AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
STANDARD INDUSTRIAL/COMMERCIAL SINGLE-TENANT LEASE - NET
(DO NOT USE THIS FORM FOR MULTI-TENANT BUILDINGS)
1. BASIC PROVISIONS ("BASIC PROVISIONS")
1.1 PARTIES: This Lease ("LEASE"), dated for reference purposes
only, September 24, 1999 is made by and between Xxxxx X. Xxxxxx, Trustee of the
X. X. Xxxxxx and Xxxxx X. Xxxxxx Trust UTA January 12, 1988, as amended
("Lessor") and Omnicell Technologies, Inc., a California corporation ("Lessee"),
(collectively the "PARTIES," or individually a "PARTY").
1.2 PREMISES: That certain real property, including all
improvements therein or to be provided by Lessor under the terms of this Lease,
and commonly known as 0000 XXXX XXXXXX XXXXXX, PALO ALTO, located In the County
of SANTA XXXXX, State of CALIFORNIA and generally described as (describe briefly
the nature of the property and, If applicable, the "Project," if the property is
located within a Project) A FREE STANDING BUILDING CONSISTING OF APPROXIMATELY
18,360 RENTABLE SQUARE FEET. ("Premises"). (See also Paragraph 2).
1.3 TERM: FIVE (5) years and - 0 - months ("ORIGINAL TERM")
commencing DECEMBER 15, 1999, ("COMMENCEMENT DATE") and ending DECEMBER 14, 2004
("Expiration Date"). (See also Paragraph 3)
1.4 EARLY POSSESSION: DECEMBER 8, 1999 ("EARLY POSSESSION DATE").
(See also Paragraphs 3.2 and 3.3)
1.5 BASE RENT: $41,310.00 per month ("BASE RENT"), payable on the
FIFTEENTH (15TH) day of each month commencing DECEMBER 15, 1999 - JANUARY 14,
2000. (See also Paragraph 4)
/X/ If this box Is checked, there am provisions in this Lease for the Base Rent
to be adjusted and/or for common area maintenance charges.
1.6 BASE RENT PAID UPON EXECUTION: $41,310.00 as Base Rent for the
period DECEMBER 15, 1999 - JANUARY 14, 2000.
1.7 SECURITY DEPOSIT: $41,310.00 ("Security Deposit"). (See also
Paragraph 5)
1.8 AGREED USE: SOFTWARE RESEARCH AND DEVELOPMENT, ADMINISTRATIVE
OFFICES, AND STORAGE (See also Paragraph 6)
1.9 INSURING PARTY: Lessor is the "Insuring Party" unless
otherwise stated herein (See also Paragraph 8)
1.10 REAL ESTATE BROKERS: (See also Paragraph 15)
(a) REPRESENTATION: The following real estate brokers
(collectively, the "Brokers") and brokerage relationships exist in this
transaction (check applicable boxes):
/ /___________________________represents Lessor exclusively ("Lessors Broker");
/ /___________________________represents Lessee exclusively ("Lessee's Broker");
or
/X/ CORNISH & XXXXX COMMERCIAL represents both Lessor and Lessee
("Dual Agency").
(b) PAYMENT TO BROKERS: Upon execution and delivery of
this Lease by both Parties, Lessor shall pay to the Broker the fee agreed to in
their separate written agreement (or if there is no such agreement, the sum of
______% of the total Base Rent for the Brokerage services rendered by said
Broker).
1.11 GUARANTOR. The obligations of the Lessee under this Lease are
to be guaranteed by N/A ("Guarantor). (See also Paragraph 37)
1.12 ADDENDA AND EXHIBITS. Attached hereto Is an Addendum or
Addenda consisting of Paragraphs 50 through 65 and Exhibits A , all of which
constitute a part of this Lease.
2. PREMISES.
2.1 LETTING. Lessor hereby leases to Lessee, and Lessee hereby
leases from Lessor, the Premises, for the term, at the rental, and upon all of
the terms, covenants and conditions set forth In this Lease. Unless otherwise
provided herein, any statement of size
set forth in this Lease, or that may have been used in calculating rental, is an
approximation which the Parties agree is reasonable and the rental based thereon
is not subject to revision whether or not the actual size is more or less.
2.2 CONDITION. Lessor shall deliver the Premises to Lessee broom
clean and free of debris on the Commencement Date or the Early Possession Date,
whichever first occurs ("START DATE"), and so long as the required service
contracts described in Paragraph 7.1(b) below are obtained by Lessee within
thirty (30) days following the Start Date, warrants that the existing
electrical, plumbing, fire sprinkler, lighting, heating, ventilating and air
conditioning systems ("HVAC"), loading doors, if any, and all other such
elements in the Premises, other than those constructed by Lessee, shall be in
good operating condition on said date and that the structural elements of the
roof, bearing walls and foundation of any buildings on the Premises (the
"BUILDING") shall be free of material defects. If a non-compliance with said
warranty exists as of the Start Date, Lessor shall, as Lessor's sole obligation
with respect to such matter, except as otherwise provided in this Lease,
promptly after receipt of written notice from Lessee setting forth with
specificity the nature and extent of such non-compliance, rectify same at
Lessees expense.
2.3 COMPLIANCE. Lessor warrants that the improvements on the
Premise comply with all applicable laws, convenants or restrictions of record,
building codes, regulations and ordinances ("APPLICABLE REQUIREMENTS") in effect
on the Start Date. Said warranty does not apply to the use to which Lessee will
put the Premises or to any Alterations or Utility Installations (as defined in
Paragraph 7.3 (a)) made or to be made by Lessee. NOTE: Lessee is responsible for
determining whether or not the zoning is appropriate for Lessee's intended use,
and acknowledges that past uses of the Premises may no longer be allowed. If the
Premises do not comply with said warranty, Lessor shall, except as otherwise
provided, promptly after receipt of written notice from Lessee setting forth
with specificity the nature and extent of such non-compliance, rectify the same
at Lessor's expense. If Lessee does not give Lessor written notice of a
non-compliance with this warranty within six (6) months following the Start
Date, correction of that non-compliance shall be the obligation of Lessee at
Lessee's sole cost and expense. If the Applicable Requirements are hereafter
changed (as opposed to being in existence at the Start Date, which is addressed
in Paragraph 6.2(e) below) so as to require during the term of this Lease the
construction of an addition to or an alteration of the Building, the remediation
of any Hazardous Substance, or the reinforcement or other physical modification
of the Building ("CAPITAL EXPENDITURE"), Lessor and Lessee shall allocate the
cost of such work as follows:
(a) Subject to Paragraph 2.3(c) below, if such Capital
Expenditures are required as a result of the specific and unique use of the
Premises by Lessee as compared with uses by tenants in general, Lessee shall be
fully responsible for the cost thereof, provided, however, that if such Capital
Expenditure is required during the last two (2) years of this Lease and the cost
thereof exceeds six (6) months' Base Rent, Lessee may instead terminate this
Lease unless Lessor notifies Lessee, in writing, within ten (10) days after
receipt of Lessee's termination notice that Lessor has elected to pay the
difference between the actual cost thereof and the amount equal to six (6)
months' Base Rent. If Lessee elects termination, Lessee shall immediately cease
the use of the Premises which requires such Capital Expenditure and deliver to
Lessor written notice specifying a termination date at least ninety (90) days
thereafter. Such termination date shall, however, in no event be earlier than
the last day that Lessee could legally utilize the Premises without commencing
such Capital Expenditure.
(b) If such Capital Expenditure is not the result of the
specific and unique use of the Premises by Lessee (such as, governmentally
mandated seismic modifications), then Lessor and Lessee shall allocate the
obligation to pay for such costs pursuant to the provisions of Paragraph 7.1(c);
provided, however, that if such Capital Expenditure is required during the last
two years of this Lease or if Lessor reasonably determines that it is not
economically feasible to pay its share thereof, Lessor shall have the option to
terminate this Lease upon ninety (90) days prior written notice to Lessee unless
Lessee notifies Lessor, in writing, within ten (10) days after receipt of
Lessor's termination notice that Lessee will pay for such Capital Expenditure.
If Lessor does not elect to terminate, and fails to tender its share of any such
Capital Expenditure, Lessee may advance such funds and deduct same, with
Interest from Rent until Lessor's share of such costs have been fully paid. If
Lessee is unable to finance Lessor's share, or if the balance of the Rent due
and payable for the remainder of this Lease is not sufficient to fully reimburse
Lessee on an offset basis, Lessee shall have the right to terminate this Lease
upon thirty (30) days written notice to Lessor.
(c) Notwithstanding the above, the provisions concerning
Capital Expenditures are intended to apply only to non-voluntary, unexpected,
and new Applicable Requirements. If the Capital Expenditures are instead
triggered by Lessee as a result of an actual or proposed change in use, change
in intensity of use, or modification to the Premises then, and in that event,
Lessee shall be fully responsible for the cost thereof, and Lessee shall not
have any right to terminate this Lease.
2.4 ACKNOWLEDGEMENTS. Lessee acknowledges that: (a) it has been
advised by Lessor and/or Brokers to satisfy itself with respect to the condition
of the Premises (including but not limited to the electrical, HVAC and fire
sprinkler systems, security, environmental aspects, and compliance with
Applicable Requirements), and their suitability for Lessee's intended use, (b)
Lessee has made such investigation as it deems necessary with reference to such
matters and assumes all responsibility therefor as the same relate to its
occupancy of the Premises, and (c) neither Lessor, Lessor's agents, nor any
Broker has made any oral or written representations or warranties with respect
to said matters other than as set forth in this Lease. In addition, Lessor
acknowledges that: (a) Broker has made no
representations, promises or warranties concerning Lessee's ability to honor the
Lease or suitability to occupy the Premises, and (b) it is Lessor's sole
responsibility to investigate the financial capability and/or suitability of all
proposed tenants.
2.5 LESSEE AS PRIOR OWNER/OCCUPANT. The warranties made by Lessor
in Paragraph 2 shall be of no force or effect if immediately prior to the Start
Date Lessee was the owner or occupant of the Premises. In such event, Lessee
shall be responsible for any necessary corrective work.
3. TERM.
3.1 TERM. The Commencement Date, Expiration Date and Original Term
of this Lease are as specified in Paragraph 1.3.
3.2 EARLY POSSESSION. If Lessee totally or partially occupies the
Premises prior to the Commencement Date, the obligation to pay Base Rent shall
be abated for the period of such early possession. All other terms of this Lease
shall, however, be in effect during such period. Any such early possession shall
not affect the Expiration Date.
3.3 DELAY IN POSSESSION. Lessor agrees to use its best
commercially reasonable efforts to deliver possession of the Premises to Lessee
by the Commencement Date. If, despite said efforts, Lessor is unable to deliver
possession as agreed, Lessor shall not be subject to any liability therefor, nor
shall such failure affect the validity of this Lease. Lessee shall not, however,
be obligated to pay Rent or perform its other obligations until it receives
possession of the Premises. If possession is not delivered within sixty (60)
days after the Commencement Date, Lessee may, at its option, by notice in
writing within ten (10) days after the end of such sixty (60) day period, cancel
this Lease, in which event the Parties shall be discharged from all obligations
hereunder. If such written notice is not received by Lessor within said ten (10)
day period, Lessee's right to cancel shall terminate. Except as otherwise
provided, if possession is not tendered to Lessee by the Start Date and Lessee
does not terminate this Lease, as aforesaid, any period of rent abatement that
Lessee would otherwise have enjoyed shall run from the date of delivery of
possession and continue for a period equal to what Lessee would otherwise have
enjoyed under the terms hereof, but minus any days of delay caused by the acts
or omissions of Lessee. If possession of the Premises is not delivered within
four (4) months after the Commencement Date, this Lease shall terminate unless
other agreements are reached between Lessor and Lessee, in writing.
3.4 LESSEE COMPLIANCE. Lessor shall not be required to tender
possession of the Premises to Lessee until Lessee complies with its obligation
to provide evidence of insurance (Paragraph 8.5). Pending delivery of such
evidence, Lessee shall be required to perform all of its obligations under this
Lease from and after the Start Date, including the payment of Rent,
notwithstanding Lessor's election to withhold possession pending receipt of such
evidence of insurance. Further, if Lessee is required to perform any other
conditions prior to or concurrent with the Start Date, the Start Date shall
occur but Lessor may elect to withhold possession until such conditions are
satisfied.
4. RENT.
4.1 RENT DEFINED. All monetary obligations of Lessee to Lessor
under the terms of this Lease (except for the Security Deposit) are deemed to be
rent ("RENT").
4.2 PAYMENT. Lessee shall cause payment of Rent to be received by
Lessor in lawful money of the United States, without offset or deduction (except
as specifically permitted in this Lease), on or before the day on which it is
due. Rent for any period during the term hereof which is for less than one (1)
full calendar month shall be prorated based upon the actual number of days of
said month. Payment of Rent shall be made to Lessor at its address stated herein
or to such other persons or place as Lessor may from time to time designate in
writing. Acceptance of a payment which is less than the amount then due shall
not be a waiver of Lessor's rights to the balance of such Rent, regardless of
Lessor's endorsement of any check so stating.
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon execution
hereof the Security Deposit as security for Lessee's faithful
performance of its obligations under this Lease. If Lessee fails to pay
Rent, or otherwise Defaults under this Lease, Lessor may use, apply or
retain all or any portion of said Security Deposit for the payment of
any amount due Lessor or to reimburse or compensate Lessor for any
liability, expense, loss or damage which Lessor may suffer or incur by
reason thereof. If Lessor uses or applies all or any portion of said
Security Deposit, Lessee shall within ten (10) days after written
request therefor deposit monies with Lessor sufficient to restore said
Security Deposit to the full amount required by this Lease. Should the
Agreed Use be amended to accommodate a material change in the business
of Lessee or to accommodate a sublessee or assignee, Lessor shall have
the right to increase the Security Deposit to the extent necessary, in
Lessor's reasonable judgment, to account for any increased wear and
tear that the Premises may suffer as a result thereof. If a change in
control of Lessee occurs during this Lease and following such change
the financial condition of Lessee is, in Lessor's reasonable judgment,
significantly reduced, Lessee shall deposit such additional monies with
Lessor as shall be sufficient to cause the Security Deposit to be at a
commercially reasonable level based on said change in financial
condition. Lessor shall not be required to keep the Security Deposit
separate from its general accounts. Within fourteen (14) days after the
expiration or termination of this Lease, if Lessor elects to apply the
Security Deposit only to unpaid Rent, and otherwise within thirty (30)
days after the Premises have been vacated pursuant to Paragraph 7.4(c)
below, Lessor shall return that portion of the Security Deposit not
used or applied by Lessor. No part of the Security Deposit shall be
considered to be held in trust, to bear interest or to be prepayment
for any monies to be paid by Lessee under this Lease.
6. USE.
6.1 USE. Lessee shall use and occupy the Premises only for the
Agreed Use, or any other legal use which is reasonably comparable thereto, and
for no other purpose. Lessee shall not use or permit the use of the Premises in
a manner that is unlawful, creates damage, waste or a nuisance, or that disturbs
owners and/or occupants of, or causes damage to neighboring properties. Lessor
shall not unreasonably withhold or delay its consent to any written request for
a modification of the Agreed Use, so long as the same will not impair the
structural integrity of the improvements on the Premises or the mechanical or
electrical systems therein, or is not significantly more burdensome to the
Premises. If Lessor elects to withhold consent, Lessor shall within five (5)
business days after such request give written notification of same, which notice
shall include an explanation of Lessor's objections to the change in use,
6.2 HAZARDOUS SUBSTANCES. See Addendum Paragraph 54.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
6.3
6.4
7. MAINTENANCE; REPAIRS, UTILITY INSTALLATIONS; TRADE FIXTURES AND
ALTERATIONS.
7.1 LESSEE'S OBLIGATIONS. See Addendum Paragraph 559a)
(a) IN GENERAL. Subject to the provisions of Paragraph
2.2 (Condition), 2.3 (Compliance with Covenants, Restrictions and Building
Code), 6.3 (Lessee's Compliance with Applicable Requirements), 7.2 (Lessor's
Obligations), 9 (Damage and Destruction), and 14 (Condemnation), Lessee shall,
al Lessee's sole expense, keep the Premises, Utility Installations, and
Alterations in good order, condition and repair (whether or not the portion of
the Premises requiring repairs, or the means of repairing the same, are
reasonably or readily accessible to Lessee, and whether or not the need for such
repairs occurs as a result of Lessee's use, any prior use, the elements or the
age of such portion of the Premises), including, but not limited to, all
equipment or facilities, such as plumbing, heating, ventilating,
air-conditioning, electrical, lighting facilities, boilers, pressure vessels,
fire protection system, fixtures, walls (interior and exterior), ceilings,
floors, windows, doors, skylights, landscaping, driveways, parking lots, fences,
signs, sidewalks and parkways located in, on, or adjacent to the Premises.
Lessee is also responsible for keeping the roof and roof drainage clean and free
of debris. Lessor shall keep the surface and structural elements of the roof,
foundations, and bearing walls in good repair (see Paragraph 7.2). Lessee, in
keeping the Premises in good order, condition and repair shall exercise and
perform good maintenance practices. Lessee's obligations
shall include restorations, replacements or renewals when necessary to keep the
Premises and all improvements thereon or a part thereof in good order, condition
and state of repair. Lessee shall, during the term of this Lease, keep the
exterior appearance of the Building in a first-class condition (including, e.g.,
graffiti removal) consistent with the exterior appearance of other similar
facilities of comparable age and size in the vicinity, including, when
necessary, the exterior repainting of the Building.
(b) SERVICE CONTRACTS. Lessee shall, at Lessee's sole
expense, procure and maintain contracts, with copies to Lessor, in customary
form and substance for, and with contractors specializing and experienced in the
maintenance of the following equipment and improvements ("Basic Elements"), if
any, if and when installed on the Premises: (i) HVAC equipment, (ii) boiler and
pressure vessels, (iii) fire extinguishing systems, including fire alarm and/or
smoke detection, (iv) landscaping and irrigation systems, (v) driveways and
parking lots, (vi) clarifies, (vii) basic utility feed to the perimeter of the
Building, and (viii) any other equipment, if reasonably required by Lessor.
(c) REPLACEMENT. Subject to Lessee's indemnification of
Lessor as set forth in Paragraph 8.7 below, and without relieving Lessee of
liability resulting from Lessee's failure to exercise and perform good
maintenance practices, if the Basic Elements described in Paragraph 7.1(b)
cannot be repaired other than at a cost which is in excess of 50% of the cost of
replacing such Basic Elements, then such Basic Elements shall be replaced by
Lessor, and the cost thereof shall be prorated between the Parties and Lessee
shall only be obligated to pay, each month during the remainder of the term of
this Lease, on the date on which Base Rent is due, an amount equal to the
product of multiplying the cost of such replacement by a fraction, the numerator
of which is one and the denominator of which is the number of months of the
useful life of such replacement as such useful life is specified pursuant to
Federal income tax regulations or guidelines for depreciation thereof (including
interest on the unamortized balance as is then commercially reasonable in the
judgment of Lessor's accountants), with Lessee reserving the right to prepay its
obligation at any time. See Addendum Paragraph 55(b).
7.2 LESSOR'S OBLIGATIONS. Subject to the provisions of Paragraphs
2.2 (Condition), 2.3 (Compliance with Covenants, Restrictions and Building
Code), 9 (Damage or Destruction) and 14 (Condemnation), it is intended by the
Parties hereto that Lessor have no obligation, in any manner whatsoever, to
repair and maintain the Premises, or the equipment therein, all of which
obligations are intended to be that of the Lessee, except for the surface and
structural elements of the roof, foundations and bearing wails, the repair of
which shall be the responsibility of Lessor upon receipt of written notice that
such a repair is necessary. It is the intention of the Parties that the terms of
this Lease govern the respective obligations of the Parties-as to maintenance
and repair of the Premises, and they expressly waive the benefit of any statute
now or hereafter in effect to the extent it is inconsistent with the terms of
this Lease.
7.3 UTILITY INSTALLATIONS; TRADE FIXTURES; ALTERATIONS.
(a) DEFINITIONS; CONSENT REQUIRED. The term "UTILITY
INSTALLATIONS" refers to all floor and window coverings, air lines, power
panels, electrical distribution, security and fire protection systems and signs,
communication systems, lighting fixtures, HVAC equipment, plumbing, and fencing
in or on the Premises. The term "TRADE FIXTURES" shall mean Lessee's machinery
and equipment that can be removed without doing material damage to the Premises.
The term "ALTERATIONS" shall mean any modification of the improvements, other
than Utility Installations or Trade Fixtures, whether by addition or deletion.
"LESSEE OWNED ALTERATIONS AND/OR UTILITY INSTALLATIONS" are defined as
Alterations and/or Utility Installations made by Lessee that are not yet owned
by Lessor pursuant to Paragraph 7.4(a). Lessee shall not make any Alterations or
Utility Installations to the Premises without Lessor's prior written consent.
Lessee may, however, make non-structural Utility Installations or non-structural
alterations to the interior of the Premises (excluding the roof) without such
consent but upon notice to Lessor, as long as they are not visible from the
outside, do not involve puncturing, relocating or removing the roof or any
existing walls, and the cumulative cost thereof during this Lease as extended
does not exceed $50,000 in the aggregate or $10,000 in any one year.
(b) CONSENT. Any Alterations or Utility Installations
that Lessee shall desire to make and which require the consent of the Lessor
shall be presented to Lessor in written form with detailed plans. Consent shall
be deemed conditioned upon Lessee's: (i) acquiring all applicable governmental
permits, (ii) furnishing Lessor with copies of both the permits and the plans
and specifications prior to commencement of the work, and (iii) compliance with
all conditions of said permits and other Applicable Requirements in a prompt and
expeditious manner. Any Alterations or Utility Installations shall be performed
in a workmanlike manner with good and sufficient materials, Lessee shall
promptly upon completion furnish Lessor with as-built plans and specifications.
For work which costs an amount equal to the greater of one month's Base Rent, or
$10,000, Lessor may condition its consent upon Lessee providing a lien and
completion bond in an amount equal to one and one-half times the estimated cost
of such Alteration or Utility Installation and/or upon Lessee's posting an
additional Security Deposit with Lessor.
(c) INDEMNIFICATION. Lessee shall pay, when due, all
claims for labor or materials furnished or alleged to have been furnished to or
for Lessee at or for use on the Premises, which claims are or may be secured by
any mechanic's or materialmen's lien against the Premises or any interest
therein. Lessee shall give Lessor not less than ten (10) days' notice prior to
the commencement of any work in, on or about the Premises, and Lessor shall have
the right to post notices of non-responsibility. If Lessee shall contest the
validity of any such lien, claim or demand, then Lessee shall, at its sole
expense defend and protect itself, Lessor and the Premises against the same and
shall pay and satisfy any such adverse judgment that may be rendered thereon
before the enforcement thereof. If Lessor shall require, Lessee shall furnish a
surely bond in an amount equal to one and one-half times the amount of such
contested lien, claim or
demand, indemnifying Lessor against liability for the same. If Lessor elects to
participate in any such action, Lessee shall pay Lessor's attorneys' fees and
costs.
7.4 OWNERSHIP; REMOVAL; SURRENDER; AND RESTORATION.
(a) OWNERSHIP. Subject to Lessor's right to require
removal or elect ownership as hereinafter provided, all Alterations and Utility
Installations made by Lessee shall be the property of Lessee, but considered a
part of the Premises. Unless otherwise instructed per Paragraph 7.4(b) hereof,
all Lessee Owned Alterations and Utility Installations shall, at the expiration
or termination of this lease, become the property of Lessor and be surrendered
by Lessee with the Premises. See Addendum Paragraph 55(d).
(b) REMOVAL. By delivery to Lessee of written notice from
Lessor not earlier than ninety (90) and not later than thirty (30) days prior to
the end of the term of this Lease, Lessor may require that any or all Lessee
Owned Alterations or Utility Installations be removed by the expiration or
termination of this Lease. Lessor may require the removal at any time of all or
any part of any Lessee Owned Alterations or Utility Installations made without
the required consent.
(c) SURRENDER/RESTORATION. See Addendum Paragraph 55(e).
"Ordinary wear and tear" shall not include any damage or deterioration that
would have been prevented by good maintenance practice. Lessee shall repair any
damage occasioned by the installation, maintenance or removal of Trade Fixtures,
Lessee Owned Alterations and/or Utility Installations, furnishings, and
equipment as well as the removal of any storage tank installed by or for Lessee,
and the removal, replacement, or remediation of any soil, material or
groundwater contaminated by Lessee. Trade Fixtures shall remain the property of
Lessee and shall be removed by Lessee. The failure by Lessee to timely vacate
the Premises pursuant to this Paragraph 7.4(c) without the express written
consent of Lessor shall constitute a holdover under the provisions of Paragraph
26 below.
8. INSURANCE; INDEMNITY.
8.1 PAYMENT FOR INSURANCE. Lessee shall pay for all insurance
required under Paragraph 8 except to the extent of the cost attributable to
liability insurance carried by Lessor under Paragraph 8.2(b) in excess of
$2,000,000 per occurrence. Premiums for policy periods commencing prior to or
extending beyond the Lease term shall be prorated to correspond to the Lease
term. Payment shall be made by lessee to Lessor within ten (10) days following
receipt of an invoice.
8.2 LIABILITY INSURANCE.
(a) CARRIED BY LESSEE. Lessee shall obtain and keep in
force a Commercial General Liability Policy of Insurance protecting Lessee and
Lessor against claims for bodily injury, personal injury and property damage
based upon or arising out of the ownership, use, occupancy or maintenance of the
Premises and all areas appurtenant thereto. Such insurance shall be on an
occurrence basis providing single limit coverage in an amount not less than
$2,000,000 per occurrence with an "ADDITIONAL INSURED-MANAGERS OR LESSORS OF
PREMISES ENDORSEMENT" and contain the "AMENDMENT OF THE POLLUTION EXCLUSION
ENDORSEMENT" for damage caused by heat, smoke or fumes from a hostile fire. The
Policy shall not contain any intra-insured exclusions as between insured persons
or organizations, but shall include coverage for liability assumed under this
Lease as an "insured contract" for the performance of Lessee's indemnity
obligations under this Lease. The limits of said insurance shall not, however,
limit the liability of Lessee nor relieve Lessee of any obligation hereunder.
All insurance carried by Lessee shall be primary to and not contributory with
any similar insurance carried by Lessor, whose insurance shall be considered
excess insurance only.
(b) CARRIED BY LESSOR. Lessor shall maintain liability
insurance as described in Paragraph 8.2(a), in addition to, and not in lieu of,
the insurance required to be maintained by Lessee. Lessee shall not be named as
an additional insured therein.
8.3 PROPERTY INSURANCE - BUILDING, IMPROVEMENTS AND RENTAL VALUE.
(a) BUILDING AND IMPROVEMENTS. The Insuring Party shall
obtain and keep in force a policy or policies in the name of Lessor, with loss
payable to Lessor, any groundlessor, and to any Lender(s) insuring loss or
damage to the Premises. The amount of such insurance shall be equal to the full
replacement cost of the Premises, as the same shall exist from time to time, or
the amount required by any Lenders, but in no event more than the commercially
reasonable and available insurable value thereof. If Lessor is the Insuring
Party, however, Lessee Owned Alterations and Utility Installations Trade
Fixtures, and Lessee's personal property shall be insured by Lessee under
Paragraph 8.4 rather than by Lessor. If the coverage is available an(
commercially appropriate, such policy or policies shall insure against all risks
of direct physical loss or damage (except the perils of flood and/or earthquake
unless required by a Lender or included in the Base Premium), including coverage
for debris removal and the enforcement of any Applicable Requirements requiring
the
upgrading, demolition, reconstruction or replacement of any portion of the
Premises as the result of a covered loss. Said policy or policies shall also
contain an agreed valuation provision in lieu of any coinsurance clause, waiver
of subrogation, and inflation guard protection causing an increase in the annual
property insurance coverage amount by a factor of not less than the adjusted
U.S. Department of Labor Consumer Price Index for All Urban Consumers for the
city nearest to where the Premises are located. If such insurance coverage has a
deductible clause, the deductible amount shall not exceed $10,000 per
occurrence, and lessee shall be liable for such deductible amount in the event
of an Insured Loss.
(b) RENTAL VALUE. The Insuring Parties shall obtain and keep in
force a policy or policies in the name of Lessor, with loss payable to Lessor
and any Lender, insuring the loss of the full Rent for one (1) year. Said
insurance shall provide that in the event the Lease is terminated by reason of
an insured loss, the period of indemnity for such coverage shall be extended
beyond the date of the completion of repairs or replacement of the Premises, to
provide for one full year's loss of Rent from the date of any such loss. Said
insurance shall contain an agreed valuation provision in lieu of any coinsurance
clause, and the amount of coverage shall be adjusted annually to reflect the
projected Rent otherwise payable by Lessee, for the next twelve (12) month
period. Lessee shall be liable for any deductible amount in the event of such
loss.
(c)
8.4 LESSEE'S PROPERTY/BUSINESS INTERRUPTION INSURANCE.
(a) PROPERTY DAMAGE. Lessee shall obtain and maintain
insurance coverage on all of Lessee's personal property, Trade Fixtures, and
Lessee Owned Alterations and Utility Installations. Such insurance shall be
full replacement cost coverage with a deductible of not to exceed $10,000 per
occurrence. The proceeds from any such insurance shall be used by Lessee for
the replacement of personal property, Trade Fixtures and Lessee Owned
Alterations and Utility Installations. Lessee shall provide Lessor with
written evidence that such insurance is in force.
(b) BUSINESS INTERRUPTION. Lessee shall obtain and
maintain loss of income and extra expense insurance in amounts as will reimburse
Lessee for direct or indirect loss of earnings attributable to all perils
commonly insured against by prudent lessees in the business of Lessee or
attributable to prevention of access to the Premises as a result of such perils.
(c) NO REPRESENTATION OF ADEQUATE COVERAGE. Lessor makes
no representation that the limits or forms of coverage of insurance specified
herein are adequate to cover Lessee's property, business operations or
obligations under this Lease.
8.5 INSURANCE POLICIES. Insurance required herein shall be by
companies duly licensed or admitted to transact business in the state where the
Premises are located, and maintaining during the policy term a "General
Policyholders Rating" of at least B+, V, as set forth in the most current issue
of "Best's Insurance Guide", or such other rating as may be required by a
Lender. Lessee shall not do or permit to be done anything which invalidates the
required insurance policies. Lessee shall, prior to the Start Date, deliver to
Lessor certified copies of policies of such insurance or certificates evidencing
the existence and amounts of the required insurance. No such policy shall be
cancelable or subject to modification except after thirty (30) days prior
written notice to Lessor. Lessee shall, at least thirty (30) days prior to the
expiration of such policies, furnish Lessor with evidence of renewals or
"insurance binders" evidencing renewal thereof, or Lessor may order such
insurance and charge the cost thereof to Lessee, which amount shall be payable
by Lessee to Lessor upon demand. Such policies shall be for a term of at least
one year, or the length of the remaining term of this Lease, whichever is less.
If either Party shall fail to procure and maintain the insurance required to be
carried by it, the other Party may, but shall not be required to, procure and
maintain the same.
8.6 WAIVER OF SUBROGATION. Without affecting any other rights or
remedies, Lessee and Lessor each hereby release and relieve the other, and waive
their entire right to recover damages against the other, for loss of or damage
to its property arising out of or incident to the perils required to be insured
against herein. The effect of such releases and waivers is not limited by the
amount of insurance carried or required, or by any deductibles applicable
hereto. The Parties agree to have their respective property damage insurance
carriers waive any right to subrogation that such companies may have against
Lessor or Lessee, as the case may be, so long as the insurance is not
invalidated thereby.
8.7 INDEMNITY. Except for Lessor's gross negligence or willful
misconduct, Lessee shall indemnify, protect, defend and hold harmless the
Premises, Lessor and its agents, Lessor's master or ground lessor, partners and
Lenders, from and against any and all claims, loss of rents and/or damages,
liens, judgments, penalties, attorneys' and consultants' fees, expenses and/or
liabilities arising out of, involving, or in connection with, the use and/or
occupancy of the Premises by Lessee. If any action or proceeding is brought
against Lessor by reason of any of the foregoing matters, Lessee shall upon
notice defend the same at Lessee's expense by counsel reasonably satisfactory to
Lessor and Lessor shall cooperate with Lessee in such defense. Lessor need not
have first paid any such claim in order to be defended or indemnified.
8.8 EXEMPTION OF LESSOR FROM LIABILITY. Lessor shall not be liable for
injury or damage to the person or goods, wares, merchandise or other property of
Lessee, Lessee's employees, contractors, invitees, customers, or any other
person in or about the Premises, whether such damage or injury is caused by or
results from fire, steam, electricity, gas, water or rain, or from the breakage,
leakage, obstruction or other defects of pipes, fire sprinklers, wires,
appliances, plumbing, HVAC or lighting fixtures, or from any other cause,
whether the said injury or damage results from conditions arising upon the
Premises or upon other portions of the Building of which the Premises are a
part, or from other sources or places. Lessor shall not be liable for any
damages arising from any act or neglect of any other tenant of Lessor.
Notwithstanding Lessor's negligence or breach of this Lease, Lessor shall under
no circumstances be liable for injury to Lessee's business or for any loss of
income or profit therefrom.
9. DAMAGE OR DESTRUCTION.
9.1 DEFINITIONS.
(a) "PREMISES PARTIAL DAMAGE" shall mean damage or
destruction to the improvements on the Premises, other than Lessee Owned
Alterations, Utility Installations and Trade Fixtures, which can reasonably be
repaired in six (6) months or less from the date of the damage or destruction.
Lessor shall notify Lessee in writing within thirty (30) days from the date of
the damage or destruction as to whether or not the damage is Partial or Total.
(b) "PREMISES TOTAL DESTRUCTION" shall mean damage or
destruction to the Premises, other than Lessee Owned Alterations and Utility
Installations and Trade Fixtures, which cannot reasonably be repaired in six (6)
months or less from the date of the damage or destruction. Lessor shall notify
Lessee in writing within thirty (30) days from the date of the damage or
destruction as to whether or not the damage is Partial or Total.
(c) "INSURED LOSS" shall mean damage or destruction to
improvements on the Premises, other than Lessee Owned Alterations and Utility
Installations and Trade Fixtures, which was caused by an event required to be
covered by the insurance described in Paragraph 8.3(a), irrespective of any
deductible amounts or coverage limits involved.
(d) "REPLACEMENT COST" shall mean the cost to repair or
rebuild the improvements owned by Lessor at the time of the occurrence to their
condition existing immediately prior thereto, including demolition, debris
removal and upgrading required by the operation of Applicable Requirements, and
without deduction for depreciation.
(e) "HAZARDOUS SUBSTANCE CONDITION" shall mean the
occurrence or discovery of a condition involving the presence of, or a
contamination by, a Hazardous Substance as defined in Paragraph 6.2(a), in, on,
or under the Premises.
9.2 PARTIAL DAMAGE - INSURED LOSS. If a Premises Partial Damage
that is an Insured Loss occurs, then Lessor shall, at Lessor's expense, repair
such damage (but not Lessee's Trade Fixtures or Lessee Owned Alterations and
Utility Installations) as soon as reasonably possible and this Lease shall
continue in full force and effect; provided, however, that Lessee shall, at
Lessor's election, make the repair of any damage or destruction the total cost
to repair of which is $10,000 or less, and, in such event, Lessor shall make any
applicable insurance proceeds available to Lessee on a reasonable basis for that
purpose. Notwithstanding the foregoing, if the required insurance was not in
force or the insurance proceeds are not sufficient to effect such repair, the
Insuring Party shall promptly contribute the shortage in proceeds as and when
required to complete said repairs. In the event, however, such shortage was due
to the fact that, by reason of the unique nature of the improvements, full
replacement cost insurance coverage was not commercially reasonable and
available, Lessor shall have no obligation to pay for the shortage in insurance
proceeds or to fully restore the unique aspects of the Premises unless Lessee
provides Lessor with the funds to cover same, or adequate assurance thereof,
within ten (10) days following receipt of written notice of such shortage and
request therefor. If Lessor receives said funds or adequate assurance thereof
within said ten (10) day period, the party responsible for making the repairs
shall complete them as soon as reasonably possible and this Lease shall remain
in full force and effect. If such funds or assurance are not received, Lessor
may nevertheless elect by written notice to Lessee within ten (10) days
thereafter to: (i) make such restoration and repair as is commercially
reasonable with Lessor paying any shortage in proceeds, in which case this Lease
shall remain in full force and effect; or (ii) have this Lease terminate thirty
(30) days thereafter. Lessee shall not be entitled to reimbursement of any funds
contributed by Lessee to repair any such damage or destruction. Premises Partial
Damage due to flood or earthquake shall be subject to Paragraph 9.3,
notwithstanding that there may be some insurance coverage, but the net proceeds
of any such insurance shall be made available for the repairs if made by either
Party.
9.3 PARTIAL DAMAGE - UNINSURED LOSS. If a Premises Partial Damage
that is not an Insured Loss occurs, unless caused by a negligent or willful act
of Lessee (in which event Lessee shall make the repairs at Lessee's expense),
Lessor may either: (i) repair such damage as soon as reasonably possible at
Lessor's expense, in which event this Lease shall continue in full force and
effect, or (ii) terminate this Lease by giving written notice to Lessee within
thirty (30) days after receipt by Lessor of knowledge of the occurrence of such
damage. Such termination shall be effective sixty (60) days following the date
of such notice. In the event Lessor elects to terminate this Lease, Lessee shall
have the right within ten (10) days after receipt of the termination notice to
give written notice to Lessor of Lessee's commitment to pay for the repair of
such damage without reimbursement from Lessor. Lessee shall provide Lessor with
said funds or satisfactory assurance thereof within thirty (30) days after
making such commitment. In such event this Lease shall continue in full force
and effect, and Lessor shall proceed to make such repairs as soon as reasonably
possible after the required funds are available. If Lessee does not make the
required commitment, this Lease shall terminate as of the date specified in the
termination notice.
9.4 TOTAL DESTRUCTION. Notwithstanding any other provision hereof,
if a Premises Total Destruction occurs, this Lease shall terminate sixty (60)
days following such Destruction. If the damage or destruction was caused by the
gross negligence or willful misconduct of Lessee, Lessor shall have the right to
recover Lessor's damages from Lessee, except as provided in Paragraph 8.6.
9.5 DAMAGE NEAR END OF TERM. If at any time during the last six
(6) months of this Lease there is damage for which the cost to repair exceeds
one (1) month's Base Rent, whether or not an Insured Loss, Lessor may terminate
this Lease effective sixty (60) days following the date of occurrence of such
damage by giving a written termination notice to Lessee within thirty (30) days
after the date of occurrence of such damage. Notwithstanding the foregoing, if
Lessee at that time has an exercisable option to extend this Lease or to
purchase the Premises, then Lessee may preserve this Lease by, (a) exercising
such option and (b) providing Lessor with any shortage in insurance proceeds (or
adequate assurance thereof) needed to make the repairs on or before the earlier
of (i) the date which is ten days after Lessee's receipt of Lessor's written
notice purporting to terminate this Lease, or (ii) the day prior to the date
upon which such option expires. If Lessee duly exercises such option during such
period and provides Lessor with funds (or adequate assurance thereof) to cover
any shortage in insurance proceeds, Lessor shall, at Lessor's commercially
reasonable expense, repair such damage as soon as reasonably possible and this
Lease shall continue in full force and effect. If Lessee fails to exercise such
option and provide such funds or assurance during such period, then this Lease
shall terminate on the date specified in the termination notice and Lessee's
option shall be extinguished.
9.6 ABATEMENT OF RENT; LESSEE'S REMEDIES.
(a) ABATEMENT. In the event of Premises Partial Damage or
Premises Total Destruction or a Hazardous Substance Condition for which Lessee
is not responsible under this Lease, the Rent payable by Lessee for the period
required for the repair, remediation or restoration of such damage shall be
abated in proportion to the degree to which Lessee's use of the Premises is
impaired, but not to exceed the proceeds received from the Rental Value
insurance. All other obligations of Lessee hereunder shall be performed by
Lessee, and Lessor shall have no liability for any such damage, destruction,
remediation, repair or restoration except as provided herein.
(b) REMEDIES. If Lessor shall be obligated to repair or
restore the Premises and does not commence, in a substantial and meaningful way,
such repair or restoration within ninety (90) days after such obligation shall
accrue, Lessee may, at any time prior to the commencement of such repair or
restoration, give written notice to Lessor and to any Lenders of which Lessee
has actual notice, of Lessee's election to terminate this Lease on a date not
less than sixty (60) days following the giving of such notice. If Lessee gives
such notice and such repair or restoration is not commenced within thirty (30)
days thereafter, this Lease shall terminate as of the date specified in said
notice. If the repair or restoration is commenced within said thirty (30) days,
this Lease shall continue in full force and effect. "Commence" shall mean either
the unconditional authorization of the preparation of the required plans, or the
beginning of the actual work on the Premises, whichever first occurs.
9.7 TERMINATION - ADVANCE PAYMENTS. Upon termination of this Lease
pursuant to Paragraph 6.2(g) or Paragraph 9, an equitable adjustment shall be
made concerning advance Base Rent and any other advance payments made by Lessee
to Lessor. Lessor shall, in addition, return to Lessee so much of Lessee's
Security Deposit as has not been, or is not then required to be, used by Lessor.
9.8 WAIVE STATUTES. Lessor and Lessee agree that the terms of this
Lease shall govern the effect of any damage to or destruction of the Premises
with respect to the termination of this Lease and hereby waive the provisions of
any present or future statute to the extent inconsistent herewith.
10. REAL PROPERTY TAXES.
10.1 DEFINITION OF "REAL PROPERTY TAXES." As used herein, the term
"Real Property Taxes" shall include any form of assessment; real estate,
general, special, ordinary or extraordinary, or rental levy or tax (other than
inheritance, personal income or estate taxes); improvement bond; and/or license
fee imposed upon or levied against any legal or equitable interest of Lessor in
the Premises, Lessor's right to other income therefrom, and/or Lessor's business
of leasing, by any authority having the direct or indirect power to tax and
where the funds are generated with reference to the Building address and where
the proceeds so generated are to be applied by the city, county or other local
taxing authority of a jurisdiction within which the Premises are located. The
term "REAL PROPERTY TAXES" shall also include any tax, fee, levy, assessment or
charge, or any increase therein, imposed by reason of events occurring during
the term of this Lease, including, but not limited to, a change in the ownership
of the Premises.
10.2 (a) PAYMENT OF TAXES. Lessee shall pay the Real Property
Taxes applicable to the Premises provided during the term of this Lease. Subject
to paragraph 10.2(b), all such payments shall be made at least ten (10) days
prior to any delinquency date. Upon Lessor's request Lessee shall promptly
furnish Lessor with satisfactory evidence that such taxes have been paid. if any
such taxes shall cover any period of time prior to or after the expiration or
termination of this Lease, Lessee's share of such taxes shall be prorated bto
cover only that portion of the tax xxxx applicable to the period that this lease
is in effect, and Lessor shall reimburse lessee for any
overpayment. If Lessee shall fail to pay any required Real Property taxes,
Lessor shall have the right to pay the same, and Lessee shall reimburse Lessor
therefor upon demand.
(b)
10.3 JOINT ASSESSMENT. If the Premises are not separately assessed,
Lessee's liability shall be an equitable proportion of the Tax Increase for all
of the land and improvements included within the tax parcel assessed, such
proportion to be conclusively determined by Lessor from the respective
valuations assigned in the assessor's work sheets or such other information as
may be reasonably available.
10.4 PERSONAL PROPERTY TAXES. Lessee shall pay, prior to
delinquency, all taxes assessed against and levied upon Lessee Owned
Alterations, Utility Installations, Trade Fixtures, furnishings, equipment and
all personal property of Lessee. When possible, Lessee shall cause such property
to be assessed and billed separately from the real property of Lessor. If any of
Lessee's said personal property shall be assessed with Lessor's real property,
Lessee shall pay Lessor the taxes attributable to Lessee's property within ten
(10) days after receipt of a written statement.
11. UTILITIES. Lessee shall pay for all water, gas, heat, light, power,
telephone, trash disposal and other utilities and services supplied to
the Premises, together with any taxes thereon. If any such services are
not separately metered to Lessee, Lessee shall pay a reasonable
proportion, to be determined by Lessor, of all charges jointly metered.
12. ASSIGNMENT END SUBLETTING.
12.1 LESSOR'S CONSENT REQUIRED. See Addendum paragraphs 51 and 57.
(a) Lessee shall not voluntarily or by operation of law
assign, transfer, mortgage or encumber (collectively, "ASSIGN OR ASSIGNMENT") or
sublet ail or any part of Lessee's interest in this Lease or in the Premises
without Lessor's prior written consent.
(b) A change in the control of Lessee shall constitute
an assignment requiring consent. The transfer, on a cumulative basis, of
fifty-one percent (51%) or more of the voting control of Lessee without
Lessor's prior written consent shall constitute a change in control for this
purpose.
(c) The involvement of Lessee or its assets in any
transaction, or series of transactions (by way of merger, sale, acquisition,
financing, transfer, leverage buy-out or otherwise), whether or not a formal
assignment or hypothecation of this Lease or Lessee's assets occurs, which
results or will result in a reduction of the Net Worth of Lessee by an amount
greater than twenty-five percent (25%) of such Net Worth as it was represented
at the time o! the execution of this Lease or at the time of the most recent
assignment to which Lessor has consented, or as it exists immediately prior to
said transaction or transactions constituting such reduction, whichever was or
is greater, shall be considered an assignment of this Lease to which Lessor may
withhold its consent. "NET WORTH OF LESSEE" shall mean the net worth of Lessee
(excluding any guarantors) established under generally accepted accounting
principles.
(d) An assignment or subletting without consent shall, at
Lessor's option, be a Default curable after notice per Paragraph 13.1(c), or a
noncurable Breach without the necessity of any notice and grace period. If
Lessor elects to treat such unapproved assignment or subletting as a noncurable
Breach, Lessor may either: (i) terminate this Lease, or (ii) upon thirty (30)
days written notice, increase the monthly Base Rent to one hundred ten percent
(110%) of the Base Rent then in effect. Further, in the event of such Breach and
rental adjustment, (i) the purchase price of any option to purchase the Premises
held by Lessee shall be subject to similar adjustment to one hundred ten percent
(110%) of the price previously in effect, and (ii) all fixed and non-fixed
rental adjustments scheduled during the remainder of the Lease term shall be
increased to one hundred ten percent (110%) of the scheduled adjusted rent.
(e) Lessee's remedy for any breach of Paragraph 12.1 by
.Lessor shall be limited to compensatory damages and/or injunctive relief.
12.2 TERMS AND CONDITIONS APPLICABLE TO ASSIGNMENT AND SUBLETTING.
(a) Regardless of Lessor's consent, any assignment or
subletting shall not: (i) be effective without the express written assumption by
such assignee or sublessee of the obligations of Lessee under this Lease; (ii)
release Lessee of any obligations hereunder; or (iii) alter the primary
liability of Lessee for the payment of Rent or for the performance of any other
obligations to be performed by Lessee.
(b) Lessor may accept Rent or performance of Lessee's
obligations from any person other than Lessee pending approval or disapproval of
an assignment. Neither a delay in the approval or disapproval of such assignment
nor the acceptance of Rent or performance shall constitute a waiver or estoppel
of Lessor's right to exercise its remedies for Lessee's Default or Breach.
(c) Lessor's consent to any assignment or subletting
shall not constitute a consent to any subsequent assignment or subletting.
(d) In the event of any Default or Breach by Lessee,
Lessor may proceed directly against Lessee, any Guarantors or anyone else
responsible for the performance of Lessee's obligations under this Lease,
including any assignee or sublessee, without first exhausting Lessor's remedies
against any other person or entity responsible therefore to Lessor, or any
security held by Lessor.
(e) Each request for consent to an assignment or
subletting shall be in writing, accompanied by information relevant to Lessor's
determination as to the financial and operational responsibility and
appropriateness of the proposed assignee or sublessee, including but not limited
to the intended use and/or required modification of the Premises, if any,
together with a fee of not to exceed $1,000 as consideration for Lessor's
considering and processing said request. Lessee agrees to provide Lessor with
such other or additional information and/or documentation as may be reasonably
requested.
(f) Any assignee of, or sublessee under, this Lease
shall, by reason of accepting such assignment or entering into such sublease, be
deemed to have assumed and agreed to conform and comply with each and every
term, covenant, condition and obligation herein to be observed or performed by
Lessee during the term of said assignment or sublease, other than such
obligations as are contrary to or inconsistent with provisions of an assignment
or sublease to which Lessor has specifically consented to in writing.
12.3 ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO SUBLETTING. The
following terms and conditions shall apply to any subletting by Lessee of all or
any part of the Premises and shall be deemed included in all subleases under
this Lease whether or not expressly incorporated therein:
(a) Lessee hereby assigns and transfers to Lessor all of
Lessee's interest in all Rent payable on any sublease, and Lessor may collect
such Rent and apply same toward Lessee's obligations under this Lease; provided,
however, that until a Breach shall occur in the performance of Lessee's
obligations, Lessee may collect said Rent subject to Lessor's right to receive
bonus rent, if any, pursuant to Addendum Paragraphs.. Lessor shall not, by
reason of the foregoing or any assignment of such sublease, nor by reason of the
collection of Rent, be deemed liable to the sublessee for any failure of Lessee
to perform and comply with any of Lessee's obligations to such sublessee. Lessee
hereby irrevocably authorizes and directs any such sublessee, upon receipt of a
written notice from Lessor stating that a Breach exists in the performance of
Lessee's obligations under this Lease, to pay to Lessor all Rent due and to
become due under the sublease. Sublessee shall rely upon any such notice from
Lessor and shall pay all Rents to Lessor without any obligation or right to
inquire as to whether such Breach exists, notwithstanding any claim from Lessee
to the contrary.
(b) In the event of a Breach by Lessee, Lessor may, at
its option, require sublessee to attorn to Lessor, in which event Lessor shall
undertake the obligations of the sublessor under such sublease from the time of
the exercise of said option to the expiration of such sublease; provided,
however, Lessor shall not be liable for any prepaid rents or security deposit
paid by such sublessee to such sublessor or for any prior Defaults or Breaches
of such sublessor.
(c) Any matter requiring the consent of the sublessor
under ,, sublease shall also require the consent of Lessor.
(d) See Addendum paragraph 57(a).
(e) Lessor shall deliver a copy of any notice of Default
or Breach by Lessee to the sublessee, who shall have the right to cure the
Default of Lessee within the grace period, if any, specified in such notice. The
sublessee shall have a right of reimbursement and offset from and against Lessee
for any such Defaults cured by the sublessee.
13. DEFAULT; BREACH; REMEDIES.
13.1 DEFAULT; BREACH. A "DEFAULT" is defined as a failure by the
Lessee to comply with or perform any of the terms, covenants, conditions or
rules under this Lease. A "BREACH" is defined as the occurrence of one or more
of the following Defaults, and the failure of Lessee to cure such Default within
any applicable grace period:
(a) The abandonment of the Premises; or the vacating of
the Premises without providing a commercially reasonable level of security,
and/or Security Deposit or where the coverage of the property insurance
described in Paragraph 8.3 is jeopardized as a result thereof, or without
providing reasonable assurances to minimize potential vandalism.
(b) The failure of Lessee to make any payment of Rent or
any Security Deposit required to be made by Lessee hereunder, whether to Lessor
or to a third party, when due, to provide reasonable evidence of insurance or
surety bond, or to fulfill any obligation under this Lease which endangers or
threatens life or property, where such failure continues for a period of three
(3) business days following written notice to Lessee.
(c) The failure by Lessee to provide (i) reasonable
written evidence of compliance with Applicable Requirements, (ii) the service
contracts, (iii) the rescission of an unauthorized assignment or subletting,
(iv) Estoppel Certificate, (v) a requested subordination, where any such
failure continues for a period of ten (10) days following written notice to
Lessee.
(d) A Default by Lessee as to the terms, covenants,
conditions or provisions of this Lease, or of the rules adopted under Paragraph
40 hereof, other than those described in subparagraphs 13.1(a), (b) or (c),
above, where such Default continues for a period of thirty (30) days after
written notice; provided, however, that if the nature of Lessee's Default is
such that more than thirty (30) days are reasonably required for its cure, then
it shall not be deemed to be a Breach if Lessee commences such cure within said
thirty (30) day period and thereafter diligently prosecutes such cure to
completion.
(e) The occurrence of any of the following events: (i)
the making of any general arrangement or assignment for the benefit of
creditors; (ii) becoming a "debtor" as defined in 11 U.S.C. ss. 101 or any
successor statute thereto (unless, in the case of a petition filed against
Lessee, the same is dismissed within sixty (60) days); (iii) the appointment
of a trustee or receiver to take possession of substantially all of Lessee's
assets located at the Premises or of Lessee's interest in this Lease, where
possession is not restored to Lessee within sixty (60) days; or (iv) the
attachment, execution or other judicial seizure of substantially all of
Lessee's assets located at the Premises or of Lessee's interest in this
Lease, where such seizure is not discharged within sixty (60) days; provided,
however, in the event that any provision of this subparagraph 13.1 (e) is
contrary to any applicable law, such provision shall be of no force or
effect, and not affect the validity of the remaining provisions.
(f) The discovery that any financial statement of Lessee
or of any Guarantor given to Lessor was materially false intentionally.
(g)
13.2 REMEDIES. In the event of the Breach of this Lease by Lessee,
Lessor may, at its option, perform such duty or obligation on Lessee's behalf,
including, but not limited to, the obtaining of reasonably required bonds,
insurance policies, or governmental licenses, permits or approvals. The costs
and expenses of any such performance by Lessor shall be due and payable by
Lessee upon receipt of invoice therefor. If any check given to Lessor by Lessee
shall not be honored by the bank upon which is drawn, Lessor, at its option, may
require all future payments to be made by Lessee to be by cashier's check, in
the event of a Breach, Lessor may, with or without further notice or demand, and
without limiting Lessor in the exercise of any right or remedy which Lessor may
have by reason of such Breach:
(a) Terminate Lessee's right to possession of the
Premises by any lawful means, in which case this Lease shall terminate and
Lessee shall immediately surrender possession to Lessor. In such event Lessor
shall be entitled to recover from Lessee: (i) the unpaid Rent which had been
earned at the time of termination; (ii) the worth at the time of award of the
amount by which the unpaid rent which would have been earned after termination
until the time of award exceeds the amount of such rental loss that the Lessee
proves could have been reasonably avoided; (iii) the worth at the time of award
of the amount by which the unpaid rent for the balance of the term after the
time of award exceeds the amount of such rental loss that the Lessee proves
could be reasonably avoided; and (iv) any other amount necessary to compensate
Lessor for all the detriment proximately caused by the Lessee's failure to
perform its obligations under
this Lease or which in the ordinary course of things would be likely to result
therefrom, including, but not limited to, the cost of recovering possession of
the Premises, expenses of reletting, including necessary renovation and
alteration of the Premises, reasonable attorneys' fees, and that portion of any
leasing commission paid by Lessor in connection with this Lease applicable to
the unexpired term of this Lease. The worth at the time of award of the amount
referred to in provision (iii) of the immediately preceding sentence shall be
computed by discounting such amount at the discount rate of the Federal Reserve
Bank of the District within which the Premises are located at the time of award
plus one percent (1%). Efforts by Lessor to mitigate damages caused by Lessee's
Breach of this Lease shall not waive Lessor's right to recover damages under
Paragraph 12. If termination of this Lease is obtained through the provisional
remedy of unlawful detainer, Lessor shall have the right to recover in such
proceeding any unpaid Rent and damages as are recoverable therein, or Lessor may
reserve the right to recover all or any part thereof in a separate suit. If a
notice and grace period required under Paragraph 13.1 was not previously given,
a notice to pay rent or quit, or to perform or quit given to Lessee under the
unlawful detainer statute shall also constitute the notice required by Paragraph
13.1. In such case, the applicable grace period required by Paragraph 13.1 and
the unlawful detainer statute shall run concurrently, and the failure of Lessee
to cure the Default within the greater of the two such grace periods shall
constitute both an unlawful detainer and a Breach of this Lease entitling Lessor
to the remedies provided for in this Lease and/or by said statute.
(b) Continue the Lease and Lessee's right to possession
and recover the Rent as it becomes due, in which event Lessee may sublet or
assign, subject only to reasonable limitations. Acts of maintenance, efforts to
relet, and/or the appointment of a receiver to protect the Lessor's interests,
shall not constitute a termination of the Lessee's right to possession.
(c) Pursue any other remedy now or hereafter available
under the laws or judicial decisions of the state wherein the Premises are
located. The expiration or termination of this Lease and/or the termination of
Lessee's right to possession shall not relieve Lessee from liability under any
indemnity provisions of this Lease as to matters occurring or accruing during
the term hereof prior to such termination or by reason of Lessee's occupancy of
the Premises.
13.3
13.4 LATE CHARGES. Lessee hereby acknowledges that late payment by
Lessee of Rent will cause Lessor to incur costs not contemplated by this Lease,
the exact amount of which will be extremely difficult to ascertain. Such costs
include, but are not limited to, processing and accounting charges, and late
charges which may be imposed upon Lessor by any Lender. See Addendum Paragraph
58. The parties hereby agree that such late charge represents a fair and
reasonable estimate of the costs Lessor will incur by reason of such late
payment. Acceptance of such late charge by Lessor shall in no event constitute a
waiver of Lessee's Default or Breach with respect to such overdue amount, nor
prevent the exercise of any of the other rights and remedies granted hereunder.
In the event that a late charge is payable hereunder, whether or not collected,
for three (3) consecutive installments of Base Rent, then notwithstanding any
provision of this Lease to the contrary, Base Rent shall, at Lessor's option,
become due and payable quarterly in advance.
13.5 INTEREST. Any monetary payment due Lessor hereunder, other
than late charges, not received by Lessor, when due as to scheduled payments
(such as Base Rent) or within thirty (30) days following the date on which it
was due for non-scheduled payment, shall bear interest from the date when due,
as to scheduled payments, or the thirty-first (31st) day after it was due as to
non-scheduled payments. The interest ("Interest") charged shall be equal to the
prime rate reported in the Wall Street Journal as published closest prior to the
date when due plus four percent (4%), but shall not exceed the maximum rate
allowed by law. Interest is payable in addition to the potential late charge
provided for in Paragraph 13.4.
13.6 BREACH BY LESSOR.
(a) NOTICE OF BREACH. Lessor shall not be deemed in
breach of this Lease unless Lessor fails within a reasonable time to perform an
obligation required to be performed by Lessor. For purposes of this Paragraph, a
reasonable time shall in no event be less than thirty (30) days after receipt by
Lessor, and any Lender whose name and address shall have been furnished Lessee
in writing for such purpose, of written notice specifying wherein such
obligation of Lessor has not been performed; provided, however, that if the
nature of Lessor's obligation is such that more than thirty (30) days are
reasonably required for its performance, then Lessor shall not be in breach if
performance is commenced within such thirty (30) day period and thereafter
diligently pursued to completion.
(b) PERFORMANCE BY LESSEE ON BEHALF OF LESSOR. in the
event that neither Lessor nor Lender cures said breach within thirty (30) days
after receipt of said written notice, or if having commenced said cure they do
not diligently pursue it to completion, then Lessee may elect to cure said
breach at Lessee's expense and offset from Rent an amount equal to the greater
of one month's Base Rent or the Security Deposit, and to pay an excess of such
expense under protest, reserving Lessee's right to reimbursement from Lessor.
Lessee shall document the cost of said cure and supply said documentation to
Lessor.
14. CONDEMNATION. See Addendum Paragraph 59.
15. BROKERS' FEE.
15.1
15.2 ASSUMPTION OF OBLIGATIONS. Any buyer or transferee of Lessor's
interest in this Lease shall be deemed to have assumed Lessor's obligation
hereunder. Each Broker shall be a third party beneficiary of the provisions of
Paragraphs 1.10, 15, 22 and 31. If Lessor fails to pay to a Broker any amounts
due as and for commissions pertaining to this Lease when due, then such amounts
shall accrue Interest. In addition, if Lessor fails to pay any amounts to
Lessee's Broker when due, Lessee's Broker may send written notice to Lessor and
Lessee of such failure and if Lessor fails to pay such amounts within ten (10)
days after said notice, Lessee shall pay said monies to its Broker and offset
such amounts against Rent. In addition, Lessee's Broker shall be deemed to be a
third party beneficiary of any commission agreement entered into by and/or
between Lessor and Lessor's Broker.
15.3 REPRESENTATIONS AND INDEMNITIES OF BROKER RELATIONSHIPS.
Lessee and Lessor each represent and warrant to the other that it has had no
dealings with any person, firm, broker or finder (other than the Brokers, if
any) in connection with this Lease, and that no one other than said named
Brokers is entitled to any commission or finder's fee in connection herewith.
Lessee and Lessor do each hereby agree to indemnify, protect, defend and hold
the other harmless from and against liability for compensation or charges which
may be claimed by any such unnamed broker, finder or other similar party by
reason of any dealings or actions of the indemnifying Party, including any
costs, expenses, and/or attorneys' fees reasonably incurred with respect
thereto.
16. ESTOPPEL CERTIFICATES.
(a) See Addendum Paragraph 60.
(b) If the Responding Party shall fail to execute or
deliver the Estoppel Certificate within such ten day period, the Requesting
Party may execute an Estoppel Certificate stating that: (i) the Lease is in full
force and effect without modification except as may be represented by the
Requesting Party; (ii) there are no uncured defaults in the Requesting Party's
performance; and (iii) if Lessor is the Requesting Party, not more than one
month's rent has been paid in advance. Prospective purchasers and encumbrancers
may rely upon the Requesting Party's Estoppel Certificate, and the Responding
Party shall be estopped from denying the truth of the facts contained in said
Certificate.
(c) If Lessor desires to finance, refinance, or sell the
Premises, or any part thereof, Lessee and all Guarantors shall deliver to any
potential lender or purchaser designated by Lessor such financial statements as
may be reasonably required by such lender or purchaser, including, but not
limited to, Lessee's financial statements for the past three (3) years. All such
financial statements shall be received by Lessor and such lender or purchaser in
confidence and shall be used only for the purposes herein set forth.
17. DEFINITION OF LESSOR. The term "Lessor" as used herein shall mean the
owner or owners at the time in question of the fee title to the
Premises, or, if this is a sublease, of the Lessee's interest in the
prior lease. In the event of a transfer of Lessor's title or interest
in the Premises or this Lease, Lessor shall deliver to the transferee
or assignee (in cash or by credit) any unused Security Deposit held by
Lessor. Except as provided in Paragraph 15, upon such transfer or
assignment and delivery of the Security Deposit, as aforesaid, the
prior Lessor shall be relieved of all liability with respect to the
obligations and/or covenants under this Lease thereafter to be
performed by the Lessor. Subject to the foregoing, the obligations
and/or covenants in this Lease to be performed by the Lessor shall be
binding only upon the Lessor as hereinabove defined. Notwithstanding
the above, and subject to the provisions of Paragraph 20 below, the
original Lessor under this Lease, and all subsequent holders of the
Lessor's interest in this Lease shall remain liable and responsible
with regard to the potential duties and liabilities of Lessor
pertaining to Hazardous Substances as outlined in Paragraph 6 above.
18. SEVERABILITY. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect
the validity of any other provision hereof.
19. DAYS. Unless otherwise specifically indicated to the contrary, the word
"days" as used in this Lease shall mean and refer to calendar days.
20. LIMITATION ON LIABILITY. Subject to the provisions of Paragraph 17
above, the obligations of Lessor under this Lease shall not constitute
personal obligations of Lessor, the individual partners of Lessor or
its or their individual partners, directors, officers or shareholders,
and Lessee shall look to the Premises, and to no other assets of
Lessor, for the satisfaction of any liability of Lessor with respect to
this Lease, and shall not seek recourse against the individual partners
of Lessor, or its or their individual partners, directors, officers or
shareholders, or any of their personal assets for such satisfaction.
21. TIME OF ESSENCE. Time is of the essence with respect to the performance
of all obligations to be performed or observed by the Parties under
this Lease.
22. NO PRIOR OR OTHER AGREEMENTS; BROKER DISCLAIMER. This Lease contains
all agreements between the Parties with respect to any matter mentioned
herein, and no other prior or contemporaneous agreement or
understanding shall be effective.
23. NOTICES.
23.1 NOTICE REQUIREMENTS. All notices required or permitted by this
Lease shall be in writing and may be delivered in person (by hand or by courier)
or may be sent by regular, certified or registered mail or U.S. Postal Service
Express Mail, with postage prepaid, or by facsimile transmission, and shall be
deemed sufficiently given if served in a manner specified in this Paragraph 23.
The addresses noted adjacent to a Party's signature on this Lease shall be that
Party's address for delivery or mailing of notices. Either Party may by written
notice to the other specify a different address for notice, except that upon
Lessee's taking possession of the Premises, the Premises shall constitute
Lessee's address for notice. A copy of all notices to Lessor shall be
concurrently transmitted to such party or parties at such addresses as Lessor
may from time to time hereafter designate in writing.
23.2 DATE OF NOTICE. Any notice sent by registered or certified
mail, return receipt requested, shall be deemed given on the date of delivery
shown on the receipt card, or if no delivery date is shown, the postmark
thereon. If sent by regular mail the notice shall be deemed given forty-eight
(48) hours after the same is addressed as required herein and mailed with
postage prepaid. Notices delivered by United States Express Mail or overnight
courier that guarantee next day delivery shall be deemed given twenty-four (24)
hours after delivery of the same to the Postal Service or courier. Notices
transmitted by facsimile transmission or similar means shall be deemed delivered
upon telephone confirmation of receipt, provided a copy is also delivered via
delivery or mail. If notice is received on a Saturday, Sunday or legal holiday,
it shall be deemed received on the next business day.
24. WAIVERS. No waiver by Lessor of the Default or Breach of any term,
covenant or condition hereof by Lessee, shall be deemed a waiver of any
other term, covenant or condition hereof, or of any subsequent Default
or Breach by Lessee of the same or of any
other term, covenant or condition hereof. Lessor's consent to, or
approval of, any act shall not be deemed to render unnecessary the
obtaining of Lessor's consent to, or approval of, any subsequent or
similar act by Lessee, or be construed as the basis of an estoppel to
enforce the provision or provisions of this Lease requiring such
consent. The acceptance of Rent by Lessor shall not be a waiver of any
Default or Breach by Lessee. Any payment by Lessee may be accepted by
Lessor on account of monies or damages due Lessor, notwithstanding any
qualifying statements or conditions made by Lessee in connection
therewith, which such statements and/or conditions shall be of no force
or effect whatsoever unless specifically agreed to in writing by Lessor
at or before the time of deposit of such payment.
25. RECORDING. Either Lessor or Lessee shall, upon request of the other,
execute, acknowledge and deliver to the other a short form memorandum
of this Lease for recording purposes. The Party requesting recordation
shall be responsible for payment of any fees applicable thereto.
26. NO RIGHT TO HOLDOVER. Lessee has no right to retain possession of the
Premises or any part thereof beyond the expiration or termination of
this Lease. In the event that Lessee holds over, then the Base Rent
shall be increased to one hundred fifty percent (150%) of the Base Rent
applicable during the month immediately preceding the expiration or
termination. Nothing contained herein shall be construed as consent by
Lessor to any holding over by Lessee.
27. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
28. COVENANTS AND CONDITIONS; CONSTRUCTION OF AGREEMENT. All provisions of
this Lease to be observed or performed by Lessee are both covenants and
conditions. In construing this Lease, all headings and titles are for
the convenience of the Parties only and shall not be considered a part
of this Lease. Whenever required by the context, the singular shall
include the plural and vice versa. This Lease shall not be construed as
if prepared by one of the Parties, but rather according to its fair
meaning as a whole, as if both Parties had prepared it.
29. BINDING EFFECT; CHOICE OF LAW. This Lease shall be binding upon the
Parties, their personal representatives, successors and assigns and be
governed by the laws of the State in which the Premises are located.
Any litigation between the Parties hereto concerning this Lease shall
be initiated in the county in which the Premises are located.
30. SUBORDINATION; ATTORNMENT; NON-DISTURBANCE.
30.1 SUBORDINATION. Subject to Paragraph 30.3 this Lease and
any Option granted hereby shall be subject and subordinate to any ground lease,
mortgage, deed of trust or other hypothecation or security device (collectively,
"Security Device"), now or hereafter placed upon the Premises, to any and all
advances made on the security thereof, and to all renewals, modifications, and
extensions thereof. Lessee agrees that the holders of any such Security Devices
(in this Lease together referred to as "Lessor's Lender") shall have no
liability or obligation to perform any of the obligations of Lessor under this
Lease. Any Lender may elect to have this Lease and/or any Option granted hereby
superior to the lien of its Security Device by giving written notice thereof to
Lessee, whereupon this Lease and such Options shall be deemed prior to such
Security Device, notwithstanding the relative dates of the documentation or
recordation thereof.
30.2 ATTORNMENT. Subject to the non-disturbance provisions of
Paragraph 30.3, Lessee agrees to attorn to a Lender or any other party who
acquires ownership of the Premises by reason of a foreclosure of a Security
Device, and that in the event of such foreclosure, such new owner shall not: (i)
be liable for any act or omission of any prior lessor or with respect to events
occurring prior to acquisition of ownership; (ii) be subject to any offsets or
defenses which Lessee might have against any prior lessor; or (iii) be bound by
prepayment of more than one (1) month's rent.
30.3 NON-DISTURBANCE. With respect to Security Devices entered into
by Lessor after the execution of this Lease, Lessee's subordination of this
Lease shall be subject to receiving a commercially reasonable non-disturbance
agreement (a "Non-Disturbance Agreement") from the Lender which Non-Disturbance
Agreement provides that Lessee's possession of the Premises, and this Lease,
including any options to extend the term hereof, will not be disturbed so long
as Lessee is not in Breach hereof and attorns to the record owner of the
Premises. Further, within sixty (60) days after the execution of this Lease,
Lessor shall use its commercially reasonable efforts to obtain a Non-Disturbance
Agreement from the holder of any pre-existing Security Device which is secured
by the Premises. In the event that Lessor is unable to provide the
Non-Disturbance Agreement within said sixty (60) days, then Lessee may, at
Lessee's option, directly contact Lessor's lender and attempt to negotiate for
the execution and delivery of a Non-Disturbance Agreement.
30.4 SELF-EXECUTING. The agreements contained in this Paragraph 30
shall be effective without the execution of any further documents; provided,
however, that, upon written request from Lessor or a Lender in connection with a
sale, financing or refinancing of the Premises, Lessee and Lessor shall execute
such further writings as may be reasonably required to separately document any
subordination, attornment and/or Non-Disturbance Agreement provided for herein.
31. ATTORNEYS' FEES. If any Party or Broker brings an action or proceeding
involving the Premises to enforce the terms hereof or to declare rights
hereunder, the Prevailing Party (as hereafter defined) in any such
proceeding, action, or appeal thereon, shall be entitled to reasonable
attorneys' fees. Such fees may be awarded in the same suit or recovered
in a separate suit, whether or not such action or proceeding is pursued
to decision or judgment. The term, "PREVAILING PARTY" shall include,
without limitation, a Party or Broker who substantially obtains or
defeats the relief sought, as the case may be, whether by compromise,
settlement, judgment, or the abandonment by the other Party or Broker
of its claim or defense. The attorneys' fees award shall not be
computed in accordance with any court fee schedule, but shall be such
as to fully reimburse all attorneys' fees reasonably incurred. In
addition, Lessor shall be entitled to attorneys' fees, costs and
expenses incurred in the preparation and service of notices of Default
and consultations in connection therewith, whether or not a legal
action is subsequently commenced in connection with such Default or
resulting Breach.
32. LESSOR'S ACCESS; SHOWING PREMISES; REPAIRS. [See Addendum Paragraph 61]
33. AUCTIONS. Lessee shall not conduct, nor permit to be conducted, any
auction upon the Premises without Lessor's prior written consent.
Lessor shall not be obligated to exercise any standard of
reasonableness in determining whether to permit an auction.
34. SIGNS. See Addendum Paragraph 62.
35. TERMINATION; MERGER. Unless specifically stated otherwise in writing by
Lessor, the voluntary or other surrender of this Lease by Lessee, the
mutual termination or cancellation hereof, or a termination hereof by
Lessor for Breach by Lessee, shall automatically terminate any sublease
or lesser estate in the Premises; provided, however, that Lessor may
elect to continue any one or all existing subtenancies. Lessor's
failure within ten (10) days following any such event to elect to the
contrary by written notice to the holder of any such lesser interest,
shall constitute Lessor's election to have such event constitute the
termination of such interest.
36. CONSENTS. Except as otherwise provided herein, wherever in this Lease
the consent of a Party is required to an act by or for the other Party,
such consent shall not be unreasonably withheld or delayed. Lessor's
actual reasonable costs and expenses (including but not limited to
architects', attorneys', engineers' and other consultants' fees)
incurred in the consideration of, or response to, a request by Lessee
for any Lessor consent, including but not limited to consents to an
assignment, a subletting or the presence or use of a Hazardous
Substance, shall be paid by Lessee upon receipt of an invoice and
supporting documentation therefor. Lessor's consent to any act,
assignment or subletting shall not constitute an acknowledgment that no
Default or Breach by Lessee of this Lease exists, nor shall such
consent be deemed a waiver of any then existing Default or Breach,
except as may be otherwise specifically stated in writing by Lessor at
the time of such consent. The failure to specify herein any particular
condition to Lessor's consent shall not preclude the imposition by
Lessor at the time of consent of such further or other conditions as
are then reasonable with reference to the particular matter for which
consent is being given. In the event that either Party disagrees with
any determination made by the other hereunder and reasonably requests
the reasons for such determination, the determining party shall furnish
its reasons in writing and in reasonable detail within ten (10)
business days following such request.
37.
37.1
37.2
38. QUIET POSSESSION. Subject to payment by Lessee of the Rent and
performance of all of the covenants, conditions and provisions on
Lessee's part to be observed and performed under this Lease, Lessee
shall have quiet possession and quiet enjoyment of the Premises during
the term hereof. Any remedy for breach of this provision shall be
limited to damages or injunction and not Lease termination.
39. OPTIONS.
39.1 DEFINITION. "Option" shall mean: (a) the right to extend the
term of or renew this Lease or to extend or renew any lease that Lessee has on
other property of Lessor; (b) the right of first refusal or first offer to lease
either the Premises or other property of Lessor; (c) the right to purchase or
the right of first refusal to purchase the Premises or other property of Lessor.
39.2 OPTIONS PERSONAL TO ORIGINAL LESSEE. Each Option granted to
Lessee in this Lease is personal to the original Lessee, and cannot be assigned
or exercised by anyone other than said original Lessee and only while the
original Lessee is in full possession of the Premises and, if requested by
Lessor, with Lessee certifying that Lessee has no intention of thereafter
assigning or subletting.
39.3 MULTIPLE OPTIONS. In the event that Lessee has any multiple
Options to extend or renew this Lease, a later Option cannot be exercised unless
the prior Options have been validly exercised.
39.4 EFFECT OF DEFAULT ON OPTIONS.
(a) Lessee shall have no right to exercise an Option: (i)
during the period commencing with the giving of any notice of Default and
continuing until said Default is cured; (ii) during the period of time any Rent
is unpaid (without regard to whether notice thereof is given Lessee); (iii)
during the time Lessee is in Breach of this Lease.
(b) The period of time within which an Option may be
exercised shall not be extended or enlarged by reason of Lessee's inability to
exercise an Option because of the provisions of Paragraph 39.4(a).
(c) An Option shall terminate and be of no further force
or effect, notwithstanding Lessee's due and timely exercise of the Option, if,
after such exercise and prior to the commencement of the extended term, if
Lessee commits a Breach of this Lease and Lessor terminates this Lease,
40. MULTIPLE BUILDINGS. If the Premises are a part of a group of buildings
controlled by Lessor Lessee agrees that it will observe all reasonable
rules and regulations which Lessor may make from time to time for the
management, safety, and care of said properties, including the care and
cleanliness of the grounds and including the parking, loading and
unloading of vehicles, and that Lessee will pay its fair share of
common expenses incurred in connection therewith.
41. SECURITY MEASURES. Lessee hereby acknowledges that the rental payable
to Lessor hereunder does not include the cost of guard service or other
security measures, and that Lessor shall have no obligation whatsoever
to provide same. Lessee assumes all responsibility for the protection
of the Premises, Lessee, its agents and invitees and their property
from the acts of third parties.
42. RESERVATIONS. Lessor reserves to itself the right, from time to time,
to grant, without the consent or joinder of Lessee, such easements,
rights and dedications that Lessor deems necessary, and to cause the
recordation of parcel maps and restrictions, so long as such easements,
rights, dedications maps and restrictions do not unreasonably interfere
with the use of the Premises by Lessee or increase Lessee's costs or
obligations hereunder. Lessee agrees to sign any documents reasonably
requested by Lessor to effectuate any such easement rights, dedication,
map or restrictions.
43. PERFORMANCE UNDER PROTEST. If at any time a dispute shall arise as to
any amount or sum of money to be paid by one Party to the other under
the provisions hereof, the Party against whom the obligation to pay the
money is asserted shall have the right to make payment "under protest"
and such payment shall not be regarded as a voluntary payment and there
shall survive the right on the part of said Party to institute suit for
recovery of such sum. If it shall be adjudged that there was no legal
obligation on the part of said Party to pay such sum or any part
thereof, said Party shall be entitled to recover such sum or so much
thereof as it was not legally required to pay.
44. AUTHORITY. If either Party hereto is a corporation, trust, limited
liability company, partnership, or similar entity, each individual
executing this Lease on behalf of such entity represents and warrants
that he or she is duly authorized to execute and deliver this Lease on
its behalf. Each Party shall, within thirty (30) days after request,
deliver to the other party satisfactory evidence of such authority.
45. CONFLICT. Any conflict between the printed provisions of this Lease and
the typewritten or handwritten provisions shall be controlled by the
typewritten or handwritten provisions.
46. OFFER. Preparation of this Lease by either Party or their agent and
submission of same to the other Party shall not be deemed an offer to
lease to the other Party. This Lease is not intended to be binding
until executed and delivered by all Parties hereto.
47. AMENDMENTS. This Lease may be modified only in writing, signed by the
Parties in interest at the time of the modification. As long as they do
not materially change Lessee's obligations hereunder, Lessee agrees to
make such reasonable non-monetary modifications to this Lease as may be
reasonably required by a Lender in connection with the obtaining of
normal financing or refinancing of the Premises.
48. MULTIPLE PARTIES. If more than one person or entity is named herein as
either Lessor or Lessee, such multiple Parties shall have joint and
several responsibility to comply with the terms of this Lease.
49. MEDIATION AND ARBITRATION OF DISPUTES. An Addendum requiring the
Mediation and/or the Arbitration of all disputes between the Parties
and/or Brokers arising out of this Lease / / is /X/ is not attached to
this Lease.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH
TERM AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW
THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT
THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY
REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH
RESPECT TO THE PREMISES.
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ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN
INDUSTRIAL REAL ESTATE ASSOCIATION OR BY ANY BROKER AS TO THE LEGAL SUFFICIENCY,
LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION TO WHICH IT
RELATES. THE PARTIES ARE URGED TO:
1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS
LEASE.
2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION
OF THE PREMISES. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO: THE
POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PREMISES, THE
STRUCTURAL INTEGRITY, THE CONDITION OF THE ROOF AND OPERATING SYSTEMS, AND THE
SUITABILITY OF THE PREMISES FOR LESSEE'S INTENDED USE.
WARNING: IF THE PREMISES IS LOCATED IN A STATE OTHER THAN CALIFORNIA, CERTAIN
PROVISIONS OF THE LEASE MAY NEED TO BE REVISED TO COMPLY WITH THE LAWS OF THE
STATE IN WHICH THE PREMISES IS LOCATED.
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The Parties hereto have executed this Lease at the place and on the dates
specified above their respective signatures.
Executed at: Palo Alto , CA Executed at: Palo Alto, CA
on: October 14, 1999 on:
----------------
by LESSOR: by LESSEE:
XXXXX X. XXXXXX, TRUSTEE OF THE OMNICELL TECHNOLOGIES, INC., a California
X.X. XXXXXX AND XXXXX X. XXXXXX corporation
TRUST UTA DATED January 12, 1988,
As Amended
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx X. Xxx
Name Printed: Xxxxx X. Xxxxxx Name Printed: Xxxx X. Xxxx
Title: Trustee Title:
-----------------------------------------
By: By:
-------------------------------------- --------------------------------------------
Name Printed: Name Printed:
---------------------------- ----------------------------------
TITLE: Title:
----------------------------------------- -----------------------------------------
Address: 0000 Xxxx Xxxxxx Xxxxx Xxxxxxx: Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Telephone: (000) 000-0000 Telephone: ( )
------------------------------------
Facsimile: (000) 000-0000 Facsimile: ( )
------------------------------------
Federal ID No. Federal ID No.
--------------------------- ---------------------------------
NOTE: These forms are often modified to meet changing requirements of law and
industry needs. Always write or call to make sure you are utilizing the
most current form: AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION, 000 Xx.
Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000. (213)
000-0000. Fax No. (000) 000-0000
ADDENDUM TO LEASE
0000 Xxxx Xxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx
This Addendum to Lease is entered into as of September 24, 1999, by and
between XXXXX X. XXXXXX, TRUSTEE OF THE X.X. XXXXXX AND XXXXX X. XXXXXX TRUST
UTA DATED JANUARY 12, 1988, AS AMENDED, Lessor, and OMNICELL TECHNOLOGIES, INC.,
a California corporation, Lessee, for the Premises at 0000 Xxxx Xxxxxx Xxxxxx,
Xxxx Xxxx, Xxxxxxxxxx.
Lessor and Lessee further agree as follows:
50. BASE RENT.
(a) Lessee shall pay to Lessor Base Rent per month based upon the
Premises consisting of 18,360 rentable square feet, as
follows:
Base Rent
Period Rental Rate Per Month
------ ----------- ---------
December 15, 1999 -December 14, 2000 $2.25/Sq. Ft./Mo. NNN $41,310.00
December 15, 2000 -December 14, 2001 $2.33/Sq. Ft./Mo. NNN $42,778.80
December 15, 2001 -December 14, 2002 $2.41/Sq. Ft./Mo. NNN $44,247.60
December 15, 2002 -December 14, 2003 $2.49/Sq. Ft./Mo. NNN $45,716.40
December 15, 2003 -December 14, 2004 $2.58/Sq. Ft./Mo. NNN $47,368.80
(b) Lessee shall pay to Lessor upon the execution and delivery of
this Lease the sum of $41,310 as Base Rent for the period
December 15, 1999 to January 14, 2000.
(c) Prior to Lessee occupying the Premises on the Early Possession
Date, Lessee shall deliver to Lessor a certificate of
insurance and waiver of subrogation.
51. OPTION TO EXTEND. Lessee shall have one (1) five (5) year
option to extend the Lease at one hundred percent (100%) of the then fair market
rent. In no event shall rent in the option period be less than the rent paid in
the last year of the initial term. Said option to extend shall not be exercised
by Lessee for the purpose of making a profit on a sublease. Assignment of the
Lease or subletting of the Premises or any portion thereof by Lessee during the
option extension period shall be subject to the prior written consent of Lessor
and shall be subject to the provisions of Paragraph 12 as supplemented by this
Paragraph 51. Assignment of the Lease or subletting of the Premises during the
option extension period shall also be subject to the prior written approval of
the Ground Lessor in accordance with the Ground Lease. Lessor may condition
Lessor's consent to an assignment or subletting to Lessor receiving fifty
percent (50%) of the bogus rent, if any, after deducting only a standard leasing
commission payable by Lessee which shall be subject to Lessor's prior written
approval, which approval shall not be unreasonably withheld. Any assignment or
sublease to which Lessor and the Ground Lessor consent in the first instance
shall expressly prohibit any further assignment or subletting of all or any
portion of the Premises by such initial assignee or sublessee. At Lessor's
option, Lessor may terminate the Lease and recapture the Premises upon
receipt by Lessor of a request from Lessee for Lessor's consent to an assignment
or subletting of all or any portion of the Premises. If Lessor elects to
terminate this Lease, (a) as of the effective date of termination, Lessor and
Lessee shall be released and discharged from any liability or obligation to the
other under this Lease which accrues thereafter, and (b) Lessee agrees that
Lessor may enter into a direct lease with such proposed assignee or sublessee
without any obligation or liability to Lessee.
Lessee may exercise the option to extend by giving written notice of
exercise to Lessor at least six (6) months but not more than twelve (12) months
prior to the expiration of the initial Lease term, provided that if Lessee is
currently in default under the Lease at the time of exercise of the option or at
the commencement date of the option extension period, such notice shall be void
and of no force or effect and the option shall lapse. If exercised, the option
extension period shall be upon the same terms and conditions as the initial
Lease term, except that (i) the initial monthly Base Rent and rental adjustments
during the option period shall be one hundred percent (100%) of the then fair
market rent as agreed upon by the parties within thirty (30) days after the
exercise of the option or if the parties are unable to agree, then by appraisal,
but the initial monthly Base Rent shall not be less than the monthly Base Rent
payable during the last twelve (12) months of the initial Lease term and the
periodic adjustments of Base Rent shall not be less than the annual percentage
adjustments of Base Rent for the initial term as provided in Paragraph 50(a);
and (ii) there shall be no additional option to extend. If Lessee does not
exercise the option to extend at least six (6) months prior to the expiration of
the initial term, the option shall lapse, time being of the essence.
52. CONDITION OF THE PREMISES; TENANT IMPROVEMENTS.
(a) Prior to the occupancy of the Premises by Lessee, Lessor shall
cause to be constructed and completed the Tenant Improvements
to the Premises listed on the schematic plan prepared by LRS
Architects dated August 27, 1999, a copy of which has been
delivered by Lessor to Lessee and is incorporated by reference
herein. Lessor shall cause the Tenant Improvements to be
constructed by Xxxxxx Construction Group (the "Contractor")
pursuant to an Agreement between Lessor and the Contractor
(the "Construction Contract"). The Construction Contract shall
be subject to Lessee's approval, which approval shall not be
unreasonably withheld. A copy of the approved Construction
Contract shall be attached hereto as EXHIBIT "A." Any
additional working drawings for the Tenant Improvements shall
be prepared by LRS Architects at Lessor's expense. The
Construction Contract and the working drawings for the Tenant
Improvements shall be subject to approval by Lessee, which
approval shall not be unreasonably withheld. The Construction
Contract shall include a guarantee by the Contractor against
defects in workmanship or materials for one (1) year. The
electrical system, HVAC ..system, and plumbing in the Premises
shall be in good working order upon completion of the Tenant
Improvements.
(b) The total cost of the Tenant Improvements is estimated to be
approximately Eight Hundred Fifty Thousand Dollars ($850,000).
Lessor shall pay (1) the cost of certain basic upgrades and
improvements to the Premises at a cost of approximately Three
Hundred Thirty-Five Thousand Dollars ($335,000), and (2)the
additional sum of Two Hundred Thirty-Five Thousand Dollars
($235,000) as Lessor's Tenant Improvement Allowance. The sum
of said two (2) amounts is referred to as "Lessor's
Contribution" to the cost of the Tenant Improvements. Lessee
shall pay to Lessor in a lump sum in cash promptly upon
completion of the Tenant Improvements and receipt by Lessee of
an invoice therefore from Lessor, that portion of the cost of
the Tenant Improvements which exceeds Lessor's Contribution
plus the added cost of any change orders requested by Lessee
pursuant to Paragraph 52(c).
(c) After the working drawings have been approved by Lessor and
Lessee in final form in writing as provided above, Lessee
shall have the right to request change orders to the Tenant
Improvements. Any change order requested by Lessee shall be
subject to the prior written approval of Lessor, which consent
shall not be unreasonably withheld or delayed provided that
Lessee agrees to pay in a lump sum in cash promptly upon
completion of the Tenant Improvements any increase in the cost
of the Tenant Improvements resulting from such change order,
and provided further that if any change order results in a
delay in the completion of the Tenant Improvements beyond
December 15, 1999, the rent commencement shall be December 15,
1999.
(d) All of the Tenant Improvements shall become a part of the
realty and shall remain with the property upon the expiration
or sooner termination of this Lease, except for items which
Lessor and Lessee agree in writing prior to commencement of
construction may be or shall be removed by Lessee.
(e) If the Tenant Improvements are not completed by December 15,
1999 due solely to delays caused by Lessee which are
documented by Lessor and/or the Contractor, the Commencement
Date and rent commencement shall be December 15, 1999.
53. ALTERATIONS OR IMPROVEMENTS. If Lessee shall desire to make
any Alterations or improvements to the Premises, or any part or parts thereof at
any time or times during the term of this Lease or the option period, the same
shall be subject to Lessor's prior written approval, and if approved, such
Alterations shall be constructed without cost or expense to Lessor, in
accordance with the requirements of all laws, ordinances, codes, orders, rules
and regulations of all governmental authorities having jurisdiction over the
Premises. Should any modifications require a building permit, such work shall be
done by a licensed contractor. Subsequent structural or design modifications to
the Premises involving a cost of more than Twenty-Five Thousand Dollars
($25,000) shall not be made until the Ground Lessor has given its written
approval of detailed plans and specifications for the work. Lessor shall have
the right to require Lessee to restore the Premises to their original condition
on occupancy when the Lease expires or terminates. Upon request from Lessee,
Lessor shall advise Lessee in writing whether Lessor reserves the right to
require Lessee to remove any specific Alterations or Utility Installations from
the Premises upon the termination of the Lease. Otherwise, the Premises shall be
returned to Lessor in "clean" condition including carpet cleaning and repair of
any damages,
54. HAZARDOUS SUBSTANCES.
(a) DEFINITION; COVENANT BY LESSEE. The term "Hazardous Substance"
as used in this Lease shall mean any product, substance,
chemical, material, or waste whose presence, nature, quantity
and/or intensity of existence, use, manufacture, disposal,
transportation, spill release or effect, either by itself or
in combination with other materials expected to be on the
Premises, is either (i) regulated or monitored by any
governmental authority, or (ii) a basis for liability of
Lessor to any governmental agency or third party under any
applicable statute or common law theory. Hazardous Substance
shall include, but not be limited to, hydrocarbons, petroleum,
gasoline, crude oil or any products, by-products or fractions
thereof. Lessee shall not cause any contamination or damage to
the Premises or the neighboring properties or cause Lessor to
incur any liability, loss, or damage as a result of the
generation, possession, storage, use, transportation, or
disposal by Lessee of any Hazardous Substances in the conduct
of Lessee's business on the Premises. Notwithstanding the
foregoing, Lessee may, without Lessor's prior consent, but in
compliance with all Applicable Law, use any ordinary and
customary materials reasonably required to be used by Lessee
in the normal course of Lessee's business permitted on the
Premises, so long as such use does not expose the
Premises or neighboring properties to any meaningful risk of
contamination or damage or expose Lessor to any liability
therefor. Prior to the occupancy of the Premises by Lessee,
Lessee shall deliver to Lessor a list of the Hazardous
Substances which Lessee considers to be ordinary and customary
materials reasonably required to be used by Lessee in the
normal course of Lessee's permitted use of the Premises. If
Lessor concurs therewith, Lessor shall so confirm in writing
to Lessee, and such confirmation shall constitute Lessor's
consent to the existence, use, manufacture, storage, and
transportation of-such Hazardous Substances in, on, and about
the Premises during the term of this Lease.
(b) DUTY TO INFORM LESSOR. Upon the commencement of the Lease term
and on each anniversary date thereafter, Lessee shall provide
to Lessor a list of the primary Hazardous Substances which
Lessee uses or stores on the Premises, along with, as to each
such Hazardous Substance, its purpose and the approximate
volume brought onto the Premises since the last report to
Lessor under this Paragraph 54(b). Lessee shall deliver to
Lessor (1) a copy of Lessee's current Hazardous Substances
Management Plan, and any amendments or supplements thereto, or
replacements thereof, from time to time during the term of
this Lease, and (2) a copy of all Hazardous Substances reports
or plans filed by Lessee with the City of Palo Alto, even
though Lessee's Hazardous Substances Management Plan and any
such reports on plans filed with the City show that Lessee is
not currently using any reportable Hazardous Substances on the
Premises.
(c) INDEMNIFICATION.
(i) Lessee shall indemnify, protect, defend and hold
Lessor, and Lessor's agents, employees, successors
and assigns, harmless from and against any and all
loss of rents and/or damages, liabilities, judgments,
costs, claims, liens, expenses, penalties, permits
and attorneys' and consultants' fees if incurred as a
result of the release, discharge or emission of any
Hazardous Substance or storage tank brought on the
Premises during the Lease term by or for Lessee or
under Lessee's control. Lessee's obligations under
this Paragraph 54 shall include, but not be limited
to, the effects of any contamination or injury to
person, property, or the environment created by
Lessee, and the cost of investigation (including
consultants' and attorneys' fee), testing, removal,
remediation, restoration and/or abatement thereof, or
of any contamination therein involved, and shall
survive the expiration or earlier termination of this
Lease. No termination, cancellation, or release
agreement entered into by Lessor and Lessee shall
release Lessee from Lessee's obligations under this
Lease with respect to Hazardous Substances or storage
tanks, unless specifically so agreed by Lessor in
writing at the time of such agreement.
(ii) Lessor represents and warrants to Lessee that to the
best of Lessor's knowledge there are no Hazardous
Substances located in, on, under, or about the
Premises as of the Commencement Date of the term of
this Lease. Lessee shall have no responsibility to
Lessor or to any other person with respect to the
existence of any Hazardous Substances or storage tank
on the Premises that is not brought onto the Premises
or caused by any of Lessee's employees, agents,
contractors, or other persons under Lessee's control
or acting for or on behalf of Lessee.
(iii) Lessor shall indemnify, defend, protect and hold
Lessee, its employees, agents, shareholders,
licensees, invitees, officers and directors, harmless
from and against any claims, actions,
losses, costs, damages, liabilities or expenses
(including, without limitation, reasonable
attorneys', experts' and consultants' fees,
investigation and laboratory fees), arising out of or
in connection with any Hazardous Substance
(including, without limitation, asbestos) which
Lessee establishes was present on the Commencement
Date of the term of this Lease on, under, in or about
the Premises, soil, air, groundwater or surface water
thereof and was not caused by the acts or omissions
of Lessee or its agents, contractors, or employees.
(d) LESSEE'S COMPLIANCE WITH LAW. Except as otherwise provided in
this Lease, Lessee shall, at Lessee's sole cost and expense,
fully diligently and in a timely manner, comply with all
"Applicable Law," which term is used in this Lease shall
include all laws, rules, regulations, ordinances, directives,
covenants, easements and restrictions of record, permits, the
requirements of any applicable fire insurance underwriter or
rating bureau, relating to Lessee's particular use of the
Premises, including, but not limited to, matters pertaining to
(i) industrial hygiene, (ii) environmental conditions on, in,
under or about the Premises, including soil and groundwater
conditions, and (iii) the use, generation, manufacture,
production, installation, maintenance, removal,
transportation, storage, spill or release of any Hazardous
Substance or storage tank), now in effect or which may
hereafter come into effect, and whether or not reflecting a
change in policy from any previously existing policy. Lessee
shall, within ten (10) business days after receipt of Lessor's
written request, provide Lessor with copies of all documents
and information, including, but not limited to, permits,
registrations, manifests, applications, reports and
certifications, evidencing compliance with any Applicable Law
specified by Lessor in writing (with copies or any documents
involved) or any threatened or actual claim known to Lessee,
notice, citation, warning, complaint or report within Lessee's
possession and control pertaining to or involving failure by
Lessee or the Premises to comply with any Applicable Law.
(e) INSPECTION COMPLIANCE. Lessor shall have the right to enter
the Premises at any time in the case of an emergency, and
otherwise at reasonable times upon at least 24 hours notice to
the Lessee and subject to Lessee's reasonable security
precautions, for the purpose of inspecting the condition of
the Premises and for verifying the compliance by Lessee with
this Lease and all Applicable Laws (as defined in subparagraph
(d) above), and to employ experts and/or consultants in
connection therewith and/or to advise Lessor with respect to
Lessee's activities, including, but not limited to, the
installation, operation, use, monitoring, maintenance, or
removal of any Hazardous Substance or storage tank on or from
the Premises. The costs and expenses of any such inspections
shall be paid by the party requesting same, unless a Breach of
this Lease is found to exist, or unless the inspection is
requested or ordered by a governmental authority as the result
of any such existing violation or contamination. In any such
case, Lessee shall upon request reimburse Lessor for the
reasonable costs and expenses of such inspections.
55. MAINTENANCE AND REPAIRS.
(a) Excluded from Lessee's obligations for maintenance and repairs
in Paragraph 7.1(a) are the structural elements of the
Premises, the roof, exterior walls and foundation of the
Premises.
(b) Notwithstanding anything to the contrary in the Lease, Lessor
shall perform and construct, at Lessor's sole cost and
expense, any repair, maintenance or improvement (i)
necessitated by the acts or omissions of Lessor or its agents,
employees, invitees, or licensees, (ii) required as a
consequence of any violation of Applicable Laws or a
construction defect in the Premises as of the
Commencement Date, (iii) which would be treated as a "capital
expenditure" under generally accepted accounting principles,
(iv) occasioned by fire, acts of God or other casualty or by
the exercise of the power of eminent domain, (v) for which
Lessor has a right of reimbursement from others, (vi)to the
structural elements of the Premises, the structural elements
of the roof (but excluding the roof membrane), exterior walls
and foundation of the Premises, and (vii) relating to the
abatement, removal, encapsulation, or other handling of
asbestos in, on or about the Premises existing on the
Commencement Date. Notwithstanding the foregoing, Lessee shall
reimburse Lessor for costs incurred with respect to (iii)
above (excluding costs of asbestos abatement) but only to the
extent that (a) the same reduces the expenses otherwise
payable by Lessee under the Lease and (b) Lessee's share of
such costs during any twelve-month period of the Lease is
amortized over the useful life of the capital item in
question.
(c) Pursuant to Paragraphs 7.1 and 7.2, Lessor's Obligations, of
the printed portion of this Lease, Lessor and Lessee agree
that this Lease is a "NNN Lease" and that it shall be solely
Lessee's obligation to repair and maintain the Premises, and
the equipment therein. Lessee shall reimburse Lessor within
thirty (30) days after written demand for all operating
expenses of the Premises, including, but not limited to, real
property taxes and assessments, and Lessor's property
insurance and liability insurance. Lessee shall directly
contract for and shall be responsible for the performance and
payment for all repairs and maintenance, including but not
limited to, repair and maintenance (and replacement, as
necessary) of the parking area; landscaping; common areas;
building repairs; repair and maintenance of the HVAC system,
including an HVAC service contract providing for inspection,
service and maintenance on a quarterly basis; repair and
maintenance of all other mechanical systems in the building,
and utilities; maintenance, repair, and replacement of the
roof membrane; and other structural and non-structural repairs
and replacement of building elements required as a result of
the installation, repair, maintenance, operation and removal
of Lessee's improvements, fixtures, and equipment.
(d) Upon request, Lessor shall advise Lessee in writing whether it
reserves the right to require Lessee to remove any Alterations
or Utility Installations from the Premises upon termination of
the Lease.
(e) The first sentence of Paragraph 7.4(c), Surrender/Restoration,
is amended to read as follows:
Lessee shall surrender the Premises by the Expiration Date or
any earlier termination date, with all of the improvements, parts and
surfaces thereof broom clean and free of debris, and in good operating
order, condition and state of repair, ordinary wear and tear, acts of
God, casualties, condemnation, Hazardous Substances (other than those
stored, used or disposed of by Lessee in or about the Premises), and
Alterations or Utility Installations which Lessor states in writing may
be surrendered at the termination of the Lease, excepted.
56. INSURANCE.
(a) The parties acknowledge and agree that Lessor is the "Insuring
Party" for purposes of Paragraph 1.9 and Paragraph 8.
(b) Paragraphs 8.3(a) and 8.3(b) of the printed portion of this
Lease (which Paragraphs shall remain in full force and effect)
are supplemented as follows:
The property insurance carried by Lessor pursuant to Paragraph 8.3
shall include (i) property insurance insuring the building and all improvements
which now are or hereafter become a part of the Premises for perils covered by a
causes of loss-special form insurance policy containing both replacement cost
and agreed amount endorsements or options; (ii) boiler and machinery-insurance,
if applicable; (iii) flood insurance; (iv)earthquake insurance (if required by
Lessor's mortgage lender in the future and Lessor's mortgage lender determines
that the cost and availability of earthquake insurance is reasonable); (v)
builders risk insurance during all periods of construction; (vi) insurance
against all other hazards as may be reasonably required by Lessor's lender or
the Ground Lessor; and (vii) rental value insurance for the perils insured
against by Lessor for one hundred percent (1.00%) of the Rent (including
operating expenses, real estate taxes, assessments and insurance costs which are
Lessee's liability) for a period of twelve (12) months.
57. ASSIGNMENT AND SUBLETTING. Paragraph 12, Assignment and
Subletting, of the printed Lease form is amended as follows:
(a) Any assignment of this Lease or any sublease of all or any
portion of the Premises shall be subject to Lessor's prior
written approval, the prior written approval of the Ground
Lessor, and the conditions specified in Paragraph 12 of this
Lease, amended and supplemented as follows: (1) any sublease
base rent in excess of the amount Lessee is paying to Lessor
shall be shared 50-50 by Lessor and Lessee, alter deducting
from such excess only Lessee's customary brokerage fees in
obtaining the assignment or sublease in an amount approved by
Lessor; (2)any such sublease shall provide that further
assignment or sub-subletting by the sublessee is expressly
prohibited; (3) in lieu of approving or disapproving an
assignment or sublease, Lessor may terminate this Lease and
recapture the Premises without any liability to Lessee; and
(4)Lessor shall have not less than fifteen (15) business days
after receipt by Lessor of Lessee's written request for
consent to an assignment or sublease, and all relevant
information requested by Lessor including the transaction
documentation, within which to give Lessor's approval or
disapproval of the sublease, or to terminate this Lease and
recapture the Premises.
(b) Lessee shall reimburse Lessor for Lessor's attorney's fees
incurred in connection with any assignment or sublease
transaction. Said attorney's fees shall be billed at the
attorney's normal hourly rate, but such fees shall not exceed
the total of One Thousand Dollars ($1,000).
(c) Notwithstanding anything to the contrary in this Lease, Lessee
may, without Lessor's prior written consent, without any
participation by Lessor in assignment and subletting proceeds,
and without Lessor's right of recapture the Premises, sublet
the Premises or assign this Lease to a subsidiary, affiliate,
division, or corporation controlling, controlled by or under
common control with Lessee; a successor corporation related to
Lessee by merger, consolidation, nonbankruptcy reorganization,
or government action; or a purchaser of substantially all of
Lessee's assets; provided that in any such case each of the
following conditions is satisfied: no default by Lessee under
this Lease then remains uncured; Lessee shall provide Lessor
with documentary evidence reasonably satisfactory to Lessor
that as of the effective date of such transaction the
assignee, sublessee or transferee has a positive net worth at
least equal to that of Lessee as of the date of this Lease;
and the assignee, sublessee, or transferee shall expressly
assume and agree to perform all of the obligations of Lessee
under this Lease by a written assignment, acceptance of
assignment and assumption, a copy of which shall be delivered
to Lessor concurrently with the assignment, sublease, or
transfer.
58. LATE CHARGES. The second sentence of Paragraph 13.4, Late
Charges, shall read:
Accordingly, if any Rent shall not be received by Lessor within ten
(10) days after receipt by Lessee of written notice from Lessor that
the same is due, Lessee shall pay to Lessor a one time late charge
equal to ten percent (10%) of such overdue amount.
59. CONDEMNATION. If the Premises or any portion thereof are taken
under the power of eminent domain or sold under the threat of the exercise of
said power (all of which are herein called "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority takes
title or possession, whichever occurs first. If the portion of the Premises
taken by condemnation materially impairs Lessee's use and occupancy of the
Premises, Lessee may, at Lessee's option, to be exercised in writing within ten
(10) days after Lessor shall have given Lessee written notice of such taking (or
in the absence of such notice, within ten (10) days after the condemning
authority shall have taken possession) terminate this Lease as of the date the
condemning authority takes such possession. If Lessee does not terminate this
Lease in accordance with the foregoing, this Lease shall remain in full force
and effect as to the portion of the Premises remaining, except that the Base
Rent shall be reduced in the same proportion as the rentable floor area of the
Premises taken bears to the total rentable floor area of the building located on
the Premises and Rent shall be further equitably abated during any restoration
of the Premises. No reduction of Base Rent shall occur if the only portion of
the Premises taken is land on which there is no building. Any award for the
taking of all or any part of the Premises under the power of eminent domain or
any payment made under threat of the exercise of such power shall be the
property of Lessor, whether such award shall be made as compensation for
diminution in value of the leasehold or for the taking of the fee, or as
severance damages; provided, however, that Lessee shall be entitled to any
compensation separately awarded to Lessee for Lessee's relocation expenses
and/or loss of Lessee's Trade Fixtures, any tenant improvements constructed by
Lessee solely at Lessee's expense and Lessee's personal property. In the event
that this Lease is not terminated by reason of such condemnation, Lessor shall
to the extent of its net severance damages received, over and above the legal
and other expenses incurred by Lessor in the condemnation matter, repair any
damage to the Premises caused by such condemnation, except to the extent that
Lessee has been reimbursed therefor by the condemning authority. Lessee shall be
responsible for the payment of any amount in excess of such net severance
damages required to complete such repair to the extent that Lessee has been
reimbursed therefor by the condemning authority.
60. ESTOPPEL CERTIFICATES.
(a) Each Party (as "Responding Party") shall within ten (10)
business days after written notice from the other Party (the
"Requesting Party") execute, acknowledge and deliver to the
Requesting Party a statement in writing certifying: (1) that
none of the terms or provisions of this Lease have been
changed (or if they have been changed, stating how they have
been changed); (2) that this Lease has not been cancelled or
terminated; (3) the last date of payment of Base Rent and
other charges and the time period covered by such payment; and
(4) that, to the party's actual current knowledge, the other
party is not in default under this Lease (or if the other
party is claimed to be in default, stating why).
61. LESSOR'S ACCESS. Lessor and Lessor's agents shall have the
right to enter the Premises at any time, in the case of an emergency, and
otherwise at reasonable times upon one (1) business day's prior notice subject
to Lessee's reasonable security measures for the purpose of showing the same to
prospective purchasers, lenders, or lessees, and making such alterations,
repairs, improvements or additions to the Premises as Lessor may deem necessary.
All such activities shall be without abatement of rent or liability to Lessee.
Lessor may at any time place on the Premises any ordinary "For Sale" signs and
Lessor may during the last six (6) months of the term hereof place on the
Premises any ordinary "For Lease" signs. Lessee may at any time place on or
about the
Premises any ordinary "For Sublease" sign. Lessor shall, however, at all times
minimize any interference with Lessee's operations at the Premises.
62. SIGNS. Lessor grants to Lessee the right to construct a
monument sign and a building sign with Lessee's name thereon at Lessee's
expense, subject to the prior written approval by Lessor of the. size, design,
and location of such signage and subject to approval of such signage by the City
of Palo Alto. Lessee shall remove all such signage at Lessee's expense promptly
upon the expiration or sooner termination of this Lease.
62A. QUIET POSSESSION. Paragraph 38, Quiet Possession, is amended
to read as follows:
At all times that no Breach of this Lease by Lessee exists,
subject to payment by Lessee of the Rent and performance of all of the
covenants, conditions and provisions on Lessee's part to be observed
and performed under this Lease, Lessee shall have quiet possession and
quiet enjoyment of the Premises during the term hereof. Any remedy for
breach of this provision shall be limited to damages or injunction and
not Lease termination.
63. GROUND LEASE. Lessor's interest in the Premises is a leasehold
estate under a Ground Lease dated November 27, 1974, as amended (the "Ground
Lease"), between California Pacific Commercial Corporation ("Ground Lessor"),
and X.X. Xxxxxx and Xxxxx X. Xxxxxx ("Ground Lessee"). This Lease is therefore a
Sublease. This Lease is subject and subordinate to the terms and provisions of
the Ground Lease. There is an action pending in Xxxxx Xxxxx Xxxxxx Xxxxxxxx
Xxxxx, Xxxxxx Xx. XX000000 between Ground Lessor and Ground Lessee. This Lease
is subject to the consent of the Ground Lessor in a form and upon terms and
conditions satisfactory to Ground Lessee.
64. ADDENDUM TO GOVERN. In the event of any inconsistency between
the printed provisions of this Lease and this typed Addendum to Lease, the
provisions of this typed Addendum to Lease shall govern.
65. SUBLEASE OF 0000 X. XXXXXX XXXXXX. Lessor agrees that Lessor
will not unreasonably withhold Lessor's consent to Lessee's anticipated
subleasing of the premises at 0000 X. Xxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx,
subject to obtaining the prior written approval of the Ground Lessor in
accordance with the Ground Lease.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
set forth above.
LESSOR
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, Trustee of The X.X. Xxxxxx and
Xxxxx X. Xxxxxx Trust UTA dated January 12, 1988,
as amended
LESSEE
OMNICELL TECHNOLOGIES, INC.,
a California corporation
By /s/ Xxxx X. Xxx
Its Vice President and Chief Financial Officer
By
---------------------------------------
Its
Memo
X.X. Xxxxxx C., Inc.
0000-Xxxx Xxxxxx Xx.
Xxxx Xxxx, XX 00000-0000
000-000-0000
CONFIDENTIAL 1/13/00
To: Xxxx XxXxxx
From: Xxxxxx Xxxxxx
Re: Amendment to 1085 Lease
Dear Xxxx,
Enclosed is your signed copy of the Amendment to the 1085 lease agreement.
It has been a pleasure working with you. Please do not hesitate to call me with
any future requests.
Sincerely,
/s/ X. Xxxxxx
X. Xxxxxx
FIRST AMENDMENT TO LEASE AGREEMENT
0000 XXXX XXXXXX XXXXXX
XXXX XXXX, XXXXXXXXXX
This First Amendment to Lease Agreement (this "Amendment") is entered
into by and between XXXXX X. XXXXXX, TRUSTEE OF THE X.X. XXXXXX AND XXXXX X.
XXXXXX UTA JANUARY 12, 1988, AS AMENDED ("Lessor"), and OMNICELL TECHNOLOGIES,
INC., a California corporation ("Lessee"), effective January 3, 2000 (the
"Effective Date"). This First Amendment amends the Lease Agreement and Addendum
to Lease entered into between Landlord and Tenant as of September 24, 1999
(collectively, the "Lease").
RECITALS
A. Lessor and Lessee entered into that certain Lease for the
Premises located 0000 Xxxx Xxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx.
B. The Lease term commences on December 15, 1999 and expires on
December 15, 2004.
C. The Lessee, subsequent to executing the Lease, has formally
changed its corporate name form OmniCell Technologies, Inc. to Xxxxxxxx.xxx.
D. Certain delays in the construction and completion of the
Tenant Improvements to the Premises have occurred which will delay Lessee's
possession to the Premises under the Lease.
E. The parties have agreed to delete the last sentence of Section
63, namely, the recitation that the subject Lease (sublease) shall be subject to
the consent of the Ground Lessor.
F. The Lessee has recently been made aware of Ground Lessor's
desire and intent to terminate the subject Lease prior to the expiration of the
Term should Ground Lessor be successful in its action to terminate the Ground
Lease for the Property.
G. The parties desire to amend the terms and conditions of the
Lease as set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual
covenants contained in this Amendment and of good, lawful and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Lessor and Lessee agree as follows:
1. LESSEE CORPORATE NAME CHANGE. Effective October 20, 1999, and
as evidenced by the copy of the Certificate of Amendment to the Lessee's
Articles of Incorporation filed with the California Secretary of State's Office,
attached hereto as Exhibit A, Lessee has formally changed its corporate name
from OmniCell Technologies, Inc. to Xxxxxxxx.xxx. Section 1.1 of the Lease, and
any other references to OmniCell Technologies, shall hereby be revised to
reflect such change.
2. TERM. The Original Term of the Lease, as defined in Section
1.3, shall be revised to reflect a Commencement Date of February 1, 2000 and an
Expiration Date of January 31, 2005. Any Other provisions in the Lease,
dependant on such dates, shall hereby be revised accordingly.
3. GROUND LEASE. The original text of Section 63 is hereby
deleted and replaced by the following:
"Lessor's interest in the Premises is a leasehold estate under a Ground
Lease dated November 27, 1974, as amended (the "Ground Lease"), between
California Pacific Commercial Corporation ("Ground Lessor"), and X.X.
Xxxxxx and Xxxxx X. Xxxxxx ("Ground Lessee"). This Lease is therefor a
Sublease. This Lease is subject and subordinate to the terms and
provisions of the Ground Lease. There is an action pending in Xxxxx
Xxxxx Xxxxxx Xxxxxxxx Xxxxx, Xxxxxx Xx. XX000000 between Ground Lessor
and Ground Lessee, which if decided in favor of Ground Lessor, could
result in the early termination of Ground Lessee's (Lessor under the
instant Lease) interest in the Premises. Ground Lessor, by the letter
of Xxx XxXxxxxx, III, President of Ground Lessor, has notified Lessor
of Ground Lessor's intention to terminate early the instant Lease
should Ground Lessor be successful in the civil action described above.
The parties acknowledge that the Lease is not subject to the approval
of the Ground Lessor; however, the Lease agreement must be submitted to
Ground Lessor for Ground Lessor's review.
Only in the event that Ground Lessor is successful in terminating the
Ground Lease and Ground Lessor thereby terminates this Lease prior to
the expiration of the original term or any extended term, Lessor hereby
agrees to indemnify and reimburse Lessee for reasonable costs and
expenses incurred by Lessee in relocating to suitable replacement
premises in the greater San Francisco Bay Area ("Relocation Expenses").
Such Relocation Expenses shall include, but are not limited to, tenant
improvements at the substitute premises, moving costs for approximately
100 employees, de-installation and re-installation of furniture, costs
related to the installation of alarm and phone systems and the design,
development and installation of hardware, software and systems for
computer network and data/voice wiring costs. Any leasing commission
expenses incurred, if any, shall be paid by Lessee.
Lessee's cost of tenant improvements at the substitute premises to be
reimbursed by Lessor shall not exceed the cost of the tenant
improvements paid for Lessee for the Premises which is currently
estimated to be $310,000. The exact amount of Lessee's cost of the
tenant improvements performed by Lessee at the Premises shall be
confirmed by letter agreement between Lessor and Lessee upon completion
of the tenant improvement work at the Premises. The total of the tenant
improvement costs to be reimbursed to Lessee at the time of the
Lessee's move shall be the Lessee's original tenant improvement costs,
as specified in the letter agreement, increased at the simple rate of
five percent (5%) per year.
Lessor shall liable for the aggregate Relocation Expenses NOT TO EXCEED
$600,000 ("Relocation Expense Cap"), which Relocation Expense Cap shall
be reduced by a factor of ten percent (10%) per year from the
Commencement Date.
In the event that the Ground Lessor is not successful in the legal
action referred to above in terminating the Ground Lease, or the Ground
Lease is terminated under the circumstances where this Lease remains in
full force and effect as confirmed in writing by Lessor and/or
California Pacific Commercial Corporation, and Lessee in form and under
terms reasonably acceptable to Lessee, Lessee agrees upon request of
either Lessor or California Pacific Commercial Corporation to enter
into a further amendment of this Lease specifying such disposition of
the legal action referred to above and releasing the indemnity
obligation referred to in this Section."
4. GENERAL PROVISIONS. In the event of a conflict between the
terms or provisions of this Amendment and the terms or provisions of the Lease,
the terms of this Amendment shall prevail in all respects. All terms and
conditions of the Lease not specifically modified herein shall remain unchanged
and in full force and effect. All terms not specifically defined herein are as
defined in the Lease. Except as modified herein, the Lease shall remain
unchanged and in full force and effect.
AUTHORIZED SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on
the dates indicated.
"LESSOR LESSEE"
XXXXX X. XXXXXX, TRUSTEE OF OMNICELL TECHNOLOGIES, INC
THE X.X. XXXXXX AND XXXXX X. a California corporation
XXXXXX XXX January 12, 1988, AS
AMENDED
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, Trustee of The By: /s/ Xxxx X. Xxx
X.X. Xxxxxx and Xxxxx X. Xxxxxx Xxxx Xxx, Vice President and
Trust UTA dated January 12, 1988, Chief Financial Officer
As amended
Date: 01/05/00 Date: 01/03/00
EXHIBIT A
OMNICELL TECHNOLOGIES, INC. CERTIFICATE OF AMENDMENT
TO ITS ARTICLES OF INCORPORATION
February 3, 2000
Xx. Xxxxx XxXxxx
Xxxxxxxx.Xxx
0000 Xxxx Xxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Dear Xxxxx,
I spoke to Xxxxx Xxxxxx today and he indicated that both he and Xxx XxXxxxx were
in agreement that Xxxxxxxx.xxx would be moving into 0000 Xxxx Xxxxxx Xxxxx,
February 21, 2000.
The initial term of the lease between Omnicell and Xxxxx X. Xxxxxx should be
changed from February 1, 2000 to February 21, 2000. All other provisions in the
"Initial Term" of the lease agreement shall remain the same.
If the above information is true and correct, please sign and return to me at
your earliest convenience.
Sincerely,
/s/ Xxxxxx Xxxxxx /s/ Xxxxx XxXxxx
Xxxxxx Xxxxxx
X.X. Xxxxxx Management Company Xxxxxxxx.Xxx
Date: 02/03/00 Date: 02/04/00
