EXHIBIT 10.06
O Y S T E R P O I N T M A R I N A P L A Z A
OFFICE LEASE
OF
SUITE 201
TO
ACCUIMAGE DIAGNOSTICS CORPORATION,
A NEVADA CORPORATION
000 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxx Xxx Xxxxxxxxx, XX 00000
OYSTER POINT MARINA PLAZA
OFFICE LEASE
THIS OFFICE LEASE (the "Lease") is entered into as of June 15, 2004, by and
between KASHIWA FUDOSAN AMERICA, INC., a California corporation ("Landlord") and
ACCUIMAGE DIAGNOSTIS CORPORATION, a Nevada Corporation ("Tenant").
1 BASIC LEASE TERMS
1.1 LEASE OF PREMISES. Landlord leases to Tenant, and Tenant rents and hires
from Landlord, the premises described in ss. 1.3 below, in the building known by
the street address 000 Xxxxxx Xxxxx Xxxxxxxxx (the "Building") in the City of
South San Francisco, County of San Mateo, State of California, on the property
described in ss. 1.6 below, in the business park commonly known as Oyster Point
Marina Plaza (the "Complex"), for the term stated in ss. 1.4 below, for the
rents hereinafter reserved, and upon and subject to the terms, conditions
(including limitations, restrictions, and reservations), and covenants
hereinafter provided. The Building and the Complex are more particularly
described and depicted in Exhibit A which is attached hereto. Each party hereby
expressly covenants and agrees to observe and perform all of the conditions and
covenants herein contained on its part to be observed and performed.
1.2 SUMMARY TABLE. The parties agree that the following table (the "Table") sets
forth in summary form the basic terms of this Lease, including the specific
space comprising the Premises and, with respect to such space, the Term of the
Lease, the usable and rentable square footage, the Base Rent, Base Year, and
Tenant's Share, as all of such terms are defined below:
==================================================================================================
PERIOD SUITE RSF USF MONTHLY T'S SHARE T'S SHARE BASE
NO. BASE RENT BLDG COMPLEX YEAR
__________________________________________________________________________________________________
8-1-04 to 7-31-05 201 2,933 2,550 $3,959.55 1.266% 0.631% 2004
__________________________________________________________________________________________________
8-1-05 to 7-31-06 201 2,933 2,550 $4,106.20 1.266% 0.631% 2004
__________________________________________________________________________________________________
8-1-06 to 7-31-07 201 2,933 2,550 $4,252.85 1.266% 0.631% 2004
==================================================================================================
In the event of any conflict between the terms contained in the Table and the
terms contained in subsequent sections of the Lease, the terms of the Table
shall control, except that any dates stated in the Table are subject to
adjustment as appropriate to the extent any other provisions of the Lease
provide for adjustments to the Commencement Date and/or the Expiration Date.
1.3 PREMISES. The premises leased to Tenant (the "Premises") are a portion of
the second (2nd) floor of the Building and are commonly known as SUITE 201, as
shown on the floor plan annexed hereto as EXHIBIT B. The Premises also include
all fixtures and equipment which are attached thereto, except items not deemed
to be included therein and which are removable by Tenant as provided in Article
10 below. Landlord and Tenant agree that the usable and rentable area of the
Premises, and the respective rentable areas of the Property (as defined in ss.
1.6 below) and Complex, for all purposes under this Lease, are as follows and as
specified in the Table:
Property's Rentable Area: 231,769 rsf
Complex's Rentable Area: 464,502 rsf.
Oyster Point Marina Plaza Office Lease
Kashiwa Fudosan America, Inc.::AccuImage Diagnostics
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
Tenant acknowledges that it has caused its architect to verify the numbers
stated in the Table and herein relating to the measurements of such spaces prior
to the Commencement Date of this Lease or has had an opportunity to do so.
1.4 TERM. The term (the "Term") for which the Premises are hereby leased shall
commence on the "Commencement Date," which shall be the earlier to occur of (i)
the day on which the Premises are ready for occupancy (as defined in Article 3)
or (ii) the day on which Tenant or anyone claiming under or through Tenant first
occupies the Premises for business, and shall end at noon on the "Expiration
Date," which shall be the last day of the calendar month in which occurs the day
preceding the third (3rd) anniversary of the Commencement Date or any earlier
date upon which the Term may expire or be cancelled or terminated pursuant to
any of the conditions or covenants of this Lease or pursuant to law. Promptly
following the Commencement Date the parties hereto shall, if required by
Landlord, enter into a supplementary agreement fixing the dates of the
Commencement Date and the Expiration Date in the form which is attached hereto
as EXHIBIT E and incorporated herein by reference.
1.5 RENT. The "Rent" reserved under this Lease, for the Term thereof, shall
consist of the following:
(a) "Base Rent" as set forth in the Table for the various spaces and
periods described therein per month, which shall be payable in
advance on the first day of each and every calendar month during
the Term of this Lease, except that Tenant shall pay the first
month's Base Rent due under the Lease upon the execution and
delivery of this Lease by Tenant; and
(b) "Additional Rent" consisting of any and all other sums of money
as shall become payable by Tenant to Landlord hereunder; and
Landlord shall have the same remedies for default in the payment
of Additional Rent as for a default in payment of Base Rent).
1.5.1 PAYMENT OF RENT. Tenant shall pay the Base Rent and Additional Rent
promptly when due, without demand therefor and without any abatement,
deduction, or setoff whatsoever, except as may be expressly provided in
this Lease. Tenant shall pay the Rent to Landlord, in lawful money of the
United States of America, at Landlord's office at the Complex or at such
other place, or to such agent and at such place, as Landlord may designate
by notice to Tenant. If the Commencement Date occurs on a day other than
the first day of a calendar month, the Base Rent for such calendar month
shall be prorated based on a 30-day month, and the balance of the first
month's Base Rent theretofore paid shall be credited against the next
monthly installment of Base Rent.
1.5.2 INTEREST AND LATE CHARGES. Tenant shall receive one (1) grace period
during any consecutive twelve (12) month period whereby they shall not have
to pay a penalty so long as the unpaid amount does not continue for more
than thirty (30) days. If Tenant fails to pay any Rent within three days
from being due when due, the unpaid amounts shall bear interest from the
due date until paid at a rate per annum equal to the Prime Rate plus five
percent (5%) or, if less, at the highest rate of interest permitted by
applicable law. As used herein, "Prime Rate" means the prime rate published
in the Money Rates section of the WALL STREET JOURNAL (Western edition) as
the same may change from time to time or in a similar publication if the
WALL STREET JOURNAL ceases publication or ceases publication of its Money
Rates section during the Term. Tenant acknowledges that the late payment of
any monthly Rent will cause Landlord to lose the use of that money and
incur costs and expenses not contemplated under this Lease, including
administrative and collection costs and processing and account expenses,
the exact amount of which it is difficult to ascertain. Therefore, in
addition to interest, if any such installment is not received by Landlord
within five (5) days from the date it is
Oyster Point Marina Plaza Office Lease
Kashiwa Fudosan America, Inc.::AccuImage Diagnostics
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
due, Tenant shall pay Landlord a late charge equal to ten percent (10%) of
such installment. Landlord and Tenant agree that this late charge
represents a reasonable estimate of such costs and expenses and is fair
compensation to Landlord for the loss suffered from such nonpayment by
Tenant. In addition, any check returned by the bank for any reason will be
considered late and will be subject to all late charges plus an additional
returned check fee of Twenty Dollars ($20.00). After two such occasions
upon which checks have been returned in any twelve-month period, Landlord
will have the right to require payment by a cashier's check or money order.
Acceptance of any interest or late charge shall not constitute a waiver of
Tenant's default with respect to such nonpayment by Tenant nor prevent
Landlord from exercising any other rights or remedies available to Landlord
under this Lease or at law or in equity, unless the payment of such
interest and late charges is accompanied by all rentals then due and owning
(notwithstanding anything to the contrary in ss. 20.2.1 below).
1.6 PROPERTY. For the purposes of this Lease, the "Property" shall mean the
Building and any common or public areas or facilities, easements, corridors,
lobbies, sidewalks, loading areas, driveways, landscaped areas, skywalk, parking
garages and lots, and any and all other structures or facilities operated or
maintained in connection with or for the benefit of the Building, and all
parcels or tracts of land on which all or any portion of the Building or any of
the other foregoing items are located, and any fixtures, machinery, equipment,
apparatus, Systems and Equipment (as defined in ss. 1.6.5 below), furniture and
other personal property located thereon or therein and used in connection
therewith, whether title is held by Landlord or its affiliates. The Property
shall also be deemed to include such other of the Complex's buildings or
structures (and related facilities and parcels on which the same are located) as
Landlord shall have incorporated by reference to the total square footage of the
Building stated in ss. 1.3 above.
1.6.1 COMMON AREAS. Tenant and its agents, employees, and invitees shall
have the non-exclusive right with others designated by Landlord to the free
use of the common areas in the Property and the Complex for the common
areas' intended and normal purpose. The term COMMON AREAS shall mean
elevators, sidewalks, parking areas, driveways, hallways, stairways, public
restrooms, common entrances, lobbies, and other similar public areas and
access ways.
1.6.2 ATHLETIC FACILITY. Notwithstanding the foregoing, the common areas do
not include the Building's athletic facility (the "Athletic Facility"),
which is an unsupervised and unattended weight and exercise room and shower
facility. Tenant acknowledges that Landlord presently makes available (but
is not obligated under this Lease to make available) the Athletic Facility
for the general use of all tenants and their officers and employees,
subject to such rules and regulations as Landlord may impose from time to
time in its sole and absolute discretion regarding the use thereof. Tenant
shall cause each of its officers and employees using the Athletic Facility
to sign and deliver to Landlord an "Athletic Facility Use Agreement" in the
form attached hereto as EXHIBIT D, as such form may be revised by Landlord
from time to time in its sole and absolute discretion. Tenant understands
and agrees that no individual shall be permitted use of or access to the
Athletic Facility unless and until such individual shall have first signed
and delivered the Athletic Facility Use Agreement to Landlord. Landlord
shall have the right to limit the use of the Athletic Facility in any
manner it may deem necessary, or to discontinue the Athletic Facility
altogether, at any time, in its sole and absolute discretion, and neither
Tenant nor its officers or employees shall be entitled to any compensation,
credit, allowance, or offset of expenses or Rent as a result of any such
limitation or discontinuance.
1.6.3 RESERVATION TO LANDLORD. Notwithstanding anything to the contrary
herein, possession of areas necessary for utilities, services, safety, and
operation of the Property, including the Systems and
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
Equipment, telephone closets (whether located in the common areas or in the
Premises), fire exits and stairways, perimeter walls, space between the
finished ceiling of the Premises and the slab of the floor or roof of the
Property thereabove, and the use thereof, together with the right to
install, maintain, operate, repair, and replace any part of the Systems and
Equipment in, through, under, or above the Premises in locations that will
not materially interfere with Tenant's use of the Premises, are hereby
excepted from both the Premises and the common areas and are reserved by
Landlord and not demised to Tenant. Tenant's access to the telephone
closets on each floor and the Building's main telephone room shall be
subject to the Rules (as defined in ss. 13.1 below) and shall be permitted
only with Landlord's written consent and under the supervision of
Landlord's Building Engineer on each occasion that such access is sought.
1.6.4 CHANGES AND ALTERATIONS OF THE PROPERTY. Landlord reserves the right
to make repairs, alterations, additions, or improvements, structural or
otherwise, in or to the Property or Complex as deemed necessary or
desirable in Landlord's sole and absolute discretion, so long as such
repairs or alterations do not materially and unreasonably interfere with
Tenant's access to or beneficial use of the Premises for their intended
purposes. Landlord reserves the right hereunder to do the following: (i)
install, use, maintain, repair, and replace pipes, ducts, conduits, wires,
and appurtenant meters and equipment for service to the various parts of
the Property above the ceiling surfaces, below the floor surfaces, within
the walls, and in the central core areas; (ii) to relocate any pipes,
ducts, conduits, wires, and appurtenant meters and equipment which are
located in the Premises or located elsewhere outside the Premises; (iii)
expand the Building or the Complex; (iv) make changes to the Property or
the Complex, including changes, expansions, and reductions in the location,
size, shape, and number of driveways, entrances, loading and unloading
areas, ingress, egress, direction of traffic, landscaped areas, walkways,
parking spaces, and parking areas; (v) close any of the common areas, so
long as reasonable access to the Premises remains available; (vi) use the
common areas while engaged in making additional improvements, repairs, or
alterations to the Property, Complex, or any portion thereof; and (vii) do
and perform such other acts and make such other changes in, to, or with
respect to the Property, Complex, common areas, and Building as Landlord
may deem appropriate. The exercise of any of the foregoing rights shall not
subject Landlord to claims for constructive eviction, abatement of Rent,
damages, or other claims of any kind, except as otherwise expressly
provided in this Lease. If Landlord enters the Premises to exercise any of
the foregoing rights, Landlord shall provide reasonable advance written or
oral notice to Tenant's on-site manager.
1.6.5 SYSTEMS AND EQUIPMENT. As used in this Lease, "Systems and Equipment"
means collectively any existing plant, machinery, transformers, duct work,
intrabuilding network cables and wires that transmit voice, data, and other
telecommunications signals ("INC"), and other equipment, facilities, and
systems designed to supply water, heat, ventilation, air conditioning and
humidity or any other services or utilities, or comprising or serving as
any component or portion of the electrical, gas, steam, plumbing,
sprinkler, communications, alarm, security, or fire/life/safety systems or
equipment, or any other mechanical, electrical, electronic, computer or
other systems or equipment for the Property.
1.7 OPTION TO EXTEND. Tenant is hereby granted an option to extend the Term of
this Lease (the "Extension Option") for a single additional period of three (3)
years (the "Extension Period") at Ninety-Five Percent (95%) of the Fair Market
Value. Any Fair Market Value Arbitration as specified below will be subject the
minimum Base Rent in the last year of the Initial Term. The Extension Period
term shall commence on the first day following the Expiration Date and shall
take effect on the same terms and conditions in effect under the Lease
immediately prior to the Extension Period, except that (i) Tenant shall have no
further right to extend and (ii) monthly Base Rent shall be the effective rent
being charged for comparable space.
Oyster Point Marina Plaza Office Lease
Kashiwa Fudosan America, Inc.::AccuImage Diagnostics
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
1.7.1 EXERCISE OF OPTION. The Extension Option may be exercised only by
giving Landlord written notice of Tenant's irrevocable election to exercise
no earlier than nine (9) months and no later than six (6) months prior to
the commencement of the Extension Period. If Tenant shall fail validly and
timely to exercise the option herein granted, said option shall terminate
and shall be null and void and of no further force and effect.
1.7.2. FAIR MARKET VALUE. Not less than one hundred and fifty (150) days
prior to the commencement of the Extension Term, Landlord shall provide
written notice to Tenant of its determination of the Fair Market Value.
Within ten (10) days after receiving such determination ("Tenant's Review
Period"), Tenant shall irrevocably elect, in writing, to do one of the
following: (i) accept landlord's determination; or (ii) object to
Landlord's determination and with such objection set forth in writing
Tenant's determination of Fair Market Value. If Tenant so objects, Landlord
and Tenant shall attempt in good faith to agree upon such Fair Market Value
using their good faith efforts. If Landlord and Tenant fail to reach
agreement within fifteen (15) days following Tenant's Review Period (the
"Outside Agreement Date"), then each party's determination shall be
submitted to arbitration in accordance with subsections 1.7.2.1 through
1.7.2.5 below. If Tenant objects to Landlord's determination of Fair Market
Value, Tenant shall pay Rent at the Fair Market Value determined by
Landlord until the matter is resolved by binding arbitration as provided
below subject to retroactive adjustment after the matter is so resolved. If
Tenant fails so to accept or object to Landlord's determination of Fair
Market Value in writing within Tenant's Review Period, Tenant shall
conclusively be deemed to have approved of the Fair Market Value as
determined by Landlord.
1.7.2.1 APPOINTMENT OF ARBITRATORS. Not later than fifteen (15) days
following the Outside Agreement Date, Landlord and Tenant shall each
appoint one arbitrator who shall by profession be a real estate broker
who shall have been active over the ten-year period ending on the date
of such appointment in the leasing of commercial properties within San
Mateo County.
1.7.2.2 APPOINTMENT OF THIRD ARBITRATOR. The two (2) arbitrators so
appointed shall within fifteen (15) days of the date of the
appointment of the last-appointed arbitrator agree upon and appoint a
third arbitrator, who shall be qualified under the same criteria as
set forth hereinabove for qualification of the initial two arbitrators
under Article 7.1.2.1 above.
1.7.2.3 ARBITRATORS' DECISION. The three (3) arbitrators shall, within
thirty (30) days of the appointment of the third arbitrator, reach a
decision as to whether the parties shall use Landlord's or Tenant's
submitted Fair Market Value, and shall notify Landlord and Tenant
thereof. The determination of the arbitrators shall be limited solely
to the issue of whether Landlord's or Tenant's submitted Fair Market
Value for the Premises is the more accurate as determined by the
arbitrators, taking into account the requirements of this Article. The
decision of the majority of the three (3) arbitrators shall be
non-reviewable, non-appealable, and binding upon Landlord and Tenant.
1.7.2.4 FAILURE TO APPOINT. If either Landlord or Tenant fails to
appoint an arbitrator within fifteen (15) days after the Outside
Agreement Date, the arbitrator timely appointed by one of the parties
shall reach a decision, notify Landlord and Tenant thereof, and such
arbitrator's decision shall be non-reviewable, non-appealable, and
binding upon Landlord and Tenant. If the two (2) arbitrators fail to
agree upon and appoint a third arbitrator, both arbitrators shall be
dismissed and the matter to be decided shall be forthwith submitted to
arbitration under the Commercial Arbitration Rules of the American
Arbitration Association then in effect, but subject to the
instructions set forth in this Article.
Oyster Point Marina Plaza Office Lease
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
1.7.2.5 COST OF ARBITRATION. The cost of arbitration shall be paid by
Landlord and Tenant equally.
1.7.3 DEFAULT. The Extension Option shall, at Landlord's election, be null
and void if Tenant is in Default of the date Tenant gives the required
notice under Article 7 above or at any other time thereafter and prior to
commencement of the Extension Period. Tenant's exercise of the Extension
Option shall not operate to cure any Default by Tenant nor to extinguish or
impair any rights or remedies of Landlord arising by virtue of such
Default. If the Lease or Tenant's right to possession of the Premises shall
terminate before Tenant shall have exercised the Extension Option, then
immediately upon such termination the Extension Option shall simultaneously
terminate and become null and void.
1.7.4 TIME. Time is of the essence of this Extension Option.
2 USE
2.1 USE AND ENJOYMENT OF PREMISES. Tenant shall use and occupy the Premises for
executive and general offices and for no other purpose. Notwithstanding anything
contained herein to the contrary, Tenant may use portions of the Premises not to
exceed one hundred fifty (150) usable square feet for the preparation and
reheating of food and beverages, including the use of refrigerators, ice makers,
coffee machines, hot plates, microwave ovens, or similar heating devices (but
not for the actual cooking of food) for service only to Tenant's employees and
business invitees.
2.1.1 SUITABILITY. Tenant acknowledges that neither Landlord nor any agent
of Landlord has made any representation or warranty with respect to the
Premises, the Property, or the Complex, or with respect to the suitability
of same for the conduct of Tenant's business, except as expressly provided
in this Lease. Tenant's acceptance of possession of the Premises shall
conclusively establish that the foregoing were at such time in satisfactory
condition. Landlord makes no representation to Tenant regarding the
installation, ownership, location, or suitability for Tenant's purposes of
the INC in the Building.
2.1.2 INSURANCE RATES. Tenant shall not do or suffer anything to be done in
or about the Premises, nor shall Tenant bring or allow anything to be
brought into the Premises, which will in any way increase the rate of any
fire insurance or other insurance upon the Property or its contents, cause
a cancellation of said insurance, or otherwise affect said insurance in any
manner.
2.1.3 USE TO COMPLY WITH LAWS. Tenant shall use the Premises in conformity
with all applicable Laws, as specified in Article 6 below.
2.1.4 FLOOR LOADING. Tenant shall not place or permit to be placed on any
floor a load exceeding eighty (80) pounds per square foot or such lower
floor load as such floor was designed to carry.
2.2 NUISANCE AND WASTE. Tenant also shall not do or suffer anything to be done
in or about the Premises which will in any way obstruct or interfere with the
rights of other tenants or occupants of the Property or injure or annoy said
tenants or occupants, nor shall Tenant use or suffer the Premises to be used for
any unlawful purposes. In no event shall Tenant cause or permit any nuisance in
or about the Premises, and no loudspeakers or similar devices shall be used
without the prior written approval of Landlord, which approval may be withheld
in Landlord's sole and absolute discretion. Tenant shall not
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Kashiwa Fudosan America, Inc.::AccuImage Diagnostics
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
commit or suffer to be committed any waste in or upon the Premises. The
provisions of this section are for the benefit of Landlord only and shall not be
construed to be for the benefit of any tenant or occupant of the Building. If
any governmental license or permit, other than a Certificate of Occupancy, shall
be required for the proper and lawful conduct of Tenant's business in the
Premises, or any part thereof, and if failure to secure such license or permit
would in any way affect Landlord, Tenant, at its sole expense, shall procure and
thereafter maintain such license or permit and submit the same for inspection by
Landlord. Tenant shall at all times comply with the terms and conditions of each
such license or permit.
2.3 COMPLIANCE WITH CERTIFICATE OF OCCUPANCY Tenant shall not at any time use or
occupy the Premises, or suffer or permit anyone to use or occupy, the Premises,
or do or permit anything to be done in the Premises, in violation of the
Certificate of Occupancy for the Premises or for the Building.
3 PREPARATION OF THE PREMISES
3.1 CONDITION OF PREMISES. Except as otherwise expressly provided in ss. 3.2
below and any "Work Letter Agreement" which may be executed by Landlord and
Tenant concurrently with their execution of this Lease, Tenant shall accept the
Premises, any existing Improvements in the Premises (as defined in ss. 10.1
below), and the Systems and Equipment serving the same in an "as is" condition
on the date the Term commences, and Landlord shall have no obligation to
improve, alter, remodel, or otherwise modify the Premises prior to Tenant's
occupancy.
3.2 LANDLORD'S PREPARATION. Landlord, at Landlord's sole cost and expense, shall
construct improvements to the Premises and furnish facilities, material and work
pursuant to Landlord's building standard materials prior to the Commencement
Date ("Work"). All mechanical, electrical and building systems shall be in good
working order. The Work is as follows:
(1) Demises the Premises;
(2) Install new carpet and apply new paint;
(3) Demolish various walls and office per the attached floor plan
(Exhibit B);
(4) Fill in the window in the private office.
(5) All systems and components shall be in good working condition.
(6) Such other installations, materials, and work which may be
undertaken by or for the account of Tenant to prepare, equip,
decorate, and furnish the Premises for Tenant's occupancy shall
be at Tenant's sole cost and expense. Tenant shall be responsible
for all data and telephone wiring for the Premises including
connecting the phone and data system in the Premises to the
Building's ground floor IMPOE room.
6.1.1 READINESS FOR OCCUPANCY. The Premises shall be deemed ready for
occupancy on the earliest date on which all of the following conditions
(the "Occupancy Conditions") have first been met:
(a) SUBSTANTIAL COMPLETION OF WORK. The Work has been substantially
completed; and it shall be so deemed notwithstanding the fact
that minor or insubstantial details of construction, mechanical
adjustment, or decoration remain to be performed, the
noncompletion of which does not materially interfere with
Tenant's beneficial use of the Premises for their intended
purposes;
(b) ACCESS AND SERVICES. Reasonable means of access and facilities
necessary to Tenant's use and occupancy of the Premises,
including corridors, elevators, stairways, heating,
Oyster Point Marina Plaza Office Lease
Kashiwa Fudosan America, Inc.::AccuImage Diagnostics
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
ventilating, air-conditioning, sanitary, water, and electrical
facilities (but exclusive of parking facilities) have been
installed and are in reasonably good operating order and
available to Tenant; and
(c) CERTIFICATE OF OCCUPANCY OR COMPLETION. A certificate of
occupancy, certificate of completion, final inspection card, or
similar required governmental approval (temporary or final) has
been issued by the City of South San Francisco permitting use of
the Premises for office purposes.
6.1.2 TENANT DELAYS. If the occurrence of any of the Occupancy Conditions
and Landlord's preparation of the Premises for occupancy shall be delayed
owing to either (a) any act, omission, or failure of Tenant or any of its
employees, agents, or contractors which shall continue after Landlord shall
have given Tenant reasonable notice that such act, omission, or failure
would result in delay, and such delay shall have been unavoidable by
Landlord in the exercise of reasonable diligence and prudence; or (b) the
nature of any items of additional work or change orders that Landlord
undertakes to perform for the account of Tenant (including any delays
incurred by Landlord, after making reasonable efforts, in procuring any
materials, equipment, or fixtures of a kind or nature not used by Landlord
as part of its standard construction) (collectively "Tenant Delays"), then
the Premises shall be deemed ready for occupancy on the date when they
would have been ready but for such Tenant Delays.
6.2 EARLY ENTRY. During any period that Tenant shall be permitted to enter the
Premises prior to the Commencement Date other than to occupy the same (E.G., to
perform alterations or improvements), Tenant shall comply with all terms and
provisions of this Lease, except those provisions requiring the payment of Rent.
If Tenant shall be permitted to enter the Premises prior to the Commencement
Date for the purpose of occupying the same, Rent shall commence on such date at
the rate specified in the Table for the first period during which Rent is
payable after the Commencement Date; and if Tenant shall commence occupying only
a portion of the Premises prior to the Commencement Date, Rent shall be prorated
based on the number of rentable square feet occupied by Tenant. Landlord shall
permit early entry, provided the Premises are legally available and Landlord has
completed any Work required under this Lease. In no event shall Tenant's early
entry extend or shorten the Term of the Lease set forth in ss. 1.2 above.
6.3 NOTICE OF DEFECTS. It shall be conclusively presumed upon Tenant's taking
actual possession of the Premises that the same were in satisfactory condition
(except for latent defects) as of the date of such taking of possession, unless
within thirty (30) days after the Commencement Date Tenant shall give Landlord
notice in writing specifying the respects in which the Premises were not in
satisfactory condition.
(7) ADJUSTMENTS OF RENT
7.1 TAXES, UTILITIES, AND OPERATING EXPENSES. In addition to the Base Rent and
all other payments due under this Lease, Tenant shall pay to Landlord, in the
manner set forth in this Article 4, as Additional Rent, the following amounts:
(a) INCREASED OPERATING EXPENSES. An amount equal to Tenant's Pro
Rata Share of that portion of Operating Expenses paid by Landlord
during each Adjustment Period which exceeds the amount of Base
Operating Expenses (as all of such terms are defined in ss. 4.2
below).
Oyster Point Marina Plaza Office Lease
Kashiwa Fudosan America, Inc.::AccuImage Diagnostics
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
(b) INCREASED UTILITIES. An amount equal to Tenant's Pro Rata Share
of that portion of Utilities paid by Landlord during each
Adjustment Period which exceeds the amount of Base Utilities (as
all of such terms are defined in ss. 4.2 below).
(c) INCREASED TAXES. An amount equal to Tenant's Pro Rata Share of
that portion of Real Estate Taxes paid by Landlord during each
Adjustment Period which exceeds the amount of Base Real Estate
Taxes (as all of such terms are defined in ss. 4.2 below).
Tenant's Pro Rata Share of (i) such increase in Operating Expenses over the Base
Operating Expenses, (ii) such increase in Utilities over Base Utilities, and
(iii) such increase in Real Estate Taxes over the Base Real Estate Taxes is
sometimes referred to collectively herein as the "Rental Adjustment."
7.2 DEFINITIONS. For the purposes of this Lease, the following definitions shall
apply:
(a) BASE OPERATING EXPENSES. "Base Operating Expenses" means the
total of Operating Expenses paid by Landlord during CALENDAR YEAR
2004 (the "Base Expense Year"), as adjusted under ss. 4.6 below.
(b) BASE UTILITIES. "Base Utilities" means the total of Utilities
paid by Landlord during CALENDAR YEAR 2004 (the "Base Utilities
Year"), as adjusted under ss. 4.6 below.
(c) BASE REAL ESTATE TAXES. "Base Real Estate Taxes" means the total
of Real Estate Taxes paid by Landlord during CALENDAR YEAR 2004
(the "Base Tax Year").
(d) TENANT'S PRO RATA SHARE. "Tenant's Pro Rata Share" as to the
Building is the percentage labeled as such in the Table inss. 1.2
and is calculated by dividing the agreed rentable area of the
Premises (numerator) by the agreed rentable area of the Property
(denominator) and expressing the resulting quotient as a
percentage. "Tenant's Pro Rata Share" as to the Complex is the
percentage labeled as such in the Table inss. 1.2 as is
calculated by dividing the agreed rentable area of the Premises
(numerator) by the agreed rentable area of the Complex
(denominator) and expressing the resulting quotient as a
percentage. Tenant's Pro Rata Share shall be increased during the
Term in proportion to any increase in the area of the Premises in
accordance with the formula stated herein.
(e) ADJUSTMENT PERIOD. "Adjustment Period" as to Operating Expenses,
Utilities, and Real Estate Taxes means each calendar year of
which any portion occurs during the Term, excluding the Base Year
and beginning with the first calendar year immediately following
the Base Year.
(f) REAL ESTATE TAXES. "Real Estate Taxes" means all of the following
charges, whether or not now customary or in the contemplation of
the parties hereto, and whether or not general, special,
ordinary, or extraordinary, which Landlord shall pay during any
Adjustment Period because of or in connection with the ownership,
leasing, or operation of the Property:
(1) AD VALOREM real property taxes;
(2) any form of assessment, license fee, license tax, business
license fee, commercial rental tax, levy, charge, fee, tax,
or other imposition imposed by any authority, including any
city, county, state, or federal governmental
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
agency, or any school, agricultural, lighting,
transportation, housing, drainage, or other improvement or
special assessment district thereof;
(3) any tax on Landlord's `right' to rent or `right' to other
income from the Building or as against Landlord's business
of leasing the Building;
(4) any assessment, tax, fee, levy, or charge in substitution,
partially or totally, of any assessment tax, fee, levy or
charge previously included within the definition of Real
Estate Taxes, it being acknowledged by Tenant and Landlord
that Proposition 13 was adopted by the voters of the State
of California in the Election of June, 1978, and that
assessments, taxes, fees, levies, and charges may be imposed
by governmental agencies for such services as fire
protection, street, sidewalk, and road maintenance, refuse
removal, and for other governmental services formerly
provided without charge to property owners or occupants, and
it being the intention of Tenant and Landlord that all such
new and increased assessments, taxes, fees, levies, and
charges be included within the definition of Real Estate
Taxes for the purposes of this Lease;
(5) any assessment, tax, fee, levy, or charge allocable to or
measured by the area of the Building or Property or the Rent
payable hereunder, including any gross income tax or excise
tax levied by any city, county, state, or federal
governmental agency or any political subdivision thereof
with respect to the receipt of such Rent, or upon or with
respect to the possession, leasing, operating, management,
maintenance, alteration, repair, use, or occupancy by Tenant
of the Property or any portion thereof;
(6) any assessment, tax, fee, levy, or charge upon this
transaction or any document to which Tenant is a party,
creating or transferring an interest or an estate in the
Building or Property;
(7) any assessment, tax, fee, levy, or charge by any
governmental agency related to any transportation plan,
fund, or system instituted within the geographic area of
which the Building is a part; or
8) reasonable legal and other professional fees, costs and
disbursements incurred in connection with proceedings to
contest, determine or reduce Real Estate Taxes.
EXCLUSIONS. Notwithstanding the foregoing, Real Estate Taxes
shall not include (A) federal, state, or local income taxes;
(B) franchise, gift, transfer, excise, capital stock,
estate, succession, or inheritance taxes; or (C) penalties
or interest for late payment of Real Estate Taxes.
(g) OPERATING EXPENSES. "Operating Expenses" means all expenses,
costs, and amounts (other than Real Estate Taxes and Utilities)
of every kind and nature which Landlord shall pay during any
Adjustment Period of which any portion occurs during the Term,
because of or in connection with the ownership, management,
repair, maintenance, restoration, and/or operation of the
Property, including costs of the following:
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
(1) permits, licenses, and certificates necessary to operate,
manage, and lease the Property;
(2) supplies, tools, equipment, and materials used in the
operation, repair, and maintenance of the Property;
(3) all insurance premiums for any insurance policies deemed
necessary or desirable by Landlord (including workers'
compensation, health, accident, group life, public
liability, property damage, earthquake, and fire and
extended coverage insurance for the full replacement cost of
the Property as required by Landlord or its lenders for the
Property);
(4) the deductible portion of any claim paid under any insurance
policy maintained by Landlord in connection with its
management and operation of the Property;
(5) accounting, legal, inspection, consulting, concierge, and
other services;
(6) services of independent contractors;
(7) compensation (including employment taxes and fringe
benefits) of all persons who perform duties in connection
with the operation, maintenance, repair, or overhaul of the
Building or Property, and equipment, improvements, and
facilities located within the Property, including engineers,
janitors, painters, floor waxers, window washers, security,
parking personnel, and gardeners;
(8) operation and maintenance of a room for delivery and
distribution of mail to tenants of the Building as required
by the U.S. Postal Service (including an amount equal to the
fair market rental value of the mail room premises);
(9) management of the Building or Property, whether managed by
Landlord or an independent contractor (including an amount
equal to the fair market value of any on-site manager's
office);
(10) rental expenses for (or a reasonable depreciation allowance
on) personal property used in maintenance, operation, or
repair of the Property and installment equipment purchase or
equipment financing agreements for such personal property;
(11) costs, expenditures, or charges (whether capitalized or not)
required by any governmental or quasi-governmental authority
after the Commencement Date;
(12) payments under any easement, operating agreement,
declaration, restrictive covenant, or instrument pertaining
to the sharing of costs in any planned development;
(13) amortization of capital expenses (including financing costs)
incurred by Landlord after the Commencement Date in order to
(A) comply with Laws, (B) reduce Property Operating Expenses
or Utilities, or (C) upgrade the utility, efficiency, or
capacity of any utility or telecommunication systems serving
tenants of the Property;
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
(14) operation, repair, and maintenance of all Systems and
Equipment and components thereof (including replacement of
components); janitorial service; alarm and security service;
window cleaning; trash removal; elevator maintenance;
cleaning of walks, parking facilities, and building walls;
removal of ice and snow; replacement of wall and floor
coverings, ceiling tiles, and fixtures in lobbies,
corridors, restrooms and other common or public areas or
facilities; maintenance and repair of the roof and exterior
fabric of the Building, including replacement of glazing as
needed; maintenance and replacement of shrubs, trees, grass,
sod, and other landscaped items, irrigation systems,
drainage facilities, fences, curbs, and walkways; repaving
and restriping parking facilities; and roof repairs;
(15) the operation of any on-site maintenance shop(s) and the
operation and maintenance of the Athletic Facility, any
other fitness center, conference rooms, and all other common
areas and amenities in the Property;
(16) provision of shuttle busses, shuttle services, and drivers
between the Complex and BART and SFO airport, as required by
the Bay Area Regional Transportation Act and deed covenants
and restrictions applicable to the Complex; and
(17) any other costs or expenses incurred by Landlord which are
reasonably necessary to operate, repair, manage, and
maintain the Building and Property in a first-class manner
and condition and which are not otherwise reimbursed by
tenants of the Building.
EXCLUSIONS. Notwithstanding the foregoing, Operating
Expenses shall not include (A) depreciation, interest, and
amortization on Superior Mortgages (as defined in ss. 18.1
below), and other debt costs or ground lease payments, if
any; (B) legal fees in connection with leasing, tenant
disputes, or enforcement of leases; (C) real estate brokers'
leasing commissions; (D) improvements or alterations to
tenant spaces; (E) the cost of providing any service
directly to, and reimbursed or paid directly by, any tenant;
(F) any costs expressly excluded from Operating Expenses
elsewhere in this Lease; (G) costs of any items to the
extent Landlord receives reimbursement from insurance
proceeds or from a third party (such proceeds to be deducted
from Operating Expenses in the year in which received); (H)
capital expenditures, except those expressly permitted
above; provided, all such permitted capital expenditures
(together with reasonable financing charges) shall be
amortized for purposes of this Lease over the shorter of (x)
their useful lives, (y) the period during which the
reasonably estimated savings in Operating Expenses equals
the expenditures, or (z) three (3) years.
(h) UTILITIES. "Utilities" means all expenses, costs, and amounts of
every kind and nature which Landlord shall pay during any
Adjustment Period of which any portion occurs during the Term,
because of or in connection with the electricity, power, gas,
steam, oil or other fuel, water, sewer, lighting, heating, air
conditioning, and ventilating delivered to or consumed or used in
or on the Property.
7.3 MANNER OF PAYMENT. To provide for current payments of the Rental Adjustment,
Tenant shall pay as Additional Rent during each Adjustment Period an amount
equal to Landlord's estimate of the Rental Adjustment which will be payable by
Tenant for such Adjustment Period. Such payments shall be made
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
in monthly installments, commencing on the first day of the month following the
month in which Landlord notifies Tenant of the amount it is to pay hereunder and
continuing until the first day of the month following the month in which
Landlord gives Tenant a new notice of the estimated Rental Adjustment. It is the
intention hereunder to estimate from time to time the amount of Tenant's Rental
Adjustment for each Adjustment Period and then to effect a reconciliation in the
following year based on the actual expenses incurred for the preceding
Adjustment Period, as provided in 4.4 below.
7.4 RECONCILIATION. On or before the first day of April of each year after the
first Adjustment Period (or as soon thereafter as is practical), Landlord shall
deliver to Tenant a statement (the "Statement") setting forth the Rental
Adjustment for the preceding year. If the actual Rental Adjustment for the
preceding Adjustment Period exceeds the total of the estimated monthly payments
made by Tenant for such Adjustment Period, Tenant shall pay Landlord the amount
of the deficiency within ten (10) days of the receipt of the Statement. If such
total of estimated payments made exceeds the actual Rental Adjustment for such
Adjustment Period, then Tenant shall receive a credit for the difference against
payments of Rent next due. If the credit is due from Landlord on the Expiration
Date, Landlord shall pay Tenant the amount of the credit, less any Rent then
due. The obligations of Tenant and Landlord to make payments required under this
ss. 4.3 shall survive the expiration or earlier termination of the Term of this
Lease.
7.4.1CHANGES IN METHOD. So long as Tenant's obligations hereunder are not
materially adversely affected thereby, Landlord reserves the right
reasonably to change from time to time the manner or timing of the
foregoing payments. In lieu of providing one Statement covering Real
Estate Taxes, Utilities, and Operating Expenses, Landlord may provide
separate statements, at the same or different times. No delay by
Landlord in providing the Statement (or separate statements) shall be
deemed a default by Landlord or a waiver of Landlord's right to
require payment of Tenant's obligations for actual or estimated Real
Estate Taxes, Utilities, or Operating Expenses. In no event shall a
decrease in Real Estate Taxes, Utilities, or Operating Expenses below
the Base Operating Expenses, Base Utilities, or Base Real Estate Taxes
ever decrease the monthly Base Rent or give rise to a credit in favor
of Tenant.
7.4.2PRORATION OF RENTAL ADJUSTMENT. If the Term does not commence on
January 1 or does not end on December 31, Tenant's obligations to pay
estimated and actual amounts towards Real Estate Taxes, Utilities, and
Operating Expenses for such first or final calendar year shall be
prorated to reflect the portion of such year(s) included in the Term.
Such proration shall be made by multiplying the total estimated or
actual (as the case may be) Real Estate Taxes, Utilities, and
Operating Expenses for such calendar year(s), as well as the Base Real
Estate Taxes, Base Utilities, and Base Operating Expenses, by a
fraction, the numerator of which shall be the number of days of the
Term during such calendar year, and the denominator of which shall be
three hundred sixty-five (365).
7.5 GROSS-UP. If the Building is less than ninety-five percent (95%) occupied
during any Adjustment Period, then Operating Expenses, Utilities, and Real
Estate Taxes for such Adjustment Period shall be "grossed up" to that amount of
Operating Expenses, Utilities, and Real Estate Taxes that, using reasonable
projections, would normally have been incurred during such Adjustment Period if
the Building had been ninety-five percent (95%) occupied during the Adjustment
Period, as determined in accordance with sound accounting and management
practices, consistently applied. Only those component elements or items of
expense of Operating Expenses, Utilities, and Real Estate Taxes that are
affected by variations in occupancy levels shall be grossed up.
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
7.6 ADJUSTMENT OF BASE OPERATING EXPENSES. Notwithstanding anything to the
contrary contained in the Lease, the parties agree that Base Operating Expenses
and Operating Expenses for any subsequent Adjustment Period (herein called
"Subsequent Operating Expenses") shall be subject to further adjustment by
Landlord as follows:
(a) EXCLUSION OF CAPITAL EXPENDITURES. Landlord may exclude from Base
Operating Expenses capital expenditures otherwise permitted,
provided Landlord shall also exclude any amortization of such
expenditures from Subsequent Operating Expenses.
(b) ELIMINATION OF RECURRING EXPENSES. If Landlord eliminates from
any Subsequent Operating Expenses a category of recurring
expenses previously included in Base Operating Expenses, Landlord
may subtract such category from Base Operating Expenses
commencing with such subsequent Adjustment Period.
(c) NEW RECURRING EXPENSES. If Landlord includes a new category of
recurring Subsequent Operating Expenses not previously included
in Base Operating Expenses, Landlord shall also include an amount
(the "Assumed Base Amount") for such category in Base Operating
Expenses commencing in such subsequent Adjustment Period.
(d) ASSUMED BASE AMOUNT. The "Assumed Base Amount" under ss. 4.6(c)
above shall be the annualized amount of expenses for such new
category in the first Adjustment Period it is included, reduced
by an amount determined in Landlord's sole good faith discretion
(but in no event by an amount less than five percent (5%)) for
each full or partial Adjustment Period that has elapsed during
the Term of the Lease before such Adjustment Period.
7.7 ADJUSTMENT OF REAL ESTATE TAXES. If Base Real Estate Taxes are reduced as
the result of protest, by means of agreement, as the result of legal
proceedings, or otherwise, Landlord may adjust Tenant's obligations for Real
Estate Taxes in all years affected by any refund of taxes following the Base Tax
Year; and Tenant shall pay Landlord within thirty (30)days after notice any
additional amount required by such adjustment for any Adjustment Periods that
have theretofore occurred. Tenant shall be entitled to receive a share of any
refund or abatement of Real Estate Taxes received by Landlord to the extent of
and in proportion to Tenant's actual contribution to the amount of Real Estate
Taxes paid by Landlord during the period to which such refund or abatement
relates, but in no event shall Tenant be entitled to any refund with respect to
Real Estate Taxes paid by Landlord during Tenant's Base Tax Year. If Real Estate
Taxes for any Adjustment Period during the Term or any extension thereof shall
be increased after payment thereof by Landlord for any reason, including error
or reassessment by applicable governmental authorities, Tenant shall pay
Landlord upon demand Tenant's Pro Rata Share of such increased Real Estate
Taxes. Tenant shall pay increased Real Estate Taxes whether Real Estate Taxes
are increased as a result of increases in the assessment or valuation of the
Property (whether based on a sale, change in ownership, refinancing of the
Property, or otherwise), increases in the tax rates, reduction or elimination of
any rollbacks or other deductions available under current law, scheduled
reductions of any tax abatement, as a result of the elimination, invalidity, or
withdrawal of any tax abatement, or for any other cause whatsoever.
Notwithstanding the foregoing, if any Real Estate Taxes shall be paid based on
assessments or bills by a governmental authority using a fiscal year other than
a calendar year, Landlord may elect to average the assessments or bills for the
subject calendar year, based on the number of months of such calendar year
included in each such assessment or xxxx.
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
7.8 ALLOCATION WITHIN COMPLEX. So long as the Property shall be part of the
Complex collectively owned or managed by Landlord or its affiliates or
collectively managed by Landlord's managing agent, Landlord may allocate Real
Estate Taxes, Utilities, and Operating Expenses within the Complex and between
the buildings and structures comprising the Complex and the parcels on which
they are located, in accordance with sound accounting and management principles.
In the alternative, Landlord shall have the right to determine, in accordance
with sound accounting and management principles, Tenant's Pro Rata Share of Real
Estate Taxes, Utilities, and Operating Expenses based upon the totals of each of
the same for all such buildings and structures, the land constituting parcels on
which the same are located, and all related facilities, including common areas
and easements, corridors, lobbies, sidewalks, elevators, loading areas, parking
facilities, driveways, and other appurtenances and public areas, in which event
Tenant's Pro Rata Share shall be based on the ratio of the rentable area of the
Premises to the rentable area of all buildings in the Complex.
7.9 LANDLORD'S RECORDS. Landlord shall maintain records with respect to Real
Estate Taxes, Utilities, and Operating Expenses and determine the same in
accordance with sound accounting and management practices, consistently applied.
Although this Lease contemplates the computation of Real Estate Taxes,
Utilities, and Operating Expenses on a cash basis, Landlord shall make
reasonable and appropriate accrual adjustments to ensure that each Adjustment
Period includes substantially the same recurring items. Landlord reserves the
right to change to a full accrual system of accounting so long as the same is
consistently applied and Tenant's obligations are not materially adversely
affected. Tenant or its representative shall have the right to examine such
records, upon reasonable prior written notice specifying such records Tenant
desires to examine, during normal business hours at the place or places where
such records are normally kept, by sending such notice no later than forty-five
(45) days following the furnishing of the Statement.
7.10 OTHER TAXES PAYABLE BY TENANT. In addition to the Base Rent and any other
charges to be paid by Tenant hereunder, Tenant shall, as an element of Rent,
reimburse Landlord upon demand for any and all taxes payable by Landlord (other
than net income taxes) which are not otherwise reimbursable under this Lease,
whether or not now customary or within the contemplation of the parties, where
such taxes are upon, measured by, or reasonably attributable to (A) the cost or
value of Tenant's equipment, furniture, fixtures, and other personal property
located at the Premises, or the cost or value of any improvements made in or to
the Premises by or for Tenant, regardless of whether title to such improvements
is held by Tenant or Landlord; (B) the gross or net Rent payable under this
Lease, including any rental or gross receipts tax levied by any taxing authority
with respect to the receipt of the Rent hereunder; (C) the possession, leasing,
operation, management, maintenance, alteration, repair, use, or occupancy by
Tenant of the Premises or any portion thereof; or (D) this transaction or any
document to which Tenant is a party creating or transferring an interest or an
estate in the Premises. Tenant shall pay any rent tax, sales tax, service tax,
transfer tax, value-added tax, or any other applicable tax on the Rent or
services herein or otherwise respecting this Lease.
7.11 RENT CONTROL. If the amount of Rent or any other payment due under this
Lease violates the terms of any governmental restrictions on such Rent or
payment, then the Rent or payment due during the period of such restrictions
shall be the maximum amount allowable under those restrictions. Upon termination
of the restrictions, Landlord shall, to the extent it is legally permitted,
recover from Tenant the difference between the amounts received during the
period of the restrictions and the amounts Landlord would have received had
there been no restrictions.
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
(8) SECURITY DEPOSIT
8.1 DEPOSIT FOR SECURITY. Tenant shall deposit with Landlord the amount of
SEVENTEEN THOUSAND ELEVEN DOLLARS AND FORTY CENTS ($17,011.40) (the "Security
Deposit") upon Tenant's execution and submission of this Lease. The Security
Deposit shall serve as security for the prompt, full, and faithful performance
by Tenant of the terms and provisions of this Lease. Landlord shall not be
required to keep the Security Deposit separate from Landlord's general funds or
pay interest on the Security Deposit.
8.1.1 APPLICATION OF DEPOSIT. In the event that Tenant is in Default
hereunder and fails to cure within any applicable time permitted under this
Lease, or in the event that Tenant owes any amounts to Landlord upon the
expiration of this Lease, Landlord may use or apply the whole or any part
of the Security Deposit for the payment of Tenant's obligations hereunder.
The use or application of the Security Deposit or any portion thereof shall
not prevent Landlord from exercising any other right or remedy provided
hereunder or under any Law and shall not be construed as liquidated
damages.
8.1.2 RESTORATION OF FULL DEPOSIT. In the event the Security Deposit is
reduced by such use or application, Tenant shall deposit with Landlord,
within ten (10) days after written notice, an amount sufficient to restore
the full amount of the Security Deposit. If the Premises shall be expanded
at any time, or if the Term shall be extended at any increased rate of
Rent, the Security Deposit shall thereupon be proportionately increased.
8.1.3 DISPOSITION OF SECURITY DEPOSIT. After the Expiration Date or any
earlier termination of the Lease, any remaining portion of the Security
Deposit shall be returned to Tenant in accordance with the provisions of
ss. 1950.7 of the California Civil Code.
(9) COMPLIANCE WITH LAWS
9.1 TENANT'S COMPLIANCE WITH LAWS. Tenant shall use the Premises in compliance
with all applicable federal, state, county, and local governmental and municipal
laws, statutes, ordinances, rules, regulations, codes, decrees, orders, and
other such requirements, and decisions by courts in cases where such decisions
are considered binding precedents in the State of California (the "State"), and
decisions of federal courts applying the laws of the State (collectively
"Laws"). Tenant shall, at its sole cost and expense, promptly comply with each
and all of such Laws, and also with the requirements of any board of fire
underwriters or other similar body now or hereafter constituted to deal with the
condition, use, or occupancy of the Premises, except in the case of required
structural changes not triggered by Tenant's change in use of the Premises or
Tenant's alterations, additions, or improvements therein. Tenant shall comply
with all applicable Laws regarding the physical condition of the Premises, but
only to the extent that the applicable Laws pertain to the particular manner in
which Tenant uses the Premises or the particular use to which Tenant puts the
Premises, if different from that permitted under Article 2 of this Lease. Tenant
shall also comply with all applicable Laws which do not relate to the physical
condition of the Premises and with which only the occupant can comply, such as
laws governing maximum occupancy, workplace smoking, VDT regulations, and
illegal business operations, such as gambling. The judgement of any court of
competent jurisdiction or the admission of Tenant in any judicial action,
regardless of whether Landlord is a party thereto, that Tenant has violated any
of such Laws shall be conclusive of that fact as between Landlord and Tenant.
9.1.1 CODE COSTS. Notwithstanding anything to the contrary in this Article
6, if the requirement of any public authority obligates either Landlord or
Tenant to expend money in order to bring the Premises and/or any area of
the Property into compliance with Laws as a result of (a) Tenant's
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
particular use or alteration of the Premises; (b) Tenant's change in the
use of the Premises; (c) the manner of conduct of Tenant's business or
operation of its installations, equipment, or other property therein; (d)
any cause or condition created by or at the instance of Tenant, other than
by Landlord's performance of any work for or on behalf of Tenant; or (e)
breach of any of Tenant's obligations hereunder, then Tenant shall bear all
costs ("Code Costs") of bringing the Premises and/or Property into
compliance with Laws, whether such Code Costs are related to structural or
nonstructural elements of the Premises or Property.
9.2 LANDLORD'S COMPLIANCE WITH LAWS. Landlord represents that on the
Commencement Date Landlord has no actual knowledge of any violation of any
applicable Laws respecting the Premises. During the Term Landlord shall comply
with all applicable Laws regarding the Premises and Property, except to the
extent Tenant must comply under ss. 6.1 above.
(10) HAZARDOUS MATERIALS
10.1 REGULATION OF HAZARDOUS MATERIALS. Tenant shall not transport, use, store,
maintain, generate, manufacture, handle, dispose, release, or discharge any
"Hazardous Material" (as defined below) upon or about the Property, nor permit
Tenant's employees, agents, contractors, and other occupants of the Premises to
engage in such activities upon or about the Property. However, the foregoing
provisions shall not prohibit the transportation to and from, and use, storage,
maintenance, and handling within, the Premises of substances customarily used in
offices, provided all of the following conditions are met:
(a) such substances shall be used and maintained only in such
quantities as are reasonably necessary for such permitted use of
the Premises, strictly in accordance with applicable Laws and the
manufacturers' instructions therefor;
(b) such substances shall not be disposed of, released, or discharged
on the Property and shall be transported to and from the Premises
in compliance with all applicable Laws, and as Landlord shall
reasonably require;
(c) if any applicable Laws or Landlord's trash removal contractor
requires that any such substances be disposed of separately from
ordinary trash, Tenant shall make arrangements at Tenant's
expense for such disposal directly with a qualified and licensed
disposal company at a lawful disposal site (subject to scheduling
and approval by Landlord), and shall ensure that disposal occurs
frequently enough to prevent unnecessary storage of such
substances in the Premises; and
(d) any remaining such substances shall be completely, properly, and
lawfully removed from the Property upon expiration or earlier
termination of this Lease.
10.1.1DEFINITION OF HAZARDOUS MATERIAL. The term "Hazardous Material" for
purposes hereof shall mean any chemical, substance, material, or waste or
component thereof which is now or hereafter listed, defined, or regulated
as a hazardous or toxic chemical, substance, material, or waste or
component thereof by any federal, state, or local governing or regulatory
body having jurisdiction, or which would trigger any employee or community
"right-to-know" requirements adopted by any such body, or for which any
such body has adopted any requirements for the preparation or distribution
of an MSDS.
10.2 NOTIFICATION OF LANDLORD. Tenant shall promptly notify Landlord of (A) any
enforcement, cleanup, or other regulatory action taken or threatened by any
governmental or regulatory authority with respect to the presence of any
Hazardous Material on the Premises or the migration thereof from or to
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
other property; (B) any demands or claims made or threatened by any party
against Tenant or the Premises relating to any loss or injury resulting from any
Hazardous Material on or from the Premises; and (C) any matters where Tenant is
required by law to give a notice to any governmental or regulatory authority
respecting any Hazardous Material on the Premises. Landlord shall have the right
(but not the obligation) to join and participate, as a party, in any legal
proceedings or actions affecting the Premises initiated in connection with any
environmental, health, or safety law.
10.3 LIST OF HAZARDOUS MATERIALS. At such times as Landlord may reasonably
request, Tenant shall provide Landlord with a written list identifying any
Hazardous Material then used, stored, or maintained upon the Premises, the use
and approximate quantity of each such material, a copy of any material safety
data sheet ("MSDS") issued by the manufacturer thereof, written information
concerning the removal, transportation, and disposal of the same, and such other
information as Landlord may reasonably require or as may be required by law.
10.4 CLEANUP. If any Hazardous Material is released, discharged or disposed of
by Tenant or any other occupant of the Premises, or their employees, agents, or
contractors, on or about the Property in violation of the foregoing provisions,
Tenant shall immediately, properly, and in compliance with applicable Laws clean
up and remove the Hazardous Material from the Property and any other affected
property and clean or replace any affected personal property (whether or not
owned by Landlord), at Tenant's expense. Such clean up and removal work shall be
subject to Landlord's prior written approval (except in emergencies), and shall
include any testing, investigation, and the preparation and implementation of
any remedial action plan required by any governmental body having jurisdiction
or reasonably required by Landlord. If Tenant shall fail to comply with the
provisions of this ss. 7.2 within five (5) days after written notice by
Landlord, or such shorter time as may be required by Laws or in order to
minimize any hazard to persons or property, Landlord may (but shall not be
obligated to) arrange for such compliance directly or as Tenant's agent through
contractors or other parties selected by Landlord, at Tenant's expense (without
limiting Landlord's other remedies under this Lease or applicable Laws).
10.5 CASUALTY DAMAGE. If any Hazardous Material is released, discharged, or
disposed of on or about the Property and such release, discharge, or disposal is
not caused by Tenant or other occupants of the Premises, or their employees,
agents, or contractors, such release, discharge, or disposal shall be deemed
casualty damage under Article 15 to the extent that the Premises or common areas
serving the Premises are affected thereby; in such case, Landlord and Tenant
shall have the obligations and rights respecting such casualty damage provided
under Article 15 of this Lease.
10.6 REFRIGERANT. Tenant shall not install any refrigerant-containing systems or
equipment, including refrigerators, freezers, supplemental HVAC systems or
self-contained air conditioners, without Landlord's prior approval, which
Landlord may withhold in its sole discretion. Unless Tenant shall have obtained
Landlord's prior written approval to install existing equipment after an
inspection, at Tenant's sole cost and expense, by Landlord's engineer for
defects and proper proposed installation in the Premises, all
refrigerant-containing equipment and/or systems which Tenant installs in the
Premises shall be new. Whether Tenant's refrigerant-containing equipment or
systems are defective and are properly installed shall be determined at the sole
discretion of Landlord's engineer. If Tenant wishes to install any
refrigerant-containing equipment or systems, Tenant shall obtain and provide
Landlord with copies of all required permits associated with such equipment or
systems.
10.6.1REMOVAL OF REFRIGERANT. Notwithstanding anything to the contrary in
this Lease, Tenant shall remove all refrigerant and refrigerant-containing
equipment and/or systems installed in the Premises by or on behalf of
Tenant prior to the Expiration Date of this Lease. Prior to the removal of
any such refrigerant or refrigerant-containing equipment and/or systems,
Tenant shall submit to
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
Landlord for Landlord's approval, the names of Tenant's contractors and all
plans and specifications for such removal. Tenant and Tenant's contractors
shall comply with all legal requirements, industry practices and rules
established by Landlord in performing such removal work. Tenant shall
repair any damage to the Property or the Systems and Equipment associated
with such removal, and Tenant shall be responsible for the costs associated
with restoring the Property to the condition which existed immediately
prior to any modification undertaken by Landlord in order to accommodate
Tenant's refrigerant-containing equipment or systems.
(11) SERVICES AND UTILITIES
11.1 LANDLORD'S SERVICES. Landlord agrees to provide, on the terms and
conditions specified herein, the following services and utilities for Tenant's
use and consumption in the Premises, the cost of which shall be included in
Operation Expenses and/or Utilities and reimbursed to Landlord in accordance
with ss. 4.1 above:
(a) ELECTRICITY. Electricity for standard office lighting fixtures
and for equipment and accessories customary for offices, provided
(i) the connected electrical load of all the same does not exceed
an average of four (4) xxxxx per usable square foot of the
Premises (or such lesser amount as may be available, based on the
safe and lawful capacity of the existing electrical circuit(s)
and facilities serving the Premises); (ii) the electricity will
be at nominal 120 volts, single phase (or 110 volts, depending on
available service in the Building); and (iii) the safe and lawful
capacity of the existing electrical circuit(s) serving the
Premises is not exceeded. Landlord will permit its electric
feeders, risers, and wiring servicing the Premises to be used by
Tenant to the extent available and safely capable of being used
for such purpose.
(b) TELECOMMUNICATIONS INTERFACE. Interface with the telephone
network at the demarcation point or minimum point of entry
("MPOE") supplied by the local regulated public utility by means
of Landlord's INC consisting of cable pairs with a capacity
consistent with the engineering standards to which the Building
was designed.
(c) HVAC. Heat, ventilation, and air-conditioning ("HVAC") to provide
a temperature required, in Landlord's reasonable opinion and in
accordance with applicable Laws, for the comfortable occupancy of
the Premises during business hours (as defined in ss. 8.1.1
below). Landlord shall not be responsible for inadequate
air-conditioning or ventilation to the extent the same occurs
because Tenant uses any item of equipment consuming more than 500
xxxxx at rated capacity without providing adequate
air-conditioning and ventilation therefor.
(d) WATER. Water for drinking, lavatory and toilet purposes at those
points of supply provided for nonexclusive general use of other
tenants at the Property.
(e) JANITORIAL SERVICES. Customary office cleaning and trash removal
service Monday through Friday or Sunday through Thursday in and
about the Premises.
(f) ELEVATOR SERVICES. Operatorless passenger elevator service and
freight elevator service (if the Property has such equipment
serving the Premises, and subject to scheduling by Landlord) in
common with Landlord and other tenants and their contractors,
agents, and visitors.
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
11.1.1BUSINESS HOURS. The term BUSINESS HOURS in this Lease shall mean the
hours from 8:00 a.m. until 6:00 p.m. on Monday through Friday and from 9:00
a.m. until 1:00 p.m. on Saturday throughout the year, except for New Year's
Day, Presidents' Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, Christmas Day, and any other federally-observed holiday
which may be created during the Term ("Holidays").
11.2 ADDITIONAL ELECTRICAL CAPACITY. Any additional risers, feeders, or other
equipment or service proper or necessary to supply Tenant's electrical
requirements will be installed by Landlord, upon written request of Tenant, at
the sole cost and expense of Tenant, if, in Landlord's sole judgement, the same
are necessary and will not cause permanent damage or injury to the Property, the
Premises, or the Systems and Equipment or cause or create a dangerous or
hazardous condition or entail excessive or unreasonable alterations, repairs, or
expense or interfere with or disturb other tenants or occupants. Rigid conduit
only will be allowed.
11.2.1APPROVED ELECTRICAL LOAD. Tenant agrees not to connect any additional
electrical equipment of any type to the building electric distribution
system, beyond that on Tenant's approved plans for initial occupancy, other
than lamps, typewriters, and other office machines which consume comparable
amounts of electricity or other electrical equipment which in the aggregate
consumes the same amount of electricity as those approved for initial
occupancy and will not result in any overload of electrical circuits,
lines, or wiring, without Landlord's prior written consent. In no event
shall Tenant use or install any fixtures, equipment, or machines the use of
which in conjunction with other fixtures, equipment, and machines in the
Premises would result in an overload or the electrical circuits servicing
the Premises. Tenant covenants and agrees that at all times its use of
electric current shall never exceed the capacity of the feeders to the
Building or the risers or wiring installation existing at the time in
question.
11.3 ADDITIONAL TELECOMMUNICATIONS CAPACITY. If Tenant desires any
telecommunications capacity in excess of that available as of the Commencement
Date in the form of the INC between the MPOE and the telephone closet nearest
the Premises and provided pursuant to ss. 8.1 above, Tenant shall bear the cost
of installing additional risers or INC or replacing existing INC serving the
Premises pursuant to Article 9 below.
11.4 REPLACEMENT BULBS AND TUBES. Tenant shall furnish, install, and replace, as
required, all non-Building-standard lighting tubes, lamps, and bulbs required in
the Premises, at Tenant's sole cost and expense. All lighting tubes, lamps, and
bulbs so installed become Landlord's property upon the expiration or sooner
termination of this Lease.
11.5 TWENTY-FOUR HOURS ACCESS. Subject to the provisions of ss. 8.8, Tenant, its
employees, agents, and invitees shall have access to the Premises twenty-four
(24) hours a day, seven (7) days a week. Landlord may restrict access outside of
business hours by requiring persons to show a badge or identification card
issued by Landlord. Landlord shall not be liable for denying entry to any person
unable to show the proper identification. Landlord may without liability
temporarily close the Building if required because of a life-threatening or
Building-threatening situation.
11.6 EXTRA SERVICES. Landlord shall, subject to all applicable Laws, seek to
provide such utilities or services in excess of those Landlord is required to
provide under ss. 8.1 above as Tenant may from time to time request, if the same
are reasonable and feasible for Landlord to provide and do not involve
modifications or additions to the Property or the Systems and Equipment and if
Landlord shall receive Tenant's request within a reasonable period prior to the
time such extra utilities or services are required.
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
Landlord may comply with written or oral requests by any officer or employee of
Tenant, unless Tenant shall notify Landlord of, or Landlord shall request, the
names of authorized individuals (up to three (3) for each floor on which the
Premises are located) and procedures for written requests. Tenant shall, for
such extra utilities or services, pay such charges as Landlord shall from time
to time establish.
11.6.1EXTRAORDINARY SERVICE USAGE. If Tenant shall utilize Building
services for the Premises at any time other than during business hours,
Landlord shall furnish such extraordinary services (excluding
air-conditioning, except as provided below) at Landlord's then-current
prevailing rate for such services. In addition to the foregoing services,
if Tenant shall require air-conditioning service for the Premises at any
time other than during business hours, Landlord shall, upon reasonable
advance notice from Tenant, furnish such after-hours air-conditioning
service at Landlord's then-current prevailing rate for such services as a
separate charge; provided, however, in the event Tenant requests such
after-hours air-conditioning service at a time not immediately preceding or
immediately succeeding times when "regular hours" service is being
furnished hereunder, then Tenant must request not less than five (5) hours
of after-hours air-conditioning service. Notwithstanding anything contained
herein to the contrary, Landlord's prevailing rate for the extraordinary
services described herein shall be subject to increase from time to time as
Landlord may reasonably determine.
11.6.2PAYMENT FOR EXCESS USAGE. All charges for extra utilities or services
or those requested outside business hours shall be due at the same time as
the installment of Base Rent with which the same are billed, or if billed
separately, shall be due within twenty (20) days after such billing.
11.6.3CHANGES IN HVAC SYSTEM. Use of the Premises, or any part thereof, in
a manner exceeding the design conditions (including occupancy and connected
electrical load) for the heating or cooling units in the Premises, or
rearrangement of partitioning which interferes with normal operation of the
HVAC system in the Premises, may require changes in the HVAC system
servicing the Premises. Such changes shall be made by Tenant, at its
expense, as Tenant's Changes pursuant to Article 9. Tenant shall not change
or adjust any closed or sealed thermostat or other element of the HVAC
system without Landlord's express prior written consent.
11.6.4SEPARATE METERING. Landlord may install and operate meters or any
other reasonable system for monitoring or estimating any services or
utilities used by Tenant in excess of those required to be provided by
Landlord under this Article 8 (including a system for Landlord's engineer
reasonably to estimate any such excess usage). If such system indicates
such excess services or utilities, Tenant shall pay Landlord's reasonable
charges for installing and operating such system and any supplementary
air-conditioning, ventilation, heat, electrical, or other systems or
equipment (or adjustments or modifications to the existing Systems and
Equipment), and Landlord's reasonable charges for such amount of excess
services or utilities used by Tenant. If Tenant's use of extra utilities or
services causes Landlord's regulated baseline quantities of water, gas,
electricity, or any other utility or service to be exceeded, Tenant shall
pay for such excess quantities of such utilities or services at the rate
which is imposed upon Landlord for quantities in excess of the regulated
baseline. In addition, Tenant shall pay prior to delinquency any fine or
penalty which may be imposed upon or assessed against Landlord or the
Building or the Property by virtue of Tenant's excess usage of any services
or utilities, including water, gas, and electricity.
11.7 INTERRUPTION OF SERVICES. Landlord does not warrant that any services or
utilities provided hereunder for Tenant's use in the Premises will be free from
shortages, failures, variations, or interruptions caused by repairs,
maintenance, replacements, improvements, alterations, changes of service,
strikes, lockouts, labor controversies, accidents, inability to obtain services,
fuel, steam, water or
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
supplies, governmental requirements or requests, or other causes beyond
Landlord's reasonable control, including interference with light or other
incorporeal hereditaments and any interruption in services or any failure to
provide services to Landlord by a designated utility company at the demarcation
point at which Landlord accepts responsibility for such service or at any point
prior thereto, which interference impedes Landlord in furnishing plumbing, HVAC,
electrical, sanitary, life safety, elevator, telecommunications, or other
Building services, utilities, or the Systems and Equipment. None of the same
shall be deemed an eviction or disturbance of Tenant's use and possession of the
Premises or any part thereof, shall render Landlord liable to Tenant for
abatement of Rent, or shall relieve Tenant from performance of Tenant's
obligations under this Lease. Landlord in no event shall be liable for damages
by reason of loss of profits, business interruption, or other compensatory or
consequential damages.
11.8 SAFETY AND SECURITY DEVICES, SERVICES, AND PROGRAMS. The parties
acknowledge that safety and security devices, services, and programs provided by
Landlord, if any, while intended to deter crime and ensure safety, may not in
given instances prevent theft or other criminal acts or ensure safety of persons
or property, and such devices, services and programs shall not under any
circumstances be deemed to be a guaranty, representation, or warranty by
Landlord to Tenant or any third parties as to the safety or protection of person
or property. The risk that any safety or security device, service, or program
may not be effective, or may malfunction, or be circumvented by a criminal, is
assumed by Tenant with respect to Tenant's property and interests; and Tenant
shall obtain insurance coverage to the extent Tenant desires protection against
such criminal acts and other losses, as further described in Article 14. Tenant
agrees to cooperate in any reasonable safety or security program developed by
Landlord or required by Law.
(12) TENANT'S CHANGES
12.1 TENANT'S REQUESTED CHANGES. Tenant may, subject to ss. 9.2 below, from time
to time during the Term of this Lease, at its expense, make such alterations,
additions, installations, substitutions, improvements, and decorations
(collectively "Tenant's Changes") in and to the Premises as Tenant may
reasonably consider necessary for the conduct of its business in the Premises
(except for changes which would require modification of the Property outside the
Premises), on the following conditions:
(a) the outside appearance or the strength of the Building or of any
of its structural parts shall not be affected, and Tenant shall
cause no penetration of the roof or the exterior fabric of the
Building;
(b) no part of the Building outside of the Premises shall be
physically affected;
(c) the proper functioning of any of the Systems and Equipment shall
not be adversely affected, and the usage of such systems by
Tenant shall not be increased;
(d) no such change shall require the addition of new INC riser cable
or expand the number of telephone pairs dedicated to the Premises
by the Buildings' telecommunications engineering design;
(e) in performing the work involved in making such changes, Tenant
shall be bound by and observe all of the conditions and covenants
contained in the following sections of this Article 9; and
(f) with respect to Tenant's Changes, Tenant shall make all
arrangements for, and pay all expenses incurred in connection
with, use of the freight elevators servicing the Premises.
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
12.2 PLANS AND APPROVAL. Before proceeding with any Tenant's Changes, Tenant
shall advise Landlord thereof and arrange a meeting with the Building Manager,
the Building Architect, and/or the Building Contractor, as required by Landlord
in relation to the scope of the proposed Changes. Except in extraordinary
circumstances which would reasonably require an exception, all work to be
performed in the Building shall be performed by the Building Contractor on the
basis of plans and drawings prepared by the Building Architect. If Landlord
grants permission for Tenant to utilize another contractor and/or architect for
its Changes, before proceeding with any Tenant's Changes, Tenant shall submit to
Landlord plans and specifications and all changes and revisions thereto for the
work to be done for Landlord's reasonable approval; and Tenant shall, upon
demand of Landlord, pay to Landlord the reasonable costs incurred and paid to
third parties by Landlord for the review of such plans and specifications and
all changes and revisions thereto by its architect, engineer, and other
consultants. Landlord may as a condition of its approval require Tenant to make
reasonable revisions in and to the plans and specifications. Landlord may
require Tenant to post a bond or other security reasonably satisfactory to
Landlord to insure the completion of such change. If Landlord consents to any
Tenant's Changes or supervises the work of constructing any Tenant's Changes,
such consent or supervision shall not be deemed a warranty as to the adequacy of
the design, workmanship, or quality of materials, and Landlord hereby expressly
disclaims any responsibility or liability for the same. Landlord shall under no
circumstances have any obligation to repair, maintain, or replace any portion of
such work.
12.2.1AS-BUILT PLANS. Within thirty (30) days after completion of Tenant's
Changes requiring the submission of plans to Landlord, Tenant shall furnish
to Landlord a complete set of "as-built" plans and specifications.
12.3 PERMITS AND PERFORMANCE. Tenant, at its expense, shall obtain all necessary
governmental permits and certificates for the commencement and prosecution of
Tenant's Changes and for final approval thereof upon completion and shall
furnish copies thereof to Landlord. Tenant shall cause Tenant's Changes to be
performed in compliance therewith and with all applicable Laws and requirements
of public authorities and with all applicable requirements of insurance bodies,
and in good and workmanlike manner, using new materials and equipment at least
equal in quality and class to the original installations in the Property.
Tenant's Changes shall be performed in such manner as not unreasonably to
interfere with, delay, or impose any additional expense upon Landlord in the
renovation, maintenance, or operation of the Property or any portion thereof,
unless Tenant shall indemnify Landlord therefor to the latter's reasonable
satisfaction.
12.4 CONTRACTORS. All electrical, mechanical, and plumbing work in connection
with Tenant's Changes shall be performed by Landlord's contractors at Tenant's
expense. If Tenant shall request any electrical, mechanical, or plumbing work in
connection with Tenant's Changes, Landlord shall request Landlord's contractors
to furnish Tenant with prices to perform the same prior to prosecuting same. In
addition to the foregoing, and notwithstanding anything to the contrary in this
Article 9, Landlord may, at Landlord's option, require that the work of
constructing any Tenant's Changes be performed by Landlord's contractor, in
which case the cost of such work shall be paid for before commencement of the
work.
12.5 SUPERVISION AND FEE. Landlord may require that all work of constructing
Tenant's Changes be performed under Landlord's supervision. If Landlord does not
elect to require that Tenant use Landlord's contractor, and if Tenant chooses to
use its own contractor for the work of constructing Tenant's Changes, Tenant
shall pay to Landlord upon completion of any such work by Tenant's contractor an
administrative fee of fifteen percent (15%) of the cost of the work, to cover
Landlord's overhead in reviewing Tenant's plans and specifications and
performing any supervision of the work of
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
Tenant's Changes. If Tenant chooses to use Landlord's contractor for such work,
Tenant shall pay to Landlord upon completion an administrative fee equal to five
percent (5%) of the cost of the work.
12.6 RESTORATION OF FIXTURES. If any of Tenant's Changes shall involve the
removal of any fixtures, equipment, or other property in the Premises which are
not Tenant's Property (as defined in Article 10), such fixtures, equipment, or
other property shall be promptly replaced, at Tenant's expense, with new
fixtures, equipment, or other property (as the case may be) of like utility and
at least equal value, unless Landlord shall otherwise expressly consent in
writing; and Tenant shall, upon Landlord's request, store and preserve, at
Tenant's sole cost and expense, any such fixtures, equipment or property so
removed and shall return same to Landlord upon the expiration or sooner
termination of this Lease.
12.7 MECHANIC'S LIENS. Tenant shall keep the Property and Premises free from any
mechanic's, materialman's, or similar liens or other such encumbrances,
including the liens of any security interest in, conditional sales of, or
chattel mortgages upon, any materials, fixtures, or articles so installed in and
constituting part of the Premises, in connection with any Tenant's Changes on or
respecting the Premises not performed by or at the request of Landlord and shall
indemnify, defend, protect, and hold Landlord harmless from and against any
claims, liabilities, judgements, or costs (including attorneys' fees) arising
out of the same or in connection with any such lien, security interest,
conditional sale or chattel mortgage or any action or proceeding brought
thereon. Tenant shall give Landlord written notice at least twenty (20) days
prior to the commencement of work on any Tenant's Change in the Premises (or
such additional time as may be necessary under applicable Laws), in order to
afford Landlord the opportunity of posting and recording appropriate notices of
nonresponsibility. Tenant shall remove any such lien or encumbrance by bond or
otherwise within thirty (30) days after written notice by Landlord; and if
Tenant shall fail to do so, Landlord may pay the amount necessary to remove such
lien or encumbrance, without being responsible for investigating the validity
thereof. The amount so paid shall be deemed Additional Rent under this Lease
payable upon demand, without limitation as to other remedies available to
Landlord under this Lease. Nothing contained in this Lease shall authorize
Tenant to do any act which shall subject Landlord's title to the Property or
Premises to any liens or encumbrances, whether claimed by operation of law or
express or implied contract. Any claim to a lien or encumbrance upon the
Property or Premises arising in connection with any Work on or respecting the
Premises not performed by or at the request of Landlord shall be null and void,
or, at Landlord's option, shall attach only against Tenant's interest in the
Premises and shall in all respects be subordinate to Landlord's title to the
Property and Premises.
12.8 NOTICES OF VIOLATION. Tenant, at its expense, and with diligence and
dispatch, shall procure the cancellation or discharge of all notices of
violation arising from or otherwise connected with Tenant's Changes which shall
be issued by any governmental, public, or quasi-public authority having or
asserting jurisdiction. However, nothing herein contained shall prevent Tenant
from contesting, in good faith and at its own expense, any such notice of
violation, provided that Landlord's rights hereunder are in no way compromised
or diminished thereby.
12.9 INDUSTRIAL RELATIONS. Tenant agrees that the exercise of its rights
pursuant to the provisions of this Article 9 or any other provision of this
Lease shall not be done in a manner which would create any work stoppage,
picketing, labor disruption, or dispute or violate Landlord's union contracts
affecting the Property and/or Complex or interfere with the business of Landlord
or any Tenant or occupant of the Building. Tenant shall, immediately upon notice
from Landlord, cease any activity, whether or not permitted by this Lease,
giving rise to such condition. If Tenant fails to do so, Landlord, in addition
to any rights available to it under this Lease and pursuant to Law, shall have
the right to an EX PARTE injunction without notice.
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
(13) TENANT'S PROPERTY
13.1 FIXTURES AND IMPROVEMENTS. All fixtures, equipment, improvements,
alterations, and appurtenances attached to or built into the Premises at the
commencement of or during the Term of this Lease, including cabinets, sinks,
faucets, appliances, hot water heaters, etc. (collectively "Improvements"),
whether or not by or at the expense of Tenant, shall be and remain a part of the
Premises, shall be deemed the property of Landlord, and shall not be removed by
Tenant, except as expressly provided in Article 11 below.
13.2 TENANT'S PROPERTY AND TRADE FIXTURES. All movable partitions, trade
fixtures, office machinery and equipment, communications equipment, and computer
equipment (whether or not attached to or built into the Premises) which are
installed in the Premises by or for the account of Tenant, without expense to
Landlord and which can be removed without structural damage to the Property, and
all furniture, furnishings, and other articles of movable personal property
owned by Tenant and located in the Premises (collectively "Tenant's Property")
shall be and shall remain the property of Tenant and may be removed by it at any
time during the Term of this Lease; provided that if any of Tenant's Property is
removed, Tenant or any party or person entitled to remove same shall repair or
pay the cost of repairing any damage to the Premises or to the Property
resulting from such removal. Any equipment or other property for which Landlord
shall have granted any allowance or credit to Tenant or which has replaced such
items originally provided by Landlord at Landlord's expense shall not be deemed
to have been installed by or for the account of Tenant, without expense to
Landlord, and shall not be considered Tenant's Property.
(14) CONDITION UPON SURRENDER
14.1 CONDITION AND RESTORATION. At or before the Expiration Date or the date of
any earlier termination of this Lease, or as promptly as practicable using
Tenant's best efforts after such an earlier termination date, Tenant, at its
expense, shall do all of the following:
(a) surrender possession of the Premises in the condition required
underss. 12.1 below, ordinary wear and tear excepted;
(b) surrender all keys, any key cards, and any parking stickers or
cards to Landlord and give Landlord in writing the combinations
of any locks or vaults then remaining in the Premises;
(c) remove from the Premises all of Tenant's Property, except such
items thereof as Tenant shall have expressly agreed in writing
with Landlord were to remain and to become the property of
Landlord; and
(d) remove from the Premises all data and phone wiring unless
Landlord at Landlord sole discretion, shall have expressly agreed
in writing for the data and phone wiring to remain and to become
the property of Landlord; and
(e) fully repair any damage to the Premises or the Property resulting
from such removal.
Tenant's obligations herein shall survive the expiration or earlier termination
of the Lease, unless expressly provided to the contrary herein. All Improvements
and other items in or upon the Premises (except Tenant's Property), whether
installed by Tenant or Landlord, shall be Landlord's property and shall remain
upon the Premises, all without compensation, setoff, allowance, or credit to
Tenant;
Oyster Point Marina Plaza Office Lease
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
provided, however, that if prior to such expiration or earlier termination
Landlord so directs by notice, Tenant shall promptly remove such of the
Improvements in the Premises as are designated in such notice and shall restore
the Premises to their condition prior to the installation of such Improvements.
Notwithstanding the foregoing, Landlord shall not require removal of customary
office improvements installed pursuant to the Work Letter Agreement, if any
(except as expressly provided to the contrary therein), or installed by Tenant
with Landlord's written approval (except as expressly required by Landlord in
connection with granting such approval).
14.2 TENANT'S FAILURE TO REMOVE OR RESTORE. After written notice by Landlord, if
Tenant shall fail to perform any repairs or restoration or fail to remove any
items from the Premises as required under this Article 11, Landlord may do so,
and Tenant shall pay Landlord the cost thereof upon demand. All property removed
from the Premises by Landlord pursuant to any provisions of this Lease or any
Law may be handled or stored by Landlord at Tenant's expense, and Landlord shall
in no event be responsible for the value, preservation, or safekeeping thereof.
All property not removed from the Premises or retaken from storage by Tenant
within thirty (30) days after expiration or earlier termination of this Lease or
Tenant's right to possession shall at Landlord's option be conclusively deemed
to have been conveyed by Tenant to Landlord as if by xxxx of sale without
payment by Landlord. Unless prohibited by applicable Laws, Landlord shall have a
lien against such property for the costs incurred in removing and storing the
same.
(15) REPAIRS AND MAINTENANCE
15.1 TENANT'S CARE OF PREMISES. Except for customary cleaning and trash removal
provided by Landlord under ss. 8.1 above and damage covered under Article 15,
Tenant shall keep the Premises in good and sanitary condition, working order,
and repair, including carpet, wall-covering, doors pertinent to and within the
Premises, plumbing, all telecommunications cables and wiring within Tenant's
Premises ("IW") from the interface of such IW with the INC, and other fixtures,
equipment, alterations, and improvements, whether installed by Landlord or
Tenant. In addition, Tenant, at its expense, shall promptly make all repairs,
ordinary or extraordinary, interior or exterior, structural or otherwise, in and
about the Premises and the Property, as shall be required by reason of (a) the
performance or existence of Tenant's Work or Tenant's Changes; (b) the
installation, use, or operation of Tenant's Property in the Premises; (c) the
moving of Tenant's Property in or out of the Building; or (d) the misuse or
neglect of Tenant or any of its employees, agents, or contractors. Tenant, at
its expense, shall replace all scratched, damaged, or broken doors or other
glass (other than exterior glass unless damage is caused by Tenant) in or about
the Premises and shall be responsible for all repairs, maintenance, and
replacement of wall and floor coverings in the Premises and for the repair and
maintenance of all lighting fixtures therein. All repairs except for emergency
repairs made by Tenant as provided herein shall be performed by contractors or
subcontractors approved in writing by Landlord prior to commencement of such
repairs, which approval shall not be unreasonably withheld or delayed. If Tenant
does not promptly make such arrangements, Landlord may, but need not, make such
repairs, maintenance, and replacements, and the costs paid or incurred by
Landlord therefor shall be reimbursed by Tenant promptly after request by
Landlord.
15.2 LANDLORD'S CARE OF PROPERTY. Landlord, at its expense, shall keep and
maintain the common areas of the Property and the Systems and Equipment serving
the Premises in good working order, condition, and repair and shall make all
repairs, structural and otherwise, interior and exterior, as and when needed in
or about the Premises, except for those repairs for which Tenant is responsible
pursuant to ss. 12.1 above or any other provisions of this Lease. Landlord shall
maintain and repair all INC in the Building, and Tenant shall have no right to
make repairs to INC. The cost of Landlord's maintenance and
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
repairs pursuant to this Article 12 shall be reimbursed to Landlord to the
extent provided in Article 4 above.
15.3 WAIVER BY TENANT. Tenant waives the benefits of any statute now or
hereafter in effect which would otherwise afford Tenant the right to make
repairs at Landlord's expense or to terminate this Lease because of Landlord's
failure to keep the Premises in good order, condition, and repair.
(16) RULES AND REGULATIONS
16.1 OBSERVANCE AND MODIFICATION. Tenant and its employees and agents shall
faithfully observe and comply with the Rules and Regulations attached hereto as
EXHIBIT C (the "Rules") and such reasonable changes therein (whether by
modification, elimination, or addition) as Landlord at any time or times
hereafter may make and communicate in writing to Tenant, so long as such changes
do not unreasonably affect the conduct of Tenant's business in the Premises,
except as required by any applicable Law; provided, however, that in case of any
conflict or inconsistency between the provisions of this Lease and any of the
Rules as originally promulgated or as changed, the provisions of this Lease
shall control.
16.2 APPLICATION TO TENANT. Nothing in this Lease shall be construed to impose
upon Landlord any obligation to Tenant to enforce the Rules or the terms,
covenants, or conditions in any other lease, as against any other tenant, and
Landlord shall not be liable to Tenant for violation of the same by any other
tenant or its employees, agents, or visitors.
(17) INSURANCE AND INDEMNIFICATION
17.1 TENANT'S INSURANCE. Tenant shall obtain and maintain in effect at all times
during Tenant's possession of the Premises the following insurance coverages and
policies:
17.1.1LIABILITY INSURANCE. Tenant shall maintain a policy of commercial
general liability insurance, which shall include coverages for (a) personal
injury; (b) broad-form contractual liability; (c) owner's (I.E., Tenant's)
& contractor's protective; (d) automobile liability; and (e) broad-form
property damage liability. The minimum limits of liability shall be a
combined single limit with respect to each occurrence of not less than One
Million Dollars ($1,000,000) and an aggregate limit of not less than Two
Million Dollars ($2,000,000). The policy shall contain a cross-liability
endorsement and a severability of interest clause. Tenant shall increase
the insurance coverage as required by Landlord's lender or if Landlord's
insurance consultant believes that the coverage is not adequate.
17.1.2TENANT'S BUSINESS PERSONAL PROPERTY INSURANCE. Tenant shall maintain
on all of its business personal property, including valuable business
papers and accounts receivable; operating supplies; inventory; and
furniture, fixtures, and equipment (whether owned, leased, or rented)
(collectively "Business Personal Property") an "all risk" property damage
insurance policy including coverages for earthquake damage and sprinkler
leakage and containing an agreed amount endorsement (or, if applicable, a
business owner's policy with a no-coinsurance provision) in an amount not
less than one hundred percent (100%) of the full replacement cost valuation
of such Business Personal Property. The proceeds from any such policy shall
be used by Tenant for the replacement of such Business Personal property.
17.1.3BUSINESS INTERRUPTION/EXTRA EXPENSE INSURANCE. Tenant shall maintain
business interruption or (if applicable) contingent business interruption
and extra expense insurance in such amounts as will reimburse Tenant for
direct or indirect loss of earnings and incurred costs attributable to the
perils commonly covered by Tenant's property insurance described in ss.
14.1.2
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
above but in no event less than Five Hundred Thousand ($500,00.00) per
annum. Such insurance will be carried with the same insurer that issues the
insurance for Tenant's Business Personal Property pursuant to ss. 14.1.2
above.
17.1.4OTHER COVERAGE. Tenant, at its cost, shall maintain such other
insurance as Landlord may reasonably require from time to time, but in no
event may Landlord require any other insurance which is not then available
at commercially reasonable rates.
17.2 TENANT'S INSURANCE CRITERIA. All insurance required to be maintained by
Tenant under this Lease shall conform to the following criteria:
(i) Tenant's insurance shall be issued by insurance companies
authorized to do business in the State of California with a
financial rating of at least A:XIII for any property insurance
and at least A-:IX for any liability insurance, as rated in the
most recent edition of BEST'S INSURANCE REPORTS;
(ii) Tenant's insurance shall be issued as primary and
noncontributory;
(iii) Tenant's liability and property insurance policies shall
name Tenant as the insured and Landlord, Landlord's agents, and
any Lessors and Holders (as such terms are defined in ss. 18.1
below) whose names shall have been furnished to Tenant as
additional insureds;
(iv) Tenant's insurance shall contain an endorsement requiring at
least thirty (30) days' written notice from the insurance company
to each insured and additional insured before cancellation or any
material change in the coverage, scope, or amount of any policy;
and
(v) with respect to damage to or loss of Tenant's Business
Personal Property, a waiver of subrogation must be obtained, as
required under ss. 14.4 below.
17.2.1BLANKET COVERAGE. All of the insurance requirements set forth herein
on the part of Tenant to be observed shall be deemed satisfied if the
Premises are covered by a blanket insurance policy complying with the
limits, requirements, and criteria contained in this Article 14 insuring
all or most of Tenant's facilities in California.
17.2.2EVIDENCE OF COVERAGE. A duplicate original policy or a certificate of
insurance shall be deposited with Landlord at the commencement of the Term
or, if earlier, upon Tenant's taking possession of the Premises; and on
renewal of the policy a certificate of insurance listing the insurance
coverages required hereunder and naming the appropriate additional insureds
shall be deposited with Landlord not less than seven (7) days before
expiration of the policy.
17.3 LANDLORD'S INSURANCE. Landlord shall maintain "all risk" property damage
insurance containing an agreed amount endorsement covering not less than one
hundred percent (100%) of the full insurable replacement cost valuation of (y)
the Building and the tenant improvements, betterments, and the alterations
thereto; and (z) Landlord's personal property, business papers, furniture,
fixtures, and equipment (collectively "Landlord's Property"), exclusive of the
costs of excavation, foundations and footings, and risks required to be covered
by Tenant's insurance, and subject to commercially reasonable deductibles.
Landlord shall also obtain and keep in full force the following policies of
insurance: (a) commercial general liability insurance; (b) loss of rent
insurance (also known as rent continuation insurance); (c) workers' compensation
insurance, if required by applicable Law; and (d) such other insurance as
Landlord deems appropriate or as may be required by any Holder or Lessor.
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
17.4 RELEASES AND WAIVERS OF SUBROGATION. The purpose of this provision is to
allow Landlord and Tenant to allocate and assume certain risks to coincide with
insurance coverages required to be maintained pursuant to the terms to this
Lease. Landlord and Tenant recognize the benefit that each will receive from the
waivers of subrogation each is required to obtain pursuant to this ss. 14.4 and
that there are significant advantages to each in connection with minimizing
duplication of insurance coverages. Accordingly, Landlord and Tenant agree to
accept and place the limitations which follow on each other's respective
liabilities and responsibility for damages in order to coincide with required
insurance coverages.
17.4.1TENANT'S PROPERTY AGREEMENT. In light of Tenant's agreement to insure
Tenant's Business Personal Property in accordance with ss. 14.1.2 above,
Tenant agrees that Landlord will have no liability to Tenant in the event
Landlord damages or destroys, negligently or otherwise, all or any part of
Tenant's Business Personal Property. Tenant will cause to be placed in its
insurance policies covering Tenant's Business Personal Property a waiver of
subrogation so that its insurance company will not become subrogated to
Tenant's rights and will not be able to proceed against Landlord in
connection with any such damage or destruction.
17.4.2LANDLORD'S PROPERTY AGREEMENT. In light of Landlord's agreement to
insure Landlord's Property in accordance with ss. 14.3 above, Landlord
agrees that Tenant will have no liability to Landlord in the event that
Tenant damages or destroys, negligently or otherwise, all or any part of
Landlord's Property. Landlord will cause to be placed in its insurance
policies covering Landlord's Property a waiver of subrogation so that its
insurance company will not become subrogated to Landlord's rights and will
not be able to proceed against Tenant in connection with any such damage or
destruction.
17.4.3TENANT'S RELEASE. Landlord shall not be responsible or liable to
Tenant for any damages or destruction to Tenant's Business Personal
Property caused by Landlord's employees, agents, visitors, invitees,
guests, or independent contractors (collectively "Landlord's Associates"),
and Tenant hereby releases Landlord from any claims, liabilities, demands,
losses, damages, consequential damages, and the like, including reasonable
attorneys' fees and court costs (collectively "Claims") resulting from
damage or destruction to Tenant's Business Personal Property caused
directly or indirectly by Landlord and/or Landlord's Associates; provided,
however, that nothing herein shall be deemed to release Landlord's
independent contractors from any such Claims Tenant may have against
Landlord's independent contractors.
17.4.4LANDLORD'S RELEASE. Tenant shall not be responsible or liable to
Landlord for any damages or destruction to Landlord's Property caused by
Tenant's employees, agents, visitors, invitees, guests, or independent
contractors (collectively "Tenant's Associates"), and Landlord hereby
releases Tenant from any Claims resulting from damage or destruction to
Landlord's Property caused directly or indirectly by Tenant and/or Tenant's
Associates; provided, however, that nothing herein shall be deemed to
release Tenant's independent contractors from any such Claims Landlord may
have against Tenant's independent contractors.
17.4.5DAMAGE TO BUSINESS AND LOSS OF RENTS. In light of Landlord's
agreement to carry continuation of rent insurance pursuant to ss. 14.3
above and Tenant's agreement to carry business interruption insurance
(extra expense insurance) in accordance with ss. 14.1.4 above, in the event
that Landlord's Property is damaged or destroyed because of any act or
conduct, negligent or otherwise, by Tenant and/or by Tenant's Associates,
Landlord shall have no rights against Tenant by virtue of such damage or
destruction, and Landlord hereby releases Tenant from all Claims, including
claims for loss of rent, by Landlord directly or indirectly resulting from
the damage or destruction of
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
Landlord's Property by conduct by Tenant and/or by Tenant's Associates.
Likewise, in the event that Tenant's Business Personal Property is damaged
or destroyed because of any act or conduct, negligent or otherwise, by
Landlord and/or by Landlord's Associates, Tenant shall have no rights
against Landlord by virtue of such damage or destruction, and Tenant hereby
releases Landlord from all Claims by Tenant directly or indirectly
resulting from the damage or destruction to Tenant's Business Personal
Property by the conduct of Landlord and/or Landlord's Associates, including
Claims for loss of business or loss of profits. Notwithstanding the
foregoing, nothing herein shall be deemed to release Tenant's or Landlord's
independent contractors from any liability to Tenant and/or Landlord.
17.4.6INJURY AND DEATH TO INDIVIDUALS. Landlord and Tenant understand that
waivers of subrogation do not apply to injury to and death of individuals.
Landlord and Tenant shall each carry insurance, as provided by this Article
14, in connection with injury and death to individuals. Landlord hereby
agrees to indemnify and hold Tenant harmless from any Claims which Tenant
may otherwise have with respect to injury or death to individuals occurring
within the Property but outside the Premises, except to the extent that
such injury or death is caused by Tenant and/or Tenant's Associates,
through negligence or otherwise, and is not covered by the insurance
Landlord is required to carry under this Lease. Likewise, Tenant agrees to
indemnify, defend, protect, and hold Landlord harmless from any Claims for
injury or death to persons occurring within the Premises or caused,
directly or indirectly, by Tenant or Tenant's Associates outside the
Premises, except to the extent such injuries or death are caused by
Landlord and/or Landlord's Associates, through negligence or otherwise, and
are not covered by the insurance Tenant is required to carry under this
Lease.
17.4.7ABATEMENT OF RENT. Except as may be expressly provided elsewhere in
this Lease, Tenant shall not be entitled to Rent abatement and shall not
otherwise have, and hereby releases Landlord from, any Claims resulting
from Tenant's inability to utilize all or any part of the Premises, except
to the extent that Tenant is unable to use all or any part of the Premises
and does not use all or any part of the Premises as a result of Landlord's
intentional decision to refuse to provide access to the Building and/or the
Premises and/or to provide services and/or utilities to Tenant as required
to be provided by Landlord to Tenant pursuant to this Lease, where such
refusal is not caused by a Force Majeure occurrence.
17.4.8AVAILABILITY OF WAIVER OF SUBROGATION. If an insurance policy cannot
be obtained with a waiver of subrogation or is obtainable only by the
payment of an additional premium charge above that charged by insurance
companies issuing policies without waiver of subrogation, the party
undertaking to obtain the insurance shall notify the other party of this
fact. The other party shall have a period of ten (10) days after receiving
the notice either to place the insurance with a company that is reasonably
satisfactory to the other party and that will carry the insurance with a
waiver of subrogation at no additional cost or to agree to pay the
additional premium if such a policy is obtainable at additional cost. If
the insurance cannot be obtained or the party in whose favor a waiver of
subrogation is desired refuses to pay the additional premium charged, the
other party is relieved of the obligation to obtain a waiver of subrogation
with respect to the particular insurance involved.
17.5 OTHER CASES OF DAMAGE OR INJURY. In all cases not covered by the foregoing
provisions of this Article 14, Tenant hereby assumes all risk of damage to
property or injury to persons in, upon, or about the Premises from any cause
other than the active negligence or intentional misconduct of Landlord and its
agent or employees. Without limiting the generality of the foregoing, Landlord
shall not be liable for injury or damage which may be sustained by the person,
goods, wares, merchandise, or property of
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
Tenant or Tenant's Associates or any other person in or about the Premises
caused by or resulting from fire, steam, electricity, gas, 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 Systems and
Equipment, pipes, sprinklers, wires, INC, appliances, plumbing, heating,
air-conditioning, or lighting fixtures of the same, whether the damage or
injury results from conditions arising upon the Premises or upon other
portions of the Property, the Complex, or from other sources. Landlord
shall not be liable for any damages arising from any act or omission of any
other tenant or occupant of the Property or Complex. In all cases not
covered by the foregoing provisions of this Article 14, Tenant shall
indemnify, defend, protect, and hold Landlord harmless against (a) any and
all Claims arising from any death or injury to any person or damage to any
property whatsoever occurring in, on, or about the Premises or any part
thereof, and (b) any and all Claims occurring in, on or about any of the
Common Areas, the Property, or the Complex, when such injury or damage is
caused in whole or in part by the act, negligence, fault, or omission of
any duty with respect to the same by Tenant or Tenant's Associates. In all
cases not covered by the foregoing provisions of this Article 14, Tenant
shall further indemnify, defend, protect, and hold Landlord harmless from
and against any and all Claims arising from any breach or default in the
performance of any obligation on Tenant's part to be performed under this
Lease, or arising from any act or negligence of Tenant or Tenant's
Associates, and from and against all costs, attorneys' fees, expenses, and
liabilities incurred in connection with any such Claim or any action or
proceeding brought thereon. In case any action or proceeding be brought
against Landlord by reason of any such Claim, Tenant, upon notice from
Landlord, shall defend the same at Tenant's expense by counsel reasonably
satisfactory to Landlord; provided, however, that Tenant shall not be
liable in any case for damage to property or death or injury to person(s)
occasioned by the active negligence or intentional misconduct of Landlord
or Landlord's Associates, unless covered by insurance Tenant is required to
provide.
(18) DAMAGE OR DESTRUCTION
18.1 LOSS COVERED BY INSURANCE. If at any time prior to the expiration or
termination of this Lease the Premises or the Property is wholly or partially
damaged or destroyed by any casualty which results in a loss to Landlord is
fully covered by insurance maintained by Landlord or for Landlord's benefit (or
required to be maintained by Landlord pursuant to ss. 14.3 above), which
casualty renders the Premises totally or partially inaccessible or unusable by
Tenant in the ordinary conduct of Tenant's business, the parties agree that the
following provisions shall modify their obligations under this Lease after such
damage or destruction.
18.1.1REPAIRS WHICH CAN BE COMPLETED WITHIN SIX (6) MONTHS. Within thirty
(30) days after Tenant's written notice to Landlord of such damage or
destruction, Landlord shall provide Tenant with notice of its determination
of whether the damage or destruction can be repaired within six (6) months
after the commencement of the work of repairing such damage or destruction
without the payment of overtime or other premiums. If all repairs to
Premises or Property can, in Landlord's judgement, be completed within six
(6) months following the date of the commencement of the work of repairing
such damage or destruction without the payment of overtime or other
premiums, Landlord shall, at Landlord's expense, repair the same; and this
Lease shall remain in full force and effect, except that a proportionate
reduction of the Base Rent shall be allowed Tenant to the extent that the
Premises shall be rendered inaccessible or unusable by Tenant and are not
used by Tenant during the period of time that such portion is unusable or
inaccessible and not used by Tenant.
18.1.2REPAIRS WHICH CANNOT BE COMPLETED WITHIN SIX (6) MONTHS. If all such
repairs to the Property and Premises cannot, in Landlord's judgement, be
completed within six (6) months following the commencement of the work of
repairing such damage or destruction without the payment of overtime or
other premiums, Landlord shall notify Tenant of such determination; and in
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
such an event, either Landlord or Tenant may, at its option, upon written
notice to the other party given within sixty (60) days after the occurrence
of such damage or destruction, elect to terminate this Lease as of the date
of the occurrence of such damage or destruction. In the event that neither
Landlord nor Tenant elects to terminate the Lease in accordance with the
foregoing provisions, then Landlord shall, at Landlord's expense, repair
such damage or destruction; and in such event, this Lease shall continue in
full force and effect, except that the Base Rent shall be proportionately
reduced as provided in ss. 15.1.1 above; provided, however, that if any
such repair is not commenced by Landlord within ninety (90) days after the
occurrence of such damage or destruction or is not substantially completed
by Landlord within nine (9) months after the occurrence of such damage or
destruction, then in either such event Tenant may, at its option, upon
written notice to Landlord, elect to terminate this Lease as of the date of
Landlord's receipt of such notice. Notwithstanding the foregoing, Tenant
shall have no right to terminate this Lease in the situation just described
if all of the following conditions are met: (x) Landlord shall have
informed Tenant in its notice of determination that the repair of such
damage or destruction could not be substantially completed by Landlord
within nine (9) months after the occurrence of such damage or destruction;
(y) Tenant shall not have elected to terminate the Lease by written notice
delivered to Landlord within sixty (60) days after the occurrence of such
damage or destruction; and (z) Landlord shall have commenced the work of
repairing such damage or destruction.
18.2 LOSS NOT COVERED BY INSURANCE. If at any time prior to the expiration or
earlier termination of this Lease the Premises or the Property is totally or
partially damaged or destroyed in connection with a casualty, which loss to
Landlord is not fully covered by insurance maintained by Landlord or for
Landlord's benefit (or required to be maintained by Landlord pursuant to ss.
14.3 above); and if such damage renders the Premises inaccessible or unusable to
Tenant for their intended purpose in the ordinary course of its business,
Landlord may, at its option, upon written notice given to Tenant within sixty
(60) days after Tenant's written notice to Landlord of the occurrence of such
damage or destruction, either (a) elect to repair or to restore such damage or
destruction or (b) elect to terminate this Lease. If Landlord elects to repair
or restore such damage or destruction, this Lease shall continue in full force
and effect, except that the Base Rent shall be proportionately reduced as
provided in ss. 15.1.1 above. If Landlord does not elect by notice to Tenant to
repair such damage, the Lease shall terminate as of the date of Tenant's receipt
of Landlord's notice of election to terminate. Notwithstanding the foregoing, if
all repairs to the Premises or the Building cannot, in Landlord's reasonable
judgement, be completed within six (6) months following the date of the
commencement of the work of repairing such damage or destruction without the
payment of overtime or other premiums, then either Landlord or Tenant may at the
option of either, upon written notice to the other party given within sixty (60)
days after the occurrence of such damage or destruction, elect to terminate this
Lease as of the date of such notice.
18.3 DESTRUCTION DURING FINAL YEAR. Notwithstanding anything to the contrary
contained in xx.xx. 15.1 and15.2, if the Premises or the Building are wholly or
partially damaged or destroyed within the final twelve (12) months of the Term
of this Lease or, if an applicable renewal option has been exercised, during the
last year of any renewal term, in such a way that Tenant shall be prevented from
using the Premises for at least thirty (30) consecutive days as a result of such
damage or destruction, then either Landlord or Tenant may, at the option of
either, by written notice to the other party delivered within sixty (60) days
after the occurrence of such damage or destruction, elect to terminate the Lease
as of the date of such notice.
18.4 DESTRUCTION OF TENANT'S PROPERTY. Under no circumstances shall Landlord be
required to repair any injury or damage to, or make any repairs to or
replacements of, Tenant's Property. However, as part of Operating Expenses,
Landlord shall cause to be insured the Improvements in the Premises which do
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
not consist of Tenant's Property and shall cause such Improvements to be
repaired and restored at Landlord's sole expense, except that Tenant shall pay
any applicable deductible. Landlord shall have no responsibility for any
contents placed or kept in or on the Premises or the Property by Tenant or
Tenant's employees or invitees or any other person claiming through Tenant.
18.5 EXCLUSIVE REMEDY. Landlord and Tenant agree that their respective rights
and obligations in the event of any damage or destruction of the Premises,
Property, or Complex shall be governed exclusively by this Lease. Tenant, as a
material inducement to Landlord entering into this Lease, irrevocably waives and
releases Tenant's rights under California Civil Code xx.xx. 1932(2), 1933(4),
and 1942, as the same may be modified or replaced hereafter. No damages,
compensation, setoff, allowance, or claim shall be payable by Landlord for any
inconvenience, interruption, or cessation of Tenant's business or any annoyance
arising from any damage to or destruction of all or any portion of the Premises,
Property, or Complex.
(19) EMINENT DOMAIN
19.1 CONDEMNATION. If the whole or any material part of the Premises or Property
shall be taken by power of eminent domain or condemned by any competent
authority for any public or quasi-public use or purpose; or if any adjacent
property or street shall be so taken, condemned, reconfigured, or vacated by
such authority in such manner as to require the use, reconstruction, or
remodeling of any part of the Premises or Property; or if Landlord shall grant a
deed or other instrument in lieu of such taking by eminent domain or
condemnation (collectively "Takings"), Landlord shall have the option to
terminate this Lease upon ninety (90) days' notice, provided such notice is
given no later than one hundred and eighty (180) days after the date of such
Taking. Tenant shall have reciprocal termination rights, on the same terms and
conditions and to be exercised in the same manner as the foregoing sentence
provides, if the whole or any material part of the Premises is permanently
taken, or if access to the Premises is permanently materially impaired.
19.2 RENTAL APPORTIONMENT. All Rent shall be apportioned as of the date of such
termination or the date of such Taking, whichever shall first occur. If any part
of the Premises shall be taken, and this Lease shall not be so terminated, the
Rent shall be proportionately abated.
19.3 AWARDS AND DAMAGES. Landlord shall be entitled to receive the entire award
or payment in connection with any Taking, except that Tenant shall have the
right to file any separate claim available to Tenant for any taking of Tenant's
personal property and fixtures belonging to Tenant and removable by Tenant upon
expiration of the Term, and for moving expenses, so long as such claim does not
diminish the award available to Landlord and such claim is payable separately to
Tenant.
19.4 TEMPORARY CONDEMNATION. If part or all of the Premises are condemned for a
limited period of time ("Temporary Condemnation"), this Lease shall remain in
effect. The Rent and Tenant's obligations for the part of the Premises taken
shall xxxxx during the Temporary Condemnation in proportion to the part of the
Premises that Tenant is unable to use in its business operations as a result of
the Temporary Condemnation. Landlord shall receive the entire award for any
Temporary Condemnation.
(20) ASSIGNMENT AND SUBLETTING
20.1 CONSENT REQUIRED FOR TRANSFER. Tenant agrees that it shall not assign,
sublet, mortgage, hypothecate, or encumber this Lease, nor permit or allow the
Premises or any part thereof to be used or occupied by others, without the prior
written consent of Landlord in each instance. The actions described in the
foregoing sentence are referred to collectively herein as "Transfers" and
individually as a
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
"Transfer." If the Premises or any part thereof be sublet or occupied by anybody
other than Tenant, Landlord may, after default by Tenant, collect rent from the
subtenant or occupant and apply the net amount collected to the Rent herein
reserved; but no Transfer, occupancy, or collection shall be deemed a waiver of
the provisions hereof, the acceptance of the subtenant or occupant as tenant, or
a release of Tenant from the further performance hereunder by Tenant. The
consent by Landlord to a Transfer shall not relieve Tenant from obtaining the
Landlord's express written consent to any further Transfer. In no event shall
any permitted sublessee assign or encumber its sublease or further sublet all or
any portion of its sublet space, or otherwise suffer or permit the sublet space
or any part thereof to be used or occupied by others, without Landlord's prior
written consent in each instance.
20.1.1CORPORATE TRANSFEROR. If Tenant is a corporation, the provisions of
ss. 17.1 shall apply to a transfer (by one or more transfers) of a majority
of the stock of Tenant as if such transfer of a majority of the stock of
Tenant were an assignment of this Lease.
20.2 NOTICE OF INTENT TO TRANSFER. If Tenant shall at any time or times during
the Term of this Lease desire to assign this Lease or sublet all or part of the
Premises, Tenant shall give notice thereof (the "Transfer Notice") to Landlord,
which notice shall set forth all of the following:
(a) the proposed terms of the assignment or subletting, including (i)
the effective or commencement date thereof, which shall be not
less than thirty (30) nor more than one hundred eighty (180) days
after the giving of such notice; (ii) in the case of a proposed
assignment, the consideration therefor; and (iii) in the case of
a proposed subletting, the rental rate to be paid by the proposed
subtenant (including any escalation or Additional Rent payable),
the term of the proposed sublease (including any renewal
options), any work to be performed or paid for by Tenant, the
amount of any security deposit, the cost and extent of any
so-called "take-over" obligations to be assumed by Tenant on
behalf of such subtenant, the amount of any rent concessions to
be granted by Tenant, and any other additional monetary or
so-called "business" terms or conditions;
(b) a statement setting forth in reasonable detail the identity of
the proposed assignee or subtenant, the nature of its business,
and its proposed use of the Premises; and
(c) current financial information with respect to the proposed
assignee or subtenant, including its most recent financial
report, and any other information which may reasonably be
required by Landlord.
20.3 LANDLORD'S RECAPTURE RIGHT. The Transfer Notice shall be deemed an offer
from Tenant to Landlord whereby Landlord (or Landlord's designee) may, at its
option, terminate this Lease as to all or the affected portion of the Premises
(as the case may be) as of the effective date of the proposed Transfer. Landlord
may exercise its recapture right by notice to Tenant at any time within thirty
(30) days after Landlord's receipt of Tenant's Transfer Notice; and during such
thirty-day period Tenant shall not assign this Lease nor sublet such space to
any person.
20.3.1DATE OF TERMINATION. If Landlord exercises its option to terminate
this Lease as provided in ss. 17.3 above, this Lease shall end and expire
on the date that such Transfer was to be effective or commence, as the case
may be, and the Base Rent and Additional Rent shall be paid and apportioned
to such date.
20.4 CONDITIONS OF CONSENT. If Landlord does not exercise its recapture right
pursuant to ss. 17.3 above, and providing that Tenant is not in default of any
of Tenant's obligations under this Lease after notice
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
and the expiration of any applicable grace period, Landlord's consent (which
must be in writing and in form reasonably satisfactory to Landlord) to the
proposed assignment or sublease shall not be unreasonably withheld or delayed,
provided the following conditions are met:
(a) Tenant shall have complied with the provisions of ss. 17.2 above,
and Landlord shall not have exercised its recapture right
pursuant to ss. 17.3 above within the time permitted therefor;
(b) In Landlord's reasonable judgement the proposed assignee or
subtenant is engaged in a business which would use the Premises,
or the relevant part thereof, in a manner which is in keeping
with the then-current standards of the Building, is limited to
the use expressly permitted under this Lease, and will not
violate any negative covenant or other restriction or agreement
as to use contained in any other lease of space in the Complex;
(c) The proposed assignee or subtenant is a reputable entity or
person of good character and with reasonably sufficient financial
worth considering the responsibility involved (and in no event of
less financial standing than Tenant), is not subject to any toxic
or hazardous materials cleanup order with respect to any other
property, and Landlord has been furnished with reasonable proof
thereof;
(d) Neither the proposed assignee or sublessee nor any person which,
directly or indirectly, controls, is controlled by, or is under
common control with, the proposed assignee or sublessee or any
person who controls the proposed assignee or sublessee, is then
an occupant of any part of the Complex, provided Landlord then
has suitable space in the Complex available for leasing. For
purposes of this Lease CONTROL shall be deemed to mean ownership
of more than fifty percent (50%) of all the voting stock of a
corporation or more than fifty percent (50%) of all the legal and
equitable interest in any other business entity;
(e) The proposed assignee or sublessee is not a person or entity with
whom Landlord is then negotiating to lease space in the Building;
(f) The form of the proposed lease shall be in form reasonably
satisfactory to Landlord and shall comply with the applicable
provisions of this Article 17;
(g) There shall not be more than two (2) subtenants (not including
the Permitted Occupant (as defined in ss. 17.14 below) of the
Premises);
(h) The amount of the aggregate rent to be paid by the proposed
subtenant is not less than the then-current market rent per
rentable square foot for comparable space in the Complex, as
though the Premises were vacant, and the rental and other terms
and conditions of the sublease are the same as those contained in
the proposed sublease furnished to Landlord in the Transfer
Notice pursuant to ss. 17.2 above;
(i) Tenant shall reimburse Landlord on demand for any reasonable
costs that may be incurred or paid by Landlord to third persons
in connection with said assignment or sublease, including costs
of making investigations as to the acceptability of the proposed
assignee or subtenant and legal costs incurred in connection with
the granting of any requested consent; and
(j) Tenant shall not have advertised or publicized in any way the
availability of the Premises without prior notice to and approval
by Landlord, nor shall any
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
advertisement state the name (as distinguished from the address)
of the Complex or the rental rate;
(k) Tenant shall not have listed the Premises for subletting or
assignment at a rental rate less than the greater of (i) the Base
Rent and Additional Rent then payable hereunder for such space or
(ii) the Base Rent and Additional Rent at which Landlord is then
offering to lease other comparable space in the Building; and
(l) The sublease shall not allow the use of the Premises or any part
thereof for (i) the sale of food for on or off-premises
consumption or (ii) use by a foreign or domestic governmental
agency.
20.5 CONTINUATION OF LEASE TERMS. Each subletting pursuant to this Article 17
shall be subject to all of the covenants, agreements, terms, provisions, and
conditions contained in this Lease. Notwithstanding any such subletting to any
other subtenant and/or acceptance of Rent by Landlord from any subtenant, Tenant
shall remain liable for the payment of the Base Rent and Additional Rent due and
to become due hereunder and for the performance of all the covenants,
agreements, terms, provisions, and conditions contained in this Lease on the
part of Tenant to be performed and all acts and omissions of any licensee or
subtenant or anyone claiming under or through any subtenant which shall be in
violation of any of the obligations of this Lease; and any such violation shall
be deemed to be a violation by Tenant. Tenant further agrees that
notwithstanding any such subletting, no other and further subletting of the
Premises by Tenant or any person or entity claiming through or under Tenant
shall or will be made except upon compliance with and subject to the provisions
of this Article 17. If Landlord shall decline to give its consent to any
proposed assignment or sublease, or if Landlord shall exercise its recapture
right under ss. 17.3 above, Tenant shall indemnify, defend, protect, and hold
Landlord harmless against and from any and all Claims resulting from any Claims
that may be made against Landlord by the proposed assignee or sublessee or by
any brokers or other persons claiming a commission or similar compensation in
connection with the proposed assignment or sublease.
20.6 LAPSE OF CONSENT. In the event that Landlord consents to a proposed
Transfer described in the Transfer Notice and Tenant fails to execute and
deliver the assignment or sublease described in the Transfer Notice to which
Landlord consented within one hundred twenty (120) days after the giving of such
consent, then Tenant shall again comply with all of the provisions and
conditions of ss. 17.2 above before assigning this Lease or subletting all or
part of the Premises.
20.7 TRANSFER DOCUMENTATION. With respect to each and every Transfer authorized
by Landlord under the provisions of this Lease, it is further agreed as follows:
(a) no subletting shall be for a term ending later than one day prior
to the Expiration Date of this Lease;
(b) no sublease shall be valid, and no subtenant shall take
possession of the Premises or any part thereof, until an executed
counterpart of such sublease has been delivered to Landlord;
(c) each sublease shall provide that it is subject and subordinate to
this Lease and to the matters to which this Lease is or shall be
subordinate, and that in the event of termination (whether by
voluntary surrender or otherwise), re-entry, or dispossession by
Landlord under this Lease, Landlord may, at its option, take over
all of the right, title, and interest of Tenant, as sublessor,
under such sublease, and such subtenant shall, at Landlord's
option, attorn to Landlord pursuant to the
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
then-executory provisions of such sublease, except that Landlord
shall not be (i) liable for any previous act or omission of
Tenant under such sublease; (ii) subject to any offset, credit,
or allowance not expressly provided in such sublease which
theretofore accrued to such subtenant against Tenant or (iii)
bound by any previous modification of such sublease or by any
previous prepayment of more than one month's rentals; and
(d) each assignment or sublease document must provide that the
assignee or subtenant expressly assumes all obligations of the
Tenant under the Lease as joint and several obligations without
any release of Tenant.
20.8 TRANSFER PREMIUM. If Landlord shall give its consent to any assignment of
this Lease or to any sublease, Tenant shall in consideration therefor pay to
Landlord, as Additional Rent, the following amounts (collectively the "Transfer
Premium"):
(a) in the case of an assignment, an amount equal to fifty percent
(50%) of all sums and other considerations paid to Tenant by the
assignee for or by reason of such assignment, including sums paid
for the sale of Tenant's Property, but excluding the following:
(i) in the case of a sale of Tenant's Property, the then-current
net unamortized or undepreciated cost thereof determined on the
basis of Tenant's federal income tax returns; (ii) then-customary
brokerage commissions being paid by Landlord for leasing of space
in the Building or, if less, the brokerage commission paid by
Tenant in connection with the assignment; (iii) reasonable legal
fees and disbursements; and (iv) reasonable amounts paid by
Tenant for tenant improvements constructed for the assignee; and
(b) in the case of a sublease, fifty percent (50%) of any rents,
additional charge, or other consideration payable under the
sublease to Tenant by the subtenant which is in excess of the
Base Rent and Additional Rent accruing during the term of the
sublease in respect of the subleased space (at the rate per
square foot payable by Tenant hereunder) pursuant to the terms
hereof, including sums paid for the sale or rental of Tenant's
Property, but excluding the following: (i) in the case of the
sale or lease of Tenant's Property, the then-current net
unamortized or undepreciated cost thereof determined on the basis
of Tenant's federal income tax returns; (ii) then-customary
brokerage commissions being paid by Landlord for leasing of space
in the Building or, if less, the brokerage commission paid by
Tenant in connection with the sublease; (iii) reasonable legal
fees and disbursements; and (iv) reasonable amounts paid by
Tenant for tenant improvements constructed for the subtenant.
The sums payable as the Transfer Premium under this ss. 17.8 shall be paid to
Landlord as and when payable by the subtenant or assignee to Tenant.
20.9 ASSUMPTION BY TRANSFEREE Any Transfer, whether made with Landlord's consent
pursuant to ss. 17.1 or without Landlord's consent pursuant to ss. 17.1.1, shall
be made only if, and shall not be effective until, the assignee or subtenant
shall execute, acknowledge, and deliver to Landlord an agreement in form and
substance satisfactory to Landlord under which the assignee or transferee shall
assume the obligations of this Lease on the part of Tenant to be performed or
observed, from and after the date of Transfer, and whereby the assignee or
transferee shall agree that the provisions in ss. 17.1 shall, notwithstanding
such Transfer, continue to be binding upon it in respect of all future
Transfers. The original named Tenant covenants that, notwithstanding any
Transfer, whether or not in violation of the
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
provisions of this Lease, and notwithstanding the acceptance of Base Rent and/or
Additional Rent by Landlord from an assignee, transferee, or any other party,
the original named Tenant shall remain fully liable for the payment of the Base
Rent and Additional Rent and for the other obligations of this Lease on the part
of Tenant to be performed or observed.
20.10 NO WAIVER OR DISCHARGE. The joint and several liability of Tenant and any
immediate or remote successor in interest of Tenant and the due performance of
the obligations of this Lease on Tenant's part to be performed or observed shall
not be discharged, released, or impaired in any respect by any agreement or
stipulation made by Landlord extending the time of, or modifying any of the
obligations of, this Lease, or by any waiver or failure of Landlord to enforce
any of the obligations of this Lease.
20.11 LISTING OF NAME. The listing of any name other than that of Tenant,
whether on the doors of the Premises or the Building directory, or otherwise,
shall not operate to vest any right or interest in this Lease or in the
Premises, nor shall it be deemed to be the consent of Landlord to any Transfer
of this Lease or to any sublease of the Premises or to the use or occupancy of
the Premises by others.
20.12 NET PROFITS AGREEMENT. Anything contained in the foregoing provisions of
this Article 17 to the contrary notwithstanding, neither Tenant nor any other
person or entity having an interest in the possession, use, occupancy, or
utilization of the Premises shall enter into any lease, sublease, license,
concession, or other agreement for use, occupancy, or utilization of space in
the Premises which provides for rental or other payment for such use, occupancy,
or utilization based, in whole or in part, on the net income or profits derived
by any person from the premises leased, used, occupied, or utilized (other than
an amount based on a fixed percentage or percentages of receipts or sales); and
any such purported lease, sublease, license, concession, or other agreement
shall be absolutely void and ineffective as a conveyance of any right or
interest in the possession, use, occupancy, or utilization of any part of the
Premises.
20.13 AFFILIATES. Notwithstanding anything to the contrary in this Article 17,
Landlord's consent shall not be required in the event Tenant desires to assign
this Lease or sublet the Premises or any portion thereof to any corporation or
entity which controls, is controlled by, or is under common control with Tenant,
provided and subject to the following conditions:
(a) Tenant shall not be in default of any of the terms, covenants, or
conditions on Tenant's part to observe or perform hereunder;
(b) such sublet or assignment shall be subject to all of the terms,
covenants, and conditions of this Lease;
(c) Tenant shall notify Landlord of such sublet or assignment in
accordance with ss. 17.2 hereof and furnish Landlord with
reasonably satisfactory evidence that such sublessee or assignee
controls, is controlled by, or is under common control with
Tenant; and
(d) in the event of such merger, consolidation, or transfer of
substantially all of Tenant's assets, the successor to Tenant has
a net worth, computed in accordance with generally-accepted
accounting principles, at least equal to the greater of (i) the
net worth of Tenant immediately prior to such merger,
consolidation, or transfer or (ii) the net worth of Tenant herein
named on the date of this Lease; and proof satisfactory to
Landlord of such net worth shall have been delivered to Landlord
at least ten (10) days prior to the effective date of any such
transaction.
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
As used herein, the terms CONTROL and COMMON CONTROL shall be deemed to mean
that the ownership of fifty percent (50%) or more of all of the issued and
outstanding voting shares of such corporation, or fifty percent (50%) or more of
all the legal and equitable interest in any such business entities.
20.14 PERMITTED OCCUPANTS. Landlord hereby agrees that the provisions of this
Article 17 shall not apply to the shared occupancy of individual offices in the
Premises with Tenant by individuals renting not more than one (1) such office
(the "Permitted Occupant"), provided that the space occupied by the Permitted
Occupant shall not be separately demised or contain separate entrances,
demarcations, or reception areas and the occupancy by the Permitted Occupant
shall be upon and subject to all of the terms and conditions of this Lease.
(21) SUBORDINATION AND ATTORNMENT
21.1 SUBORDINATION OF LEASE. This Lease and all rights of Tenant hereunder are
and shall be subject and subordinate in all respects to (a) all ground leases,
overriding leases, and underlying leases of the Building, Property, and/or the
Complex now or hereafter existing; (b) all mortgages which may now or hereafter
affect the Building, Property, or Complex and any of such leases, whether or not
such mortgages shall also cover other lands and/or buildings; (c) each and every
advance made or hereafter to be made under such mortgages; and (d) to all
renewals, modifications, replacements, and extensions of such leases and such
mortgages and spreaders and consolidations of such mortgages. This ss. 18.1
shall be self-operative, and no further instrument of subordination shall be
required. In confirmation of such subordination, Tenant shall promptly execute
and deliver any instrument that Landlord, the lessor of any such lease or the
holder ("Holder") of any such mortgage or any of their respective successors in
interest may reasonably request to evidence such subordination. The leases to
which this Lease is, at the time referred to, subject and subordinate pursuant
to this Article 18 are hereinafter sometimes referred to as "Superior Leases";
the mortgages to which this Lease is, at the time referred to, subject and
subordinate are hereinafter sometimes referred to as "Superior Mortgages"; and
the lessor of a superior lease or its successor in interest at the time referred
to is sometimes hereinafter referred to as a "Lessor." Notwithstanding the
foregoing, Tenant agrees, upon written request from Landlord or any Holder or
Lessor, to reorder the relative priority of the Lease with respect to any
particular Superior Mortgage or Superior Lease so as to subordinate the lien of
any such Superior Mortgage or Superior Lease to the Lease. Tenant agrees to
execute any instrument which Landlord or any Holder or Lessor may present in
order to effect such prioritization of the Lease, provided that such instrument
does not modify any material term of the Lease or increase Tenant's obligations
thereunder.
21.2 NOTICE AND CURE RIGHT. In the event of any action or omission of Landlord
which would give Tenant the right, immediately or after lapse of a period of
time, to cancel or terminate this Lease, or to claim a partial or total
eviction, Tenant shall not exercise such right unless and until (i) Tenant shall
have given written notice of such act or omission to the Holder of each Superior
Mortgage and the Lessor of each Superior Lease whose name and address shall
previously have been furnished to Tenant in writing; and (ii) unless such act or
omission shall be one which is not capable of being remedied by Landlord or such
mortgage Holder or Lessor within a reasonable period of time, a reasonable
period for remedying such act or omission shall have elapsed following the
giving of such notice and following the time when such Holder or Lessor shall
have become entitled under such Superior Mortgage or Superior Lease, as the case
may be, to remedy the same (which reasonable period shall in no event be less
than the period to which Landlord would be entitled under this Lease or
otherwise, after similar notice, to effect such remedy), provided such Holder or
Lessor shall with due diligence give Tenant written notice of intention to
remedy such act or omission and shall thereafter diligently and continuously
prosecute such cure to completion.
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
21.3 ATTORNMENT. If the Lessor of a Superior Lease or the Holder of a Superior
Mortgage shall succeed to the rights of Landlord under this Lease, whether
through possession or foreclosure action or delivery of a new lease or deed,
then at the request of such party so succeeding to Landlord's rights or other
person having or acquiring title by virtue of such foreclosure or termination
(herein sometimes referred to as "Successor Landlord") and upon such Successor
Landlord's written agreement to accept Tenant's attornment, Tenant shall attorn
to and recognize such Successor Landlord as Tenant's landlord under this Lease
and shall promptly execute and deliver any instrument that such Successor
Landlord may reasonably request to evidence such attornment. Upon such
attornment this Lease shall continue in full force and effect as a direct lease
between the Successor Landlord and Tenant upon all of the terms, conditions, and
covenants in this Lease, except as follows:
(a) the Successor Landlord shall not be liable for any previous act
or omission of Landlord under this Lease;
(b) the Successor Landlord shall not be subject to any offset (unless
expressly provided for in this Lease) which shall have
theretofore accrued to Tenant against Landlord;
(c) the Successor Landlord shall not be bound by any previous
modification of this Lease, unless expressly provided for in this
Lease, or by any previous prepayment of more than one month's
Base Rent, unless such modification or prepayment shall have been
expressly approved in writing by the Lessor of the Superior Lease
or the Holder of the Superior Mortgage through or by reason of
which the Successor Landlord shall have succeeded to the rights
of Landlord under this Lease.
(22) FINANCING REQUIREMENTS
22.1 LENDER-REQUESTED MODIFICATIONS. If, in connection with obtaining financing
or refinancing for the Property or Complex a prospective lender shall request
reasonable modifications to this Lease as a condition to such financing or
refinancing, Tenant shall not withhold, delay, or unreasonably condition its
consent thereto. It is agreed that, among the modifications which shall be
deemed reasonable, are modifications to the subordination and attornment
provisions of this Lease, modifications to the notice provisions of this Lease,
modifications to the provisions of this Lease which permit the lender to cure
any defaults by Landlord, and modifications to the provisions which grant
additional time to cure as may be reasonably required by the lender.
22.2 FAILURE TO COMPLY. If Tenant fails or refuses to execute and deliver to
Landlord, within fifteen (15) days after written notice to do so, the
amendment(s) to this Lease accomplishing such reasonable modification(s),
Landlord, at its sole option, shall have the right either (a) to terminate this
Lease or (b) to execute the amendment for and on behalf of Tenant as its
attorney-in-fact. Tenant hereby irrevocably appoints Landlord as its
attorney-in-fact solely to execute any documents required to carry out the
intent of ss. 19.1 above on behalf of Tenant.
(23) DEFAULT
23.1 TENANT'S DEFAULT. Tenant's failure to perform any of its obligations under
this Lease when due and in the manner required shall constitute a material
breach and default ("Event of Default") of this Lease by Tenant, subject to any
cure period(s) permitted or available under applicable laws or statutes. In
addition, the following shall also be deemed Events of Default hereunder:
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
(a) Tenant's failure to take possession of the Premises for a period
of sixty (60) days or longer after the Commencement Date;
(b) Tenant's abandonment or vacation of the Premises;
(c) any material misrepresentation or omission herein or in any
financial statements or other materials provided by Tenant or any
Guarantor in connection with negotiating or entering this Lease
or in connection with any Transfer under Article 17;
(d) cancellation of any guaranty of this Lease by any Guarantor;
(e) failure by Tenant to cure within any applicable times permitted
thereunder any default under any other lease for space in the
Complex or any other buildings owned or managed by Landlord or
its affiliates now or hereafter entered by Tenant; and any
Default hereunder not cured within the times permitted for cure
herein shall, at Landlord's election, constitute a default under
any other such lease or leases;
(f) The levy of a writ of attachment or execution on this Lease or on
any of Tenant's property;
(g) Tenant's or any Guarantor's general assignment for the benefit of
creditors or arrangement, composition, extension, or adjustment
with its creditors;
(h) Tenant's or any Guarantor's filing of a voluntary petition for
relief, or the filing of a petition against Tenant or any
Guarantor in a proceeding under the Federal Bankruptcy laws or
other insolvency laws which is not withdrawn or dismissed within
forty-five (45) days thereafter; or, under the provisions of any
law providing for reorganization or winding up of corporations,
the assumption by any court of competent jurisdiction of
jurisdiction, custody, or control of Tenant or any substantial
part of its property, or of any Guarantor, where such
jurisdiction, custody, or control remains in force
unrelinquished, unstayed, or unterminated for a period of forty
five (45) days;
(i) In any proceeding or action in which Tenant is a party, the
appointment of a trustee, receiver, agent, or custodian to take
charge of the Premises or Tenant's Property for the purpose of
enforcing a lien against the Premises or Tenant's Property; or
(j) If Tenant or any Guarantor is a partnership or consists of more
than one (1) person or entity, the involvement of any partner of
the partnership or other person or entity in any of the acts or
events described in subsections (i) through (l) above.
23.2 LANDLORD'S REMEDIES. Upon the occurrence of an Event of Default hereunder,
Landlord shall have the right, in addition to any other rights or remedies
Landlord may have under Laws, at Landlord's option, without further notice or
demand of any kind, to elect to do one of the following alternatives:
(i) Terminate this Lease and Tenant's right to possession of the
Premises, re-enter the Premises, and take possession
thereof; and Tenant shall have no further claim to the
Premises or under this Lease; or
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
(ii) Continue this Lease in effect and collect any unpaid Rent or
other charges which have theretofore accrued or which
thereafter become due and payable. It is intended hereunder
that Landlord have the remedy described in California Civil
Code ss. 1951.4, which provides that a landlord may continue
a lease in effect after a tenant's breach and abandonment
and recover rent as it becomes due, if tenant has the right
to sublease or assign, subject only to reasonable
limitations.
In the event of any re-entry or retaking of possession by Landlord, Landlord
shall have the right, but not the obligation, to remove all or any part of
Tenant's Property from the Premises and to place such property in storage at a
public warehouse at the expense and risk of Tenant.
23.2.1NO WAIVER OF DEFAULT. The waiver by Landlord of any Event of Default or
of any other breach of any term, covenant, or condition of this Lease
shall not be deemed a waiver of such term, covenant, or condition or of
any subsequent breach of the same or any other term, covenant, or
condition. Acceptance of Rent by Landlord subsequent to any Event of
Default or breach hereof shall not be deemed a waiver of any preceding
Event of Default or breach other than the failure to pay the particular
Rent so accepted, regardless of Landlord's knowledge of any breach at the
time of such acceptance of Rent. Landlord shall not be deemed to have
waived any term, covenant, or condition of this Lease, unless Landlord
gives Tenant written notice of such waiver. Tenant should not rely upon
Landlord's failure or delay in enforcing any right or remedy hereunder.
23.2.2LANDLORD'S RIGHT TO CURE. If Tenant defaults in the performance of
any of its obligations under this Lease, Landlord may (but shall not be
obligated to), without waiving such default, perform the same for the
account and at the expense of Tenant. Tenant shall pay Landlord all costs
of such performance promptly upon receipt of a xxxx therefor.
23.3 DAMAGES. Should Landlord elect to terminate this Lease under the provisions
of ss. 20.2 (i) above, Landlord may recover as damages from Tenant the
following:
(a) PAST RENT: The worth at the time of the award of any unpaid Rent which
had been earned at the time of termination; plus
(b) RENT PRIOR TO AWARD: The worth at the time of the award of the amount
by which the unpaid Rent which would have been earned after
termination until the time of award exceeds the amount of such rental
loss that Tenant proves could have been reasonably avoided; plus
(c) RENT AFTER AWARD: The worth at the time of the award of the amount by
which the unpaid Rent for the balance of the Term after the time of
award exceeds the amount of the rental loss that Tenant proves could
have been reasonably avoided; plus
(d) PROXIMATELY CAUSED DAMAGES: Any other amount necessary to compensate
Landlord for all 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 therefrom, including, but
not limited to, any costs or expenses (including attorneys' fees),
incurred by Landlord in (i) retaking possession of the Premises; (ii)
maintaining the Premises after Tenant's default; (iii) preparing the
Premises for reletting to a new tenant, including any repairs or
alterations; and (iv) reletting the Premises, including brokers'
commissions.
"The worth at the time of the award" as used in subsections (a) and (b) above is
to be computed by allowing interest at the rate of ten percent (10%) per annum
or, if different, the legal rate then applicable
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
in California. "The worth at the time of the award" as used in subsection (c)
above is to be computed by discounting the amount at the discount rate of the
Federal Reserve Bank situated nearest to the Premises at the time of the award
plus one percent (1%).
23.4 LANDLORD'S DEFAULT. If Landlord fails to perform any covenant, condition,
or agreement contained in this Lease within thirty (30) days after receipt of
written notice from Tenant specifying a default and the relevant Lease
provision, or if Landlord fails within that thirty-day period after notice to
commence to cure any such default which cannot reasonably be cured within thirty
(30) days, then, subject to ss. 21.1 below, Landlord shall be liable to Tenant
for any damages sustained by Tenant as a result of Landlord's breach. Tenant
shall not have the right to terminate this Lease or to withhold, reduce, or
offset any amount against any payments of Rent or any other charges due and
payable under this Lease, except to the extent that a specific Lease provision
permits such termination or withholding, reduction, or offset of Rent.
23.5 HOLDER'S RIGHT TO CURE. Tenant shall give any Holder a copy, by registered
mail, of any notice of default served upon Landlord, provided that Tenant
previously has been notified in writing of the address of such Holder. If
Landlord fails to cure such default within the time provided in this Lease, any
such Holder shall have an additional forty-five (45) days within which to cure
such default by Landlord or, if such default cannot reasonably be cured within
that time, such additional time as may be necessary, provided that within such
forty-five (45) day period the Holder has commenced and is pursuing the remedies
necessary to cure such default (including commencement of foreclosure
proceedings, if necessary to effect such cure), in which event this Lease shall
not be terminated while such remedies are being so pursued.
23.6 SURVIVAL OF REMEDIES. The remedies permitted under this Article 20, the
parties' indemnities under xx.xx. 14.4.3, 14.4.4, and14.4.5, and ss. 29.5 below
shall survive the termination of this Lease.
(24) LIMITATIONS ON LANDLORD'S LIABILITY
24.1 PERSONAL LIABILITY. The liability of Landlord to Tenant for any default by
Landlord under this Lease or arising in connection herewith or with Landlord's
operation, management, leasing, repair, renovation, alteration, or any other
matter relating to the Property or the Premises shall be limited to the interest
of Landlord in the Property (and the rental proceeds thereof). Under no
circumstances shall Landlord ever be liable for consequential or punitive
damages, including damages for lost profits or for business interruption. Tenant
agrees to look solely to Landlord's interest in the Property (and the rental
proceeds thereof) for the recovery of any judgement against Landlord, and
Landlord shall not be personally liable for any such judgement or deficiency
after execution thereon. The limitations of liability contained in this Article
21 shall apply equally and inure to the benefit of Landlord's present and future
partners, beneficiaries, officers, directors, trustees, shareholders, agents,
and employees, and their respective partners, heirs, successors, and assigns.
Under no circumstances shall any present or future general or limited partner of
Landlord (if Landlord is a partnership), or trustee or beneficiary (if Landlord
or any partner of Landlord is a trust) or corporate officer, director, or
shareholder (if Landlord or any partner of Landlord is a corporation or company)
or member (if Landlord is a limited liability company) have any liability for
the performance of Landlord's obligations under this Lease.
24.2 LIABILITY UPON TRANSFER. The term LANDLORD as used in this Lease, so far as
covenants or obligations on the part of the Landlord are concerned, shall be
limited to mean and include only the owner or owners, at the time in question,
of the fee title to, or a lessee's interest in a ground lease or master lease of
the Property. In the event of any transfer, assignment, or other conveyance or
transfer of
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
any such title or interest, Landlord herein named (and in case of subsequent
transfers or conveyances, the current grantor) shall be automatically freed and
relieved from and after the date of such transfer, assignment, or conveyance of
all liability with respect to the performance of any covenants or obligations on
the part of Landlord contained in this Lease thereafter to be performed; and,
without further agreement, the transferee of such title or interest shall be
deemed to have assumed and agreed to observe and perform any and all obligations
of Landlord hereunder, during its ownership of the Premises. Landlord may
transfer its interest in the Premises without the consent of Tenant, and such
transfer or subsequent transfer shall not be deemed a violation on Landlord's
part of any of the terms and conditions of this Lease.
(25) ESTOPPEL CERTIFICATES
25.1 REQUEST AND DELIVERY. Within ten (10) days following any written request
Landlord may make from time to time, Tenant without any charge therefor, shall
execute, acknowledge, and deliver a statement certifying the following: (a) the
Commencement Date of this Lease; (b) the fact that this Lease is unmodified and
in full force and effect or, if there have been modifications hereto, that this
Lease is in full force and effect, as modified, and stating the date and nature
of such modifications; (c) the date to which the Rent and other sums payable
under this Lease have been paid; (d) the fact that there are no current defaults
under this Lease by either Landlord or Tenant except as specified in the
statement; and (e) such other matters as may be reasonably requested by
Landlord. Landlord and Tenant intend that any statement delivered pursuant to
this Article 22 may be relied upon by any Holder, Lessor, beneficiary,
purchaser, or prospective purchaser of the Building, the Complex, or any
interest therein. Tenant's failure to deliver any such statement within the
specified ten-day period shall constitute a material default hereunder, and
Tenant shall indemnify, defend, protect, and hold Landlord harmless from and
against any and all Claims which Landlord may sustain or incur as a result of or
in connection with Tenant's failure or delay in delivering such statement.
25.2 ELECTION TO SELL BUILDING. If Landlord elects to sell the Building or to
obtain loans secured by a lien on the Building, Tenant, promptly after demand,
shall include with the estoppel certificate(s) provided to any prospective
purchaser or lender as required under this Article 22 any financial statements
of Tenant reasonably required by the purchaser or lender. The financial
statements so provided shall be kept confidential as to any parties other than
the purchaser or lender.
(26) NOTICES
26.1 MANNER OF DELIVERY. Any notice required or permitted under this Lease shall
be in writing and shall be delivered in at least one of the following ways: (a)
personally or by private hand-delivery messenger service; (b) by depositing the
same in the United States mail, postage prepaid, registered or certified, return
receipt requested; or (c) by depositing such notice, postage prepaid, with
Federal Express or another nationally-recognized private overnight delivery
service. Each such notice shall be addressed to the intended recipient at such
party's address set forth as follows, or at such other address as such party has
theretofore specified by written notice delivered in accordance with this ss.
23.1:
IF TO LANDLORD:
KASHIWA FUDOSAN AMERICA, INC.
c/x Xxxxxxx & Xxxxxxxxx of California, Inc.
Attn: Property Manager
000 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxx Xxxxxxxxx, XX 00000
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
COPY TO:
XXXXXXX XXXX REAL ESTATE SERVICES, INC., AGENT
Attn: Oyster Point Asset Manager
0000 Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
IF TO TENANT:
ACCUIMAGE DIAGNOSTICS CORPORATION
Attn: General Manager
000 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxx Xxxxxxxxx, XX 00000
26.2 REQUIRED CONTENTS. Every notice (other than the giving or withholding of
consent or approval under the provisions of the Lease) given to a party shall
state the section of the Lease pursuant to which the notice is given; the period
of time within which the recipient of the notice must respond (or, if no
response is required, a statement to that effect); and if applicable, that the
failure to object to the notice within the stated time period will be deemed to
be the equivalent of the recipient's approval, consent to, or satisfaction with
the subject matter of the notice.
26.3 PRESUMPTION OF RECEIPT. Any notice delivered personally or by private
messenger service shall be deemed delivered on the next day following the
deposit of such notice at the recipient's address. Any notice delivered by
Federal Express or another nationally-recognized private overnight delivery
service shall be deemed delivered on the earlier of (y) the second day following
deposit thereof with the carrier or (z) the delivery date shown on the carrier's
record of delivery. Any notice delivered by mail in the manner specified in ss.
23.1 shall be deemed delivered on the earlier of (a) the third day following
deposit thereof in the United States Mail or (b) the delivery date shown on the
return receipt prepared in connection therewith. Refusal by Tenant or Landlord
to accept either certified or registered mail shall constitute a waiver of such
notice by the respective party.
(27) BROKERS
27.1 TENANT'S REPRESENTATION. Tenant represents and warrants to Landlord that
Tenant has dealt with no broker in connection with this Lease other than XXXXX &
XXXXX COMPANY and XXXXXXX & WAKEFIELD OF CALIFORNIA, INC. Tenant shall be
responsible for all foreseeable consequences of damages (including attorneys'
fees and costs) resulting from any claims that may be asserted against Landlord
by any other broker, finder, or other person with whom Tenant has or purportedly
has dealt in connection with this Lease, and Tenant agrees to indemnify, defend,
protect, and hold Landlord harmless in connection with any such Claims which may
be asserted.
(28) RIGHTS RESERVED TO LANDLORD
28.1 ACCESS TO PROPERTY. All of the Property except the inside surfaces of all
walls, windows, and doors bounding the Premises (including exterior Building
walls, core corridor walls and doors, and any core corridor entrance) and any
space in or adjacent to the Premises used for shafts, stacks, pipes, conduits,
fan rooms, ducts, electric, or other utilities, sinks or other Building
facilities, and the use thereof, as well as access thereto through the Premises
for the purpose of operation, maintenance, decoration, and repair, are reserved
to Landlord. Tenant shall permit Landlord to install, use, replace, and maintain
pipes, ducts, and conduits within the demising walls, bearing columns, and
ceilings of the Premises.
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
28.2 CONTROL OF PROPERTY. Except to the extent expressly limited herein,
Landlord reserves full rights to control the Property (which rights may be
exercised without subjecting Landlord to claims for constructive eviction,
abatement of Rent, damages, or other claims of any kind), including more
particularly the following rights:
(a) NAME, ADDRESS, ACCESS. To change the name or street address of
the Property; install and maintain signs on the exterior and
interior of the Property; retain at all times, and use in
appropriate instances, keys to all doors within and into the
Premises; grant to any Person the right to conduct any business
or render any service at the Property, whether or not it is the
same or similar to the use permitted Tenant by this Lease; and
have access for Landlord and other tenants of the Property to any
mail chutes located on the Premises according to the rules of the
United States Postal Service.
(b) ENTRY INTO PREMISES. To enter the Premises at reasonable hours
for reasonable purposes, including inspection and supplying
cleaning service or other services to be provided Tenant
hereunder, to show the Premises to current and prospective
lenders, ground lessors, insurers, and prospective purchasers,
tenants and brokers, at reasonable hours; and if Tenant shall
abandon the Premises at any time, or shall vacate the same during
the last three (3) months of the Term, to decorate, remodel,
repair, or alter the Premises.
(c) SAFETY MEASURES. To limit or prevent access to the Property, shut
down elevator service, activate elevator emergency controls, or
otherwise take such action or preventative measures deemed
necessary by Landlord for the safety of tenants or other
occupants of the Property or the protection of the Property and
other property located thereon or therein, in case of fire,
invasion, insurrection, riot, civil disorder, public excitement
or other dangerous condition, or threat thereof.
(d) IMPROVEMENTS. To decorate and to make alterations, additions and
improvements, structural or otherwise, in or to the Property or
any part thereof, and any adjacent building, structure, parking
facility, land, street or alley (including changes and reductions
in corridors, lobbies, parking facilities and other public areas
and the installation of kiosks, planters, sculptures, displays,
escalators, mezzanines, and other structures, facilities,
amenities and features therein, and changes for the purpose of
connection with or entrance into or use of the Property in
conjunction with any adjoining or adjacent building or buildings,
now existing or hereafter constructed). In connection with such
matters, or with any other repairs, maintenance, improvements or
alterations, in or about the Property, Landlord may erect
scaffolding and other structures reasonably required, and during
such operations may enter upon the Premises and take into and
upon or through the Premises, all materials required to make such
repairs, maintenance, alterations or improvements, and may close
public entry ways, other public areas, restrooms, stairways or
corridors.
28.3 LANDLORD'S RIGHT TO MAINTAIN. Except as expressly otherwise provided in
this Lease, Landlord shall have no liability to Tenant by reason of any
inconvenience, annoyance, interruption, or injury to business arising from
Landlord's making any repairs or changes which Landlord is required or permitted
to make by this Lease, by any other lease or agreement affecting the Property,
or by Law, in or to any portion of the Property, Complex, or the Premises,
including the Systems and Equipment and appurtenances of the Property or the
Premises, provided that Landlord shall use due diligence with
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
respect thereto and shall perform such work, except in case of emergency, at
times reasonably convenient to Tenant and otherwise in such manner as will not
materially diminish Tenant's beneficial enjoyment of the Premises for their
intended use.
28.4 REASONABLE NOTICE. In connection with entering the Premises to exercise any
of the foregoing rights, Landlord shall: (a) provide reasonable advance written
or oral notice to Tenant's on-site manager or other appropriate person (except
in emergencies, or for routine cleaning or other routine matters), and (b) take
reasonable steps to avoid any unreasonable interference with Tenant's business.
(29) BUILDING PLANNING
29.1 RELOCATION RIGHT. In the event Landlord requires the Premises for use in
conjunction with another suite or for other reasons connected with Landlord's
planning program for the Building, upon notifying Tenant in writing, Landlord
shall have the right to move Tenant to other space in the Building or in the
Complex, provided such space is not more than ten percent (10%) larger than the
Premises. If Landlord elects to move Tenant to such other space, Landlord shall
pay for (a) all direct, out-of-pocket, reasonable expenses of Tenant in moving
from the Premises to the new space and (b) the cost of improving the new space
so that the level of improvements in the new space is comparable to the level of
improvements in the Premises. All the terms and conditions of the original Lease
shall remain in full force and effect, except that (i) a revised EXHIBIT B shall
become a part of this Lease and shall reflect the location of the new space; and
(ii) Tenant agrees to execute promptly upon notice from Landlord an amendment to
this Lease amending the Table and corresponding sections of the Lease in order
to reflect all correct data for the new space.
(30) HOLDING OVER
30.1 HOLDOVER. Unless Landlord expressly agrees otherwise in writing, Tenant
shall pay Landlord TWO HUNDRED PERCENT (200%) of the amount of Rent then
applicable prorated on per diem basis for each day Tenant shall retain
possession of the Premises or any part thereof after expiration of the Term or
earlier termination of this Lease, together with all damages sustained by
Landlord on account thereof. The foregoing provisions shall not serve as
permission for Tenant to hold over, nor serve to extend the Term, although
Tenant shall remain bound to comply with all provisions of this Lease until
Tenant vacates the Premises and shall be subject to the provisions of ss. 11.1
above.
30.2 PERMISSIVE MONTH-TO-MONTH TENANCY. Notwithstanding the foregoing to the
contrary, at any time before or after expiration or earlier termination of the
Term of the Lease, Landlord may serve notice advising Tenant of the amount of
Rent and other terms required, should Tenant desire to enter a month-to-month
tenancy. If Tenant shall hold over more than one full calendar month after such
notice, Tenant shall thereafter be deemed a month-to-month tenant, on the terms
and provisions of this Lease then in effect, as modified by Landlord's notice,
except that Tenant shall not be entitled to any renewal or expansion rights
contained in this Lease or any amendments hereto.
(31) PARKING
31.1 AVAILABLE PARKING. Subject to the terms and conditions contained in the
balance of this Article 28, Landlord agrees to make available to Tenant during
the Term of this Lease and any renewal term up to a maximum of ELEVEN (11)
parking spaces on a non-exclusive basis in the area(s) designated by Landlord
for parking in the Building's parking lots and/or facility (the "Parking
Facility"). Said parking spaces shall be in locations designated by Landlord,
and parking shall be on a first-come-first-served,
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
unassigned, nonreserved basis. Landlord reserves the right to designate
different locations or different parking areas for Tenant's use without any
liability to Tenant and Tenant agrees that any change shall not give rise to any
claims or offset against Landlord hereunder. Tenant shall abide by any and all
parking regulations and rules established from time to time by Landlord or
Landlord's parking operator. Landlord reserves the right in its sole and
absolute discretion to restrict or prohibit the use of the Parking Facility for
any vehicles other than passenger automobiles, such as full-sized vans or
trucks. Tenant shall not permit any vehicles belonging to Tenant or Tenant's
employees, agents, customers, contractors, or invitees to be loaded, unloaded,
or parked in areas other than those designated by Landlord for such activities.
A failure to comply with the foregoing provisions shall afford Landlord the
right without notice to remove any vehicles involved and to charge the cost to
Tenant, which cost shall be immediately due and payable upon demand by Landlord.
31.2 USE AT TENANT'S OWN RISK. Landlord shall have no obligation to monitor the
use of the Parking Facility. Tenant's and its employees' use of the Parking
Facility shall be at the sole risk of Tenant and its employees. Unless caused by
the willful harmful act of Landlord, Landlord shall have no responsibility or
liability for any injury or damage to any person or property by or as a result
of the use of the Parking Facility (or substitute parking) by Tenant and its
employees, whether by theft, collision, criminal activity, or otherwise, and
Tenant hereby assumes, for itself and its employees, all risks associated with
any such occurrences in or about the Parking Facility.
(32) MISCELLANEOUS PROVISIONS.
32.1 GENERAL DEFINITIONS. The definitions which follow shall apply generally to
the provisions of this Lease.
(a) The term BUSINESS DAYS means Monday through Friday inclusive,
excluding Holidays as defined in ss. 8.1.1 above. Throughout this
Lease, wherever DAYS is used the term shall refer to calendar
days. Wherever the term BUSINESS DAYS is used the term shall
refer to business days as defined hereunder.
(b) The term MORTGAGE shall include any mortgage or deed of trust,
and the term MORTGAGEE shall include a trustee.
(c) The terms INCLUDE, INCLUDING, and SUCH AS shall each be construed
as if followed by the phrase "without limitation." The rule of
EIUSDEM GENERIS shall not be applicable to limit a general
statement following or referrable to an enumeration of specific
matters to matters similar to the matters specifically mentioned.
(d) The term OBLIGATIONS UNDER THIS LEASE and words of like import
shall mean the covenants to pay Rent and Additional Rent under
this Lease and all of the other covenants and conditions
contained in this Lease. Any provision in this Lease that one
party or the other or both shall do or not do or shall cause or
permit or not cause or permit a particular act, condition, or
circumstance shall be deemed to mean that such party so covenants
or both parties so covenant, as the case may be.
(e) The term TENANT'S OBLIGATIONS HEREUNDER and words of like import
and the term LANDLORD'S OBLIGATIONS HEREUNDER and words of like
import shall mean the obligations under this Lease which are to
be performed or observed by Tenant, or by Landlord, as the case
may be. Reference to PERFORMANCE of either party's obligations
under this Lease shall be construed as "performance and
observance."
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
(f) Reference to Tenant being or not being IN DEFAULT HEREUNDER or
words like import shall mean that Tenant is in default in the
performance of one or more of Tenant's obligations hereunder, or
that Tenant is not in default in the performance of any of
Tenant's obligations hereunder, or that a condition of the
character described in ss. 20.1 above has occurred and continues
or has not occurred or does not continue, as the case may be.
(g) References to Landlord as having NO LIABILITY TO TENANT or being
WITHOUT LIABILITY TO TENANT shall mean that Tenant is not
entitled to terminate this Lease or to claim actual or
constructive eviction, partial or total, or to receive any
credit, allowance, setoff, abatement, or diminution of Rent, or
to be relieved in any manner of any of its other obligations
hereunder, or to be compensated for loss or injury suffered or to
enforce any other kind of liability whatsoever against Landlord
under or with respect to this Lease or with respect to Tenant's
use or occupancy of the Premises.
(h) The term REQUIREMENTS OF INSURANCE BODIES and words of like
import shall mean rules, regulations, orders, and other
requirements of the California Board of Fire Underwriters and/or
the California Fire Insurance Rating Organization and/or any
other similar body performing the same or similar functions and
having jurisdiction or cognizance of the Property and/or the
Premises.
(i) The term REPAIR shall be deemed to include restoration and
replacement as may be necessary to achieve and/or maintain good
working order and condition.
(j) Reference to TERMINATION OF THIS LEASE includes expiration or
earlier termination of the Term of this Lease or cancellation of
this Lease pursuant to any of the provisions of this Lease or to
Law. Upon a termination of this Lease, the Term and estate
granted by this Lease shall end at noon of the date of
termination as if such date were the date of expiration of the
Term of this Lease, and neither party shall have any further
obligation or liability to the other after such termination,
except as shall be expressly provided for in this Lease and
except for any such obligation as by its nature or under the
circumstances can only be, or by the provisions of this Lease may
be, performed after such termination; and in any event, unless
expressly provided to the contrary in this Lease, any liability
for a payment or obligation which shall have accrued to or with
respect to any period ending at the time of termination shall
survive the termination of this Lease.
(k) The term IN FULL FORCE AND EFFECT when herein used in reference
to this Lease as a condition to the existence or exercise of a
right on the part of Tenant shall be construed in each instance
as including the further condition that at the time in question
no default on the part of Tenant exists, and no event has
occurred which has continued to exist for such period of time
(after the notice, if any, required by this Lease), as would
entitle Landlord to terminate this Lease or to dispossess Tenant.
(l) The term TENANT shall mean Tenant herein named or any assignee,
heir, distributee, executor, administrator, legal representative,
or other successor in interest (immediate or remote) of Tenant
herein named, while such Tenant or such assignee or other
successor in interest, as the case may be, is in possession of
the Premises as owner of the Tenant's estate and interest granted
by this Lease and also, if Tenant is
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
not a single individual or a corporation, all of the persons,
firms, and corporations then comprising Tenant; and their
liability hereunder shall be joint and several.
32.2 LIGHT AND AIR. No diminution of light, air or view by any structure which
may hereafter be erected (whether or not by Landlord) shall entitle Tenant to
any reduction of Rent under this Lease, result in any liability of Landlord to
Tenant, or in any other way affect this Lease.
32.3 WAIVER OF TERMS. If either Landlord or Tenant waives the performance of any
term, covenant, or condition contained in this Lease, such waiver shall not be
deemed to be a waiver of the term, covenant, or condition itself or a waiver of
any subsequent breach of the same or any other term, covenant, or condition
contained herein. Furthermore, the acceptance of Rent by Landlord shall not
constitute a waiver of any preceding breach by Tenant of any term, covenant, or
condition of this Lease, regardless of Landlord's knowledge of such preceding
breach at the time Landlord accepts such Rent. Failure by Landlord to enforce
any of the terms, covenants, or conditions of this Lease for any length of time
shall not be deemed to waive or to decrease the right of Landlord to insist
thereafter upon strict performance by Tenant. Waiver by Landlord of any term,
covenant, or condition contained in this Lease may only be made by a written
document signed by Landlord.
32.4 FAILURE TO DELIVER STATEMENTS. Landlord's failure during the Term of this
Lease to prepare and deliver any of the Statements, estimates, notices, or bills
contemplated or required under this Lease, or Landlord's failure to make a
demand, shall not in any way cause Landlord to forfeit or surrender its rights
to collect any of the foregoing items of Rent which may have become due during
the Term of this Lease.
32.5 ATTORNEY'S FEES. In the event that any action or proceeding (including
arbitration) is brought to enforce or interpret any term, covenant, or condition
of this Lease on the part of Landlord or Tenant, the prevailing party in such
action or proceeding (whether after trial or upon appeal) shall be entitled to
recover from the party not prevailing its expenses therein, including reasonable
attorneys' fees and all allowable costs as fixed by the court.
32.6 JURY TRIAL. Tenant and Landlord each hereby waive their respective rights
to a trial by jury under applicable Laws in the event of any litigation or
dispute between Landlord and Tenant arising out of or in connection with this
Lease and the parties' performance thereunder.
32.7 MERGER. Notwithstanding the acquisition (if same should occur) by the same
party of the title and interests of both Landlord and Tenant under this Lease,
there shall never be a merger of the estates of Landlord and Tenant under this
Lease, but instead the separate estates, rights, duties, and obligations of
Landlord and Tenant, as existing hereunder, shall remain unextinguished and
continue, separately, in full force and effect until this Lease expires or
otherwise terminates in accordance with the express provisions herein contained.
32.8 NO MERGER ON VOLUNTARY SURRENDER. A voluntary or other surrender of this
Lease by Tenant or the mutual cancellation of this Lease shall not work a merger
and shall, at the option of Landlord, terminate all or any existing subleases or
subtenancies, or may, at the option of Landlord, operate as an assignment to it
of any or all such subleases or subtenancies.
32.9 CONSENT. Notwithstanding anything contained in this Lease to the contrary,
Tenant shall have no claim and hereby waives the right to any claim against
Landlord for money damages by reason of any refusal, withholding, or delaying by
Landlord of any consent, approval, statement, or satisfaction; and in
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Kashiwa Fudosan America, Inc.::AccuImage Diagnostics
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
such event, Tenant's only remedies therefor shall be an action for specific
performance, injunction, or declaratory judgement to enforce any right to such
consent, approval, statement, or satisfaction.
32.10 COUNTERPARTS. This Lease may be executed in multiple counterparts, each of
which shall be deemed an original and all of which together shall constitute one
and the same instrument.
32.11 FINANCIAL STATEMENTS. In order to induce Landlord to enter into this
Lease, Tenant agrees that it shall promptly furnish Landlord, from time to time,
upon Landlord's written request, with financial statements reflecting Tenant's
current financial condition. Tenant represents and warrants that all financial
statements, records, and information furnished by Tenant to Landlord in
connection with this Lease are and shall be true, correct, and complete in all
respects.
32.12 GENDER AND NUMBER. Words used in neuter gender include the feminine and
masculine, where applicable, and words used in the singular or plural shall
include the opposite number if appropriate.
32.13 JOINT AND SEVERAL OBLIGATION. If more than one person executes this Lease
as Tenant, each of them is jointly and severally liable for the keeping,
observing, and performing of all of the terms, covenants, conditions,
provisions, and agreements of this Lease to be kept, observed, and performed by
Tenant. The term TENANT as used in this Lease shall mean and include each of
such signatories jointly and severally. The act of or notice from, or notice or
refund to, or the signature of, any one or more of such signatories with respect
to the tenancy or this Lease, including any renewal, extension, expiration,
termination, or modification of this Lease, shall be binding upon each and all
of the persons executing this Lease as Tenant with the same force and effect as
if each and all of them had so acted or so given or received such notice or
refund or so signed.
32.14 HEADINGS AND SECTION NUMBERS. The headings and titles of the articles and
sections of this Lease are used for convenience only and shall have no effect
upon the construction or interpretation of this Lease. Wherever a reference is
made in this Lease to a particular article or section, such reference shall be
deemed to include all subsections following such section reference, unless the
contrary is expressly provided in connection with such reference. All references
in this Lease to numbered articles, numbered sections, and lettered exhibits are
references to articles and sections of this Lease and exhibits annexed to (and
thereby made part of) this Lease, as the case may be, unless expressly otherwise
designated in the context.
32.15 TIME. Time is of the essence of this Lease and all of its provisions.
32.16 APPLICABLE LAW. This Lease shall in all respects be governed by and
interpreted in accordance with the laws of the State of California.
32.17 SEVERABILITY. If any provision of this Lease or the application thereof to
any person or circumstance shall be invalid or unenforceable to any extent, the
remainder of this Lease and the application of such provision to other persons
or circumstances shall not be affected thereby and shall be enforced to the
greatest extent permitted by law.
32.18 SIGNS. Tenant shall not place or permit to be placed in or upon the
Premises where visible from outside the Premises or any part of the Building,
any signs, notices, drapes, shutters, blinds or window coatings, or displays of
any type without the prior written consent of Landlord. Landlord shall consent
to the location at the cost of Tenant of a building standard sign on or near the
entrance of the
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Kashiwa Fudosan America, Inc.::AccuImage Diagnostics
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
Premises and shall include Tenant in the Building and Complex directories
located in the Building. Landlord reserves the right in Landlord's sole
discretion to place and locate on the roof and exterior of the Building and
Complex and in any area of the Building and the Complex not leased to Tenant,
such signs, notices, displays and similar items as Landlord deems appropriate in
the proper operation of the Building and the Complex.
32.19 EXECUTION BY LANDLORD. The submission of this document for examination and
negotiation does not constitute an offer to lease, or a reservation of, or
option for, the Premises. This document becomes effective and binding only upon
execution and delivery hereof by Tenant and by Landlord. No act or omission of
any employee or agent of Landlord or of Landlord's broker shall alter, change or
modify any of the provisions hereof.
32.20 USE OF NAME. Tenant shall not use the name of the Building or Complex for
any purpose other than the address of the business to be conducted by Tenant in
the Premises. Tenant shall not use any picture of the Building or Complex in its
advertising, stationery or in any other manner so as to imply that the entire
Building or Complex is leased by Tenant. Landlord expressly reserves the right
at any time to change the name or street address of the Building and/or Complex
without in any manner being liable to Tenant therefor.
32.21 NONRECORDABILITY OF LEASE. Tenant agrees that in no event shall this Lease
or a memorandum hereof be recorded without Landlord's express prior written
consent, which consent Landlord may withhold in its sole discretion.
32.22 CONSTRUCTION. All provisions hereof, whether covenants or conditions,
shall be deemed to be both covenants and conditions. The definitions contained
in this Lease, shall be used to interpret the Lease. All rights and remedies of
Landlord and Tenant shall, except as otherwise expressly provided, be cumulative
and non-exclusive of any other remedy at law or in equity.
32.23 FORCE MAJEURE DELAYS. This Lease and the obligations of Tenant hereunder
shall not be affected or impaired because Landlord is unable to fulfill any of
its obligations hereunder or is delayed in doing so, if such inability or delay
is caused by reason of force majeure, strike, labor troubles, acts of God, acts
of government, unavailability of materials or labor, or any other cause beyond
the reasonable control of Landlord (collectively "Force Majeure Delays").
32.24 AUTHORITY. If Tenant is a corporation, each individual executing this
Lease on behalf of Tenant represents and warrants that Tenant is qualified to do
business in California and that he is duly authorized to execute and deliver
this Lease on behalf of Tenant and shall deliver appropriate certification to
that effect if requested. If Tenant is a limited liability company, partnership,
joint venture, or other unincorporated association, each individual executing
this Lease on behalf of Tenant represents and warrants that he is duly
authorized to execute and deliver this Lease on behalf of Tenant and that this
Lease is binding on Tenant. Furthermore, Tenant agrees that the execution of any
written consent hereunder, or any written modification or termination of this
Lease, by any general partner or member of Tenant or any other authorized agent
of Tenant, shall be binding on Tenant.
32.25 NONDISCLOSURE. Tenant agrees that it shall not disclose any of the matters
set forth in this Lease or disseminate or distribute any information concerning
the terms, covenants, or conditions thereof to any person, firm, or entity,
other than a prospective assignee or subtenant of the Premises, without first
obtaining the express written approval of Landlord; provided, however, that
Tenant may disclose the contents of this Lease to any director, officer, or
employee of Tenant, to Tenant's lawyers, accountants, or
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Kashiwa Fudosan America, Inc.::AccuImage Diagnostics
page 52 of 53
exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
other third party consultants or professionals, to any lenders, investors, or
others to whom Tenant provides financial statements, or in response to any
legally effective demand for disclosure pursuant to court order or from any
other properly constituted legal authority.
32.26 QUIET ENJOYMENT. So long as Tenant is not in default under this Lease,
Tenant shall have quiet enjoyment of the Premises for the Term, subject to all
the terms and conditions of this Lease and all liens and encumbrances prior to
this Lease.
32.27 EXHIBITS AND ATTACHMENTS. All exhibits and attachments referred to in the
body of this Lease are deemed attached hereto and incorporated herein by
reference. The parties have attached the following exhibits to the Lease prior
to execution:
EXHIBIT A SITE PLAN
EXHIBIT B FLOOR PLAN OF PREMISES
EXHIBIT C RULES AND REGULATIONS
EXHIBIT D ATHLETIC FACILITY USE AGREEMENT
EXHIBIT E COMMENCEMENT DATE AGREEMENT
32.28 ENTIRE AGREEMENT. This Lease, together with its exhibits, contains all the
agreements of the parties hereto and supersedes any previous negotiations. There
have been no representations made by the Landlord or understandings made between
the parties other than those set forth in this Lease and its exhibits. This
Lease may not be modified except by a written instrument duly executed by the
parties hereto.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
first above written.
LANDLORD: KASHIWA FUDOSAN AMERICA, INC., a California corporation
By: /s/ HARU TAKEHANA
___________________________
Haru Takehana, Director
Its:
___________________________
TENANT: ACCUIMAGE DIAGNOSTICS CORPORATION, a Nevada corporation
By: /s/ XXX XXXXXXX
___________________________
Xxx Xxxxxxx
Its: Chief Operating Officer
___________________________
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exhibit 10.06 leas [Suite 201 (400 OPB); 2,933 rsf]
TABLE OF CONTENTS
1 BASIC LEASE TERMS........................................................1
2 USE......................................................................5
3 PREPARATION OF THE PREMISES..............................................6
4 ADJUSTMENTS OF RENT......................................................7
5 SECURITY DEPOSIT........................................................14
6 COMPLIANCE WITH LAWS....................................................15
7 HAZARDOUS MATERIALS.....................................................15
8 SERVICES AND UTILITIES..................................................17
9 TENANT'S CHANGES........................................................21
10 TENANT'S PROPERTY.......................................................23
11 CONDITION UPON SURRENDER................................................24
12 REPAIRS AND MAINTENANCE.................................................24
13 RULES AND REGULATIONS...................................................25
14 INSURANCE AND INDEMNIFICATION...........................................25
15 DAMAGE OR DESTRUCTION...................................................30
16 EMINENT DOMAIN..........................................................31
17 ASSIGNMENT AND SUBLETTING...............................................32
18 SUBORDINATION AND ATTORNMENT............................................37
19 FINANCING REQUIREMENTS..................................................39
20 DEFAULT.................................................................39
21 LIMITATIONS ON LANDLORD'S LIABILITY.....................................42
22 ESTOPPEL CERTIFICATES...................................................42
23 NOTICES.................................................................43
24 BROKERS.................................................................44
25 RIGHTS RESERVED TO LANDLORD.............................................44
26 BUILDING PLANNING.......................................................45
27 HOLDING OVER............................................................46
28 PARKING.................................................................46
29 MISCELLANEOUS PROVISIONS................................................47
Oyster Point Marina Plaza Lease Table of Contents
page T-1 of 0
XXXXXX XXXXX XXXXXX XXXXX LEASE TABLE OF DEFINED TERMS
PAGE I-III OF 2
INDEX OF DEFINED TERMS
A
Additional Rent.............................2, 7, 11, 23, 32, 33, 34, 35, 36, 47
Adjustment Period............................................7, 8, 9, 11, 12, 13
Assumed Base Amount...........................................................12
Athletic Facility......................................................3, 10, 52
B
Base Expense Year..............................................................7
Base Operating Expenses....................................................7, 12
Base Parking Fee..............................................................47
Base Real Estate Taxes..............................................7, 8, 12, 13
Base Rent............................1, 2, 7, 12, 14, 19, 30, 31, 33, 34, 36, 38
Base Tax Year..............................................................8, 13
Base Utilities.............................................................7, 12
Building...1, 3, 4, 5, 8, 9, 10, 12, 17, 18, 19, 20, 21, 23, 25, 27, 29, 31, 33,
...............................................34, 35, 36, 37, 43, 44, 45, 46, 51
Business Hours................................................................18
Business Personal Property............................................26, 27, 28
C
Claims........................................................28, 29, 35, 43, 44
Code Costs....................................................................15
Commencement Date............................1, 2, 7, 10, 15, 19, 39, 42, 46, 52
Complex.........1, 2, 3, 4, 5, 8, 10, 13, 23, 29, 31, 33, 34, 37, 39, 43, 45, 51
E
Event of Default..........................................................39, 40
Expiration Date.........................................1, 2, 11, 15, 17, 24, 35
F
Force Majeure Delays..........................................................51
H
Hazardous Material....................................................15, 16, 17
Holder........................................................27, 38, 39, 41, 43
Holidays..................................................................18, 47
HVAC..............................................................17, 18, 19, 20
I
Improvements...................................................6, 23, 24, 31, 45
INC..........................................1, 4, 5, 18, 19, 21, 24, 25, 29, 53
IW 24
L
Landlord....1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19,
............20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36,
...............37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53
Laws...............................................5, 10, 15, 16, 18, 19, 22, 24
Lease...........................i, 2, 3, 4, 5, 6, 7, 8, 11, 12, 13, 14, 15, 16,
17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35,
36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53
Lessor................................................................27, 38, 00
Xxxxxx Xxxxx Xxxxxx Xxxxx Lease Table of Defined Terms
Page I-ii of 1
M
MPOE......................................................................18, 19
MSDS..........................................................................16
O
Occupancy Conditions...........................................................6
Operating Expenses...............................7, 8, 9, 10, 11, 12, 13, 17, 31
P
Parking Facility..........................................................46, 47
Permitted Occupant........................................................34, 37
Premises1, 2, 4, 5, 6, 7, 8, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25,
27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 39, 40, 41, 42, 44, 45, 46, 48, 49,
...........................................................................51, 52
Prime
Rate...........................................................................2
Property....2, 3, 4, 5, 8, 9, 10, 11, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23,
...........24, 25, 26, 27, 28, 29, 30, 31, 35, 36, 37, 39, 40, 42, 43, 44, 45, 48
R
Real Estate Taxes................................................7, 8, 9, 12, 13
Rent......1, 2, 4, 7, 8, 11, 12, 14, 19, 20, 23, 28, 30, 31, 32, 33, 34, 35, 36,
...............................................38, 40, 41, 42, 44, 46, 47, 48, 49
Rental Adjustment......................................................7, 11, 12
Rules..................................................................4, 25, 52
S
Security Deposit..........................................................14, 15
State...........................................................1, 8, 15, 26, 50
Statement.................................................................11, 14
Subsequent Operating Expenses.................................................12
Successor Landlord............................................................38
Superior Leases...............................................................38
Superior Mortgages........................................................11, 38
Systems and Equipment................3, 4, 6, 10, 17, 18, 19, 20, 21, 25, 29, 45
T
Table.............................................................1, 2, 7, 8, 46
Takings.......................................................................31
Temporary Condemnation........................................................32
Tenant....1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21,
....22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40,
...............................41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53
Tenant Delays..................................................................6
Term....................1, 2, 3, 6, 7, 8, 9, 11, 12, 13, 14, 15, 18, 21, 23, 27,
...............................................31, 32, 41, 45, 46, 47, 48, 49, 52
Transfer..............................................32, 33, 34, 35, 36, 39, 42
Transfer Notice...................................................32, 33, 34, 35
Transfer Premium..........................................................35, 36
U
Utilities................................................7, 8, 9, 11, 12, 13, 17
W
Work........................................................6, 7, 23, 24, 25, 00
Xxxxxx Xxxxx Xxxxxx Xxxxx Lease Table of Defined Terms
Page I-ii of 2
