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EXHIBIT 10.9
OFFICE SPACE LEASE
BETWEEN
THE IRVINE COMPANY
AND
QUEST SOFTWARE, INC.
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OFFICE SPACE LEASE
THIS LEASE is made as of the 17th day of June, 1999, by and between THE
IRVINE COMPANY, hereafter called "Landlord," and QUEST SOFTWARE, INC., a
California corporation, hereinafter called "Tenant."
ARTICLE I. BASIC LEASE PROVISIONS
Each reference in this Lease to the "Basic Lease Provisions" shall mean
and refer to the following collective terms, the application of which shall be
governed by the provisions in the remaining Articles of this Lease.
1. TENANT'S TRADE NAME: N/A
2. PREMISES: Suite Nos. 200, 500 & 600 (the Premises are more particularly
described in Section 2.1).
ADDRESS OF BUILDING: 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxx, XX 00000
PROJECT DESCRIPTION (IF APPLICABLE): 8001 Tower and attendant Common
Area
3. USE OF PREMISES: General Office and for no other use.
4. ESTIMATED COMMENCEMENT DATE: October 1, 1999
5. LEASE TERM: Seventy-Four (74) months, plus such additional days as may
be required to cause this Lease to terminate on the final day of the
calendar month.
6. BASIC RENT: One Hundred Fifty-Five Thousand Two Hundred Fifty-Two
Dollars ($155,252.00) per month.
RENTAL ADJUSTMENTS:
Commencing twelve (12) months following the Commencement Date, the
Basic Rent shall be One Hundred Sixty-Two Thousand Two Dollars
($162,002.00) per month.
Commencing twenty-four (24) months following the Commencement Date, the
Basic Rent shall be One Hundred Sixty-Eight Thousand Seven Hundred
Fifty-Three Dollars ($168,753.00) per month.
Commencing thirty-six (36) months following the Commencement Date, the
Basic Rent shall be One Hundred Seventy-Five Thousand Five Hundred
Three Dollars ($175,503.00) per month.
Commencing forty-eight (48) months following the Commencement Date, the
Basic Rent shall be One Hundred Eighty-Two Thousand Two Hundred
Fifty-Three Dollars ($182,253.00) per month.
Commencing sixty (60) months following the Commencement Date, the Basic
Rent shall be One Hundred Eighty-Nine Thousand Three Dollars
($189,003.00) per month.
Commencing seventy-two (72) months following the Commencement Date, the
Basic Rent shall be One Hundred Ninety-Five Thousand Seven Hundred
Fifty-Three Dollars ($195,753.00) per month.
7. PROPERTY TAX BASE: The Property Taxes (as defined in Section 4.2(f)
below) per rentable square foot for the twelve month period ending June
30, 2000.
BUILDING COST BASE: The Building Costs (as defined in Section 4.2(f)
below) per rentable square foot for the twelve month period ending June
30, 2000.
EXPENSE RECOVERY PERIOD: Every twelve month period during the Term (or
portion thereof during the first and last Lease years) ending June 30.
8. FLOOR AREA OF PREMISES: approximately 67,501 rentable square feet
9. SECURITY DEPOSIT: $172,820.00 (see Section 4.3)
10. BROKER(S): None
11. PLAN APPROVAL DATE: N/A
12. PARKING: Fifteen (15) reserved and Three Hundred (300) unreserved
vehicle parking spaces.
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13. ADDRESS FOR PAYMENTS AND NOTICES:
LANDLORD TENANT
The Irvine Company Quest Software, Inc.
c/o Insignia Commercial Group 0000 Xxxxxx Xxxxxx Xxxxx
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 0000 Xxxxx 000
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: Property Manager
with a copy of notices to:
THE IRVINE COMPANY
X.X. Xxx 0000
Xxxxxxx Xxxxx, XX 00000-0000
Attn: Vice President, Operations - Office Properties
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ARTICLE II. PREMISES
SECTION 2.1. LEASED PREMISES. Landlord leases to Tenant and Tenant
rents from Landlord the premises shown in Exhibit A (the "Premises"), containing
approximately the floor area set forth in Item 8 of the Basic Lease Provisions
and known by the suite number identified in Item 2 of the Basic Lease
Provisions. The Premises are located in the building identified in Item 2 of the
Basic Lease Provisions (which together with the underlying real property, is
called the "Building"), and is a portion of the project described in Item 2 (the
"Project"). If, upon completion of the space plans for the Premises, Landlord's
architect or space planner determines that the rentable square footage of the
Premises differs from that set forth in the Basic Lease Provisions, then
Landlord shall so notify Tenant and the Basic Rent (as shown in Item 6 of the
Basic Lease Provisions) shall be promptly adjusted in proportion to the change
in square footage. Within five (5) days following Landlord's request, the
parties shall memorialize the adjustments by executing an amendment to this
Lease prepared by Landlord.
SECTION 2.2. ACCEPTANCE OF PREMISES. Tenant acknowledges that neither
Landlord nor any representative of Landlord has made any representation or
warranty with respect to the Premises or the Building or the suitability or
fitness of either for any purpose, except as set forth in this Lease. The taking
of possession or use of the Premises by Tenant for any purpose other than
construction shall conclusively establish that the Premises were in satisfactory
condition and in conformity with the provisions of this Lease in all respects,
except for latent defects and those matters which Tenant shall have brought to
Landlord's attention on a written punch list. The list shall be delivered to
Landlord within thirty (30) days after the term ("Term") of this Lease commences
as provided in Article III below, except that with respect to HVAC performance
Tenant shall deliver such list within one hundred twenty (120) days. Nothing
contained in this Section shall affect the commencement of the Term or the
obligation of Tenant to pay rent. Landlord shall diligently complete all punch
list items of which it is notified as provided above.
SECTION 2.3. BUILDING NAME AND ADDRESS. Tenant shall not utilize any
name selected by Landlord from time to time for the Building and/or the Project
as any part of Tenant's corporate or trade name. Landlord shall have the right
to change the name, number or designation of the Building or Project without
liability to Tenant.
SECTION 2.4. RIGHT OF FIRST OFFER. Provided Tenant is not then in
default hereunder and is not then subleasing any portion of the Premises (except
for subleases to "Related Entities" as defined in Section 9.1(d) below), and
provided further that any third party tenants holding rights to lease the First
Right Space (as hereinafter defined) elect not to exercise their rights,
Landlord hereby grants Tenant the continuing right ("First Right") to lease any
space which may become available for lease in the Building ("First Right Space")
in accordance with and subject to the provisions of this Section 2.4; provided
that the First Right shall not be in effect (i) prior to the date Tenant
commences the payment of Basic Rent for the "Second Floor Storage Area" (as
defined below) and (ii) during the final twelve (12) months of the initial Lease
Term unless Tenant has timely delivered the "Exercise Notice" pursuant to
Section 3.3. It is understood, however, that Tenant's First Right is expressly
further conditioned upon the prior delivery by Tenant of written notice to
Landlord in good faith of Tenant's need for additional space in the Building
(the "Space Requirement Notice"). At any time during the Term of this Lease, and
provided that all of the foregoing conditions have been satisfied, prior to
leasing the First Right Space, or any portion thereof, to any other party,
Landlord shall give Tenant written notice of its intention to lease same, which
notice (the "First Right Notice") shall describe the particular space to be
leased (the "Designated Space"). At Tenant's election, the parties shall
thereupon negotiate in good faith the economic terms (including without
limitation mutually approved tenant improvements and parking allotments)
pursuant to which Tenant would lease the Designated Space for a term coextensive
with the Term of this Lease. If, despite such good faith negotiations, the
parties are unable mutually to agree on terms within ten (10) business days
following delivery of the First Right Notice, then Landlord shall have the right
to lease the Designated Space to a third party; provided that should the
Designated Space again become available for lease during the Term hereof, the
provisions of this Section shall apply ab initio. Conversely, should the parties
timely agree on economic terms for Tenant's lease of the Designated Space, then
Landlord shall promptly prepare and deliver to Tenant an amendment to this Lease
consistent with such agreement, and Tenant shall execute and return same to
Landlord within ten (10) days. Tenant's failure to timely return the amendment
shall, if not rectified within two (2) days after notice of nonperformance from
Landlord, entitle Landlord to lease such space to a third party. Notwithstanding
the foregoing, it is understood that Tenant's First Right shall be subject to
any extension or expansion rights granted by Landlord to any third party tenant
now or hereafter occupying the First Right Space or any portion thereof, and in
no event shall any such First Right Space be deemed available for leasing until
the existing tenant thereof shall have vacated the First Right Space. Tenant's
rights under this Section 2.4 shall belong solely to Quest Software, Inc., a
California corporation, and may not otherwise be assigned or transferred by it
except in connection with an
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assignment of this Lease to a "Tenant Affiliate" (as defined in Section 9.1(e)
below). Any other attempted assignment or transfer shall be void and of no force
or effect.
SECTION 2.5. OPTION TO EXPAND. Provided that Tenant is not then in
default under any provision of this Lease, Tenant shall have the right to lease
all of the space which is not then leased by Tenant on the ninth floor
(comprising approximately 23,840 rentable square feet) of the Building (the
"Option Space") in accordance with and subject to the provisions of this Section
2.5. Tenant shall deliver written notice to Landlord of its irrevocable
commitment to lease the Expansion Space at any time prior to June 1, 2000 (the
"Expansion Commitment"). If Tenant fails to timely deliver the Expansion
Commitment, Landlord shall be free thereafter to lease the Option Space to one
or more third parties, subject to Section 2.4 above. The Option Space shall be
subject to all of the terms of this Lease, except that (i) subject to Landlord's
rights in the event of "Tenant Delays" as described in Exhibit X hereto, the
term shall be coterminous with this Lease commencing on the date Landlord has
substantially completed the tenant improvements for the Option Space, which date
shall be on the earliest possible date agreed to by Landlord and Tenant, but in
no event later than August 31, 2001; (ii) the Basic Rent for the Option Space
shall be at the prevailing market rental rate (including periodic adjustments)
for comparable and similarly improved space within the Building and the adjacent
building at 0000 Xxxxxx Xxxxxx Xxxxx (the "8105 Building") as of the
commencement of the Term of the Option Space, based on a reasonable
extrapolation of leasing rates actually achieved in recent transactions in the
Building and the 8105 Building and, if Tenant is not then being represented by a
broker, giving greater weight to transactions in which no third party brokerage
commission was paid; (iii) Landlord shall provide Tenant with five (5) employee
parking spaces for every one thousand (1,000) usable square feet of the Option
Space, which allotment shall include a limited number of reserved spaces equal
to one (1) reserved stall for every four thousand (4,000) usable square feet of
the Option Space; and (iv) Landlord shall cause to be constructed tenant
improvements for the Expansion Space consistent with those provided for the
initial Premises pursuant to Exhibit X hereto, which improvements shall be
completed in accordance with a space plan approved by the parties. Landlord
agrees that in the event the tenant improvement work requested by Tenant for the
Expansion Space exceeds the amount of the Landlord's tenant improvement
contribution therefor, then Landlord shall, at Tenant's request, submit the
tenant improvement work for the Expansion Space to a competitive bidding process
involving Landlord-approved contractors. Landlord further agrees that should the
Expansion Space comprise the entire rentable area of the ninth floor, then as
part of the approved tenant improvement work, Tenant shall have the right to
remove the existing corridor space and to convert such space to usable office
space, provided that such reconfiguration is in compliance with all building
codes and other legal requirements and provided further that Tenant may be
required by Landlord, concurrently with Landlord's approval of Tenant's final
construction drawings, to restore the corridor to a Building standard condition
at the end of the Term. Should the parties be unable to agree upon the rental
rate for the Option Space within thirty (30) days following delivery of the
Expansion Commitment, then either party may cause the rate to be determined by
arbitration pursuant to Section 14.7(b). Tenant understands and agrees that
Landlord's obligation to deliver certain suites on the ninth floor of the
Building shall be contingent upon Landlord's ability to relocate the existing
tenants thereof at a reasonable cost (which cost shall be funded by Tenant);
should Landlord be unable to do so despite its good faith efforts, then Landlord
shall so notify Tenant and the Option Space shall be deemed to exclude those
applicable suites. Upon Tenant's exercise of its rights under this Section 2.5
and the determination of the final economic terms for Tenant's lease of the
Option Space, Landlord shall prepare an appropriate amendment to this Lease
respecting same and Tenant shall execute and deliver the amendment to Landlord
within ten (10) days after receipt. Tenant's rights under this Section 2.5 shall
belong solely to Quest Software, Inc., a California corporation, and may not
otherwise be assigned or transferred except in connection with an assignment of
this Lease to a Tenant Affiliate. Any other attempted assignment or transfer
shall be void and of no force or effect.
SECTION 2.6. SECOND FLOOR STORAGE AREA. Landlord hereby agrees that
Tenant shall be permitted to utilize a portion of space on the second floor of
the Building comprising approximately 8,599 rentable square feet and shown on
Exhibit A-1 hereto for storage purposes only (the "Second Floor Storage Area").
Notwithstanding any contrary provision in this Lease, Landlord agrees that
provided Tenant is not in default under the Lease, and provided further that
Tenant is not using the Second Floor Storage Area for its business operations,
Tenant shall not be obligated to pay Basic Rent for the Second Floor Storage
Area during the initial six (6) months of the Lease Term, which rental credit
shall equal Nineteen Thousand Seven Hundred Seventy-Eight Dollars ($19,778.00)
per month. Tenant understands and agrees that at Landlord's election and
expense, the Second Floor Storage Area shall be demised from the remainder of
space on the second floor and shall be kept locked at all times by Landlord.
Tenant further understands and agrees that should it require temporary access to
the Second Floor Storage Area, Tenant shall so notify Landlord, and Landlord's
management agent for the Building shall then permit such access to the Second
Floor Storage Area as soon as reasonably possible following the request by
Tenant. If, at any time during the first six (6) months of the Term, Tenant
desires to commence using the Second Floor Storage Area for its business
operations, Tenant shall so notify Landlord in writing and the Second
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Floor Storage Area shall thereupon be made continuously available to Tenant;
concurrently therewith, the foregoing rental credit shall be reduced to Nine
Thousand Eight Hundred Eighty-Nine Dollars ($9,889.00) per month for the
remainder of the initial six month period, with any mid-month reduction
appropriately prorated based on the number of days in that month.
ARTICLE III. TERM
SECTION 3.1. GENERAL. The Term shall be for the period shown in Item 5
of the Basic Lease Provisions. The Term shall commence ("Commencement Date") on
the earlier of (a) subject to the provisions of Section 3.2, five (5) days
following the date that the Premises have been tendered to Tenant, ready for
occupancy as described in section 3.2, but in no event earlier than the
Estimated Commencement Date as set forth in Item 4 of the Basic Lease
Provisions, or (b) the date Tenant commences its business activities within the
Premises. Promptly following request by Landlord, the parties shall memorialize
on a form provided by Landlord the actual Commencement Date and the expiration
date ("Expiration Date") of this Lease.
SECTION 3.2. DELAY IN POSSESSION. If Landlord, for any reason
whatsoever, cannot deliver possession of the Premises to Tenant on or before the
Estimated Commencement Date, this Lease shall not be void or voidable nor shall
Landlord be liable to Tenant for any resulting loss or damage. However, Tenant
shall not be liable for any rent and the Commencement Date shall not occur until
Landlord delivers possession of the Premises and the Premises are in fact ready
for occupancy as defined below, except that if Landlord's failure to so deliver
possession on the Estimated Commencement Date is attributable to any action or
inaction by Tenant (including without limitation any Tenant Delay described in
the Work Letter, if any, attached to this Lease), then the Commencement Date
shall not be advanced to the date on which possession of the Premises is
tendered to Tenant, and Landlord shall be entitled to full performance by Tenant
(including the payment of rent) from the date Landlord would have been able to
deliver the Premises to Tenant but for Tenant's Delay(s). The Premises shall be
deemed ready for occupancy upon the tendered date, but only if and when
Landlord, to the extent applicable, (a) has put into operation all building
services essential for the use of the Premises by Tenant, (b) has provided
reasonable access to the Premises for Tenant so that they may be used without
unnecessary interference, (c) has substantially completed all the work required
to be done by Landlord in this Lease, and (d) has obtained requisite
governmental approvals to Tenant's occupancy.
SECTION 3.3. RIGHT TO EXTEND. Provided that Tenant is not then in
default under any provision of this Lease, Tenant may extend the Term of this
Lease for one period of sixty (60) months. Tenant shall exercise such right to
extend the Term by and only by delivering to Landlord, not less than twelve (12)
months prior to the scheduled expiration date of the Term, Tenant's written
notice of its irrevocable election to extend (the "Exercise Notice"). Tenant's
failure timely to deliver the Exercise Notice shall cause this extension right
to lapse and be of no further force or effect.
The Basic Rent payable under the Lease during the extension of the Term shall be
at ninety-five percent (95%) of the prevailing rental rate and other economic
terms for office space being leased by Landlord in the Building and the 8105
Building with a term commencing at or about the commencement of the applicable
extension period, as determined based on a reasonable extrapolation of
then-current leasing rates actually achieved in such buildings (the "Prevailing
Rate"). In determining the Prevailing Rate, recent new and renewal leases with
non-equity tenants of the Project shall be considered. The Prevailing Rate shall
reflect the rental rate and terms payable in those third party transactions,
taking into account pertinent economic concessions then generally being granted
by Landlord such as "free rent," Operating Expense base years, parking charge
limitations, and the like. It is understood, however, that no consideration
shall be given to brokerage commissions, lease "takeover" payments, moving
allowances, or tenant improvement allowances (other than retrofit allowances
granted to renewal tenants). The rental rates payable in any third party
transactions executed more than six (6) months prior to the commencement of the
extension period shall be reasonably extrapolated, if applicable, to reflect
anticipated changes in the Prevailing Rate based on current rental trends.
Following Tenant's delivery of the Exercise Notice, but not later than six (6)
months prior to the expiration date of the Term, Landlord shall notify Tenant in
writing ("Landlord's Notice") of Landlord's calculation of the Prevailing Rate
for the extension period based on the foregoing criteria. Should Tenant dispute
Landlord's calculation, then Tenant may, by written notice to Landlord within
thirty (30) days following Landlord's Notice, submit the reasonableness of
Landlord's calculation of the Prevailing Rate to arbitration in accordance with
Section 14.7(b) of the Lease (the "Arbitration Election"). Should Tenant fail
timely to make the Arbitration Election, then Landlord's determination of the
Prevailing Rate shall be conclusive.
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Within twenty (20) days after the determination of the Prevailing Rate, Landlord
shall prepare a reasonably appropriate amendment to this Lease for the extension
period and Tenant shall execute and return same to Landlord within fifteen (15)
days. Should the Prevailing Rate not be established by the commencement of the
extension period, then Tenant shall continue paying rent at the rate in effect
during the month preceding such commencement, and a lump sum adjustment shall be
made promptly upon the determination of such new rental.
The right to extend granted in this Section shall be personal to Quest Software,
Inc., a California corporation, and any Tenant Affiliate thereof to which this
Lease may be assigned. Any other attempt to assign or transfer such right shall
be void from its inception. Time is specifically made of the essence in this
Section.
ARTICLE IV. RENT AND OPERATING EXPENSES
SECTION 4.1. BASIC RENT. From and after the Commencement Date, Tenant
shall pay to Landlord without deduction or offset (except as expressly provided
in this Lease) a Basic Rent for the Premises in the total amount shown
(including subsequent adjustments, if any) in Item 6 of the Basic Lease
Provisions. Any rental adjustment shown in Item 6 shall be deemed to occur on
the specified monthly anniversary of the Commencement Date, whether or not that
date occurs at the end of a calendar month. The rent shall be due and payable in
advance commencing on the Commencement Date (as prorated for any partial month)
and continuing thereafter on the first day of each successive calendar month of
the Term. No demand, notice or invoice shall be required. An installment of rent
in the amount of one (1) full month's Basic Rent at the initial rate specified
in Item 6 of the Basic Lease Provisions shall be delivered to Landlord
concurrently with Tenant's execution of this Lease and shall be applied against
the Basic Rent first due hereunder.
SECTION 4.2. OPERATING EXPENSE INCREASE.
(a) Commencing on the first day of the thirteenth month of the
Lease Term, Tenant shall compensate Landlord, as additional rent, for Tenant's
proportionate shares of "Building Costs" and "Property Taxes," as those terms
are defined below, incurred by Landlord in the operation of the Building and
Project. Property Taxes and Building Costs are mutually exclusive and may be
billed separately or in combination as determined by Landlord. Tenant's
proportionate share of Property Taxes shall equal the product of the rentable
floor area of the Premises multiplied by the difference of (i) Property Taxes
per rentable square foot less (ii) the Property Tax Base set forth in Item 7 of
the Basic Lease Provisions. Tenant's proportionate share of Building Costs shall
equal the product of the rentable floor area of the Premises multiplied by the
difference of (i) Building Costs per rentable square foot less (ii) the Building
Cost Base set forth in Item 7 of the Basic Lease Provisions. Tenant acknowledges
Landlord's rights to make changes or additions to the Building and/or Project
from time to time pursuant to Section 6.5 below, in which event the total
rentable square footage within the Building and/or Project may be adjusted. For
convenience of reference, Property Taxes and Building Costs may sometimes be
collectively referred to as "Operating Expenses."
(b) Commencing prior to the start of the first full "Expense
Recovery Period" of the Lease (as defined in Item 7 of the Basic Lease
Provisions), and prior to the start of each full or partial Expense Recovery
Period thereafter, Landlord shall give Tenant a written estimate of the amount
of Tenant's proportionate shares of Building Costs and Property Taxes for the
Expense Recovery Period or portion thereof. Commencing on the first day of the
thirteenth month of the Lease Term, Tenant shall pay the estimated amounts to
Landlord in equal monthly installments, in advance, with Basic Rent. If Landlord
has not furnished its written estimate for any Expense Recovery Period by the
time set forth above, Tenant shall continue to pay cost reimbursements at the
rates established for the prior Expense Recovery Period, if any; provided that
when the new estimate is delivered to Tenant, Tenant shall, at the next monthly
payment date, pay any accrued cost reimbursements based upon the new estimate.
Landlord may from time to time change the Expense Recovery Period to reflect a
calendar year or a new fiscal year of Landlord, as applicable, in which event
Tenant's share of Operating Expenses shall be equitably prorated for any partial
year.
(c) Within one hundred twenty (120) days after the end of each
Expense Recovery Period, Landlord shall furnish to Tenant a statement showing in
reasonable detail the actual or prorated Property Taxes and Building Costs
incurred by Landlord during the period, and the parties shall within thirty (30)
days thereafter make any payment or allowance necessary to adjust Tenant's
estimated payments, if any, to Tenant's actual proportionate shares as shown by
the annual statement. If Tenant has not made estimated payments during the
Expense Recovery Period, any amount owing by Tenant pursuant to subsection (a)
above shall be paid to Landlord in accordance with Article XVI. If actual
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Property Taxes or Building Costs allocable to Tenant during any Expense Recovery
Period are less than the Property Tax Base or the Building Cost Base,
respectively, Landlord shall not be required to pay the differential to Tenant.
Should Tenant fail to object in writing to Landlord's determination of actual
Operating Expenses within one (1) year following delivery of Landlord's expense
statement, Landlord's determination of actual Operating Expenses for the
applicable Expense Recovery Period shall be conclusive and binding on Tenant.
(d) Even though the Lease has terminated and the Tenant has
vacated the Premises, when the final determination is made of Tenant's share of
Property Taxes and Building Costs for the Expense Recovery Period in which the
Lease terminates, Tenant shall upon notice pay the entire increase due over the
estimated expenses paid. Conversely, any overpayment made in the event expenses
decrease shall be rebated by Landlord to Tenant.
(e) If Tenant is notified by December 1 of any Expense
Recovery Period that any one or more of the Operating Expenses are increased to
a rate(s) or amount(s) in excess of the rate(s) or amount(s) used in calculating
the estimated expenses for the year, then Tenant's estimated share of Property
Taxes or Building Costs, as applicable, shall be increased, effective as of the
following January 1, by an amount equal to Tenant's proportionate share of the
increase; provided that any increase attributable to the period prior to January
1 shall be amortized and spread over the remainder of the Expense Recovery
Period from and after January 1. Landlord shall give Tenant written notice of
the amount or estimated amount of the increase, the month in which the increase
will become effective, Tenant's monthly share thereof and the months for which
the payments are due. Tenant shall pay the increase to Landlord as a part of
Tenant's monthly payments of estimated expenses as provided in paragraph (b)
above.
(f) The term "Building Costs" shall include all expenses of
operation and maintenance of the Building and the Project, together with all
appurtenant Common Areas (as defined in Section 6.2), and shall include the
following charges by way of illustration but not limitation: water and sewer
charges; insurance premiums or reasonable premium equivalents should Landlord
elect to self-insure any risk that Landlord is authorized to insure hereunder;
license, permit, and inspection fees; heat; light; power; janitorial services;
repairs; air conditioning; supplies; materials; equipment; tools; tenant
services; programs instituted to comply with transportation management
requirements; amortization of capital investments reasonably intended to produce
a reduction in operating charges or energy conservation; amortization of capital
investments necessary to bring the Building into compliance with applicable laws
and building codes enacted subsequent to the completion of construction of the
Building; labor; reasonably allocated wages and salaries, fringe benefits, and
payroll taxes for administrative and other personnel directly applicable to the
Building and/or Project, including both Landlord's personnel and outside
personnel; any expense incurred pursuant to Sections 6.1, 6.2, 6.4, 7.2, and
10.2 and Exhibits B and C below; and a reasonable overhead/management fee. It is
understood that Building Costs shall include competitive charges for direct
services provided by any subsidiary or division of Landlord. The term "Property
Taxes" as used herein shall include the following: (i) all real estate taxes or
personal property taxes, as such property taxes may be reassessed from time to
time; and (ii) other taxes, charges and assessments which are levied with
respect to this Lease or to the Building and/or the Project, and any
improvements, fixtures and equipment and other property of Landlord located in
the Building and/or the Project, except that documentary transfer fees, general
net income and franchise taxes imposed against Landlord shall be excluded; and
(iii) any tax, surcharge or assessment which shall be levied in addition to or
in lieu of real estate or personal property taxes, other than taxes covered by
Article VIII; and (iv) costs and expenses incurred in contesting the amount or
validity of any Property Tax by appropriate proceedings. Property Taxes shall
specifically exclude penalties and/or interest charges for failure to timely and
fully pay Property Taxes and the amount of any taxes, fees, charges or
assessments levied upon or with respect to other tenants of the Building or the
Project. Notwithstanding anything to the contrary contained herein, if there is
an increase in Property Taxes as a result of any change in ownership of the
Building during the initial seventy-four (74) months of the Term, then for the
remainder of the initial Term only, Tenant's proportionate share of Property
Taxes shall in no event exceed the maximum that might otherwise have been
allocated to Tenant pursuant to the provisions of Proposition 13 based on the
assumptions that (A) the change of ownership had not occurred and (B) the
maximum assessment permissible had been imposed by the taxing authority. A copy
of Landlord's unaudited statement of expenses shall be made available to Tenant
upon request. The Building Costs may be extrapolated by Landlord to reflect at
least ninety-five percent (95%) occupancy of the rentable area of the Building.
(g) Notwithstanding the foregoing, Building Costs shall not
include the following: (i) rent and other payments made by Landlord under any
ground lease or other lease underlying this Lease, and interest, principal,
points or fees on debt or amortization of any debt encumbering the Building or
Project; (ii) costs incurred to correct any latent defects, or for repair or
replacement to the extent of proceeds of insurance received by Landlord, any
reimbursement which Landlord receives under any warranties from third parties,
and reimbursements from any other responsible parties; (iii) depreciation on the
Project or any portion thereof; (iv) costs, expense and penalties (including
without limitation attorneys'
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fees) incurred due to Landlord's violation of any lease in the Project,
Landlord's violation of any deed of trust, mortgage or ground lease, and
Landlord's violation of any law, covenant, condition or restriction applicable
to the Project; (v) any and all costs incurred with respect to the installation
of tenant improvements or other refurbishment of space for other tenants or
occupants of the Project, for furnishing items or services exclusively to a
third party tenant of the Project, or for significant aesthetic, decorative or
other similar upgrades to the Project; (vi) advertising, marketing, media and
promotional expenditures regarding the Project, leasing commissions, attorneys'
fees and other costs and expenses incurred in connection with the negotiation,
execution, enforcement or termination of leases of premises within the Project,
and any other costs or expenses relating to leasing of the Project in general;
(vii) compensation, benefits or other amounts payable to employees or affiliates
of Landlord other than as expressly set forth herein, or any actual or imputed
rental of space within the Project (other than the management and conference
offices in the Building not exceeding 4,000 rentable square feet collectively);
(viii) costs of any capital improvements made by Landlord not otherwise
expressly permitted herein, and with respect to the cost of permitted capital
improvements, only to the extent that the annual amount thereof does not exceed
the total costs amortized at a market cost of funds over the useful life of such
improvements or, if greater, the amount of any other cost savings resulting from
the applicable improvement; (ix) all utilities submetered to other tenants of
the Project or charged to other tenants of the Project for usage in excess of
customary utility usage during normal business hours; (x) expenses in connection
with services or other benefits of a type which are not standard for the
Building or the Project, and which are not available to Tenant without specific
charge therefor, but which are provided to another tenant or occupant of the
Project whether or not such other tenant or occupant is specifically charge
therefor by Landlord; (xi) the costs of any services (other than normal parking)
directly contracted and paid for by other tenants in the Project; (xii) any
costs incurred to test, survey, cleanup, contain, xxxxx, remove or otherwise
remedy hazardous or toxic materials from the Project; (xiii) management fees,
overhead and profit increments paid to subsidiaries or affiliates of Landlord
for management or other services on or to the Project or for supplies or other
materials, to the extent that the costs thereof exceed the costs that would have
been paid had the same been provided by unaffiliated parties on a competitive
basis; (xiv) property insurance on the Building or the Project exceeding the
full replacement value thereof, or rental abatement insurance exceeding one (1)
year; (xv) any other expense that under generally accepted accounting principles
consistently applied and practiced would not be considered a normal maintenance
or operating expense; (xvi) any cost or expense previously charged by Landlord,
and in no event shall there be any duplication of charges; and (xvii) should
Landlord elect to self-insure earthquake property damage, imputed self-insurance
premiums for such coverage that exceed the earthquake insurance premium
component of the Building Cost Base.
(h) Provided Tenant is not then in default hereunder, Tenant
shall have the right to cause a qualified auditor working on a fixed fee (and
not continency basis) to audit Operating Expenses by inspecting Landlord's
general ledger of expenses and supporting documents reasonably requested by
Tenant not more than once during any Expense Recovery Period. Tenant shall give
notice to Landlord of Tenant's intent to audit within ten (10) months after
Tenant's receipt of Landlord's expense statement which sets forth Landlord's
actual Operating Expenses. Such audit shall be conducted at a mutually agreeable
time during normal business hours at the office of Landlord or its management
agent where such accounts are maintained and shall be completed within sixty
(60) days. If Tenant's audit determines that actual Operating Expenses have been
overstated by more than five percent (5%), then subject to Landlord's right to
review and/or contest the audit results, Landlord shall reimburse Tenant for the
reasonable out-of-pocket costs of such audit. Tenant's rent shall be
appropriately adjusted to reflect any overstatement in Operating Expenses. In
addition, if any component of Operating Expenses is determined to be either
inappropriate or excessive during an Expense Recovery Period, and if the
Building Cost Base or Property Tax Base also included such component, then the
appropriate Base shall concurrently be adjusted if and to the extent
appropriate. In the event of a dispute between Landlord and Tenant regarding the
results of such audit, either party may elect to submit the matter for binding
arbitration pursuant to Section 14.7(b) below. All of the information obtained
by Tenant and/or its auditor in connection with such audit, as well as any
compromise, settlement, or adjustment reached between Landlord and Tenant as a
result thereof, shall be held in strict confidence and, except as may be
required pursuant to litigation, shall not be disclosed to any third party,
directly or indirectly, by Tenant or its auditor or any of their officers,
agents or employees. Landlord may require Tenant's auditor to execute a separate
confidentiality agreement affirming the foregoing as a condition precedent to
any audit. In the event of a violation of this confidentiality covenant in
connection with any audit, then in addition to any other legal or equitable
remedy available to Landlord, Tenant shall have no further audit rights under
this Lease.
SECTION 4.3. SECURITY DEPOSIT. Concurrently with Tenant's delivery of
this Lease, Tenant shall deposit with Landlord the sum, if any, stated in Item 9
of the Basic Lease Provisions (the "Security Deposit"), in the form of (i) cash
equal to the difference between such Security Deposit and the security deposit
currently held by Landlord under the Existing Lease described in Section 22.6
below (the "Existing Deposit") and (ii) the transfer of the Existing Deposit by
Landlord to this Lease upon the Commencement Date hereof. The Security Deposit
shall be held by Landlord as security for the full and faithful
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performance of Tenant's obligations under this Lease to pay any rent as and when
due, including without limitation such additional rent as may be owing under any
provision hereof, and to maintain the Premises as required by Sections 7.1 and
15.3. Upon any breach of those obligations by Tenant, Landlord may apply all or
part of the Security Deposit as full or partial compensation. If any portion of
the Security Deposit is so applied, Tenant shall within five (5) days after
written demand by Landlord deposit cash with Landlord in an amount sufficient to
restore the Security Deposit to its original amount. Notwithstanding the
foregoing, however, provided Tenant is not, and has not theretofore been, in
default under this Lease, Landlord agrees to reduce the principal balance of the
Security Deposit to Fifty Thousand Dollars ($50,000.00) if and only if (i)
Tenant's capital stock is then publicly-traded and (ii) Tenant has a net worth
(exclusive of good will) of at least Ten Million Dollars ($10,000,000.00) as
evidenced by current audited financial statements reasonably acceptable to
Landlord. Should the Security Deposit be so reduced and should Tenant fail
thereafter to maintain the foregoing minimum net worth, then Tenant shall, upon
written demand by Landlord, restore the Security Deposit to its original amount.
Landlord shall not be required to keep this Security Deposit separate from its
general funds, and Tenant shall not be entitled to interest on the Security
Deposit. If Tenant fully performs its obligations under this Lease, the Security
Deposit or any balance thereof shall be returned to Tenant or, at Landlord's
option, to the last assignee of Tenant's interest in this Lease.
ARTICLE V. USES
SECTION 5.1. USE. Tenant shall use the Premises only for the purposes
stated in Item 3 of the Basic Lease Provisions. The parties agree that any
contrary use shall be deemed to cause material and irreparable harm to Landlord
and shall entitle Landlord to injunctive relief in addition to any other
available remedy. Tenant shall not do or permit anything to be done in or about
the Premises which will in any way interfere with the rights or quiet enjoyment
of other occupants of the Building or the Project, or use or allow the Premises
to be used for any unlawful purpose, nor shall Tenant permit any nuisance or
commit any waste in the Premises or the Project. Tenant shall not do or permit
to be done anything which will invalidate or increase the cost of any insurance
policy(ies) covering the Building, the Project and/or their contents, and shall
comply with all applicable insurance underwriters rules and the requirements of
the Pacific Fire Rating Bureau or any other organization performing a similar
function. Tenant shall comply at its expense with all present and future laws,
ordinances and requirements of all governmental authorities that pertain to
Tenant or its use of the Premises, including without limitation all federal and
state occupational health and safety and handicap access requirements, whether
or not Tenant's compliance will necessitate expenditures or interfere with its
use and enjoyment of the Premises. Tenant shall not generate, handle, store or
dispose of hazardous or toxic materials (as such materials may be identified in
any federal, state or local law or regulation) in the Premises or Project
without the prior written consent of Landlord; provided that the foregoing shall
not be deemed to proscribe the use by Tenant of customary office supplies in
normal quantities so long as such use comports with all applicable laws. Tenant
agrees that it shall promptly complete and deliver to Landlord any disclosure
form regarding hazardous or toxic materials that may be required by any
governmental agency. Tenant shall also, from time to time upon request by
Landlord, execute such affidavits concerning Tenant's best knowledge and belief
regarding the presence of hazardous or toxic materials in the Premises. Landlord
shall have the right at any time to perform an assessment of the environmental
condition of the Premises and of Tenant's compliance with this Section. As part
of any such assessment, Landlord shall have the right, upon reasonable prior
notice to Tenant, to enter and inspect the Premises and to perform tests,
provided those tests are performed in a manner that minimizes disruption to
Tenant. Tenant will cooperate with Landlord in connection with any assessment
by, among other things, promptly responding to inquiries and providing relevant
documentation and records relating to hazardous or toxic materials at the
Premises. The reasonable cost of the assessment/testing shall be reimbursed by
Tenant to Landlord if such assessment/testing determines that Tenant failed to
comply with the requirements of this Section; otherwise, the same shall be at
Landlord's expense and not a Building Cost. In all events Tenant shall indemnify
Landlord in the manner elsewhere provided in this Lease from any release of
hazardous or toxic materials caused by Tenant, its agents, employees,
contractors, subtenants or licensees. The foregoing covenants shall survive the
expiration or earlier termination of this Lease.
SECTION 5.2. SIGNS.
(a) Tenant, upon obtaining the approval of Landlord in
writing, which approval shall not be withheld for signage conforming to the sign
criteria described below, may affix a sign (restricted solely to Tenant's name
as set forth herein or such other name as Landlord may consent to in writing)
adjacent to the entry door of the Premises and shall maintain the sign in good
condition and repair during the Term; provided that such signage may include
Tenant's logo if and for so long as the signage is installed on any floor
occupied in its entirety by Tenant. The sign shall conform to the criteria for
signs established by Landlord and shall be ordered through Landlord. Tenant
shall not place or allow to be placed any other sign, decoration or advertising
matter of any kind that is visible from the exterior of the
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Premises. Any violating sign or decoration may be immediately removed by
Landlord at Tenant's expense without notice and without the removal constituting
a breach of this Lease or entitling Tenant to claim damages.
(b) During the twelve (12) month period following the
execution of this Lease, Tenant shall have the right to install a building-top
sign on two (2) sides of the exterior of the Building. The type, location and
design of such signage shall be subject to the prior approval of Landlord and
the City of Irvine, and shall be subject to the 8001 Tower Sign Criteria.
Notwithstanding the foregoing, Landlord hereby approves of either of the two (2)
depictions of signage shown on Exhibit Y attached hereto, and agrees that each
of those signs conforms to the 8001 Tower Sign Criteria. Fabrication,
installation, insurance, and maintenance of such signage shall be at Tenant's
sole cost and expense. Except for the foregoing, no sign, advertisement or
notice visible from the exterior of the Premises shall be inscribed, painted or
affixed by Tenant on any part of the Premises without the prior consent of
Landlord. Tenant's signage right shall belong solely to and shall identify only
Quest Software, Inc., or any Tenant Affiliate thereof (unless Landlord in good
faith and reasonably determines that the name of such Tenant Affiliate is
inappropriate for display on a first class office building), and may not
otherwise be transferred or assigned without Landlord's prior written consent,
which may be withheld by Landlord in Landlord's sole discretion. In the event
Quest Software, Inc. and/or any Tenant Affiliate thereof fails to occupy a
substantial portion of the Premises, then Tenant shall, within thirty (30) days
following notice from Landlord, remove the exterior signage at Tenant's expense.
Tenant shall also remove such signage promptly following the expiration or
earlier termination of this Lease. Any such removal shall be at Tenant's sole
expense, and Tenant shall bear the cost of any resulting repairs to the Building
that are reasonably necessary due to the removal.
ARTICLE VI. LANDLORD SERVICES
SECTION 6.1. UTILITIES AND SERVICES. Landlord shall furnish to the
Premises the utilities and services described in Exhibit B, subject to the
conditions and payment obligations and standards set forth in this Lease.
Landlord shall not be liable for any failure to furnish any services or
utilities when the failure is the result of any accident or other cause beyond
Landlord's reasonable control, nor shall Landlord be liable for damages
resulting from power surges or any breakdown in telecommunications facilities or
services. Landlord's temporary inability to furnish any services or utilities
shall not entitle Tenant to any damages, relieve Tenant of the obligation to pay
rent or constitute a constructive or other eviction of Tenant, except that
Landlord shall diligently attempt to restore the service or utility promptly;
provided that if Landlord is unable to do so within five (5) business days and
such failure prevents Tenant's reasonable use of the Premises for its intended
purposes, rent shall be abated from and after the sixth (6th) business day until
the utility or service is restored. Tenant shall comply with all rules and
regulations which Landlord may reasonably establish for the provision of
services and utilities, and shall cooperate with all reasonable conservation
practices established by Landlord. Landlord shall at all reasonable times have
free access to all electrical and mechanical installations of Landlord.
SECTION 6.2. OPERATION AND MAINTENANCE OF COMMON AREAS. During the
Term, Landlord shall operate all Common Areas within the Building and the
Project. The term "Common Areas" shall mean all areas within the Building and
other buildings in the Project which are not held for exclusive use by persons
entitled to occupy space, and all other appurtenant areas and improvements
provided by Landlord for the common use of Landlord and tenants and their
respective employees and invitees, including without limitation parking areas
and structures, driveways, sidewalks, landscaped and planted areas, hallways and
interior stairwells not located within the premises of any tenant, common
entrances and lobbies, elevators, and restrooms not located within the premises
of any tenant. In the event Landlord is required to rectify any
currently-existing violations of the Americans with Disabilities Act within the
Common Areas, Landlord shall do so at its sole expense and the cost thereof
shall not be included in the Building Costs allocated to Tenant (including the
Building Cost Base).
SECTION 6.3. USE OF COMMON AREAS. The occupancy by Tenant of the
Premises shall include the use of the Common Areas in common with Landlord and
with all others for whose convenience and use the Common Areas may be provided
by Landlord, subject, however, to compliance with all nondiscriminatory rules
and regulations as are reasonably prescribed from time to time by Landlord.
Landlord shall at all times during the Term have exclusive control of the Common
Areas, and may restrain any use or occupancy, except as authorized by Landlord's
rules and regulations. Tenant shall keep the Common Areas clear of any
obstruction or unauthorized use related to Tenant's operations. Landlord may
temporarily close any portion of the Common Areas for repairs, remodeling and/or
alterations, to prevent a public dedication or the accrual of prescriptive
rights, or for any other reasonable purpose, so long as Tenant's access to and
use of the Premises is not impaired.
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SECTION 6.4. PARKING. Landlord hereby leases to Tenant, and Tenant
hereby agrees to lease from Landlord for the Term of this Lease, the number of
vehicle parking spaces set forth in Item 12 of the Basic Lease Provisions. It is
understood that twenty percent (20%) of the allotted unreserved parking spaces
may, at Landlord's election, be located outside the Parking Area of the Project
at a location reasonably designated by Landlord from time to time, which
location may include the parking area for the building at 0000 Xxxxxx Xxxxxx
Xxxxx; provided, however, that any such location shall be comparably paved,
striped, lighted and maintained and shall be no further from the Building than
the farthest boundary of the Parking Area. The costs associated with the
operation of any remote parking location shall only be included in Building
Costs to the extent such costs are actually incurred by Landlord and are
required to be allocated to parking provided to tenants of the Building. The
parking spaces shall be provided in accordance with the provisions set forth in
Exhibit C to this Lease.
SECTION 6.5. CHANGES AND ADDITIONS BY LANDLORD. Landlord reserves the
right to make alterations or additions to the Building or the Project, or to the
attendant fixtures, equipment and Common Areas. No change shall entitle Tenant
to any abatement of rent or other claim against Landlord, provided that the
change does not deprive Tenant of reasonable access to or use of the Premises.
ARTICLE VII. MAINTAINING THE PREMISES
SECTION 7.1. TENANT'S MAINTENANCE AND REPAIR. Tenant at its sole
expense shall make all repairs necessary to keep the Premises in the condition
as existed on the Commencement Date (or on any later date that the improvements
may have been installed), excepting ordinary wear and tear, damage and
destruction under Article XI, and Landlord's obligations under this Lease. All
repairs shall be at least equal in quality to the original work. Any third party
contractor utilized by Tenant shall be subject to Landlord's standard
requirements for contractors, as modified from time to time. Landlord may impose
reasonable restrictions and requirements with respect to repairs, as provided in
Section 7.3, and the provisions of Section 7.4 shall apply to all repairs.
Alternatively, Landlord may elect to make any such repair on behalf of Tenant
and at Tenant's expense, and Tenant shall promptly reimburse Landlord as
additional rent for all costs at market rates reasonably incurred upon
submission of an invoice.
SECTION 7.2. LANDLORD'S MAINTENANCE AND REPAIR.
(a) Subject to Section 7.1 and Article XI, Landlord shall
provide service, maintenance and repair with respect to any air conditioning,
ventilating or heating equipment which serves the Premises (exclusive of any
supplemental HVAC equipment installed by or at the request of Tenant), shall
comply with all laws affecting the systems, structure and Common Areas of the
Building and Project, shall maintain all services under Exhibit B, and shall
maintain in good repair the roof, foundations, footings, the exterior surfaces
of the exterior walls of the Building, and the structural, electrical, plumbing
(other than plumbing fixtures in the Premises), sewer, telecommunications
risers, and mechanical systems (including without limitation elevators)
servicing the Premises and the Building, except that Tenant at its expense shall
make all repairs which Landlord deems reasonably necessary as a result of the
act or negligence of Tenant, its agents, employees, invitees, subtenants or
contractors. Landlord shall have the right to employ or designate any reputable
person or firm, including any employee or agent of Landlord or any of Landlord's
affiliates or divisions, to perform any service, repair or maintenance function.
Landlord need not make any other improvements or repairs except as specifically
required under this Lease, and nothing contained in this Section shall limit
Landlord's right to reimbursement from Tenant for maintenance, repair costs and
replacement costs as provided elsewhere in this Lease. Tenant understands that
it shall not make repairs at Landlord's expense or by rental offset.
(b) Except as provided in Sections 11.1 and 12.1 below, there
shall be no abatement of rent and no liability of Landlord by reason of any
injury to or interference with Tenant's business arising from the making of any
repairs, alterations or improvements to any portion of the Building, including
repairs to the Premises, nor shall any related activity by Landlord constitute
an actual or constructive eviction; provided, however, that in making repairs,
alterations or improvements, Landlord shall interfere as little as reasonably
practicable with the conduct of Tenant's business in the Premises and shall
comply with Tenant's reasonable security procedures and requirements.
SECTION 7.3. ALTERATIONS. Tenant shall make no alterations, additions
or improvements to the Premises without the prior written consent of Landlord.
Landlord's consent shall not be unreasonably withheld as long as the proposed
changes do not adversely affect the structural, electrical or mechanical
components or systems of the Building and are not visible from the exterior of
the Premises. Landlord may impose, as a condition to its consent, any reasonable
requirements, including but not limited to (i) a requirement that any work
anticipated to cost in excess of $175,000.00 be covered by a lien and completion
bond satisfactory to Landlord and (ii) requirements as to the manner, time, and
contractor
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for performance of the work. Without limiting the generality of the foregoing,
Tenant shall use Landlord's designated mechanical and electrical contractors for
all work affecting the mechanical or electrical systems of the Building. Tenant
shall obtain all required permits for the work and shall perform the work in
compliance with all applicable laws, regulations and ordinances. Landlord shall
be entitled to a supervision fee in the amount of five percent (5%) of the cost
of the work if Landlord or its management agent for the Project is actively
involved in the supervision of the work. Under no circumstances shall Tenant
make any improvement which incorporates asbestos-containing construction
materials into the Premises. Any request for Landlord's consent shall be made in
writing and shall contain architectural plans describing the work in detail
reasonably satisfactory to Landlord. Unless Landlord otherwise agrees in
writing, all alterations, additions or improvements affixed to the Premises
(excluding moveable trade fixtures and furniture) shall become the property of
Landlord and shall be surrendered with the Premises at the end of the Term,
except that Landlord may, by notice to Tenant given at the time of Landlord's
consent to the alteration or improvement, require Tenant to remove by the
Expiration Date, or sooner termination date of this Lease, all or any
alterations, decorations, fixtures, additions, improvements and the like
installed either by Tenant or by Landlord at Tenant's request and to repair any
damage to the Premises arising from that removal. However, Tenant shall be
required to fund the cost of removing an improvement shown in the "Plan" (as
defined in Exhibit X hereto) only to the extent so specifically provided in
Exhibit X. Except as otherwise provided in this Lease or in any Exhibit to this
Lease, should Landlord make any alteration or improvement to the Premises at the
request of Tenant, Landlord shall be entitled to prompt reimbursement from
Tenant for all costs reasonably incurred.
SECTION 7.4. MECHANIC'S LIENS. Tenant shall keep the Premises free from
any liens arising out of any work performed, materials furnished, or obligations
incurred by or for Tenant. Upon request by Landlord, Tenant shall promptly cause
any such lien to be released by posting a bond in accordance with California
Civil Code Section 3143 or any successor statute. In the event that Tenant shall
not, within thirty (30) days following the imposition of any lien, cause the
lien to be released of record by payment or posting of a proper bond, Landlord
shall have, in addition to all other available remedies, the right to cause the
lien to be released by any means it deems proper, including payment of or
defense against the claim giving rise to the lien. All expenses so incurred by
Landlord, including Landlord's attorneys' fees, shall be reimbursed by Tenant
promptly following Landlord's demand, together with interest from the date of
payment by Landlord at the maximum rate permitted by law until paid. Tenant
shall give Landlord no less than twenty (20) days' prior notice in writing
before commencing construction of any kind on the Premises so that Landlord may
post and maintain notices of nonresponsibility on the Premises.
SECTION 7.5. ENTRY AND INSPECTION. Landlord shall at all reasonable
times, upon at least 24 hour prior written or oral notice (except in
emergencies) and subject to Tenant's reasonable security procedures and
requirements, have the right to enter the Premises to inspect them, to supply
services in accordance with this Lease, to protect the interests of Landlord in
the Premises, to make repairs and renovations as reasonably deemed necessary by
Landlord, and to submit the Premises to prospective or actual purchasers or
encumbrance holders (or, during the last one hundred and eighty (180) days of
the Term or when an uncured Tenant default exists, to prospective tenants), all
without being deemed to have caused an eviction of Tenant and without abatement
of rent except as provided elsewhere in this Lease. Landlord shall at all times
have and retain a key which unlocks all of the doors in the Premises, excluding
Tenant's vaults and safes, and Landlord shall have the right to use any and all
means which Landlord may deem proper to open the doors in an emergency in order
to obtain entry to the Premises, and any entry to the Premises obtained by
Landlord shall not under any circumstances be deemed to be a forcible or
unlawful entry into, or a detainer of, the Premises, or any eviction of Tenant
from the Premises. In exercising its rights under this Section, Landlord shall
use best efforts to minimize interference with Tenant's use of the Premises.
ARTICLE IX. ASSIGNMENT AND SUBLETTING
SECTION 9.1. RIGHTS OF PARTIES.
(a) Notwithstanding any provision of this Lease to the
contrary, Tenant will not, either voluntarily or by operation of law, assign,
sublet, encumber, or otherwise transfer all or any part of Tenant's interest in
this Lease, or permit the Premises to be occupied by anyone other than Tenant,
without Landlord's prior written consent, which consent shall not unreasonably
be withheld in accordance with the provisions of Section 9.1.(c). No assignment
(whether voluntary, involuntary or by operation of law) and no subletting shall
be valid or effective without Landlord's prior written consent and, at
Landlord's election, shall constitute a material default of this Lease. Landlord
shall not be deemed to have given its consent to any assignment or subletting by
any other course of action, including its acceptance of any name for listing in
the Building directory. To the extent not prohibited by provisions of the
Bankruptcy Code, 11 U.S.C. Section 101 et seq. (the "Bankruptcy Code"),
including Section 365(f)(1), Tenant on behalf of itself and its creditors,
administrators and assigns waives the applicability of Section 365(e) of the
Bankruptcy Code unless the proposed assignee of the Trustee for the estate of
the bankrupt meets Landlord's standard for consent as set forth in Section
9.1(c) of this Lease. If this Lease is assigned to any person or entity pursuant
to the provisions of the Bankruptcy Code, any and all monies or other
considerations to be delivered in connection with the assignment shall be
delivered to Landlord, shall be and remain the exclusive property of Landlord
and shall not constitute property of Tenant or of the estate of Tenant within
the meaning of the Bankruptcy Code. Any person or entity to which this Lease is
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assigned pursuant to the provisions of the Bankruptcy Code shall be deemed to
have assumed all of the obligations arising under this Lease on and after the
date of the assignment, and shall upon demand execute and deliver to Landlord an
instrument confirming that assumption.
(b) If Tenant is a corporation, or is an unincorporated
association or partnership, the transfer of any stock or interest in the
corporation, association or partnership which results in a change in the voting
control of Tenant shall be deemed an assignment within the meaning and
provisions of this Article; provided, however, that the foregoing shall not
apply to any stock transfer to a Tenant Affiliate or to any transfer of capital
stock in connection with a public offering of shares or the subsequent trading
of those shares by members of the public.
(c) If Tenant desires to transfer an interest in this Lease,
it shall first notify Landlord of its desire and shall submit in writing to
Landlord: (i) the name and address of the proposed transferee; (ii) the nature
of any proposed subtenant's or assignee's business to be carried on in the
Premises; (iii) the terms and provisions of any proposed sublease or assignment;
and (iv) any other information requested by Landlord and reasonably related to
the transfer. Except as provided in Subsection (d) of this Section, Landlord
shall not unreasonably withhold its consent, provided: (1) the use of the
Premises will be consistent with the provisions of this Lease; (2) fifty percent
(50%) of any excess rent received by the Tenant from the assignment or
subletting, whether during or after the Term of this Lease, shall be paid to
Landlord when received; (3) any proposed assignee (but not subtenant)
demonstrates that it is financially responsible by submission to Landlord of all
reasonable information as Landlord may request concerning the proposed assignee,
including, but not limited to, a balance sheet of the proposed assignee as of a
date within ninety (90) days of the request for Landlord's consent and
statements of income or profit and loss of the proposed assignee for the
two-year period preceding the request for Landlord's consent; (4) the proposed
assignee or subtenant is neither an existing tenant of the Building or Project
nor a prospective tenant with whom Landlord is then actively negotiating; and
(5) the proposed transfer will not impose additional burdens or adverse tax
effects on Landlord. If Landlord consents to the proposed transfer, Tenant may
within ninety (90) days after the date of the consent effect the transfer upon
the terms described in the information furnished to Landlord; provided that any
material change in the terms shall be subject to Landlord's consent as set forth
in this Section. Landlord shall approve or disapprove any requested transfer
within thirty (30) days following receipt of Tenant's written request and the
information set forth above. Tenant shall pay to Landlord a transfer fee of Five
Hundred Dollars ($500.00) if and when any transfer requested by Tenant is
approved.
(d) Notwithstanding the provisions of Subsection (c) above, in
lieu of consenting to a proposed assignment of this Lease or subletting of at
least 10,000 rentable square feet of the Premises for substantially all of the
remaining Term of this Lease, Landlord may elect to (i) sublease the Premises
(or the portion proposed to be subleased), or take an assignment of Tenant's
interest in this Lease, upon the same terms as offered to the proposed subtenant
or assignee (excluding terms relating to the purchase of personal property, the
use of Tenant's name or the continuation of Tenant's business), or (ii)
terminate this Lease as to the portion of the Premises proposed to be subleased
or assigned with a proportionate abatement in the rent payable under this Lease,
effective on the date that the proposed sublease or assignment would have become
effective. Landlord may thereafter, at its option, assign or re-let any space so
recaptured to any third party, including without limitation the proposed
transferee of Tenant. Notwithstanding the foregoing, this Subsection 9.1(d)
shall not apply to any proposed assignment or sublease to either a Tenant
Affiliate or an entity with which Tenant has a substantial ongoing business
relationship (collectively, "Related Entity").
(e) Notwithstanding the foregoing, provided Tenant is not then
in default hereunder, Tenant may, without Landlord's consent but with prior
written notice to Landlord, assign this Lease or sublet all or any portion of
the Premises to (i) any entity resulting from a merger or reorganization of
Tenant, (ii) any entity succeeding to the business and assets of Tenant, or
(iii) any entity controlling, controlled by, or under common control with,
Tenant (collectively, a "Tenant Affiliate").
SECTION 9.2. EFFECT OF TRANSFER. No subletting or assignment, even with
the consent of Landlord, shall relieve Tenant, or any successor-in-interest to
Tenant hereunder, of its obligation to pay rent and to perform all its other
obligations under this Lease. Moreover, Tenant shall indemnify and hold Landlord
harmless, as provided in Section 10.3, for any act or omission by an assignee or
subtenant. Each assignee shall be deemed to assume all obligations of Tenant
under this Lease and shall be liable jointly and severally with Tenant for the
payment of all rent, and for the due performance of all of Tenant's obligations,
under this Lease. Such joint and several liability shall not be discharged or
impaired by any subsequent modification or extension of this Lease. Except for a
transfer to a Tenant Affiliate, no transfer shall be binding on Landlord unless
any document memorializing the transfer is delivered to Landlord and both the
assignee/subtenant and Tenant deliver to Landlord an executed consent to
transfer instrument prepared by Landlord and consistent with the requirements of
this Article. The acceptance by Landlord of any payment due under this Lease
from any other person shall not be deemed to be a waiver by Landlord of any
provision of this Lease or to be a consent to any transfer. Consent by Landlord
to one or more transfers shall not operate as a waiver or estoppel to the future
enforcement by Landlord of its rights under this Lease. In addition to the
foregoing, no change in the status of Tenant or any party jointly and severally
liable with Tenant as aforesaid (e.g., by conversion to a limited liability
company or partnership) shall serve to abrogate the liability of any person or
entity for the obligations of Tenant, including any obligations that may be
incurred by Tenant after the status change by exercise of a pre-existing right
in this Lease.
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SECTION 9.3. SUBLEASE REQUIREMENTS. The following terms and conditions
shall apply to any subletting by Tenant of all or any part of the Premises and
shall be included in each sublease:
(a) Tenant hereby irrevocably assigns to Landlord all of
Tenant's interest in all rentals and income arising from any sublease of the
Premises, and Landlord may collect such rent and income and apply same toward
Tenant's obligations under this Lease; provided, however, that until a default
occurs in the performance of Tenant's obligations under this Lease, Tenant shall
have the right to receive and collect the sublease rentals. Landlord shall not,
by reason of this assignment or the collection of sublease rentals, be deemed
liable to the subtenant for the performance of any of Tenant's obligations under
the sublease. Tenant hereby irrevocably authorizes and directs any subtenant,
upon receipt of a written notice from Landlord stating that an uncured default
exists in the performance of Tenant's obligations under this Lease, to pay to
Landlord all sums then and thereafter due under the sublease. Tenant agrees that
the subtenant may rely on that notice without any duty of further inquiry and
notwithstanding any notice or claim by Tenant to the contrary. Tenant shall have
no right or claim against the subtenant or Landlord for any rentals so paid to
Landlord. In the event Landlord collects amounts from subtenants that exceed the
total amount then due from Tenant hereunder, Landlord shall promptly remit the
excess to Tenant.
(b) In the event of the termination of this Lease, Landlord
may, at its sole option, take over Tenant's entire interest in any sublease and,
upon notice from Landlord, the subtenant shall attorn to Landlord. In no event,
however, shall Landlord be liable for any previous act or omission by Tenant
under the sublease or for the return of any advance rental payments or deposits
under the sublease that have not been actually delivered to Landlord, nor shall
Landlord be bound by any sublease modification executed without Landlord's
consent or for any advance rental payment by the subtenant in excess of one
month's rent. The general provisions of this Lease, including without limitation
those pertaining to insurance and indemnification, shall be deemed incorporated
by reference into the sublease despite the termination of this Lease.
(c) Tenant agrees that Landlord may, at its sole option,
authorize a subtenant of the Premises to cure a default by Tenant under this
Lease.
ARTICLE X. INSURANCE AND INDEMNITY
SECTION 10.1. TENANT'S INSURANCE. Tenant, at its sole cost and expense,
shall provide and maintain in effect the insurance described in Exhibit D.
Evidence of that insurance must be delivered to Landlord prior to the
Commencement Date.
SECTION 10.2. LANDLORD'S INSURANCE. Landlord shall provide all of the
following types of insurance, with or without deductible and in amounts and
coverages as may be determined by Landlord in its discretion: "all risk"
property insurance for at least eighty percent (80%) of the replacement cost of
the Building, subject to standard exclusions, covering the Building and Project,
and such other risks as Landlord or its mortgagees may from time to time deem
appropriate, and commercial general liability coverage in limits of not less
than $1,000,000.00 per occurrence and $5,000,000.00 in the aggregate. Landlord
shall not be required to carry insurance of any kind on Tenant's leasehold
improvements, trade fixtures, furnishings, equipment, interior plate glass,
signs and all other items of personal property, and shall not be obligated to
repair or replace that property should damage occur. All proceeds of insurance
maintained by Landlord upon the Building and Project shall be the property of
Landlord, whether or not Landlord is obligated to or elects to make any repairs.
SECTION 10.3. TENANT'S INDEMNITY. To the fullest extent permitted by
law, Tenant shall defend, indemnify and hold harmless Landlord, its agents,
lenders, and any and all affiliates of Landlord, from and against any and all
claims, liabilities, costs or expenses arising either before or after the
Commencement Date from Tenant's use or occupancy of the Premises, the Building
or the Common Areas, or from the conduct of its business, or from any activity,
work, or thing done, permitted or suffered by Tenant or its agents, employees,
subtenants, invitees or licensees in or about the Premises, the Building or the
Common Areas (except to the extent contributed to by the gross negligence or
willful misconduct of Landlord, its agents or employees), or from any default in
the performance of any obligation on Tenant's part to be performed under this
Lease, or from any act or negligence of Tenant or its agents, employees,
subtenants, invitees or licensees. Landlord may, at its option, require Tenant
to assume Landlord's defense in any action covered by this Section through
counsel reasonably satisfactory to Landlord.
SECTION 10.4. LANDLORD'S NONLIABILITY. Landlord shall not be liable to
Tenant, its employees, agents and invitees, and Tenant hereby waives all claims
against Landlord, its employees and agents for loss of or damage to any
property, or any injury to any person, or loss or interruption of business or
income, resulting from any condition including, but not limited to, fire,
explosion, falling plaster, steam, gas, electricity, water or rain which may
leak or flow from or into any part of the Premises or from the breakage,
leakage, obstruction or other defects of the pipes, sprinklers, wires,
appliances, plumbing, air conditioning, electrical works or other fixtures in
the Building, whether the damage or injury results from conditions arising in
the Premises or in other portions of the Building. It is understood that any
such condition may require the temporary evacuation or closure of all or a
portion of the Building. Should
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Tenant elect to receive any service from a concessionaire, licensee or third
party tenant of Landlord, Tenant shall not seek recourse against Landlord for
any breach or liability of that service provider. Neither Landlord nor its
agents shall be liable for interference with light or other similar intangible
interests. Tenant shall promptly following discovery by senior management notify
Landlord in case of fire or accident in the Premises, the Building or the
Project and of defects in any improvements or equipment.
ARTICLE XI. DAMAGE OR DESTRUCTION
SECTION 11.1. RESTORATION.
(a) If the Building of which the Premises are a part is
damaged as the result of an event of casualty, Landlord shall repair that damage
as soon as reasonably possible unless: (i) Landlord reasonably determines that
the cost of repair would exceed ten percent (10%) of the full replacement cost
of the Building ("Replacement Cost") and the damage is not covered by Landlord's
fire and extended coverage insurance (or by a normal extended coverage policy
for full Replacement Cost should Landlord fail to carry that insurance); or (ii)
Landlord reasonably determines that the cost of repair would exceed twenty-five
percent (25%) of the Replacement Cost; or (iii) Landlord reasonably determines
that the cost of repair would exceed ten percent (10%) of the Replacement Cost
and the damage occurs during the final twelve (12) months of the Term, as the
Term may have been extended. Should Landlord elect not to repair the damage for
one of the preceding reasons, Landlord shall so notify Tenant in the "Casualty
Notice" (as defined below), and this Lease shall terminate thereafter on the
earlier of (i) sixty (60) days following the date of delivery of the Casualty
Notice or (ii) the date Tenant vacates the Premises.
(b) As soon as reasonably practicable following the casualty
event but not later than sixty (60) days thereafter, Landlord shall notify
Tenant in writing ("Casualty Notice") of Landlord's election, if applicable, to
terminate this Lease. If this Lease is not so terminated, the Casualty Notice
shall set forth the anticipated period for repairing the casualty damage. If the
anticipated repair period exceeds one hundred eighty (180) days and if the
damage is so extensive as to reasonably prevent Tenant's substantial use and
enjoyment of the Premises, then Tenant may elect to terminate this Lease by
written notice to Landlord within ten (10) days following delivery of the
Casualty Notice.
(c) From and after the sixth business day following the
casualty event, the rental to be paid under this Lease shall be abated in the
same proportion that the floor area of the Premises that is rendered unusable by
the damage from time to time bears to the total floor area of the Premises.
(d) The provisions of this Section shall not be deemed to
require Landlord to repair any improvements or fixtures that Tenant is obligated
to repair or insure pursuant to any other provision of this Lease.
SECTION 11.2. LEASE GOVERNS. Tenant agrees that the provisions of this
Lease, including without limitation Section 11.1, shall govern any damage or
destruction and shall accordingly supersede any contrary statute or rule of law.
ARTICLE XII. EMINENT DOMAIN
SECTION 12.1. TOTAL OR PARTIAL TAKING. If all or a material portion of
the Premises is taken by any lawful authority by exercise of the right of
eminent domain, or sold to prevent a taking, either Tenant or Landlord may
terminate this Lease effective as of the date possession is required to be
surrendered to the authority. In the event title to a portion of the Building or
Project, other than the Premises, is taken or sold in lieu of taking, and if
Landlord elects to restore the Building in such a way as to alter the Premises
materially, either party may terminate this Lease, by written notice to the
other party, effective on the date of vesting of title. In the event neither
party has elected to terminate this Lease as provided above, then Landlord shall
promptly, after receipt of a sufficient condemnation award, proceed to restore
the Premises to substantially their condition prior to the taking, and a
proportionate allowance shall be made to Tenant for the rent corresponding to
the time during which, and to the part of the Premises of which, Tenant is
deprived on account of the taking and restoration. In the event of a taking,
Landlord shall be entitled to the entire amount of the condemnation award
without deduction for any estate or interest of Tenant; provided that nothing in
this Section shall be deemed to give Landlord any interest in, or prevent Tenant
from seeking any award against the taking authority for, the taking of personal
property and fixtures belonging to Tenant or for relocation or business
interruption expenses or loss of goodwill recoverable from the taking authority.
SECTION 12.2. TEMPORARY TAKING. No temporary taking of the Premises
shall terminate this Lease or give Tenant any right to abatement of rent, and
any award specifically attributable to a temporary taking of the Premises shall
belong entirely to Tenant. A temporary taking shall be deemed to be a taking of
the use or occupancy of the Premises for a period of not to exceed ninety (90)
days.
SECTION 12.3. TAKING OF PARKING AREA. In the event there shall be a
taking of the parking area such that Landlord can no longer provide sufficient
parking to comply with this Lease, Landlord may substitute reasonably equivalent
parking in a location reasonably close to the Building;
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provided that if Landlord fails to make that substitution within thirty (30)
days following the taking and if the taking materially impairs Tenant's use and
enjoyment of the Premises, Tenant may, at its option, terminate this Lease by
written notice to Landlord. If this Lease is not so terminated by Tenant, there
shall be no abatement of rent and this Lease shall continue in effect.
ARTICLE XIII. SUBORDINATION; ESTOPPEL CERTIFICATE
SECTION 13.1. SUBORDINATION. At the option of Landlord or any of its
mortgagees/deed of trust beneficiaries, this Lease shall be either superior or
subordinate to all ground or underlying leases, mortgages and deeds of trust, if
any, which may hereafter affect the Building, and to all renewals,
modifications, consolidations, replacements and extensions thereof; provided,
that so long as Tenant is not in default under this Lease, this Lease shall not
be terminated or Tenant's quiet enjoyment of the Premises disturbed in the event
of termination of any such ground or underlying lease, or the foreclosure of any
such mortgage or deed of trust, to which Tenant has subordinated this Lease
pursuant to this Section. In the event of a termination or foreclosure, Tenant
shall become a tenant of and attorn to the successor-in-interest to Landlord
upon the same terms and conditions as are contained in this Lease, and shall
promptly execute any instrument reasonably required by Landlord's successor for
that purpose. Tenant shall also, within thirty (30) days following written
request of Landlord (or the beneficiary under any deed of trust encumbering the
Building), execute and deliver all instruments as may be required from time to
time by Landlord or such beneficiary (including without limitation any
subordination, nondisturbance and attornment agreement in the form customarily
required by such beneficiary, provided such form is consistent with the
provisions of this Lease and is reasonably approved by Tenant) to subordinate
this Lease and the rights of Tenant under this Lease to any ground or underlying
lease or to the lien of any mortgage or deed of trust; provided, however, that
any such beneficiary may, by written notice to Tenant given at any time,
subordinate the lien of its deed of trust to this Lease. Failure of Tenant to
execute any commercially reasonable statements or instruments necessary or
desirable to effectuate the provisions of this Article, within thirty (30) days
after written request by Landlord, shall constitute a default under this Lease.
In that event, Landlord, in addition to any other rights or remedies it might
have, shall have the right, by written notice to Tenant, to terminate this Lease
as of a date not less than twenty (20) days after the date of Landlord's notice
unless Tenant executes and return the document to Landlord prior to such date.
Landlord's election to terminate shall not relieve Tenant of any liability for
its default. Tenant acknowledges that Landlord's mortgagees and
successors-in-interest and all beneficiaries under deeds of trust encumbering
the Building are intended third party beneficiaries of this Section. Landlord
agrees that it shall use its best efforts to obtain a commercially reasonable
nondisturbance agreement in favor of Tenant from any existing mortgagee/deed of
trust beneficiary of the Building as of the date hereof.
SECTION 13.2. ESTOPPEL CERTIFICATE.
(a) Tenant shall, at any time upon not less than thirty (30)
days prior written notice from Landlord, execute, acknowledge and deliver to
Landlord, in any form that Landlord may reasonably require, a statement in
writing in favor of any prospective purchaser or encumbrancer of the Building
(i) certifying that this Lease is unmodified and in full force and effect (or,
if modified, stating the nature of the modification and certifying that this
Lease, as modified, is in full force and effect) and the dates to which the
rental, additional rent and other charges have been paid in advance, if any, and
(ii) acknowledging that, to Tenant's knowledge, there are no uncured defaults on
the part of Landlord, or specifying each default if any are claimed, and (iii)
setting forth all further information that Landlord may reasonably require.
Tenant's statement may be relied upon by any prospective purchaser or
encumbrancer of all or any portion of the Building or Project. Tenant's failure
to deliver any estoppel statement within the provided time shall constitute a
default under this Lease and shall be conclusive upon Tenant that (i) this Lease
is in full force and effect, without modification except as may be represented
by Landlord, (ii) there are no uncured defaults in Landlord's performance, and
(iii) not more than one month's rental has been paid in advance.
(b) Landlord shall, at any time upon not less than thirty (30)
days prior written notice from Tenant, execute, acknowledge and deliver to
Tenant, in any form that Tenant may reasonably require, a statement in writing
in favor of any other party reasonably requested by Tenant for legitimate
business reasons (i) certifying that this Lease is unmodified and in full force
and effect (or, if modified, stating the nature of the modification and
certifying that this Lease, as modified, is in full force and effect), the
amount of any security deposit then held by Landlord, and the dates to which the
rental, additional rent and other charges have been paid in advance, if any, and
(ii) acknowledging that, to Landlord's knowledge, there are no uncured defaults
on the part of Tenant, or specifying each default if they are claimed, and (iii)
setting forth all further information that Tenant may reasonably require.
Landlord's statement may be relied upon by the third party beneficiary to which
the statement is addressed. Landlord's failure to deliver any estoppel statement
within the provided time shall constitute a default by Landlord under this Lease
and shall be conclusive upon Landlord that (i) this Lease is in full force and
effect, without modification except as may be represented by Tenant, (ii) there
are no uncured defaults in Tenant's performance, (iii) the amount of any
security deposit as set forth in the Lease is then being held by Landlord, and
(iv) not more than one month's rental has been paid in advance.
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ARTICLE XIV. DEFAULTS AND REMEDIES
SECTION 14.1. TENANT'S DEFAULTS. In addition to any other event of
default set forth in this Lease, the occurrence of any one or more of the
following events shall constitute a default by Tenant:
(a) The failure by Tenant to make any payment of rent or
additional rent required to be made by Tenant, as and when due, where the
failure continues for a period of three (3) days after written notice from
Landlord to Tenant; provided, however, that any such notice shall be in lieu of,
and not in addition to, any notice required under California Code of Civil
Procedure Section 1161 and 1161(a) as amended. For purposes of these default and
remedies provisions, the term "additional rent" shall be deemed to include all
amounts of any type whatsoever other than Basic Rent to be paid by Tenant
pursuant to the terms of this Lease.
(b) Assignment, sublease, encumbrance or other transfer of the
Lease by Tenant, either voluntarily or by operation of law, whether by judgment,
execution, transfer by intestacy or testacy, or other means, without the prior
written consent of Landlord.
(c) The discovery by Landlord that any financial statement
provided by Tenant, or by any affiliate, successor or guarantor of Tenant, was
materially false.
(d) The failure or inability by Tenant to observe or perform
any of the covenants or provisions of this Lease to be observed or performed by
Tenant, other than as specified in any other subsection of this Section, where
the failure continues for a period of thirty (30) days after written notice from
Landlord to Tenant; provided, however, that any such notice shall be in lieu of,
and not in addition to, any notice required under California Code of Civil
Procedure Section 1161 and 1161(a) as amended. However, if the nature of the
failure is such that more than thirty (30) days are reasonably required for its
cure, then Tenant shall not be deemed to be in default if Tenant commences the
cure within thirty (30) days, and thereafter diligently pursues the cure to
completion.
(e) (i) The making by Tenant of any general assignment for the
benefit of creditors; (ii) the filing by or against Tenant of a petition to have
Tenant adjudged a Chapter 7 debtor under the Bankruptcy Code or to have debts
discharged 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 sixty (60) days); (iii) 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, if possession is
not restored to Tenant within thirty (30) days; (iv) 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 the seizure is not
discharged within thirty (30) days; or (v) Tenant's convening of a meeting of
its creditors for the purpose of effecting a moratorium upon or composition of
its debts. Landlord shall not be deemed to have knowledge of any event described
in this subsection unless notification in writing is received by Landlord, nor
shall there be any presumption attributable to Landlord of Tenant's insolvency.
In the event that any provision of this subsection is contrary to applicable
law, the provision shall be of no force or effect.
SECTION 14.2. LANDLORD'S REMEDIES.
(a) In the event of any default by Tenant, then in addition to
any other remedies available to Landlord, Landlord may exercise the following
remedies:
(i) Landlord may terminate Tenant's right to
possession of the Premises by any lawful means, in which case this Lease shall
terminate and Tenant shall immediately surrender possession of the Premises to
Landlord. Such termination shall not affect any accrued obligations of Tenant
under this Lease. Upon termination, Landlord shall have the right to reenter the
Premises and remove all persons and property. Landlord shall also be entitled to
recover from Tenant:
(1) The worth at the time of award of the
unpaid rent and additional rent which had been earned at the time of
termination;
(2) The worth at the time of award of the
amount by which the unpaid rent and additional rent which would have been earned
after termination until the time of award exceeds the amount of such loss that
Tenant proves could have been reasonably avoided;
(3) The worth at the time of award of the
amount by which the unpaid rent and additional rent for the balance of the Term
after the time of award exceeds the amount of such loss that Tenant proves could
be reasonably avoided;
(4) 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 would
be likely to result from Tenant's default, including, but not limited to, the
cost of recovering possession of the Premises, commissions and other expenses of
reletting, including necessary repair, renovation, improvement and alteration of
the Premises for a new tenant, reasonable attorneys' fees, and any other
reasonable costs; and
(5) At Landlord's election, all other
amounts in addition to or in lieu of the foregoing as may be permitted by law.
The term "rent" as used in this Lease shall be deemed to mean the Basic Rent and
all other sums required to be paid by Tenant to Landlord pursuant to the terms
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of this Lease. Any sum, other than Basic Rent, shall be computed on the basis of
the average monthly amount accruing during the twenty-four (24) month period
immediately prior to default, except that if it becomes necessary to compute
such rental before the twenty-four (24) month period has occurred, then the
computation shall be on the basis of the average monthly amount during the
shorter period. As used in subparagraphs (1) and (2) above, the "worth at the
time of award" shall be computed by allowing interest at the rate of ten percent
(10%) per annum. As used in subparagraph (3) above, the "worth at the time of
award" shall be computed by discounting the amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of award plus one percent
(1%).
(ii) Landlord may elect not to terminate
Tenant's right to possession of the Premises, in which event Landlord may
continue to enforce all of its rights and remedies under this Lease, including
the right to collect all rent as it becomes due. Efforts by the Landlord to
maintain, preserve or relet the Premises, or the appointment of a receiver to
protect the Landlord's interests under this Lease, shall not constitute a
termination of the Tenant's right to possession of the Premises. In the event
that Landlord elects to avail itself of the remedy provided by this subsection
(ii), Landlord shall not unreasonably withhold its consent to an assignment or
subletting of the Premises subject to the reasonable standards for Landlord's
consent as are contained in this Lease.
(b) The various rights and remedies reserved to Landlord in
this Lease or otherwise shall be cumulative and, except as otherwise provided by
California law, Landlord may pursue any or all of its rights and remedies at the
same time. No delay or omission of Landlord to exercise any right or remedy
shall be construed as a waiver of the right or remedy or of any default by
Tenant. The acceptance by Landlord of rent shall not be a (i) waiver of any
preceding breach or default by Tenant of any provision of this Lease, other than
the failure of Tenant to pay the particular rent accepted, regardless of
Landlord's knowledge of the preceding breach or default at the time of
acceptance of rent, or (ii) a waiver of Landlord's right to exercise any remedy
available to Landlord by virtue of the breach or default. The acceptance of any
payment from a debtor in possession, a trustee, a receiver or any other person
acting on behalf of Tenant or Tenant's estate shall not waive or cure a default
under Section 14.1. No payment by Tenant or receipt by Landlord of a lesser
amount than the rent required by this Lease shall be deemed to be other than a
partial payment on account of the earliest due stipulated rent, nor shall any
endorsement or statement on any check or letter be deemed an accord and
satisfaction and Landlord shall accept the check or payment without prejudice to
Landlord's right to recover the balance of the rent or pursue any other remedy
available to it. Tenant hereby waives any right of redemption or relief from
forfeiture under California Code of Civil Procedure Section 1174 or 1179, or
under any other present or future law, in the event this Lease is terminated by
reason of any default by Tenant. No act or thing done by Landlord or Landlord's
agents during the Term shall be deemed an acceptance of a surrender of the
Premises, and no agreement to accept a surrender shall be valid unless in
writing and signed by Landlord. No employee of Landlord or of Landlord's agents
shall have any power to accept the keys to the Premises prior to the termination
of this Lease, and the delivery of the keys to any employee shall not operate as
a termination of the Lease or a surrender of the Premises.
SECTION 14.3. LATE PAYMENTS.
(a) Any rent due under this Lease that is not paid to Landlord
within five (5) days of the date when due shall bear interest at the maximum
rate permitted by law from the date due until fully paid. The payment of
interest shall not cure any default by Tenant under this Lease. In addition,
Tenant acknowledges that the late payment by Tenant to Landlord of rent will
cause Landlord to incur costs not contemplated by this Lease, the exact amount
of which will be extremely difficult and impracticable to ascertain. Those costs
may include, but are not limited to, administrative, processing and accounting
charges, and late charges which may be imposed on Landlord by the terms of any
ground lease, mortgage or trust deed covering the Premises. Accordingly, if any
rent due from Tenant shall not be received by Landlord or Landlord's designee
within five (5) days after the date due, then Tenant shall pay to Landlord, in
addition to the interest provided above, a late charge in the amount of one
hundred dollars ($100.00) for each delinquent payment. Acceptance of a late
charge by Landlord shall not constitute a waiver of Tenant's default with
respect to the overdue amount, nor shall it prevent Landlord from exercising any
of its other rights and remedies.
(b) Following each third consecutive installment of rent that
is not paid within five (5) days following notice of nonpayment from Landlord,
Landlord shall have the option to require that beginning with the first payment
of rent next due, rent shall no longer be paid in monthly installments but shall
be payable quarterly three (3) months in advance. Should Tenant deliver to
Landlord, at any time during the Term, two (2) or more insufficient checks, the
Landlord may require that all monies then and thereafter due from Tenant be paid
to Landlord by cashier's check.
SECTION 14.4. RIGHT OF LANDLORD TO PERFORM. All covenants and
agreements to be performed by Tenant under this Lease shall be performed at
Tenant's sole cost and expense and without any abatement of rent or right of
set-off. If Tenant fails to pay any sum of money, or fails to perform any other
act on its part to be performed under this Lease, and the failure continues
beyond any applicable grace period set forth in Section 14.1, then in addition
to any other available remedies, Landlord may, at its election make the payment
or perform the other act on Tenant's part. Landlord's election to make the
payment or perform the act on Tenant's part shall not give rise to any
responsibility of Landlord to continue making the same or similar payments or
performing the same or similar acts. Tenant shall, promptly upon demand by
Landlord, reimburse Landlord for all sums paid by Landlord and all necessary
incidental costs,
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together with interest at the maximum rate permitted by law from the date of the
payment by Landlord.
SECTION 14.5. DEFAULT BY LANDLORD. Landlord shall not be deemed to be
in default in the performance of any obligation under this Lease unless and
until it has failed to perform the obligation within thirty (30) days after
written notice by Tenant to Landlord specifying in reasonable detail the nature
and extent of the failure; provided, however, that if the nature of Landlord's
obligation is such that more than thirty (30) days are required for its
performance, then Landlord shall not be deemed to be in default if it commences
performance within the thirty (30) day period and thereafter diligently pursues
the cure to completion.
SECTION 14.6. EXPENSES AND LEGAL FEES. Should either Landlord or Tenant
bring any action in connection with this Lease, the prevailing party shall be
entitled to recover as a part of the action its reasonable attorneys' fees, and
all other costs. The prevailing party for the purpose of this paragraph shall be
determined by the trier of the facts.
SECTION 14.7. WAIVER OF JURY TRIAL/RIGHT TO ARBITRATE.
(A) LANDLORD AND TENANT EACH ACKNOWLEDGES THAT IT IS AWARE OF
AND HAS HAD THE ADVICE OF COUNSEL OF ITS CHOICE WITH RESPECT TO ITS RIGHT TO
TRIAL BY JURY, AND EACH PARTY DOES HEREBY EXPRESSLY AND KNOWINGLY WAIVE AND
RELEASE ALL SUCH RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER (AND/OR AGAINST
ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUBSIDIARY OR AFFILIATED
ENTITIES) ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH
THIS LEASE, TENANT'S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM OF
INJURY OR DAMAGE.
(B) SHOULD A DISPUTE ARISE BETWEEN THE PARTIES REGARDING ANY
MATTER DESCRIBED ABOVE, THEN EXCEPT WITH RESPECT TO ACTIONS FOR UNLAWFUL OR
FORCIBLE DETAINER EITHER PARTY MAY CAUSE THE DISPUTE TO BE SUBMITTED TO
JAMS/ENDISPUTE OR ITS SUCCESSOR ("JAMS") IN THE COUNTY IN WHICH THE BUILDING IS
SITUATED FOR BINDING ARBITRATION BEFORE A SINGLE ARBITRATOR. HOWEVER, EACH PARTY
RESERVES THE RIGHT TO SEEK A PROVISIONAL REMEDY BY JUDICIAL ACTION. NO
ARBITRATION ELECTION BY EITHER PARTY PURSUANT TO THIS SUBSECTION SHALL BE
EFFECTIVE IF MADE LATER THAN THIRTY (30) DAYS FOLLOWING SERVICE OF A JUDICIAL
SUMMONS AND COMPLAINT BY OR UPON SUCH PARTY CONCERNING THE DISPUTE. THE
ARBITRATION SHALL BE CONDUCTED IN ACCORDANCE WITH THE RULES OF PRACTICE AND
PROCEDURE OF JAMS AND OTHERWISE PURSUANT TO THE CALIFORNIA ARBITRATION ACT (CODE
OF CIVIL PROCEDURE SECTIONS 1280 ET SEQ.). NOTWITHSTANDING THE FOREGOING, THE
ARBITRATOR IS SPECIFICALLY DIRECTED TO LIMIT DISCOVERY TO THAT WHICH IS
ESSENTIAL TO THE EFFECTIVE PROSECUTION OR DEFENSE OF THE ACTION. THE ARBITRATOR
SHALL APPORTION THE COSTS OF THE ARBITRATION, TOGETHER WITH THE ATTORNEYS' FEES
OF THE PARTIES, IN THE MANNER DEEMED EQUITABLE BY THE ARBITRATOR, IT BEING THE
INTENTION OF THE PARTIES THAT THE PREVAILING PARTY ORDINARILY BE ENTITLED TO
RECOVER ITS REASONABLE COSTS AND FEES. JUDGMENT UPON ANY AWARD RENDERED BY THE
ARBITRATOR MAY BE ENTERED BY ANY COURT HAVING JURISDICTION.
ARTICLE XV. END OF TERM
SECTION 15.1. HOLDING OVER. This Lease shall terminate without further
notice upon the expiration of the Term, and any holding over by Tenant after the
expiration shall not constitute a renewal or extension of this Lease, or give
Tenant any rights under this Lease, except when in writing signed by both
parties. If Tenant holds over for any period after the expiration (or earlier
termination) of the Term, Landlord may, at its option, treat Tenant as a tenant
at sufferance only, commencing on the first (1st) day following the termination
of this Lease. Any hold-over by Tenant shall be subject to all of the terms of
this Lease, except that the monthly rental shall be one hundred fifty percent
(150%) of the total monthly rental for the month immediately preceding the date
of termination, subject to Landlord's right to modify same upon thirty (30) days
notice to Tenant. If Tenant fails to surrender the Premises upon the expiration
of this Lease despite demand to do so by Landlord, Tenant shall indemnify and
hold Landlord harmless from all loss or liability, including without limitation,
any claims made by any succeeding tenant that has a signed lease for all or a
portion of the Premises relating to such failure to surrender. Acceptance by
Landlord of rent after the termination shall not constitute a consent to a
holdover or result in a renewal of this Lease. The foregoing provisions of this
Section are in addition to and do not affect Landlord's right of re-entry or any
other rights of Landlord under this Lease or at law.
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SECTION 15.2. MERGER ON TERMINATION. The voluntary or other surrender
of this Lease by Tenant, or a mutual termination of this Lease, shall terminate
any or all existing subleases unless Landlord, at its option, elects in writing
to treat the surrender or termination as an assignment to it of any or all
subleases affecting the Premises.
SECTION 15.3. SURRENDER OF PREMISES; REMOVAL OF PROPERTY. Upon the
Expiration Date or upon any earlier termination of this Lease, Tenant shall quit
and surrender possession of the Premises to Landlord in as good order, condition
and repair as when received or as hereafter may be improved by Landlord or
Tenant, reasonable wear and tear and repairs which are Landlord's obligation
excepted, and shall, without expense to Landlord, remove or cause to be removed
all wallpapering installed by Tenant except in connection with the initial
tenant improvement work, together with all personal property and debris, except
for any items that Landlord may by written authorization allow to remain. Tenant
shall repair all damage to the Premises resulting from the removal, which repair
shall include the patching and filling of holes and repair of structural damage,
provided that Landlord may instead elect to repair any structural damage at
Tenant's expense. If Tenant shall fail to comply with the provisions of this
Section, Landlord may effect the removal and/or make any repairs, and the cost
to Landlord shall be additional rent payable by Tenant upon demand. If requested
by Landlord, Tenant shall execute, acknowledge and deliver to Landlord an
instrument in writing releasing and quitclaiming to Landlord all right, title
and interest of Tenant in the Premises.
ARTICLE XVI. PAYMENTS AND NOTICES
All sums payable by Tenant to Landlord shall be paid, without deduction
or offset, in lawful money of the United States to Landlord at its address set
forth in Item 13 of the Basic Lease Provisions, or at any other place as
Landlord may designate in writing. Unless this Lease expressly provides
otherwise, as for example in the payment of rent pursuant to Section 4.1, all
payments shall be due and payable within five (5) days after demand. All
payments requiring proration shall be prorated on the basis of a thirty (30) day
month and a three hundred sixty (360) day year. Any notice, election, demand,
consent, approval or other communication to be given or other document to be
delivered by either party to the other may be delivered to the other party, at
the address set forth in Item 13 of the Basic Lease Provisions, by personal
service or telegram, telecopier, or electronic facsimile transmission, or by any
courier or "overnight" express mailing service, or may be deposited in the
United States mail, postage prepaid. Either party may, by written notice to the
other, served in the manner provided in this Article, designate a different
address. If any notice or other document is sent by mail, it shall be deemed
served or delivered three (3) business days after mailing or, if sooner, upon
actual receipt. If more than one person or entity is named as Tenant under this
Lease, service of any notice upon any one of them shall be deemed as service
upon all of them.
ARTICLE XVII. RULES AND REGULATIONS
Tenant agrees to comply with the Rules and Regulations attached as
Exhibit E, and any reasonable and nondiscriminatory amendments, modifications
and/or additions as may be adopted and published by written notice to tenants by
Landlord for the safety, care, security, good order, or cleanliness of the
Premises, Building, Project and/or Common Areas. Landlord shall not be liable to
Tenant for any violation of the Rules and Regulations or the breach of any
covenant or condition in any lease or any other act or conduct by any other
tenant, and the same shall not constitute a constructive eviction hereunder. One
or more waivers by Landlord of any breach of the Rules and Regulations by Tenant
or by any other tenant(s) shall not be a waiver of any subsequent breach of that
rule or any other. Tenant's failure to keep and observe the Rules and
Regulations and to cure such failure as provided in Section 14.1(d) above shall
constitute a default under this Lease. In the case of any conflict between the
Rules and Regulations and this Lease, this Lease shall be controlling.
ARTICLE XVIII. BROKER'S COMMISSION
The parties recognize as the broker(s) who negotiated this Lease the
firm(s), if any, whose name(s) is (are) stated in Item 10 of the Basic Lease
Provisions, and agree that Landlord shall be responsible for the payment of
brokerage commissions to those broker(s) unless otherwise provided in this
Lease. Each party warrants that it has had no dealings with any other real
estate broker or agent in connection with the negotiation of this Lease, and
agrees to indemnify and hold the other party harmless from any cost, expense or
liability (including reasonable attorneys' fees) for any compensation,
commissions or charges claimed by any other real estate broker or agent employed
or claiming to represent or to have been employed by the indemnifying party in
connection with the negotiation of this Lease. The foregoing agreement shall
survive the termination of this Lease.
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ARTICLE XIX. TRANSFER OF LANDLORD'S INTEREST
In the event of any transfer of Landlord's interest in the Premises,
the transferor shall be automatically relieved of all obligations on the part of
Landlord accruing under this Lease from and after the date of the transfer,
provided that any funds held by the transferor in which Tenant has an interest
shall be turned over, subject to that interest, to the transferee and Tenant is
notified of the transfer as required by law. No holder of a mortgage and/or deed
of trust to which this Lease is or may be subordinate shall be responsible in
connection with the Security Deposit, unless the mortgagee or holder of the deed
of trust or the landlord actually receives the Security Deposit. It is intended
that the covenants and obligations contained in this Lease on the part of
Landlord shall, subject to the foregoing, be binding on Landlord, its successors
and assigns, only during and in respect to their respective successive periods
of ownership.
ARTICLE XX. INTERPRETATION
SECTION 20.1. GENDER AND NUMBER. Whenever the context of this Lease
requires, the words "Landlord" and "Tenant" shall include the plural as well as
the singular, and words used in neuter, masculine or feminine genders shall
include the others.
SECTION 20.2. HEADINGS. The captions and headings of the articles and
sections of this Lease are for convenience only, are not a part of this Lease
and shall have no effect upon its construction or interpretation.
SECTION 20.3. JOINT AND SEVERAL LIABILITY. If more than one person or
entity is named as Tenant, the obligations imposed upon each shall be joint and
several and the act of or notice from, or notice or refund to, or the signature
of, any one or more of them shall be binding on all of them with respect to the
tenancy of this Lease, including, but not limited to, any renewal, extension,
termination or modification of this Lease.
SECTION 20.4. SUCCESSORS. Subject to Articles IX and XIX, all rights
and liabilities given to or imposed upon Landlord and Tenant shall extend to and
bind their respective heirs, executors, administrators, successors and assigns.
Nothing contained in this Section is intended, or shall be construed, to grant
to any person other than Landlord and Tenant and their successors and assigns
any rights or remedies under this Lease.
SECTION 20.5. TIME OF ESSENCE. Time is of the essence with respect to
the performance of every provision of this Lease in which time of performance is
a factor.
SECTION 20.6. CONTROLLING LAW. This Lease shall be governed by and
interpreted in accordance with the laws of the State of California.
SECTION 20.7. SEVERABILITY. If any term or provision of this Lease, the
deletion of which would not adversely affect the receipt of any material benefit
by either party or the deletion of which is consented to by the party adversely
affected, shall be held invalid or unenforceable to any extent, the remainder of
this Lease shall not be affected and each term and provision of this Lease shall
be valid and enforceable to the fullest extent permitted by law.
SECTION 20.8. WAIVER. One or more waivers by Landlord or Tenant of any
breach of any term, covenant or condition contained in this Lease shall not be a
waiver of any subsequent breach of the same or any other term, covenant or
condition. Consent to any act by one of the parties shall not be deemed to
render unnecessary the obtaining of that party's consent to any subsequent act.
No breach of this Lease shall be deemed to have been waived unless the waiver is
in a writing signed by the waiving party.
SECTION 20.9. INABILITY TO PERFORM. In the event that either party
shall be delayed or hindered in or prevented from the performance of any work or
in performing any act required under this Lease by reason of any cause beyond
the reasonable control of that party, then the performance of the work or the
doing of the act shall be excused for the period of the delay and the time for
performance shall be extended for a period equivalent to the period of the
delay. The provisions of this Section shall not operate to excuse Tenant from
the prompt payment of rent.
SECTION 20.10. ENTIRE AGREEMENT. This Lease and its exhibits and other
attachments cover in full each and every agreement of every kind between the
parties concerning the Premises, the Building, and the Project, and all
preliminary negotiations, oral agreements, understandings and/or practices,
except those contained in this Lease, are superseded and of no further effect.
Tenant waives its rights to rely on any representations or promises made by
Landlord or others which are not contained in this Lease. No verbal agreement or
implied covenant shall be held to modify the provisions of this Lease, any
statute, law, or custom to the contrary notwithstanding.
SECTION 20.11. QUIET ENJOYMENT. Upon the observance and performance of
all the covenants, terms and conditions on Tenant's part to be observed and
performed, and subject to the other provisions of this Lease, Tenant shall
peaceably and quietly hold and enjoy the Premises for the Term without hindrance
or interruption by Landlord or any other person claiming by or through Landlord.
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SECTION 20.12. SURVIVAL. All covenants of Landlord or Tenant which
reasonably would be intended to survive the expiration or sooner termination of
this Lease, including without limitation any warranty or indemnity hereunder,
shall so survive and continue to be binding upon and inure to the benefit of the
respective parties and their successors and assigns.
ARTICLE XXI. EXECUTION AND RECORDING
SECTION 21.1. 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.
SECTION 21.2. CORPORATE AND PARTNERSHIP AUTHORITY. If either party is a
corporation or partnership, each individual executing this Lease on behalf of
the corporation or partnership represents and warrants that he is duly
authorized to execute and deliver this Lease on behalf of the corporation or
partnership, and that this Lease is binding upon the corporation or partnership
in accordance with its terms.
SECTION 21.3. EXECUTION OF LEASE; NO OPTION OR OFFER. The submission of
this Lease to Tenant shall be for examination purposes only, and shall not
constitute an offer to or option for Tenant to lease the Premises. Execution of
this Lease by Tenant and its return to Landlord shall not be binding upon
Landlord, notwithstanding any time interval, until Landlord has in fact executed
and delivered this Lease to Tenant, it being intended that this Lease shall only
become effective upon execution by Landlord and delivery of a fully executed
counterpart to Tenant.
SECTION 21.4. RECORDING. Tenant shall not record this Lease without the
prior written consent of Landlord. Tenant, upon the request of Landlord, shall
execute and acknowledge a "short form" memorandum of this Lease for recording
purposes.
SECTION 21.5. AMENDMENTS. No amendment or mutual termination of this
Lease shall be effective unless in writing signed by authorized signatories of
Tenant and Landlord, or by their respective successors in interest. No actions,
policies, oral or informal arrangements, business dealings or other course of
conduct by or between the parties shall be deemed to modify this Lease in any
respect.
ARTICLE XXII. MISCELLANEOUS
SECTION 22.1. 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 and attorneys, shall not intentionally and
voluntarily disclose the terms and conditions of this Lease to any other tenant
or apparent prospective tenant of the Building or Project, 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, its lenders, accountants and other consultants, and in connection
with any securities filing, sale, merger or similar transaction.
SECTION 22.2. REPRESENTATIONS BY TENANT. The application, financial
statements and tax returns, if any, submitted and certified to by Tenant as an
accurate representation of its financial condition have been prepared, certified
and submitted to Landlord as an inducement and consideration to Landlord to
enter into this Lease. The application and statements are represented and
warranted by Tenant to be correct and to accurately and fully reflect Tenant's
true financial condition as of the date of execution of this Lease by Tenant.
Tenant shall during the Term promptly furnish Landlord with annual financial
statements reflecting Tenant's financial condition upon written request from
Landlord.
SECTION 22.3. CHANGES REQUESTED BY LENDER. If, in connection with
obtaining financing for the Building, the lender shall request reasonable
modifications in this Lease as a condition to the financing, Tenant will not
unreasonably withhold or delay its consent, provided that the modifications do
not increase the obligations of Tenant, diminish the rights of Tenant, or
adversely affect the leasehold interest created by this Lease.
SECTION 22.4. MORTGAGEE PROTECTION. No act or failure to act on the
part of Landlord which would otherwise entitle Tenant to be relieved of its
obligations hereunder or to terminate this Lease shall result in such a release
or termination unless (a) Tenant has given notice by registered or certified
mail to any beneficiary of a deed of trust or mortgage covering the Building
whose address has been furnished to Tenant and (b) such beneficiary is afforded
the opportunity to cure the default by Landlord for a period of thirty (30) days
following the later of (i) the expiration of Landlord's cure period under
Section 14.5 above or (ii) the delivery to the beneficiary of Tenant's notice.
SECTION 22.5. DISCLOSURE STATEMENT. Tenant acknowledges that it has
read, understands and, if applicable, shall comply with the provisions of
Exhibit F to this Lease, if that Exhibit is attached.
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SECTION 22.6. TERMINATION OF EXISTING LEASE. Landlord and Tenant are
currently parties to an office space lease dated January 11, 1991, as
subsequently amended, for certain premises situated at 000 Xxxxxxx Xxxxxx Xxxxx,
Xxxxxxx Xxxxx, Xxxxxxxxxx (as amended, the "Existing Lease"). The parties agree
that the Existing Lease shall terminate effective as of the day preceding the
Commencement Date of this Lease, provided that such termination shall not
relieve Tenant of (a) any accrued obligation or liability under the Existing
Lease as of said termination date, or (b) any obligation under the Existing
Lease which was reasonably intended to survive the expiration or termination
thereof. Any advance rental paid by Tenant under the Existing Lease shall be
rebated by Landlord or applied to the rent due hereunder. In the event that the
Premises are not ready for occupancy by Tenant as of the Estimated Commencement
Date set forth herein, and provided such failure is not attributable to any
Tenant Delay, then any Basic Rental increase under the Existing Lease that is
scheduled to occur on or after the Estimated Commencement Date hereof shall be
suspended.
LANDLORD: TENANT:
THE IRVINE COMPANY QUEST SOFTWARE, INC.
By /s/ XXXXXXX X. XXXXXXX By /s/ XXXXXXX X. XXXXX
--------------------------------- -----------------------------------
Xxxxxxx X. Xxxxxxx, President, Printed Name Xxxxxxx X. Xxxxx
Irvine Office Company, -------------------------
a division of The Irvine Company Title CEO
--------------------------------
By /s/ XXXXXXX X. XXXXX By /s/ XXXXX XXXXX
--------------------------------- -----------------------------------
Xxxxxxx X. Xxxxx Printed Name Xxxxx Xxxxx
Assistant Secretary -------------------------
Title President
--------------------------------
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EXHIBIT B
UTILITIES AND SERVICES
The following standards for utilities and services shall be in effect
at the Building. Landlord reserves the right to adopt nondiscriminatory
modifications and additions to these standards which are reasonable and do not
materially adversely affect Tenant's rights under the Lease. In the case of any
conflict between these standards and the Lease, the Lease shall be controlling.
Subject to all of the provisions of the Lease, including but not limited to the
restrictions contained in Section 6.1, the following shall apply:
1. Landlord shall furnish to the Premises during the hours of 8:00
a.m. to 6:00 p.m., Monday through Friday, and 8:00 a.m. to 1:00 p.m. on
Saturday, generally recognized national holidays and Sundays excepted,
reasonable air conditioning, heating and ventilation services. Subject to the
provisions set forth below, Landlord shall also furnish the Building with
elevator service (if applicable), reasonable amounts of electric current for
normal lighting by Landlord's standard overhead fluorescent and incandescent
fixtures and for fractional horsepower office machines, and water for lavatory
and drinking purposes. Tenant will not, without the prior written consent of
Landlord, consume electricity in the Premises at a level in excess of 3 xxxxx
per square foot or otherwise increase the amount of electricity, gas or water
usually furnished or supplied for use of the Premises as general office space;
nor shall Tenant connect any apparatus, machine or device with water pipes or
electric current (except through existing electrical outlets in the Premises)
for the purpose of using electric current or water. This paragraph shall at all
times be subject to applicable governmental regulations.
2. Upon request from Tenant a reasonable period of time prior to the
period for which service is requested, but during normal business hours,
Landlord will provide any of the foregoing building services to Tenant at such
times when such services are not otherwise available. Landlord may install
systems within the Building that permit Tenant to directly access after hour
services. Tenant agrees to pay Landlord for those afterhour services at rates
that Landlord may establish from time to time. If Tenant requires electric
current in excess of that which Landlord is obligated to furnish under this
Exhibit B, Tenant shall first obtain the consent of Landlord, and Landlord may
cause an electric current meter to be installed in the Premises to measure the
amount of electric current consumed. The cost of installation, maintenance and
repair of the meter shall be paid for by Tenant, and Tenant shall reimburse
Landlord promptly upon demand for all electric current consumed for any special
power use as shown by the meter. The reimbursement shall be at the rates charged
for electrical power by the local public utility furnishing the current, plus
any additional expense incurred in keeping account of the electric current
consumed.
3. If any lights, machines or equipment (including without limitation
electronic data processing machines) are used by Tenant in the Premises which
materially affect the temperature otherwise maintained by the air conditioning
system, or generate substantially more heat in the Premises than would be
generated by the building standard lights and usual fractional horsepower office
equipment, Landlord shall have the right at its election to install or modify
any machinery and equipment to the extent Landlord reasonably deems necessary to
restore temperature balance. The cost of installation, and any additional cost
of operation and maintenance, shall be paid by Tenant to Landlord promptly upon
demand.
4. Landlord shall furnish water for drinking, personal hygiene and
lavatory purposes only. If Tenant requires or uses water for any purposes in
addition to ordinary drinking, cleaning and lavatory purposes, Landlord may, in
its discretion, install a water meter to measure Tenant's water consumption.
Tenant shall pay Landlord for the cost of the meter and the cost of its
installation, and for consumption throughout the duration of Tenant's occupancy.
Tenant shall keep the meter and installed equipment in good working order and
repair at Tenant's own cost and expense, in default of which Landlord may cause
the meter to be replaced or repaired at Tenant's expense. Tenant agrees to pay
for water consumed, as shown on the meter and when bills are rendered, and on
Tenant's default in making that payment Landlord may pay the charges on behalf
of Tenant. Any costs or expenses or payments made by Landlord for any of the
reasons or purposes stated above shall be deemed to be additional rent payable
by Tenant to Landlord upon demand.
5. In the event that any utility service to the Premises is
separately metered or billed to Tenant, Tenant shall pay all charges for that
utility service to the Premises and the cost of furnishing the utility to tenant
suites shall be excluded from the Operating Expenses as to which reimbursement
from Tenant is required in the Lease. If any utility charges are not paid when
due Landlord may pay them, and any amounts paid by Landlord shall immediately
become due to Landlord from Tenant as additional rent. If Landlord elects to
furnish any utility service to the Premises, Tenant shall purchase its
requirements of that utility from Landlord as long as the rates charged by
Landlord do not exceed those which Tenant would be required to pay if the
utility service were furnished it directly by a public utility.
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6. Landlord shall provide janitorial services five days per week,
equivalent to that furnished in comparable buildings, and window washing as
reasonably required; provided, however, that Tenant shall pay for any additional
or unusual janitorial services required by reason of any nonstandard
improvements in the Premises, including without limitation wall coverings and
floor coverings installed by or for Tenant, or by reason of any use of Premises
other than exclusively as offices. The cleaning services provided by Landlord
shall also exclude refrigerators, eating utensils (plates, drinking containers
and silverware), and interior glass partitions. Tenant shall pay to Landlord the
cost of removal of any of Tenant's refuse and rubbish, to the extent that they
exceed the refuse and rubbish usually attendant with general office usage.
7. Tenant shall have access to the Building 24 hours per day, 7 days
per week, 52 weeks per year; provided that Landlord may install access control
systems as it deems advisable for the Building. Such systems may, but need not,
include full or part-time lobby supervision, the use of a sign-in sign-out log,
a card identification access system, building parking and access pass system,
closing hours procedures, access control stations, fire stairwell exit door
alarm system, electronic guard system, mobile paging system, elevator control
system or any other access controls. In the event that Landlord elects to
provide any or all of those services, Landlord may discontinue providing them at
any time with or without notice. Landlord may impose a reasonable charge for
access control cards and/or keys issued to Tenant; provided that Landlord agrees
to furnish, at its expense, the same number of initial access control devices as
Tenant is currently utilizing under the Existing Lease, whether by reprogramming
those existing devices or supplying new devices. Landlord shall have no
liability to Tenant for the provision by Landlord of improper access control
services, for any breakdown in service, or for the failure by Landlord to
provide access control services. Tenant further acknowledges that Landlord's
access systems may be temporarily inoperative during building emergency and
system repair periods. Tenant agrees to assume responsibility for compliance by
its employees with any regulations established by Landlord with respect to any
card key access or any other system of building access as Landlord may
establish. Tenant shall be liable to Landlord for any loss or damage resulting
from its or its employees use of any access system.
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EXHIBIT C
PARKING
The following parking regulations shall be in effect at the Building.
Landlord reserves the right to adopt reasonable, nondiscriminatory modifications
and additions to the regulations by written notice to Tenant. In the case of any
conflict between these regulations and the Lease, the Lease shall be
controlling.
1. Landlord agrees to maintain, or cause to be maintained, an
automobile parking area ("Parking Area") in reasonable proximity to the Building
for the benefit and use of the visitors and patrons and, except as otherwise
provided, employees of Tenant, and other tenants and occupants of the Building.
The Parking Area shall include, whether in a surface parking area or a parking
structure, the automobile parking stalls, driveways, entrances, exits, sidewalks
and attendant pedestrian passageways and other areas designated for parking.
Landlord shall have the right and privilege of determining the nature and extent
of the automobile Parking Area, whether it shall be surface, underground or
other structure, and of making such changes to the Parking Area from time to
time which in its opinion are desirable and for the best interests of all
persons using the Parking Area. Landlord shall keep the Parking Area in a neat,
clean and orderly condition, and shall repair any damage to its facilities.
Landlord shall not be liable for any damage to motor vehicles of visitors or
employees, for any loss of property from within those motor vehicles, or for any
injury to Tenant, its visitors or employees, unless ultimately determined to be
caused by the active negligence or willful misconduct of Landlord. Unless
otherwise instructed by Landlord, every xxxxxx shall park and lock his or her
own motor vehicle. Landlord shall also have the right to establish, and from
time to time amend, and to enforce against all users of the Parking Area all
reasonable rules and regulations (including the designation of areas for
employee parking) as Landlord may deem necessary and advisable for the proper
and efficient operation and maintenance of the Parking Area. Garage managers or
attendants are not authorized to make or allow any exceptions to these
regulations.
2. Landlord may, if it deems advisable in its sole discretion, charge
for parking and may establish for the Parking Area a system or systems of permit
parking for Tenant, its employees and its visitors, which may include, but not
be limited to, a system of charges against nonvalidated parking, verification of
users, a set of regulations governing different parking locations, and an
allotment of reserved or nonreserved parking spaces based upon the charges paid
and the identity of users. In no event shall Tenant or its employees park in
reserved stalls leased to other tenants or in stalls within designated visitor
parking zones, nor shall Tenant or its employees utilize more than the number of
parking stalls allotted in this Lease to Tenant. It is understood that Landlord
shall not have any obligation to cite improperly parked vehicles or otherwise
attempt to enforce reserved parking rules during hours when parking attendants
are not present at the Parking Area. Tenant shall comply with such system in its
use (and in the use of its visitors, patrons and employees) of the Parking Area,
provided, however, that the system and rules and regulations shall apply to all
persons entitled to the use of the Parking Area, and all charges to Tenant for
use of the Parking Area shall be no greater than Landlord's then current
scheduled charge for parking. The foregoing shall otherwise be subject to
Paragraphs 7 and 10 below.
3. Tenant shall, upon request of Landlord from time to time, furnish
Landlord with a list of its employees' names and of Tenant's and its employees'
vehicle license numbers. Tenant agrees to acquaint its employees with these
regulations and assumes responsibility for compliance by its employees with
these parking provisions, and shall be liable to Landlord for all unpaid parking
charges incurred by its employees. Any amount due from Tenant shall be deemed
additional rent. Tenant authorizes Landlord to tow away from the Building any
vehicle belonging to Tenant or Tenant's employees parked in violation of these
provisions, and/or to attach violation stickers or notices to those vehicles. In
the event Landlord elects or is required to limit or control parking by tenants,
employees, visitors or invitees of the Building, whether by validation of
parking tickets, parking meters or any other method of assessment, Tenant agrees
to participate in the validation or assessment program under reasonable rules
and regulations as are established by Landlord and/or any applicable
governmental agency.
4. Landlord may establish an identification system for vehicles of
Tenant and its employees which may consist of stickers, magnetic parking cards
or other identification devices supplied by Landlord. All identification devices
shall remain the property of Landlord, shall be displayed as required by
Landlord or upon request and may not be mutilated or obliterated in any manner.
Those devices shall not be transferable and any such device in the possession of
an unauthorized holder shall be void and may be confiscated. Landlord may impose
a reasonable fee for identification devices and a replacement charge for devices
which are lost or stolen; provided that Landlord agrees to furnish, at its
expense, the same number of initial identification devices as Tenant is
currently utilizing under the Existing Lease, whether by reprogramming those
existing devices or supplying new devices. Each identification device shall be
returned to Landlord promptly following the Expiration Date or sooner
termination of this Lease. Loss or theft of parking identification devices shall
be reported to Landlord or its Parking Area operator immediately and a written
report of the loss filed if requested by Landlord or its Parking Area operator.
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5. Persons using the Parking Area shall observe all directional signs
and arrows and any posted speed limits. Unless otherwise posted, in no event
shall the speed limit of 5 miles per hour be exceeded. All vehicles shall be
parked entirely within painted stalls, and no vehicles shall be parked in areas
which are posted or marked as "no parking" or on or in ramps, driveways and
aisles. Only one vehicle may be parked in a parking space. In no event shall
Tenant interfere with the use and enjoyment of the Parking Area by other tenants
of the Building or their employees or invitees.
6. Parking Areas shall be used only for parking vehicles. Washing,
waxing, cleaning or servicing of vehicles, or the parking of any vehicle on an
overnight basis (except in connection with occasional business trips), in the
Parking Area (other than emergency services) by any xxxxxx or his or her agents
or employees is prohibited unless otherwise authorized by Landlord. Tenant shall
have no right to install any fixtures, equipment or personal property (other
than vehicles) in the Parking Area, nor shall Tenant make any alteration to the
Parking Area.
7. It is understood that the employees of Tenant and the other
tenants of Landlord within the Building and Project shall not be permitted to
park their automobiles in the portions of the Parking Area which may from time
to time be designated for patrons of the Building and/or Project and that
Landlord shall at all times have the right to establish rules and regulations
for employee parking. Notwithstanding the foregoing, but subject to Paragraph 10
below, the monthly stall charge for the reserved and unreserved stalls allotted
herein to Tenant within the Parking Area or one of the off-site lots described
in Section 6.4 of the Lease shall be Seventy-Five Dollars ($75.00) per stall and
Fifteen Dollars ($15.00) per reserved and unreserved stall, respectively, during
the initial Term of this Lease; thereafter, Tenant shall pay to Landlord or its
agents for the use of parking spaces the amounts as Landlord shall from time to
time determine. Landlord may authorize persons other than those described above,
including occupants of other buildings, to utilize the Parking Area. In the
event of the use of the Parking Area by other persons, those persons shall pay
for that use in accordance with the terms established above; provided, however,
Landlord may allow those persons to use the Parking Area on weekends, holidays,
and at other non-office hours without payment.
8. Notwithstanding the foregoing paragraphs 1 through 7, Landlord
shall be entitled to pass on to Tenant its proportionate share of any charges or
parking surcharge or transportation management costs levied by any governmental
agency. The foregoing parking provisions are further subject to any governmental
regulations which limit parking or otherwise seek to encourage the use of
carpools, public transit or other alternative transportation forms or traffic
reduction programs. Tenant agrees that it will use reasonable efforts to
cooperate, including registration and attendance, in programs which may be
undertaken to reduce traffic. Tenant acknowledges that as a part of those
programs, it may be required to distribute employee transportation information,
participate in employee transportation surveys, allow employees to participate
in commuter activities, designate a liaison for commuter transportation
activities, distribute commuter information to all employees, and otherwise
participate in other programs or services initiated under a transportation
management program.
9. Should any parking spaces be allotted by Landlord to Tenant,
either on a reserved or nonreserved basis, Tenant shall not assign or sublet any
of those spaces, either voluntarily or by operation of law, without the prior
written consent of Landlord, except in connection with an authorized or
permitted assignment of this Lease or subletting of the Premises.
10. Tenant acknowledges that it has been advised that Landlord may
undertake the construction of a parking structure in the Parking Area of the
Building and that such construction shall result in temporarily relocating
Tenant's allotted parking spaces to another surface parking area reasonably
close to the Building. During the period of such temporary relocation, Landlord
shall waive all monthly stall charges under Paragraphs 2 and 7 hereof with
respect to the stalls so relocated. Tenant further acknowledges that should
Landlord complete construction of the parking structure, Tenant's allotted
parking stalls shall be permanently relocated to said structure and the stall
charges payable by Tenant pursuant to Paragraph 7 above shall be adjusted to
Sixty-Five Dollars ($65.00) per unreserved stall per month and One Hundred
Twenty Dollars ($120.00) per reserved stall per month during the initial
seventy-four (74) month Lease Term, thereafter, the stall charges shall be
Landlord's asking rates for covered parking from time to time.
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EXHIBIT D
TENANT'S INSURANCE
The following standards for Tenant's insurance shall be in effect at
the Building. Landlord reserves the right to adopt reasonable nondiscriminatory
modifications and additions to those standards. Tenant agrees to obtain and
present evidence to Landlord that it has fully complied with the insurance
requirements.
1. Tenant shall, at its sole cost and expense, commencing on the date
Tenant is given access to the Premises for any purpose and during the entire
Term, procure, pay for and keep in full force and effect: (i) commercial general
liability insurance with respect to the Premises and the operations of or on
behalf of Tenant in, on or about the Premises, including but not limited to
personal injury, nonowned automobile, blanket contractual, independent
contractors, broad form property damage, fire legal liability, products
liability (if a product is sold from the Premises), liquor law liability (if
alcoholic beverages are sold, served or consumed within the Premises), and cross
liability and severability of interest clauses, which policy(ies) shall be
written on an "occurrence" basis and for not less than $2,000,000 combined
single limit (with a $50,000 minimum limit on fire legal liability) per
occurrence for bodily injury, death, and property damage liability, or the
current limit of liability carried by Tenant, whichever is greater, and subject
to such increases in amounts as Landlord may determine from time to time; (ii)
workers' compensation insurance coverage as required by law, together with
employers' liability insurance coverage; (iii) with respect to improvements,
alterations, and the like required or permitted to be made by Tenant under this
Lease, builder's all-risk insurance, in amounts satisfactory to Landlord; (iv)
insurance against fire, vandalism, malicious mischief and such other additional
perils as may be included in a standard "all risk" form, insuring the leasehold
improvements, trade fixtures, furnishings, equipment and items of personal
property in the Premises, in an amount equal to not less than ninety percent
(90%) of their actual replacement cost (with replacement cost endorsement),
which policy shall also include loss of income/business interruption/extra
expense coverage in an amount not less than nine months loss of income from
Tenant's business in the Premises. In no event shall the limits of any policy be
considered as limiting the liability of Tenant under this Lease.
2. All policies of insurance required to be carried by Tenant
pursuant to this Exhibit shall be written by responsible insurance companies
authorized to do business in the State of California and with a general
policyholder rating of not less than "A" and financial rating of not less than
"X" in the most current Best's Insurance Report. Any insurance required of
Tenant may be furnished by Tenant under any blanket policy carried by it or
under a separate policy. A certificate of insurance, certifying that the policy
has been issued, provides the coverage required by this Exhibit and contains the
required provisions, together with endorsements acceptable to Landlord
evidencing the waiver of subrogation and additional insured provisions required
under Paragraph 3 below, shall be delivered to Landlord prior to the date Tenant
is given the right of possession of the Premises. Proper evidence of the renewal
of any insurance coverage shall also be delivered to Landlord not less than
thirty (30) days prior to the expiration of the coverage. Landlord may at any
time, and from time to time, inspect and/or copy any and all insurance policies
required by this Lease.
3. Unless otherwise provided below, each policy evidencing insurance
required to be carried by Tenant pursuant to this Exhibit shall contain the
following provisions and/or clauses satisfactory to Landlord: (i) with respect
to Tenant's commercial general liability insurance, a provision that the policy
and the coverage provided shall be primary and that any coverage carried by
Landlord shall be excess and noncontributory, together with a provision
including Landlord and any other parties in interest designated by Landlord as
additional insureds; (ii) a waiver by the insurer of any right to subrogation
against Landlord, its agents, employees, contractors and representatives which
arises or might arise by reason of any payment under the policy or by reason of
any act or omission of Landlord, its agents, employees, contractors or
representatives; and (iii) a provision that the insurer will not cancel or
change the coverage provided by the policy without first giving Landlord thirty
(30) days prior written notice.
4. In the event that Tenant fails to procure, maintain and/or pay
for, at the times and for the durations specified in this Exhibit, any insurance
required by this Exhibit, or fails to carry insurance required by any
governmental authority, Landlord may at its election procure that insurance and
pay the premiums, in which event Tenant shall repay Landlord all sums paid by
Landlord, together with interest at the maximum rate permitted by law and any
related costs or expenses incurred by Landlord, within ten (10) days following
Landlord's written demand to Tenant.
NOTICE TO TENANT: IN ACCORDANCE WITH THE TERMS OF THIS LEASE, TENANT MUST
PROVIDE EVIDENCE OF THE REQUIRED INSURANCE TO LANDLORD'S MANAGEMENT AGENT PRIOR
TO OCCUPANCY OF THE PREMISES.
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EXHIBIT E
RULES AND REGULATIONS
The following Rules and Regulations shall be in effect at the
Building. Landlord reserves the right to adopt reasonable nondiscriminatory
modifications and additions at any time. In the case of any conflict between
these regulations and the Lease, the Lease shall be controlling.
1. Except with the prior written consent of Landlord, Tenant shall
not sell, or permit the retail sale of, newspapers, magazines, periodicals, or
theater tickets, in or from the Premises, nor shall Tenant carry on, or permit
or allow any employee or other person to carry on, the business of stenography,
typewriting or any similar business in or from the Premises for the service or
accommodation of occupants of any other portion of the Building. Tenant shall
not allow the Premises to be utilized for any manufacturing of any kind, or the
business of a public xxxxxx shop, beauty parlor, or a manicuring and chiropodist
business, or any business other than that specifically provided for in the
Lease.
2. The sidewalks, halls, passages, elevators, stairways, and other
common areas shall not be obstructed by Tenant or used by it for storage or for
any purpose other than for ingress to and egress from the Premises. The halls,
passages, entrances, elevators, stairways, balconies and roof are not for the
use of the general public, and Landlord shall in all cases retain the right to
control and prevent access to those areas of all persons whose presence, in the
judgment of Landlord, shall be prejudicial to the safety, character, reputation
and interests of the Building and its tenants. Nothing contained in this Lease
shall be construed to prevent access to persons with whom Tenant normally deals
only for the purpose of conducting its business on the Premises (such as
clients, customers, office suppliers and equipment vendors and the like) unless
those persons are engaged in illegal activities. Neither Tenant nor any employee
or contractor of Tenant shall go upon the roof of the Building without the prior
written consent of Landlord.
3. The sashes, sash doors, windows, glass lights, solar film and/or
screen, and any lights or skylights that reflect or admit light into the halls
or other places of the Building shall not be covered or obstructed. The toilet
rooms, water and wash closets and other water apparatus shall not be used for
any purpose other than that for which they were constructed, and no foreign
substance of any kind shall be thrown in those facilities, and the expense of
any breakage, stoppage or damage resulting from the violation of this rule shall
be borne by Tenant.
4. No sign, advertisement or notice visible from the exterior of the
Premises shall be inscribed, painted or affixed by Tenant on any part of the
Building or the Premises without the prior written consent of Landlord. If
Landlord shall have given its consent at any time, whether before or after the
execution of this Lease, that consent shall in no way operate as a waiver or
release of any of the provisions of this Lease, and shall be deemed to relate
only to the particular sign, advertisement or notice so consented to by Landlord
and shall not be construed as dispensing with the necessity of obtaining the
specific written consent of Landlord with respect to any subsequent sign,
advertisement or notice. If Landlord, by a notice in writing to Tenant, shall
object to any curtain, blind, tinting, shade or screen attached to, or hung in,
or used in connection with, any window or door of the Premises, the use of that
curtain, blind, tinting, shade or screen shall be immediately discontinued and
removed by Tenant. No awnings shall be permitted on any part of the Premises.
5. Tenant shall not do or permit anything to be done in the Premises,
or bring or keep anything in the Premises, which shall in any way increase the
rate of fire insurance on the Building, or on the property kept in the Building,
or obstruct or interfere with the rights of other tenants, or in any way injure
or annoy them, or conflict with the regulations of the Fire Department or the
fire laws, or with any insurance policy upon the Building, or any portion of the
Building or its contents, or with any rules and ordinances established by the
Board of Health or other governmental authority.
6. The installation and location of any unusually heavy equipment in
the Premises, including without limitation file storage units, safes and
electronic data processing equipment, shall require the prior written approval
of Landlord. Landlord may restrict the weight and position of any equipment that
may exceed the weight load limits for the structure of the Building, and may
further require, at Tenant's expense, the reinforcement of any flooring on which
such equipment may be placed and/or an engineering study to be performed to
determine whether the equipment may safely be installed in the Building and the
necessity of any reinforcement. The moving of large or heavy objects shall occur
only between those hours as may be designated by, and only upon previous written
notice to, Landlord, and the persons employed to move those objects in or out of
the Building must be reasonably acceptable to Landlord. No freight, furniture or
bulky matter of any description shall be received into or moved out of the lobby
of the Building or carried in any elevator other than the freight elevator
designated by Landlord unless approved in writing by Landlord.
7. Landlord shall clean the Premises as provided in the Lease, and
except with the written consent of Landlord, no person or persons other than
those approved by Landlord will be permitted to enter the Building for that
purpose. Tenant shall not cause unnecessary labor by reason of Tenant's
carelessness and indifference in the preservation of good order and cleanliness.
Landlord shall not be responsible to Tenant or its employees for loss or damage
to property in connection with the provision of janitorial services by third
party contractors.
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8. Tenant shall not sweep or throw, or permit to be swept or thrown,
from the Premises any dirt or other substance into any of the corridors or halls
or elevators, or out of the doors or windows or stairways of the Building, and
Tenant shall not use, keep or permit to be used or kept any foul or noxious gas
or substance in the Premises, or permit or suffer the Premises to be occupied or
used in a manner offensive or objectionable to Landlord or other occupants of
the Building by reason of noise, odors and/or vibrations, or interfere in any
way with other tenants or those having business with other tenants, nor shall
any animals or birds be kept by Tenant in or about the Building. Smoking or
carrying of lighted cigars, cigarettes, pipes or similar products anywhere
within the Premises or Building is strictly prohibited, and Landlord may enforce
such prohibition pursuant to Landlord's leasehold remedies. Smoking is permitted
outside the Building and within the project only in areas designated by
Landlord.
9. No cooking shall be done or permitted by Tenant on the Premises,
except pursuant to the normal use of a U.L. approved microwave oven and coffee
maker for the benefit of Tenant's employees and invitees, nor shall the Premises
be used for lodging.
10. Tenant shall not use or keep in the Building any kerosene,
gasoline, or inflammable fluid or any other illuminating material, or use any
method of heating other than that supplied by Landlord.
11. If Tenant desires telephone, telegraph, burglar alarm or similar
connections, Landlord will direct electricians as to where and how the wires are
to be introduced. No boring or cutting for wires or otherwise shall be made
without directions from Landlord.
12. Upon the termination of its tenancy, Tenant shall deliver to
Landlord all the keys to offices, rooms and toilet rooms and all access cards
which shall have been furnished to Tenant or which Tenant shall have had made.
13. Tenant shall not xxxx, drive nails, screw or drill into the
partitions, woodwork or plaster or in any way deface the Premises, except to
install normal wall hangings. Tenant shall not affix any floor covering to the
floor of the Premises in any manner except by a paste, or other material which
may easily be removed with water, the use of cement or other similar adhesive
materials being expressly prohibited. The method of affixing any floor covering
shall be subject to approval by Landlord. The expense of repairing any damage
resulting from a violation of this rule shall be borne by Tenant.
14. On Saturdays, Sundays and legal holidays, and on other days
between the hours of 6:00 p.m. and 8:00 a.m., access to the Building, or to the
halls, corridors, elevators or stairways in the Building, or to the Premises,
may be refused unless the person seeking access complies with any access control
system that Landlord may establish. Landlord shall in no case be liable for
damages for the admission to or exclusion from the Building of any person whom
Landlord has the right to exclude under Rules 2 or 18 of this Exhibit. In case
of invasion, mob, riot, public excitement, or other commotion, or in the event
of any other situation reasonably requiring the evacuation of the Building,
Landlord reserves the right at its election and without liability to Tenant to
prevent access to the Building by closing the doors or otherwise, for the safety
of the tenants and protection of property in the Building.
15. Tenant shall be responsible for protecting the Premises from
theft, which includes keeping doors and other means of entry closed and securely
locked. Tenant shall cause all water faucets or water apparatus to be shut off
before Tenant or Tenant's employees leave the Building, and that all
electricity, gas or air shall likewise be shut off, so as to prevent waste or
damage, and for any default or carelessness Tenant shall make good all injuries
sustained by other tenants or occupants of the Building or Landlord.
16. Tenant shall not alter any lock or install a new or additional
lock or any bolt on any door of the Premises without the prior written consent
of Landlord. If Landlord gives its consent, Tenant shall in each case promptly
furnish Landlord with a key for any new or altered lock.
17. Tenant shall not install equipment, such as but not limited to
electronic tabulating or computer equipment, requiring electrical or air
conditioning service in excess of that to be provided by Landlord under the
Lease except in accordance with Exhibit B.
18. Landlord shall have full and absolute authority to regulate or
prohibit the entrance to the Premises of any vendor, supplier, purveyor,
petitioner, proselytizer or other similar person. In the event any such person
is a guest or invitee of Tenant, Tenant shall notify Landlord in advance of each
desired entry, and Landlord shall authorize the person so designated to enter
the Premises, provided that in the sole and absolute discretionary judgment of
Landlord, such person will not be involved in general solicitation activities,
or the proselytizing, petitioning, or disturbance of other tenants or their
customers or invitees, or engaged or likely to engage in conduct which may in
Landlord's opinion distract from the use of the Premises for its intended
purpose. Notwithstanding the foregoing, Landlord reserves the absolute right and
discretion to limit or prevent access to the Buildings by any food or beverage
vendor, whether or not invited by Tenant, and Landlord may condition such access
upon the vendor's execution of an entry permit agreement which may contain
provisions for insurance coverage and/or the payment of a fee to Landlord.
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19. Tenant shall be required to utilize the third party contractor
designated by Landlord for the Building to provide any telephone wiring services
from the minimum point of entry of the telephone cable in the Building to the
Premises. Notwithstanding the foregoing, however, in the event Tenant does not
have a telephone switch within the Premises, Tenant may, with Landlord's
approval and supervision, use a trained contractor to provide such wiring
services, but only from the Premises to the telephone room on the floor on which
the Premises are situated.
20. Landlord may from time to time grant tenants individual and
temporary variances from these Rules, provided that any variance does not have a
material adverse effect on the use and enjoyment of the Premises by Tenant.
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