EXHIBIT 10.11
EASTGATE POINTE LEASE
[Single Tenant Buildings - Triple Net]
BETWEEN
DIVERSIFIED EASTGATE VENTURE,
an Illinois general partnership
LANDLORD
AND
ILLUMINA, INC.,
a Delaware corporation
TENANT
EASTGATE POINTE LEASE
---------------------
[Single Tenant Buildings - Triple Net]
--------------------------------------
TABLE OF CONTENTS
-----------------
Page
1. BASIC LEASE TERMS............................................................. 1
2. PREMISES AND COMMON AREAS..................................................... 4
3. TERM.......................................................................... 5
4. CONSTRUCTION AND POSSESSION................................................... 6
5. RENT......................................................................... 10
6. OPERATING EXPENSES........................................................... 11
7. DEPOSIT...................................................................... 17
8. USE.......................................................................... 18
9. NOTICES...................................................................... 20
10. BROKERS...................................................................... 21
11. SURRENDER; HOLDING OVER...................................................... 21
12. TAXES........................................................................ 22
13. ALTERATIONS.................................................................. 22
14. REPAIRS...................................................................... 24
15. LIENS........................................................................ 25
16. ENTRY BY LANDLORD............................................................ 25
17. UTILITIES AND SERVICES....................................................... 25
18. ASSUMPTION OF RISK AND INDEMNIFICATION....................................... 25
19. INSURANCE.................................................................... 26
20. DAMAGE OR DESTRUCTION........................................................ 29
21. EMINENT DOMAIN............................................................... 30
22. DEFAULTS AND REMEDIES........................................................ 31
-i-
23. LANDLORD'S DEFAULT............................................................ 33
24. ASSIGNMENT AND SUBLETTING..................................................... 34
25. SUBORDINATION................................................................. 36
26. ESTOPPEL CERTIFICATE.......................................................... 36
27. EASEMENTS..................................................................... 36
28. RULES AND REGULATIONS......................................................... 37
29. MODIFICATION AND CURE RIGHTS OF LANDLORD'S MORTGAGEES AND LESSORS............. 37
30. DEFINITION OF LANDLORD........................................................ 37
31. WAIVER........................................................................ 37
32. PARKING....................................................................... 37
33. FORCE MAJEURE................................................................. 38
34. SIGNS......................................................................... 38
35. LIMITATION ON LIABILITY....................................................... 39
36. FINANCIAL STATEMENTS.......................................................... 39
37. QUIET ENJOYMENT............................................................... 39
38. AUCTIONS...................................................................... 39
39. MISCELLANEOUS................................................................. 39
40. EXECUTION OF LEASE............................................................ 41
SIGNATURE PAGE..................................................................... 41
EXHIBITS:
--------
A-1 Legal Description of Premises
A-2 Site Plan
B Project Plans
C Union Guidelines
D Intentionally Omitted
E Intentionally Omitted
F Estoppel Certificate
G Rules and Regulations
-ii-
RIDERS
------
Right of First Offer to Lease Building C
Option to Purchase Development
-iii-
EASTGATE POINTE LEASE
[Single Tenant Buildings - Triple Net]
This LEASE ("Lease") is entered into as of the 6th day of July, 2000,
by and between DIVERSIFIED EASTGATE VENTURE, an Illinois general partnership
("Landlord"), and ILLUMINA, INC., a Delaware corporation ("Tenant").
1. BASIC LEASE TERMS. For purposes of this Lease, the following
terms have the following definitions and meanings:
(a) Landlord's Address (For Notices):
DIVERSIFIED EASTGATE VENTURE
c/o Diversified Properties
0000 Xxxxxxxxx Xxx, Xxxxx 000
Xx Xxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxxx
or such other place as Landlord may from time to time designate
by notice to Tenant.
(b) Tenant's Address prior to the commencement date:
ILLUMINA, INC.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
(c) Development: The parcel(s) of real property commonly known
as Eastgate Pointe and located on Towne Center Drive in the Eastgate Technology
Park in the City of San Diego (the "City"), County of San Diego (the "County"),
State of California ("State"), as shown on Exhibit A-1 attached hereto, together
with any improvements constructed thereon.
(d) "Buildings" mean, collectively, "Building A", "Building B",
"Building C" and "Building D" as defined below, or other buildings containing
Rentable Area constructed within the Development from time to time.
(e) "Building A" means that certain two story building which is
to be constructed and is to contain approximately 46,250 "Rentable Square Feet,"
as generally depicted on the Site Plan attached hereto as Exhibit A-2 ("Site
Plan"). As more particularly provided below, the "Premises" will include all of
Building A.
(f) "Building B" means that certain two story building which is
to be constructed and is to contain approximately 51,250 Rentable Square Feet,
as more particularly depicted on the Site Plan. As more particularly provided
below, the Premises will include all of Building B.
(g) "Building C" means that certain building which is to contain
approximately 81,000 Rentable Square Feet, as more particularly depicted on the
Site Plan. As of the Effective Date of this Lease, the Premises do not include
any of Building C. Tenant shall have a Right of First Offer to lease Building
C, pursuant to the Right of First Offer Rider attached to this Lease.
(h) "Building D" means that certain building which may, at
Landlord's election, be constructed within the Development, and which may
contain approximately 11,000 square feet of floor area, in the general area more
particularly depicted on the Site Plan, and of which floor area 40% will be
allocated to recreational facilities and 60% will be allocated to Rentable Area.
The Premises are not to include any of Building D. Notwithstanding anything
herein to the contrary, the Rentable Area of any portion of Building D
designated as a recreational facility and included within the Common Areas is
not to be included within any Rentable Area calculation in this Lease for the
Development, specifically including the calculation of Tenant's Percentage share
of Operating Expenses. Also notwithstanding anything herein to the contrary,
Landlord and Tenant acknowledge and agree that the approximate location and
dimensions of Building D depicted on the Site Plan may change slightly, as
required by applicable governmental authorities or laws. Provided that such
modification from that presently depicted on the Site Plan does not materially
and adversely impact Tenant's use of the Premises or the Common Area, then,
notwithstanding anything herein to the contrary, any such deviation from the
location or dimensions presently depicted on the Site Plan shall be
automatically be deemed approved by Tenant.
(i) Premises: means (i) Building A to be constructed by Landlord
with the Building Shell Improvements and the Core Improvements completed, as
such terms are defined and described below, and to consist of approximately
46,250 Rentable Square Feet and (ii) Building B to be constructed by Landlord
with the Building Shell Improvements and the Core Improvements completed, and to
consist of approximately 51,250 Rentable Square Feet (for a total Premises
Rentable Square Footage of approximately 97,500 square feet), plus Tenant's non-
exclusive rights to use the Common Areas, as more particularly provided below.
(j) "Rentable Area" or "Rentable Square Footage" means the
Rentable Area measured in accordance with the American National Standard of
measuring floor area in single tenant buildings (gross building area) of the
Building Owners and Managers Association International (BOMA). The Premises will
include the entirety of the Rentable Area of Building A and Building B. Upon the
substantial completion of the Project Work, as such term is defined in Paragraph
4(a), Landlord's architect or space planner shall determine and certify in
writing to Landlord the actual Rentable Area of the Premises, which
determinations and certifications shall be made in accordance with the above
BOMA Standard and shall be conclusive upon Landlord and Tenant, and thereupon
the Base Rent, Monthly Installments of Base Rent, Tenant's pro rata share of
Operating Expenses, and Tenant Improvement Allowance shall be adjusted
accordingly.
(k) "Common Areas" mean those portions of the Development not
leased or designated for lease to tenants that are provided for use in common by
Landlord, Tenant and other tenants of the Development (or by the sublessees,
agents, employees, customers, invitees, or licensees of any such party), whether
or not those areas are open to the general public. Common Areas include, without
limitation, any Building Common Areas, as such term is defined below, those
portions of Building D designated as the recreational facility described in
Paragraph 1(h) above, any fixtures, systems, decor, facilities and landscaping
contained, maintained or used in connection with those areas, and shall be
deemed to include any parking areas, parking structures, sidewalks within the
Development and city sidewalks adjacent to the Development, any pedestrian
walkway system, roadway or other facilities located on the Development and open
to the general public or otherwise intended for the non-exclusive mutual use of
the occupants or invitees of the Development and its occupants and/or similar
areas and facilities situated within the Development and appurtenant to the
Buildings which are not reserved for the exclusive use of any Development
occupants; provided, however, any recreational facilities in the Development
shall be for the exclusive use of tenants of the Development and Landlord and
their employees.
(l) "Building Common Areas" mean the common areas appurtenant to
each of the Buildings including, without limitation, the (i) common entrances,
lobbies, restrooms (whether on multi-tenant or single-tenant floors), elevators,
utility raceways and easement areas, stairways, roofs and accessways,
recreational facilities, loading docks, ramps, drives and platforms and any
passageways or serviceways thereto to the extent not exclusively serving another
tenant or contained within another tenant's premises, and the common pipes,
conduits, wires and appurtenant equipment serving the Premises, and (ii) the
parking areas, loading and unloading
-2-
areas, trash areas, roadways, sidewalks, walkways, parkways, driveways and
landscaped areas appurtenant to each Building. Notwithstanding the foregoing, so
long as Tenant is the sole occupant of the Building A and Building B, neither
the entrances, lobbies, nor the restrooms of Building A and Building B shall be
Common Areas.
(m) Tenant's Percentage: Tenant's prorata share, based upon the
Rentable Square Footage of the Premises as compared to the Rentable Square
Footage of all Buildings in the Development that are constructed as of the date
of such calculation, but excluding therefrom the Rentable Area of any portion of
Building D designated as a recreational facility and included within the Common
Areas.
(n) Term: Ten (10) Lease Years.
(o) Estimated Commencement Date: July 1, 2001.
(p) Commencement Date: The date on which the Term of this Lease
will commence as determined in accordance with the provisions of Paragraph 4(g).
(q) Expiration Date: The date which is ten (10) years after the
Commencement Date plus any partial month in which the Commencement Date occurs.
(r) Monthly Base Rent: Payable monthly, on the first day of each
month, in the amount depicted in the table below, calculated on a Triple Net
basis ("Base Rent"), subject to adjustment as provided herein, and commencing on
the Commencement Date:
---------------------------------------------------------------------------------------------------------
Monthly Installment
Monthly Base Rent of Base Rent
Annual at * 97,500 square feet per square foot
Months Base Rent of Rentable Area of Rentable Area
------ --------- ---------------- ----------------
---------------------------------------------------------------------------------------------------------
01-12 $3,042,000 $253,500 $2.60
---------------------------------------------------------------------------------------------------------
* Monthly Base Rent to be adjusted based upon Landlord's architect's certification as to the Rentable
Area of the Premises.
---------------------------------------------------------------------------------------------------------
Commencing on the first anniversary of the Commencement Date and
on every one (1) year anniversary thereafter (including the Option Periods
described in Paragraph 3(b) below), the then applicable Monthly Base Rent shall
be increased to an amount equal to one hundred three percent (103%) of the
Monthly Base Rent payable during the immediately preceding period.
In the event the Commencement Date occurs on a day other than the
first (1st) day of a month, the amount of the first and last monthly payment of
Monthly Base Rent shall be apportioned to account for the fact that the last
month of the Initial Term shall be less than a full calendar month.
(s) Base Rent Paid Upon Execution: $253,500, to be applied to
the Monthly Base Rent for the first month of the Term.
(t) Security Deposit: $253,500 payable upon lease execution,
plus a Letter of Credit in the amount of $3,110,000, a portion of which shall be
provided to Landlord within three (3) days of the satisfaction of the Loan
Commitment Condition, as defined below and as further provided in Paragraph 7.
(u) Improvements: mean the improvements which have been or will
be constructed by Landlord and Tenant pursuant to this Lease, including, but not
limited to, the "Building Shell Improvements,"
-3-
"Site Improvements" and "Core Improvements" for each Building and the
Development, which are to be constructed by Landlord, and the "Tenant
Improvements" within the Premises, which are to be constructed by Tenant, all as
such terms are defined below in Paragraph 4.
(v) Permitted Use: Any lawful use permitted by applicable
zoning, subject to the Rules and Regulations of the Development and any CC&R's
of record governing the Development. (Also see Paragraph 8)
(w) Broker: CB Xxxxxxx Xxxxx, Inc.
(x) Interest Rate: shall mean the greater of ten percent (10%)
per annum or two percent (2%) in excess of the prime lending or reference rate
of Xxxxx Fargo Bank N.A. or any successor bank in effect on the twenty-fifth
(25th) day of the calendar month immediately prior to the event giving rise to
the Interest Rate imposition; provided, however, the Interest Rate will in no
event exceed the maximum interest rate permitted to be charged by applicable
law.
(y) Exhibits: A-I through G, inclusive, which Exhibits are
attached to this Lease and incorporated herein by this reference.
(z) Riders: The Right of First Option Rider and Option to
Purchase Rider attached hereto.
This Paragraph 1 represents a summary of the basic terms and
definitions of this Lease. In the event of any inconsistency between the terms
contained in this Paragraph 1 and any specific provision of this Lease, the
terms of the more specific provision shall prevail.
2. PREMISES AND COMMON AREAS.
(a) Premises. Subject to the terms and provisions hereof,
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the
Premises as the same are to be constructed by Landlord with the Building Shell
Improvements and Core Improvements.
(b) Mutual Covenants. Landlord and Tenant agree that the
letting and hiring of the Premises is upon and subject to the terms, covenants
and conditions contained in this Lease and each party covenants as a material
part of the consideration for this Lease to keep and perform their respective
obligations under this Lease.
(c) Tenant's Use of Common Areas. During the Term of this
Lease, Tenant shall have the nonexclusive right to use the Common Areas of the
Development, free of any charge except as set forth in this Lease, in common
with Landlord and other tenants of the Development and all persons, firms and
corporations conducting business in the Development and their respective
customers, guests, licensees, invitees, subtenants, employees and agents
(collectively, "Development Occupants"), subject to the terms of this Lease, the
Rules and Regulations referenced in Paragraph 28 below and all covenants,
conditions and restrictions now or hereafter affecting the Development.
(d) Landlord's Reservation of Rights. Provided Tenant's use of
and access to the Premises is not interfered with in an unreasonable manner, and
the parking Tenant is entitled to use pursuant to Paragraph 32 is not materially
diminished, Landlord reserves for itself and for all other owner(s) and
operator(s) of the Common Areas and the balance of the Development, the right
from time to time to: (i) make changes to the design and layout of the
Development, including, without limitation, driveways, entrances, loading and
unloading areas, direction of traffic, landscaped areas and walkways, parking
spaces and parking areas; (ii) add additional buildings and improvements to the
Common Areas and to use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Development, or any portion thereof;
(iii) use or close
-4-
temporarily the Common Areas, and/or other portions of the Development while
engaged in making improvements, repairs or alterations to the Buildings, the
Development, or any portion thereof and to designate other land outside the
boundaries of the Development to be a part of the Common Areas; and (iv) to do
and perform such other acts and make such other changes in, to or with respect
to the Common Areas and Development as Landlord may, in the exercise of sound
business judgment, deem to be appropriate.
(e) Loan Commitment. As a condition subsequent for each party's
benefit, Landlord shall receive, no later than forty-five (45) days after the
Effective Date, a commitment from a lender, in form and substance acceptable to
Landlord, for purposes of financing the construction of the Development (the
"Loan Commitment" and the "Loan Commitment Condition"). The loan documents
which evidence the agreements and obligations by and between Landlord and its
lender shall substantially conform to the material terms contained in the loan
application by and between Landlord and Washington Capital dated
____________________ (the "Loan Application"). In the event the Loan Commitment
Condition is not timely satisfied, then within ten (10) business days
thereafter, Landlord shall return to Tenant all monies deposited with Landlord
by Tenant hereunder, including, but not limited to, any payment of Security
Deposit and first month's rent. By execution of this Lease, Tenant has approved
the Loan Application and the terms contained therein.
3. TERM.
(a) Initial Term. The term of this Lease ("Term") will be for
the period designated in Subparagraph 1(n), commencing on the Commencement Date,
and ending on the last day of the month in which the expiration of such period
occurs, including any extensions of the Term pursuant to any provision of this
Lease or written agreement of the parties. Notwithstanding the foregoing, if the
Commencement Date falls on any day other than the first day of a calendar month
then the Term of this Lease will be measured from the first day of the month
following the month in which the Commencement Date occurs. Each consecutive
twelve (12) month period of the Term of this Lease, commencing on the
Commencement Date, will be referred to herein as a "Lease Year". Promptly after
the Commencement Date, Landlord will deliver to Tenant the Notice of Lease Term
Dates ("Notice"), which shall confirm the Commencement Date and the date upon
which the Term of this Lease shall end. The Notice will be binding upon Tenant
unless Tenant objects to the Notice in writing within ten (10) days of Tenant's
receipt of the Notice.
(b) Option to Extend. Tenant shall have two (2) successive
options (individually, the "Extension Option" and collectively, the "Extension
Options") to extend the Term, as to not less than the entire Premises, for a
period (the "Option Period") of five (5) years each, commencing upon the date
the Term would otherwise expire, upon the same terms and conditions previously
applicable, except that the Monthly Base Rent as of the commencement of the
Option Period and thereafter during the Option Period will be adjusted as
provided below. Each Extension Option may be validly exercised only by written
notice to Landlord from Tenant given not earlier than fifteen (15) months and
not later than either (i) twelve (12) months prior to the expiration of the
Lease Term, provided Landlord has, not earlier than fifteen (15) months and not
later than thirteen (13) months prior to the expiration of the Lease Term,
provided Tenant with a written reminder of such time frame for Tenant to
exercise its right to extend, or (ii) nine (9) months prior to commencement of
the Option Period if Landlord has not so provided Tenant with any such reminder
notice. The Extension Option may be validly exercised only if Tenant is not then
in default under this Lease (after expiration of any applicable notice and cure
period). If Tenant does not exercise either Extension Option in strict
accordance with the provisions hereof, the Extension Options shall forever
terminate and be of no further force and effect.
(c) Monthly Base Rent During Option Period. The Monthly Base
Rent beginning with the first day of the Option Period shall equal one hundred
percent (100%) of the "fair market rate" ("Fair Market Rate") for comparable
space in comparable buildings in the University Town Center and Xxxxxx Xxxxx
area of San Diego, California, market area ("Comparison Area"). For purposes
hereof, "Fair Market Rate" shall mean the base rent payable to a willing
landlord by a willing tenant having a similar financial responsibility, credit
rating and capitalization as Tenant then has, for like and comparable
-5-
premises, improved with tenant improvements of like and comparable quality to
those then existing in the Premises, in like and comparable buildings located in
the Comparison Area. In calculating Fair Market Rent appropriate consideration
shall be given to all relevant factors, including, without limitation, (i)
rental market conditions then in existence, (ii) whether Landlord will or will
not be required to pay a real estate brokerage commission in connection with
Tenant's exercise of the Extension Option, (iii) the fact that the Tenant will
be accepting the Premises in an "As-Is" condition, and (iv) the fact that Base
Rent will increase annually during the Option Period as set forth in the
following sentence. Commencing on the first anniversary of each Option Period
and on every one (1) year anniversary thereafter during the balance of such
Option Period, the initial Base Rent for the Option Period established hereunder
shall be increased to an amount equal to 103% of the Base Rent payable during
the immediately preceding period. Following Tenant's valid exercise of the
Extension Option, Landlord and Tenant shall commence negotiations for a period
of forty-five (45) days to determine whether Landlord and Tenant can reach
mutual agreement as to the Fair Market Rate. If the parties are unable to reach
an agreement within such period of time as to the Fair Market Rate, then either
party (the "First Party") may at any time prior to reaching such agreement, give
notice to the other party (the "Second Party") that an appraisal of the Premises
is required for purposes of determining the Fair Market Rate. Such notice shall
designate an appraiser (the "First Appraiser"). In the event that such appraisal
is required, Landlord and Tenant shall each prepare a determination of such
party's estimate of the appropriate Fair Market Rent and each party's
determination shall be submitted to arbitration as provided below. Within ten
(10) business days after the service of the notice referred to above, the Second
Party shall give written notice to the First Party designating a second
appraiser (the "Second Appraiser"). If the Second Appraiser is not so designated
within the time above specified, then the First Appraiser shall select the
Second Appraiser within ten (10) business days after the Second Party's failure
to appoint. The First Appraiser and the Second Appraiser so designated or
appointed shall themselves appoint a third appraiser (the "Third Appraiser"). If
the First Appraiser and the Second Appraiser shall be unable to agree upon such
appointment within five (5) business days after the appointment of the Second
Appraiser, then the Third Appraiser shall be selected by Landlord and Tenant. If
Landlord and Tenant are unable to agree upon the Third Appraiser within ten (10)
business days thereafter, then the Third Appraiser shall be appointed by the
presiding judge of the San Diego Superior Court. Landlord and Tenant shall each
pay the cost of their own appraiser and shall share equally the cost of the
Third Appraiser (and, if necessary, court costs to appoint such appraiser). Any
appraiser designated to serve in accordance with the provisions of this Lease
shall be disinterested and shall be an MAI appraiser and professionally
qualified to appraise the Premises with at least ten (10) years experience in
appraising similar properties in the Comparison Area. The three (3) appraisers
shall within thirty (30) days of the appointment of the Third Appraiser reach a
decision as to whether the parties shall use Landlord's or Tenant's submitted
Fair Market Rate and shall notify Landlord and Tenant thereof. The Fair Market
Rate for the Premises is closest to the actual Fair Market Rate for the Premises
as determined by the arbitrators, taking into account the requirements above.
The decision of the majority of the three arbitrators shall be binding upon
Landlord and Tenant. Any appraisals to be provided pursuant to this Lease shall
be submitted to Landlord and Tenant within ten (10) business days after the last
of the three appraisers has been selected. After reaching a decision, the
appraisers shall give written notice of such decision to the parties and the
same shall thereupon be deemed to be the initial Base Rent for the Option
Period.
4. CONSTRUCTION AND POSSESSION.
(a) Landlord shall construct at Landlord's sole cost and
expense, (i) the Building Shell for Building A and Building B and Site
Improvements in accordance with the Building Shell and Site Improvement Plans,
and (ii) the Core Improvements for Building A and Building B in accordance with
the Core Improvement Plans (collectively, the "Project Plans" and the "Project
Work"). The Project Plans are described on Exhibit B attached hereto and have
been reviewed and approved by Tenant. Landlord shall notify Tenant of any
material changes to the Project Plans. Landlord agrees to furnish all of the
material, labor and equipment for the construction of the Project Work in a good
and workmanlike manner in conformance with the Project Plans and in compliance
with all then applicable building laws, ordinances, orders, rules, regulations
and requirements of all federal, state and municipal governments with
jurisdictional authority over the construction of the Project Work, including,
but not limited to, the Americans With Disabilities Act and Title 24 (the
"Applicable Laws"). Landlord shall obtain all necessary final inspections and
approvals from the governmental authorities having
-6-
jurisdiction over the Project Work, as well as a certification of substantial
completion of the Project Work by Landlord's architect, unless prevented from so
doing as a result of the construction of the Tenant Improvements, in which case
Landlord and Tenant shall cooperate to acquire such certificate in conjunction
with the approval of the Tenant Improvements. In connection with the Project
Work, Landlord agrees to maintain all construction warranties and guarantees for
the mutual benefit of Landlord and Tenant, provided that Tenant does not void
any of such construction warranties and guarantees as a result of the
construction of the Tenant Improvements.
(b) At such time as Landlord has completed the Project Work to
the extent that construction of the Tenant Improvements can actually commence as
reasonably determined by Landlord's architect, Tenant shall construct the Tenant
Improvements in accordance with the tenant improvement plans and specifications
approved by Landlord as set forth herein ("Tenant Improvement Plans") at
Tenant's expense, including (i) design and architectural fees, (ii) engineering
fees, (iii) costs of processing and obtaining permits from the City of San Diego
and any other governmental entity with jurisdiction over the Premises, (iv)
water and sewer connection charges and other expenses related thereto, and (v)
any other costs and expenses for the design, permitting and construction of the
Tenant Improvements, subject to Landlord providing the Tenant Improvement
Allowance described in Paragraph 4(d) below. The Tenant Improvements shall be
constructed in accordance with the Union Guidelines attached hereto as Exhibit
C. The Tenant Improvement Plans may show the location of trash enclosures,
Hazardous Material enclosures, HVAC enclosures, and emergency generators located
outside of the Premises, subject to the reasonable approval of Landlord. Tenant
shall retain its own architect, engineers and contractors for the design and
construction of the Tenant Improvements. Landlord and Tenant agrees that the
architect for the Tenant Improvements shall be Pacific Cornerstone Architects,
and the contractor for the Tenant Improvements shall be selected by Tenant,
subject to Landlord's reasonable approval; provided that Tenant shall have the
right to substitute a different architect or contractor (subject to Landlord's
reasonable approval) if, in Tenant's sole and absolute discretion, the
architect's or contractor's performance is unacceptable to Tenant or Tenant and
the architect or contractor are unable to consummate a formal agreement for
their services. Tenant shall, at Tenant's sole cost and expense, (i) cause to
be prepared by Tenant's architect proposed Tenant Improvement Plans, and, (ii)
submit two sets of the proposed Tenant Improvement Plans to Landlord for
Landlord's approval, which approval shall not be unreasonably withheld or
delayed. Any revisions and supplements to the Tenant Improvement Plans shall
also be subject to the approval of Landlord, which approval shall not be
unreasonably withheld or delayed. After Landlord has approved the Tenant
Improvement Plans in writing, Tenant shall proceed with due diligence to perform
the construction and complete the Tenant Improvements as described in the Tenant
Improvement Plans, including obtaining and paying the cost of all permits and
fees required for construction of said Tenant Improvements. Tenant shall obtain
and provide to Landlord a certificate of occupancy as soon as possible after
completion of the Tenant Improvements. Upon final completion of the Tenant
Improvements, Tenant shall furnish Landlord copies of all final inspections and
approvals issued by any governmental authority having jurisdiction over the work
of improvement and of Tenant's legal occupancy of the Premises. The Tenant
Improvements constructed by Tenant shall become part of the real property
comprising the Premises unless otherwise agreed by Landlord in writing.
(c) Tenant shall only use contractors and subcontractors which
have procured, paid for and maintain worker's compensation insurance and public
liability insurance in an amount not less than $1,000,000 and which are licensed
in the State of California. Prior to commencement of such work, Tenant shall
provide Landlord with certificates of insurance evidencing such coverage,
endorsed to name Landlord and Tenant as an additional insureds.
(d) Landlord shall pay for the cost of Tenant Improvements the
sum of $100.00 per square foot of Rentable Area in the Premises ("Tenant
Improvement Allowance"). If the cost of Tenant Improvements exceeds the Tenant
Improvement Allowance, Tenant shall pay such excess as the costs are incurred.
The Tenant Improvement Allowance shall be disbursed by Landlord to Tenant. The
Tenant Improvement Allowance may be used only for the following items and costs:
-7-
(i) Payment of the reasonable fees of Tenant's architect,
engineers and other consultants incurred or paid by Tenant in connection with
the Tenant Improvements up to, but not exceeding, an aggregate amount equal to
Four Dollars ($4.00) per Rentable Square Foot of the Premises;
(ii) The payment of plan check, permit and license fees
relating to construction of the Tenant Improvements, including water and sewer
connection charges;
(iii) The cost of construction of the Tenant Improvements
but, unless specifically provided to the contrary herein, only to the extent
such Tenant Improvements will be permanently affixed to the Premises and become
a part of the realty under applicable laws;
(iv) The cost of any changes in the Project Plans when such
changes are requested by Tenant or required by the Tenant Improvement Plans for
the construction of the Tenant Improvements, such costs to include all direct
architectural and/or engineering fees and expenses incurred in connection
therewith;
(v) The cost of any changes to the Tenant Improvement
Plans or Tenant Improvements required by any applicable laws, codes,
regulations, ordinances, or building codes;
(vi) Costs associated with Tenant's fixturization of the
Premises (including cabling and telecommunications costs), not to exceed Eight
Dollars ($8.00) per square foot of Rentable Area;
(vii) Any costs described in subsections (i) through (vi)
above contained in a change order requested by Tenant and approved by Landlord.
(e) Tenant shall prepare a budget for the Tenant Improvements
("Tenant Improvement Budget"), including design fees, costs of processing and
obtaining permits from the City of San Diego and any other governmental agency
with jurisdiction over the Premises, architect fees and other costs incurred in
the design and construction of the Tenant Improvements. The Tenant Improvement
Budget, and all revisions thereto, shall be subject to Landlord's approval,
which shall not be unreasonably withheld or delayed. As work progresses on the
Tenant Improvements, Tenant shall submit an application for payment
("Application for Payment") to Landlord no more often than monthly, and by the
twenty-fifth (25th) day of the month, for disbursement of the Tenant Improvement
Allowance. Applications for Payment may be made only for work actually completed
or services actually provided (including any deposits Tenant is obligated to
submit) and shall include a detailed description of such completed Tenant
Improvement work or services. Applications for Payment shall include copies of
the invoices to Tenant by Tenant's contractor(s) or other vendors for the work
completed. As a condition of payment of any Application for Payment, Landlord
may require the certification by both Tenant and Tenant's architect that the
described Tenant Improvement Work or services have been completed. Landlord
shall disburse the requested funds, less a ten percent (10%) retention, the
aggregate of which shall be referred to herein as the "Retention Amount," from
the Tenant Improvement Allowance to the invoicing party (or, in Landlord's
discretion, directly to Tenant) no later than the tenth (10th) day of each
calendar month for Applications for Payment with required supporting
documentation received on or before the twenty-fifth (25th) day of the previous
calendar month. Tenant agrees to reasonably cooperate with Landlord in compiling
the Applications for Payment in form and content satisfactory to Landlord.
(f) Landlord shall pay to Tenant the amount of the Retention
Amount within thirty (30) days after all of the following have occurred: (i)
Landlord has received evidence of payments by Tenant equal to or in excess of
the Tenant Improvement Allowance for items of cost which are reimbursable
hereunder, (ii) lien releases from all contractors, subcontractors, laborers,
materialmen or other parties performing any portion of the Tenant Improvement
Work; together with, if Landlord so elects, mechanics' lien endorsements from
the title company which has issued title insurance to Landlord with regard to
the Development (iii) Landlord has determined that no substandard work exists
which adversely affects the mechanical, electrical, plumbing, heating,
ventilating and air conditioning, life-safety or other systems of the Premises,
the structure or exterior
-8-
appearance of the Premises, or any other Development Occupant's use of the
Development, (iv) the Tenant's architect delivers to Landlord a certificate, in
a form reasonably acceptable to Landlord, certifying that the construction of
Tenant Improvements has been completed in accordance with the Tenant Improvement
Plans approved by Landlord, (v) submittal to Landlord of the final inspection
cards from of all governmental agencies, along with the certificate of occupancy
and (vi) Tenant is not otherwise in default of any of its obligations hereunder.
(g) Landlord shall tender possession of the Premises to Tenant
for construction of the Tenant Improvements at such time as the Project Work has
progressed to the point that construction of the Tenant Improvements can
actually commence, but subject to reasons of Force Majeure and Tenant Delay, no
later than February 1, 2001. Tenant agrees that, subject to reasons of Force
Majeure and Tenant Delay, in the event possession of the Premises for
construction of the Tenant Improvements is not tendered to Tenant by February 1,
2001, this Lease shall not be void or voidable and Landlord shall not be liable
to Tenant for any loss or damage resulting therefrom; provided, however, but
subject to reasons of Force Majeure and Tenant Delay, if the Premises are
tendered to Tenant after February 1, 2001, the Term Commencement Date shall be
extended one day for each day of delay beyond February 1, 2001. Without
limiting the generality of the foregoing, Tenant expressly waives any right to
terminate this Lease because of delays in completion of construction of the
Premises; provided however, subject to reasons of Force Majeure and Tenant
Delay, if the Premises are not tendered to Tenant for construction of the Tenant
Improvements on or before April 1, 2001, Tenant at its election by written
notice given to Landlord on or before April 15, 2001, may terminate this Lease,
in which event Landlord shall return to Tenant the Security Deposit and any
other monies deposited with Landlord, and neither Landlord nor Tenant shall have
any further obligation to the other. The term "Commencement Date" shall mean
the earlier of (i) the date Tenant receives a certificate of occupancy for the
Premises after completion of the Tenant Improvements, or (ii) six (6) months
after Landlord tenders possession of the Premises to Tenant for construction of
the Tenant Improvements. Notwithstanding reasons of Force Majeure, but subject
to Tenant Delay, in the event Landlord has not tendered possession of the
Premises to Tenant for the construction of the Tenant Improvements on or before
October 1, 2001 (such date, as the same may be extended by matters of Tenant
Delay, being referred to herein as the "Outside Delivery Date"), then in such
event, Tenant shall have the right to terminate this Lease by written notice
delivered to Landlord on or before the date that is ten (10) days after the
Outside Delivery Date. Also, notwithstanding anything herein to the contrary,
in the event the Loan which is the subject of the Loan Commitment is not funded
within ninety (90) days of the satisfaction of the Loan Commitment Condition,
then either party may, by written notice to the other, tendered within five (5)
business days of such ninetieth (90th) day, terminate this Lease. In the event
of such termination, any and all monies deposited with Landlord by Tenant
hereunder shall be reimbursed to Tenant within ten (10) days of such
termination, including, but not limited to, any and all Security Deposits and
payments of rent hereunder.
(h) For purposes of this Lease, "Tenant Delay" shall mean any
delay in the Project Work which occurs as the result of (i) any request by
Tenant that Landlord perform any work in addition to or as a change or
modification to the Project Work, or any request by Tenant that Landlord delay
in the commencement or completion of the Project Work for any reason, (ii) any
change requested or caused by Tenant to the Project Plans, including any
modifications to the Project Plans caused by the Tenant Improvement Plans
prepared by Tenant, (iii) any failure of Tenant to respond to any request for
approval of Landlord required hereunder within the time periods provided
hereunder after receipt of request therefore, or (iv) any delay in the Project
Work caused by the installation of Tenant's fixtures in the Premises and/or the
performance of any other part of the construction of the Tenant Improvements.
(i) Tenant understands that the Project Work may not be complete
at the time possession of the Premises is tendered to Tenant for construction of
the Tenant Improvements, but will be in a condition such that construction of
the Tenant Improvements can reasonably commence. Landlord shall fully complete
construction of the Project Work no later than the date Tenant completes
construction of the Tenant Improvements subject to minor punch-list items and
completion of certain Site Improvement Work, such as landscaping or striping the
parking lot, which does not materially impact Tenant's use of the Premises. In
the event that the Project Work is not fully completed by the date Tenant
completes the Tenant Improvements, and if
-9-
a certificate of occupancy cannot be issued solely as a result of such failure
of Landlord to complete the Project Work, neither the Term of this Lease nor
Tenant's obligation to pay rent shall commence until a certificate of occupancy
for the Premises has been issued by the City of San Diego.
(j) Landlord and Tenant shall diligently and in good faith
cooperate with one another, and shall cause their architects and contractors to
cooperate with one another on the Project Work and the Tenant Improvements, to
insure, among other benefits, timely and cost effective design, permitting and
construction.
(k) Any dispute between Landlord and Tenant arising under this
Article 4 that is not resolved by the parties within fifteen (15) days shall be
promptly resolved by binding arbitration conducted by a single neutral
arbitrator in San Diego, California, under the Commercial Rules of the American
Arbitration Association. In order that completion of the Project Work and Tenant
Improvements is not delayed, the party responsible for construction or other
performance shall continue to perform pending completion of the arbitration
proceeding.
(l) Prior to the Commencement Date, Landlord and Tenant will
jointly conduct a walk-through inspection of the Premises and will jointly
prepare a punch-list ("Punch-List") of any items required to be completed by
Landlord as part of the Project Work and which require finishing or correction.
The Punch-List will not include any items of damage to the Premises caused by
Tenant's move-in or early entry, if permitted, which damage will be corrected or
repaired by Landlord, at Tenant's expense or, at Landlord's election, by Tenant,
at Tenant's expense. Other than the items specified in the Punch-List, and
subject to Landlord's obligations regarding repair and maintenance contained
herein, and except for latent defects in the construction of Landlord's Work by
taking possession of the Premises, Tenant will be deemed to have accepted the
Premises in its condition on the date of delivery of possession, subject to all
applicable zoning, municipal, county and state laws, ordinances and regulations
governing and regulating the use and occupancy of the Premises and to have
acknowledged that the Project Work has been completed as required and that there
are no additional items needing work or repair by Landlord. Landlord will cause
all items in the Punch-List to be repaired or corrected within thirty (30) days
following the preparation of the Punch-List or as soon as practicable after the
preparation of the Punch-List. Tenant acknowledges that neither Landlord nor
any agent of Landlord has made any representation or warranty with respect to
the Premises, the Development or any portions thereof or with respect to the
suitability of same for the conduct of Tenant's business except as set forth in
this Lease.
5. RENT.
(a) Monthly Base Rent. Tenant agrees to pay Landlord the
Monthly Base Rent for the Premises (subject to adjustment as hereinafter
provided) in advance on the first day of each calendar month during the Term
without prior notice or demand, except that Tenant agrees to pay the Monthly
Base Rent for the first month of the Term directly to Landlord concurrently with
Tenant's delivery of the executed Lease to Landlord. If the Term of this Lease
commences or ends on a day other than the first day of a calendar month, then
the rent for such period will be prorated in the proportion that the number of
days this Lease is in effect during such period bears to the number of days in
such month. All rent must be paid to Landlord, without any deduction or offset,
in lawful money of the United States of America, at the address designated by
Landlord or to such other person or at such other place as Landlord may from
time to time designate in writing. Monthly Base Rent will be adjusted during the
Term of this Lease as provided in Paragraph 1(r).
(b) Additional Rent. This Lease is what is commonly called a
"Net, Net, Net Lease", it being understood that, except as otherwise expressly
provided herein, the Landlord shall receive all rent free and clear of any and
all other impositions, taxes, liens, charges or expenses of any nature
whatsoever in connection with the ownership and operation of the Premises. In
addition to the Base Rent, Tenant shall pay to the parties respectively entitled
thereto, or satisfy directly, all impositions, insurance premiums, operating
charges, maintenance charges, construction costs, and any other costs,
obligations, liabilities, requirements, and expenses which arise with regard to
the Premises or may be contemplated under any provisions of the Lease
-10-
during the Term, except as otherwise expressly provided in this Lease. Such
obligations of Tenant shall include, without limiting the generality of the
foregoing, the reimbursement to Landlord of costs incurred in fulfilling its
repair and maintenance obligations hereunder, including specifically those set
forth in Paragraph 14, except as otherwise provided herein. All of such charges,
costs, obligations, liabilities, requirements, and expenses shall constitute
additional rent, and upon the failure of Tenant to pay or satisfy any of such
costs, charges, obligations, liabilities, requirements, or expenses, Landlord
shall have the same rights and remedies as otherwise provided in the Lease for
the failure of Tenant to pay rent. It is the intention of the parties, that,
except as otherwise expressly provided herein, the Lease shall not be terminable
for any reason by the Tenant, and that Tenant shall in no event be entitled to
any abatement, offset, deduction, or reduction of rent payable under the Lease.
Tenant's sole recourse to resolve a dispute under the Lease shall be to a court
of law, except for any arbitration or appraisal rights provided by this Lease,
and except that either Landlord or Tenant shall have the right to submit any
unresolved dispute between Landlord and Tenant regarding any amounts and charges
to be paid by Tenant to binding arbitration under the commercial rules of the
American Arbitration Association in San Diego, California. Except as otherwise
expressly provided herein, Tenant shall have no right to offset any damages of
claims against any payments due Landlord unless and until incorporated into a
judgment of the Superior Court of San Diego County, regardless of whether or not
the judgment is appealed. Any present or of future law to the contrary shall not
alter this agreement of the parties. Consequently, all amounts and charges to be
paid by Tenant hereunder, including, without limitation, payments for Operating
Expenses, the reimbursement to Landlord of costs incurred in fulfilling its
repair and maintenance obligations hereunder, including specifically those set
forth in Paragraph 14, real property taxes, insurance and repairs, will be
considered additional rent for purposes of this Lease, and the word "rent" as
used in this Lease will include all such additional rent unless the context
specifically or clearly implies that only Monthly Base Rent is intended.
(c) Late Payments. Late payments of Monthly Base Rent and/or
any item of additional rent will be subject to interest and a late charge as
provided in Subparagraph 22(f) below.
6. OPERATING EXPENSES.
(a) Operating Expenses. In addition to Monthly Base Rent,
throughout the Term of this Lease, Tenant agrees to pay Landlord as additional
rent in accordance with the terms of this Xxxxxxxxx 0, Xxxxxx'x Xxxxxxxxxx of
Operating Expenses for the Development as defined below. Any Common Area
Operating Expenses and Real Property Taxes and Assessments that are specifically
attributable to a Building or to any other building in the Development or to the
operation, repair and maintenance thereof, shall be allocated entirely to the
Building or to such other building. However, any Common Area Operating Expenses
and Real Property Taxes and Assessments that are not specifically attributable
to a Building or to any other building or to the operation, repair and
maintenance thereof, shall be equitably allocated by Landlord to all buildings
in the Development. The inclusion of the improvements, facilities and services
set forth in Subparagraph 6(f) shall not be deemed to impose an obligation upon
Landlord to either have said improvements or facilities or to provide those
services unless the Development already has the same, Landlord already provides
the services, or Landlord has agreed elsewhere in this Lease to provide the same
or some of them.
(b) Estimate Statement. Prior to the Commencement Date and on
or about February 15 of each subsequent calendar year during the Term of this
Lease, Landlord will endeavor to deliver to Tenant a statement ("Estimate
Statement") wherein Landlord will estimate both the Operating Expenses and
Tenant's Percentage of Operating Expenses for the then current calendar year.
Tenant agrees to pay Landlord, as additional rent, one-twelfth (1/l2th) of the
estimated Tenant's Percentage of Operating Expenses each month thereafter,
beginning with the next installment of rent due, until such time as Landlord
issues a revised Estimate Statement or the Estimate Statement for the succeeding
calendar year; except that, concurrently with the regular monthly rent payment
next due following the receipt of each such Estimate Statement, Tenant agrees to
pay Landlord an amount equal to one monthly installment of the estimated
Tenant's Percentage of Operating Expenses (less any applicable Operating
Expenses already paid) multiplied by the number of months from January, in the
current calendar year, to the month of such rent payment next due, all months
inclusive. If at any time during the Term of this Lease, but not more often than
quarterly, Landlord reasonably determines that
-11-
Tenant's Percentage of Operating Expenses for the current calendar year will be
greater than the amount set forth in the then current Estimate Statement,
Landlord may issue a revised Estimate Statement and Tenant agrees to pay
Landlord, within ten (10) days of receipt of the revised Estimate Statement, the
difference between the amount owed by Tenant under such revised Estimate
Statement and the amount owed by Tenant under the original Estimate Statement
for the portion of the then current calendar year which has expired. Thereafter
Tenant agrees to pay Tenant's Percentage of Operating Expenses based on such
revised Estimate Statement until Tenant receives the next calendar year's
Estimate Statement or a new revised Estimate Statement for the current calendar
year.
(c) Actual Statement. On or about March 1 of each calendar year
during the Term of this Lease, Landlord will also endeavor to deliver to Tenant
a statement ("Actual Statement") which states the actual Operating Expenses for
the preceding calendar year. If the Actual Statement reveals that Tenant's
Percentage of the actual Operating Expenses is more than the total Operating
Expenses paid by Tenant on account of the preceding calendar year, Tenant agrees
to pay Landlord the difference in a lump sum within ten (10) days of receipt of
the Actual Statement. If the Actual Statement reveals that Tenant's Percentage
of the actual Operating Expenses is less than the total Operating Expenses paid
by Tenant on account of the preceding calendar year, Landlord will credit any
overpayment toward the next monthly installment(s) of Tenant's Percentage of the
Operating Expenses due under this Lease.
(d) Miscellaneous. Any delay or failure by Landlord in
delivering any Estimate Statement or Actual Statement pursuant to this Paragraph
6 will not constitute a waiver of its right to require an increase in rent nor
will it relieve Tenant of its obligations pursuant to this Paragraph 6, except
that Tenant will not be obligated to make any payments based on such Estimate
Statement or Actual Statement until ten (10) days after receipt of such Estimate
Statement or Actual Statement. Even though the Term has expired and Tenant has
vacated the Premises, when the final determination is made of Tenant's
Percentage of the actual Operating Expenses for the year in which this Lease
terminates, Tenant agrees to promptly pay any increase due over the estimated
expenses paid and, conversely, any overpayment made in the event said expenses
decrease shall promptly be rebated by Landlord to Tenant. Such obligation will
be a continuing one which will survive the expiration or termination of this
Lease. Prior to the expiration or sooner termination of the Lease Term and
Landlord's acceptance of Tenant's surrender of the Premises, Landlord will have
the right to estimate the actual Operating Expenses for the then current Lease
Year and to collect from Tenant prior to Tenant's surrender of the Premises,
Tenant's Percentage of any excess of such actual Operating Expenses over the
estimated Operating Expenses paid by Tenant in such Lease Year through the
expiration or termination date.
(e) Tenant's Audit Rights. Landlord agrees that it shall
maintain complete and accurate records of all costs, expenses and disbursements
paid or incurred by Landlord with respect to the Operating Expenses in
accordance with generally accepted accounting principles, consistently applied.
Such records shall be kept until two (2) years after the termination of this
Lease. At any time within two (2) years of Tenant's receipt of any statement
from Landlord relating to Operating Expenses, Landlord shall furnish Tenant,
following Tenant's written request therefor, for Tenant's audit, invoices and
other source documents relating to Operating Expenses and Landlord shall provide
in reasonable detail the calculation of Tenant's Percentage of the Operating
Expenses; provided, however, that any such examination or audit may not be
conducted by any auditor whose compensation is in any way commission based, must
be conducted by a certified public accountant, and further provided that any
such examination shall be at Tenant's sole cost and expense, except as otherwise
provided herein. If it is determined from Tenant's audit of such Operating
Expenses that Tenant was overcharged by more than five percent (5%), such
overcharge shall entitle Tenant to credit against its next payment of Operating
Expenses the amount of the overcharge and the reasonable costs associated with
the audit, excluding travel and lodging costs (and, if such credit occurs
following the expiration of the Term, Landlord shall promptly pay the amount of
such credit to Tenant). If the audit determines that the Tenant was overcharged
less than five percent (5%), such overcharge shall entitle Tenant to credit
against its next payment of Operating Expenses the amount of the overcharge and
Tenant shall bear its own expenses of the audit. If the audit shall determine
that Tenant was undercharged for the Operating Expenses, Tenant shall promptly
pay the amount of such undercharge to Landlord and Tenant shall bear its own
expenses of the audit. In any case, Landlord shall bear any expenses it
-12-
incurs related to the audit. Notwithstanding anything to the contrary herein,
any Operating Expenses attributable to a period which falls only partially
within the term of this Lease shall be prorated between Landlord and Tenant so
that Tenant shall pay only that portion thereof which the part of such period
within the Lease term bears to the entire period.
Any dispute, matter or question arising out of Tenant's audit
shall be resolved by binding arbitration before a panel of three (3) arbitrators
under the commercial rules of the American Arbitration Association in San Diego,
California. All arbitrators shall be impartial and unrelated, directly or
indirectly, so far as employment of services is concerned, to Landlord or Tenant
or to any person directly or indirectly related to Landlord or Tenant, shall be
CPA's and have a minimum of five (5) year's experience in commercial real
estate.
The decision rendered in such arbitration shall be final and
binding on the parties and judgment thereon may be entered by any court having
jurisdiction thereof. Neither party shall be considered in default hereunder
during the pendency of arbitration proceedings relating to a disputed default.
Each party shall bear one-half (1/2) of the costs of the arbitration and shall
bear the fees and expenses of its own counsel, witnesses and other consultants.
In determining any question, matter or dispute before them, the arbitrators
shall apply the provisions of this Lease without varying therefrom in any
respect. They shall not have the power to add to, modify or change any of the
provisions of this Lease. Pending a determination of the arbitrators, the
parties shall conduct business under this Lease assuming the Landlord's position
prevailed with appropriate and immediate adjustments, if necessary, after the
issuance of the opinion.
(f) Items Included in Operating Expenses. The term "Operating
Expenses" as used in the Lease means: all costs and expenses of operation and
maintenance of all Buildings and Common Areas of the Development, including but
not limited to any sports courts and recreational facilities of the Development
made available to Tenant and its employees as part of the Common Areas except as
set forth in this Lease, as determined by standard accounting practices,
calculated utilizing the pro rata share of the Rentable Square Footage of the
Premises compared to the Rentable Square Footage of the Buildings in the
Development constructed and available for occupancy as of the date of the
expenditure, including the following costs by way of illustration but not
limitation, but excluding those items specifically set forth in Subparagraph
6(h) below: (i) Real Property Taxes and Assessments (as defined in Paragraph
4(g) below) and any taxes or assessments imposed in lieu thereof; (ii) any and
all assessments imposed with respect to the Development pursuant to any
covenants, conditions and restrictions affecting the Development, the Common
Areas or the Buildings; (iii) water and sewer charges and the costs of
electricity, heating, ventilating, air conditioning and other utilities; (iv)
utilities surcharges and any other costs, levies or assessments resulting from
statutes or regulations promulgated by any government or quasi-government
authority in connection with the use, occupancy or alteration of the Development
or the Premises or the parking facilities serving the Building or the Premises;
(v) costs of insurance obtained by Landlord pursuant to Paragraph 19 of the
Lease; (vi) waste disposal and janitorial services; (vii) security; (viii) costs
incurred in the management of the Development, including, without limitation:
(1) supplies, and (2) a management/administrative fee equal to two and one-half
percent (2.5%) determined as a percentage of the annual base rents of the
Project; (ix) supplies, materials, equipment and tools including rental of
personal property used for maintenance; (x) maintenance, costs and upkeep of all
parking and other Common Areas; (xi) depreciation on a straight line basis and
rental of personal property used in maintenance; (xii) costs and expenses of
gardening and landscaping; (xiii) maintenance of signs (other than signs of
tenants of the Development); (xiv) personal property taxes levied on or
attributable to personal property used in connection with the Common Areas; (xv)
costs and expenses of repairs, resurfacing, repairing, maintenance, painting,
lighting, cleaning, refuse removal, security and similar items; and (xvi)
amortization on a straight line basis over the useful life (together with
interest at the Interest Rate on the unamortized balance) of all capitalized
expenditures after completion of the Project Work in excess of $10,000 per item
and which are: (1) reasonably intended to produce a reduction in operating
charges or energy consumption; (2) required under any governmental law or
regulation; (3) for replacement of any equipment or other capital items of the
Development deemed necessary by Landlord to operate the Development at the same
quality levels as prior to the replacement; or (4) are otherwise includable in
Common Area Expenses pursuant to application of sound real estate management
principals (including, but not limited to, parking lot repair and resurfacing).
-13-
(g) Real Property Taxes and Assessments. The term "Real Property
Taxes and Assessments" means: any form of assessment, license fee, license tax,
business license fee, commercial rental tax, levy, charge, improvement bond, tax
or similar imposition imposed by any authority having the direct power to tax,
including any city, county, state or federal government, or any school,
agricultural, lighting, drainage or other improvement or special assessment
district thereof, as against any legal or equitable interest of Landlord in the
Premises, Buildings, Common Areas or the Development (as such terms are defined
in the Lease), including the following by way of illustration but not
limitation: (i) any tax on Landlord's "right" to rent or "right" to other income
from the Premises or as against Landlord's business of leasing the Premises;
(ii) any assessment, tax, fee, levy or charge in substitution, partially or
totally, of any assessment, tax, fee, levy or charge previously included within
the definition of real property tax, it being acknowledged by Tenant and
Landlord that Proposition 13 was adopted by the voters of the State of
California in the June, 1978 election and that assessments, taxes, fees, levies
and charges may be imposed by governmental agencies for such services as fire
protection, street, sidewalk and road maintenance, refuse removal and for other
governmental services formerly provided without charge to property owners or
occupants (it being the intention of Tenant and Landlord that all such new and
increased assessments, taxes, fees, levies and charges be included within the
definition of "real property taxes" for the purposes of this Lease); (iii) any
assessment, tax, fee, levy or charge allocable to or measured by the area of the
Premises or other premises in the Development or the rent payable by Tenant
hereunder or other tenants of the Development, including, without limitation,
any gross receipts tax or excise tax levied by state, city or federal
government, or any political subdivision thereof, with respect to the receipt of
such rent, or upon or with respect to the possession, leasing, operation,
management, maintenance, alteration, repair, use or occupancy by Tenant of the
Premises, or any portion thereof but not on Landlord's other operations; (iv)
any assessment, tax, fee, levy or charge upon this transaction or any document
to which Tenant is a party, creating or transferring an interest or an estate in
the Premises; and/or (v) any assessment, tax, fee, levy or charge by any
governmental agency related to any transportation plan, fund or system
(including assessment districts) instituted within the geographic area of which
the Building is a part. Notwithstanding anything in this Subparagraph (g) to
the contrary, unless and until Building C has been constructed, the Real
Property Taxes and Assessments attributable to Parcel (Building C) shall not be
included within the definition of Operating Expenses.
(h) Items Excluded From Operating Expenses. Notwithstanding the
provisions of Paragraphs 6(f) and 6(g) above to the contrary, "Operating
Expenses" will not include:
(i) Landlord's federal or state income, franchise,
inheritance or estate taxes;
(ii) any ground lease rental;
(iii) costs incurred by Landlord for the repair of damage to the
extent that Landlord is reimbursed by insurance or condemnation proceeds or by
tenants, warrantors or other third persons;
(iv) depreciation, amortization and interest payments, except as
specifically provided herein, and except on materials, tools, supplies and
vendor-type equipment purchased by Landlord to enable Landlord to supply
services Landlord might otherwise contract for with a third party, where such
depreciation, amortization and interest payments would otherwise have been
included in the charge for such third party's services, all as determined in
accordance with standard accounting practices;
(v) brokerage commissions, finders' fees, attorneys' fees, space
planning costs and other costs incurred by Landlord in leasing or attempting to
lease space in the Development;
(vi) interest, principal, points and fees on debt or amortization
on any mortgage, deed of trust or other debt encumbering the Building or the
Development;
(vii) costs, including permit, license and inspection costs,
incurred with respect to the installation of tenant improvements for tenants in
the Development, or incurred in renovating or
-14-
otherwise improving, decorating, painting or redecorating space for tenants or
other occupants of the Development, including space planning and interior design
costs and fees;
(viii) attorneys' fees and other costs and expenses incurred in
connection with negotiations or disputes with present or prospective tenants or
other occupants of the Development; provided, however, that Operating Expenses
will include those attorneys' fees and other costs and expenses incurred in
connection with negotiations or disputes with third parties (who are not tenants
of the Development) or claims relating to items of Operating Expenses,
enforcement of rules and regulations of the Development, and such other matters
relating to the maintenance of standards required of Landlord under the Lease
and where such claims or costs are incurred because of acts or omissions of
third parties who are not tenants of the Development;
(ix) except for the administrative/management fees described
in Subparagraph 6(f) above, any fees or salaries of principals or employees of
Landlord and any other costs of Landlord's overhead;
(x) all items and services for which Tenant or any other
tenant in the Development reimburses Landlord (other than through operating
expense pass-through provisions);
(xi) electric power costs for which any tenant directly
contracts with the local public service company;
(xii) costs arising from Landlord's charitable or political
contributions;
(xiii) costs incurred for the Project Work;
(xiv) costs incurred for the repair, maintenance or replacement
of the structural components of the footings, foundation, ground floor slab, and
load bearing walls of the Premises caused by defects in the construction thereon
(but excluding painting and ordinary maintenance and repair of exterior
surfaces);
(xv) costs incurred on account of any soils contamination
existing prior to the Commencement Date, on account of any soils subsidence or
slippage, or to maintain, repair or replace any retaining walls in the
Development caused by such soils subsidence or slippage;
(xvi) costs incurred to correct any defects in design,
materials or construction of the Project Work, or to comply with Landlord's
agreement in Subparagraph 4(a) to furnish all of the material, labor and
equipment for the construction of the Project Work in a good and workmanlike
manner in conformance with the Project Plans and in compliance with all
Applicable Laws;
(xvii) costs, expenses and penalties (including without
limitation attorneys fees) incurred as a result of the use, storage, removal or
remediation of any toxic or hazardous substances or other environmental
contamination;
(xviii) costs incurred in connection with the financing, sale or
acquisition of the Premises or any portion thereof;
(xix) costs, expenses, and penalties (including without
limitation attorneys' fees) incurred due to the violation by Landlord of any
underlying deed of trust or mortgage affecting the Premises or any portion
thereof;
(xx) costs incurred as a result of Landlord's violation of any
statute, ordinance or other source of applicable law, or breach of contract or
tort liability to any other party, including without limitation, any unrelated
third party, or Landlord's employees, contractors, agents or representatives;
-15-
(xxi) advertising, marketing, media and promotional
expenditures regarding the Development and costs of the initial construction of
any signs in or on the Development identifying the owner, lender or any
contractor thereof;
(xxii) to the extent the useful life of repairs or replacements
(other than repairs or replacements to Tenant Improvements) which, under
generally accepted accounting principles consistently applied, would be
considered a capital cost in excess of $12,000 per item, exceeds the remainder
of the term of the Lease (as such useful life is determined under generally
accepted accounting principals), the pro rata portion of the cost thereof
attributable to the period following the expiration of the Term; provided,
however, if Tenant thereafter extends the Term of the Lease, Landlord may
recover the portion of the cost not previously recovered to the extent it falls
within the period of the extended Term;
(xxiii) the amounts of any payments to Landlord or to
subsidiaries or affiliates of Landlord for goods or services in the Building in
excess of the cost of such goods or services if they were provided by
unaffiliated third parties on a competitive basis;
(xxiv) costs of insured losses to the extent of insurance
proceeds provided to Landlord, except payable by Tenant pursuant to Paragraph 20
of this Lease;
(xxv) any bad debt loss, rent loss, or reserves for bad
debts or rent loss;
(xxvi) costs associated solely with the operating of the
business of the entity which constitutes the Landlord, as the same are
distinguished from the costs of operation of the Development by the Landlord
(which shall specifically include, but not be limited to, accounting costs
associated with the operation of the Development, costs of entity accounting and
legal matters, costs of defending any lawsuits with any mortgagee, costs of
selling, syndicating, financing, mortgaging or hypothecating any of the
Landlord's interest in the Premises, and costs incurred in connection with any
disputes between Landlord and its employees, or between Landlord and other
tenants or occupants), and Landlord's general corporate overhead and general and
administrative expenses;
(xxvii) costs arising from Landlord's charitable and
political contributions;
(xxviii) any gifts provided to any entity whatsoever, including
but not limited to, Tenant, other tenants, employees, vendors, contractors,
prospective tenants and agents;
(xxix) any costs covered by any warranty, rebate, guarantee or
service contract which are actually collected by Landlord (which shall not
prohibit Landlord for passing through the costs of any such service contract if
otherwise included in Operating Expenses);
(xxx) all items and services that Tenant reimburses
Landlord for;
(xxxi) any expense resulting from the active or gross
negligence or willful misconduct of Landlord, its agents, contractors or
employees, to the extent Landlord is actually reimbursed for such costs, to
remedy damage caused by or resulting from the negligence or willful misconduct
of any licensees in the Project, including their agents, contractors and
employees;
(xxxii) reserves for anticipated future expenses; and
(xxxiii) insurance deductibles for damage caused by earthquake,
and underinsured portions of losses on account of damage to the Building Shell,
Site Improvements and Core Improvements.
-16-
7. DEPOSIT.
(a) Security Deposit. Concurrently with Tenant's execution of
this Lease, Tenant will deposit with Landlord the Security Deposit designated in
Subparagraph 1(t). The Security Deposit will be held by Landlord as security for
the full and faithful performance by Tenant of all of the terms, covenants, and
conditions of this Lease to be kept and performed by Tenant during the Term
hereof. If Tenant fully and faithfully performs its obligations under this
Lease, including, without limitation, surrendering the Premises upon the
expiration or sooner termination of this Lease in compliance with Subparagraph
11(a) below, the Security Deposit or any balance thereof will be returned to
Tenant (or, at Landlord's option, to the last assignee of Tenant's interest
hereunder) within thirty (30) days following the expiration of the Lease Term or
as required under applicable law, provided that Landlord may retain the Security
Deposit until such time as any outstanding rent or additional rent amount has
been determined and paid in full. The Security Deposit is not, and may not be
construed by Tenant to constitute, rent for the last month or any portion
thereof. If Tenant defaults with respect to any provisions of this Lease
including, but not limited to, the provisions relating to the payment of rent or
additional rent, Landlord may (but will not be required to) use, apply or retain
all or any part of the Security Deposit for the payment of any rent or any other
sum in default, or for the payment of any other amount which Landlord may spend
or become obligated to spend by reason of Tenant's default or to compensate
Landlord for any loss or damage which Landlord may suffer by reason of Tenant's
default. If any portion of the Security Deposit is so used or applied, Tenant
agrees, within ten (10) days after Landlord's written demand therefor, to
deposit cash with Landlord in an amount sufficient to restore the Security
Deposit to its original amount and Tenant's failure to do so shall constitute a
default under this Lease. Landlord is not required to keep Tenant's Security
Deposit separate from its general funds, and Tenant is not entitled to interest
on such Security Deposit. Should Landlord sell its interest in the Premises
during the Term hereof and deposit with the purchaser thereof the then
unappropriated Security Deposit funds, Landlord will be discharged from any
further liability with respect to such Security Deposit.
(b) Letter of Credit.
(i) Form of Letter of Credit. In addition to its primary
------------------------
obligations under this Lease and as part of the Security Deposit required above,
Tenant shall, within three (3) days after the satisfaction of the Loan
Commitment Condition, and continuing throughout the Lease Term, provide security
against a default by Tenant under this Lease by delivering to Landlord an
unconditional, irrevocable, standby letter of credit ("LC"), naming Landlord as
the payee thereunder, with terms as described in more detail below. The LC shall
be initially be in an amount equal to One Million Five Hundred Thousand Dollars
($1,500,000.00), which amount shall be increased to Three Million One Hundred
Ten Thousand Dollars ($3,110,000.00) no later than three (3) days after the
Commencement Date. The LC shall be issued by a money center bank (a bank which
accepts deposits, maintains accounts, has a local San Diego, Orange County, or
Los Angeles office which will negotiate a letter of credit, and whose deposits
are insured by the FDIC) reasonably acceptable to Landlord, and shall be in a
form and content reasonably acceptable to Landlord and in the form required
hereunder. The LC shall be drawable by Landlord upon presentation of a sight
draft or demand to the LC issuer. Landlord may present such a sight draft or
demand if (1) the LC has not been renewed and replaced by Tenant by thirty (30)
days prior to the expiration date of the then effective LC, or (2) Tenant
commits a default under the Lease and has not either (A) timely cured the same,
as provided herein, or (B) prior to thirty (30) days prior to the expiration of
the LC, whichever occurs first, cured the same; provided, however, proceeds of
the drawn LC shall be applied to damages or charges to which Landlord is
entitled under the Lease as a result of Tenant's default. The LC is not intended
to represent liquidated damages for Tenant's default, but only a mechanism for
paying the damages or charges to which Landlord may be entitled. If allowed by
the issuing bank, Landlord shall be entitled, at Landlord's sole cost and
expense, to grant a security interest in, or make a collateral assignment of,
Landlord's rights under the LC in connection with mortgage indebtedness incurred
by Landlord to a bona fide third-party institutional lender in an arm's-length
transaction; provided, however, that any grantee of a security interest or
assignee of a collateral assignment acknowledges in writing that the LC is bound
by the terms of this Lease. Tenant shall otherwise pay all expenses, points,
and/or fees incurred in obtaining the LC.
-17-
(ii) Conditional Reduction of Security. Provided Tenant has
---------------------------------
not been in default (after expiration of any applicable notice and cure period)
of its monetary obligations under this Lease three (3) times or more, and
provided Tenant has accepted the Premises and as provided in Paragraph 4 and is
occupying the Premises, and further provided and for so long as Tenant has at
least Seventy Million Dollars ($70,000,000) cash, cash equivalents and liquid
investments on hand (the "XX Xxxx Threshold Amount"), then commencing with the
thirteenth (13/th/) month of the Lease Term, the amount of the LC shall be
reduced by fifty percent (50%); provided, however, the amount of the LC shall
only be so reduced for so long as Tenant retains at least the XX Xxxx Threshold
Amount in cash, cash equivalents and liquid investments in its accounts.
Commencing with the twenty fifth (25/th/) month of the Lease Term, the amount of
the XX Xxxx Threshold Amount shall be reduced to Fifty Million Dollars
($50,000,000. In any event, and regardless of the amount of cash, cash
equivalents and liquid investments Tenant has in its accounts, the LC shall be
reduced to fifty percent (50%) of the initial amount at the commencement of the
seventh (7th) Lease Year, and shall be reduced by seventy five percent (75%) at
the commencement of the ninth (9th) Lease Year. For the first six (6) years of
the Lease Term, Tenant shall provide to Landlord, on a quarterly basis, Tenant's
financial statements and annual audited financials.
8. USE.
(a) Tenant's Use of the Premises. The Premises may be used for
the use or uses set forth in Subparagraph 1(v) only, and Tenant will not use or
permit the Premises to be used for any other purpose without the prior written
consent of Landlord, which consent Landlord may withhold in its sole and
absolute discretion.
(b) Compliance. At Tenant's sole cost and expense, Tenant
agrees to procure, maintain and hold available for Landlord's inspection, all
governmental licenses and permits required for the proper and lawful conduct of
Tenant's business from the Premises, if any. Tenant agrees not to use, alter or
occupy the Premises or allow the Premises to be used, altered or occupied in
violation of, and Tenant, at its sole cost and expense, agrees to use and occupy
the Premises and cause the Premises to be used and occupied in compliance with:
(i) any and all laws, statutes, zoning restrictions, ordinances, rules,
regulations, orders and rulings now or hereafter in force and any requirements
of any insurer, insurance authority or duly constituted public authority having
jurisdiction over the Premises now or hereafter in force, (ii) the requirements
of the Board of Fire Underwriters and any other similar body, (iii) the
Certificate of Occupancy issued for the Building, and (iv) any recorded
covenants, conditions and restrictions and similar regulatory agreements, if
any, which affect the use, occupation or alteration of the Premises. Tenant
agrees to comply with the Rules and Regulations referenced in Paragraph 28
below. Tenant agrees not to do or permit anything to be done in or about the
Premises which will in any manner obstruct or interfere with the rights of other
tenants or occupants of the Development, or injure or unreasonably annoy them,
or use or allow the Premises to be used for any unlawful or unreasonably
objectionable purpose. Tenant agrees not to cause, maintain or permit any
nuisance or waste in, on, under or about the Premises. Notwithstanding anything
contained in this Lease to the contrary, all transferable development rights
related in any way to the Development are and will remain vested in Landlord,
and Tenant hereby waives any rights thereto.
(c) Hazardous Materials. Except as provided below, Tenant
agrees not to cause or permit any Hazardous Materials to be brought upon,
stored, used, handled, generated, released or disposed of on, in, under or about
the Premises, the Development or any portion thereof by Tenant, its agents,
employees, subtenants, assignees, licensees, contractors or invitees
(collectively, "Tenant's Parties"), without the prior written consent of
Landlord, which consent Landlord may withhold in its sole and absolute
discretion. Upon the expiration or earlier termination of this Lease, Tenant
agrees to promptly remove from the Premises, at its sole cost and expense, any
and all Hazardous Materials, including any equipment or systems containing
Hazardous Materials, which are installed, brought upon, stored, used, generated
or released upon, in, under or about the Premises, the Development or any
portion thereof by Tenant or any of Tenant's Parties. Tenant agrees to promptly
notify Landlord of any release of Hazardous Materials at the Premises, which
Tenant becomes aware of during the Term of this Lease, whether caused by Tenant
or any other persons or entities. In the event of any
-18-
release of Hazardous Materials caused or permitted by Tenant or any of Tenant's
Parties, Landlord shall have the right, but not the obligation, to cause Tenant
to immediately take all steps Landlord deems necessary or appropriate to
remediate such release and prevent any similar future release to the
satisfaction of Landlord and Landlord's mortgagee(s). As used in this Lease, the
term "Hazardous Materials" shall mean and include any hazardous or toxic
materials, substances or wastes as now or hereafter designated under any law,
statute, ordinance, rule, regulation, order or ruling of any agency of the
State, the United States Government or any local governmental authority,
including, without limitation, asbestos, petroleum, petroleum hydrocarbons and
petroleum based products, urea formaldehyde foam insulation, polychlorinated
biphenyls ("PCBs"), and freon and other chlorofluorocarbons. The provisions of
this Subparagraph 8(c) will survive the expiration or earlier termination of
this Lease. Notwithstanding the foregoing, Tenant may, without Landlord's prior
consent, but in compliance with all Applicable Laws, use any ordinary and
customary materials reasonably required to be used by Tenant in the normal
course of Tenant's use of the Premises as permitted hereunder provided that
Tenant's handling, storage, use and disposal procedures are in compliance with
all Applicable Laws, the Rules and Regulations governing the Development and any
CC&R's. Landlord shall have the right, during the Lease Term, or upon the
expiration or earlier termination of the Term of this Lease, to cause, at
Tenant's cost, a duly qualified and licensed environmental consultant to conduct
an environmental audit of the Premises. The identity of the consultant and the
scope and detail of the audit shall be subject to Landlord's reasonable
discretion. If the audit recommends additional testing, then Tenant shall
conduct such tests at its expense. If the audit and/or tests reveal the presence
of Hazardous Materials at, on or under the Premises attributable to Tenant's
activities at the Premises, then Tenant shall, in addition to its obligation to
reimburse Landlord for the cost of such audit, remediate and mitigate the same,
at its expense, as necessary to obtain a final "no further action" letter (or
equivalent) from all governmental agencies having jurisdiction. In addition, if
at any time during the Term Tenant is required to file reports or manifests
concerning its use of Hazardous Materials at the Premises or concerning
Hazardous Materials contamination or remediation, then Tenant shall concurrently
provide Landlord with a copy of the same. Landlord represents and warrants that,
as of the Commencement Date of this Lease, to Landlord's actual knowledge,
except as disclosed in writing to Tenant, there are no Hazardous Materials
located on the Premises. For purposes of this Lease, "Landlord's actual
knowledge" means the actual knowledge of Xxxxxxx X. Xxxxxxxx and/or Xxx Xxxxxxx,
without duty of investigation.
(d) Duty to Inform Landlord. If Tenant knows, or has reasonable
cause to believe, that a Hazardous Substance has come to be located in, on,
under or about the Premises or the Buildings, other than in compliance with all
Applicable Laws, Tenant shall immediately give Landlord written notice thereof,
together with a copy of any statement, report, notice, registration,
application, permit, business plan, license, claim, action, or proceeding given
to, or received from, any governmental authority or private party concerning the
presence, spill, release, discharge of, or exposure to, such Hazardous Substance
including but not limited to all such documents as may be involved in any
Reportable Use involving the Premises. Tenant shall not cause or permit any
Hazardous Substance to be spilled or released in, on, under or about the
Premises or the Development (including, without limitation, through the plumbing
or sanitary sewer system).
(e) Indemnification. Tenant shall indemnify, protect, defend and
hold Landlord, its agents, employees, lenders and ground lessor, if any, and the
Premises, harmless from and against any and all damages, liabilities, judgments,
costs, claims, liens, expenses, penalties, loss of permits and attorneys' and
consultants' fees, which arise during or after the Term of this Lease and which
result from or arise out of or involve any Hazardous Substance brought onto or
created on the Premises or the Development by or for Tenant or its agents or by
anyone under Tenant's control or with Tenant's constructive knowledge or
consent. Tenant's obligations under this Paragraph 6.2(e) shall include, but not
be limited to, (i) the effects of any contamination or injury to person,
property or the environment created or suffered by Tenant, (ii) the cost of
investigation (including consultants' and attorneys' fees and testing), removal,
remediation, restoration and/or abatement thereof, or of any contamination
therein involved, (iii) diminution in value of the Premises or any portion of
the Development, (iv) damages for the loss or restriction on use of any portion
or amenity of the Premises or Project, (vi) damages arising from any adverse
impact on marketing of space in the Premises or the Development, (v) damages and
the costs of remedial work to other property in the vicinity of the Development
owned by Landlord
-19-
or an affiliate of Landlord, (vi) any consultant fees, expert fees, and
attorneys' fees incurred in connection therewith and, (vii) shall survive the
expiration or earlier termination of this Lease. No expiration or termination of
this Lease and no termination, cancellation or release agreement entered into by
Landlord and Tenant shall release Tenant from its obligations under this Lease
with respect to Hazardous Substances, unless specifically so agreed by Landlord
in writing at the time of such agreement.
(f) Exculpation of Landlord. Other lessees of the Development may
be using, handling or storing certain Hazardous Substances in connection with
such lessees' use of their premises. The failure of another lessee to comply
with applicable laws and procedures could result in a release of Hazardous
Substances and contamination to the Development, or any part thereof or the soil
and ground water thereunder. In the event of such release, the lessee
responsible for the release, and not Landlord, shall be solely responsible for
any claim, damage or expense incurred by Tenant by reason of such contamination.
Except for a breach of Landlord's representation in Paragraph 6(c), Tenant
waives any rights it may have to later assert that the foregoing release does
not cover unknown claims. Tenant and anyone claiming by, through or under Tenant
hereby fully and irrevocably releases Landlord, its partners and their
respective employees, officers, directors, representatives, agents, successors
and assigns from any and all claims that it may now have or hereafter acquire
against such persons and entities for any cost, loss, liability, damage,
expense, demand, action or cause of action arising from or related to any
environmental matters affecting the Property, or any portion thereof. This
release includes claims of which Tenant is presently unaware or which Tenant
does not presently suspect to exist in its favor which, if known by Tenant,
would materially affect Tenant's release of Landlord. Tenant specifically waives
the provision of California Civil Code (S) 1542, which provides as follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
________________________ _____________________
Landlord's Initials Tenant's Initials
(g) Tenant's Compliance with Requirements. Tenant shall, at
Tenant's sole cost and expense, fully, diligently and in a timely manner, comply
with all "Applicable Requirements," which term is used in this Lease to mean 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 in any manner to 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), now in effect or which may hereafter come into
effect. Tenant shall, within ten (10) days after receipt of Landlord's written
request, provide Landlord with copies of all documents and information,
including but not limited to permits, registrations, manifests, applications,
reports and certificates, evidencing Tenant's compliance with any Applicable
Requirements specified by Landlord, and shall immediately upon receipt, notify
Landlord in writing (with copies of any documents involved) of any threatened or
actual claim, notice, citation, warning, complaint or report pertaining to or
involving failure by Tenant or the Premises to comply with any Applicable
Requirements.
9. NOTICES. Any notice required or permitted to be given hereunder
must be in writing and may be given by personal delivery (including delivery by
overnight courier or an express mailing service) or by mail, if sent by
registered or certified mail. Notices to Tenant shall be sufficient if
delivered to Tenant at the address designated in Subparagraph 1(b) prior to the
Commencement Date and at the Premises after the Commencement Date, and notices
to Landlord shall be sufficient if delivered to Landlord at the address
designated in Subparagraph 1(a). Either party may specify a different address
for notice purposes by written notice to the other, except that, after the
Commencement Date, the Landlord may in any event use the Premises as Tenant's
address for notice purposes.
-20-
10. BROKERS. The parties acknowledge that the broker(s) who
negotiated this Lease are stated in Subparagraph 1(w), the commissions of whom
shall be paid by Landlord. Each party represents and warrants to the other,
that, to its knowledge, no other broker, agent or finder (a) negotiated or was
instrumental in negotiating or consummating this Lease on its behalf, and (b) is
or might be entitled to a commission or compensation in connection with this
Lease. Landlord and Tenant each agree to promptly indemnify, protect, defend
and hold harmless the other from and against any and all claims, damages,
judgments, suits, causes of action, losses, liabilities, penalties, fines,
expenses and costs (including attorneys' fees and court costs) resulting from
any breach by the indemnifying party of the foregoing representation, including,
without limitation, any claims that may be asserted by any broker, agent or
finder undisclosed by the indemnifying party. The foregoing mutual indemnity
shall survive the expiration or earlier termination of this Lease.
11. SURRENDER; HOLDING OVER.
(a) Surrender. The voluntary or other surrender of this Lease by
Tenant, or a mutual cancellation thereof, shall not constitute a merger, and
shall, at the option of Landlord, operate as an assignment to Landlord of any or
all subleases or subtenancies. Upon the expiration or earlier termination of
this Lease, Tenant agrees to peaceably surrender the Premises to Landlord broom
clean and in a state of good order, repair and condition, ordinary wear and tear
and casualty damage (if this Lease is terminated as a result thereof pursuant to
Paragraph 20) excepted, but in any event with the plumbing, heating, ventilation
and air conditioning systems in working order and all carpets and other floor
areas cleaned, together with all of Tenant's personal property and Alterations
(as defined in Paragraph 13) removed from the Premises to the extent required
under Paragraph 13 and all damage caused by such removal repaired as required by
Paragraph 13. At least ninety (90) days, prior to the date Tenant is to
actually surrender the Premises to Landlord, Tenant agrees to give Landlord
notice of the exact date Tenant will surrender the Premises so that Landlord and
Tenant can schedule a walk-through of the Premises to review the condition of
the Premises and identify the Alterations and personal property which are to
remain upon the Premises and which items Tenant is to remove as well as any
repairs Tenant is to make upon surrender of the Premises as required by this
Lease. During such ninety (90) day period, Landlord may, at its option and at
its expense, retain the services of one or more inspectors or consultants to
inspect the Premises and all equipment and fixtures located therein to determine
if they are in the condition required for proper surrender by Tenant. If any
such inspections disclose any deficiencies in the condition of the Premises,
Tenant will promptly cause the same to be corrected in a good and workmanlike
manner at Tenant's sole cost and expense prior to the surrender date. The
delivery of keys to any employee of Landlord or to Landlord's agent or any
employee thereof alone will not be sufficient to constitute a termination of
this Lease or a surrender of the Premises.
(b) Holding Over. Tenant will not be permitted to hold over
possession of the Premises after the expiration or earlier termination of the
Term without the express written consent of Landlord, which consent Landlord may
withhold in its sole and absolute discretion. If Tenant holds over after the
expiration or earlier termination of the Term, Landlord may, at its option,
treat Tenant as a tenant at sufferance only, and such continued occupancy by
Tenant shall be subject to all of the terms, covenants and conditions of this
Lease, so far as applicable, except that the Monthly Base Rent for any such
holdover period shall be equal to one hundred twenty-five percent (125%) of the
Monthly Base Rent in effect under this Lease immediately prior to such holdover,
prorated on a daily basis. Acceptance by Landlord of rent after such expiration
or earlier termination will not result in a renewal of this Lease. The
foregoing provisions of this Paragraph 11 are in addition to and do not affect
Landlord's right of re-entry or any rights of Landlord under this Lease or as
otherwise provided by law. If Tenant fails to surrender the Premises upon the
expiration of this Lease in accordance with the terms of this Paragraph 11
despite demand to do so by Landlord, Tenant agrees to pay costs and expenses
incurred by Landlord in returning the Premises to the condition in which Tenant
was to surrender it. The provisions of this Subparagraph 11(b) will survive the
expiration or earlier termination of this Lease.
-21-
12. TAXES.
(a) Payment of Taxes. Tenant agrees to pay all Real Property
Taxes and Assessments, as defined in Subparagraph 6(g) above, applicable to the
Premises during the term of this Lease. All such payments shall be made at least
ten (10) days prior to the due date of such payment. Tenant agrees to promptly
furnish Landlord with satisfactory evidence that such Real Property Taxes and
Assessments have been paid. If any such Real Property Taxes and Assessments paid
by Tenant shall cover any period of time prior to or after the expiration of the
term thereof, Tenant's share of such Real Property Taxes and Assessments is to
be equitably prorated to cover only the period of time within the tax fiscal
year during which this Lease shall be in effect, and Landlord will promptly
reimburse Tenant to the extent required. If Tenant fails to pay any such Real
Property Taxes and Assessments, Landlord will have the right to pay the same, in
which case Tenant will repay such amount to Landlord with Tenant's next rent
installment together with interest at the Interest Rate. In the event Tenant
occupies a portion of a larger building and real property taxes are billed to
Landlord, Tenant shall pay its pro rata share as determined in Paragraph 12(c)
below of said taxes within ten (10) days after billing by Landlord.
(b) Joint Assessment. If the Premises are not separately
assessed, Tenant's liability shall be an equitable proportion of the Real
Property Taxes and Assessments for all of the land and improvement included
within the tax parcel assessed, such proportion to be determined by Landlord
from the respective valuations assigned in the assessor's work sheets or such
other information as may be reasonably available. Landlord's reasonable
determination thereof shall be conclusive and binding upon Tenant.
(c) Personal Property Taxes. Tenant agrees to pay prior to
delinquency all taxes assessed against and levied upon trade fixtures,
furnishings, equipment and all other personal property of Tenant contained in
the Premises or elsewhere. When possible, Tenant will cause said trade fixtures,
furnishings, equipment and all other personal property to be assessed and billed
separately from the real property of Landlord. If any of Tenant's personal
property is assessed with Landlord's real property, Tenant shall pay Landlord
the taxes attributable to Tenant within ten (10) days after receipt of a written
statement setting forth the taxes applicable to Tenant's property.
13. ALTERATIONS. After installation of the initial Tenant
Improvements for the Premises, Tenant may, at its sole cost and expense, make
alterations, additions, improvements, "Utility Installations" and decorations to
the Premises (collectively, "Alterations") subject to and only upon the
following terms and conditions:
(a) Prohibited Alterations. Tenant may not without Landlord's
prior written consent, which may not be unreasonably withheld or delayed, make
any Alterations which: (i) affect any area outside the Premises; (ii) affect the
Building's structure, roof, equipment, services or systems, or the proper
functioning thereof, or Landlord's access thereto; (iii) affect the outside
appearance, character or use of the Building or the Common Areas; (iv) in the
reasonable opinion of Landlord, lessen the value of the Building; or (v) will
violate or require a change in any occupancy certificate applicable to the
Premises. As used in this Paragraph 13, the term "Utility Installations" means
carpeting, window coverings, air lines, power panels, electrical distribution
systems, lighting fixtures, space heaters, heating, ventilation and air
conditioning systems, plumbing systems, fencing, landscaping, signage,
telephone, cable or other communication systems of any kind, satellite or other
radio or television reception or transmitting devices, or gas lines.
(b) Landlord's Approval. Before proceeding with any Alterations,
Tenant must first obtain Landlord's written approval of the plans,
specifications and working drawings for such Alterations, which approval
Landlord will not unreasonably withhold or delay; provided, however, Landlord's
prior approval will not be required for any such Alterations which are not
listed by Subparagraph 13(a) above and which cost less than Fifty Thousand
Dollars ($50,000) per instance, or One Hundred Thousand Dollars ($100,000) per
year (individually, or collectively, the "Alteration Threshold Amount") as long
as (i) Tenant delivers to Landlord notice and a copy of any final plans,
specifications and working drawings for any such Alterations at least ten (10)
-22-
days prior to commencement of the work thereof, and (ii) the other conditions of
this Paragraph 13 are satisfied, including, without limitation, conforming to
Landlord's rules, regulations and insurance requirements which govern
contractors. Landlord's approval of plans, specifications and/or working
drawings for Alterations will not create any responsibility or liability on the
part of Landlord for their completeness, design sufficiency, or compliance with
applicable permits, laws, rules and regulations of governmental agencies or
authorities.
(c) Contractors. Alterations in excess of the Alteration
Threshold Amount may be made or installed only by contractors and subcontractors
which have been approved by Landlord, which approval Landlord will not
unreasonably withhold or delay. Before proceeding with any Alterations, Tenant
agrees to provide Landlord with ten (10) days' prior written notice and Tenant's
contractors must obtain and maintain, on behalf of Tenant and at Tenant's sole
cost and expense: (i) all necessary governmental permits and approvals for the
commencement and completion of such Alterations; and (ii) if the Alterations in
any one instance cost more than One Hundred Thousand Dollars ($100,000), if
requested by Landlord, a completion and lien indemnity bond, or other surety,
reasonably satisfactory to Landlord for such Alterations. Throughout the
performance of any Alterations, Tenant agrees to obtain, or cause its
contractors to obtain, workers compensation insurance and general liability
insurance in compliance with the provisions of Paragraph 19 of this Lease.
(d) Manner of Performance. All Alterations must be performed: (i)
in accordance with the approved plans, specifications and working drawings; (ii)
in a lien-free and first-class and workmanlike manner; (iii) in compliance with
all applicable permits, laws, statutes, ordinances, rules, regulations, orders
and rulings now or hereafter in effect and imposed by any governmental agencies
and authorities which assert jurisdiction; (iv) in such a manner so as not to
interfere with the occupancy of any other tenant the Development, nor impose any
additional expense upon Landlord; and (v) at such times, in such manner, and
subject to such rules and regulations as Landlord may from time to time
reasonably designate.
(e) Ownership. The Tenant Improvements and all Alterations will
become the property of Landlord and will remain upon and be surrendered with the
Premises at the end of the Term of this Lease; provided, however, (i) Landlord
may, by written notice delivered to Tenant concurrently with Landlord's approval
of the final working drawings for any Alterations, identify those Alterations
which Landlord will require Tenant to remove at the expiration or earlier
termination of this Lease, and (ii) Tenant may, by written notice delivered to
Landlord concurrently with the final working drawings for any Alterations, and
with Landlord's written approval, identify those Alterations which Tenant
reserves the right to remove at the expiration or earlier termination of the
Lease. Landlord may also require Tenant to remove Alterations which Landlord did
not have the opportunity to approve as provided in this Paragraph 13. If
Landlord requires Tenant to remove any Alterations, Tenant, at its sole cost and
expense, agrees to remove the identified Alterations on or before the expiration
or earlier termination of this Lease. Tenant, at its sole cost and expense,
shall repair any damage to the Premises caused by the removal of any Alterations
(or, with Landlord's consent, Tenant may pay to Landlord all of Landlord's costs
of such removal and repair).
(f) Personal Property. All articles of personal property owned by
Tenant or installed by Tenant at its expense in the Premises (including Tenant's
business and trade fixtures, furniture, movable partitions and equipment (such
as telephones, copy machines, computer terminals, refrigerators and facsimile
machines) will be and remain the property of Tenant, and must be removed by
Tenant from the Premises, at Tenant's sole cost and expense, on or before the
expiration or earlier termination of this Lease. Tenant agrees to repair any
damage caused by such removal at its cost on or before the expiration or earlier
termination of this Lease.
(g) Removal of Alterations. If Tenant fails to remove by the
expiration or earlier termination of this Lease all of its personal property, or
any Alterations identified by Landlord for removal, Landlord may, at its option
(without liability to Tenant for loss thereof), treat such personal property
and/or Alterations as abandoned and, at Tenant's sole cost and expense, and in
addition to Landlord's other rights and remedies under this Lease, at law or in
equity: (a) remove and store such items; and/or (b) upon ten (10) days' prior
notice to Tenant, sell, discard or otherwise dispose of all or any such items at
private or public sale for such
-23-
price as Landlord may obtain or by other commercially reasonable means. Tenant
shall be liable for all costs of disposition of Tenant's abandoned property and
Landlord shall have no liability to Tenant with respect to any such abandoned
property. Landlord agrees to apply the proceeds of any sale of any such property
to any amounts due to Landlord under this Lease from Tenant (including
Landlord's attorneys' fees and other costs incurred in the removal, storage
and/or sale of such items), with any remainder to be paid to Tenant.
14. REPAIRS.
(a) Tenant's Obligations. Except for Landlord's obligations under
Paragraph 14(c) below, Tenant agrees to keep in good order, condition and repair
the Premises and every part thereof (whether or not such portion of the Premises
requiring repair, or the means of repairing the same are reasonable or readily
accessible to Tenant, and whether or not the need for such repairs occurs as a
result of Tenant's use, any prior use, the elements, the age or the quality of
construction of such portion of the Premises), including, the plumbing, heating,
ventilation, air conditioning systems, electrical, lighting facilities and
equipment within the Premises, fixtures, interior walls, ceilings, roofs
(interior and exterior), floors, windows, doors, plate glass and skylights
located within the Premises, and signs located on the Premises. Landlord, at
Tenant's sole cost and expense, shall arrange for inspection of the roof of the
Premises annually. Tenant shall pay for the costs of such inspections and
cooperate with Landlord for the correction of any defects found, including
implementation of a preventative maintenance program for the roof. Tenant shall
select, procure and maintain, at Tenant's expense, maintenance contracts with
contractors approved by Landlord for the heating, ventilating and air
conditioning systems, of the Premises and Tenant shall pay for the cost of same.
Tenant agrees to cause any mechanics' liens or other liens arising as a result
of work performed by Tenant or at Tenant's direction to be eliminated as
provided in Paragraph 15 below.
(b) Tenant's Failure to Repair. If Tenant refuses or neglects to
repair and maintain the Premises properly as required hereunder to the
reasonable satisfaction of Landlord, Landlord, at any time following ten (10)
days from the date on which Landlord makes a written demand on Tenant to effect
such repair and maintenance, may enter upon the Premises and make such repairs
and/or maintenance, and upon completion thereof, Tenant agrees to pay to
Landlord as additional rent, Landlord's costs for making such repairs plus an
amount not to exceed ten percent (10%) of such costs for overhead, within ten
(10) days of receipt from Landlord of a written itemized xxxx therefor. Any
amounts not reimbursed by Tenant within such ten (10) day period will bear
interest at the Interest Rate until paid by Tenant.
(c) Landlord's Obligations. Subject to Tenant's obligations
hereunder, and the provisions of Paragraphs 6 (Common Area Operating Expenses),
20 (Damage or Destruction) and 21 (Eminent Domain), and subject to the
reimbursement requirements of Tenant under Paragraph 5(b), Landlord, shall keep
in good order, condition and repair the foundations, exterior walls, structural
condition of interior bearing walls, fire sprinkler and/or standpipe and hose
(if located in the Common Areas) or other automatic fire extinguishing system
including fire alarm and/or smoke detection systems and equipment inside the
Premises, fire hydrants, parking lots, walkways, parkways, driveways,
landscaping, sports courts and all recreational facilities included in the
Common Areas, fences, signs and utility systems serving the Common Areas and all
parts thereof, as well as providing the services for which there is an Operating
Expense pursuant to Paragraph 6. Notwithstanding the foregoing, or anything in
this Lease to the contrary, Landlord shall not be responsible to repair or
maintain any roof mounted equipment of Tenant or any repairs required due to the
installation of such equipment by Tenant pursuant to this Lease, but instead,
Tenant shall responsible to repair and maintain any such equipment or make any
such repairs as part of Tenant's obligations hereunder Landlord shall not be
obligated to, but may elect to, paint the exterior or interior surfaces of
exterior walls nor shall Landlord be obligated to maintain, repair or replace
windows, doors or plate glass of the Premises. Tenant expressly waives the
benefit of any statute now or hereafter in effect which would otherwise afford
Tenant the right to make repairs at Landlord's expense (including, without
limitation, the provisions of California Civil Code Sections 1941 and 1942 and
any successor statutes or laws of a similar nature) or to terminate this Lease
because of Landlord's failure to keep the Buildings, Development or Common Areas
in good order, condition and repair.
-24-
15. LIENS. Tenant agrees not to permit any mechanic's, materialmen's
or other liens to be filed against all or any part of the Premises or the
Development, nor against Tenant's leasehold interest in the Premises, by reason
of or in connection with any repairs, alterations, improvements or other work
contracted for or undertaken by Tenant or any other act or omission of Tenant or
Tenant's agents, employees, contractors, licensees or invitees. At Landlord's
request, Tenant agrees to provide Landlord with enforceable, conditional and
final lien releases (or other evidence reasonably requested by Landlord to
demonstrate protection from liens) from all persons furnishing labor and/or
materials at the Premises. Landlord will have the right at all reasonable times
to post on the Premises and record any notices of non-responsibility which it
deems necessary for protection from such liens. If any such liens are filed,
Tenant will, at its sole cost, promptly cause such liens to be released of
record or bonded so that it no longer affects title to the Premises or the
Development. If Tenant fails to cause any such liens to be so released or bonded
within ten (10) days after filing thereof, such failure will be deemed a
material breach by Tenant under this Lease without the benefit of any additional
notice or cure period described in Paragraph 22 below, and Landlord may, without
waiving its rights and remedies based on such breach, and without releasing
Tenant from any of its obligations, cause such liens to be released by any means
it shall deem proper, including payment in satisfaction of the claims giving
rise to such liens. Tenant agrees to pay to Landlord within ten (10) days after
receipt of invoice from Landlord, any sum paid by Landlord to remove such liens,
together with interest at the Interest Rate from the date of such payment by
Landlord.
16. ENTRY BY LANDLORD. Landlord and its employees and agents will at
all times have the right to enter the Premises to inspect the same, to show the
Premises to prospective purchasers or tenants, to post notices of
nonresponsibility, and/or to repair the Premises as permitted or required by
this Lease. In exercising such entry rights, Landlord will endeavor to minimize,
as reasonably practicable, the interference with Tenant's business, and will
provide Tenant with reasonable advance notice of any such entry (except in
emergency situations). Landlord may, in order to carry out such purposes, erect
scaffolding and other necessary structures where reasonably required by the
character of the work to be performed. Landlord will at all times have and
retain a key with which to unlock all doors in the Premises, excluding Tenant's
vaults and safes. Landlord will have the right to use any and all means which
Landlord may reasonably deem proper to open said doors in an emergency in order
to obtain entry to the Premises. Any entry to the Premises obtained by Landlord
by any of said means, or otherwise, will not be construed or deemed to be a
forcible or unlawful entry into the Premises, or an eviction of Tenant from the
Premises. Landlord will not be liable to Tenant for any damages or losses for
any entry by Landlord.
17. UTILITIES AND SERVICES. Tenant agrees to contract directly for
and to pay for all water, gas, heat, light, power, telephone, waste removal,
sewer and other utilities and services supplied to the Premises, together with
any taxes thereon. If any such services are not separately metered to Tenant,
Tenant agrees to pay a reasonable proportion to be determined by Landlord of all
charges jointly metered with other premises. Tenant agrees to pay for any
separate meters that Landlord may install from time to time. Landlord will not
be liable to Tenant for any failure to furnish any of the foregoing utilities
and services if such failure is caused by all or any of the following: (i)
accident, breakage or repairs; (ii) strikes, lockouts or other labor disturbance
or labor dispute of any character; (iii) governmental regulation, moratorium or
other governmental action or inaction; (iv) inability despite the exercise of
reasonable diligence to obtain electricity, water or fuel; or (v) any other
cause beyond Landlord's reasonable control. In addition, in the event of any
stoppage or interruption of services or utilities, Tenant shall not be entitled
to any abatement or reduction of rent (except as expressly provided in
Subparagraphs 20(f) or 21(b) if such failure results from a damage or taking
described therein), no eviction of Tenant will result from such failure and
Tenant will not be relieved from the performance of any covenant or agreement in
this Lease because of such failure; provided, however, unless caused by casualty
or condemnation to the Building or Project, if interruption of gas, water,
electricity, telephone, or fiber optic service lasts for more than six (6)
months, Tenant may at its election terminate this Lease by written notice to
Landlord.
18. ASSUMPTION OF RISK AND INDEMNIFICATION.
(a) Assumption of Risk. Tenant, as a material part of the
consideration to Landlord, hereby agrees that neither Landlord nor any Landlord
Indemnified Parties (as defined in Subparagraph 8(c)
-25-
above) will be liable to Tenant for, and Tenant expressly assumes the risk of
and waives any and all claims it may have against Landlord or any Landlord
Indemnified Parties with respect to, (i) any and all damage to property or
injury to persons in, upon or about the Premises or the Development (except that
resulting from the active or grossly negligent or intentionally willful act or
omission of Landlord or a Landlord Indemnified Party), (ii) any such damage
caused by other tenants or persons in or about the Premises, or caused by quasi-
public work, (iii) any damage to property entrusted to employees of the
Premises, (iv) any loss of or damage to property by theft or otherwise, or (v)
any injury or damage to persons or property resulting from any casualty,
explosion, falling plaster or other masonry or glass, steam, gas, electricity,
water or rain which may leak from any part of the Buildings or from the pipes,
appliances or plumbing works therein or from the roof, street or subsurface or
from any other place, or resulting from dampness. Notwithstanding anything to
the contrary contained in this Lease, neither Landlord nor any Landlord
Indemnified Parties will be liable for consequential damages arising out of any
loss of the use of the Premises or any equipment or facilities therein by Tenant
or any Tenant Parties or for interference with light or other incorporeal
hereditaments. Tenant agrees to give prompt notice to Landlord in case of fire
or accidents in the Premises, or of defects therein or in the fixtures or
equipment.
(b) Indemnification by Tenant. Tenant will be liable for, and
agrees, to the maximum extent permissible under applicable law, to promptly
indemnify, protect, defend and hold harmless Landlord and Landlord Indemnified
Parties, from and against, any and all claims, damages, judgments, suits, causes
of action, losses, liabilities, penalties, fines, expenses and costs, including
attorneys' fees and court costs (collectively, "Indemnified Claims"), arising or
resulting from (i) any act or omission of Tenant or any Tenant Parties (as
defined in Subparagraph 8(a) above); (ii) the use of the Premises and Common
Areas and conduct of Tenant's business by Tenant or any Tenant Parties, or any
other activity, work or thing done, permitted or suffered by Tenant or any
Tenant Parties, in or about the Premises or elsewhere within the Development;
and/or (iii) any default by Tenant of any obligations on Tenant's part to be
performed under the terms of this Lease. In case any action or proceeding is
brought against Landlord or any Landlord Indemnified Parties by reason of any
such Indemnified Claims, Tenant, upon notice from Landlord, agrees to promptly
defend the same at Tenant's sole cost and expense by counsel approved in writing
by Landlord, which approval by Landlord will not unreasonably withhold.
(c) Indemnification by Landlord. Landlord will be liable for, and
agrees, to the maximum extent permissible under applicable law, to promptly
indemnify, protect, defend and hold harmless Tenant and any Tenant Parties, from
and against any and all Indemnified Claims arising or resulting from (i) any
active or grossly negligent or intentionally willful act or omission of Landlord
or a Landlord Indemnified Party, but only to the extent of insurance proceeds
available to Landlord; and/or (ii) any material default by Landlord of any
obligations on Landlord's part to be performed under the terms of this Lease. In
case any action or proceeding is brought against Tenant or any Tenant Party by
reason of any such Indemnified Claims, Landlord, upon notice from Tenant, agrees
to promptly defend the same at Landlord's sole cost and expense by counsel
approved in writing by Tenant, which approval by Tenant will not unreasonably
withhold.
(d) Survival; No Release of Insurers. Tenant's and Landlord's
indemnification obligations under Subparagraph 18(b) and (c) will survive the
expiration or earlier termination of this Lease. Tenant's covenants, agreements
and indemnification obligation in Subparagraphs 18(a) and 18(b) above, and
Landlord's covenants, agreements and indemnification obligations under
Subparagraph 18(c) above, are not intended to and will not relieve any insurance
carrier of its obligations under policies required to be carried by Landlord or
Tenant pursuant to the provisions of this Lease.
19. INSURANCE.
(a) Tenant's Insurance. On or before the date Tenant commences
any work of any type in the Premises pursuant to this Lease (which may be prior
to the Commencement Date), and continuing throughout the entire Term hereof and
any other period of occupancy, Tenant agrees to keep in full force and effect,
at its sole cost and expense, the following insurance:
-26-
(i) "All Risks" property insurance including at least the
following perils: fire and extended coverage, smoke damage, vandalism, malicious
mischief, and sprinkler leakage (including earthquake sprinkler leakage). This
insurance policy must be upon all property owned by Tenant, for which Tenant is
legally liable, or which is installed at Tenant's expense, and which is located
in the Premises including, without limitation, any Tenant Improvements which
satisfy the foregoing qualification and any Alterations, and all furniture,
fittings, installations, fixtures and any other personal property of Tenant, in
an amount not less than the full replacement cost thereof.
(ii) Commercial General Liability Insurance or Comprehensive
General Liability Insurance (on an occurrence form) insuring bodily injury,
personal injury and property damage including the following divisions and
extensions of coverage: Premises and Operations; Owners and Contractors
protective; blanket contractual liability (including coverage for Tenant's
indemnity obligations under this Lease); liquor liability (if Tenant serves
alcohol on the Premises); and fire and water damage legal liability. Such
insurance must have the following minimum limits of liability: bodily injury,
personal injury and property damage - $3,000,000 each occurrence and $6,000,000
in the aggregate, provided that if liability coverage is provided by a
Commercial General Liability policy the general aggregate limit shall apply
separately and in total to this location only (per location general aggregate),
and provided further, such minimum limits of liability may be adjusted from year
to year to reflect increases in coverages both as recommended by Landlord's
insurance carrier and as are commercially reasonable for tenants of first class
buildings comparable to the Building, rounded to the nearest five hundred
thousand dollars.
(iii) Comprehensive Automobile Liability insuring bodily injury
and property damage arising from all owned, non-owned and hired vehicles, if
any, with minimum limits of liability of $1,000,000 per accident.
(iv) Worker's Compensation or similar insurance as required by
the laws of the state in which the Premises are located, with at least the
following minimum limits of liability: Coverage A - statutory benefits; Coverage
B -$1,000,000 per accident and disease.
(v) Any other form or forms of insurance as Tenant or Landlord
or any mortgagees of Landlord may reasonably require from time to time in form,
in amounts, and for insurance risks against which, a prudent tenant would
protect itself, but only to the extent coverage for such risks and amounts are
available in the insurance market at commercially acceptable rates. Landlord
makes no representation that the limits of liability required to be carried by
Tenant under the terms of this Lease are adequate to protect Tenant's interests
and Tenant should obtain such additional insurance or increased liability limits
as Tenant deems appropriate.
(b) Supplemental Tenant Insurance Requirements. All policies must be
in a form reasonably satisfactory to Landlord and issued by an insurer admitted
to do business in the state in which the Premises are located. All policies
must be issued by insurers with a policyholder rating of "A" and a financial
rating of "X" in the most recent version of Best's Key Rating Guide. All
policies must contain a requirement to notify Landlord (and Landlord's property
manager and any mortgagees or ground lessors of Landlord who are named as
additional insureds, if any) in writing not less than thirty (30) days prior to
any material change, reduction in coverage, cancellation or other termination
thereof. Tenant agrees to deliver to Landlord, as soon as practicable after
placing the required insurance, but in any event within the time frame specified
in Subparagraph 19(a) above, certificate(s) of insurance and/or if required by
Landlord, certified copies of each policy evidencing the existence of such
insurance and Tenant's compliance with the provisions of this Paragraph 19.
Tenant agrees to cause replacement policies or certificates to be delivered to
Landlord not less than thirty (30) days prior to the expiration of any such
policy or policies. If any such initial or replacement policies or certificates
are not furnished within ten (10) days prior to the expiration or termination or
any material change, Tenant will be deemed to be in material default under this
Lease without the benefit of any additional notice or cure period provided in
Subparagraph 22(a)(iii) below, and Landlord will have the right, but not the
obligation, to procure such insurance as Landlord deems necessary to protect
Landlord's interests at Tenant's expense. If Landlord
-27-
obtains any insurance that is the responsibility of Tenant under this Xxxxxxxxx
00, Xxxxxxxx agrees to deliver to Tenant a written statement setting forth the
cost of any such insurance and showing in reasonable detail the manner in which
it has been computed and Tenant agrees to promptly reimburse Landlord for such
costs as additional rent. General Liability and Automobile Liability policies
under Subparagraphs 19(a)(ii) and (iii) must name Landlord and Landlord's
property manager (and at Landlord's request, Landlord's mortgagees and ground
lessors of which Tenant has been informed in writing) as additional insureds and
must also contain a provision that the insurance afforded by such policy is
primary insurance and any insurance carried by Landlord and Landlord's property
manager or Landlord's mortgagees or ground lessors, if any, will be excess over
and non-contributing with Tenant's insurance.
(c) Building Insurance. Landlord shall obtain, at Tenant's sole
cost and expense, a policy or policies of insurance covering loss or damage to
the Premises, in the amount of the full replacement value thereof, as the same
may exist from time to time, but in no event less than the total amount required
by lenders having liens on the Premises, against all perils included within the
classification of fire, extended coverage, vandalism, malicious mischief, flood,
and special extended perils ("All Risk" as such term is used in the insurance
industry). Said insurance shall provide for payment of loss to Landlord, or to
the holders of mortgages or the beneficiaries under deeds of trust on the
Premises. This insurance shall cover the Buildings, including tenant
improvements, heating and cooling equipment or machinery and electrical
equipment, as well as any furniture, fixtures, equipment or other personal
property owned by Landlord. A Stipulated Value or Agreed Amount endorsement
deleting the coinsurance provision of the policy shall be procured with said
insurance. Tenant agrees to reimburse Landlord for the entire cost of such
premiums within five (5) days after demand therefor by Landlord. If the Premises
are part of a group of buildings owned by Landlord which are adjacent to the
Premises, then Tenant shall pay for any increase in the property insurance of
such other buildings if said increase is caused by Tenant's acts, omissions, use
or occupancy of the Premises.
(d) Tenant's Use. Tenant will not keep, use, sell or offer for
sale in or upon the Premises any article which may be prohibited by any
insurance policy periodically in force covering the Premises. If Tenant's
occupancy or business in, or on, the Premises, whether or not Landlord has
consented to the same, results in any increase in premiums for the insurance
periodically carried by Landlord with respect to the Buildings or results in the
need for Landlord to maintain special or additional insurance, Tenant agrees to
pay Landlord the cost of any such increase in premiums or special or additional
coverage as additional rent within ten (10) days after being billed therefor by
Landlord. In determining whether increased premiums are a result of Tenant's use
of the Premises, a schedule issued by the organization computing the insurance
rate on the Buildings showing the various components of such rate, will be
conclusive evidence of the several items and charges which make up such rate.
Tenant agrees to promptly comply with all reasonable requirements of the
insurance authority or any present or future insurer relating to the Premises.
(e) Cancellation of Landlord's Policies. If any of Landlord's
insurance policies are canceled or cancellation is threatened or the coverage
reduced or threatened to be reduced in any way because of the use of the
Premises or any part thereof by Tenant or any assignee or subtenant of Tenant or
by anyone Tenant permits on the Premises, except for uses permitted by this
Lease, and, if Tenant fails to remedy the condition giving rise to such
cancellation, threatened cancellation, reduction of coverage, threatened
reduction of coverage, increase in premiums, or threatened increase in premiums,
within forty-eight (48) hours after notice thereof, Tenant will be deemed to be
in material default of this Lease and Landlord may, at its option, enter upon
the Premises and attempt to remedy such condition, and Tenant shall promptly pay
Landlord the reasonable costs of such remedy as additional rent. If Landlord is
unable, or elects not to remedy such condition, then Landlord will have all of
the remedies provided for in this Lease in the event of a default by Tenant.
(f) Waiver of Subrogation. Tenant's property ;insurance and
Landlord's property insurance shall contain a clause whereby the insurer waives
all rights of recovery by way of subrogation against the other. Tenant shall
also obtain and furnish evidence to Landlord of the waiver by Tenant's worker's
compensation insurance carrier of all rights of recovery by way of subrogation
against Landlord.
-28-
20. DAMAGE OR DESTRUCTION.
(a) Partial Destruction. If the Premises are damaged by fire or
other casualty to an extent not exceeding twenty-five percent (25%) of the full
replacement cost thereof, and Landlord's contractor reasonably estimates in a
writing delivered to Landlord and Tenant that the damage thereto may be
repaired, reconstructed or restored to substantially its condition immediately
prior to such damage within one hundred eighty (180) days from the date of such
casualty, and Landlord will receive insurance proceeds sufficient to cover the
costs of such repairs, reconstruction and restoration (including any
contributions required hereunder by Landlord or Tenant and proceeds from Tenant
and/or Tenant's insurance which Tenant is required to deliver to Landlord
pursuant to Subparagraph 20(e) below to cover Tenant's obligation for the costs
of repair, reconstruction and restoration of any portion of the Tenant
Improvements and any Alterations for which Tenant is responsible under this
Lease), then Landlord agrees to commence and proceed diligently with the work of
repair, reconstruction and restoration of the Building Shell and Core
Improvements, and, to the extent of insurance proceeds paid to Landlord for loss
to Tenant Improvements, to fund such costs toward the reconstruction of the
Tenant Improvements by Tenant. Tenant shall be responsible, notwithstanding the
availability to Tenant of insurance proceeds, to fund and reconstruct the Tenant
Improvements to substantially the same condition as they existed prior to such
casualty, and in the manner described in Paragraph 4(b) above, and this Lease
will continue in full force and effect.
(b) Substantial Destruction. Any damage or destruction to the
Premises which Landlord is not obligated to repair pursuant to Subparagraph
20(a) above will be deemed a substantial destruction. In the event of a
substantial destruction, Landlord may elect to either: (i) repair, reconstruct
and restore the portion of the Premises damaged by such casualty, in which case
this Lease will continue in full force and effect, subject to Tenant's
termination right contained in Subparagraph 20(d) below; or (ii) terminate this
Lease effective as of the date which is thirty (30) days after Tenant's receipt
of Landlord's election to so terminate.
(c) Notice. Under any of the conditions of Subparagraph 20(a) or
(b) above, Landlord agrees to give written notice to Tenant of its intention to
repair or terminate, as permitted in such paragraphs, within the earlier of
sixty (60) days after the occurrence of such casualty, or fifteen (15) days
after Landlord's receipt of the estimate from Landlord's contractor (the
applicable time period to be referred to herein as the "Notice Period").
(d) Tenant's Termination Rights. If Landlord elects to repair,
reconstruct and restore pursuant to Subparagraph 20(b)(i) hereinabove, and if
Landlord's contractor estimates that as a result of such damage, Tenant cannot
be given reasonable use of and access to the Premises within three hundred
sixty-five (365) days after the date of such damage, then Tenant may terminate
this Lease effective upon delivery of written notice to Landlord within ten (10)
days after Landlord delivers notice to Tenant of its election to so repair,
reconstruct or restore.
(e) Tenant's Costs and Insurance Proceeds. In the event of any
damage or destruction of all or any part of the Premises, Tenant agrees to
immediately (i) notify Landlord thereof, and (ii) deliver to Landlord all
property insurance proceeds received by Tenant with respect to any Tenant
Improvements and any Alterations, but excluding proceeds for Tenant's furniture,
fixtures, equipment and other personal property, whether or not this Lease is
terminated as permitted in this Paragraph 20, and Tenant hereby assigns to
Landlord all rights to receive such insurance proceeds. If, for any reason
(including Tenant's failure to obtain insurance for the full replacement cost of
any Tenant Improvements and any Alterations from any and all casualties), Tenant
fails to receive insurance proceeds covering the full replacement cost of any
Tenant Improvements and any Alterations which are damaged, Tenant will be deemed
to have self-insured the replacement cost of such items, and upon any damage or
destruction thereto, Tenant agrees to immediately pay to Landlord the full
replacement cost of such items, less any insurance proceeds actually received by
Landlord from Landlord's or Tenant's insurance with respect to such items.
-29-
(f) Abatement of Rent. In the event of any damage, repair,
reconstruction and/or restoration described in this Paragraph 20, rent will be
abated or reduced, as the case may be, in proportion to the degree to which
Tenant's use of the Premises is impaired during such period of repair until such
use is restored. Except for abatement of rent as provided hereinabove, Tenant
will not be entitled to any compensation or damages for loss of, or interference
with, Tenant's business or use or access of all or any part of the Premises or
for lost profits or any other consequential damages of any kind or nature, which
result from any such damage, repair, reconstruction or restoration.
(g) Inability to Complete. Notwithstanding anything to the
contrary contained in this Paragraph 20, if Landlord is obligated or elects to
repair, reconstruct and/or restore the damaged portion of the Building or the
Premises pursuant to Subparagraph 20(a) or 20(b)(i) above, but is delayed from
completing such repair, reconstruction and/or restoration beyond the date which
is one hundred eighty (180) days after the date estimated by Landlord's
contractor for completion thereof by reason of any causes (other than delays
caused by Tenant, its subtenants, employees, agents or contractors) (a) which
are beyond the reasonable control of Landlord as described in Paragraph 33, then
Landlord may elect to terminate this Lease upon ten (10) days' prior written
notice given to Tenant after the expiration of such one hundred eighty (180) day
period.
(h) Damage Near End of Term. Landlord and Tenant shall each have
the right to terminate this Lease if any damage to the Premises occurs (i)
during the last twenty-four (24) months of the Term of this Lease and where
Landlord's contractor estimates in a writing delivered to Landlord and Tenant
that the repair, reconstruction or restoration of such damage cannot be
completed within ninety (90) days after the date of such casualty, or (ii)
during the last twelve (12) months of the Term of this Lease where Landlord's
contractor estimates in a writing delivered to Landlord and Tenant that the
repair, reconstruction or restoration of such damage cannot be completed within
sixty (60) days after the date of such casualty. If either party desires to
terminate this Lease under this Subparagraph (h), it shall provide written
notice to the other party of such election within ten (10) days after receipt of
Landlord's contractor's repair estimates.
(i) Waiver of Termination Right. Landlord and Tenant agree that
the foregoing provisions of this Paragraph 20 are to govern their respective
rights and obligations in the event of any damage or destruction and supersede
and are in lieu of the provisions of any applicable law, statute, ordinance,
rule, regulation, order or ruling now or hereafter in force which provide
remedies for damage or destruction of leased premises (including, without
limitation, to the extent the Premises are located in California, the provisions
of California Civil Code Section 1932, Subsection 2, and Section 1933,
Subsection 4 and any successor statute or laws of a similar nature).
(j) Termination. Upon any termination of this Lease under any of
the provisions of this Paragraph 20, the parties will be released without
further obligation to the other from the date possession of the Premises is
surrendered to Landlord except for items which have accrued and are unpaid as of
the date of termination and matters which are to survive any termination of this
Lease as provided in this Lease.
21. EMINENT DOMAIN.
(a) Substantial Taking. If the whole of the Premises or more
than fifty percent (50%) of the floor area of the Building or fifty percent
(50%) of the land area of the Premises which is not occupied by the Building, is
taken for any public or quasi-public purpose by any lawful power or authority by
exercise of the right of appropriation, condemnation or eminent domain, or sold
to prevent such taking, either party will have the right to terminate this Lease
effective as of the date possession is required to be surrendered to such
authority.
(b) Partial Taking; Abatement of Rent. In the event of a taking
of a portion of the Premises which does not constitute a substantial taking
under Subparagraph 21(a) above, then, neither party will have the right to
terminate this Lease and Landlord will thereafter proceed to make a functional
unit of the remaining portion of the Premises (but only to the extent Landlord
receives proceeds therefor from the
-30-
condemning authority), and rent will be abated in proportion to the floor area
of the Premises which Tenant is deprived of on account of such taking; provided,
however, there will be no abatement of rent if the only area taken is that which
does not have a building located thereon.
(c) Condemnation Award. In connection with any taking of all or
any portion of the Premises, Landlord will be entitled to receive the entire
amount of any award which may be made or given in such taking or condemnation,
without deduction or apportionment for any estate or interest of Tenant, it
being expressly understood and agreed by Tenant that no portion of any such
award will be allowed or paid to Tenant for any so-called bonus or excess value
of this Lease, and such bonus or excess value will be the sole property of
Landlord. Tenant agrees not to assert any claim against Landlord or the taking
authority for any compensation because of such taking (including any claim for
bonus or excess value of this Lease); provided, however, if any portion of the
Premises is taken, Tenant will have the right to recover from the condemning
authority (but not from Landlord) any compensation as may be separately awarded
or recoverable by Tenant for the taking of Tenant's furniture, fixtures,
equipment and other personal property within the Premises, for Tenant's
relocation expenses, and for any loss of goodwill or other damage to Tenant's
business by reason of such taking.
(d) Temporary Taking. In the event of taking of the Premises or
any part thereof for temporary use, (i) this Lease will remain unaffected
thereby and rent will not xxxxx, and (ii) Tenant will be entitled to receive
such portion or portions of any award made for such use with respect to the
period of the taking which is within the Term, provided that if such taking
remains in force at the expiration or earlier termination of this Lease, Tenant
will then pay to Landlord a sum equal to the reasonable cost of performing
Tenant's obligations under Paragraph 11 with respect to surrender of the
Premises and upon such payment Tenant will be excused from such obligations. For
purpose of this Subparagraph 21(d), a temporary taking shall be defined as a
taking for a period of ninety (90) days or less.
22. DEFAULTS AND REMEDIES.
(a) Defaults. The occurrence of any one or more of the
following events will be deemed a default by Tenant:
(i) The failure by Tenant to make any payment of rent or
additional rent or any other payment required to be made by Tenant hereunder, as
and when due, where such failure continues for a period of five (5) days after
written notice thereof from Landlord to Tenant; provided, however, that any such
notice will be in lieu of, and not in addition to, any notice required under
applicable law (including, without limitation, to the extent the Premises are
located in California, the provisions of California Code of Civil Procedure
Section 1161 regarding unlawful detainer actions or any successor statute or law
of a similar nature).
(ii) The failure by Tenant to observe or perform any other
of the express or implied covenants or provisions of this Lease to be observed
or performed by Tenant, other than as specified in Subparagraph 22(a)(i) or (ii)
above, where such failure continues for a period of thirty (30) days after
written notice thereof from Landlord to Tenant. The provisions of any such
notice will be in lieu of, and not in addition to, any notice required under
applicable law (including, without limitation, to the extent the Premises are
located in California, California Code of Civil Procedure Section 1161 regarding
unlawful detainer actions and any successor statute or similar law). If the
nature of Tenant's default is such that more than thirty (30) days are
reasonably required for its cure, then Tenant will not be deemed to be in
default if Tenant, with Landlord's concurrence, commences such cure within such
thirty (30) day period and thereafter diligently prosecutes such cure to
completion.
(iii) (A) The making by Tenant of any general assignment for
the benefit of creditors; (B) the filing by or against Tenant of a petition to
have Tenant adjudged a bankrupt or a petition for reorganization or arrangement
under any law relating to bankruptcy (unless, in the case of a petition filed
against Tenant, the same is dismissed within ninety (90) days); (C) the
appointment of a trustee or receiver to take possession of substantially all of
Tenant's assets located at the Premises or of Tenant's interest in this Lease,
-31-
where possession is not restored to Tenant within sixty (60) days; or (D) the
attachment, execution or other judicial seizure of substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this Lease where such
seizure is not discharged within sixty (60) days.
(b) Landlord's Remedies; Termination. In the event of any
default by Tenant, in addition to any other remedies available to Landlord at
law or in equity under applicable law (including, without limitation, to the
extent the Premises are located in California, the remedies of Civil Code
Section 1951.4 and any successor statute or similar law), Landlord will have the
immediate right and option to terminate this Lease and all rights of Tenant
hereunder. If Landlord elects to terminate this Lease then, to the extent
permitted under applicable law, Landlord may recover from Tenant: (i) the worth
at the time of award of any unpaid rent which had been earned at the time of
such termination; plus (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 rent loss that Tenant proves could have
been reasonably avoided; plus (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 rent loss that Tenant proves could be reasonably
avoided; plus (iv) any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its obligations
under this Lease or which, in the ordinary course of things, results therefrom
including, but not limited to: attorneys' fees and costs; brokers' commissions;
the costs of refurbishment, alterations, renovation and repair of the Premises,
and removal (including the repair of any damage caused by such removal) and
storage (or disposal) of Tenant's personal property, equipment, fixtures,
Alterations, the Tenant Improvements and any other items which Tenant is
required under this Lease to remove but does not remove, as well as the
unamortized value of any free rent, reduced rent, free parking, reduced rate
parking and any Tenant Improvement Allowance or other costs or economic
concessions provided, paid, granted or incurred by Landlord pursuant to this
Lease. The unamortized value of such concessions shall be determined by taking
the total value of such concessions and multiplying such value by a fraction,
the numerator of which is the number of months of the Lease Term not yet elapsed
as of the date on which the Lease is terminated, and the denominator of which is
the total number of months of the Lease Term.
As used in Subparagraphs 22(b)(i) and (ii) above, the "worth at
the time of award" is computed by allowing interest at the Interest Rate. As
used in Subparagraph 22(b)(iii) above, the "worth at the time of award" is
computed by discounting such amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of award plus one percent (1%).
(c) Landlord's Remedies; Re-Entry Rights. In the event of any
default by Tenant, in addition to any other remedies available to Landlord under
this Lease, at law or in equity, Landlord will also have the right, with or
without terminating this Lease, to re-enter the Premises and remove all persons
and property from the Premises; such property may be removed and stored in a
public warehouse or elsewhere and/or disposed of at the sole cost and expense of
and for the account of Tenant in accordance with the provisions of Subparagraph
13(h) of this Lease or any other procedures permitted by applicable law. No re-
entry or taking possession of the Premises by Landlord pursuant to this
Subparagraph 22(c) will be construed as an election to terminate this Lease
unless a written notice of such intention is given to Tenant or unless the
termination thereof is decreed by a court of competent jurisdiction.
(d) Landlord's Remedies; Re-Letting. In the event of the
vacation or abandonment of the Premises by Tenant or in the event that Landlord
elects to re-enter the Premises or takes possession of the Premises pursuant to
legal proceeding or pursuant to any notice provided by law, then if Landlord
does not elect to terminate this Lease, Landlord may from time to time, without
terminating this Lease, either recover all rent as it becomes due or relet the
Premises or any part thereof on terms and conditions as Landlord in its sole and
absolute discretion may deem advisable with the right to make alterations and
repairs to the Premises in connection with such reletting. If Landlord elects to
relet the Premises, then rents received by Landlord from such reletting will be
applied: first, to the payment of any indebtedness other than rent due hereunder
from Tenant to Landlord; second, to the payment of any cost of such reletting;
third, to the payment of the cost of any alterations and repairs to the Premises
incurred in connection with such reletting; fourth, to the payment of rent
-32-
due and unpaid hereunder and the residue, if any, will be held by Landlord and
applied to payment of future rent as the same may become due and payable
hereunder. Should that portion of such rents received from such reletting during
any month, which is applied to the payment of rent hereunder, be less than the
rent payable during that month by Tenant hereunder, then Tenant agrees to pay
such deficiency to Landlord immediately upon demand therefor by Landlord. Such
deficiency will be calculated and paid monthly.
(e) Landlord's Remedies; Performance for Tenant. All covenants
and agreements to be performed by Tenant under any of the terms of this Lease
are to be performed by Tenant at Tenant's sole cost and expense and without any
abatement of rent. If Tenant fails to pay any sum of money owed to any party
other than Landlord, for which it is liable under this Lease, or if Tenant fails
to perform any other act on its part to be performed hereunder, and such failure
continues for ten (10) days after notice thereof by Landlord, Landlord may,
without waiving or releasing Tenant from its obligations, but shall not be
obligated to, make any such payment or perform any such other act to be made or
performed by Tenant. Tenant agrees to reimburse Landlord upon demand for all
sums so paid by Landlord and all necessary incidental costs, together with
interest thereon at the Interest Rate, from the date of such payment by Landlord
until reimbursed by Tenant. This remedy shall be in addition to any other right
or remedy of Landlord set forth in this Paragraph 22.
(f) Late Payment. If Tenant fails to pay any installment of rent
within five (5) days of when due or if Tenant fails to make any other payment
for which Tenant is obligated under this Lease within five (5) days of when due,
such late amount will accrue interest at the Interest Rate and Tenant agrees to
pay Landlord as additional rent such interest on such amount from the date such
amount becomes due until such amount is paid. In addition, Tenant agrees to pay
to Landlord concurrently with a late payment amount, as additional rent, a late
charge equal to five percent (5%) of the amount due to compensate Landlord for
the extra costs Landlord will incur as a result of such late payment. The
parties agree that (i) it would be impractical and extremely difficult to fix
the actual damage Landlord will suffer in the event of Tenant's late payment,
(ii) such interest and late charge represents a fair and reasonable estimate of
the detriment that Landlord will suffer by reason of late payment by Tenant, and
(iii) the payment of interest and late charges are distinct and separate in that
the payment of interest is to compensate Landlord for the use of Landlord's
money by Tenant, while the payment of late charges is to compensate Landlord for
Landlord's processing, administrative and other costs incurred by Landlord as a
result of Tenant's delinquent payments. Acceptance of any such interest and late
charge will not constitute a waiver of the Tenant's default with respect to the
overdue amount, or prevent Landlord from exercising any of the other rights and
remedies available to Landlord. If Tenant incurs a late charge more than three
(3) times in any period of twelve (12) months during the Lease Term, then,
notwithstanding that Tenant cures the late payments for which such late charges
are imposed, Landlord will have the right to require Tenant thereafter to pay
all installments of Monthly Base Rent quarterly in advance throughout the
remainder of the Lease Term.
(g) Rights and Remedies Cumulative. All rights, options and
remedies of Landlord contained in this Lease will be construed and held to be
cumulative, and no one of them will be exclusive of the other, and Landlord
shall have the right to pursue any one or all of such remedies or any other
remedy or relief which may be provided by law or in equity, whether or not
stated in this Lease. Nothing in this Paragraph 22 will be deemed to limit or
otherwise affect Tenant's indemnification of Landlord pursuant to any provision
of this Lease.
23. LANDLORD'S DEFAULT. Landlord will not be in default in the
performance of any obligation required to be performed by Landlord under this
Lease unless Landlord fails to perform such obligation within thirty (30) days
after the receipt of written notice from Tenant specifying in detail Landlord's
failure to perform; provided however, that if the nature of Landlord's
obligation is such that more than thirty (30) days are required for performance,
then Landlord will not be deemed in default if it commences such performance
within such thirty (30) day period and thereafter diligently pursues the same to
completion.
-33-
24. ASSIGNMENT AND SUBLETTING.
(a) Restriction on Transfer. Except as expressly provided in
this Paragraph 24, Tenant will not, either voluntarily or by operation of law,
assign or encumber this Lease or any interest herein or sublet the Premises or
any part thereof, or permit the use or occupancy of the Premises by any party
other than Tenant (any such assignment, encumbrance, sublease or the like other
than a Permitted Transfer will sometimes be referred to as a "Transfer"),
without the prior written consent of Landlord, which consent Landlord will not
unreasonably withhold.
(b) Corporate and Partnership Transfers. For purposes of this
Paragraph 24, if Tenant is a corporation, partnership or other entity, any
transfer, assignment, encumbrance or hypothecation of forty-nine percent (49%)
or more (individually or in the aggregate) of any stock or other ownership
interest in such entity, and/or any transfer, assignment, hypothecation or
encumbrance of any controlling ownership or voting interest in such entity, will
be deemed a Transfer and will be subject to all of the restrictions and
provisions contained in this Paragraph 24. Notwithstanding the foregoing, the
immediately preceding sentence will not apply to any transfers of stock of
Tenant if Tenant is a publicly-held corporation and such stock is transferred
publicly over a recognized security exchange or over-the-counter market and will
not apply to any transfers resulting from a private placement(s) or an initial
public offering of stock if Tenant is not a publicly-held corporation.
(c) Permitted Controlled Transfers. Notwithstanding the
provisions of this Paragraph 24 to the contrary, Tenant may assign this Lease or
sublet the Premises or any portion thereof ("Permitted Transfer"), without
Landlord's consent, to any parent, subsidiary or affiliate corporation which
controls, is controlled by or is under common control with Tenant, or to any
corporation resulting from a merger or consolidation with Tenant, or to any
person or entity which acquires all the assets of Tenant's business as a going
concern or stock of Tenant (collectively, a "Tenant Affiliate") , provided that:
(i) at least twenty (20) days prior to such assignment or sublease, Tenant
delivers to Landlord the financial statements and other financial and background
information of the assignee or sublessee described in Subparagraph 24(d) below;
(ii) if an assignment, the assignee assumes, in full, the obligations of Tenant
under this Lease (or if a sublease, the sublessee of a portion of the Premises
or Term assumes, in full, the obligations of Tenant with respect to such
portion); (iii) the financial net worth of the assignee or sublessee as of the
time of the proposed assignment or sublease equals or exceeds the greater of (A)
that of Tenant as of the date of execution of this Lease, and (B) the net worth
of Tenant as of the date of such proposed transfer; (iv) Tenant remains fully
liable under this Lease; and (v) the use of the Premises under Paragraph 8 is a
permitted use.
(d) Transfer Notice. If Tenant desires to effect a Transfer,
then at least twenty (20) days prior to the date when Tenant desires the
Transfer to be effective (the "Transfer Date"), Tenant agrees to give Landlord a
notice (the "Transfer Notice"), stating the name, address and business of the
proposed assignee, sublessee or other transferee (sometimes referred to
hereinafter as "Transferee"), reasonable information (including references)
concerning the character, ownership, and financial condition of the proposed
Transferee, the Transfer Date, any ownership or commercial relationship between
Tenant and the proposed Transferee, and the consideration and all other material
terms and conditions of the proposed Transfer, all in such detail as Landlord
may reasonably require. If Landlord reasonably requests additional detail, the
Transfer Notice will not be deemed to have been received until Landlord receives
such additional detail, and Landlord may withhold consent, if such consent is
required, to any Transfer until such information is provided to it.
(e) Landlord's Options. Within ten (10) days of Landlord's
receipt of any Transfer Notice, and any additional information requested by
Landlord concerning the proposed Transferee's financial responsibility, if
Landlord's consent is required, Landlord will elect to do one of the following:
(i) consent to the proposed Transfer; or (ii) refuse such consent, which refusal
shall be on reasonable grounds including, without limitation, those set forth in
Subparagraph 24(f) below.
-34-
(f) Reasonable Disapproval. Landlord and Tenant hereby
acknowledge that Landlord's disapproval of any proposed Transfer pursuant to
Subparagraph 24(e) will be deemed reasonably withheld if based upon any
reasonable factor, including, without limitation, any or all of the following
factors: (i) the proposed Transferee is a governmental entity; (ii) the portion
of the Premises to be sublet or assigned is irregular in shape with inadequate
means of ingress and egress; (iii) the use of the Premises by the Transferee (A)
is not permitted by the use provisions in Paragraph 8 hereof, or (B) poses a
risk or otherwise poses a risk of increased liability to Landlord; or (iv) the
Transferee does not have the financial capability to fulfill the obligations
imposed by the Transfer and this Lease.
(g) Additional Conditions. A condition to Landlord's consent to
any Transfer of this Lease will be the delivery to Landlord of a true copy of
the fully executed instrument of assignment, sublease, transfer or
hypothecation, and, in the case of an assignment, the delivery to Landlord of an
agreement executed by the Transferee in form and substance reasonably
satisfactory to Landlord, whereby the Transferee assumes and agrees to be bound
by all of the terms and provisions of this Lease and to perform all of the
obligations of Tenant hereunder. As a condition for granting its consent to any
assignment or sublease, Landlord may require that the assignee or sublessee
remit directly to Landlord on a monthly basis, all monies due to Tenant by said
assignee or sublessee. As a condition to Landlord's consent to any sublease,
such sublease must provide that it is subject and subordinate to this Lease and
to all mortgages; that Landlord may enforce the provisions of the sublease,
including collection of rent; that in the event of termination of this Lease for
any reason, including without limitation a voluntary surrender by Tenant, or in
the event of any reentry or repossession of the Premises by Landlord, Landlord
may, at its option, either (i) terminate the sublease, or (ii) take over all of
the right, title and interest of Tenant, as sublessor, under such sublease, in
which case such sublessee will attorn to Landlord, but that nevertheless
Landlord will not (1) be liable for any previous act or omission of Tenant under
such sublease, (2) be subject to any defense or offset previously accrued in
favor of the sublessee against Tenant, or (3) be bound by any previous
modification of any sublease made without Landlord's written consent, or by any
previous prepayment by sublessee of more than one month's rent.
(h) Excess Rent. If Landlord consents to any assignment of this
Lease, other than an assignment permitted without Landlord's consent under
Subparagraph 24(c). Tenant agrees to pay to Landlord, as additional rent, fifty
percent (50%) of all sums and other consideration payable to and for the benefit
of Tenant by the assignee on account of the assignment, as and when such sums
and other consideration are due and payable by the assignee to or for the
benefit of Tenant (or, if Landlord so requires, and without any release of
Tenant's liability for the same, Tenant agrees to instruct the assignee to pay
such sums and other consideration directly to Landlord). If for any sublease,
Tenant receives rent or other consideration, either initially or over the term
of the sublease, in excess of the rent fairly allocable to the portion of the
Premises which is subleased based on square footage, Tenant agrees to pay to
Landlord as additional rent fifty percent (50%) of the excess of each such
payment of rent or other consideration received by Tenant promptly after its
receipt. In calculating excess rent or other consideration which may be payable
to Landlord under this paragraph, Tenant will be entitled to deduct commercially
reasonable third party brokerage commissions and attorneys' fees and other
amounts reasonably and actually expended by Tenant in connection with such
assignment or subletting if acceptable written evidence of such expenditures is
provided to Landlord.
(i) No Release. No Transfer will release Tenant of Tenant's
obligations under this Lease or alter the primary liability of Tenant to pay the
rent and to perform all other obligations to be performed by Tenant hereunder.
Landlord may require that any Transferee remit directly to Landlord on a monthly
basis, all monies due Tenant by said Transferee. However, the acceptance of
rent by Landlord from any other person will not be deemed to be a waiver by
Landlord of any provision hereof. Consent by Landlord to one Transfer will not
be deemed consent to any subsequent Transfer. In the event of default by any
Transferee of Tenant or any successor of Tenant in the performance of any of the
terms hereof, Landlord may proceed directly against Tenant without the necessity
of exhausting remedies against such Transferee or successor. Landlord may
consent to subsequent assignments of this Lease or sublettings or amendments or
modifications to this Lease with assignees of Tenant, without notifying Tenant,
or any successor of Tenant, and without obtaining its or their consent thereto
and any such actions will not relieve Tenant of liability under this Lease.
-35-
(j) Administrative and Attorneys' Fees. If Tenant effects a
Transfer or requests the consent of Landlord to any Transfer (whether or not
such Transfer is consummated), then, upon demand, Tenant agrees to pay Landlord
any reasonable attorneys' and paralegal fees incurred by Landlord in connection
with such Transfer or request for consent (whether attributable to Landlord's
in-house attorneys or paralegals or otherwise).
25. SUBORDINATION. Without the necessity of any additional document
being executed by Tenant for the purpose of effecting a subordination, and at
the election of Landlord or any mortgagee or beneficiary with a deed of trust
encumbering the Premises, or any lessor of a ground or underlying lease with
respect to the Premises, this Lease will be subject and subordinate at all times
to: (i) all ground leases or underlying leases which may now exist or hereafter
be executed affecting the Premises; and (ii) the lien of any mortgage or deed of
trust which may now exist or hereafter be executed for which the Premises, or
Landlord's interest and estate in any of said items, is specified as security.
Notwithstanding the foregoing, Landlord reserves the right to subordinate any
such ground leases or underlying leases or any such liens to this Lease. If any
such ground lease or underlying lease terminates for any reason or any such
mortgage or deed of trust is foreclosed or a conveyance in lieu of foreclosure
is made for any reason, at the election of Landlord's successor in interest,
Tenant agrees to attorn to and become the tenant of such successor in which
event Tenant's right to possession of the Premises will not be disturbed as long
as Tenant is not in default under this Lease. Tenant hereby waives its rights
under any law which gives or purports to give Tenant any right to terminate or
otherwise adversely affect this Lease and the obligations of Tenant hereunder in
the event of any such foreclosure proceeding or sale. Tenant covenants and
agrees to execute and deliver, upon demand by Landlord and in the form
reasonably required by Landlord, any additional documents evidencing the
priority or subordination of this Lease and Tenant's attornment agreement with
respect to any such ground lease or underlying leases or the lien of any such
mortgage or deed of trust. If Tenant fails to sign and return any such
documents within ten (10) days of receipt, Tenant will be in default hereunder.
26. ESTOPPEL CERTIFICATE. Within ten (10) days following any written
request which Landlord may make from time to time, Tenant agrees to execute and
deliver to Landlord a fully completed, factually accurate statement, in a form
substantially similar to the form of Exhibit F attached hereto or as may
reasonably be required by Landlord's lender, certifying: (i) the date of
commencement of this Lease; (ii) the fact that this Lease is unmodified and in
full force and effect (or, if there have been modifications, that this Lease is
in full force and effect, and stating the date and nature of such
modifications); (iii) the date to which the rent and other sums payable under
this Lease have been paid; (iv) that there are no current defaults under this
Lease by either Landlord or Tenant except as specified in Tenant's statement;
and (v) such other matters reasonably requested by Landlord. Landlord and
Tenant intend that any statement delivered pursuant to this Paragraph 26 may be
relied upon by any mortgagee, beneficiary, purchaser or prospective purchaser of
the Premises or any interest therein. Tenant's failure to deliver such
statement within such time will be conclusive upon Tenant (i) that this Lease is
in full force and effect, without modification except as may be represented by
Landlord, (ii) that there are no uncured defaults in Landlord's performance, and
(iii) that not more than one (1) month's rent has been paid in advance. Without
limiting the foregoing, if Tenant fails to deliver any such statement within
such ten (10) day period, Landlord may deliver to Tenant an additional request
for such statement and Tenant's failure to deliver such statement to Landlord
within ten (10) days after delivery of such additional request will constitute a
default under this Lease. Tenant agrees to indemnify and protect Landlord from
and against any and all claims, damages, losses, liabilities and expenses
(including attorneys' fees and costs) attributable to any failure by Tenant to
timely deliver any such estoppel certificate to Landlord as required by this
Paragraph 26.
27. EASEMENTS. Landlord reserves to itself the right, from time to
time, to grant such easements, rights and dedications that Landlord deems
necessary or desirable, 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 and
parking and other Common Areas by Tenant. Tenant shall sign any of the
aforementioned documents upon request of Landlord and failure to do so shall
constitute a material breach of this Lease.
-36-
28. RULES AND REGULATIONS. Tenant agrees to faithfully observe and
comply with the "Rules and Regulations," a copy of which is attached hereto and
incorporated herein by this reference as Exhibit G, and all reasonable and
nondiscriminatory modifications thereof and additions thereto from time to time
put into effect by Landlord.
29. MODIFICATION AND CURE RIGHTS OF LANDLORD'S MORTGAGEES AND
LESSORS. If, in connection with Landlord's obtaining or entering into any
financing or ground lease affecting the Premises, the lender or ground lessor
requests modifications to this Lease, Tenant, within ten (10) days after request
therefor, agrees to execute an amendment to this Lease incorporating such
modifications, provided such modifications are reasonable and do not increase
the obligations of Tenant under this Lease or adversely affect the leasehold
estate created by this Lease. In the event of any default on the part of
Landlord, Tenant will give notice by registered or certified mail to any
beneficiary of a deed of trust or mortgage covering the Premises or ground
lessor of Landlord whose address has been furnished to Tenant, and Tenant agrees
to offer such beneficiary, mortgagee or ground lessor a reasonable opportunity
to cure the default (including with respect to any such beneficiary or
mortgagee, time to obtain possession of the Premises, subject to this Lease and
Tenant's rights hereunder, by power of sale or a judicial foreclosure, if such
should prove necessary to effect a cure).
30. DEFINITION OF LANDLORD. The term "Landlord," as used in this
Lease, so far as covenants or obligations on the part of Landlord are concerned,
means and includes only the owner or owners, at the time in question, of the fee
title of the Premises or the lessees under any ground lease, if any. In the
event of any transfer, assignment or other conveyance or transfers of any such
title (other than a transfer for security purposes only), Landlord herein named
(and in case of any subsequent transfers or conveyances, the then grantor) will
be automatically relieved from and after the date of such transfer, assignment
or conveyance of all liability as respects the performance of any covenants or
obligations on the part of Landlord contained in this Lease thereafter to be
performed, so long as the transferee assumes in writing all such covenants and
obligations of Landlord arising after the date of such transfer. Except during
the period of time the Option to Purchase Development Rider attached hereto is
in effect, Landlord and Landlord's transferees and assignees have the absolute
right to transfer all or any portion of their respective title and interest in
the Premises, the Buildings, the Development and/or this Lease without the
consent of Tenant, and such transfer or subsequent transfer will not be deemed a
violation on Landlord's part of any of the terms and conditions of this Lease.
Notwithstanding the foregoing, the Landlord originally named in this Lease shall
not be relieved from the obligation to construct the Project Work as set forth
in Subparagraph 4(a).
31. WAIVER. The waiver by either party of any breach of any term,
covenant or condition herein contained will not be deemed to be a waiver of any
subsequent breach of the same or any other term, covenant or condition herein
contained, nor will any custom or practice which may develop between the parties
in the administration of the terms hereof be deemed a waiver of or in any way
affect the right of either party to insist upon performance in strict accordance
with said terms. The subsequent acceptance of rent or any other payment
hereunder by Landlord will not be deemed to be a waiver of any preceding breach
by Tenant of any term, covenant or condition of this Lease, other than the
failure of Tenant to pay the particular rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
rent. No acceptance by Landlord of a lesser sum than the basic rent and
additional rent or other sum then due will be deemed to be other than on account
of the earliest installment of such rent or other amount due, nor will any
endorsement or statement on any check or any letter accompanying any check be
deemed an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such installment
or other amount or pursue any other remedy provided in this Lease. The consent
or approval of Landlord to or of any act by Tenant requiring Landlord's consent
or approval will not be deemed to waive or render unnecessary Landlord's consent
or approval to or of any subsequent similar acts by Tenant.
32. PARKING. So long as this Lease is in effect and provided Tenant
is not in default hereunder, Landlord grants to Tenant and Tenant's customers,
suppliers, employees and invitees ("Tenant's Authorized Users"), a non-exclusive
license to use, without charge except as set forth in this Lease, its share of
the designated parking areas in the Common Areas. Tenant shall have fourteen
(14) marked "visitor" spaces
-37-
adjacent to its Premises and shall be entitled to exclusive use of the same,
provided, however, that Landlord shall not enforce such designated spaces by
preventing others from parking in such spaces. Unless otherwise provided by
Landlord in writing, visitor parking in the Development will be on a non-
exclusive, in common basis with all other visitors and guests of the
Development; provided, however, that notwithstanding the foregoing, Landlord may
provide reserved parking for Building C on a similar prorata basis to any
reserved spaces provided to Tenant for Buildings A and B. Notwithstanding the
foregoing Tenant shall be entitled to use up to 279 of the Unreserved Parking
Spaces closest in proximity to the Premises on those portions of the Common
Areas designated from time to time by Landlord for parking. Tenant shall not use
more parking spaces than said number. Said parking spaces shall be used for
parking by vehicles no larger than full-size passenger automobiles or pick-up
trucks, herein called "Permitted Size Vehicles." Vehicles other than Permitted
Size Vehicles shall be parked and loaded or unloaded as directed by Landlord in
the Rules and Regulations (as defined in Paragraph 28) issued by Landlord.
Tenant shall not permit or allow any vehicles that belong to or are controlled
by Tenant or Tenant's employees, suppliers, shippers, customers, contractors or
invitees to be loaded, unloaded, or parked in areas other than those designated
by Landlord for such activities. Tenant will not use or allow any of Tenant's
Authorized Users to use any parking spaces which have been specifically assigned
by Landlord to other tenants or occupants or for other uses such as visitor
parking or which have been designated by any governmental entity as being
restricted to certain uses. Landlord may assign any unreserved and unassigned
parking spaces and/or make all or any portion of such spaces reserved, if
Landlord reasonably determines that it is necessary for orderly and efficient
parking or for any other reasonable reason. Tenant and Tenant's Authorized Users
shall comply with all rules and regulations regarding parking set forth in
Exhibit G attached hereto and Tenant agrees to cause its employees, subtenants,
assignees, contractors, suppliers, customers and invitees to comply with such
rules and regulations. Landlord reserves the right from time to time to modify
and/or adopt such other reasonable and non-discriminatory rules and regulations
for the parking facilities as it deems reasonably necessary for the operation of
the parking facilities. If Tenant permits or allows any of the prohibited
activities described in this Paragraph 32 then Landlord shall have the right,
without notice, in addition to such other rights and remedies that it may have,
to remove or tow away the vehicle involved and charge the cost to Tenant, which
cost shall be immediately payable upon demand by Landlord.
33. FORCE MAJEURE. If either Landlord or Tenant is delayed, hindered
in or prevented from the performance of any act required under this Lease by
reason of strikes, lock-outs, labor troubles, inability to procure standard
materials, failure of power, restrictive governmental laws, regulations or
orders or governmental action or inaction (including failure, refusal or delay
in issuing permits, approvals and/or authorizations which is not the result of
the action or inaction of the party claiming such delay), riots, civil unrest or
insurrection, war, fire, earthquake, flood or other natural disaster, unusual
and unforeseeable delay which results from an interruption of any public
utilities (e.g., electricity, gas, water, telephone) or other unusual and
unforeseeable delay not within the reasonable control of the party delayed in
performing work or doing acts required under the provisions of this Lease, then
performance of such act will be excused for the period of the delay and the
period for the performance of any such act will be extended for a period
equivalent to the period of such delay, except as otherwise set forth in this
Lease. The provisions of this Paragraph 33 will not operate to excuse Tenant
from prompt payment of rent or any other payments required under the provisions
of this Lease.
34. SIGNS. Subject to the requirements of this Paragraph 34, Tenant
shall be allowed, to the extent permitted under applicable laws, and the CC&R's,
to install, at Tenant's sole cost and expense, (i) Building-top signage in one
location per Building identifying Tenant's name on the exterior of the Building
A and Building B and signage adjacent to Tenant's main entrance and (ii) signage
identifying Tenant's name on a monument sign for the Development at the entrance
to the Development. Tenant agrees to have Landlord install and maintain
Tenant's identification sign(s) in such designated location in accordance with
this Paragraph 34 at Tenant's sole cost and expense. Tenant has no right to
install Tenant identification signs in any other location in, on or about the
Premises or the Development in any interior or exterior Common Areas. The size,
design, color and other physical aspects of any and all permitted sign(s) will
be subject to (i) Landlord's written approval prior to installation, which
approval shall not be unreasonably withheld, conditioned or delayed, (ii) the
CC&R's, and (iii) any applicable municipal or governmental permits and
approvals. Tenant will be solely responsible for all
costs for installation, maintenance, repair and removal of any Tenant
identification sign(s). If Tenant fails to remove Tenant's sign(s) upon
termination of this Lease and repair any damage caused by such removal, Landlord
may do so at Tenant's sole cost and expense. Tenant agrees to reimburse Landlord
for all costs incurred by Landlord to effect any installation, maintenance or
removal on Tenant's account, which amount will be deemed additional rent, and
may include, without limitation, all sums disbursed, incurred or deposited by
Landlord including Landlord's costs, expenses and actual attorneys' fees with
interest thereon at the Interest Rate from the date of Landlord's demand until
paid by Tenant.
35. LIMITATION ON LIABILITY. In consideration of the benefits
accruing hereunder, Tenant on behalf of itself and all successors and assigns of
Tenant covenants and agrees that, in the event of any actual or alleged failure,
breach or default hereunder by Landlord: (a) tenant's recourse against Landlord
for monetary damages will be limited to Landlord's interest in the Premises
including, subject to the prior rights of any Mortgagee, Landlord's interest in
the rents of the Premises and any insurance proceeds payable to Landlord; (b)
except as may be necessary to secure jurisdiction of the partnership, no partner
of Landlord shall be sued or named as a party in any suit or action and no
service of process shall be made against any partner of Landlord; (c) no partner
of Landlord shall be required to answer or otherwise plead to any service of
process; (d) no judgment will be taken against any partner of Landlord and any
judgment taken against any partner of Landlord may be vacated and set aside at
any time after the fact; (e) no writ of execution will be levied against the
assets of any partner of Landlord; (f) the obligations under this Lease do not
constitute personal obligations of the individual partners, directors, officers
or shareholders of Landlord, and Tenant shall not seek recourse against the
individual partners, directors, officers or shareholders of Landlord or any of
their personal assets for satisfaction of any liability in respect to this
Lease; and (g) these covenants and agreements are enforceable both by Landlord
and also by any partner of Landlord.
36. FINANCIAL STATEMENTS. Prior to the execution of this Lease by
Landlord and at any time during the Term of this Lease upon twenty (20) days
prior written notice from Landlord, Tenant agrees to provide Landlord with a
Tenant's most recent annual financial reports (dated no earlier than twelve (12)
months from the date of such request) together with, if required by any
prospective lender or purchaser of Landlord, a then current financial statement
for Tenant; provided, however, Landlord shall use Landlord's good faith efforts
to require that any such prospective lender or purchaser keep such financial
statements confidential (except that such prospective lenders and purchasers may
disclose such information to their consultants and as may be required by law).
Such annual statements are to be prepared in accordance with generally accepted
accounting principles and, if such is the normal practice of Tenant, audited by
an independent certified public accountant. Any interim financial statements
provided by Tenant as may be required above shall be prepared in accordance with
generally accepted accounting principles and certified by an officer of Tenant.
37. QUIET ENJOYMENT. Landlord covenants and agrees with Tenant that
upon Tenant paying the rent required under this Lease and paying all other
charges and performing all of the covenants and provisions on Tenant's part to
be observed and performed under this Lease, Tenant may peaceably and quietly
have, hold and enjoy the Premises in accordance with this Lease.
38. AUCTIONS. Tenant shall not conduct, nor permit to be conducted,
either voluntarily or involuntarily, any auction upon the Premises without first
having obtained Landlord's prior written consent. Notwithstanding anything to
the contrary in this Lease, Landlord shall not be bound by any standard of
reasonableness in determining whether to grant such consent.
39. MISCELLANEOUS.
(a) Conflict of Laws. This Lease shall be governed by and
construed solely pursuant to the laws of the State, without giving effect to
choice of law principles thereunder.
-39-
(b) Successors and Assigns. Except as otherwise provided in this
Lease, all of the covenants, conditions and provisions of this Lease shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns.
(c) Professional Fees and Costs. If either Landlord or Tenant
should bring suit against the other with respect to this Lease, then all costs
and expenses, including without limitation, reasonable professional fees and
costs such as appraisers', accountants' and attorneys' fees and costs, incurred
by the party which prevails in such action, whether by final judgment or out of
court settlement, shall be paid by the other party, which obligation on the part
of the other party shall be deemed to have accrued on the date of the
commencement of such action and shall be enforceable whether or not the action
is prosecuted to judgment. As used herein, attorneys' fees and costs shall
include, without limitation, attorneys' fees, costs and expenses incurred in
connection with any (i) postjudgment motions; (ii) contempt proceedings; (iii)
garnishment, levy, and debtor and third party examination; (iv) discovery; and
(v) bankruptcy litigation.
(d) Terms and Headings. The words "Landlord" and "Tenant" as
used herein shall include the plural as well as the singular. Words used in any
gender include other genders. The paragraph headings of this Lease are not a
part of this Lease and shall have no effect upon the construction or
interpretation of any part hereof.
(e) Time. Time is of the essence with respect to the performance
of every provision of this Lease in which time of performance is a factor.
(f) Prior Agreement; Amendments. This Lease constitutes and is
intended by the parties to be a final, complete and exclusive statement of their
entire agreement with respect to the subject matter of this Lease. This Lease
supersedes any and all prior and contemporaneous agreements and understandings
of any kind relating to the subject matter of this Lease. There are no other
agreements, understandings, representations, warranties, or statements, either
oral or in written form, concerning the subject matter of this Lease. No
alteration, modification, amendment or interpretation of this Lease shall be
binding on the parties unless contained in a writing which is signed by both
parties.
(g) Separability. The provisions of this Lease shall be
considered separable such that if any provision or part of this Lease is ever
held to be invalid, void or illegal under any law or ruling, all remaining
provisions of this Lease shall remain in full force and effect to the maximum
extent permitted by law.
(h) Recording. Neither Landlord nor Tenant shall record this
Lease nor a short form memorandum thereof without the consent of the other.
(i) Counterparts. This Lease may be executed in one or more
counterparts, each of which shall constitute an original and all of which shall
be one and the same agreement.
(j) Nondisclosure of Lease Terms. Tenant acknowledges and agrees
that the terms of this Lease are confidential and constitute proprietary
information of Landlord. Disclosure of the terms could adversely affect the
ability of Landlord to negotiate other leases and impair Landlord's relationship
with other tenants. Accordingly, Tenant agrees that it, and its partners,
officers, directors, employees, agents and attorneys, shall not intentionally
and voluntarily disclose the terms and conditions of this Lease to any newspaper
or other publication or any other tenant or apparent prospective tenant of the
Building or other portion of the Development, or real estate agent, either
directly or indirectly, without the prior written consent of Landlord, provided,
however, that Tenant may disclose the terms to prospective subtenants or
assignees under this Lease, and may disclose the terms if required in any
filings with governmental agencies or incident to an offering of securities
evidencing an ownership interest in Tenant.
(k) Non-Discrimination. Tenant acknowledges and agrees that
there shall be no discrimination against, or segregation of, any person, group
of persons, or entity on the basis of race, color, creed,
-40-
religion, age, sex, marital status, national origin, or ancestry in the leasing,
subleasing, transferring, assignment, occupancy, tenure, use, or enjoyment of
the Premises, or any portion thereof.
40. EXECUTION OF LEASE.
(a) Tenant as Corporation or Partnership. If Tenant executes this
Lease as a corporation or partnership, then Tenant and the persons executing
this Lease on behalf of Tenant represent and warrant that such entity is duly
qualified and in good standing to do business in California and that the
individuals executing this Lease on Tenant's behalf are duly authorized to
execute and deliver this Lease on its behalf, and in the case of a corporation,
in accordance with a duly adopted resolution of the board of directors of
Tenant, a copy of which is to be delivered to Landlord on execution hereof, if
requested by Landlord, and in accordance with the by-laws of Tenant, and, in the
case of a partnership, in accordance with the partnership agreement and the most
current amendments thereto, if any, copies of which are to be delivered to
Landlord on execution hereof, if requested by Landlord, and that this Lease is
binding upon Tenant in accordance with its terms.
(b) Examination of Lease. Submission of this instrument by
Landlord to Tenant for examination or signature by Tenant does not constitute a
reservation of or option for lease, and it is not effective as a lease or
otherwise until execution by and delivery to both Landlord and Tenant.
IN WITNESS WHEREOF, the parties have caused this Lease to be duly
executed by their duly authorized representatives as of the date first above
written.
TENANT: LANDLORD:
ILLUMINA, INC., DIVERSIFIED EASTGATE VENTURE,
a Delaware corporation an Illinois general partnership
By:________________________________________ By: Diversified Eastgate Pointe, LLC,
Name: Xxx Xxxxxxx a California limited liability company,
Title: President & CEO Its General Partner
By:________________________________________ By:______________________________________
Name: Xxxx X. Xxxxxxxxxxx Its: Manager
Title: Vice President, Business Development
By: GFBP Partners, LLC,
a California limited liability company,
Its General Partner
By:______________________________________
Its: Manager
-00-
XXXXXXX X-0
-----------
LEGAL DESCRIPTION
OF PREMISES
-----------
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF
SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1 THROUGH 3 INCLUSIVE OF PARCEL MAP 18286, IN THE CITY OF SAN DIEGO,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF, FILED IN THE
OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY JUNE 21, 1999.
EXHIBIT A-1
-----------
-1-
EXHIBIT A-2
-----------
SITE PLAN
---------
[GRAPHIC]
EASTGATE POINTE
---------------
SITE PLAN
[GRAPHIC]
EXHIBIT A-2
-----------
-1-
EXHIBIT B
---------
PROJECT PLANS
-------------
T-1 TITLE SHEET
T-2 ADA NOTES
CIVIL MECHANICAL
PREPARED BY JP ENGINEERING PREPARED BY XXXXX ENGINEERING
### -1-D COVER SHEET M1.1 MECHANICAL SCHEDULES, LEGENDS AND NOTES
### -2-D STORM DRAIN PROFILE M2.1 MECHANICAL BUILDING 'A' FIRST FLOOR PLAN
### -3-D STORM DRAIN PROFILE M2.2 MECHANICAL BUILDING 'A' SECOND FLOOR PLAN
### -4-D GRADING COVER SHEET M3.1 MECHANICAL BUILDING 'A' ROOF PLAN
### -5-D GRADING PLAN (VOID SHEET) M4.1 MECHANICAL BUILDING 'B' FIRST FLOOR PLAN
### -6-D GRADING PLAN (VOID SHEET) M4.2 MECHANICAL BUILDING 'B' SECOND FLOOR PLAN
### -7-D GRADING SECTIONS M5.1 MECHANICAL BUILDING 'B' ROOF PLAN
### -8-D EROSION CONTROL DETAILS M6.1 NOT USED
### -9-D EROSION CONTROL PLAN (VOID SHEET) M7.1 MECHANICAL DETAILS
### -10-D EROSION CONTROL PLAN (VOID SHEET) M7.2 MECHANICAL DETAILS
### -11-D LANDSCAPE IRRIGATION COVER SHEET M7.3 MECHANICAL SECTIONS
### -12-D IRRIGATION PLAN
### -13-D IRRIGATION PLAN PLUMBING
### -14-D IRRIGATION PLAN PREPARED BY XXXXX ENGINEERING
### -15-D IRRIGATION DETAILS P1.1 PLUMBING SCHEDULES, LEGENDS AND NOTES
### -16-D PLANTING PLAN P2.1 PLUMBING BUILDING 'A' FIRST FLOOR PLAN
### -17-D PLANTING PLAN P2.2 PLUMBING BUILDING 'A' SECOND FLOOR PLAN
### -18-D PLANTING DETAILS P3.1 PLUMBING BUILDING 'A' ROOF PLAN
### -19-D IMPROVEMENT DETAILS P4.1 PLUMBING BUILDING 'B' FIRST FLOOR PLAN
### -20-D GRADING PLAN P4.2 PLUMBING BUILDING 'B' SECOND FLOOR PLAN
### -21-D GRADING PLAN P5.1 PLUMBING BUILDING 'B' ROOF PLAN
### -22-D EROSION CONTROL PLAN P6.1 PARTIAL PLUMBING PLANS - BUILDINGS A & B
### -23-D EROSION CONTROL PLAN P7.1 PLUMBING DETAILS
### -24-D WATER SERVICE PLAN P7.2 PLUMBING DIAGRAMS
### -25-D WATER SERVICE PROFILE
### -26-D WATER SERVICE PROFILE ELECTRICAL
### -27-D IMPROVEMENT PLAN PREPARED BY XXXXXXX XXXX ENGINEERING
### -28-D IRRIGATION PLAN E-1.1 NOTE SHEET
### -29-D PLANTING PLAN E-1.2 LUMINAIRE SCHEDULE AND T24 CALCS
00000 -0-X XXXXX EASEMENT E-1.3 LIGHTING CONTROL AND LIGHTING DETAILS
00000 -0-X XXXXX EASEMENT E-2.1 SITE UTILITY PLAN
E-2.2 SITE LIGHTING PLAN
E-3.1 FIRST FLOOR POWER PLAN - BUILDING 'A'
ARCHITECTURAL E-3.2 SECOND FLOOR POWER PLAN - BUILDING 'A'
PREPARED BY PACIFIC CORNERSTONE ARCHITECTS E-3.3 FIRST FLOOR POWER PLAN - BUILDING 'B'
Exit-1 EXIT PLANS BUILDING 'A' AND 'B' E-3.4 SECOND FLOOR POWER PLAN - BUILDING 'B'
A-1 SITE PLAN E-4.1 ROOF POWER PLAN - BUILDING 'A'
A-2 FIRST FLOOR PLAN BUILDING 'A' E-4.2 ROOF POWER PLAN - BUILDING 'B'
A-3 SECOND FLOOR PLAN BUILDING 'A' E-5.1 SINGLELINE DIAGRAM - BUILDING 'A'
A-4 EXTERIOR ELEVATIONS BUILDING 'A' E-5.2 SINGLELINE DIAGRAM - BUILDING 'B'
A-5 ROOF PLAN BUILDING 'A' E-6.1 DETAIL SHEET #1
A-5.1 EXTERIOR SOFFIT PLAN BUILDING 'A' E-6.2 DETAIL SHEET #2
A-6 FIRST FLOOR PLAN BUILDING 'B'
A-7 SECOND FLOOR PLAN BUILDING 'B' LANDSCAPE
A-8 EXTERIOR ELEVATIONS BUILDING 'B' PREPARED BY JPBLA
A-9 ROOF PLAN BUILDING 'B' L-1 RECLAIMED IRRIGATION NOTES
A-9.1 EXTERIOR SOFFIT PLAN BUILDING 'B' L-2 HARDSCAPE PLAN
A-10 BUILDING WALL SECTIONS L-3 HARDSCAPE PLAN
X-00 XXXXXXXX XXXX XXXXXXXX X-0 XXXXXXXXXX PLAN
A-12 BUILDING WALL SECTIONS L-5 IRRIGATION PLAN
A-13 BUILDING 'A' STAIR PLANS L-6 PLANTING PLAN
A-13.1 BUILDING 'A' LOBBY SECTIONS L-7 PLANTING PLAN
A-13.2 BUILDING 'A' LOBBY REFLECTED CEILING PLANS L-8 HARDSCAPE DETAILS
X-00 XXXXXXXX 'X' XXXXX XXXXX X-0 XXXXXXXXXX AND LANDSCAPE DETAILS
A-14.1 BUILDING 'B' LOBBY SECTIONS L-10 IRRIGATION SPECIFICATIONS
A-14.2 BUILDING 'B' LOBBY REFLECTED CEILING PLANS L-11 LANDSCAPE SPECIFICATIONS
A-15 BUILDING 'A' RESTROOM PLANS
A-16 BUILDING 'B' RESTROOM PLANS
A-17 DOOR SCHEDULE AND DETAILS
A-17.1 HARDWARE SCHEDULE
A-18 DETAILS
A-19 DETAILS
A-20 DETAILS
ALL PLANS LISTED ABOVE ARE DATED 2/17/00 AND MARKET "BID SET"
EXHIBIT
-------
-1-
PROJECT MANUAL
Project Manual for Eastgate Pointe Shell Building prepared by Pacific
Cornerstone Architects, Inc. dated February 26, 1999 ("Project Manual").
ADENDUM # 1 (Delta 3 Revisions)
PREPARED BY PACIFIC CORNERSTONE ARCHITECTS
T-1 TITLE SHEET
T-2 ADA NOTES
A-1 SITE PLAN
A-6 FIRST FLOOR PLAN BUILDING 'B'
A-8 EXTERIOR ELEVATIONS BUILDING 'B'
X-00 XXXXXXXX 'X' XXXXXXXX XXXXX
X-00 XXXXXXXX 'B' RESTROOM PLANS
A-18 DETAILS
MODIFICATIONS TO PROJECT WORK
-----------------------------
Notwithstanding the fact that the following items are contained in the Project
Plans, these items are specifically excluded from Landlord's responsibility to
construct as part of the Project Work:
1 HVAC SYSTEMS:
A. All work associated with the Heating, Ventilating and Air
Conditioning systems, in accordance with Sections 15800 of the
Project Manual.
B. Electrical work required for the mechanical system as specified in
the Project Plans and Project Manual.
C. Plumbing work required for the mechanical system as specified in
the Project Plans and Project Manual.
2 RESTROOMS
A. All work relating to the construction of the restrooms as shown on
the Project Plans including but not limited to: (i) framing and
drywall; (ii) plumbing and electrical; (iii) toilet partitions,
lockers and accessories; (iv) counters and cabinetry; (v) doors and
hardware; (vi) fire sprinkler drops; (vii) floor, wall and counter
tile; and, (viii) wall and ceiling paint. The intent of this
exclusion is that Landlord's responsibility with respect to the
core restrooms is only to provide underground sewer in the area of
the core restrooms as shown on the Project Plans.
3 LOBBY
A. All work relating to the construction of the lobby improvements as
shown on the Project Plans including but not limited to: (i)
framing and drywall; (ii) electrical; (iii) floor covering; (iv)
doors and hardware; (v) fire sprinkler drops; and, (vi) wall and
ceiling paint. The intent of this exclusion is that Landlord's
responsibility with respect to the lobby improvements is only to
provide the elevator and framing for the surrounding stairs as
shown on the Project Plans.
Notwithstanding the fact that the following items are not contained in the
Project Plans, these items are specifically included in Landlord's
responsibility to construct as part of the Project Work:
1 ELEVATORS
A second elevator (freight elevator), shall be added to Building A and
Building B, the specific location to be mutually agreed upon between
Landlord and Tenant and subject to the approval of the project
architect and structural engineer.
EXHIBIT
-------
-2-
EXHIBIT C
---------
UNION GUIDELINES
A. Basic Labor Requirements for the Project. As a condition of funding any or
----------------------------------------
all amounts pursuant to this Loan, WCM must be provided with satisfactory
evidence that the following guidelines are applied to the selection and
employment of all contractors and subcontractors in connection with the
initial installation of all the proposed improvements, including the tenant
improvements, of the Project:
1. General Contractor. The general contractor for all tenant
------------------
improvements must be a Union general contractor (signatory to the
Master Labor Agreement, which covers the area of the Project).
2. Protected Work. All work (including, but not limited to, all
--------------
fabrication, detailing, supervision, and field installation)
traditionally encompassed within the trades and crafts represented by
the San Diego County Cement Masons, the San Diego County Electricians,
the Sheet Metal Workers of Southern California, Arizona and Nevada,
and the Southern California Plumbers and Pipefitters (collectively,
"Protected Work") shall be completed by subcontractors signatory and
in good standing with the applicable local unions.
3. Non Protected Work. For all other work, Borrower may employ Qualified
------------------
non-union subcontractors in the event that the procedures set forth
hereinafter have been timely and fully satisfied and a "Competitive
Union Bid," as defined in Subsection (b) below, has not been obtained.
a. A "Qualified" subcontractor shall be defined a subcontractor
which has:
(i) Considerable experience in performance of work of the size
and scope of the work contemplated by the contract or
subcontract bid; and
(ii) Either (A) a positive net worth of at least two (2) times
the size of the bid and cash/marketable securities of at
least one-half (1/2) the size of the subcontract; or (B) is
bondable at a rate which is equal to or less than one
percent (1%) of the cost of the work.
b. A "Competitive Union Bid" shall be defined as a bid from a union
subcontractor that is within five percent (5%) of the average of
the three lowest, non-union bids from Qualified non-union
subcontractors that are domiciled in San Diego County. In the
event that three Qualified non-union subcontractors are not
available within San Diego County from which bids may be
solicited, then Borrower may solicit bids from Qualified non-
union subcontractors outside the County of San Diego. The
comparative bids will be complete, be taken from the same plans,
specifications and schedules, and provide for the completion of
the same work.
c. Borrower has received written authorization from WCM to employ
such Qualified, non-union subcontractor.
EXHIBIT C
---------
-1-
B. Additional Requirements of the Project.
--------------------------------------
1. Contractor List. Before work on the Improvements commences, a
---------------
complete list of contractors and subcontractors shall be provided to,
and approved by, WCM.
2. Borrower's Responsibility for Compliance. Compliance with the above
----------------------------------------
requirements is the Borrower's responsibility.
3. Compliance Determination. Compliance with the provisions of this
------------------------
Exhibit "A" are subject to WCM's sole, reasonable discretion.
C-2
EXHIBIT D
---------
[INTENTIONALLY OMITTED]
EXHIBIT D
---------
-1-
EXHIBIT E
---------
[INTENTIONALLY OMITTED]
EXHIBIT E
---------
-1-
EXHIBIT F
---------
ESTOPPEL CERTIFICATE
--------------------
The undersigned,_____________________ ("Landlord"), with a mailing
address c/o___________________________________ and ______________ ("Tenant"),
hereby certify to ______________________________, as follows:
1. Attached hereto is a true, correct and complete copy of that
certain lease dated ____________________, 2000, between Landlord and Tenant (the
"Lease"), regarding the premises located at ____________________________ (the
"Premises"). The Lease is now in full force and effect and has not been
amended, modified or supplemented, except as set forth in Paragraph 4 below.
2. The Term of the Lease commenced on ____________________, 20___.
3. The Term of the Lease shall expire on ____________________, 20___.
4. The Lease has: (Initial one)
(________) not been amended, modified, supplemented, extended,
renewed or assigned.
(________) been amended, modified, supplemented, extended, renewed or
assigned by the following described terms or agreements, copies of which are
attached hereto:
______________________________________________________________________
______________________________________________________________________
5. Tenant has accepted and is now in possession of the Premises.
6. Tenant and Landlord acknowledge that Landlord's interest in the
Lease will be assigned to __________________________________ and that no
modification,adjustment, revision or cancellation of the Lease or amendments
thereto shall be effective unless written consent of ___________________________
is obtained, and that until further notice, payments under the Lease may
continue as heretofore.
7. The amount of Monthly Base Rent is $____________________.
8. The amount of security deposits (if any) is $____________________.
No other security deposits have been made except as follows:____________________
________________________________________________________________________________
___________________________________________________________________________.
9. Tenant is paying the full lease rental which has been paid in full
as of the date hereof. No rent or other charges under the Lease have been paid
for more than thirty (30) days in advance of its due date except as follows: ___
________________________________________________________________________________
___________________________________________________________________________.
EXHIBIT F
---------
-1-
10. All work required to be performed by Landlord under the Lease has
been completed except as follows: ______________________________________________
_____________________________________________________________.
11. There are no defaults on the part of the Landlord or Tenant under
the Lease except as follows: ___________________________________________________
_____________________________________________________________.
12. Neither Landlord nor Tenant has any defense as to its obligations
under the Lease and claims no set-off or counterclaim against the other party
except as follows: _____________________________________________________________
________________________________________________________________________________
_____________________________________________________________.
13. Tenant has no right to any concession (rental or otherwise) or
similar compensation in connection with renting the space it occupies other than
as provided in the Lease except as follows: ____________________________________
________________________________________________________________________________
_____________________________________________________________.
All provisions of the Lease and the amendments thereto (if any) referred to
above are hereby ratified.
The foregoing certification is made with the knowledge that
______________________ is about to fund a loan to Landlord or __________________
is about to purchase the Building from Landlord and that _______________________
is relying upon the representations herein made in funding such loan or in
purchasing the Building.
IN WITNESS WHEREOF, this certificate has been duly executed and
delivered by the authorized officers of the undersigned as of
____________________, 20___.
TENANT: LANDLORD:
ILLUMINA, INC., DIVERSIFIED EASTGATE VENTURE,
a Delaware corporation an Illinois general partnership
By: Diversified Eastgate Pointe, LLC,
By: ____________________________________ a California limited liability company,
Name: Xxx Xxxxxxx Its General Partner
Title: President & CEO
By: ____________________________________
By: ____________________________________ Its: Manager
Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President, Business Development
By: GFBP Partners, LLC,
a California limited liability company,
Its General Partner
By: ____________________________________
Its: Manager
EXHIBIT F
---------
-2-
SAMPLE ONLY
[NOT FOR EXECUTION]
EXHIBIT F
---------
-3-
EXHIBIT G
---------
RULES AND REGULATIONS
---------------------
A. General Rules and Regulations. The following rules and
-----------------------------
regulations govern the use of the Building and the Common Areas. Tenant will be
bound by such rules and regulations and agrees to cause Tenant's Authorized
Users, its employees, subtenants, assignees, contractors, suppliers, customers
and invitees to observe the same.
1. Except as specifically provided in the Lease to which these
Rules and Regulations are attached, no sign, placard, picture, advertisement,
name or notice may be installed or displayed on any part of the outside of the
Buildings without the prior written consent of Landlord. Landlord will have the
right to remove, at Tenant's expense and without notice, any sign installed or
displayed in violation of this rule. All approved signs or lettering on doors
and walls visible from the exterior of the Buildings are to be printed, painted,
affixed or inscribed at the expense of Tenant and under the direction of
Landlord by a person or company designated or approved by Landlord.
2. If Landlord objects in writing to any curtains, blinds,
shades, screens or hanging plants or other similar objects attached to or used
in connection with any window or door of the Premises, or placed on any
windowsill, which is visible from the exterior of the Premises, Tenant will
immediately discontinue such use. Tenant agrees not to place anything against or
near glass partitions or doors or windows which may appear unsightly from
outside the Premises.
3. Tenant will not obstruct any sidewalks, passages, exits or
entrances of the Development. The sidewalks, passages, exits and entrances are
not open to the general public, but are open, subject to reasonable regulations,
to Tenant's business invitees. Landlord will in all cases retain the right to
control and prevent access thereto of all persons whose presence in the
reasonable judgment of Landlord would be prejudicial to the safety, character,
reputation and interest of the Development and its tenants, provided that
nothing herein contained will be construed to prevent such access to persons
with whom any tenant normally deals in the ordinary course of its business,
unless such persons are engaged in illegal or unlawful activities.
4. Landlord expressly reserves the right to absolutely prohibit
solicitation, canvassing, sales and displays of products, goods and wares in all
portions of the Development except for such activities as may be expressly
requested by a tenant and conducted solely within such requesting tenant's
premises. Landlord reserves the right to restrict and regulate the use of the
Common Areas of the Development by invitees of tenants providing services to
tenants on a periodic or daily basis including food and beverage vendors. Such
restrictions may include limitations on time, place, manner and duration of
access to a tenant's premises for such purposes.
5. Landlord reserves the right to prevent access to the
Development in case of invasion, mob, riot, public excitement or other commotion
by closing the doors or by other appropriate action.
6. Landlord will furnish Tenant, free of charge, with two keys
to each door lock in the Premises. Landlord may make a reasonable charge for any
additional keys. Tenant shall not make or have made additional keys, and Tenant
shall not alter any lock or install any new additional lock or bolt on any door
of the Premises; provided, however, Tenant may install such security measures as
it may deem appropriate, so long as Landlord has access to the Premises as set
forth in the Lease. Tenant, upon the termination of its tenancy, will deliver to
Landlord the keys to all doors which have been furnished to Tenant, and in the
event of loss of any keys so furnished, will pay Landlord therefor.
EXHIBIT G
---------
-1-
EXHIBIT G
---------
RULES AND REGULATIONS
---------------------
A. General Rules and Regulations. The following rules and
-----------------------------
regulations govern the use of the Building and the Common Areas. Tenant will be
bound by such rules and regulations and agrees to cause Tenant's Authorized
Users, its employees, subtenants, assignees, contractors, suppliers, customers
and invitees to observe the same.
1. Except as specifically provided in the Lease to which these
Rules and Regulations are attached, no sign, placard, picture, advertisement,
name or notice may be installed or displayed on any part of the outside of the
Buildings without the prior written consent of Landlord. Landlord will have the
right to remove, at Tenant's expense and without notice, any sign installed or
displayed in violation of this rule. All approved signs or lettering on doors
and walls visible from the exterior of the Buildings are to be printed, painted,
affixed or inscribed at the expense of Tenant and under the direction of
Landlord by a person or company designated or approved by Landlord.
2. If Landlord objects in writing to any curtains, blinds,
shades, screens or hanging plants or other similar objects attached to or used
in connection with any window or door of the Premises, or placed on any
windowsill, which is visible from the exterior of the Premises, Tenant will
immediately discontinue such use. Tenant agrees not to place anything against or
near glass partitions or doors or windows which may appear unsightly from
outside the Premises.
3. Tenant will not obstruct any sidewalks, passages, exits or
entrances of the Development. The sidewalks, passages, exits and entrances are
not open to the general public, but are open, subject to reasonable regulations,
to Tenant's business invitees. Landlord will in all cases retain the right to
control and prevent access thereto of all persons whose presence in the
reasonable judgment of Landlord would be prejudicial to the safety, character,
reputation and interest of the Development and its tenants, provided that
nothing herein contained will be construed to prevent such access to persons
with whom any tenant normally deals in the ordinary course of its business,
unless such persons are engaged in illegal or unlawful activities.
4. Landlord expressly reserves the right to absolutely prohibit
solicitation, canvassing, sales and displays of products, goods and wares in all
portions of the Development except for such activities as may be expressly
requested by a tenant and conducted solely within such requesting tenant's
premises. Landlord reserves the right to restrict and regulate the use of the
Common Areas of the Development by invitees of tenants providing services to
tenants on a periodic or daily basis including food and beverage vendors. Such
restrictions may include limitations on time, place, manner and duration of
access to a tenant's premises for such purposes.
5. Landlord reserves the right to prevent access to the
Development in case of invasion, mob, riot, public excitement or other commotion
by closing the doors or by other appropriate action.
6. Landlord will furnish Tenant, free of charge, with two keys
to each door lock in the Premises. Landlord may make a reasonable charge for any
additional keys. Tenant shall not make or have made additional keys, and Tenant
shall not alter any lock or install any new additional lock or bolt on any door
of the Premises; provided, however, Tenant may install such security measures as
it may deem appropriate, so long as Landlord has access to the Premises as set
forth in the Lease. Tenant, upon the termination of its tenancy, will deliver to
Landlord the keys to all doors which have been furnished to Tenant, and in the
event of loss of any keys so furnished, will pay Landlord therefor.
EXHIBIT G
---------
-1-
18. Tenant assumes any and all responsibility for protecting its
Premises from theft, robbery and pilferage, which includes keeping doors locked
and other means of entry to the Premises closed.
19. To the extent Landlord reasonably deems it necessary to
exercise exclusive control over any portions of the Common Areas for the mutual
benefit of the tenants in the Development, Landlord may do so subject to
reasonable, non-discriminatory additional rules and regulations.
20. Tenant's requirements will be attended to only upon
appropriate application to Landlord's asset management office for the
Development by an authorized individual of Tenant. Employees of Landlord will
not perform any work or do anything outside of their regular duties unless under
special instructions from Landlord, and no employee of Landlord will admit any
person (Tenant or otherwise) to any office without specific instructions from
Landlord.
21. These Rules and Regulations are in addition to, and will not
be construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of the Lease. Landlord may waive any one or
more of these Rules and Regulations for the benefit of Tenant or any other
tenant, but no such waiver by Landlord will be construed as a waiver of such
Rules and Regulations in favor of Tenant or any other tenant, nor prevent
Landlord from thereafter enforcing any such Rules and Regulations against any or
all of the tenants of the Development.
22. Landlord reserves the right to make such other and
reasonable and non-discriminatory Rules and Regulations as, in its judgment, may
from time to time be needed for safety and security, for care and cleanliness of
the Development and for the preservation of good order therein. Tenant agrees to
abide by all such Rules and Regulations herein above stated and any additional
reasonable and non-discriminatory rules and regulations which are adopted.
Tenant is responsible for the observance of all of the foregoing rules by
Tenant's employees, agents, clients, customers, invitees and guests.
B. Parking Rules and Regulations. The following rules and
-----------------------------
regulations govern the use of the parking facilities which serve the Building.
Tenant will be bound by such rules and regulations and agrees to cause its
employees, subtenants, assignees, contractors, suppliers, customers and invitees
to observe the same:
1. Tenant will not permit or allow any vehicles that belong to
or are controlled by Tenant or Tenant's employees, subtenants, customers or
invitees to be loaded, unloaded or parked in areas other than those designated
by Landlord for such activities. No vehicles are to be parked in the parking
areas other than normally sized passenger automobiles, motorcycles and pick-up
trucks. No extended term storage of vehicles is permitted.
2. Vehicles must be parked entirely within painted stall lines
of a single parking stall.
3. All directional signs and arrows must be observed.
4. The speed limit within all parking areas shall be five (5)
miles per hour.
5. Parking is prohibited:
(a) in areas not striped for parking;
(b) in aisles or on ramps;
(c) where "no parking" signs are posted;
EXHIBIT G
---------
-3-
(d) in cross-hatched areas; and
(e) in such other areas as may be designated from time to
time by Landlord or Landlord's parking operator.
6. Landlord reserves the right, without cost or liability to
Landlord, to tow any vehicle if such vehicle's audio theft alarm system remains
engaged for an unreasonable period of time.
7. Washing, waxing, cleaning or servicing of any vehicle in any
area not specifically reserved for such purpose is prohibited.
8. Landlord may refuse to permit any person to park in the
parking facilities who violates these rules with unreasonable frequency, and any
violation of these rules shall subject the violator's car to removal, at such
car owner's expense. Tenant agrees to use its best efforts to acquaint its
employees, subtenants, assignees, contractors, suppliers, customers and invitees
with these parking provisions, rules and regulations.
9. All damage or loss to vehicles claimed to be the
responsibility of Landlord must be reported, itemized in writing and delivered
to the management office located within the Development within ten (10) business
days after any claimed damage or loss occurs. Any claim not so made is waived.
Landlord is not responsible for damage by water or fire, or for the acts or
omissions of others, or for articles left in vehicles. In any event, the total
liability of Landlord, if any, is limited to Two Hundred Fifty Dollars ($250.00)
for all damages or loss to any car. Landlord is not responsible for loss of use.
10. The parking operators, managers or attendants are not
authorized to make or allow any exceptions to these rules and regulations,
without the express written consent of Landlord. Any exceptions to these rules
and regulations made by the parking operators, managers or attendants without
the express written consent of Landlord will not be deemed to have been approved
by Landlord.
11. Landlord reserves the right, without cost or liability to
Landlord, to tow any vehicles which are used or parked in violation of these
rules and regulations.
12. Landlord reserves the right from time to time to modify
and/or adopt such other reasonable and non-discriminatory rules and regulations
for the parking facilities as it deems reasonably necessary for the operation of
the parking facilities.
_______________________ _____________________
Landlord's Initials Tenant's Initials
EXHIBIT G
---------
-4-
RIGHT OF FIRST OFFER RIDER
--------------------------
This RIGHT OF FIRST OFFER RIDER ("Rider") is made and entered into by
and between DIVERSIFIED EASTGATE VENTURE, an Illinois general partnership
("Landlord"), and ILLUMINA, INC., a Delaware corporation ("Tenant"), and is
dated as of the Effective Date of the Lease ("Lease") by and between Landlord
and Tenant to which this Rider is attached. The agreements set forth in this
Rider shall have the same force and effect as if set forth in the Lease. To the
extent the terms of this Rider are inconsistent with the terms of the Lease, the
terms of this Rider shall control. Defined terms not otherwise defined herein
shall have the meaning ascribed to them in the Lease.
1. Right of First Offer. Landlord hereby grants to the Tenant named
--------------------
in the Summary a right of first offer to lease all of the Rentable Area of
Building C depicted on the Site Plan, which Building has not yet been
constructed by Landlord, but is intended to be a three story building consisting
of approximately 81,000 square feet of Rentable Area. The First Offer Right is
only a right of first offer to lease the entirety of Building C as a three story
building of approximately 81,000 square feet, and is not intended to be a right
of first offer to lease a portion of Building C, or a right of first offer to
lease Building C as a one or two story building (the "First Offer Right").
Notwithstanding the foregoing, such First Offer Right shall commence only upon
the Effective Date of the Lease, and shall automatically expire on January 1,
2001 (the "First Offer Period"). Tenant's right of first offer shall be on the
terms and conditions set forth in this Rider. Notwithstanding anything in the
Lease or in this Rider to the contrary, Landlord shall not commence construction
of Building C, or enter into a lease or other agreement for the transfer of all
or any portion of Building C, prior to the expiration of the First Offer Period,
unless Tenant has either relinquished its First Offer Right, or has otherwise
approved the commencement of construction or lease or other transfer of all or
any portion of Building C. Also notwithstanding anything in the Lease or herein
to the contrary, Landlord shall be entitled to market Building C to other
prospective tenants pending Tenant's exercise of its First Offer Right. Upon
the expiration of the First Offer Period, Landlord shall be entitled to commence
construction on Building C and construct a building of any size or configuration
within the Development, as may be permitted by Applicable Laws.
1.1 Procedure for Exercise of Right of First Offer. Tenant may
----------------------------------------------
notify Landlord (the "First Offer Notice") of its desire to lease Building C
during the First Offer Period (the "First Offer Election Notice"). The First
Offer Election Notice shall set forth the "First Offer Rent," as that term is
defined in Section 1.3 below, and the other economic terms upon which Tenant is
willing to lease such space from Landlord.
1.2 Procedure for Exercise of Right of First Offer. If Landlord
----------------------------------------------
wishes to accept Tenant's offer to lease Building C pursuant to the terms of the
First Offer Election Notice, then within ten (10) business days of delivery of
the First Offer Election Notice to Landlord, Landlord shall deliver notice to
Tenant of Landlord's acceptance of Tenant's election on the terms contained in
such First Offer Election Notice, together with any modifications required by
Landlord. If Landlord accepts Tenant's offer to lease as described in the First
Offer Election Notice without any modifications, such acceptance shall be
binding upon Tenant and Landlord. In the event Landlord does modify the terms
and provisions of Tenant's First Offer Election Notice, then Landlord and Tenant
shall negotiate in good faith the terms and provisions of any such Lease within
fourteen (14) days from the expiration of the First Offer Period. If Tenant
does not so notify Landlord within the First Offer Period, or if Landlord and
Tenant are unable to agree upon the terms of the lease for Building C during the
First Offer Period, then Landlord shall be free to lease Building C to anyone to
whom Landlord desires on any terms Landlord desires. Notwithstanding anything
to the contrary contained herein, Tenant must elect to exercise its First Offer
Right, if at all, with respect to all of Building C, and Tenant may not elect to
lease only a portion thereof.
1.3 Construction of Building C. Upon the exercise of Tenant's
--------------------------
First Offer Right and acceptance thereof by Landlord, Landlord shall commence to
have prepared the plans and specifications for the
-1-
construction of Building C, which shall be constructed in substantially the
location depicted on the Site Plan. The design of Building C shall be as
determined by Landlord during the First Offer Period. Upon Landlord's creation
of plans and specifications and elevations regarding Building C, Landlord shall
provide the same to Tenant. Upon the issuance by all applicable governmental
authorities of the appropriate permits and approvals for the construction of
Building C, Landlord shall undertake the construction thereof and shall diligent
prosecute the same to completion, using its good faith and reasonable efforts to
have the same completed as soon as commercially practicable.
1.4 Amendment to Lease. If Tenant timely exercises Tenant's
------------------
First Offer Right and Landlord accepts such offer, Landlord and Tenant shall
within fifteen (15) days thereafter execute an amendment to the Lease, including
Building C within the definition of the Premises, and setting forth any terms
that are unique to Building C.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Right
of First Offer Rider as of the Effective Date.
TENANT: LANDLORD:
ILLUMINA, INC., DIVERSIFIED EASTGATE VENTURE,
a Delaware corporation an Illinois general partnership
By: Diversified Eastgate Pointe, LLC,
By: ____________________________________ a California limited liability company,
Name: Xxx Xxxxxxx Its General Partner
Title: President & CEO
By: ____________________________________
By: ____________________________________ Its: Manager
Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President, Business Development
By: GFBP Partners, LLC,
a California limited liability company,
Its General Partner
By: ____________________________________
Its: Manager
-2-
OPTION TO PURCHASE DEVELOPMENT RIDER
------------------------------------
-1-
