wash and polish all mirrors, powder shelves, bright work, and
enamel surfaces.
(c) Thoroughly scour, wash and disinfect all basins, bowls, and
urinals.
(d) Wash and disinfect all toilet seats, both sides.
(e) Wash all partitions, tile walls, towel, paper, and sanitary
napkin dispensers, and receptacles, as required.
(f) Empty and clean paper towel and sanitary disposal receptacles.
(g) Fill toilet tissue holders, soap dispensers and towel
dispensers, materials to be furnished by Landlord janitorial
service.
2. Empty and clean all waste receptacles, ashtrays and sand urns.
Utilize plastic bag liners in all waste receptacles.
3. Wash, clean and disinfect all water fountains and water coolers.
4. Hand dust all office furniture and fixtures, shelves, xxxxx and other
dust collecting surfaces.
5. Remove all rubbish and trash from premises.
6. Vacuum all rugs and carpeting and remove any spots or stains.
7. Dust mop all uncarpeted areas, using treated mops and damp mop, as
necessary to remove any stains or spills.
8. Damp mop floors in entrance foyers, elevator lobbies, and
public corridors, if applicable.
9. Wet sponge wipe table tops in employee lounge, including cleaning
of any spills, if applicable.
10. During nightly tour, close all windows and blinds, extinguish lights,
lock doors and report any malfunctions.
11. Keep locker, storage and slop sink rooms in a clean and orderly
manner.
12. Keep sidewalks and parking areas clean and rubbish free.
WEEKLY
1. Damp mop and buff polish all uncarpeted areas.
2. Keep lawn and landscaping properly maintained, if applicable.
3. Wash all directory board, display, entry door, and side light glass, as
necessary.
4. Remove all finger marks and smudges from doors, partitions, woodwork,
window ledges and window mullions.
MONTHLY
1. All uncarpeted floor areas to be washed, waxed and machine polished.
2. Clean air conditioning grilles and filters as required.
3. High dusting:
(a) Dust in place all pictures, frames, charts, graphs and similar
wall hangings.
(b) Dust clean all vertical surfaces, such as walls, partitions,
doors, books and other surfaces not reached in nightly
cleaning.
(c) Dust clean all exposed pipes, air conditioning louvers, ducts
and other areas not reached in nightly cleaning.
(d) Dust clean all lighting fixtures.
(e) Vacuum all mini blinds.
4. Wash all windows inside and out as needed but in no event less than 2
times per year.
5. Wash, clean, and disinfect all lavatory vinyl.
ANNUALLY
1. Damp wipe all light fixtures, including lenses and fluorescent tubes.
2. Shampoo all rugs and carpeting.
If the above requirements are not properly complied with and the Demised
Premises and/or the Premises are not maintained in a satisfactory manner, the
Tenant may on 21 days notice to Landlord provide its own cleaning service and
deduct the cost thereof from the rental due Landlord.
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EXHIBIT F
NON-DISTURBANCE
AND
ATTORNMENT AGREEMENT
This AGREEMENT dated as of the __________ day of ____________________ 19
__________, by and between the ______________________________, having a mailing
address at ______________________________ (hereinafter referred to as
"Mortgagee") and XEROX CORPORATION, a New York Corporation, having a mailing
address at Xxxx Xxxxxx Xxx 0000, Xxxxxxxx, Xxxxxxxxxxx 00000 (hereinafter
referred to as "Tenant").
W I T N E S S E T H:
WHEREAS, Mortgagee is the holder of a first mortgage or deed of trust dated as
of the ____________________ and recorded on __________ in _______ __ County, in
an Official Record Book, __________ Page __________ on a certain building
located at ________________________________________; and
WHEREAS, Tenant entered into a Lease dated as of the __________ day of
____________________ 19 __________, with ________________________ (hereinafter
referred to as "Landlord") for ____________________ square feet in that certain
building described in the Lease (hereinafter referred to as "Building" and
Mortgagee and Tenant desire to confirm their understanding with respect to the
Lease and the rights of Tenant thereunder.
NOW THEREFORE, in consideration of One Dollar ($1.00) and other good and
valuable consideration each in hand paid to the other, the receipt and
sufficiency whereof is hereby acknowledged, Mortgagee and Tenant hereby
covenant and agree as follows:
1. Mortgagee agrees unless Tenant shall then be in default under the Lease
and the time to cure such default shall have expired that:
(a) When Tenant or any person claiming through or under Tenant is deemed
a necessary party by the court, such party may be so named or joined,
but such naming or joinder shall not otherwise be in derogation of
the rights of Tenant set forth in this Agreement; and
(b) Neither Tenant nor any person claiming through or under Tenant shall
be evicted from the Building, nor shall the leasehold estate or
possession of Tenant or any person claiming through or under Tenant
be terminated or disturbed, nor (except to the extent provided in
Paragraph 2 of this Agreement) shall any of the rights of Tenant
or any person claiming through or under Tenant, be affected in any
way by reason of any default or event of default under the Mortgage;
and in no case (except as provided in Paragraph 2 hereof) shall the
rights of Tenant under the Lease be diminished, reduced or adversely
affected in any way whatsoever by reason of any default or event of
default under, or foreclosure of, the Mortgage.
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EXHIBIT F
2. If, at any time Mortgagee (or any person, or such person's successors or
assigns, who acquired the interest of the Landlord under the Lease
through foreclosure action of the Mortgage or otherwise) shall succeed
to the rights of the Landlord under the Lease as a result of a default
or event of default under the Mortgage, and if the Tenant is not then in
default under the lease beyond the time permitted therein to cure such
default, the (i) Lease shall not terminate, (ii) Upon receipt by Tenant
of written notice of such succession of interest, Tenant shall attorn to
and recognize such person so succeeding to the rights of the Landlord
under the Lease (herein sometimes called "Successor Landlord") as
Tenant's Landlord under the Lease, upon the then executory terms and
conditions of the Lease and as hereinafter provided in this Paragraph 2,
and (iii) Successor Landlord shall accept such Attornment and recognize
Tenant as the Successor Landlord's Tenant under the Lease. Upon such
attornment and recognition, the Lease shall continue in full force and
effect as, or as if it were, a direct lease between the Successor
Landlord and Tenant upon all of the then executory terms, conditions and
covenants(including any right under the lease on the part of Tenant to
extend the term of the lease) as are set forth in the Lease and which
shall be applicable after such attornment and recognition.
3. Tenant confirms that the lien or priority of the Lease shall at all
times continue to be subject and subordinate to (a) the lien, security
title and security interests of the Mortgage and (b) any additional
financing of the Building or portions thereof provided by Mortgagee and
the liens, security titles and security interests of the documents
evidencing and securing such additional financing, and to any increases
therein or supplements thereto, it being understood that such
subrogation shall not derogate any of Tenant's rights, or Landlord's
obligations, under said Lease.
4. Tenant certifies that there are no defaults on the part of the Landlord
under the Lease known to Tenant, that the Lease is a complete statement
of the agreement of the parties thereto with respect to the letting of
the Building, that the Lease is in full force and effect and that all
conditions to the effectiveness or continuing effectiveness thereof
required to be satisfied at the date hereof have been satisfied.
5. Tenant will notify Mortgagee of any default of the Landlord under the
Lease which would entitle Tenant to cancel the Lease or xxxxx the rent
or additional rent payable thereunder, and agrees that notwithstanding
any provisions of the Lease, no notice of cancellation thereof shall be
effective unless Mortgagee has received the notice aforesaid and has
failed within thirty (30) days of the date thereof to cure the default,
or if the default cannot be cured within thirty (30) days, has failed to
commence and to diligently prosecute the curing of the default which
gave rise to such right of cancellation or abatement. All such notices
shall be in writing and shall be deemed to have been given when
deposited in the United States mail, registered, postage prepaid,
addressed as follows:
______________________________
______________________________
______________________________
______________________________
6. The provisions of this Agreement shall be self-operative and no further
instrument shall be necessary to effect the aforementioned attornment,
recognition and subordination. Nevertheless, in confirmation thereof,
Tenant shall execute and deliver an appropriate certificate to confirm
such attornment, recognition and subordination upon the request of
Mortgagee or any other party to whom Tenant herein agrees to attorn.
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EXHIBIT F
7. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
WITNESS:
____________________ BY:____________________
(TITLE)
(MORTGAGEE)
WITNESS: XEROX CORPORATION
____________________ BY:____________________
(TITLE)
(TENANT)
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EXHIBIT - G
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE dated, for reference purposes, the __________ day of
____________________, 19 __________, between _____________________ a ________
corporation/partnership, having its principal office at______________,
__________________________, __________________, hereinafter referred to as
"Landlord"), and Xerox Corporation, a New York corporation, having its principal
office at 000 Xxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 (hereinafter referred
to as "Tenant").
W I T N E S S E T H:
Landlord, in consideration of the rents, terms, agreements and conditions
contained in that certain lease between Landlord and Tenant dated the
__________ day of ____________________ 19 __________, leased to Tenant and
Tenant leased from landlord, the premises known as __________ and located in a
building (the "Building') located at _____________,__________ as more
particularly described in Exhibit A, attached hereto and made a part hereof,
under the following terms and conditions:
1. The term of the lease is for____________ years, commencing __________
_____, 19 _____ and ending on __________ _____, 19_____
2. Tenant has a right to extend the term of the lease for __________
(_____) successive additional terms of __________ (_____) years each.
3. Tenant has the option to expand the size of the premises leased from
Landlord by_________________ square feet.
4. Tenant has the option to downsize and return to Landlord,
approximately __________ square feet of space.
5. Tenant has the right of first refusal to purchase the building from
Landlord.
6. Tenant has the first right to lease additional space in the building.
7. Tenant has the right to terminate the lease on ___________________
(________) days prior written notice to Landlord.
8. Tenant has the right and option to participate in the net income of
the building in the net proceeds of refinancing, and in the net
proceeds of sale of the building.
This Memorandum of Lease is not a complete summary of the lease. Provisions in
this Memorandum shall not be used in interpreting the provisions of the lease.
In the event of conflict between this Memorandum and the lease, the lease shall
control.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Memorandum of
Lease as of the day and year first above written.
BY:_________________________
(Title)
(Landlord)
XEROX CORPORATION
BY:_________________________
(Title)
(Tenant)
28
EXHIBIT - G
STATE OF____________________
COUNTY OF___________________ SS:
On this ___________ day of ______________, 19__, before me personally
appeared, ______________________________, to me personally known, who, being by
me duly sworn did say that he is the___________________________________
of______________________________ and that the foregoing instrument was signed
in behalf of said corporation by authority of its board of directors and said
____________________ acknowledged said instrument to be the free act and deed
of said corporation.
______________________________
NOTARY PUBLIC
MY COMMISSION EXPIRES:__________
STATE OF____________________
SS:
COUNTY OF___________________
On this___________ day of________________, 19__, before me personally
appeared,______________________________, to me personally known, who, being by
me duly sworn did say that he is the ____________________ of Xerox Corporation
and that the foregoing instrument was signed in behalf of said corporation by
authority of its board of directors and said ________________ acknowledged said
instrument to be the free act and deed of said corporation.
______________________________
NOTARY PUBLIC
MY COMMISSION EXPIRES:__________
29
EXHIBIT - G
EXHIBIT A
LEGAL DESCRIPTION
30
This Rider is made a part of Lease dated December 20, 1991 for space at 0000
Xxxxxxxxx Xx., Xxx. 000, Xxx Xxxxx, Xxxxxxxxxx and in the event of conflict
between this Rider and the printed portion of said Lease, this Rider shall
prevail.
OPERATING EXPENSES, REAL ESTATE TAXES AND UTILITY COSTS ESCALATION RIDER
Landlord and Tenant each acknowledge that the rent specified in Paragraph 3
does not provide for changes in Operating Expenses, Real Estate Taxes, and
Utility Costs which may hereafter pertain to the Demised Premises or the
Building. Therefore, in addition to the rent (but not as additional rent)
Tenant shall pay Landlord its pro rata share of reasonable and customary
Operating Expenses, Real Estate Taxes and Utility Costs as hereinafter
provided:
(a) The term "OPERATING EXPENSES" shall include the following annual
expenses of Landlord for the operation and maintenance of the Complex
of which the Demised Premises are a part:
o janitorial expenses;
o premiums for fire and casualty insurance required to be carried by
Landlord pursuant to this Lease;
o cost of all maintenance and service agreements;
o cost of supplies and materials used in the operation and
maintenance of the Complex;
o employees directly and exclusively involved in the operation
and maintenance of the Building and the Complex;
o all costs and expenses (other than those of a capital nature) of
maintaining and repairing, paving and restriping, curbs,
walkways, landscaping and the common areas of the Building,
except in the event that during the last two (2) years of the
term or extended term, as the case may be, Landlord elects to
perform a single maintenance and repair project which causes
Operating Expenses to be increased during such year by more than
five percent (5%) over the previous years Operating Expenses,
then in such event Tenant's obligation to reimburse Landlord for
Operating Expenses during the year in which Landlord performed
such single maintenance and repair project shall be limited to a
maximum of five percent (5%) over the previous years costs for
Operating Expenses.
o normal maintenance of mechanical and electrical equipment,
including heating, ventilating, and air conditioning equipment
but excluding capital expenditures;
All expenses to be taken into account pursuant to this paragraph shall
be "net" only, and for such purpose shall be deemed reduced by the
amount of reimbursement, recoupment, payment, discount or allowance
received or receivable by Landlord in connection with such expenses.
The term "OPERATING EXPENSES" shall exclude the following annual expenses of
Landlord:
o the cost of any work or service performed or rendered exclusively
for any tenant, including Tenant, and the cost of making any
installation or alteration to the Building and Complex which under
generally accepted accounting principles are properly classified
as capital expenditures;
o premiums for public liability insurance;
o brokerage commissions or other fees and other costs incurred in
procuring tenants;
o management fees and administrative wages and salaries, including
executives and officers of Landlord;
o depreciation, franchise or income taxes imposed on Landlord;
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o advertising expenses;
o the cost of painting, repainting, decorating and redecorating for
any tenant, including Tenant, of the Building and the Complex;
o maintenance and repair of capital items not a part of the Building;
o the cost of installing, operating and maintaining any specialty
services, such as an observatory, broadcasting and/or
telecommunication facility, data processing facility, luncheon
club, retail store, sundries shop, newsstand, concession, athletic
or recreational club;
o the cost of correcting defects in the construction of the Premises,
Building and the Complex;
o the cost of any work or service performed for any tenant of the
Building and Complex (other than Tenant) to a greater extent
or in a materially more favorable manner than that furnished
generally to the tenants and other occupants;
o the cost of any items for which Landlord is reimbursed by
insurance, condemnation, refund, rebate or otherwise;
o the cost of any addition or additions to the Building or the
Complex after the Commencement Date of this Lease;
o the cost of any repairs made by Landlord pursuant to the Damage or
Condemnation paragraphs in the Lease;
o interest and amortization on any mortgage or deed of trust and any
rent paid on any ground or underlying lease;
o any costs representing an amount paid to an entity related to
Landlord which is in excess of the amount which would have
been paid in the absence of such relationship;
o payments for rented equipment, the cost of which equipment would
constitute a capital expenditure if the equipment were purchased;
o any expenses for repairs or maintenance which are covered by
warranties, guarantees and service contracts (excluding any
mandatory deductible);
o legal expenses arising out of the construction, operation, use,
occupation or maintenance of the Building or Land or the
enforcement of the provisions of any agreements affecting the Land
or Building, including without limitation this Lease;
o increases in premiums for insurance required to be carried by
Landlord pursuant to this Lease when such increase is
caused by use of the Building by Landlord or any other tenant of
Landlord which is hazardous on account of fire or otherwise, or
premiums for any insurance carried by Landlord which is not
required to be carried pursuant to this Lease.
o new items of maintenance or services for all tenants of the
Building not included in the Operating Expense Base Year Statement,
unless the Operating Expense Base Year Statement is revised to
include such new items of maintenance or services.
(b) The term "REAL ESTATE TAXES" shall mean the annual ad valorem taxes
levied against the Building and Complex of which the Demised Premises
are a part, by any authority having the direct power so to tax,
including any city, county, state, or federal government, or any school,
agricultural, transportation or environmental control agency, lighting,
drainage or other improvement district thereof. All expenses to be
taken into account pursuant to this paragraph shall be "net' only, and
for such purpose shall be deemed reduced by the amount of reimbursement,
recoupment, payment, discount or allowance received or receivable by
Landlord in connection with such expenses. The term "Real Estate Taxes"
shall not include any assessment for local improvements, license fee,
penalty, inheritance or estate tax, any tax on Landlord's right to rent
or other income from the Complex or on
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Landlord's business of leasing the Building, any penalty for delinquent
payment of taxes, increases in taxes arising from additions or
improvements to the Building or Complex (including leasehold improvements
made by or for other tenants made subsequent to the Building having been
assessed as a fully completed building), and increases in taxes due to a
reassessment of the Building and/or Complex due to Landlord's sale
thereof. In the event the Building and/or land or Complex is reassessed
(which term includes the current assessment being increased without
reassessment) and such reassessment is greater than the prior assessment,
then Landlord shall (a) promptly notify Tenant thereof, and (b) if in
Tenant's reasonable determination such reassessment is excessive and
Tenant so notifies Landlord, Landlord shall diligently protest such
reassessment. In the event Landlord fails so to notify Tenant, or to
contest the reassessment (as the case may be), then Tenant's obligation
to pay its share of Real Estate Taxes shall be computed by multiplying
the prior assessment by the then current tax rate.
(c) The term "UTILITY COSTS" shall include the following annual expenses of
Landlord for the operation and maintenance of the Building and the
Complex. Utility charges for water, electricity, sewerage, and gas, all
accrued and based on a calendar year operation. All expenses to be taken
into account pursuant to this paragraph shall be "net" only, and for such
purpose shall be deemed reduced by the amount of reimbursement,
recoupment, payment, discount or allowance received or receivable by
Landlord in connection with such expenses, whether from utilities or any
tenant in the Building.
(d) (1) The Base Year for Operating Expenses and Utility Costs shall
be the calendar year 1992. In the event the Building was not
one hundred percent (100%) occupied at the commencement of the
Base Year, then for purposes of establishing the Base Year
costs, the actual Operating Expenses and Utility Costs shall
be adjusted upward as if the Building were one hundred percent
(100%) occupied.
(2) The Base Year for "Real Estate Taxes" shall be the later of
(a) the annual tax levy year next following that in which the
Commencement Date occurs, and (b) the annual tax levy year
next following the date on which the Building was fully
assessed as a fully completed building (including all tenant
leasehold improvements).
(3) Upon the request of either Landlord or Tenant, Landlord and
Tenant agree to convert the Base Year and each succeeding
twelve (12) month period to a calendar year basis, the
computation in making such a conversion to be acceptable to
both Landlord and Tenant.
(e) Initially, Tenant's pro rata share shall be 6.77% calculated by
dividing the number of rentable square feet demised to Tenant (7,042
rentable square feet) by the number of rentable square feet in the
Building (103,977 rentable square feet). Tenant's pro rata share
shall be adjusted during the term of said Lease and any renewals
thereof by any increases or decreases in the square feet demised to
Tenant and by any increases in the square feet in the Building.
(f) Within ninety (90) days after the end of the Base Year and each
anniversary thereof, the Landlord shall deliver to Tenant in Stamford,
Connecticut (Attention: RE/GSD Lease Administration), a statement
setting forth the amounts of Operating Expenses, Real Estate Taxes,
and Utility Costs for the Base Year, and the amounts relative to the
then current year, together with an invoice showing the amounts of
increase or decrease for reimbursement. Copies of the accounting
statements used in the calculations and copies of receipted real
estate tax bills, shall be furnished with the statements and invoice
for reimbursement, and upon request by Tenant, Landlord shall submit
additional back-up data (including copies of receipted bills) to
permit Tenant to review such statement. Tenant or any authorized
agent of Tenant shall have the right, upon prior written notice, to
audit Landlord's books at any time with respect to the Base Year or
any subsequent year. Upon request by Tenant, Landlord shall submit a
statement signed by an officer (or partner, as the case may be) of
Landlord, setting forth the percentage of occupancy of the Building at
the Commencement of the Base Year.
(g) In the event the Complex contains buildings in addition to the
Building or land in excess of that required to support the Building,
parking and common areas for the Building, and Landlord is unable to
obtain a separate tax assessment of the Building, parking and common
areas, the Landlord shall make a reasonable allocation for the
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33
the entire Complex. Landlord shall also make such a reasonable
allocation of any Operating Expenses and Utilities Costs attributable to
the entire Complex. In both cases, Landlord shall submit to Tenant
sufficient back-up data as to the basis for such allocation to permit
Tenant to determine the reasonableness of the allocation. In the event
that Tenant disputes the reasonableness of either such allocation,
Landlord and Tenant agree to submit the determination of such allocation
to arbitration in accordance with the rules of the American Arbitration
Association.
(h) Tenant shall pay such reimbursement due, if any, within thirty (30) days
from receiving the remove statement, the required documentation and the
requested documentation. If Tenant shall dispute, in good faith, any
reimbursement item or other sum (other than Rent) claimed by Landlord
hereunder and Tenant shall give Landlord written notice specifying in
reasonable detail the basis for its dispute, Tenant may withhold payment
of the particular amount in dispute and shall not be deemed to be in
default hereunder by reason of withholding such amount unless and until
such dispute is determined adversely to Tenant and Tenant shall fail to
pay the withheld amount, or the portion thereof as shall be determined to
be payable to Landlord, within fifteen (15) days of the resolution of
such dispute. Tenant and Landlord shall proceed diligently to resolve
any such dispute by agreement or arbitration in accordance with the rules
of the American Arbitration Association.
(i) Tenant shall have the right but not the obligation to pay any
reimbursement due Landlord, as determined above, in twelve (12) equal
monthly payments at the same time and in the same manner as rent.
(j) If the first or final billing period during the term or any additional
term of this Lease for which reimbursement may be due, shall contain less
than twelve (12) months, the reimbursement under this Rider shall be
prorated.
(k) Landlord and Tenant stipulate and agree that of the rent set forth in
Paragraph 3 hereof, $0.55 per rentable square foot per month has been
allocated to the estimated cost of Operating Expenses, Real Estate Taxes
and Utility Costs. In the event the actual Operating Expenses, Real
Estate Taxes and Utility Costs per square foot for the Building or
Complex, as the case may be, for the Base Year or any subsequent year are
less than $0.55 per rentable square foot per month, then the Landlord
shall pay Tenant the difference multiplied by the number of square feet
then leased to Tenant. Landlord shall pay such amount to Tenant within
thirty (30) days from sending the above statement, the required
documentation and the requested documentation.
(1) Tenant's obligation to reimburse Landlord for monies, under this Rider,
shall be limited to a maximum of $0.66 per rentable square foot per month
of space under Lease to Tenant during any one year.
(m) Notwithstanding the foregoing provisions of this Rider, it is understood
and agreed that in the event Landlord fails to xxxx Tenant for any
amounts which may be due hereunder within four (4) months after the Base
Year or any anniversary thereof, then Tenant shall have no liability or
obligation to make such payment.
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AMENDMENT TO LEASE
This Amendment To Lease ("Amendment") is made and entered into this first day
of June, 1994 by and among Governor Park Associates, a California limited
partnership ("Landlord"), and XEROX Corporation, New York Corporation,
("Tenant"), with regard to that certain lease dated December 20, 1991
("Lease"), and the Rider to the Lease also dated December 20, 1991 for the
premises known as suite 120 of 0000 Xxxxxxxxx Xxxxx Xxx Xxxxx Xxxxxxxxxx.
Landlord and Tenant mutually agree to amend the Lease and Rider as follows:
XXXXXXX 0, XXXXXXXXX 0 xxxxx xx amended to read:....... "consisting of 7,042
rentable square feet (6,350 usable square feet) on the first floor and 4,152
rentable square feet (3,695 usable square feet) on the-second floor of building
1 and known as suite 120 and suite 250 respectively.
SECTION 2 shall be amended to read: .... ("Commencement Date"), and to end on
the 31st day of January, 2000.
SECTION 3 shall be amended to read: The initial monthly base rent for the
extended term shall be fully serviced and shall be in the amount of $13,096.68
during the first year of the extended lease term. The rent shall be paid in
advance on or before the first day of each month during the term hereof;
provided however, that if the term of this lease should commence on the date
other than the first day of the month, the first and last month's rent shall be
prorated. Beginning February 1, 1997 and annually thereafter, the rent shall
be increased by 4%, effective the first day of February.
SECTION 5 shall be amended to read: Landlord's Contractor shall construct
Tenant's interior improvements in accordance with plans and specifications
approved by the Tenant.
SECTION 10 (c) "SERVICES" shall be amended to read "All utility services. In
addition, Landlord shall furnish, at its sole cost and expense, all necessary
utilities including electricity to the common areas of the premises, including
the walkways, driveways and parking areas. Tenant shall pay costs of
separately metered electricity consumed within its suite.
SECTION 16 "LEASE EXTENSION" shall be deleted and amended to read:
LEASE EXTENSION
If this Lease shall not have been terminated pursuant to any provisions hereof,
then Tenant may, at Tenant's option, extend the term of this Lease for one (1)
successive additional term of
35
XEROX
Amendment to Lease
June 1, 1994
page two
three (3) years, commencing on the expiration of the original term, or the
immediately preceding additional term as the case may be. Tenant may exercise
such option by giving Landlord written notice at least six (6) months prior to
the expiration of the original term, as the case may be and in the event Tenant
has elected to exercise its option to lease additional space pursuant to
Paragraph 25, the option provided for herein shall include such additional
space. Upon the giving by Tenant to Landlord of such written notice the
compliance by Tenant with the foregoing provisions of this Paragraph 16, this
Lease shall be deemed to be automatically extended upon all the covenants,
agreements, terms provisions and conditions, set forth in this Lease, except
rental which:
(a) During the extension option shall be limited to the base rent then in
effect in the last year of the initial extended Lease term, and
(b) Upon execution of this extension option, Landlord shall repaint the
Demised premises with two (2) coats of prime quality paint; repainting shall be
performed in a workmanlike manner with a minimum of interference with Tenant's
normal business operations and replace all carpeting, with quality comparable
to the initial installation, in the Demised premises and in any adjoining
lobby/reception area, and
except for such terms and conditions as shall be applicable during any
additional term in connection with this Paragraph 16. If Tenant fails or omits
to so give to Landlord the first written notice referred to above, it shall be
deemed, without further notice and without further agreement between the
parties hereto, that Tenant elected not to exercise the options granted Tenant
pursuant to this Paragraph 16, to extend the term of this lease for additional
periods.
The term "month" as used in this paragraph shall mean (a) if the Expiration
Date is the last day of a calendar month, a calendar month, or (b) if the
Expiration Date is not the last day of a calendar month, the period between the
Expiration Date and the date in the preceding month which is one (1) day after
the date in the month of the Expiration Date, e.g., if the Expiration Date
falls on May 19, one (1) "month" prior thereto would be April 20 and two (2)
"months" prior thereto would be March 20.
36
XEROX
Amendment to Lease
June 1, 1994
page three
In the event this Lease is extended pursuant to the terms of this Paragraph 16,
then the BASE YEAR OR EXPENSE STOP that shall be used during any such extended
term shall be the amount of Operating Expenses, Real Estate Taxes and Utility
Costs required to be paid by Tenant pursuant to the terms of the Rider for the
twelve (12) month period immediately preceding the beginning of such extended
term (or the immediately preceding calendar year of the operating expense
payment period has been converted to a calendar year).
SECTION 31 "TERMINATION" shall be amended to read "Landlord hereby grants to
Tenant the right to terminate this lease at any time after January 31, 1998
upon one hundred and eighty (180) days prior written notice to Landlord. In
the event Tenant elects to terminate the lease as herein provided, Tenant
shall pay to Landlord an amount equal to thirty-five percent (35%) of the
annual rental set forth in paragraph 3 hereof (as it may have been amended by
Paragraphs 16, 25 and 26 hereof) from the date of termination through the
balance of the unexpired term of the lease. Such payment shall be made on or
before the date such termination becomes effective.
SECTION 34 is amended to read "Landlord and Tenant acknowledge that Xxxxxxxx
XxXxxxx of COMCORE-Colliers International represents the Tenant in this lease
transaction and Landlord shall pay the brokerage commission pursuant to a
separate agreement. Landlord hereby indemnifies Tenant against claims of any
Broker arising from this lease transaction.
THE RIDER TO THE LEASE DATED DECEMBER 20, 1991 AND MADE A PART THEREOF SHALL
HEREBY BE AMENDED AS FOLLOWS:
The term "Utility Costs" as utilized throughout this Rider is mutually
understood to mean common area utility costs as distinguished from separately
metered utilities within the Tenant's suite.
SECTION (d) (1) OF THE RIDER shall be amended to read "The Base Year for
Operating Expenses and Utility Costs shall be the Calendar year 1994." ......
37
XEROX
Amendment to Lease
June 1, 1994
page four
SECTION (e) OF THE RIDER shall be amended to read "Initially, Tenant's pro rata
share shall be 10.72% calculated by dividing the number of rentable square feet
demised to Tenant (11,194 rentable square feet) by the number of rentable
square feet in the complex (103,977 rentable square feet)" ....
SECTION (k) OF THE RIDER SHALL BE DELETED AND AMENDED TO READ, "Landlord and
Tenant stipulate and agree that of the rent set forth in Paragraph 3 hereof,
$0.325 per rentable square foot per month has been allocated to the estimated
cost of Operating Expenses, Real Estate Taxes and Common Area Utility Costs.
In the event the actual Operating Expenses, Real Estate Taxes, and Common Area
Utility Costs per Square foot for the Building or Complex, as the case may be,
for the Base Year or any subsequent year are less than $0.325 per rentable
square foot per month, then the Landlord shall pay Tenant the difference
multiplied by the number of square feet then leased to Tenant. Landlord shall
pay such amount to Tenant within thirty (30) days from sending the above
statement, the required documentation and the requested documentation.
SECTION (1) OF THE RIDER SHALL BE DELETED AND AMENDED TO READ, "Tenant's
obligation to reimburse Landlord for monies, under this Rider, shall be limited
to a maximum of $0.50 per rentable square foot per month of space under Lease
to Tenant during any one year.
ALL OTHER TERMS AND CONDITIONS OF THE LEASE SHALL REMAIN IN FULL FORCE AND
EFFECT.
WITNESS WHEREOF, Landlord and Tenant have duly executed this Amendment To Lease
as of the day and year first above written.
GOVERNOR PARK ASSOCIATES XEROX CORPORATION
/s/ XXXXXXX X. XXXXX /s/ XXXX X. XXXXX
------------------------ ----------------------
BY: XXXXXXX X. XXXXX BY: XXXX X. XXXXX
ITS: MANAGING PARTNER MANAGER, REAL ESTATE
(LANDLORD) OPERATIONS WESTERN
UNITED STATES (TENANT)
38
SECOND AMENDMENT TO OFFICE BUILDING LEASE
This Second Amendment dated January 31, 1995 will modify the office
building lease between Governor Park Plaza Associates, a California limited
partnership, as Landlord, and XEROX Corporation, a New York Corporation, as
Tenant, dated December 20, 1991, and amended June 1, 1994. In the event of
conflict between the terms and conditions of the Lease Agreement and this
Second Amendment, the terms and conditions of this Second Amendment shall
control.
XXXXXXX 0, XXXXXXXXX 0 xxxxx xx amended to read:..... "consisting of 14,727
rentable square feet (13,106 usable square feet) on the first floor of building
1 and known as suite 100 and 120."
SECTION 3 shall be amended to read: "The initial monthly base rent for the
extended term shall be fully serviced (except as provided in the Amendment to
Lease, Section 10) and shall be in the amount of $17,230.59 during the first
year of the extended lease term. The rent shall be paid in advance on or
before the first day of each month during the term hereof; provided however,
that if the term of this lease should commence on the date other than the first
day of the month, the first and last month's rent shall be prorated. Beginning
February 1, 1997 and annually thereafter, the rent shall be increased by 4%,
effective the first day of February."
The terms of this Second Amendment will become effective on March 1, 1995,
which is Tenant's estimated occupancy date of suite 100. On that same date, per
the terms of this Second Amendment as stated in Section 1 above, Tenant's lease
of the 4,152 square feet known as suite 240 will become void.
Landlord agrees to build-out suite 100 to mutually agreeable specifications.
Tenant agrees to pay for $3,169.50 of the costs to reconfigure suite 100.
ALL OTHER TERMS AND CONDITIONS OF THE LEASE SHALL REMAIN IN FULL FORCE AND
EFFECT.
WITNESS WHEREOF, Landlord and Tenant have duly executed this Second Amendment
to Lease as of the day and year first above written.
DOCUMENT SCIENCES CORPORATION,
GOVERNOR PARK ASSOCIATES A XEROX COMPANY
/s/ XXXXXXX X. XXXXX /s/ XXXX X. XXXXX
-------------------------- ------------------------------
BY: XXXXXXX X. XXXXX BY: XXXX X. XXXXX
ITS: MANAGING PARTNER ITS: CEO AND PRESIDENT
(LANDLORD)
39
FOURTH AMENDMENT TO OFFICE BUILDING LEASE
Fourth Amendment Dated January 30, 1997 to Office Building Lease Dated December
20, 0000 Xxxxxxx Xxxxxxxx Xxxx Associates, a California Limited Partnership, as
Landlord and Document Sciences Corporation, Identified in the Original Lease
Document as Xerox Corporation, a New York Corporation, as Tenant and Further
Amended June 1, 1994 (First Amendment), January 3, 1995 (Second Amendment)and
July 1, 1996 (Third Amendment) for That Certain Property Commonly Known as 0000
Xxxxxxxxx Xxxxx, Xxxxx 000, in the City of San Diego, County of San Diego, State
of California.
In the event of conflict between the terms and conditions of the Lease
Agreement, the First, Second and Third Amendments and this Fourth Amendment, the
terms and conditions of this Fourth Amendment shall control.
XXXXXXX #0, XXXXXXXXX #0, DESCRIPTION:
Section # 1, Paragraph #2 shall be amended to read in full: "The Leased Premises
for Tenant shall consist of Suite 100 consisting of approximately 14,727
rentable square feet in addition to Suite 200 also located in the 0000 Xxxxxxxxx
Xxxxx office building consisting of approximately 15,526 rentable square feet.
Additionally, this Lease shall include the Premises known as Suite 270 in the
0000 Xxxxxxxxx Xxxxx office building consisting of approximately 2,849 rentable
square feet. In total, the Leased Premises consists of approximately 33,102
rentable square feet."
SECTION #2, TERM:
The term shall be amended to read in full: "The Lease for the Premises as
outlined in Section # 1, Paragraph #2, Description, shall be modified to five
(5) years scheduled to commence on March 1, 1997 (hereinafter referred to as the
"Commencement Date") and to end on February 28, 2002 (hereinafter referred to as
the "Expiration Date"). Both dates inclusive, unless the term is extended
pursuant to Xxxxxxxxx # 00 as outlined in this Fourth Amendment."
SECTION #3, RENT:
Section #3 shall be amended to read in full: "The initial monthly base rent for
the extended term shall be fully serviced (except as provided in the Amendment
to Lease, Section #10) and shall increase according to the following schedule:
Months 1-12 $1.069 per rentable square foot per month
Months 13-24 $1.112 per rentable square foot per month
Months 25-36 $1.156 per rentable square foot per month
Months 37-48 $1.202 per rentable square foot per month
Months 49-60 $1.251 per rentable square foot per month
"The aforementioned rental schedule includes the Tenant contracting directly
with the local gas and electric and/or utility company for their separately
metered utilities."
SECTION #5, PREPARATION OF PREMISES:
Section #5 shall be amended to read in full: "Tenant shall, at Tenant's sole
cost and expense, perform all work and furnish all materials necessary to
complete any construction related to improving the subject Premises in
accordance with preliminary plans and specifications which shall be agreed to by
Landlord and Tenant. Such plans and specifications shall be deemed to be Exhibit
"B-1 " (Preliminary Space Plan) attached hereto and made a part hereof."
"Tenant, using Tenant's architect and engineer at Tenant's sole cost and
expense, shall prepare complete and final architectural and engineering drawings
and specifications
40
(hereinafter referred to as "AE&S Drawings") in accordance with those
preliminary plans and specifications submitted by Tenant and approved or deemed
approved by Landlord. The AE&S Drawings agreed to by Landlord and Tenant will be
the drawings provided to the general contractor for the construction of the
demised Premises. Such final AE&S Drawings shall be stamped as may be necessary
by a licensed engineer so that building permits and/or other required permits
may be obtained."
"Landlord and Tenant mutually agree that Tenant will contribute One Hundred
Sixty Thousand and No/100ths ($160,000.00) Dollars or Four and 83/100ths ($4.83)
Dollars per rentable square foot towards the construction of tenant improvements
within the subject Premises. In the event any portion of this One Hundred Sixty
Thousand and No/l00ths ($160,000.00) Dollars is not spent on the construction of
tenant improvements within the subject Premises, Landlord and Tenant further
agree that the rental schedule outlined in Section #3 above shall adjust. To the
extent that Tenant spends less than the full One Hundred Sixty Thousand and
No/l00ths ($160,000.00)Dollars, the rent shall be adjusted upwards. The monthly
upward adjustment will be calculated by adjusting the rent upwards by 2 for
every One and No/l00ths ($1.00) Dollar per square foot not spent. In other
words, if Tenant were to spend Three and 83/100ths
Fourth Amendment Dated January 30, 1997 to Office Building Lease Dated December
20, 0000 Xxxxxxx Xxxxxxxx Xxxx Associates, a California Limited Partnership, as
Landlord and Document Sciences Corporation, Identified in the Original Lease
Document as Xerox Corporation, a New York Corporation, as Tenant and Further
Amended June 1, 1994 (First Amendment), January 3, 1995 (Second Amendment) and
July 1, 1996 (Third Amendment) for That Certain Property Commonly Known as 0000
Xxxxxxxxx Xxxxx, Xxxxx 000, in the City of San Diego, County of San Diego, State
of California.
($3.83) Dollars per rentable square foot (One Hundred Twenty-Six Thousand Seven
Hundred Eighty and 66/100ths [$126,780.66] Dollars) instead of the full Four and
83/100ths ($4.83) Dollars per rentable square foot (One Hundred Sixty Thousand
and No/100ths [$160,000.00] Dollars) of additional tenant improvements, then the
One and No/100ths ($ 1.00) Dollar per rentable square foot of unspent monies
would equate to 2 cents per square foot per month that would be added to the
base monthly rent which then equals a base rent of $1.0869 per rentable square
foot per month plus utilities or Thirty-Five Thousand Nine Hundred Seventy-Eight
and 56/100ths ($35,978.56) Dollars per month."
SECTION #14, SUBORDINATION:
The attached Nondisturbance, Subordination & Attornment Agreement (Exhibit "F")
shall overrule Paragraph #14 of the original Lease.
SECTION #16, LEASE EXTENSION:
This Section shall be amended to read in full: "Provided Tenant is not in
default under the terms hereunder regarding the Premises outlined herein, then
Tenant may, at Tenant's option, extend the Lease for one (1) successive
additional term of five (5) years commencing on the expiration on the Extension
Term. Tenant shall be required to provide at least one hundred twenty (120) days
written notice prior to the expiration of the lease term. Tenant shall then
request from Landlord the "fair market rental rate" being charged in the
Building should the Tenant desire to extend the term of the Lease. In the event
Tenant rejects Landlord's definition of "Fair Market Rental Rate" and cannot
reach an acceptable agreement per the foregoing paragraphs in this Section,
then said option shall lapse. Tenant shall not be required to exercise said
option."
"The term "month" as used in this Paragraph shall mean (a) if the expiration
date is the last day of a calendar month, a calendar month, or (b) if the
expiration date is not the last day of a calendar month, the period between the
expiration date and the date in the preceding month which is one (1) day after
the date in the month of the expiration date, e.g., if the expiration date falls
on May 19, one (1) "month" prior thereto would be April 20 and two (2) "months"
prior thereto would be March 20."
"With respect to the lease extensions, the applicable "fair market rental rate"
shall be that rate charged for space of comparable size and condition in
comparable buildings, including the Building, located in the geography commonly
known as the Golden Triangle area of the City of San Diego, taking into
consideration the location, quality and age of
00
xxx xxxxxxxx, xxxxx xxxxx, xxxxxx of leasehold improvements (existing or to be
provided) including the amount spent by Tenant for leasehold improvements over
building standard in the Demised Premises, rental abatements, lease
takeover/assumptions, moving expenses and other concessions, term of lease,
extent of services to be provided, distinction between "gross" and "net" lease,
a base year or amount for escalation purposes "both operating costs and ad
valorem/real estate taxes" and the time the particular rental rate under
consideration becomes or is to become effective, or any other relevant term or
condition, including any allowances for leasehold improvements, thus, the "fair
market value" rental rate may be a rental rate with or without an allowance
and/or with or without various other concessions as set forth hereinabove."
"In the event Tenant disagrees with Landlord's determination of the fair market
rental rate, Tenant shall promptly so notify Landlord and Landlord and Tenant
shall thereupon negotiate in good faith to attempt to agree upon a mutually
acceptable fair market rental rate, but in the event agreement has not been
reached within thirty (30) days after Tenant's receipt of Landlord's Notice,
then Tenant shall have the option to demand arbitration as provided in Paragraph
46 of the Lease."
"If Tenant fails or omits to so give to Landlord the first written notice
referred to above, it shall be deemed, without further notice and without
further agreement between the parties hereto, that Tenant elected not to
exercise the options granted Tenant pursuant to this Paragraph 16 to extend the
term of this Lease for additional periods."
"Any additional improvements required at the time of renewal shall be negotiated
between Landlord and Tenant."
Fourth Amendment Dated January 30, 1997 to Office Building Lease Dated December
20, 0000 Xxxxxxx Xxxxxxxx Xxxx Associates, a California Limited Partnership, as
Landlord and Document Sciences Corporation, Identified in the Original Lease
Document as Xerox Corporation, a New York Corporation, as Tenant and Further
Amended June 1, 1994 (First Amendment), January 3, 1995 (Second Amendment) and
July 1, 1996 (Third Amendment) for That Certain Property Commonly Known as 0000
Xxxxxxxxx Xxxxx, Xxxxx 000, in the City of San Diego, County of San Diego, State
of California.
SECTION #34, BROKERAGE:
This Section shall be amended to read in full: "Landlord and Tenant acknowledge
that Xxxxx & Xxxxx represents Document Sciences Corporation (previously the
XEROX Corporation) and Landlord is represented by CB Commercial Real Estate
Group, Inc. in this lease transaction. Landlord and Tenant agree that all
commissions are to be paid by Tenant in lieu of rent in accordance with the
attached "Assignment of Rents". Landlord hereby indemnifies Tenant against the
claims of any other broker arising from Landlord's acts and Tenant hereby
indemnifies Landlord against the claims of any other broker arising from
Tenant's acts."
SECTION #47, EXHIBITS & RIDERS:
The following Exhibits shall be amended as follows:
1. The original Exhibits "B" and "B-1 " shall be replaced by the attached
Exhibit "B-1" " Tenant's preliminary Space Plan.
2. Exhibit "C" shall be deleted.
3. Exhibit "D" shall be deleted.
4. The original Exhibit "F" shall be replaced by the attached Exhibit "F"
Subordination, Attornment & Nondisturbance Agreement.
5. Exhibit "H" shall be known as the Master Lease.
6. Exhibit "I" shall be known as the Assignment of Rents Between Landlord,
Tenant and Xxxxx & Xxxxx.
7. Exhibit "J" shall be known as the Assignments of Rents Between
Landlord, Tenant and CB Commercial Real Estate Group, Inc.
42
SECTION (e) OF LEASE RIDER:
Section (e) of the Rider shall be amended to read in full: "Tenant's pro rata
share shall be 31.83%, calculated by dividing the number of rentable square feet
demised to Tenant (33,102 rentable square feet) by the number of rentable square
feet in the complex (103,977 rentable square feet)..."
ADDENDUM #1:
The attached Assignment of Rents marked Exhibit "I" and "J", respectively, are
attached hereto and made a part hereof Landlord and Tenant agree to abide by the
terms and conditions of said Assignment of Rent.
All other terms and conditions of the Lease shall remain in full force and
effect.
WITNESS WHEREOF, Landlord and Tenant have duly executed this Fourth Amendment to
Lease as of the day and year first above written.
LANDLORD TENANT
GOVERNOR PARK ASSOCIATES, DOCUMENT SCIENCES CORPORATION,
a California Limited Partnership IDENTIFIED IN THE ORIGINAL LEASE
DOCUMENT AS XEROX CORPORATION,
a New York Corporation
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxx
-------------------------- --------------------------
Xxxxxxx X. Xxxxx Xxxx X. Xxxxx
Title: Manager Title: CEO and President
Date: 2-25-97 Date: 2/20/97
EXHIBIT "B-1"
IMAGE NOT SHOWN
43
EXHIBIT "B-1"
IMAGE NOT SHOWN
44
EXHIBIT B-1
IMAGE NOT SHOWN
45
EXHIBIT B-1
IMAGE NOT SHOWN
46
EXHIBIT "B-2"
TENANT SPECIFICATIONS
GOVERNOR PARK PLAZA
DEMISING PARTITION (ONE HOUR SEPARATION)
8. 2 1/2", 25 gauge metal studs-24" on center.
9. 5/8" drywall one (1) layer each side of studs.
10. Height required from floor slab to underside of structure.
11. Partition taped smooth to receive two (2) coast of flat latex paint or
wall covering.
12. 2 1/2" batt insulation between studs for sound attenuation.
INTERIOR PARTITION (NON-RATED PARTITION):
1. 2 1/2", 25 gauge metal studs-24" on center.
2. 5/8" drywall one (1) layer each side of studs.
3. Height required from floor slab to ceiling grid -- 9'.
4. Partition taped smooth to receive two (2) coast of flat latex paint or
wall covering.
CORRIDOR DOOR ASSEMBLY COMMON AREAS ONLY 20 MIN. RATED ASSEMBLIES:
1. 3'0" X 8'10" X 1 3/4" solid core red oak rift cut veneer, 20 min.
labeled.
2. One (1) lockset-Falcon, lever type, mortise lock set with Finish: #26D.
3. One (1) door closer, handicap approved.
4. One (1) door stop floor mounted with Finish: #26D.
5. Frame to be one (1) hour rated with paint grade finish, Timely frame or
approved equal.
INTERIOR DOOR ASSEMBLY:
1. 3'0" X 8'10" X 1 3/4" solid core red oak rift cut veneer, 20 min.
labeled.
2. Timely frames factory hard bronze duranodic finish.
3. Two (2) pars 4" X 4" butts
4. One (1) latch set-Schlage 03, lever type, mortise latch set, Finish:
#626.
5. One (1) door stop wall mounted, Finish: #26D.
ELECTRICAL SERVICE:
1. One (1) sub-panel in each space, including a sub-feed to meter room.
2. One (1) HVAC disconnect/units.
2' X 4' FLUORESCENT LIGHT FIXTURES:
1. 2'X 4' with energy saving ballast and lamps, acrylic prismatic lens,
with hinged door, Lithonia or equal, 4 tube fixture.
2. Lamps to be included.
3. Conduit and hook-ups to existing J-box.
LIGHT SWITCH ASSEMBLY:
1. 20 amp specification grade, quiet type switches rated 110 and 208 volts
AC.
2. Furnish switches with ivory handles.
3. Where required, furnish two (2) pole, three (3) way and four (4) way
switches.
4. Plates shall be ivory, smooth plastic, specification grade, equal to
Sierra P-line.
ELECTRICAL WALL OUTLET:
1. 15 amp, two (2) pole, three (3) wire grounding type, specification
grade, rated 125 volts.
2. Conductors terminated in side screws.
3. Duplex.
4. Mounted vertically.
5. Ivory, smooth plastic, specification grade equal to Sierra P-line.
6. Outlet height at 15" AFF to bottom of rough-in box.
47
TELEPHONE WALL OUTLET:
1. Use 4" minimum square box with single plaster ring and pull string.
2. 3/4" metal conduit from outlet box to terminate above ceiling.
3. Cover plate with 3/8" xxxx hold, ivory, smooth plastic, specification
grade equal to Sierra P-line.
4. Outlet height at 15" AFF to bottom of rough-in box.
ACOUSTICAL CEILING:
1. 2' x 2' x 5/8" revealed edge, Xxxxxxxxx Cortega.
2. Chicago; white exposed ceiling grid, 800 series or equal.
3. Ceiling height to be 9'0" above concrete slab.
HEATING & AIR CONDITIONING DISTRIBUTION:
1. Furnish and install low pressure distribution duct work.
2. Furnish and install supply air registers.
3. Furnish and install return air grilles and return ducts.
4. Install thermostats on the walls.
5. Balance system in accordance with engineering plans and submit written
balance report.
6. Building "pre-zoned" in base building.
7. Allow for engineering and drawing plans.
FLOOR COVERING:
1. Carpet; Design Xxxxxx, New Tempest or Atlas Mayfair, color to be
selected by Tenant.
2. Glue direct.
3. VCT: Xxxxxxxxx Excelon
CARPET BASE:
1. 2 1/2" Xxxxx or Ropper Rubber carpet base.
PAINTING:
1. All paint to be Xxxxxx (colors to follow).
2. Minimum two (2) coast flat vinyl wall paint.
WINDOW TREATMENTS:
1. Vertical blinds, 3 1/2" PVC grey vanes.
48
EXHIBIT H
THIS LEASE, dated for reference purposes, the 20th day of December, 1991 between
Governor Park Plaza Associates a Limited Partnership, having its principal
office at 0000 Xxxxxxxxx Xxxxx, Xxx. 000, Xxx Xxxxx, Xxxxxxxxxx, and having a
Federal Tax Identification Number of #00-0000000 (hereinafter referred to as
"Landlord"), and XEROX CORPORATION, a New York corporation, having its principal
office at 000 Xxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 (hereinafter referred
to as 'Tenant').
WITNESSETH:
1. DESCRIPTION
Landlord has constructed a development on certain land, as shown on
Exhibit A attached hereto and made a part hereof (hereinafter referred
to as the "Complex"), which contains parking areas, common areas and
one or more buildings and/or future building sites, including Building
1 containing 61,808 rentable square feet, known as Governor Park Plaza
and located at 0000 Xxxxxxxxx Xxxxx in the City of San Diego, State of
California, 92122(herein after referred to as the "Building").
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
the following space in the Building, the space consisting of 7,042
rentable square feet (6,350 usable square feet) on the first floor of
Building 1 and known as Suite 120, as shown on Exhibit B attached
hereto and made a part hereof (hereinafter referred to as the "Demised
Premises'), together with the use in common with other tenants of the
Building of the hallways, corridors, lobby, lavatories, elevators,
stairways and other common areas and facilities of the Building
appurtenant thereto, and together with the sidewalks, driveways and
parking facilities provided for in Paragraph 10 (h) hereof (all
together hereinafter referred to as the "Premises").
[INITIAL STAMP OMITTED]
2. TERM
The term of this Lease is three (3) years, to scheduled to commence on
the first day of February, 1992 (hereinafter referred to as the
"Commencement Date"), and to end on the thirty first day of January,
1995 (hereinafter referred to as the "Expiration Date"), both dates
inclusive, unless the term be extended pursuant to Paragraph 16 or
Exhibit C hereof, or earlier terminated as provided herein.
3. RENT
The base monthly rental shall be fully serviced and shall be at the
rate of:
S0.80 per rentable square foot for months 1 through 12
S1.59 per rentable square foot for months 13 through 24,
S1.65 per rentable square foot for months 25 through 36,
to be paid in advance on or before the first day of each month during
the term hereof; provided however, that if the term of this Lease
should commence on the date other than the first day of the month, the
first and last month's rent shall be prorated.
4. USE
The Demised Premises may be used and occupied for general office
purposes, including by way of specification (but without limiting the
generality of the foregoing), offices, research and development,
training, customer service demonstration areas and computer areas.
Landlord covenants, warrants and represents that there are no
49
zoning ordinances or other prohibitions restricting or limiting the use
of the Demised Premises for the purposes herein specified. Should any
law, regulation or other governmental order restrict or limit Tenant's
use of the Demised Premises, then Tenant
50
may cancel this Lease upon written notice to Landlord within ninety
(90) days following that date upon which Tenant shall have become aware
of such law, regulation order and thereupon Tenant shall have no
further obligation to Landlord either hereunder or otherwise. In
addition, Tenant may use all or any part of the Demised Premises for
any lawful purpose then permitted by the zoning ordinances and the
certificate of occupancy.
Tenant may, if Tenant so elects, and for Tenant's sole use, install and
operate within the Demised Premises microwave ovens and install and
operate within the Demised Premises vending machines to dispense hot
and cold beverages, ice cream, candy, food and cigarettes; such
machines shall be maintained in a neat and sanitary condition and shall
comply with all applicable laws and ordinances.
5. PREPARATION OF PREMISES
Landlord shall, at Landlord's sole cost and expense perform all work
and furnish all materials necessary to complete the Demised Premises in
accordance with Preliminary Plans and Specifications which shall be
agreed to by Tenant and Landlord. Such plans and specifications shall
be deemed to be Exhibit B-1, attached hereto and made a part hereof.
Landlord, using Landlord's Architect and Engineer at Landlord's sole
cost and expense, shall prepare complete final Architectural and
Engineering drawings and Specifications (hereinafter referred to as
"AE&S Drawings") in accordance with those Preliminary Plans and
Specifications submitted by Tenant and approved, or deemed approved, by
Landlord. Landlord agrees to make revisions to the AE&S Drawings as
required by Tenant, at no additional cost to Tenant. The AE&S Drawing
agreed to by Tenant and Landlord on or before DECEMBER 26, 1991 will be
the drawings provided to Landlord's General Contractor for the
construction of the Demised Premises and such drawings shall be deemed
to be Exhibit C, attached hereto and made a part hereof. Such final
AE&S drawings shall be stamped, as may be necessary, by a licensed
Engineer so that Building Permits and/or other required Permits may be
obtained.
Landlord shall provide in the Demised Premises, in addition to the
Tenant Improvements herein described as Exhibit C, the following, all
in good condition and proper working order:
1. Ceiling grid: material and installation.
2. Ceiling tile: material only.
3. Building standard mini blinds: material and installation, on
all exterior and atrium windows.
4. Main HVAC System to include on the floor main supply and
return ductwork: Branch ducts and diffusers to the space are
not included in the shell.
5. Lighting installed in accordance with the building standard
plan.
6. Dry wall, tape and bed the interior of all exterior walls,
cores, demising walls, and all columns.
7. Provide electrical service to, and a distribution panel in,
the Demised Premises.
9. Landlord shall provide an allowance towards the purchase and
installation of a telephone communication system to include
telephone sets, telecommunication wiring and labor to install
to be specified by Tenant as detailed in Exhibit B-1, and such
allowance shall not exceed $12,000.00.
10. Landlord shall provide an allowance towards the purchase and
installation of computer network cabling and such allowance
shall not exceed S3,000.00.
12. Adequate preventive measures so as to eliminate or
substantially reduce noise and/or vibration from external
sources, such as vehicular or railroad traffic.
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13. Complete final architectural and engineering drawings and
specifications, stamped as may be necessary by a licensed
engineer and/or architect so that building and/or other
required permits may be obtained.
Landlord and Tenant acknowledge that Landlord may be performing work in
the Building simultaneously with Tenant's work, and Landlord and Tenant
agree to cooperate with each other in the conduct of their work,
recognizing the amount of space each party will be working on, in terms
of fairly allocating access to the freight elevator, truck loading dock
and like facilities.
If the Premises and Demised Premises are not so completed on or before
the Scheduled Commencement Date as hereinbefore set forth, then the
term of this Lease and the obligation of Tenant to pay rent shall not
commence until the Premises are completed pursuant to the foregoing
paragraph, and Landlord shall have given Tenant at least
fifteen(15)days written notice prior to the date the Premises are so
completed. In the event Landlord fails to so complete the Building and
the Premises for causes beyond Landlord's control, such as strikes,
governmental restrictions, and acts of God, then the Commencement Date
shall be postponed for the period of such delay, provided however, that
if the Landlord fails to so complete the Premises (for a cause either
within or beyond Landlord's control) on or before February 1, 1992,
then Tenant, at Tenants reasonable discretion may cancel this Lease by
giving written notice to Landlord and thereupon Tenant shall have no
further obligation to Landlord either hereunder or otherwise.
In the event the Demised Premises are not completed on or before the
Commencement Date for the reasons set forth in the preceding paragraph
permitting postponement of the Commencement Date, then Landlord and
Tenant promptly shall execute a document in the form attached hereto as
Exhibit D and made a part hereof, to establish the Commencement Date.
In the event the delay in the Commencement Date was caused by Tenant,
then the Expiration date shall be extended for a like period so as to
provide for the full term as set forth in Paragraph 2 hereof, but in
the event the delay in the Commencement Date was caused by force
majeure or by delay by the Landlord, then Tenant shall have the option
(a) to extend the Expiration Date by a like period so as to provide for
the full term as set forth in Paragraph 2 hereof, or (b) not to extend
the Expiration Date.
Tenant hereby designates XXXX X'XXXXXX as its representative with
authority to approve changes in design or construction, and to inspect
and approve workmanship and material. In all cases, his/her signature
shall be final and binding upon Tenant with respect to the authority
herein granted to him/her. All alternates either of additions or
deletions, agreed to between Landlord and Tenant must be in writing and
must be agreed to Tenant's representative to be binding. Tenant
reserves the right to designate an alternate representative by notice
to Landlord.
Landlord hereby guarantees that the work shall be free from defects for
a period of one (1) year from the completion date. Landlord shall at
Landlord's sole cost and expense, promptly correct any portion of the
work found to be defective during the one (1) year period, and any
other portion of the work damaged or destroyed in the course of such
correction.
Upon completion and acceptance of the Demised Premises, Landlord shall
if requested by Tenant at no expense to Tenant furnish Tenant with a
complete set of "As-Built" drawings setting forth all improvements to
the Demised Premises.
6. TELEPHONE EQUIPMENT
Landlord shall provide suitable non-exclusive space for installation of
Tenant's telephone relay cabinets, power panels and electric panels.
Such space will be in addition to the Demised Premises and shall be
provided at no additional cost to Tenant.
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7. MAINTENANCE AND REPAIRS
Landlord shall, at Landlord's sole expense, maintain and repair the
Premises and the Building in a first-class condition, with all systems
properly functioning. Upon notification by Tenant, Landlord shall
promptly repair any damage to or defect in the Premises and the
Building; provided however that if such damage is occasioned by fault
or neglect of the Tenant (except as provided in Paragraph 18 hereof)
and there shall not be effect at the time such occurred a policy or
policies of insurance insuring Landlord against any loss resulting from
such damage, then Tenant shall reimburse Landlord for the cost of
repairs, or if the proceeds of such insurance are insufficient to cover
the cost of such repairs, then Tenant shall reimburse Landlord the
difference between such cost and the proceeds which Landlord received.
8. ALTERATIONS
Tenant shall have the right to make such alterations and modifications
to the Demised Premises as Tenant may deem desirable provided such
non-structural alterations and modifications do not exceed $5,000.00
per occurrence. Should Tenant desire to make any alterations or
modifications which exceed $5,000.00 per occurrence or any structural
alterations or modifications, then Tenant agrees to first obtain
Landlord's consent, which consent shall not be unreasonably withheld or
delayed. Should Landlord fail to respond to Tenant's request within
five (5) days, the Landlord's consent shall be deemed given. All of
Tenant's construction to the Demised Premises shall be performed in a
good and xxxxxxx like manner in accordance with applicable building
codes, regulations and all other legal requirements. Any damage to the
Building resulting from such alterations or modifications shall be
repaired at Tenant's expense.
9. SIGNS AND BUILDING NAME
Tenant at Landlord's expense shall have the right to be listed on the
Building lobby directory, if any, and to have identification signs
outside of the Demised Premises, within the Building in conformance
with Landlord's approved signage plan for the Complex. Tenant at
Tenant's expense shall have the right to require to be installed and/or
removed in conformance with Landlord's approved signage plan for the
Complex, at Tenant's option, an illuminated or nonilluminated sign on
an exterior wall of the Building, and/or a monument sign, provided such
sign does not violate any governmental law, ordinance or regulation.
10. SERVICES
Landlord shall furnish the following installations and/or services to
Tenant at Landlord's cost and expense, all of which shall be adequate
for the intended use of the Premises and in conformity with that
finished in local first-class buildings of similar nature. These
services shall be provided between the hours of 7 a.m. to 6 p.m. on
normal business days, and 9 a.m. to 1 p.m. on Saturdays, except, all
equipment necessary to operate heating, ventilating and air
conditioning systems shall be operated sufficiently in advance and
during these hours so as to provide such services and all cleaning
services shall be provided before or after such hours.
(a) Elevator service, with a minimum of one elevator subject to call at
all times.
(b) Year round air conditioning system capable of producing and
maintaining the following conditions throughout the Demised Premises,
regardless of outside temperature.
(i) Temperature and Humidity - inside temperature to be
maintained at:
Summer: 74 degrees FDB +/- 2 degrees FDB relative
humidity 50% maximum.
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Winter: 72 degrees FDB +/- 2 degrees FDB relative
humidity 25% minimum.
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(ii) Temperature Control - areas having excessive heat
gain or heat loss or are affected by solar radiation
at different times of the day shall be independently
zoned and controlled so that the interior temperature
condition stipulated above can be maintained.
(iii) Air Movement - in conference rooms and toilet areas,
a mechanical ventral system shall be furnished to
provide for the exhausting of stale air and smoke as
well as providing a comfortable circulation of air.
(iv) Drafts, Noise and Vibration - the heating, air
conditioning and ventilating systems shall be free
from objectionable drafts, noise and vibration.
(v) Filtration - all air conditioned supply air shall be
adequately filtered so as to maintain a clean, dust
free, non-toxic and odorless environment.
(vi) Ventilation - the air conditioning system shall
supply not less than 25% of fresh air while in
operation. In toilets exhaust air quantities of at
least 50 cu. ft./minute for each water closet or
urinal or 2 cu. ft. per square foot of floor area,
whichever is greater, is to be provided.
(vii) Service and maintain an existing stand alone air
conditioner in the Demised Premises commonly known as
a CONTEMPO unit.
(c) All utility services. In addition, Landlord shall furnish, at
its sole cost and expense, all necessary utilities including
electricity, to the exterior common areas, including the
walkways, driveways and parking area.
(d) Adequate insect and vermin control.
(e) Adequate security services for the Premises and the Building
including fire and burglar alarm devices.
(f) Initial or first installation of lamps and/or bulbs as well as
future replacement, as required, of lamps and/or bulbs,
ballasts and starters to maintain a light level of 75 foot
candles at desk level.
(g) Landlord acknowledges that the availability of sufficient
parking is a material inducement to the entering into of this
Lease by Tenant. Landlord represents that it has sufficient
parking available to provide at no cost to Tenant and for
Tenant's exclusive use at least 3.9 paved parking spaces for
every 1,000 rentable square feet in the Demised Premises of
which 2 spaces shall be in the open parking area and shall be
marked exclusive to Tenant, all of which shall be no more than
100 feet from any public entrance to the Building. There shall
be a minimum of 350 square feet allocated for each parking
space including aisle and turnaround space.
(i) Landlord shall provide, at no expense to Tenant, cleaning
service, trash removal, and window washing for the Demised
Premises and the Premises in accordance with the Cleaning
Schedule marked Exhibit E and attached hereto and made a part
hereof.
Tenant acknowledges that any one or more of the services provided for
in Paragraph 10 hereof may be interrupted or suspended by reason of
accident, repair, alterations or improvements necessary to be made,
strikes, lockout, and except as hereinafter provided, Landlord shall
not be liable to Tenant therefore, provided however, that (a) Landlord
shall use its best efforts to restore such services as soon as
reasonably possible, (b) in the event such services is not restored
within ten (10) business days, whether or not through the fault of
Landlord, to the extent that
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Tenant cannot reasonably use all or any part of the Premises rent and
other charges shall xxxxx as to such part effective on the eleventh
(11) business day and continue abated until such service is restored,
and (c) in the event such interruption continues for thirty (30)
calendar days, whether or not through the fault of Landlord, then
Tenant shall have the right and option to cancel and terminate this
Lease, on ten (10) days written notice to Landlord, and thereafter
shall be relieved of all further liability under this Lease.
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11. REDECORATING
DELETED IN ITS ENTIRETY
12. COMPLIANCE WITH LAW
Landlord covenants that the Demised Premises, the Premises and the
Building, and the fixtures and appurtenances thereto (except those
installed by Tenant) do conform or that Landlord will promptly cause
them to conform to every applicable requirement of law or duly
constituted authority or the requirements of the carriers of all
insurance on or relating to the Demised Premises, the Premises or the
Building whether such insurance be furnished by Landlord or Tenant and
that Landlord will, at its sole risk and expense, at all times during
the term hereof promptly comply with all such requirements. The Tenant
shall comply with all applicable statutes, ordinances, rules and
regulations of federal, state and municipal governments and all
applicable rules and regulations of the Board of Fire Underwriters as
such statutes, ordinances, rules and regulations pertain to Tenant's
use of the Demised Premises.
Landlord shall also comply with all applicable city, county, state and
federal ordinances in effect from time to time with respect to
facilities for the handicapped in the Demised Premises, the Premises
and the Building.
13. LANDLORD'S TITLE, AUTHORITY AND QUIET ENJOYMENT
Landlord covenants and represents that it has good and marketable title
to the Building and the Complex, free and clear of all ground leases,
liens and mortgages or deeds of trust affecting Tenant's possession of
the Demised Premises, Tenants use of the Premises, or the rights
granted to Tenant hereunder, except: a mortgage/deed of trust dated Nov
2, 1987 from Landlord, as mortgagor, and NEW ENGLAND MUTUAL LIFE
INSURANCE COMPANY, A MASSACHUSETTS CORPORATION, as
mortgagee/beneficiary of deed of trust.
In the event this Lease or the leasehold estate created hereunder is
subject to the prior rights of any mortgagee/beneficiary of deed of
trust or ground lessor, then Landlord shall secure from such
mortgage/beneficiary of deed of trust or ground lessor a written
agreement in recordable form, in the form of Exhibit 'F',
Non-Disturbance and Attornment Agreement (executed and acknowledged by
and on behalf of such mortgagee/beneficiary of deed of trust, or ground
lessor), which provides, among other kings that Tenant, so long as
Tenant is not in default hereunder, may remain in possession of the
Demised Premises pursuant to the terms hereof and without diminution of
Tenant's rights should Landlord become in default with respect to such
mortgage or ground lease or should the Premises become the subject of
any action to foreclose any mortgage or to dispossess Landlord. Such
agreement shall be secured and furnished to Tenant at the same time
this executed Lease is delivered to Tenant.
Landlord covenants and represents that it has full and complete
authority to enter into this Lease under all of the terms, conditions
and provisions set forth herein, and so long as Tenant keeps and
substantially performs each and every term, provision and condition
herein contained on the part of Tenant to be kept and performed, Tenant
shall peacefully and quietly enjoy the Premises without hindrance or
molestation by Landlord or by any other person claiming by, through or
under Landlord.
14. SUBORDINATION
The priority of this Lease and the leasehold estate of Tenant created
hereunder are and shall be subject and subordinate to the lien of any
mortgage or ground lease, whether such mortgage is placed against the
fee or leasehold estate, which may now
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or hereafter affect the Building to all renewals, modifications,
consolidations, replacements and extensions thereof, and advances
thereunder, effective upon the date the mortgagee or ground lessor, as
the case may be, shall deliver to Tenant a written agreement in the
form of Exhibit "F", Non-Disturbance and Attornment
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Agreement (executed and acknowledged by and on behalf of the
mortgagee/beneficiary, of deed of trust, or ground lessor) in
recordable form which provides, among other things that Tenant, so long
as Tenant is not in default hereunder, may remain in possession of the
Demised Premises pursuant to the terms hereof and without any
diminution of the Tenant's rights should Landlord become in default
with respect to such mortgage or ground lease or should the Premises
become the subject to of any action to foreclose any mortgage or to
dispossess Landlord. Any fee which Landlord's lender or ground lessor
may charge for such agreement shall be paid by Landlord.
15. ASSIGNMENT AND SUBLETTING
Tenant shall have the right to assign this Lease or to sublease all or
any portion of the Demised Premises, with Landlords, consent which
consent shall not be unreasonably withheld or delayed. Should Landlord
fail to respond to Tenant's request within five (5) days Landlord's
consent shall be deemed given. Any such assignment or subletting shall
not relieve Tenant of its obligations hereunder.
In the event Tenant sells the operating unit which occupies the Demised
Premises to another company, then anything to the contrary in this
paragraph notwithstanding, Tenant shall have the right to assign this
Lease to such other company, but Tenant shall not thereby be released
liability under this Lease.
16. LEASE EXTENSION
If this Lease shall not have been terminated pursuant to any provisions
hereof and Tenant is not in default under the terms hereunder, then
Tenant may, at Tenant's option, extend the term of this Lease for one
(1) successive additional term of three (3) year, commencing on the
expiration of the original term, or the immediately preceding
additional term as the case may be, and in the event Tenant has elected
to exercise its option to lease additional space pursuant to Paragraph
25 the option provided for herein shall include such additional space.
At least nine (9) months prior to the expiration of the initial term or
any extended term, as the case may be, Tenant shall request from
Landlord the fair market rental rate being charmed in the Building,
should Tenant desire to extend the term of this Lease. At least eight
(8) months prior to the expiration of the initial or any extended term
Landlord shall notify Tenant, in writing, the applicable rental rate
for the next succeeding option period. Tenant may exercise such option
by giving Landlord written ,notice by the date which is the later to
occur of (a) six (6) months prior to the expiration of the original
term or the additional term, as the case may be, and (b) sixty (60)
days after receipt by Tenant of Landlord's notice of the applicable
rental rate, as herein above and (c) fifteen (15) days after the fair
market rental rate has been determined arbitration. Upon the giving by
Tenant to Landlord of such written notice and the compliance by of
Landlord and Tenant with the foregoing provisions of this Paragraph 16,
the term his Lease shall by deemed to be automatically extended upon is
the covenants, agreements, terms, provisions and conditions, set forth
in this Lease, except rental which
(a) During the first renewal term shall be limited to a maximum of
90% of the then fair market rental rate,
(b) Or if Tenant elects, the rental rate schedule shall be as
follows:
$1.65 per rentable square foot for months 36 through 48,
$1.70 per rentable square foot for months 49 through 60,
$1.75 per rentable square foot for months 61 through 72,
(c) Upon execution of this extension option, Landlord shall
repaint the Demised Premises with two (2) coats of prime
quality paint; repainting shall be performed in a workmanlike
manner with a minimum of interference with Tenant's normal
business operations and replace all carpeting, with a quality
comparable to the initial installation, in the Demised
Premises and in any adjoining lobby/reception area, and
except for such terms and conditions as shall be inapplicable during
any additional term or in connection with this Paragraph 16.
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The term "month" as used in this paragraph shall mean (a) if the
Expiration Date is the last day of a calendar month, a calendar month,
or (b) if the Expiration Date is not the last day of a calendar month,
the period between the Expiration Date and the date in the preceding
month which is one (1) day after the date in the month of the
Expiration Date, e.g., if the Expiration Date falls on May 19, one (1)
"month" prior thereto would be April 20 and two (2) 'months' prior
thereto would be March 20.
With respect to the lease extensions, the applicable 'fair market
rental rate' shall be that rate charged for space of comparable size
and condition in comparable buildings, including the Building, located
in the geography commonly known as the Golden Triangle area of the City
of San Diego, taking into consideration the location, quality and age
of the building, floor level, extent of leasehold improvements
(existing or to be provided) including the amount spent by Tenant for
leasehold improvements over building standard in the Demised Premises,
rental abatements, lease takeover/assumptions, moving expenses and
other concessions, term of lease, extent of services to be provided,
distinction between "gross" and "net" lease, a base year or amount for
escalation purposes "both operating costs and ad valorem/real estate
taxes" and the time the particular rental rate under consideration
becomes or is to become effective, or any other relevant term or
condition, including any allowances for leasehold improvements, thus,
the "fair market value" rental rate may be a dental rate with or
without an allowance and/or with or without various other concessions
as set forth hereinabove.
In the event Tenant disagrees with Landlord's determination of the fair
market rental rate. Tenant shall promptly so notify Landlord and
Landlord and Tenant shall thereupon negotiate in good faith to attempt
agree upon a mutually acceptable fair market rental rate, but in the
event agreement has not been reached within thirty (30) days after
Tenant's receipt of Landlord's Notice, then Tenant shall have the
option to demand arbitration as provided in Paragraph 46 hereof.
If Tenant fails or omits to so give to Landlord the first written
notice referred to above, it shall be deemed, without further notice
and without further agreement between the parties hereto, that Tenant
elected not to exercise the options granted Tenant pursuant to this
Paragraph 16 to extend the term of this Lease for additional periods.
17. TAXES, ETC.
Landlord shall pay all real estate taxes, assessments, water and sewer
rates and charges, and any other charges which may be levied, assessed
or charged against the payments to be Building and/or the Complex.
Landlord further make al require made under the terms of any mortgage
or deed of trust or ground lease which is now or hereafter a lien on
the Building or the Complex which is superior to this Lease and all
payments required to be made under any ground lease. Landlord shall
have a reasonable time to cure a default under the terms of the
mortgage or deed of trust, before constituting an event of default by
Landlord as hereinafter described in Paragraph 23 of this Lease.
18. INSURANCE AND WAIVER OF LIABILITY
Landlord shall provide, at its expense, throughout the term of the
Lease, comprehensive general liability insurance covering the Building
and the Premises, except when caused by the sole or Tenant's failure to
perform its obligations under this Lease evidencing such insurance
shall provide that same may not be without fifteen (15) days. prior
written notice to Tenant, and shall provide for a combined coverage of
bodily injury and property damage in an amount not less than Five
Million Dollars ($5,000,000). Such policy or policies shall be issued
by an insurance company licensed to do business in the state in which
the Building is situate. Upon Tenant's request, Landlord shall summit
to Tenant suitable evidence that the foregoing policy or policies are
in effect. Tenant shall provide, at its expense, throughout the term of
this Lease, comprehensive general liability insurance covering the
Building and the Premises when caused by the sole negligence of Tenant
or Tenants failure to perform its obligations under this Lease. The
policy or policies evidencing such insurance shall provide that same
may not be cancelled or amended without fifteen (15) days prior written
notice to Landlord,
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and shall provide for a combined coverage of bodily injury and property
damage in an amount not less than Five Million Dollars ($5,000,000).
Such policy or policy shall be issued by an insurance company licensed
to do business in the state in which the Building is situate. Upon
Landlord's request, Tenant shall submit to Landlord suitable evidence
that the foregoing policy or policies are in effect. Notwithstanding
the foregoing, Tenant may insure the foregoing risks under its blanket
policy, or elect to self-insure such risks.
Landlord, for itself and its insurers, hereby releases Tenant with
respect to any liability (including that deriving from the fault or
neglect of Tenant, assignee, subtenants, its agents, employees or other
persons under its or their direction or control) which Tenant might
otherwise have for any damage to the Building or the Demised Premises
by fire, other casualty or cause which Landlord could have covered by a
standard fire insurance policy with extended coverage endorsement. The
term "Tenant" as used in this paragraph shall include any subsidiary of
Tenant and any assignee or subtenant of Tenant.
Landlord shall insure the Building against fire or other casualty with
extended coverage endorsement with an insurance company selected by
Landlord and Landlord shall cause the policy evidencing such insurance
to include a provision permitting such release of liability if such a
provision is obtainable from such insurer at no additional expense to
Landlord. If such insurer will not include such a provision in such
policy, or if the inclusion of such provision in such policy would
involve an additional expense for Landlord, Landlord shall so notify
Tenant within a reasonable time. Where such a provision is obtainable
from such insurer and Tenant notifies Landlord in writing within a
reasonable time thereafter that Tenant desires Landlord to cause such a
provision to be included in such policy at the expense of Tenant,
Landlord shall cause such a provision to be included, and Tenant agrees
to pay promptly all expenses incurred by Landlord as a result of such
inclusion.
19. DAMAGE
In the event that the Building or Premises are damaged for any reason
whatsoever and Tenant is unable, in Tenants reasonable business
judgement, to carry on its normal business operations for a period of
forty five (45) days or more, Tenant shall have the right to terminate
this Lease by giving written notice of such termination to the Landlord
no later than thirty (30) days after the occurrence of such damage.
Upon such termination, Tenant's obligations hereunder and each of them,
including the obligation to pay rent, shall cease and determine as of
the day the Premises were so damaged. If in Tenant's reasonable
business judgement, it is unable to carry on its normal business
operations for a period of less than forty five (45) days because of
such damage, rent shall xxxxx (or any free rent period provided for in
Paragraph 3 hereof shall be extended) for the period the Premises are
untenantable.
In the event the Premises are partially damaged by fire or other
casualty and Tenant shall determine that it is able to carry on its
normal business operations, Tenant shall pay rent for only such portion
of the Premises which Tenant in its determination may reasonably occupy
during the time required to make repairs. All repairs necessary to
restore the Premises to its original condition shall be:
(a) commenced within thirty (30) days after the occurrence of such
damage;
(b) performed in a diligent and workmanlike manner with material
of at least the same quality utilized originally in the
construction of the Premises;
(c) completed by Landlord at Landlord's sole expense with a
minimum of interference with Tenant's normal business
operations.
If in Tenant's determination Landlord shall not have performed any of
the above obligations in strict compliance therewith, then Tenant may,
but shall not be requited to, undertake such obligations, and all costs
and expenses incurred by Tenant as a result thereof may be deducted
from any rent or other payment clue or to become due hereunder.
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20. CONDEMNATION
In the event the Building or the Complex shall be condemned for public
use or voluntarily transferred to a public or quasi-public body in lieu
of proceeding to a judgment of condemnation, this Lease shall terminate
any rent shall be adjusted to the date of termination. In the event a
portion of the Building or the Complex shall be condemned for public
use or voluntarily transferred to a quasi-public by of proceeding to a
judgment of condemnation and Tenant is unable, in Tenant's reasonable
business judgement, to carry on its normal business operator. A period
of forty five (45) days or more, Tenant shall have the right to
terminate giving written notice of such termination to the Landlord no
later than thirty (30) days after the occurrence of such condemnation
or transferal. Upon such a termination, Tenant's obligations hereunder
and each of them, including the obligation to pay rent, shall cease and
determine as of the date of termination. If in Tenant's determination,
it is unable to carry on its normal business operations for a period of
less than forty five (45) days because of such partial condemnation,
rent shall xxxxx for the period the Premises are untenantable.
In the event a portion of the Building or Complex shall be condemned
for public use or voluntarily transferred to a public or quasi-public
body in lieu of proceeding to a judgment of condemnation, and Tenant
shall determine that it is able to carry on its normal business
operations, Tenant shall pay rent for only such portion which Tenant in
its determination may reasonably occupy after such partial condemnation
or transfer. All repairs necessary to restore the Demised Premises,
Premises, Building or the Complex as nearly as possible to its original
condition shall be:
(a) commenced within thirty (30) days after the taking or
transfer;
(b) performed in a diligent and workmanlike manner with material
of at least the same quality utilized originally in the
construction of the Building or Complex.
(c) completed by Landlord at Landlord's sole expense with a
minimum of interference with Tenant's normal business
operations.
If in Tenant's determination Landlord shall not have performed any of
the above obligations in strict compliance therewith, then Tenant may,
but shall not be required to, undertake such obligations, and all costs
and expenses incurred by Tenant as a result thereof may be deducted
from any rent or other payment due or to become due hereunder. Tenant
is hereby granted a lien upon any award or settlement resulting from
the condemnation to the extent that Tenant has not been reimbursed for
any cost or expense which Tenant may have incurred hereunder.
Except as provided in the paragraph immediately preceding, Tenant shall
not be entitled to any award or settlement resulting from the
condemnation, provided that nothing contained herein shall be construed
to in any way restrict or limit Tenant from asserting a claim for any
damages resulting from the taking of any leasehold improvements paid
for by Tenant or moving expenses incurred as a result of such
condemnation.
21. DEFAULT BY TENANT
The occurrence of any one or more of the following events shall
constitute an event of default by Tenant:
(a) the failure by Tenant to make any payment of rent or any other
payment required to be made by Tenant hereunder, as and when
due, where such failure shall continue for a period of ten
(10) days after receipt of written notice thereof by Tenant
from Landlord;
(b) the failure by Tenant to observe or perform and of the
covenants, conditions or provisions of this Lease where such
failure shall continue for a period of thirty (30) days after
receipt of written notice thereof by Tenant from Landlord,
provided however that if the nature of Tenant's default is
such that
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it cannot be cured solely by payment of money and that more
than thirty (30) days may be reasonably required for such
cure, then Tenant shall not be deemed to be in default if
Tenant shall commence such cure within such thirty (30) day
period and shall thereafter diligently prosecute such cure to
completion;
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(c) (i) the making of any general arrangement or any
assignment by Tenant for the benefit of creditors;
(ii) the filing by or against Tenant of a petition to have
Tenant adjudged a bankrupt or a petition of
reorganization or arrangement under any law relating
to bankruptcy (unless in the case of a petition filed
against Tenant, when such petition is dismissed
within ninety (90) days);
(iii) the appointment of a trustee or receiver to take
possession of substantially all of Tenant's assets;
(iv) the attachment, execution or other judicial seizure
of substantially all of Tenant's assets.
22. LANDLORDS REMEDIES
Upon the occurrence of an event of default under this Lease by Tenant,
then Landlord in addition to other rights or remedies it may have,
shall have the right to terminate this Lease upon fifteen (15) days
written notice to Tenant, and also the right, with or without
termination of this Lease, of reentry upon and taking possession of the
Demised Premises and Landlord may remove all persons and property from
the Demised Premises; such property may be removed and stored in any
other place in the Building or in any other reasonably secure place for
the account of and at the expense and risk of Tenant. Tenant hereby
waives all claims for damages which may be caused by the reentry of
Landlord and taking possession of the Demised Premises or removing or
storing the furniture and property as herein provided and shall save
Landlord harmless from any costs or damages occasioned Landlord
thereby, and no such reentry shall be considered or be construed to be
a forcible entry. Should Landlord elect to reenter, as herein provided,
or should it take possession pursuant to legal proceedings or pursuant
to any notice provided for by law, Landlord may either terminate this
Lease or, Landlord may from time to time, without terminating this
Lease, relet the Demised Premises or any part thereof for such term or
terms and at such rental or rentals and upon such other terms and
conditions as may be reasonable, with the right to make minor
alterations and repairs to the Demised Premises. Rental received by
Landlord from such reletting shall be applied first, to the payment of
any costs of such relettinq including reasonable brokerage and
attorney's fee; and the residue, if any, shall be-held by Landlord and
applied in payment of future rent as the same may become due and
payable hereunder. Should such rentals received from such relenting
during any month be less than one-twelfth (1/12) of the annual rent
reserved hereunder, then Tenant shall pay such deficiency to Landlord.
Such deficiency shall be calculated and paid monthly. No such reentry
or taking possession of the Demised Premises by Landlord shall be
construed as an election on its part to terminate this Lease, unless
written notice of such intention be given to Tenant, in which event
Tenant's obligations to Landlord shall forthwith cease, or unless the
termination thereof be decreed by a court of competent jurisdiction.
23. DEFAULT BY LANDLORD
The occurrence of any one or more of the following events shall
constitute an event of default by Landlord:
(a) The failure by Landlord to make any payment required to be
made by Landlord hereunder, as and when due, where such
failure shall continue for a period of ten (10)days after
receipt of written notice thereof from Tenant to Landlord;
(b) The failure by Landlord to observe or perform any of the
covenants, conditions or provisions of this Lease where such
failure shall continue for a period of thirty (30) days after
receipt of written notice thereof from Tenant to Landlord;
provided however, that if the nature of Landlord's default is
such that it cannot be cured solely by payment of money and
that more than thirty (30) days may be reasonably required for
such cure, then Landlord shall not be deemed to be in default
if Landlord shall commence such cure within such
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thirty (30) day period and shall thereafter diligently
prosecute such cure to completion.
11
65
24. TENANT'S REMEDIES
Upon the occurrence of an event of default under this Lease by
Landlord, then Tenant in addition to other rights or remedies it may
have, at Tenant's sole option, may set off any amount owed to Tenant by
Landlord against any rent or other payment due or to become due
hereunder or perform any obligations of Landlord (which Landlord has
failed to perform) in which event Tenant shall have the right to set
off any expense incurred thereby against any rent or other payment due
or to become due hereunder.
25. ADDITIONAL SPACE
Landlord hereby grants to Tenant the right to lease additional space
contiguous to the Demised Premises and any other location in Building 1
upon the following terms and conditions:
(a) No later than four (4) months prior to the time additional
space in Building I by Tenant, Tenant shall notify Landlord in
writing that Tenant elects to exercise this right.
(b) Within fifteen (15) days after Landlord receives such notice,
Landlord shall inform Tenant in writing the exact date
additional space shall be available for preparation by Tenant.
Provided that Tenant exercises this right Between months 1 and
12 inclusive of this original Term Landlord agrees to
contribute toward the preparation of additional space the same
sum of dollars per rentable square foot as was required
buildout Tenant's original improvements multiplied by the
number of additional rentable square feet. If however, Tenant
exercises this right between months 13 and 36 inclusive of
this original Term, Landlord agrees to only perform touch-up
painting and carpet cleaning for any additional rentable
square feet to be leased. All improvements required to be made
hereunder shall be of the same and/or similar quality required
to be furnished with respect to the completion of the Demised
Premises.
(c) The rent for any additional space shall be computed at the
same annual rate per square foot as the rent for the space
described in Paragraph 1 hereof and shall commence on the date
the additional space has been completed in accordance with (b)
above as the case may be.
(h) The term of the Lease for such additional space shall be the
balance of the term of this Lease and any additional term
thereof.
(i) Landlord shall provide Tenant with additional parking spaces
in the event Tenant elects to lease additional space in the
same ratio set forth in Paragraph 10 (h).
(j) All of the terms and conditions of this Lease not inconsistent
with this Paragraph 25 shall govern the leasing of any
additional space.
(k) Any space added to the Demised Premises pursuant to this
Paragraph 25 shall thereafter be deemed to be a part of and
included in the Demised Premises.
26. DOWNSIZE AND RETURN OF SPACE
DELETED IN ITS ENTIRETY
27. RIGHT OF FIRST REFUSAL TO PURCHASE
DELETED IN ITS ENTIRETY
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28. FIRST RIGHT TO LEASE
If, during the original or any additional term hereof, Landlord elects
to lease any space in Building 2 of Xxxxxxxx Xxxx Xxxxx, 0000 Xxxxxxxxx
Xxxxx, then Landlord shall first offer such space in writing to Tenant
on terms and conditions no less favorable than those offered to third
parties. If within twelve (12) days after receipt of such offer, Tenant
does not notify Landlord that Tenant elects to lease such space, then
Landlord shall be relieved of any obligations to Tenant with regard to
any such offering; provided, however that a failure by Tenant to lease
any specific space when so offered by Landlord shall not relieve
Landlord of its obligation to first offer Tenant any other space in
Building 2 if, as and when Landlord elects to offer such other space to
third parties.
29. RENT ABATEMENT
Should Tenant or those holding by, through or under Tenant not occupy
all or any portion of the Demised Premises for any period during the
term hereof or any additional term for any reason whatsoever, then
anything herein to the contrary notwithstanding, Landlord and Tenant
shall mutually agree to the percentage of the monthly rent for which
Tenant is or might be obligated to pay based on the previous 6 month
Operating Expense history for the Complex, and which the parties a
agree constitutes the cost of providing the services set forth in
Paragraph 10 shall xxxxx for as long as that portion of the Demised
Premises are not so occupied.
30. DELIVERY OF EXECUTED LEASE AND RELATED DOCUMENTS
Within fifteen (15) days after Tenant delivers to Landlord four (4)
duplicate originals of this Lease duly executed by Tenant, Landlord
shall deliver to Tenant two (2) fully executed originals of this Lease
accompanied by agreements in the Form of Exhibit "F" (Non-Disturbance
and Attornment Agreement) duly executed and acknowledged by and on
behalf of each mortgagee/beneficiary of deed of trust referred to in
Paragraph 13 hereof, and if requested Tenant a Memorandum of Lease in
the form of Exhibit "G" duly executed and acknowledged by and on behalf
of Landlord (said executed Lease, Non-Disturbance Agreement(s) and
Memorandum of Lease are together referred to herein as the "Lease and
Related Documents"). In the event Landlord shall fail to deliver the
fully executed Lease and Related Documents as herein required, Tenant
may, if Tenant so elects, withdraw its execution and delivery of this
Lease by giving Landlord written notice of such withdrawal. Upon such
withdrawal neither party shall have any rights against the other either
hereunder or otherwise except that Landlord shall forthwith return to
Tenant any sums which Tenant shall have paid to Landlord prior to such
withdrawal.
31. TERMINATION
Landlord hereby grants to Tenant the right to terminate this Lease at
any time during the initial term upon one hundred and eighty (180) days
prior written notice to Landlord. In the event Tenant elects to
terminate the Lease as herein provided, Tenant shall pay to Landlord an
amount equal to thirty-five percent (35%) of the annual rental set
forth in Paragraph 3 hereof (as it may have been amended by Paragraphs
16, 25 and 26 hereof) from the date of termination through the balance
of the unexpired term of the Lease. Such payment shall be made on or
before the date such termination becomes effective.
32. COMPETITORS OF TENANT
DELETED IN ITS ENTIRETY
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33. NOTICES
All notices shall be sent U.S. Registered Mail, Return Receipt
Requested to the following addresses:
TO LANDLORD: TO TENANT:
Governor Park Associates Xerox Corporation
c/o Nexus Development Corp. Attention: RE/GSD Lease Administration
0000 Xxxxxxxxx Xx., Xxx. 000 000 Xxxx Xxxxx Xxxx
Xxx Xxxxx, XX 00000 X.X. Xxx 0000
Xxxxxxxx, Xxxxxxxxxxx 00000
WITH A COPY TO:
Xerox Corporation
Attention: Manager,
Real Estate Operations
Western United States
0000 X. 0xx Xx., Xxx. 000
Xxxxx Xxx, XX 00000
Any notice shall be deemed to have been given on the date set forth on
the Registry Receipt given to the sender at the time of mailing, except
that for purpose of Paragraphs 21 and 23 hereof, such notice shall be
deemed to have been received on the earlier of (a) the date set forth
on the Return Receipt, (b) the date of delivery as shown on the Post
Office records, or (c) the date delivery was refused as shown on the
Post Office records.
Except as otherwise provided in this Lease, all correspondence to
Tenant with respect to this Lease or any of the provisions hereof shall
be sent to the addresses of Tenant set forth above, and any and all
correspondence sent to Tenant at the Demised Premises or any location
other than as stated herein, and any documents signed by Tenant at the
Demised Premises as a result thereof shall be null and void and of no
force and effect. Either party, by notice to the other, shall have the
right to change the address(es) for notice(s) to be sent to such party,
and to add or substitute entities to which a copy of any notice shall
be sent by the other party.
34. BROKERAGE
Landlord and Tenant acknowledge that Xx. X. Xxxxxx, of Xxxxx-Xxxxx and
Company is the real estate broker which brought about this lease
transaction, and Landlord shall pay the brokerage commission to such
broker pursuant to separate agreement. Landlord hereby indemnifies
Tenant against the claims of any broker arising from Landlord's acts,
and Tenant hereby indemnifies landlord against the claims of any other
broker arising from Tenant's acts.
35. ESTOPPEL CERTIFICATE
Landlord and Tenant shall, at any time upon not less than twenty (20)
days prior written notice, execute and deliver to a prospective new
landlord, lender, or assignee or subtenant of Tenant, as the case may
be, a statement in writing (I) certifying that this Lease is unmodified
and in full force and effect (or if modified, stating the nature of
such modification and certifying that this Lease, as so modified, is in
full force and effect), (ii the date to which the rent and other
charges are paid in advance, if any, and (iii) acknowledging that there
are not, to the party's knowledge, any uncured defaults or unfulfilled
obligations on the part of the other party hereunder, or specifying
such defaults or unfulfilled obligations if any are claimed.
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36. INDUSTRIAL DEVELOPMENT BONDS
Landlord covenants, warrants and represents that tax exempt Industrial
Development Bonds, sometimes referred to as Industrial Revenue Bonds
("I.R.B.s") were not used in financing the Complex or the Building. If
it is subsequently determined that tax exempt I.R.B.s were used in such
financing, Tenant shall have the right and option to terminate this
Lease and thereafter be relieved of all further liability hereunder.
In the event Landlord Weds to finance the Complex or Building with tax
exempt I.R.B.s during the term (or any additional term) of this Lease
and Tenant occupies ten percent (10%) or more of the Building or
Complex, then Landlord shall promptly so notify Tenant and Landlord
hereby indemnities and holds Tenant harmless from any loss by or claim
against Tenant as a result of such tax exempt I.R.B. financing, and
Landlord hereby releases Tenant from any liability to Landlord as a
result of such tax exempt I.R.B. financing. In addition, Tenant shall
have the right and option to terminate this Lease, as herein above
provided.
37. ASBESTOS AND CONTAMINATION
Landlord covenants, warrants and represents that the Premises and the
Building are free of any friable asbestos containing materials and that
any non-friable asbestos containing materials in the Premises & the
Building are identified in Exhibit ___ attached hereto.
Landlord covenants, warrants and represents that to the best of its
knowledge after thorough investigation, the Premises and the Building
(including the land the under) do not contain any environmental
contaminants ("toxic contamination") of any kind (including PCBs,
except for PCBs that are totally contained within light fixtures and
exterior transformers). At any time during the term of this Lease,
Tenant shall have the right and option, at Tenants expense, to
investigate the Building for the presence of asbestos and PCBs and to
investigate the land for the presence of toxic contamination.
Landlord agrees to indemnify and hold Tenant harmless from any claims
or actions related to or arising out of any subsequent discovery of
friable asbestos or toxic contamination at the Premises or the Building
(including the land thereunder). In the event of such a finding, or in
the event of any breach of a covenant, warranty or representation by
Landlord under this paragraph, Tenant shall have the option of
terminating this Lease without penalty of any kind and be released from
any liability under the Lease after the date of such termination.
38. HOLDOVER
If Tenant shall remain in possession of the Demised Premises after
expiration of the original or any additional term hereof, Tenant's
occupancy shall be a month-to-month tenancy at 1.25 times the rental
rate applicable to the last month of the unexpired term and under all
of the other terms, conditions and provisions hereof except those
Retaining to the term of the Lease. Landlord hereby grants to Tenant
the right to holdover for up to three (3) months.
39. SURRENDER
Upon any termination or expiration of this Lease, Tenant shall
surrender the Demised Premises in the same condition as existed at the
commencement of the term, except for normal wear and tear and damage
caused by the elements, casualty, or any other cause for which Tenant
night not be liable, provided, however, that Tenant shall have the
option, but not the obligation, to remove any or all of the
improvements and alterations made to the Demised Premises by Tenant or
at Tenant's expense. Any damage to the Demised Premises result of such
improvements or alterations shall be repaired by Tenant at Tenant's
expense.
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40. ROOF-TOP ANTENNA
DELETED IN ITS ENTIRETY
41. MODIFICATION OF LEASE
The terms, covenants and conditions of this Lease may not be changed
orally but only by an instrument in writing signed by the party against
whom enforcement of the change is sought. The failure of either party
hereto to insist in any on or more cases upon the strict performance of
any term, covenant or condition of this Lease to be performed or
observed by the other party hereto shall not constitute a waiver or
relinquishment for the future of any such term, covenant or condition.
42. MEMORANDUM OF LEASE
Neither party shall record this Lease or any of the exhibits and/or
riders attached hereto, (except that Tenant may record the executed
Non-Disturbance and Attornment Agreement) but at the request of either
party, Landlord and Tenant shall enter into a 'short form' or
Memorandum of Lease in recordable form, attached hereto as Exhibit 'G'
and made a part hereof, which may be recorded and which shall set forth
the parties, the legal description of the land underlying the Building
or Complex, a description of the Demised Premises, the Commencement
Date and Expiration Date of the term of the Lease, and any options
and/or restrictions in this Lease cleared to be included by either
party.
43. PARAGRAPH CAPTIONS
Paragraph captions herein are for Landlord's and Tenant's convenience
only, and neither limit nor amplify the provisions of this Lease.
44. ENTIRE AGREEMENT
This Lease represents the entire agreement between Landlord and Tenant
and supersedes all prior agreements both written and oral. The terms,
covenants and conditions of this Lease shall be binding upon and shall
inure to the benefit of Landlord and Tenant and their respective
executors, administrators, heirs, distributes, legal representatives,
successors and assigns. The term "Tenant" as used in this Lease shall
include Xerox Corporation and any subsidiary (or any subsidiary of any
subsidiary) of Xerox Corporation.
45. CHOICE OF LAW AND INTERPRETATION
This Lease shall be governed by the law of the State in which the
Complex is situate. Should any provisions of this Lease require
judicial interpretation, it is agreed that the court interpreting or
construing the same shall not apply a presumption that the terms of any
such provision shall be more strictly construed against one party or
the other by reason of the rule of construction that a document is to
be construed most strictly against the party who itself or through its
agent prepared the same, it being agreed that the agents of all parties
hereto have participated in the preparation of this Lease.
46. ARBITRATION OF DISPUTES
All disputes between Landlord and Tenant with respect to Paragraph 16
of this Lease, with respect to the determination of fair market value
rental rates, shall be decided by arbitration. Tenant shall have the
right, by giving written notice to
70
Landlord, setting forth in detail the nature of the dispute, to request
arbitration. The dispute shall be submitted to arbitration as follows:
Within fifteen (15) business days after delivery of the above notice,
each party (Landlord and Tenant) shall appoint a person to act as an
arbitrator in its behalf.
16
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Within five (5) business days thereafter the two appointed arbitrators
shall jointly appoint a third arbitrator. The dispute shall be
arbitrated by said three arbitrators. A majority decision of the three
arbitrators shall control. All of the arbitrators shall be persons
having at least ten (10) years experience in dealing with commercial
leases in office buildings within the City of San Diego, State of
California, and none shall have any interest in the Building or the
Complex or be or have been associated or affiliated with either
Landlord or Tenant.
In the event Landlord and Tenant, or the two arbitrators fail or refuse
to appoint an arbitrator within the time set forth herein, then either
party shall have the right to petition the senior judge (in terms of
years of service), of the United States District Court of the
applicable Federal District in which the Building is situate, to
appoint such arbitrator and the arbitrator appointed by said judge
shall serve in said capacity.
NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY
DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE ARBITRATION OF
DISPUTES PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY
CALIFORNIA LAW, AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO
HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL BY INITIALING IN
THE SPACE BELOW, YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY
AND APPEAL UNLESS SUCH RIGHT ARE SPECIFICALLY INCLUDED IN THE
"ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO
ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO
ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL
PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES
ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES"
PROVISION TO NEUTRAL ARBITRATION.
/s/ MR /s/ MF
---------------------------- -----------------------------
Initialed by Landlord Initial by Tenant
47. EXHIBITS AND RIDERS
Attached hereto and made a part hereof are the following:
EXHIBIT A: COMPLEX
EXHIBIT B: DEMISED PREMISES
EXHIBIT B-1: PRELIMINARY SPACE PLAN
EXHIBIT C: PLANS AND SPECIFICATIONS
EXHIBIT D: LEASE TERM AGREEMENT
EXHIBIT E: CLEANING SCHEDULE
EXHIBIT F: NON-DISTURBANCE AND ATTORNMENT AGREEMENT
EXHIBIT G: MEMORANDUM OF LEASE
17
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of the
day and year first above written.
WITNESS: GOVERNOR PARK ASSOCIATES
a California Limited Partnership
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Xxxxxxx X. Xxxxx
Its: Managing Partner
(Landlord)
WITNESS: XEROX CORPORATION
-----------------------------------
By:/s/ Xxxx X. Xxxxx
-----------------------------------
Xxxx X. Xxxxx
Manager, Real Estate Operations
Western United States
(Tenant)
18
