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EXHIBIT 10.05
CONSENT TO SUBLEASE AGREEMENT
This Consent to Sublease Agreement (this "AGREEMENT") is made as of
March 31, 2000 by and among Xxxxxxx Properties, L.P., a California limited
partnership ("MASTER LANDLORD"), Franklin Xxxxxxxxx Corporate Services, Inc., a
Delaware corporation ("SUBLANDLORD"), and Intuit Inc., a Delaware corporation
("SUBTENANT").
RECITALS
This Agreement is made with regard to the following facts;
A. Master Landlord is the owner of approximately 29 acres and up to
approximately 591,000 square feet (existing, under construction or planned) in 9
buildings known as Bridge Pointe Corporate Centre within the Eastgate Technology
Park in San Diego, California (the "PROJECT"). Phase A of the Project consists
of 4 existing buildings known as "Building 1" (also referred to as the "PHASE
A-1 PREMISES") located at 0000 Xxxxxxxx Mall, "Building 2" (also referred to as
the "ADC TELECOMMUNICATIONS PREMISES") located at 0000 Xxxxxxxx Mall, "Building
3" (also referred to as the "PHASE A-2 PREMISES") located at 0000 Xxxxxxxx Xxxx
and "Building 4" (also referred to as the "PHASE A-3 PREMISES") located at 0000
Xxxxxxxx Xxxx. Xxxxx X of the Project consists of 2 buildings under construction
known as "Building 5" (also referred to as the "PHASE B-2 PREMISES") located at
0000 Xxxxxxxx Xxxx and "Building 6" (also referred to as the "PHASE B-1
PREMISES") located at 0000 Xxxxxxxx Xxxx. Phase C of the Project consists of 3
planned buildings known as "Buildings 7 through 9".
B. Master Landlord and Sublandlord entered into a lease dated September
2, 1998, as amended by that certain First Amendment to Lease dated March 15,
1999 and assigned by that certain Assignment, Assumption and Consent agreement
dated January 1, 2000 (collectively, the "PHASE A LEASE") whereby Master
Landlord leased to Sublandlord the Phase A-2 Premises and the Phase A-3
Premises, upon the terms and conditions contained therein.
C. Under the terms of Paragraph 21 of the Phase A Lease, Sublandlord has
requested Master Landlord's consent to the Sublease Agreement dated .March 31,
2000 between Sublandlord and Subtenant (the "SUBLEASE"), pursuant to which
Sublandlord will sublease to Subtenant the Phase A-2 Premises, as more
particularly described in the Sublease (the "SUBLEASED PREMISES"). A copy of the
Sublease is attached to this Agreement as EXHIBIT A.
D. Master Landlord is willing to consent to the Sublease on the terms
and conditions contained in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants contained in
this Agreement, and for valuable consideration, the receipt and sufficiency of
which are acknowledged by the parties, the parties agree as follows.
1. MASTER LANDLORD'S CONSENT. Master Landlord consents to the
Sublease. This consent is granted only on the terms and conditions stated in
this Agreement. Master
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Landlord is not bound by any of the terms, covenants, or conditions of the
Sublease, except as set forth in Section 2.2 below. The Sublease is subject and
subordinate to the Master Lease.
2. LIMITS OF CONSENT.
2.1 NONRELEASE OF SUBLANDLORD; FURTHER TRANSFERS. Neither
the Sublease nor this Agreement will:
(a) release Sublandlord from any liability, whether
past, present or future, under the Master Lease;
(b) alter the primary liability of Sublandlord to pay
the Rent and perform all of Tenant's obligations under the Master Lease
(including the payment of all bills rendered by Master Landlord for charges
incurred by Subtenant for services and materials supplied to the Subleased
Premises); or
(c) be construed as a waiver of Master Landlord's right
to consent to any proposed transfer after the date hereof by Sublandlord under
the Master Lease or Subtenant under the Sublease, or as a consent to any portion
of the Subleased Premises being used or occupied by any other party.
2.2 MASTER LANDLORD ACKNOWLEDGMENT. Master Landlord
specifically acknowledges and agrees to be bound by the following Paragraphs of
the Sublease: 4, "Signage"; 20, "Permitted Use;" and 21, "Mutual Waiver of
Subrogation"; and all of the modifications to the Master Lease set forth in
Paragraph 8(a) of the Sublease.
Master Landlord may consent to the subsequent sublease and
assignment of the Sublease or any amendments or modifications to the Sublease
without notifying Sublandlord or anyone else liable under the Master Lease,
including any guarantor of the Master Lease, and without obtaining their
consent. No such action by Master Landlord will relieve those persons from any
liability to Master Landlord or otherwise with regard to the Subleased Premises.
Notwithstanding the foregoing, nothing contained herein shall diminish any
obligation of Subtenant to obtain Sublandlord's approval prior to taking any
such actions.
3. RELATIONSHIP WITH MASTER LANDLORD
3.1 EFFECT OF SUBLANDLORD DEFAULT UNDER MASTER LEASE. If
after the expiration of any applicable cure period Sublandlord defaults in the
performance of its obligations under the Master Lease and the Master Lease
terminates, Master Landlord shall notify Subtenant and, without limiting its
other rights and remedies, by notice to Sublandlord and Subtenant, elect to
receive and collect, directly from Subtenant, all rent and any other sums owing
and to be owed under the Sublease, as further set forth in Section 3.2 below.
3.2 MASTER LANDLORD'S ELECTION TO RECEIVE RENTS. Master
Landlord will not, as a result of the Sublease, or as a result of the collection
of rents or any other sums
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from Subtenant under Section 3.1 above, be liable to Subtenant for any failure
of Sublandlord to perform any obligation of Sublandlord under the Sublease.
Sublandlord irrevocably authorizes and directs Subtenant, on
receipt of any written notice from Master Landlord stating that a default exists
in the performance of Sublandlord's obligations under the Master Lease, to pay
to Master Landlord the rents and any other sums due and to become due under the
Sublease. Sublandlord agrees that Subtenant has the right to rely on any such
statement from Master Landlord, and that Subtenant will pay those rents and
other sums to Master Landlord without any obligation or right to inquire as to
whether a default exists and despite any notice or claim from Sublandlord to the
contrary. Sublandlord will not have any right or claim against Subtenant for
those rents or other sums paid by Subtenant to Master Landlord. Master Landlord
will credit Sublandlord with any rent received by Master Landlord under this
assignment, but the acceptance of any payment on account of rent from Subtenant
as the result of a default by Sublandlord will not: (a) except as set forth in
Section 3.3 below, be an attornment by Master Landlord to Subtenant or by
Subtenant to Master Landlord; (b) be a waiver by Master Landlord of any
provision of the Master Lease; or (c) release Sublandlord from any liability
under the terms, agreements, or conditions of the Master Lease. Except as set
forth in Section 3.3 below, no payment of rent by Subtenant directly to Master
Landlord, regardless of the circumstances or reasons for that payment, will be
deemed an attornment by Subtenant to Master Landlord in the absence of a
specific written agreement signed by Master Landlord to that effect.
3.3 TENANT'S ATTORNMENT. In the event the Master Lease is
terminated prior to the expiration of the term of the Sublease for any reason,
Master Landlord shall automatically be deemed to have succeeded to Sublandlord's
interest in the Sublease, whereupon Subtenant shall attorn to Master Landlord.
Furthermore, Master Landlord shall recognize Subtenant's right to possession of
the Premises as provided for in the Sublease and shall not disturb Subtenant's
right to possession of the Premises so long as an event of default does not
exist in the performance of Subtenant's obligations under the Sublease beyond
any applicable notice and cure period. Master Landlord will assume the
obligation of Sublandlord under the Sublease as described above provided that
Master Landlord will not be:
(a) liable for any rent paid by Subtenant to
Sublandlord more than one month in advance, or any security deposit paid by
Subtenant to Sublandlord;
(b) liable for any act or omission of Sublandlord under
the Master Lease or for any default of Sublandlord under the Sublease which
occurred prior to Master Landlord's assumption;
(c) subject to any defenses or offsets that Subtenant
may have against Sublandlord which arose prior to Master Landlord's assumption;
or
(d) bound by any changes or modifications made to the
Sublease without the written consent of Master Landlord.
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Master Landlord shall promptly notify Subtenant of the termination
of the Master Lease and of Master Landlord's recognition of Subtenant's right to
continued possession of the Subleased Premises. Upon receipt of the notice from
Master Landlord, Subtenant shall attorn to Master Landlord and perform all of
the Subtenant's obligations under the Sublease directly to Master Landlord, just
as if Master Landlord were the "Sublessor" under the Sublease. If and so long as
Subtenant is not in substantial and material default (beyond any notice and
cure periods) under the Sublease, Master Landlord shall continue to recognize
the interest of Subtenant created under the Sublease and the Sublease shall
continue with the same force and effect as if Master Landlord and Subtenant had
entered into a Sublease on the same terms and conditions as those contained in
the Sublease.
Sublandlord and Subtenant shall not enter into any agreement which
amends the Sublease without Master Landlord's prior written consent, which shall
not be unreasonably withheld or delayed. Any amendment of the Sublease in
violation of this provision shall have no force or effect on Master Landlord.
4. CONSIDERATION FOR SUBLEASE. Sublandlord and Subtenant represent
and warrant that there are no additional payments of rent or any other
consideration of any type which has been paid or is payable by Subtenant to
Sublandlord in connection with the Sublease, other than as disclosed in the
Sublease.
5. GENERAL PROVISIONS
5.1 BROKERAGE COMMISSION. Sublandlord and Subtenant agree
that Master Landlord will not be liable for any brokerage commission or finder's
fee in connection with the consummation of the Sublease or this Agreement.
Sublandlord and Subtenant will protect, defend, indemnify, and hold Master
Landlord harmless from any brokerage commission or finder's fee in connection
with the consummation of the Sublease or this Agreement, and from any cost or
expense (including attorney's fees) incurred by Master Landlord in resisting any
claim for any such brokerage commission or finder's fee. The provisions of this
Section 5.1 shall survive the expiration or earlier termination of the Sublease
and this Agreement.
5.2 NOTICE. Any notice that may or must be given by any
party under this Agreement will be delivered (i) personally, (ii) by certified
mail, return receipt requested, or (iii) by a nationally recognized overnight
courier, addressed to the party to whom it is intended. Any notice given to the
Master Landlord, Sublandlord or Subtenant shall be sent to the respective
address set forth on the signature page below, or to such other address as that
party may designate for service of notice by a notice given in accordance with
the provisions of this Section 5.2. Master Landlord and Sublandlord agree to
send to Subtenant copies of all notices of default and other formal notices that
may require action by Sublandlord or Subtenant under the Master Lease.
5.3 CONTROLLING LAW. The terms and provisions of this
Agreement will be construed in accordance with, and will be governed by, the
laws of the State of California.
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5.4 ENTIRE AGREEMENT; WAIVER. This Agreement constitutes the
final, complete and exclusive statement between the parties to this Agreement
pertaining to the terms of Master Landlord's consent to the Sublease, supersedes
all prior and contemporaneous understandings or agreements of the parties, and
is binding on and inures to the benefit of their respective heirs,
representatives, successors and assigns.
5.5 WAIVER OF JURY TRIAL; ATTORNEY'S FEES. If any party
commences litigation against any other party for the specific performance of
this Agreement, for damages for the breach hereof or otherwise for enforcement
of any remedy hereunder, the parties waive any right to a trial by jury and, in
the event of any commencement of litigation, the prevailing party shall be
entitled to recover from the applicable party such costs and reasonable
attorney's fees as may have been incurred.
5.6 NON-DISTURBANCE FROM LENDERS. Master Landlord represents
and warrants that there are no deeds of trust, mortgages, ground leases or other
liens affecting the Project as of the date hereof. With respect to any future
mortgages, deeds of trust or other liens or ground leases entered into by and
between Landlord and any beneficiary of any deed of trust or other such lien
granted by Landlord or any ground lessor or otherwise encumbering the Building
(collectively referred to as "Landlord's Mortgagee"), Landlord shall use
commercially reasonable efforts to secure and deliver to Sublandlord and
Subtenant commercially reasonable recordable Non-Disturbance Agreements from,
and executed by, all Landlord's Mortgagees for the benefit of Sublandlord and
Subtenant as a condition precedent to subordination and attornment to any such
future Landlord Mortgagee.
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The parties have executed this Consent to Sublease Agreement as of the
above date.
MASTER LANDLORD:
XXXXXXX PROPERTIES, L.P., Master Landlord Address:
a California limited partnership
By: Xxxxxxx Properties, Inc., 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
a Maryland corporation, Xxx Xxxxx, Xxxxxxxxxx 00000
its general partner Attention: Xxxxxx Xxxxxxxx
By: /s/ [SIGNATURE ILLEGIBLE]
-----------------------------------
Its: Senior Vice President
----------------------------------
[NAME ILLEGIBLE]
By: /s/ [SIGNATURE ILLEGIBLE]
-----------------------------------
Its: Vice President
----------------------------------
[NAME ILLEGIBLE]
SUBLANDLORD:
Sublandlord Address:
FRANKLIN XXXXXXXXX CORPORATE
SERVICES, INC., a Delaware corporation 000 Xxxxxxxx Xxxxxx Xxxxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Manager of Corporate Real
BY: /s/ XXXXXX X. XXXXXXX Estate
-----------------------------------
XXXXXX X. XXXXXXX
Its: VICE PRESIDENT & SECRETARY
----------------------------------
SUBTENANT:
INTUIT INC., a Delaware corporation Subtenant Address:
By: /s/ [SIGNATURE ILLEGIBLE]
----------------------------------- 0000 Xxxxxxxxx Xxxxx
Its: CFO, SVP Finance Xxx Xxxxx, Xxxxxxxxxx 00000
---------------------------------- Attn: Facilities Director
Fax No.: 858/000-0000
By: /s/ [SIGNATURE ILLEGIBLE]
-----------------------------------
Its: VP, Investor Relations and
Treasurer
---------------------------------- With copies to:
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0000 Xxxxxx Xxxxxx, Xxxxxx Xxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Fax No.: 650/000-0000
And to:
0000 Xxxxxx Xxxxxx, Xxxxxx Xxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Vice President - Finance &
Admin.
Fax No.: 650/000-0000
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EXHIBIT A
SUBLEASE
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SUBLEASE AGREEMENT
This SUBLEASE AGREEMENT ("SUBLEASE") is made and entered into as of the
31st day of March, 2000 by and between FRANKLIN XXXXXXXXX CORPORATE SERVICES,
INC., a Delaware corporation ("SUBLANDLORD"), and INTUIT INC., a Delaware
corporation ("SUBTENANT"), with respect to the following facts and
circumstances:
RECITALS
X. Xxxxxxx Properties, L.P., a California limited partnership
("LANDLORD") is the owner of approximately 29 acres and up to approximately
591,000 square feet (existing, under construction or planned) in 9 buildings
known as Bridge Pointe Corporate Centre within the Eastgate Technology Park in
San Diego, California (the "PROJECT"). A depiction of the Project is attached
hereto as Exhibit "A" and incorporated herein by this reference. Phase A of the
Project consists of 4 existing buildings known as "Building 1" (also referred to
as the "PHASE A-1 PREMISES") located at 0000 Xxxxxxxx Mall, "Building 2" (also
referred to as the "ADC TELECOMMUNICATIONS PREMISES") located at 0000 Xxxxxxxx
Mall, "Building 3" (also referred to as the "PHASE A-2 PREMISES") located at
0000 Xxxxxxxx Xxxx and "Building 4" (also referred to as the "PHASE A-3
PREMISES") located at 0000 Xxxxxxxx Xxxx. Xxxxx X of the Project consists of 2
buildings under construction known as "Building 5" (also referred to as the
"PHASE B-2 PREMISES") located at 0000 Xxxxxxxx Xxxx and "Building 6" (also
referred to as the "PHASE B-1 PREMISES") located at 0000 Xxxxxxxx Xxxx. Phase C
of the Project consists of 3 planned buildings known as "Buildings 7 through 9".
B. Landlord and Sublandlord entered into an Industrial Net Lease dated
September 2, 1998, as amended by that certain First Amendment to Lease dated
March 15, 1999 and assigned by that certain Assignment, Assumption and Consent
agreement dated January 1, 2000 (collectively, the "PHASE A LEASE") whereby
Landlord leased to Sublandlord the Phase A-2 Premises and the Phase A-3
Premises, upon the terms and conditions contained therein. A true, correct and
complete copy of the Phase A Lease is attached hereto as Exhibit "B" and made a
part hereof. All capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Phase A Lease.
C. Sublandlord and Subtenant are desirous of entering into a sublease of
the Phase A-2 Premises ("SUBLEASE PREMISES") on the terms and conditions
hereafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto mutually
covenant and agree as follows:
1. Sublease. Sublandlord hereby subleases and demises to Subtenant
and Subtenant hereby hires and subleases from Sublandlord the Sublease Premises
which contain 47,000 rentable square feet upon and subject to the terms,
covenants and conditions hereinafter set forth.
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2. Term.
(a) The term of this Sublease ("SUBLEASE TERM") shall commence on
the earlier of the date of Substantial Completion (as defined in Paragraph 4.4
of Exhibit "D") of the Sublease Premises or August 1, 2000 regardless of the
status of the Tenant Improvements as of that date ("SUBLEASE COMMENCEMENT DATE")
and shall terminate on August 31, 2007 ("SUBLEASE EXPIRATION DATE").
(b) Sublandlord shall deliver possession of the Sublease Premises
to Subtenant upon full execution of this Sublease and receipt of Landlord's
consent pursuant to Paragraph 15 hereof, with the roof and all plumbing,
lighting, heating, ventilating and air conditioning systems within the Sublease
Premises in good working order, at which time Subtenant shall have the right to
commence the Tenant Improvements pursuant to the Work Letter executed among
Landlord, Sublandlord and Subtenant of even date herewith and attached hereto as
Exhibit "D" ("WORK LETTER").
(c) Subtenant acknowledges that Subtenant has inspected and accepts
the Sublease Premises in its present condition, broom clean, "as is" and is
suitable for Subtenant's intended operations in the Sublease Premises, subject
to punch list items and latent defects not visually discoverable by Subtenant
upon a reasonably diligent inspection and which are identified in writing by
Subtenant within six (6) months of Subtenant's occupancy of the Premises in
accordance with the Work Letter. Subtenant further acknowledges that except as
set forth in the Work Letter or expressly set forth in this Sublease, no
representations as to the condition or repair of the Sublease Premises and no
promises to alter, remodel or improve the Sublease Premises have been made by
Landlord, Sublandlord or any agents of either party.
(d) After the Sublease Commencement Date, Subtenant shall promptly
execute and return to Sublandlord a "Start-Up Letter" in which Subtenant shall
agree, among other things, to acceptance of the Sublease Premises (subject to
punchlist items and latent defects as set forth in Paragraph 2(c) above) and to
the confirmation of the Sublease Commencement Date, in accordance with the terms
of this Sublease, but Subtenant's failure or refusal to do so shall not negate
Subtenant's acceptance of the Sublease Premises or affect determination of the
Sublease Commencement Date.
3. Subrental.
(a) Base Rental. Beginning with the Sublease Commencement Date and
thereafter during the Sublease Term and ending on the Sublease Expiration Date,
Subtenant shall pay to Sublandlord monthly installments of base rent ("BASE
RENTAL") as set forth below. The first monthly installment of Base Rental shall
be paid by Subtenant upon the execution of this Sublease. Base Rental and
additional rent shall hereinafter be collectively referred to as "RENT." Base
Rental shall be increased by four percent (4%) per annum on each anniversary
date of each year of the Sublease Term as follows:
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Monthly Base Rental
Period (Per Square Foot)
------ --------------------
Earlier of the date of Substantial Completion
or August 1, 2000 - July 31, 2001 $1.45
August 1, 2001 - July 31, 2002 $1.51
August 1, 2002 - July 31, 2003 $1.57
August 1, 2003 - July 31, 2004 $1.63
August 1, 2004 - July 31, 2005 $1.70
August 1, 2005 - July 31, 2006 $1.76
August 1, 2006 -August 31, 2007 $1.83
(b) Operating Expenses. Beginning with the Sublease Commencement
Date and thereafter during the Sublease Term, Subtenant shall pay to Sublandlord
as additional rent under this Sublease, Subtenant's Proportionate Share of the
amounts that Sublandlord, as Tenant, has to pay Landlord, pursuant to Paragraph
7 of the Phase A Lease. For the purposes of this Sublease, "Subtenant's
Proportionate Share" shall mean the following: 100% of the Operating Expenses
for the Building in which the Phase A-2 Premises are located and 21.78% of the
Operating Expenses for the Phase A of the Project.
(c) Payment of Rent. Except as otherwise specifically provided in
this Sublease, Rent shall be payable in lawful money without notice or demand,
and without offset, counterclaim, or setoff in monthly installments, in advance,
on the first day of each and every month during the Sublease Term. All of said
Rent is to be paid to Sublandlord at its office at the address set forth in
Paragraph 13 herein, or at such other place or to such agent and at such place
as Sublandlord may designate by notice to Subtenant. Any additional rent payable
on account of items which are not payable monthly by Sublandlord to Landlord
under the Phase A Lease is to be paid directly to Sublandlord as and when such
items are payable by Sublandlord to Landlord under the Phase A Lease unless a
different time for payment is elsewhere stated herein. Sublandlord shall request
that copies of all notices sent by Landlord pursuant to the Phase A Lease also
be sent to Subtenant at the address set forth in Paragraph 13 below. In
addition, Sublandlord agrees to provide Subtenant with copies of any notices,
statements or invoices received by Sublandlord from Landlord pursuant to the
terms of the Phase A Lease.
4. Signage. Subtenant shall have the right to install at
Subtenant's sole cost and expense up to two (2) business identification signs
identifying Subtenant (including Subtenant's logo) on the upper exterior of the
building and adjacent to the building entrance doors of the building in which
the Sublease Premises are located, subject to Landlord's prior written approval,
which approval shall not be unreasonably withheld, delayed or conditioned.
Except for the foregoing, Subtenant shall have no right to install or keep
Subtenant identification signs in any other location outside the Sublease
Premises. The size, design, color and other
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physical aspects of all such permitted signs shall also be subject to Landlord's
prior written approval, which approval shall not be unreasonably withheld,
delayed or conditioned and shall also be subject to any covenants, conditions or
restrictions encumbering the Sublease Premises and any applicable municipal or
other governmental permits and approvals. The cost of all such signs, including
the installation, maintenance and removal thereof, shall be at Subtenant's sole
cost and expense. If Subtenant fails to maintain its signs, or if Subtenant
fails to remove same upon the expiration or earlier termination of this Sublease
and repair any damage caused by such removal, Sublandlord may do so at
Subtenant's expense and Subtenant shall reimburse Sublandlord for all actual
costs incurred by Sublandlord to effect such removal.
5. Parking Density. 3.6 parking spaces per 1,000 square feet of the
rentable area of the Sublease Premises, or 170 parking spaces, all unreserved
surface parking, at no additional cost to Subtenant.
6. Holding Over. If by written notice to Sublandlord delivered not
later than twelve (12) months prior to the Sublease Expiration Date (the
"Hold-Over Notice"), Subtenant advises Sublandlord of its intent to hold-over
specifying the period of such hold-over (which period shall not extend beyond
March 31, 2009) (the "Hold-Over Term"), then Subtenant may, as a matter of
right, remain in possession following the Sublease Expiration Date for the
Hold-Over Term set forth in the Hold-Over Notice; provided, that the Base Rent
for the Hold-Over Term shall be equal to the Base Rent for the last month of the
Sublease Term. Notwithstanding the foregoing, Subtenant shall not have the right
to hold-over beyond March 31, 2009.
7. Bonus Rent. Any Rent or other consideration realized by
Subtenant under any sublease or assignment, in excess of the Rent payable
hereunder, after amortization of all transaction costs reasonably incurred in
connection therewith, including but not limited to reasonable brokerage
commission incurred by Subtenant, legal fees, costs of improvements, shall be
divided and paid, twenty-five percent (25%) to Subtenant, and seventy-five
percent (75%) to Sublandlord ("Bonus Rent"). In any subletting or assignment
undertaken by Subtenant, Subtenant shall diligently seek to obtain the maximum
rental amount available in the marketplace for comparable space available for
primary leasing.
8. Incorporation of Terms of Phase A Lease. This Sublease is
subject and subordinate to the Phase A Lease. Subject to the modifications set
forth in this Sublease, the terms of the Phase A Lease are incorporated herein
by reference, and shall, as between Sublandlord and Subtenant (as if they were
Landlord and Tenant, respectively, under the Phase A Lease) constitute the terms
of this Sublease except to the extent that they are inapplicable to,
inconsistent with, or modified by, the terms of this Sublease. In the event of
any inconsistencies between the terms and provisions of the Phase A Lease and
the terms and provisions of this Sublease, the terms and provisions of this
Sublease shall govern. Subtenant acknowledges that it has reviewed the Phase A
Lease and is familiar with the terms and conditions thereof.
(a) For the purposes of incorporation herein, the terms of the
Phase A Lease are subject to the following additional modifications:
(i) In all provisions of the Phase A Lease (under the terms
thereof and without regard to modifications thereof for purposes of
incorporation into this
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Sublease) requiring the approval or consent of Landlord, Subtenant
shall be required to obtain the approval or consent of both
Landlord and Sublandlord.
(ii) In all provisions of the Phase A Lease requiring Tenant
to submit, exhibit to, supply or provide Landlord with evidence,
certificates, or any other matter or thing, Subtenant shall be
required to submit, exhibit to, supply or provide, as the case may
be, the same to both Landlord and Sublandlord.
(iii) Sublandlord shall have no obligation to restore or
rebuild any portion of the Sublease Premises after any destruction
or taking by eminent domain.
(iv) In Paragraph 8(B)(5) of the Phase A Lease, the
referenced deductible amount shall be changed from $5,000.00 to
$50,000.00 per occurrence.
(v) Notwithstanding anything to the contrary in Paragraph 8
of the Phase A Lease, Subtenant shall be permitted to carry any of
the required insurance coverages under blanket insurance policies.
(vi) In Paragraph 21(C) of the Phase A Lease, the rights
specifically granted to Franklin Resources, Inc., as tenant shall
expressly apply to, and benefit, Subtenant.
(vii) In Paragraph 38 (G) of the Phase A Lease, the
reference to the "Designated Building" shall be deemed to reference
the building constituting the Sublease Premises. All such roof
rights shall be exclusive to Subtenant.
(viii) Paragraph 26(A)(2) of the Phase A Lease shall be
modified to provide that Subtenant shall not be deemed in default
under the Sublease the first time in any twelve month period that
Subtenant fails to pay Rent when due unless such failure has not
been cured within three (3) business days of Subtenant's receipt of
written notice identifying the installment of Rent which was not
timely paid.
(ix) In Paragraph 8(B)(1) of the Phase A Lease, the term
"All Risk" insurance shall not be deemed to require Subtenant to
carry earthquake or flood insurance (which may be maintained at
Subtenant's sole option).
(x) In Paragraph 8(B)(2) of the Phase A Lease, the term
"Amendment of the Pollution Exclusion Endorsement" shall be deemed
to reference the Hostile Fire endorsement.
(xi) In Paragraph 16 of the Phase A Lease, the ten (10) day
time period for response to Landlord's request shall be changed to
ten (10) business days.
(b) The following provisions of the Phase A Lease are specifically
excluded: all of the Basic Lease Information, Xxxxxxxxx 0, Xxxxxxxxx 0,
Xxxxxxxxx 3, the requirement for two months prepaid rent in Paragraph 6.A.,
first paragraph of Paragraph 8.B. concerning self
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insurance, Paragraph 15.D., Xxxxxxxxx 00, Xxxxxxxxx 21.B., the first two
sentences and the last two sentences of Paragraph 25, Xxxxxxxxx 00, Xxxxxxxxx
38.A., Paragraph 38.13., Paragraph 38.C., Paragraph 38.D., Paragraph 38.E.,
Xxxxxxxxx 000, Xxxxxxxxx 38.F., Exhibit B, Exhibit C. Furthermore, Paragraphs 1
through 5 and 12 and Exhibits A and B of the First Amendment to Lease are hereby
deleted.
9. Subtenant's Obligations. Subtenant covenants and agrees that all
obligations of Sublandlord under the Phase A Lease with respect to the Sublease
Premises shall be done or performed by Subtenant, except as otherwise provided
by this Sublease, and Subtenant's obligations shall run to Sublandlord and
Landlord as Sublandlord may determine to be appropriate or be required by the
respective interests of Sublandlord and Landlord. Subtenant agrees to indemnify
Sublandlord, and hold it harmless, from and against any and all claims, damages,
losses, expenses and liabilities (including reasonable attorneys' fees) incurred
as a result of the non-performance, non-observance or non-payment of any of
Sublandlord's obligations under the Phase A Lease applicable to the Sublease
Premises which, as a result of this Sublease, became an obligation of Subtenant.
Subtenant shall not do, nor permit to be done, any act or thing which is, or
with notice or the passage of time would be, a default under this Sublease or
the Phase A Lease (to the extent applicable to the Sublease Premises).
Sublandlord agrees to indemnify Subtenant, and hold it harmless, from and
against any and all claims, damages, losses, expenses and liabilities (including
reasonable attorneys' fees) incurred as a result of the non-performance,
non-observance or non-payment of any of Sublandlord's obligations under the
Phase A Lease which under the terms of this Sublease have remained Sublandlord's
responsibility.
10. Sublandlord's Obligations. Sublandlord agrees that Subtenant
shall be entitled to receive all services and repairs to be provided by Landlord
to Sublandlord under the Phase A Lease. Subtenant shall look solely to Landlord
for all such services and shall not, under any circumstances, seek nor require
Sublandlord to perform any of such services, nor shall Subtenant make any claim
upon Sublandlord for any damages which may arise by reason of Landlord's default
under the Phase A Lease. Any condition resulting from a default by Landlord
shall not constitute as between Sublandlord and Subtenant an eviction, actual or
constructive, of Subtenant and no such default shall excuse Subtenant from the
performance or observance of any of its obligations to be performed or observed
under this Sublease, or, except as otherwise provided in this Sublease, entitle
Subtenant to receive any reduction in or abatement of the Rent provided for in
this Sublease. In furtherance of the foregoing, and subject to Paragraph 14
hereof, Subtenant does hereby waive any cause of action and any right to bring
any action against Sublandlord by reason of any act or omission of Landlord
under the Phase A Lease. Sublandlord covenants and agrees with Subtenant that
Sublandlord will pay all fixed rent and additional rent payable by Sublandlord
pursuant to the Phase A Lease to the extent that failure to perform the same
would adversely affect Subtenant's use or occupancy of the Sublease Premises. In
the event of a breach by Landlord of any term of the Phase A Lease, then
Sublandlord's sole obligation in regard to its obligation under this Sublease
shall be to diligently pursue the correction or cure by Landlord of Landlord's
breach. Such efforts shall include, without limitation, upon Subtenant's
request, (a) immediately notifying Landlord of its non-performance under the
Phase A Lease and demanding that Landlord perform its obligations under the
Phase A Lease and/or (b) assigning Sublandlord's rights under the Phase A Lease
to Subtenant to the
6
15
extent necessary to permit Subtenant to institute legal proceedings against
Landlord to obtain the performance of Landlord's obligations under the Phase A
Lease; provided, however, that if Subtenant commences a lawsuit or other action,
Subtenant shall pay all costs and expenses incurred by Subtenant in connection
therewith, and Subtenant shall indemnify Sublandlord against, and hold
Sublandlord harmless from, all costs and expenses incurred by Sublandlord in
connection therewith; provided, however, that Subtenant's indemnity and hold
harmless obligation shall not apply (i) to any legal fees or costs incurred by
Sublandlord's counsel for work which unreasonably duplicates work performed by
Subtenant's counsel and (ii) to any legal fees or costs incurred by Sublandlord
in any legal action initiated by Sublandlord for its own benefit.
11. Default by Subtenant. In the event Subtenant shall be in default of
any covenant of, or shall fail to honor any obligation under, this Sublease,
Sublandlord shall have available to it against Subtenant all of the remedies
available (a) to Landlord under the Phase A Lease in the event of a similar
default on the part of Sublandlord thereunder or (b) at law, subject in all
events to any notice and cure rights which would otherwise be available under
the terms of the Phase A Lease.
12. Quiet Enjoyment. So long as Subtenant pays all of the Rent due
hereunder and performs all of Subtenant's other obligations hereunder,
Sublandlord shall do nothing to affect Subtenant's right to peaceably and
quietly have, hold and enjoy the Sublease Premises, and all of the rights,
entitlements, and options granted to Subtenant hereunder. In the event, however,
that Sublandlord defaults in the performance or observance of any of
Sublandlord's obligations under this Sublease or receives a notice of default
from Landlord under the Phase A Lease of which Subtenant is aware, then
Subtenant shall give written notice to Sublandlord specifying in what manner
Sublandlord has defaulted. If any such default by Sublandlord shall not be cured
within a reasonable time, but in no event later than thirty (30) days after
Sublandlord's receipt of such written notice from Subtenant (except that if such
default cannot be cured within said thirty (30) day period, this period shall be
extended for an additional reasonable time, provided that Sublandlord commences
to cure such default within such thirty (30) day period and proceeds diligently
thereafter to effect such cure as quickly as possible), then Subtenant shall be
entitled, at Subtenant's option, to cure such default and promptly collect from
Sublandlord Subtenant's reasonable expenses in so doing (including, without
limitation, reasonable attorneys' fees and court costs) unless such default by
Sublandlord is caused by a default of Subtenant hereunder (in which case
Sublandlord shall not be liable for Subtenant's costs to cure the default).
Subtenant shall not be required to wait the entire cure period provided for
herein if earlier action is required to prevent a termination by Landlord of the
Phase A Lease or the imposition of a penalty on Subtenant and Sublandlord has
failed to take such earlier action. Sublandlord shall not amend or modify the
Phase A Lease in such a manner as to adversely affect Subtenant's use of the
Sublease Premises or increase the obligations or decrease the rights of
Subtenant hereunder, without the prior written consent of Subtenant, which
consent shall not be unreasonably withheld. Anything contained in any provision
of this Sublease to the contrary notwithstanding, Subtenant agrees, with respect
to the Sublease Premises, to comply with and remedy any default in this Sublease
or the Phase A Lease which is Subtenant's obligation to cure, within the period
allowed to Sublandlord under the Phase A Lease, even if such time period is
shorter than the period otherwise allowed therein due to the fact that notice of
default from Sublandlord to
7
16
Subtenant is given after the corresponding notice of default from Landlord to
Sublandlord. Sublandlord agrees to forward to Subtenant both by facsimile and
otherwise in accordance with Paragraph 13 below, promptly upon receipt thereof
by Sublandlord, a copy of each notice of default received by Sublandlord in its
capacity as Tenant under the Phase A Lease. Subtenant agrees to forward to
Sublandlord, promptly upon receipt thereof, copies of any notices received by
Subtenant from Landlord or from any governmental authorities.
13. Notices. All notices, demands and requests shall be in writing and
shall be sent either by hand delivery or by a nationally recognized overnight
courier service (e.g., Federal Express, in either case return receipt requested,
to the address of the appropriate party. Notices, demands and requests so sent
shall be deemed given when the same are received. Notices and remittance of Rent
to Sublandlord shall be sent to the attention of
Franklin Resources, Inc.
000 Xxxxxxxx Xxxxxx Xxxxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Manager of Corporate Real Estate
Notices to Landlord shall be sent to the attention of:
Xxxxxxx Properties, L.P.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx
Notices to Subtenant shall be sent to the attention of:
Intuit Inc.
0000 Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Facilities Director
Fax No.: 000-000-0000
With copies of all notices to:
Intuit Inc.
0000 Xxxxxx Xxxxxx, Xxxxxx Xxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Fax No.: 000-000-0000
And to:
Intuit Inc.
0000 Xxxxxx Xxxxxx, Xxxxxx Xxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Vice President - Finance and Administration
8
17
Fax No.: 000-000-0000
Any party may change its address(es) for notice hereunder by not less than ten
(10) days advance notice.
14. Condition of Premises. Except as provided in the Work Letter,
Subtenant acknowledges that it is subleasing the Sublease Premises "as-is" and
that Sublandlord is not making any representation or warranty concerning the
condition of the Sublease Premises and that Sublandlord is not obligated to
perform any work to prepare the Sublease Premises for Subtenant's occupancy.
Subtenant acknowledges that it is not authorized to make or do any alterations
or improvements in or to the Sublease Premises except as permitted by the
provisions of this Sublease and the Phase A Lease and that it must deliver the
Sublease Premises to Sublandlord on the Sublease Expiration Date in the
condition required by the Phase A Lease.
15. Consent of Landlord. Paragraph 21.A. of the Phase A Lease requires
Sublandlord to obtain the written consent of Landlord to this Sublease.
Sublandlord shall diligently pursue Landlord's consent to this Sublease promptly
following the execution and delivery of this Sublease by Sublandlord and
Subtenant.
16. Termination of the Phase A Lease. If for any reason the term of the
Phase A Lease shall terminate prior to the Sublease Expiration Date, this
Sublease shall automatically be terminated and Sublandlord shall not be liable
to Subtenant by reason thereof unless said termination shall have been caused by
the default of Sublandlord under the Phase A Lease, and said Sublandlord default
was not as a result of a Subtenant default hereunder. To the extent that the
Phase A Lease grants Sublandlord any discretionary right to terminate the Phase
A Lease, whether due to casualty, condemnation, or otherwise, Sublandlord shall
not exercise such right without the prior written consent of the Subtenant which
may be withheld by Subtenant in its sole and absolute discretion. If Landlord
seeks to terminate the Phase A Lease because of a default or alleged default by
Sublandlord under the Phase A Lease (other than a default or alleged default
caused by the default by Subtenant under this Sublease), Sublandlord shall take
all action required to reinstate the Phase A Lease. Further, if Rent is abated
under the Phase A Lease, Rent hereunder shall also be abated in the same
proportion.
17. Limitation of Estate. Subtenant's estate shall in all respects be
limited to, and be construed in a fashion consistent with, the estate granted to
Sublandlord by Landlord.
18. Confidentiality. The covenants, obligations and conditions contained
in this Sublease and the Phase A Lease shall remain strictly confidential.
Subtenant agrees to keep such terms, covenants, obligations and conditions
strictly confidential and not to disclose such matters to any other landlord,
tenant, prospective tenant except prospective subtenants of Subtenant or
assignees of Subtenant, or broker. Notwithstanding the foregoing, Subtenant
shall be allowed to disclose the Sublease and all covenants, obligations and
conditions contained therein and the Phase A Lease, for business purposes only,
to its shareholders, lenders, attorneys and accountants, to prospective
subtenants of Subtenant or assignees of Subtenant, and in any filing made by
Subtenant with the Securities and Exchange Commission or other governmental
authorities in accordance with applicable law.
9
18
19. Indemnity. Subtenant shall indemnify, defend, protect, and hold
Sublandlord harmless from and against all actions, claims, demands, costs,
liabilities, losses, reasonable attorneys' fees, damages, penalties, and
expenses (collectively "Claims") which may be brought or made against
Sublandlord or which Sublandlord may pay or incur to the extent resulting from
(i) Subtenant's use or occupancy of the Sublease Premises, (ii) a breach of this
Sublease by Subtenant, (iii) any violation of law by Subtenant or its employees,
agents, contractors or invitees ("Agents") relating to the use or occupancy of
the Sublease Premises, or (iiv) the negligence or willful misconduct of
Subtenant or its Agents. Sublandlord shall indemnify, defend, protect, and hold
Subtenant harmless from and against all Claims, which may be brought or made
against Subtenant or which Subtenant may pay or incur to the extent caused by
(i) the negligence or willful misconduct of Sublandlord or its Agents occurring
on or about the Project or Sublease Premises; (ii) the failure by Sublandlord to
comply with or perform its obligations under the Phase A Lease and/or this
Sublease, and (iii) a breach by Sublandlord of any of its representations or
warranties to Subtenant under this Sublease.
20. Permitted Use. Notwithstanding anything to the contrary set forth in
the Phase A Lease, the Sublease Premises shall be used for general office space,
engineering and research and development purposes, and for any other legal
permitted uses compatible with the City of San Diego's MLI zone and the MCAS
Miramar Comprehensive Land Use Plan and otherwise compatible with comparable
office projects. The Occupancy Density shall not exceed 4.5 persons per 1,000
square feet. Subtenant shall have access to and use of the Sublease Premises
24-hours per day, 365-days per year.
21. Mutual Waiver of Subrogation. The waiver of subrogation provision
set forth in Paragraph 9 of the Phase A Lease shall be deemed a three party
agreement binding among and inuring to the benefit of Sublandlord, Subtenant and
Landlord (by reason of its consent to hereto).
22. Representations. Sublandlord represents to Subtenant that (A) the
Phase A Lease is in full force and effect, (B) the copy of the Phase A Lease
which is attached to this Sublease as EXHIBIT A is a true, correct and complete
copy of the Phase A Lease, (C) to Sublandlord's best knowledge, no default
exists on the part of Sublandlord, nor has there occurred any event which, with
the giving of notice or passage of time or both, could constitute such a default
or event of default, and (D) to Sublandlord's best knowledge, there are no
pending or threatened actions, suits or proceedings before any court or
administrative agency against Sublandlord which could, in the aggregate,
adversely affect the Sublease Premises or Sublandlord's ability to perform its
obligations under the Sublease, and Sublandlord is not aware of any facts which
might result in any actions, suits or proceedings.
23. Broker Commission. Sublandlord and Subtenant warrant to each other
that they have dealt with no other real estate broker in connection with this
contemplated transaction other than The Staubach Company-West, Inc. representing
Subtenant, and no other broker is entitled to any commission on account of this
Sublease. In the event Sublandlord and Subtenant are successful in completing
this Sublease, Sublandlord would pay a leasing commission in accordance with a
separate agreement between the parties.
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24. Entire Agreement. It is understood and acknowledged that there are
no oral agreements between the parties hereto affecting this Sublease and this
Sublease supersedes and cancels any and all previous negotiations, arrangements,
brochures, agreements and understandings, if any, between the parties hereto or
displayed by Sublandlord to Subtenant with respect to the subject matter
thereof, and none thereof shall be used to interpret or construe this Sublease.
This Sublease, and the exhibits and schedules attached hereto, contain all of
the terms, covenants, conditions, warranties and agreements of the parties
relating in any manner to the rental, use and occupancy of the Sublease Premises
and shall be considered to be the only agreements between the parties hereto and
their representatives and agents. None of the terms, covenants, conditions or
provisions of this Sublease can be modified, deleted or added to except in
writing signed by the parties hereto. All negotiations and oral agreements
acceptable to both parties have been merged into and are included herein. There
are no other representations or warranties between the parties, and all reliance
with respect to representations is based totally upon the representations and
agreements contained in this Sublease.
IN WITNESS WHEREOF, the parties have entered into this Sublease as of
the date first written above.
SUBLANDLORD:
FRANKLIN XXXXXXXXX CORPORATE
SERVICES, INC., Delaware corporation
By: /s/ XXXXXX X. XXXXXXX
----------------------------------
Xxxxxx X. Xxxxxxx
Its: VICE PRESIDENT & SECRETARY
---------------------------------
SUBTENANT:
INTUIT INC., a Delaware corporation
By: /s/ [SIGNATURE ILLEGIBLE]
----------------------------------
Its: CFO, SVP of Finance
---------------------------------
By: /s/ [SIGNATURE ILLEGIBLE]
----------------------------------
Its: VP, Investor Relations and
Treasurer
---------------------------------
11
20
EXHIBIT "A"
DEPICTION OF THE PROJECT
Bridge Pointe Corporate Centre consists of approximately 29 acres and up
to approximately 591,000 square feet in up to 9 buildings. Phase A consists of
four buildings indicated on the site plan below as 4760, 4770, 4780 and 0000
Xxxxxxxx Xxxx, totaling 215,800 square feet consisting of approximately 12.5 net
acres. Phase B will consist of two buildings totaling approximately 150,000
square feet and consisting of approximately 8.5 acres. Phase C will consist of
three buildings totaling up to approximately 225,000 square feet and consisting
of approximately 8 acres.
The Sublease Premises consists of one building in Phase A of the Project
(labeled "Phase A-2 Premises") and is detailed in Exhibit C of this Sublease.
The Site Plan detailing the Premises and the Project follows this page
and consists of one (1) page
A-1.
21
[MAP]
FRANKLIN RESOURCES, INC.
XXXXXX XXXXXX XXXXXXXXX XXXXXX - XXX XXXXX, XXXXXXXXXX
22
ASSIGNMENT, ASSUMPTION AND CONSENT
ASSIGNMENT OF LEASE
For valuable consideration, the receipt of which is hereby acknowledged,
the undersigned Franklin Resources, Inc., a Delaware corporation ("ASSIGNOR"),
hereby assigns and transfers to Franklin Xxxxxxxxx Corporate Services, Inc., a
Delaware corporation ("ASSIGNEE"), all of its rights, title and interest in and
to that certain lease dated September 2, 1998, (the "LEASE") by and between
XXXXXXX PROPERTIES, L.P., A CALIFORNIA LIMITED PARTNERSHIP ("LANDLORD"), as
Landlord, and Assignor, as Tenant, leasing those certain premises described as
0000 Xxxxxxxx Xxxx and 0000 Xxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx. Assignor
hereby agrees that this assignment shall not relieve Assignor of any liability
or obligation under the Lease, and that Assignor shall continue to remain liable
under the Lease as a principal obligor and not as a surety, notwithstanding such
assignment. Assignor further agrees that a subsequent modification or extension
of the Lease shall not relieve Assignor of any liability or obligation under the
Lease, as it may be modified or extended.
This assignment is effective as of January 1, 2000.
Dated: January 6, 2000 ASSIGNOR: Franklin Resources, Inc.,
a Delaware corporation
BY: /s/ XXXXXX X. XXXXXXX
------------------------
NAME: XXXXXX X. XXXXXXX
----------------------
TITLE: Vice President
---------------------
ASSUMPTION OF LEASE
Assignee hereby accepts the foregoing assignment effective January 1, 2000, and
in consideration of Landlord's consent thereto, Assignee agrees to be bound by
and to faithfully, timely and fully perform all of the terms and conditions and
agreements contained in the Lease, and to pay promptly all rental and other
payments thereunder of whatever nature. Assignee warrants that it has read the
Lease which is made a part hereof by this reference.
Dated: January 6, 2000 ASSIGNEE: Franklin Xxxxxxxxx Corporate Services, Inc.,
a Delaware corporation
BY: /s/ XXXXXX X. XXXXXXX
------------------------
NAME: XXXXXX X. XXXXXXX
----------------------
TITLE: Vice President
---------------------
CONSENT
Landlord hereby consents to the foregoing assignment by Assignor to Assignee of
the Lease, on the condition that (a) Assignee will promptly pay all rents and
other monies required under the Lease and this assignment, and will perform all
terms, covenants and conditions therein to be performed by Tenant and (b)
Assignor agrees to continue to remain liable under the Lease as principal
obligor and not as surety, notwithstanding such assignment.
Dated: 1/13/00 LANDLORD: XXXXXXX PROPERTIES, L.P.,
a California limited partnership
BY: XXXXXXX PROPERTIES, INC.,
A MARYLAND CORPORATION
ITS: general partner
By: /s/ XXXXXXX X. XXXXXX
----------------------------
Xxxxxxx X. Xxxxxx
ITS: Senior Vice President
BY: /s/ XXXXXXX X. XXXXXXXX
----------------------------
Xxxxxxx X. Xxxxxxxx
ITS: Vice President
23
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE ("First Amendment") is made and entered
into as of March 15, 1999, by and between XXXXXXX PROPERTIES, L.P., a
California limited partnership ("Landlord"), and FRANKLIN RESOURCES, INC., a
Delaware corporation ("Tenant").
RECITALS:
A. WHEREAS, Landlord and Tenant entered into that certain
Industrial Net Lease dated as of September 2, 1998 for the Bridge Pointe
Corporate Phase A Premises (the "Franklin Lease") covering those certain
premises located at 4760, 4770, and 0000 Xxxxxxxx Mall, in the City of San
Diego, California (collectively, the "Premises"); and
B. WHEREAS, Tenant has expressed a desire not to take possession
of the Premises as it would become available under the Franklin Lease; and
C. WHEREAS, Landlord and Tenant have entered into that certain
Agreement to Market, dated December 1, 1998 ("Agreement to Market"), whereby
Tenant has authorized Landlord to attempt to find a replacement tenant or
tenants reasonably satisfactory to Landlord and Tenant to occupy the Premises,
and has agreed to reasonably cooperate with Landlord to assist Landlord in
finding such replacement tenant or tenants, under such terms and conditions as
more specifically set forth in the Agreement to Market; and
D. WHEREAS, Landlord has received a proposal from Science
Applications International Corporation ("SAIC"), to enter into a lease (the
"SAIC Lease") of that portion of the Premises situated in the building located
at and known as 0000 Xxxxxxxx Xxxx (the "4770 Eastgate Mall Premises"); and
E. WHEREAS, Landlord and Tenant have agreed that, upon approval of
the SAIC Lease by Tenant and the execution of the SAIC Lease by Landlord and
SAIC, the Franklin Lease shall be amended to delete the 0000 Xxxxxxxx Xxxx
Premises subject to the Franklin Lease; and
F. WHEREAS, Landlord and Tenant have agreed that Landlord and
Tenant shall continue to be bound by and to observe and perform all obligations
under the Franklin Lease, as hereby amended, as more specifically set forth in
the Agreement to Market.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby amend
the Franklin Lease and agree as follows:
24
1. Approval of SAIC Lease. Tenant hereby approves and consents to the
terms and conditions of the SAIC Lease, a copy of which lease is attached
hereto as Exhibit A. Without limiting the generality of the foregoing, Tenant
expressly consents to and agrees to be bound by the expansion option contained
in Paragraph 38.C. of the SAIC Lease, pursuant to which expansion option SAIC
has certain rights to elect to lease 47,000 square feet in Building 3 of Phase
A of the Project (4760 Eastgate Mall). Should SAIC exercise said expansion
option, Tenant shall be released from its obligations with respect to 0000
Xxxxxxxx Xxxx in the same manner as set forth in this First Amendment for the
0000 Xxxxxxxx Xxxx Premises. Contemporaneously with execution and delivery of
this First Amendment by Landlord and Tenant, Landlord and SAIC shall execute
and deliver the SAIC Lease and Tenant shall execute a consent thereto to be
incorporated therein and, thereupon, Tenant shall be released from any further
liability under the Franklin Lease with respect to the 0000 Xxxxxxxx Xxxx
Premises, including, without limitation, any liability for rent payable
thereunder.
2. Premises. Landlord and Tenant hereby amend the following provisions
of the Basic Lease Information contained in the Franklin Lease, to read as
follows:
BUILDING DESCRIPTION: Approximately 94,000 rentable square feet,
subject to adjustment pursuant to Paragraph
38.I. hereof, in the two buildings of Phase
A of the Project, as detailed above and in
Exhibit B attached hereto and known as:
0000 Xxxxxxxx Xxxx (47,000 square feet)
0000 Xxxxxxxx Xxxx (47,000 square feet)
PREMISES: Approximately 94,000 rentable square feet,
subject to adjustment pursuant to Paragraph
38.I. hereof, as detailed in the Building
Description above and in Exhibit B attached
hereto.
PARKING DENSITY: 3.6 parking spaces per 1,000 square feet of
the rentable area in Phase A (as defined in
Exhibit B attached hereto), or 339 parking
spaces, all unreserved surface parking.
Landlord's requirement to construct
sixty-two (62) additional parking stalls is
hereby deleted.
* * *
2
25
SCHEDULED TERM: February 1, 1999 for 0000 Xxxxxxxx Xxxx
COMMENCEMENT DATE: April 1, 1999 for 0000 Xxxxxxxx Xxxx
3. In addition to the foregoing, Exhibit B attached to the Franklin
Lease is hereby deleted and replaced in its entirety by the new Exhibit B
attached hereto and made a part hereof.
4. Rent. Effective June 1, 1999, Landlord and Tenant hereby amend the
following provisions of the Basic Lease Information contained in the Franklin
Lease, to read as follows:
RENT:
BASE RENT: Shall be in accordance with
Paragraph 5 of this First
Amendment to Lease, net of all
Operating Expenses as defined in
Paragraph 7 of the Lease.
ESTIMATED FIRST YEAR
OPERATING EXPENSES: $15,532 per month.
* * *
TENANT'S PROPORTIONATE
SHARE:
OF BUILDING: 100% for each Building
OF PHASE A OF THE 43.56%
PROJECT:
OPTION TO RENEW: Deleted.
3
26
PROJECT GARAGE DATA
GRAPH
27
INDUSTRIAL NET LEASE
For The
BRIDGE POINTE CORPORATE CENTRE
("PHASE A PREMISES")
BY AND BETWEEN
LANDLORD: XXXXXXX PROPERTIES, L.P.
AND
TENANT: FRANKLIN RESOURCES, INC.
28
BASIC LEASE INFORMATION
INDUSTRIAL NET
LEASE DATE: September 2, 1998
TENANT: Franklin Resources, Inc.
000 Xxxxxxxx Xxxxxx Xxxxxxxxx
Xxx Xxxxx, XX 00000
Attn: Manager of Corporate Real Estate
TENANT'S BILLING ADDRESS: Franklin Resources, Inc.
000 Xxxxxxxx Xxxxxx Xxxxxxxxx
Xxx Xxxxx, XX 00000
Attn: Manager of Corporate Real Estate
TENANT CONTACT: PHONE NUMBER: 000-000-0000
FAX NUMBER: 000-000-0000
LANDLORD: Xxxxxxx Properties, L.P., a California limited partnership
LANDLORD'S NOTICE ADDRESS: 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000
FAX Number: 000-000-0000
LANDLORD'S REMITTANCE ADDRESS: Xxxxxxx Properties, Department 11491, X.X. Xxx 00000
Xxx Xxxxxxx, XX 00000-0000
PROJECT DESCRIPTION: Approximately 29 acres and up to approximately 591,000 square feet
in up to 9 buildings known as Bridge Pointe Corporate Centre,
within the Eastgate Technology Park of San Diego, California. The
Project is divided into three phases as detailed in EXHIBIT B attached
hereto.
BUILDING DESCRIPTION: Approximately 154,900 rentable square feet, subject to adjustment
pursuant to Paragraph 38.1. hereof, in the three buildings of Phase 1A
of the Project, as detailed above and in EXHIBIT B attached hereto
and known as:
0000 Xxxxxxxx Xxxx (47,000 square feet)
0000 Xxxxxxxx Xxxx (60,900 square feet)
0000 Xxxxxxxx Xxxx (47,000 square feet)
PREMISES: Approximately 154,900 rentable square feet, subject to adjustment
pursuant to Paragraph 38.1. hereof, as detailed in the Building
Description above and in EXHIBIT B attached hereto.
PERMITTED USE: Administrative office and uses incidental thereto as permitted by the
City of San Diego's M-L1 zoning, and the MCAS Miramar Comprehensive
Land Use Plan attached hereto as EXHIBIT E.
OCCUPANCY DENSITY: Maximum of 5 persons per 1,000 square feet.
PARKING DENSITY: 3.6 parking spaces per 1,000 square feet of the rentable area in
Phase 1 (as defined in EXHIBIT B attached hereto), or 558 parking
spaces, all unreserved surface parking. On or before April 1, 1999,
Landlord at its sole cost and responsibility shall construct and install
sixty-two (62) surface parking spaces and appropriate nighttime
lighting on the site of the Phase B Premises, in reasonable proximity
to the Premises hereunder for Tenant's use and occupancy of the
0000 Xxxxxxxx Xxxx Building, as required by the City's M-L1 zoning
for the Project.
SCHEDULED TERM COMMENCEMENT DATE: December 1, 1998 for 0000 Xxxxxxxx Xxxx;
February 1, 1999 for 0000 Xxxxxxxx Xxxx; and
April 1, 1999 for 0000 Xxxxxxxx Xxxx
SCHEDULED LENGTH OF TERM: Ten (10) years based upon a Term Commencement Date of April 1,
1999 for the entire Premises.
SCHEDULED TERM EXPIRATION DATE: March 31, 2009 (subject to extension pursuant to Paragraph 38.B.
and/or adjustment as provided in Paragraph 38.C. hereof.)
RENT:
BASE RENT: per month, net of all Operating Expenses as defined in
Paragraph 7 (subject to adjustment as provided in Paragraphs 38.A.
and 38.1. hereof).
Industrial Net Lease - Version 10.2
29
ESTIMATED FIRST YEAR OPERATING EXPENSES: $29,431.00 per month
SECURITY DEPOSIT: $100,000.00 which will be due no
later than 12 months prior to the
Term Expiration Date pursuant to
Paragraph 19 hereof
PREPAID RENT: to the applied to the initial
months of the Term pursuant to
Paragraph 38.D. hereof
TENANT'S PROPORTIONATE SHARE:
OF BUILDING: 100% for each Building
OF PHASE A OF THE PROJECT: 71.78%
OPTION TO RENEW: Two (2), five (5) year options pursuant
to Paragraph 38.B. hereof
The foregoing Basic Lease Information is incorporated into and made a part of
this Lease. Each reference in this Lease to any of the Basic Lease Information
shall mean the respective information above and shall be construed to
incorporate all of the terms provided under the particular Lease paragraph
pertaining to such information. In the event of any conflict between the Basic
Lease Information and the Lease, the latter shall control.
LANDLORD TENANT
Xxxxxxx Properties, L.P., Franklin Resources, Inc.,
a California limited partnership a Delaware corporation
By: Xxxxxxx Properties, Inc., /s/ XXXXXXX X. XXXXXXXXX
a Maryland corporation, -----------------------------------
its general partner By: Xxxxxxx X. XxXxxxxxx
Its: Director of Corporate Services
/s/ XXXXXXX X. XXXXXX
-----------------------------
By: Xxxxxxx X. Xxxxxx
Its: Senior Vice President
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TABLE OF CONTENTS
PAGE
Basic Lease Information................................................. 1
Table of Contents....................................................... 2
1. Premises................................................................ 4
2. Possession and Lease Commencement....................................... 4
3. Term................................................................... 4
4. Use.................................................................... 4
5. Rules and Regulations.................................................. 5
6. Rent................................................................... 5
7. Operating Expense...................................................... 6
8. Insurance and Indemnification.......................................... 9
9. Waiver of Subrogation.................................................. 10
10. Landlord's Repairs and Maintenance..................................... 10
11. Tenant's Repairs and Maintenance....................................... 11
12. Alterations............................................................ 11
13. Signs.................................................................. 12
14. Inspection/Posting Notices............................................. 12
15. Services and Utilities................................................. 12
16. Subordination.......................................................... 13
17. Financial Statements................................................... 13
18. Estoppel Certificate................................................... 13
19. Security Deposit....................................................... 14
20. Limitation of Tenant's Remedies........................................ 14
21. Assignment and Subletting.............................................. 14
22. Authority of Tenant.................................................... 15
23. Condemnation........................................................... 15
24. Casualty Damage........................................................ 15
25. Holding Over........................................................... 16
26. Default................................................................ 16
27. Liens.................................................................. 18
28. Substitution........................................................... 18
29. Transfers by Landlord.................................................. 18
30. Right of Landlord to Perform Tenant's Covenants........................ 18
31. Waiver................................................................. 18
32. Notices................................................................ 19
33. Attorney's Fees........................................................ 19
34. Successors and Assigns................................................. 19
35. Force Majeure.......................................................... 19
36. Surrender of Premises.................................................. 19
37. Miscellaneous.......................................................... 19
38. Additional Provisions.................................................. 21
39. Jury Trial Waiver...................................................... 24
Signatures............................................................. 24
Exhibits:
Exhibit A.............................................Rules and Regulations
Exhibit B...............................................Site Plan, Premises
Exhibit C.............................................Improvement Agreement
Exhibit D..........................Tenant's Hazardous Materials Declaration
Exhibit E..........................MCAS Miramar Comprehensive Land Use Plan
Exhibit F..................................................Signage Criteria
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LEASE
THIS LEASE is made as of the 2nd day of September, 1998, by and between Xxxxxxx
Properties, L.P., a California limited partnership (hereinafter called
"LANDLORD"), and Franklin Resources, Inc., a Delaware corporation (hereinafter
called "TENANT").
1. PREMISES
Landlord leases to Tenant and Tenant leases from Landlord, upon the
terms and conditions hereinafter set forth, those premises (the 'PREMISES")
outlined in red on EXHIBIT B and described in the Basic Lease Information. The
Premises shall comprise all of a the buildings (each individually a "BUILDING")
and a portion of the project (the "PROJECT"), which may consist of more than one
building and additional facilities, as described in the Basic Lease Information.
The Building and Project are outlined in blue and green respectively on EXHIBIT
B. Landlord and Tenant acknowledge that, subject to the terms and provisions of
this Lease, physical changes may occur from time to time in the Premises,
Building or Project, and that the number of buildings and additional facilities
which constitute the Project may change from time to time, which may result in
an adjustment in Tenant's Proportionate Share, as defined in the Basic Lease
Information, as provided in Paragraph 7.A.
2. POSSESSION AND LEASE COMMENCEMENT
B. CONSTRUCTION OF IMPROVEMENTS. If this Lease pertains to a Building to be
constructed or improvements to be constructed within a Building, the provisions
of this Paragraph 2.B. shall apply in lieu of the provisions of Paragraph 2.A.
above and the term commencement date ("TERM COMMENCEMENT DATE") shall be the
earlier of the date on which: (1) Tenant takes possession of some or all of the
Premises for purposes of the commencement of the conduct of its business
therein; or (2) the improvements to be constructed or performed in the Premises
by Landlord (if any) shall have been substantially completed in accordance with
the Plans described on EXHIBIT C as certified by the architect, Devcon
Construction Incorporated, in writing to Tenant and Landlord (subject to mutual
approval by Landlord and Tenant), and Tenant's taking of possession of the
Premises or any part thereof for purposes of other than the installation of
telephone or data cabling or the installation of furniture or furniture systems
shall constitute TENANT'S confirmation of substantial completion for all
purposes hereof (subject to the completion by Landlord of any punch list items
and any latent defects not visually discoverable by Tenant upon a reasonably
diligent inspection and which are identified in writing by Tenant within six (6)
months of the Tenant's occupancy of each Building), whether or not substantial
completion of other portions of the Building or Project shall have occurred. If
for any reason beyond Landlord's reasonable control Landlord cannot deliver
possession of the subject portion of the Premises to Tenant on the scheduled
Term Commencement Date, Landlord shall not be subject to any liability therefor,
nor shall Landlord by in default hereunder nor shall such failure affect the
validity of this Lease, and Tenant agrees to accept possession of other portions
of the Premises at such time as such improvements have been substantially
completed, which date shall then be deemed the Term Commencement Date; provided,
however, that if Landlord fails to tender possession of any portion of the
Premises, subject to Paragraph 35 of this Lease, within ninety (90) days of the
scheduled Term Commencement Date with respect to each Building, then Tenant,
upon not less than thirty (30) days prior written notice to Landlord shall have
the right to terminate this Lease with respect to each Building, unless within
such thirty (30) day period Landlord tenders possession of each Building in the
condition required by this Lease. Tenant shall not be liable for any Rent for
any period prior to the Term Commencement Date (but without affecting any
obligation of Tenant under any improvement agreement appended to this Lease). In
the event of any dispute as to substantial completion of work performed or
required to be performed by Landlord, the certificate of Landlord's architect or
general shall be conclusive. Substantial completion shall have occurred
notwithstanding Tenant's submission of a punchlist to Landlord, which Tenant
shall submit, if at all, within seven (7) business days after the Term
Commencement Date or otherwise in accordance with any improvement agreement
appended to this Lease. Upon Landlord's request, Tenant shall promptly execute
and return to Landlord a "Start-Up Letter" in which Tenant shall agree, among
other things, to acceptance of the Premises (subject to any punchlist exceptions
according to Paragraph 6.C of Exhibit C) and to the determination of the Term
Commencement Date, in accordance with the terms of this Lease, but Tenant's
failure or refusal to do so shall not negate Tenant's acceptance of the Premises
or affect determination of the Term Commencement Date.
3. TERM
The term of this Lease (the "TERM") shall commence on the Term
Commencement Date and continue in full force and effect for the number of months
specified as the Length of Term in the Basic Lease Information or until this
Lease is terminated as otherwise provided herein. If the Term Commencement Date
is a date other than the first day of the calendar month, the Term shall be the
number of months of the Length of Term in addition to the remainder of the
calendar month following the Term Commencement Date.
4. USE
A. GENERAL. Tenant shall use the Premises for the permitted use specified
in the Basic Lease ("PERMITTED USE") and for no other use or purpose, without
Landlord's consent, which consent shall not be unreasonably withheld, delayed or
conditioned. Tenant shall control Tenant's employees, agents, customers,
visitors, invitees, licensees, contractors, assignees and subtenants
(collectively, "TENANT'S PARTIES") in such a manner that Tenant and Tenant's
Parties cumulatively do not exceed the occupancy density (the "OCCUPANCY
DENSITY" ) or the parking density specified in the Basic Lease Information (the
"PARKING DENSITY") at any time. So long as Tenant is occupying the Premises,
Tenant and Tenant's Parties shall have the nonexclusive right to use, without
paying any fee or
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charge therefor, in common with other parties occupying the Project, the parking
areas, driveways and other common areas of the Building and Project, subject to
the terms of this Lease and such rules and regulations as Landlord may from time
to time reasonably prescribe upon written notice to Tenant. Further, Landlord
and Tenant acknowledge that Tenant's actual Occupancy Density may exceed
Tenant's Parking Density, however, Landlord shall not be obligated to Tenant to
provide additional parking in the event the Occupancy Density causes the Parking
Density to be exceeded. In the event Tenant's Parking Density is exceeded,
Tenant shall use its commercially reasonable efforts to immediately cure this
condition. Landlord reserves the right to the extent it is commercially
reasonable to do so, upon reasonable prior written notice to Tenant, without
liability to Tenant, and without the same constituting an actual or constructive
eviction, to alter or modify the common areas from time to time, including the
location and configuration thereof, and the amenities and facilities which
Landlord may determine to provide from time to time, provided that no such
changes shall unreasonably affect access to or visibility of the Premises and
all such changes shall be consistent with the operation of comparable
first-class business parks in San Diego County, California.
B. LIMITATIONS. Tenant shall not permit any odors, smoke, dust, gas,
substances, noise or vibrations to emanate from the Premises or from any portion
of the common areas as a result of Tenant's or any Tenant's Party's use thereof,
nor take any action which would constitute a nuisance or would unreasonably
disturb, obstruct or endanger any other tenants or occupants of the Project or
elsewhere, or interfere with their use of their respective premises or common
areas. Storage outside the Premises of materials, vehicles or any other items is
prohibited. Tenant shall not use or allow the Premises to be used for any
unlawful purpose, nor shall Tenant cause or maintain or permit any nuisance in,
on, or about the Premises. Tenant shall not commit or suffer the commission of
any waste in, on or about the Premises. Tenant shall not allow any sale by
auction upon the Premises, or place any loads upon the floors, walls or ceilings
which could endanger the structure, or place any harmful substances in the
drainage system of the Building or Project. No waste, materials or refuse shall
be dumped upon or permitted to remain outside the Premises except in trash
containers placed inside exterior enclosures designated for that purpose by
Landlord. Landlord shall not be responsible to Tenant for the non-compliance by
any other tenant or occupant of the Project with any of the above-referenced
rules or any other terms or provisions of such tenant's or occupant's lease or
other contract, provided Landlord shall administer compliance with such rules
and regulations in a nondiscriminatory manner.
C. COMPLIANCE WITH REGULATIONS. By entering the Premises for purposes of the
commencement of the conduct of Tenant's business, Tenant accepts the Premises in
the condition existing as of the date of such entry subject to the completion by
Landlord of any punchlist items and any latent defects as described in Paragraph
2.B. of this Lease. Tenant shall at its sole cost and expense strictly comply
with all existing or future applicable municipal, state and federal and other
governmental statutes, rules, requirements, regulations, laws and ordinances,
including zoning ordinances and regulations, including the MCAS Miramar
Comprehensive Land Use Plan ("CLUP") attached hereto as Exhibit E of this Lease,
and covenants, easements and restrictions of record governing and relating to
the specific manner of Tenant's use, occupancy or possession of the Premises, to
Tenant's use of the common areas, or to the use, storage, generation or disposal
of Hazardous Materials (hereinafter defined) (collectively "REGULATIONS").
Tenant shall at its sole cost and expense obtain any and all licenses or permits
necessary for Tenant's use of the Premises. Tenant shall at its sole cost and
expense promptly comply with the requirements of any board of fire underwriters
or other similar body now or hereafter constituted. Tenant shall not do or
permit anything to be done in, on, under or about the Project or bring or keep
anything which will in any way increase the rate of any insurance upon the
Premises, Building or Project or upon any contents therein or cause a
cancellation of said insurance or otherwise affect said insurance in any manner.
Tenant shall indemnify, defend (by counsel reasonably acceptable to Landlord),
protect and hold Landlord harmless from and against any loss, cost, expense,
damage, attorneys' fees or liability arising out of the failure of Tenant to
comply with any Regulation. Tenant's obligations pursuant to the foregoing
indemnity shall survive the expiration or earlier termination of this Lease.
D. HAZARDOUS MATERIALS. As used in this Lease, "HAZARDOUS MATERIALS" shall
include, but not be limited to, hazardous, toxic and radioactive materials and
those substances defined as "hazardous substances," "hazardous materials,"
"hazardous wastes," "toxic substances," or other similar designations in any
Regulation. Tenant's Hazardous Materials Declaration is attached hereto as
EXHIBIT D. Tenant shall not cause, or allow any of Tenant's Parties to cause,
any Hazardous Materials to be handled, used, generated, stored, released or
disposed of in, on, under or about the Premises, the Building or the Project or
surrounding land or environment in violation of any Regulations. Tenant must
obtain Landlord's written consent prior to the introduction of any Hazardous
Materials onto the Project. Notwithstanding the foregoing, Tenant may handle,
store, use and dispose of products containing small quantities of Hazardous
Materials for "general office purposes" (such as toner for copiers) to the
extent customary and necessary for the Permitted Use of the Premises; provided
that Tenant shall always handle, store, use, and dispose of any such Hazardous
Materials in a safe and lawful manner and never allow such Hazardous Materials
to contaminate the Premises, Building, or Project or surrounding land or
environment. Tenant shall immediately notify Landlord in writing of any
Hazardous Materials' contamination of any portion of the Project of which Tenant
becomes aware, whether or not caused by Tenant. If, but only if, Landlord has a
reasonable basis to believe the Tenant has introduced any Hazardous Materials
onto the Premises, then Landlord shall have the right at all reasonable times to
inspect the Premises and to conduct tests and investigations to determine
whether Tenant is in compliance with the foregoing provisions, the reasonable
and actual costs of all such inspections, tests and investigations to be borne
by Tenant. Tenant shall indemnify, defend (by counsel reasonably acceptable to
Landlord), protect and hold Landlord harmless from and against any and all
claims, liabilities, losses, costs, loss of rents, liens, damages, injuries or
expenses (including attorneys' and consultants' fees and court costs), demands,
causes of action, or judgments directly or indirectly arising out of or related
to the use, generation, storage, release, or disposal of Hazardous Materials by
Tenant or any of Tenant's Parties in, on, under or about the Premises, the
Building or the Project or surrounding land or environment, which indemnity
shall include, without limitation, damages for personal or bodily injury,
property damage, damage to the environment or natural resources occurring on or
off the Premises, losses attributable to diminution in value or adverse effects
on marketability, the cost of any investigation, monitoring, government
oversight, repair, removal, remediation, restoration, abatement, and disposal,
and the preparation of any closure or other required plans, whether such action
is required or necessary prior to or following the expiration or earlier
termination of this Lease. Neither the consent by Landlord to the use,
generation, storage, release or disposal of Hazardous Materials nor the strict
compliance by Tenant with all laws pertaining to Hazardous Materials shall
excuse Tenant from Tenant's obligation of indemnification pursuant to this
Paragraph 4.D. Tenant's obligations pursuant to the foregoing indemnity shall
survive the expiration or earlier termination of this Lease.
5. RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the building rules and
regulations attached hereto as EXHIBIT A and any other rules and regulations and
any modifications or additions thereto which Landlord may from time to time
reasonably prescribe in writing for the purpose of maintaining the proper care,
cleanliness, safety, traffic flow and general order of the Premises or the
Building or Project. Tenant shall cause Tenant's Parties to comply with such
rules and regulations. Landlord shall not be responsible to Tenant for the
non-compliance by any other tenant or occupant of the Building or Project with
any of such rules and regulations, any other tenant's or occupant's lease or any
Regulations, provided Landlord shall administer compliance with such rules in a
nondiscriminatory manner.
6. RENT
A. BASE RENT. Tenant shall pay to Landlord and Landlord shall receive,
without notice or demand throughout the Term, Base Rent as specified in the
Basic Lease Information, payable in monthly installments in advance on or
before the first day of each calendar month, in lawful money of the United
States, without deduction or offset whatsoever (except as otherwise expressly
set forth in this Lease), at the
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Remittance Address specified in the Basic Lease Information or to such other
place in the Continental United States as Landlord may from time to time
designate in writing. Base Rent for the first full two (2) months of the Term
shall be paid by Tenant upon Tenant's execution of this Lease in accordance
with Paragraph 38.D. of this Lease. If the obligation for payment of Base Rent
commences on a day other than the first day of a month, then Base Rent shall be
prorated and the prorated installment shall be paid on the first day of the
calendar month next succeeding the Term Commencement Date. The Base Rent
payable by Tenant hereunder is subject to adjustment as provided elsewhere in
this Lease, as applicable. As used herein, the term "Base Rent" shall mean the
Base Rent specified in the Basic Lease Information as it may be so adjusted
from time to time.
B. ADDITIONAL RENT. All monies other than Base Rent required to be paid by
Tenant hereunder, including, but not limited to, Tenant's Proportionate Share of
Operating Expenses, as specified in Paragraph 7 of this Lease, charges to be
paid by Tenant under Paragraph 15, the interest and late charge described in
Paragraphs 26.C. and D., and any monies spent by Landlord pursuant to Paragraph
30, shall be considered additional rent ("ADDITIONAL RENT"). "RENT" shall mean
Base Rent and Additional Rent.
7. OPERATING EXPENSES
A. OPERATING EXPENSES. In addition to the Base Rent required to be paid
hereunder, Tenant shall pay as Additional Rent, Tenant's Proportionate Share of
the Building and/or Project (as applicable), as defined in the Basic Lease
Information, of Operating Expenses (defined below) in the manner set forth
below. Tenant shall pay the applicable Tenant's Proportionate Share of each
such Operating Expenses. Landlord and Tenant acknowledge that if the number of
buildings which constitute the Project increases or decreases, or if physical
changes are made to the Building or Project or the configuration of any
thereof, Landlord may at its discretion reasonably adjust Tenant's
Proportionate Share of the Building or Project to reflect the change.
Landlord's determination of Tenant's Proportionate Share of the Project shall
be conclusive so long as it is reasonably and consistently applied. "OPERATING
EXPENSES" shall mean all expenses and costs of every kind and nature which
Landlord shall reasonably pay or become obligated to pay, because of or in
connection with the management, maintenance, repair, preservation, replacement
and operation of the Building or Project and its supporting facilities and such
additional facilities now and in subsequent years as may be determined by
Landlord to be necessary or desirable to the Building and/or Project (as
determined in a reasonable manner) other than those expenses and costs which
are specifically attributable to Tenant or which are expressly made the
financial responsibility of Landlord or specific tenants of the Building or
Project pursuant to this lease. Operating Expenses shall include, but are not
limited to, the following:
(1) TAXES. All real property taxes and general assessments, possessory
interest taxes, sales taxes, personal property taxes, business or license
taxes or fees, gross receipts taxes, service payments in lieu of such
taxes or fees, annual or periodic license or use fees, excises, transit
charges imposed generally and not in connection with the initial
development of the Project, and other impositions, general and special,
ordinary and extraordinary, unforeseen as well as foreseen, of any kind
(including fees "in-lieu" of any such tax or assessment) which are now or
hereafter assessed, levied, charged, confirmed, or imposed by any public
authority upon the Building or Project, its operations or the Rent (or any
portion or component thereof), or any tax, assessment or fee imposed in
substitution, partially or totally, of any of the above. Operating
Expenses shall also include any taxes, assessments, reassessments, or
other fees or impositions with respect to the development, leasing,
management, maintenance, alteration, repair, use or occupancy by Tenant of
the Premises, Building or Project or any portion thereof, including,
without limitation, by or for Tenant, and all increases therein or
reassessments thereof whether the increases or reassessments result from
increased rate and/or valuation (whether upon a transfer of the Building
or Project or any portion thereof or any interest therein or for any other
reason). Operating Expenses shall not include inheritance or estate taxes
imposed upon or assessed against the interest of any person in the
Project, or taxes computed upon the basis of the net income of any owners
of any interest in the Project. If it shall not be lawful for Tenant to
reimburse Landlord for all or any part of such taxes, the monthly rental
payable to Landlord under this Lease shall be revised to net Landlord the
same net rental after imposition of any such taxes by Landlord as would
have been payable to Landlord prior to the payment of any such taxes.
Notwithstanding anything set forth in this Lease to the contrary, in no
event shall "Taxes" include any fees, costs or exactions incurred by
Landlord in connection with obtaining the right to develop the Project
(exclusive of Tenant Improvements), including, but not limited to, any
fees for schools, parks, traffic, sewer and fire protection, or any
special assessments used to finance any portion of the Project, including
any off-site roadway or utility facilities.
(2) INSURANCE. All insurance premiums and costs, including, but not
limited to, any deductible amounts, premiums and other costs of insurance
reasonably and actually incurred by Landlord, including for the insurance
coverage set forth in Paragraph 8.A. herein. In an event wherein a
deductible may be greater than Fifty Thousand Dollars ($50,000.00) said
deductible amount shall be amortized over the greater of (i) the
remaining Term of this Lease or (ii) three (3) years.
(3) COMMON AREA MAINTENANCE.
(a) Repairs, replacements, and general maintenance of and for the
Building and Project and public and common areas and facilities of
and comprising the Building and Project, including, but not limited
to, the roof and roof membrane, elevators, mechanical rooms, alarm
systems, pest extermination, landscaped areas, parking and service
areas, driveways, sidewalks, truck staging areas, rail spur areas,
fire sprinkler systems, sanitary and storm sewer lines, utility
services, heating/ventilation/air conditioning systems, electrical,
mechanical or other systems, telephone equipment and wiring
servicing, plumbing, lighting, and any other items or areas which
affect the operation or appearance of the Building or Project,
which determination shall be at Landlord's discretion, except for:
those items expressly made the financial responsibility of Landlord
pursuant to Paragraph 10 hereof; those items to the extent paid for
by the proceeds of insurance or which are covered under warranties
of the contractor, manufacturer or supplier thereof; and those
items attributable solely or jointly to specific tenants of the
Building or Project.
(b) Repairs, replacements, and general maintenance shall include
the cost of any capital improvements made to or capital assets
acquired for the Project or Building that are reasonably intended
to reduce any other Operating Expenses, including future repair
work not covered by applicable warranties, are reasonably necessary
for the health and safety of the occupants of the Building or
Project, or are required to comply with any change in Regulation
not applicable to the Building as of the Term Commencement Date,
such costs or allocable portions thereof to be amortized over such
reasonable period as Landlord shall determine, together with
interest on the unamortized balance at the publicly announced
"prime rate" charged by Xxxxx Fargo Bank, N.A. (San Francisco) or
its successor at the time such improvements or capital assets are
constructed or acquired, plus two (2) percentage points, or in the
absence of such prime rate, then at the U.S. Treasury six-month
market note (or bond, if so designated) rate as published by any
national financial publication selected by Landlord, plus four (4)
percentage points, but in no event more than the maximum rate
permitted by law, plus reasonable financing charges. Landlord shall
be responsible, at its sole cost and expense, for performing all
work to each Building (exclusive of Tenant Improvements) or the
common areas necessary to cause the Project to conform to
Regulations applicable as of the Term Commencement Date.
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(c) Payment under or for any easement, license, permit,
operating agreement, declaration, restrictive covenant or
instrument relating to the Building or Project.
(d) All expenses and rental related to services and costs of
supplies, materials and equipment used in operating, managing
and maintaining the Premises, Building and Project, the
equipment therein and the adjacent sidewalks, driveways, parking
and service areas, including, without limitation, expenses
related to service agreements regarding security, fire and other
alarm systems, janitorial services to the extent not addressed
in Paragraph 11 hereof, window cleaning, elevator maintenance,
Building exterior maintenance, landscaping and expenses related
to the administration, and operation of the Project, including
without limitation salaries, wages and benefits.
(e) The cost of supplying any services and utilities which
benefit all or a portion of the Premises, Building or Project to
the extent not addressed in Paragraph 15 hereof.
(f) Reasonable legal expenses and the cost of audits by
certified public accountants; provided, however, that legal
expenses chargeable as Operating Expenses shall not include the
cost of negotiating leases, collecting rents, evicting tenants
nor shall it include costs incurred in legal proceedings with or
against any tenant or to enforce the provisions of any lease.
(g) An administrative and accounting cost recovery fee equal to
twenty percent (20%) of the sum of the Project's Operating
Expenses.
If the rentable area of the Building and/or Project is not fully occupied during
any fiscal year of the Term as determined by Landlord, an adjustment may be
made in Landlord's discretion in computing the Operating Expenses for such year
so that Tenant pays an equitable portion of all variable items (e.g.,
utilities, janitorial services and other component expenses that are affected
by variations in occupancy levels) of Operating Expenses, as reasonably
determined by Landlord; provided, however, that in no event shall Landlord be
entitled to collect in excess of one hundred percent (100%) of the total
Operating Expenses from all of the tenants in the Building or Project, as the
case may be.
Operating Expenses shall not include the following:
(i) costs incurred in connection with the original construction of the
Building or the Project;
(ii) interest, principal, late charges, default fees, prepayment
penalties or premiums on any debt owed by Landlord, including any
mortgage debt;
(iii) costs of correcting defects in or inadequacy of the initial design
or construction of the Building;
(iv) expenses directly resulting from the gross negligence of the
Landlord, its agents, servants or employees, or another tenant;
(v) legal fees, space planners' fees, real estate brokers' leasing
commissions and advertising expenses incurred in connection with
the original development or original leasing of the Project or
future leasing of the Project;
(vi) costs for which Landlord is reimbursed by any tenant or occupant of
the Project or by insurance by its carrier or any tenant's carrier
or by anyone else;
(vii) any bad debt loss, rent loss, or reserves for bad debts or rent
loss;
(viii) expenses of extraordinary services provided to other tenants in the
Project which are made available to Tenant at costs or for which
Tenant is separately charged;
(ix) costs associated with the operation of the business of the
partnership which constitutes Landlord, as the same are
distinguished from the costs of operation of the Project, including
partnership accounting and legal matters, costs of defending any
lawsuits with any mortgagee (except as the actions of Tenant may be
the issue), costs of selling, syndicating, financing, mortgaging or
hypothecating any of Landlord's interest in the Project, or any
portions thereof, costs (including attorney fees and costs of
settlement, judgments and payments in lieu thereof) arising from
claims, disputes or potential disputes in connection with potential
or actual claims, litigation or arbitrations respecting Landlord
and/or the Project and/or the site upon which the Project is
situated;
(x) the wages and benefits of any employee who hoes not devote
substantially all of his or her time to the Project unless such
wages and benefits are prorated to reflect time spent on operating
and managing the Project vis-a-vis time spent on matters unrelated
to operating and managing the Project;
(xi) fines, penalties and interest;
(xii) amounts paid as ground rental by Landlord;
(xiii) capital expenditures to comply with applicable laws including costs
arising from the presence of Hazardous Materials in or about the
Project, or the site upon which the Project is situated, which are
not caused by or connected with Tenant;
(xiv) costs incurred by Landlord with respect to goods and services
(including utilities sold or supplied to tenants and occupants of
the Project) to the extent that Landlord would be entitled to
reimbursement for such costs if incurred by Tenant pursuant to this
Lease;
(xv) costs, including permit, license and inspection costs, incurred
with respect to the installation of tenant improvements made for
new tenants in the Project or incurred in renovating or otherwise
improving, decorating, painting or redecorating vacant space for
tenants or other occupants of the Project;
(xvi) costs incurred by Landlord for alterations which are considered
capital improvements and replacements under generally accepted
accounting principles, consistently applied, except as expressly
allowed for in Paragraph 7.A.(3)(b) of this Lease;
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(xvii) costs of capital nature, including without limitation capital
improvements, capital repairs, capital equipment and capital
tools, all as determined in accordance with generally accepted
accounting principles, consistently applied, except as expressly
allowed for in Paragraph 7.A.(3)(b) of this lease;
(xviii) expenses in connection with services or other benefits which are
not provided to Tenant or for which Tenant is charged directly but
which are provided to another tenant or occupant of the Project
without a separate charge;
(xix) costs paid to Landlord or to affiliates of Landlord for services
in the Project to the extent the same exceed or would exceed the
costs for such services if rendered by unaffiliated third parties
on a competitive basis;
(xx) rentals and other related expenses incurred in leasing air
conditioning systems, elevators or other equipment ordinarily
considered to be of a capital nature if purchased, except
equipment not affixed to the Project which is used in providing
janitorial or similar services;
(xxi) all items and services for which Tenant or any other tenant in the
Project reimburses Landlord or which Landlord provides selectively
to one or more tenants (other than Tenant) without reimbursement;
(xxii) electric power costs for which any tenant directly contracts with
the local public service company;
(xxiii) costs arising from Landlord's political or charitable
contributions;
(xxiv) costs arising from latent defects in the Project or improvements
installed by Landlord;
(xxv) costs, other than those incurred in ordinary maintenance, for
sculpture, painting or other objects of art;
(xxvi) costs for which Landlord has been compensated by an administrative
fee;
(xxvii) costs arising from the gross negligence of Landlord or its agents,
or any vendors, contractors or providers of materials or services
selected, hired or engaged by Landlord or its agents, including
without limitation, the selection of building materials;
(xxviii) Landlord's general corporate overhead and general and
administrative expenses; and
(xxix) costs incurred by Landlord due to the violation by Landlord or any
tenant of the terms and conditions of any lease of space in the
Project.
Notwithstanding anything herein to the contrary, in any instance wherein
Landlord, in Landlord's reasonable discretion, deems Tenant to be responsible
for any amounts greater than Tenant's Proportionate Share, Landlord shall have
the right to reasonably allocate costs in any manner Landlord reasonably deems
appropriate.
The above enumeration of services and facilities shall not be deemed to
impose an obligation on Landlord to make available or provide such services or
facilities except to the extent if any that Landlord has specifically agreed
elsewhere in this Lease to make the same available or provide the same; provided
that Landlord shall operate and maintain the Project in a manner reasonably
comparable to other comparable first-class business park projects in San Diego
County. Without limiting the generality of the foregoing, Tenant acknowledges
and agrees that it shall be responsible for providing adequate security for its
use of the Premises, the Building and the Project and that Landlord shall have
no obligation or liability with respect thereto, except to the extent if any
that Landlord has specifically agreed elsewhere in this Lease to provide the
same.
B. PAYMENT OF ESTIMATED OPERATING EXPENSES. "ESTIMATED OPERATING EXPENSES"
for any particular year shall mean Landlord's reasonable estimate of the
Operating Expenses for such fiscal year made with respect to such fiscal year
as hereinafter provided. Landlord shall have the right from time to time to
revise its fiscal year and interim accounting periods so long as the periods as
so revised are reconciled with prior periods in a reasonable manner. During the
last month of each fiscal year during the Term, or as soon thereafter as
practicable, but in any event by April 30 of the following year, Landlord shall
give Tenant written notice of the Estimated Operating Expenses for the ensuing
fiscal year. Tenant shall pay Tenant's Proportionate Share of the Estimated
Operating Expenses with installments of Base Rent for the fiscal year to which
the Estimated Operating Expenses applies in monthly installments on the first
day of each calendar month during such year, in advance. Such payment shall be
construed to be Additional Rent for all purposes hereunder. If at any time
during the course of the fiscal year, Landlord determines that Operating
Expenses are projected to vary from the then Estimated Operating Expenses by
more than five percent (5%), Landlord may, by written notice to Tenant stating
with specificity the basis for such readjustment, revise the Estimated
Operating Expenses for the balance of such fiscal year, and Tenant's monthly
installments for the remainder of such year shall be adjusted so that by the end
of such fiscal year Tenant has paid to Landlord Tenant's Proportionate Share of
the revised Estimated Operating Expenses for such year, such revised
installment amounts to be Additional Rent for all purposes hereunder.
C. COMPUTATION OF OPERATING EXPENSE ADJUSTMENT. "OPERATING EXPENSE ADJUSTMENT"
shall mean the difference between Estimated Operating Expenses and actual
Operating Expenses for any fiscal year determined as hereinafter provided.
Within one hundred twenty (120) days after the end of each fiscal year, or as
soon thereafter as practicable but in any event by June 30 of such year,
Landlord shall deliver to Tenant a statement of actual Operating Expenses for
the fiscal year just ended, accompanied by a computation of Operating Expense
Adjustment. If such statement shows that Tenant's payment based upon Estimated
Operating Expenses is less than Tenant's Proportionate Share of Operating
Expenses, then Tenant shall pay to Landlord the difference within thirty (30)
days after receipt of such statement, such payment to constitute Additional Rent
for all purposes hereunder. If such statement shows that Tenant's payments of
Estimated Operating Expenses exceed Tenant's Proportionate Share of Operating
Expenses, then (provided that Tenant is not in default under this Lease)
Landlord shall pay to Tenant the difference within thirty (30) days after
delivery of such statement to Tenant. If this Lease has been terminated or the
Term hereof has expired prior to the date of such statement, then the Operating
Expense Adjustment shall be paid by the appropriate party within thirty (30)
days after the date of delivery of the statement. Should this Lease commence or
terminate at any time other than the first day of the fiscal year, Tenant's
Proportionate Share of the Operating Expense Adjustment shall be prorated based
on a month of 30 days and the number of calendar months during such fiscal year
that this Lease is in effect. Notwithstanding anything to the contrary contained
in Paragraph 7.A or 7.B, Landlord's failure to provide any notices or statements
within the time periods specified in those paragraphs shall in no way excuse
Tenant from its obligation to pay Tenant's Proportionate Share of Operating
Expenses.
D. NET LEASE. This shall be a triple net Lease and Base Rent shall be paid to
Landlord absolutely net of all costs and expenses, except as specifically
provided to the contrary in this Lease. The provisions for payment of Operating
Expenses and the Operating Expense Adjustment are intended to pass on to Tenant
and reimburse Landlord for all costs and expenses of the nature described in
Paragraph 7.A. incurred in connection with the management, maintenance, repair,
preservation, replacement and operation of
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the Building and/or Project and its supporting facilities and such additional
facilities now and in subsequent years as may be determined by Landlord to be
necessary or desirable to the Building and/or Project.
E. TENANT AUDIT. If Tenant shall dispute the amount set forth in any statement
provided by Landlord under Paragraph 7.B. or 7.C. above, Tenant shall have
the right, not later than six (6) months following receipt of such
statement and upon the condition that Tenant shall first deposit with
Landlord the full amount in dispute, to cause Landlord's books and records
with respect to Operating Expenses for such fiscal year to be audited by
certified public accountants selected by Tenant and subject to Landlord's
reasonably right of approval. The Operating Expense Adjustment shall be
appropriately adjusted on the basis of such audit. If such audit discloses
a liability for a refund in excess of five percent (5%) of Tenant's
Proportionate Share of the Operating Expenses previously reported, the cost
of such audit shall be borne by Landlord; otherwise the cost of such audit
shall be paid by Tenant. If Tenant shall not request an audit in accordance
with the provisions of this Paragraph 7.E. within six (6) months after
receipt of Landlord's statement provided pursuant to Paragraph 7.B. or
7.C., such statement shall be final and binding for all purposes hereof,
absent manifest error.
F. CALCULATION OF OPERATING EXPENSES. Operating Expenses shall be calculated
and determined in accordance with the following general principles:
(1) RECOVERY LIMITED TO ACTUAL COSTS. Landlord shall not recover the
cost of any item more than once.
(2) ARM's LENGTH. All services rendered to and materials supplied to
the Project shall be rendered or supplied at a cost comparable to
those charged in arm's length transactions for similar services
or materials rendered or supplied for similar purposes to
comparable buildings in San Diego County.
(3) REIMBURSEMENTS. All discounts, reimbursements, rebates, refunds
or credits (collectively, "Reimbursements") attributable to
Operating Expenses received by Landlord in a particular year
shall be deducted from Operating Expenses in the year the same
are received; provided, however, if a particular Reimbursement
exceeds Fifty Thousand Dollars ($50,000.00) and applies to a
prior year, such Reimbursement shall be applied to such prior
year (and Tenant's Proportionate Share thereof shall be promptly
refunded).
(4) NON-PROJECT EXCLUSIVE EXPENSES. Whenever expenses are paid or
incurred by Landlord as a result of activities that are not
exclusively rendered to the Project, only that portion that can
be reasonably allocated to the Project shall be included within
Operating Expenses.
(5) INSTALLMENTS. All assessments and premiums of Operating Expenses
which can be paid or incurred by Landlord in annual installments
shall be paid by Landlord in the maximum number of annual
installments permitted by law and shall not be included as
Operating Expenses except in the calculation year in which the
installments are actually paid; provided, however, that if the
then-prevailing practice in other comparable buildings is to pay
such assessments or premiums on an earlier basis and Landlord
shall pay the same on such basis, such assessments or premiums
shall be included in Operating Expenses as paid by Landlord.
(6) REASONABLENESS. Landlord shall use its reasonable efforts to
operate and maintain the Project in an economically reasonable
manner.
8. INSURANCE AND INDEMNIFICATION
A. LANDLORD'S INSURANCE. All insurance maintained by Landlord shall be
for the sole benefit of Landlord and under Landlord's sole control.
(1) PROPERTY INSURANCE. Landlord agrees to maintain property
insurance insuring the Building against damage or destruction due to
risk including fire, vandalism, and malicious mischief in an amount
not less than the replacement cost thereof, in the form and with
deductibles and endorsements as selected by Landlord. At its election,
Landlord may instead (but shall have no obligation to) obtain "All
Risk" coverage, and may also obtain earthquake, pollution, and/or
flood insurance in amounts selected by Landlord.
(2) OPTIONAL INSURANCE. Landlord, at Landlord's option, may also (but
shall have no obligation to) carry insurance against loss of rent, in
an amount equal to the amount of Base Rent and Additional Rent that
Landlord could be required to xxxxx to all Building tenants in the
event of condemnation or casualty damage for a period of twelve (12)
months. Landlord may also (but shall have no obligation to) carry such
other insurance as Landlord may reasonably deem prudent or advisable,
including, without limitation, liability insurance in such amounts and
on such terms as Landlord shall determine. If and when Xxxxxxx
Properties, L.P. or its successor by merger or acquisition, is not
longer the "Landlord" under this Lease, then at all times Landlord
shall carry a policy of Commercial General Liability Insurance with
limits of liability of no less than Three Million Dollars
($3,000,000.00). Landlord shall not be obligated to insure, and shall
have no responsibility whatsoever for any damage to, any furniture,
machinery, goods, inventory or supplies, or other personal property or
fixtures which Tenant may keep or maintain in the Premises, or any
leasehold improvements, additions or alterations within the Premises
except where such damage arises from the active negligence or willful
misconduct of Landlord, its employees, agents, or contractors.
B. TENANT'S INSURANCE.
So long as Franklin Resources, Inc. is "Tenant" under this Lease, the
coverages Tenant is required to maintain under this Lease may be
maintained under a program of Tenant's self-insurance or under
policies that include self-insured retentions of deductibles that are
typically carried by similarly situated tenants. Prior to any
implementation of Tenant's self-insurance program, Tenant shall in
writing advise Landlord of the self-insured retentions, or
deductibles.
(1) PROPERTY INSURANCE. Tenant shall procure at Tenant's sole cost
and expense and keep in effect from the date of this Lease and at all
times until the end of the Term, insurance on all personal property
and fixtures of Tenant and all improvements, additions or alterations
made by or for Tenant to the Premises on an "All Risk" basis, insuring
such property for the full replacement value of such property.
(2) LIABILITY INSURANCE. Tenant shall procure at Tenant's sole cost
and expense and keep in effect from the date of this Lease and at all
times until the end of the Term Commercial General Liability insurance
covering bodily injury and property damage liability occurring in or
about the Premises or arising out of the use and occupancy of the
Premises and the Project, and any part of either, and any areas
adjacent thereto, and the business operated by Tenant or by any other
occupant of the Premises. Such insurance shall include contractual
liability coverage insuring all of Tenant's indemnity obligations
under this Lease. Such coverage shall have a minimum combined single
limit of liability of at least Two Million Dollars ($2,000,000.00),
and a
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minimum general aggregate limit of Three Million Dollars ($3,000,000),
with an "Additional Insured -- Managers or Lessors of Premises Endorsement"
and the "Amendment of the Pollution Exclusion Endorsement." All such
policies shall be written to apply to all bodily injury (including death),
property damage or loss, personal and advertising injury and other
covered loss, however occasioned, occurring during the policy term, shall
be endorsed to add Landlord and any party holding an interest to which this
Lease may be subordinated as an additional insured, and shall provide that
such coverage shall be "PRIMARY" and non-contributing with any insurance
maintained by Landlord, which shall be excess insurance only. Such
coverage shall also contain endorsements including employees as additional
insureds if not covered by Tenant's Commercial General Liability
Insurance. All such insurance shall provide for the severability of
interests of insureds; and shall be written on an "OCCURRENCE" basis,
which shall afford coverage for all claims based on acts, omissions,
injury and damage, which occurred or arose (or the onset of which occurred
or arose) in whole or in part during the policy period.
(3) WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY INSURANCE. Tenant shall
carry Workers' Compensation Insurance as required by any Regulation,
throughout the Term at Tenant's sole cost and expense. To the extent
required by any Regulation, Tenant shall also carry Employers' Liability
Insurance in amounts not less than One Million Dollars ($1,000,000) each
accident for bodily injury by accident; One Million Dollars ($1,000,000)
policy limit for bodily injury by disease; and One Million Dollars
($1,000,000) each employee for bodily injury by disease, throughout the
Term at Tenant's sole cost and expense.
(4) COMMERCIAL AUTO LIABILITY INSURANCE. Tenant shall procure at Tenant's
sole cost and expense and keep in effect from the date of this Lease and
at all times until the end of the Term commercial auto liability insurance
with a combined limit of not less than One Million Dollars ($1,000,000)
for bodily injury and property damage for each accident. Such insurance
shall cover liability relating to any auto (including owned, hired and
non-owned autos).
(5) GENERAL INSURANCE REQUIREMENTS. All coverages described in this
Paragraph 8.B. shall be endorsed to (i) provide Landlord with thirty (30)
days' notice of cancellation or material change in terms; and (ii) waive
all rights of subrogation by the insurance carrier against Landlord. If at
any time during the Term the amount or coverage of insurance which Tenant
is required to carry under this Paragraph 8.B. is, in Landlord's reasonable
judgment, materially less than the amount or type of insurance coverage
typically carried by owners or tenants of properties located in the
general area in which the Premises are located which are similar to and
operated for similar purposes as the Premises or if Tenant's use of the
Premises should change with or without Landlord's consent, Landlord shall
have the right to require Tenant to increase the amount or change the
types of insurance coverage required under this Paragraph 8.B. All
insurance policies required to be carried by Tenant under this Lease shall
be written by companies rated A VII or better in "Best's Insurance Guide"
and authorized to do business in the State of California. Should Franklin
Resources, Inc. or its successor by merger or acquisition, no longer be
"Tenant" under this Lease, then deductible amounts under all insurance
policies required to be carried by Tenant under this Lease shall not
exceed Five Thousand Dollars ($5,000.00) per occurrence. Tenant shall
deliver to Landlord on or before the Term Commencement Date, and thereafter
at least thirty (30) days before the expiration dates of the expired
policies, or a certificate evidencing the same issued by the insurer
thereunder; and, if Tenant shall fail to procure such insurance, or to
deliver such certificates, Landlord may, at Landlord's option and in
addition to Landlord's other remedies in the event of a default by Tenant
hereunder, procure the same for the account of Tenant, and the cost
thereof shall be paid to Landlord as Additional Rent.
C. INDEMNIFICATION. Tenant shall indemnify, defend by counsel reasonably
acceptable to Landlord, protect and hold Landlord harmless from and against any
and all claims, liabilities, losses, costs, loss of rents, liens, damages,
injuries or expenses, including reasonable attorneys' and consultants' fees and
court costs, demands, causes of action, or judgements, directly or indirectly
arising out of or related to: (1) claims of injury to or death of persons or
damage to property occurring or resulting directly or indirectly from the use
or occupancy of the Premises, Building or Project by Tenant or Tenant's
Parties, or from activities or failures to act of Tenant or Tenant's Parties;
(2) claims arising from work or labor performed, or for materials or supplies
furnished to or at the request of Tenant in connection with performance of any
work done for the account of Tenant within the Premises or Project; (3) claims
arising from any breach or default on the part of Tenant in the performance of
any covenant contained in this Lease; and (4) claims arising from the
negligence or intentional acts or omissions of Tenant or Tenant's Parties. The
foregoing indemnity by Tenant shall not be applicable to claims to the extent
arising from the active negligence or willful misconduct of Landlord. Landlord
shall not be liable to Tenant and Tenant hereby waives all claims against
Landlord for any injury or damage to any person or property in or about the
Premises, Building or Project by or from any cause whatsoever (other than
Landlord's active negligence or willful misconduct) and, without limiting the
generality of the foregoing, whether caused by water leakage of any character
from the roof, walls, basement or other portion of the Premises, Building or
Project, or caused by gas, fire, oil or electricity in, on or about the
Premises, Building or Project. Landlord shall indemnify, defend by counsel
reasonably acceptable to Tenant, protect and hold Tenant harmless form and
against any and all claims, liabilities, losses, costs, liens, damages,
injuries or expenses, including reasonable attorneys' fees and consultants'
fees and court costs, demands, causes of action or judgements directly or
indirectly arising from the active negligence or willful misconduct of Landlord
or its employees, agents or contractors. The provisions of this Paragraph shall
survive the expiration or earlier termination of this Lease.
9. WAIVER OF SUBROGATION
To the extent permitted by law and without affecting the coverage provided
by insurance to be maintained hereunder or any other rights or remedies,
Landlord and Tenant each waive any right to recover against the other for: (a)
damages for injury to or death of persons; (b) damages to property, including
personal property; (c) damages to the Premises or any part thereof; and (d)
claims arising by reason of the foregoing due to hazards covered by insurance
maintained or required to be maintained pursuant to this Lease to the extent of
proceeds recovered therefrom, or proceeds which would have been recoverable
therefrom in the case of the failure of any party to maintain any insurance
coverage required to be maintained by such party pursuant to this Lease. This
provision is intended to waive fully, any rights and/or claims arising by
reason of the foregoing, but only to the extent that any of the foregoing
damages and/or claims referred to above are covered or would be covered, and
only to the extent of such coverage, by insurance actually carried or required
to be maintained pursuant to this Lease by either Landlord or Tenant. This
provision is also intended to waive fully, and for the benefit of each party,
any rights and/or claims which might give rise to a right of subrogation on any
insurance carrier. Subject to all qualifications of this Xxxxxxxxx 0, Xxxxxxxx
waives its rights as specified in this Paragraph 9 with respect to any subtenant
that it has approved pursuant to Paragraph 21 but only in exchange for the
written waiver of such rights to be given by such subtenant to Landlord upon
such subtenant taking possession of the Premises or a portion thereof. Each
party shall cause each insurance policy obtained by it to provide that the
insurance company waives all right of recovery by way of subrogation against
either party in connection with any damage covered by any policy.
10. LANDLORD'S REPAIRS AND MAINTENANCE
Landlord shall at Landlord's expense maintain in first-class condition
and repair, reasonable wear and tear excepted, the structural soundness of the
roof, foundations, and exterior walls of the Building. The term "exterior
walls" as used herein shall not include windows, glass or plate glass, doors,
dock bumpers or dock plates, special store fronts or office entries. Landlord
shall perform on behalf of Tenant and other tenants of the Project the
maintenance of the public and common areas of the Project including, but not
limited to, the
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landscaped areas, parking areas, driveways, sanitary and storm sewer lines,
utilities services, HVAC systems, electric equipment (excluding Tenant's
emergency electric generator(s) described in Paragraph 38 H. hereof) servicing
the Building, exterior lighting, Project trash removal services, and anything
which affects the operation and exterior appearance of the Project, which
determination shall be at Landlord's reasonably discretion. Any damage caused by
or repairs necessitated by any negligence or act of Tenant or Tenant's Parties
may be repaired by Landlord at Landlord's option and Tenant's expense. Tenant
shall immediately give Landlord written notice of any defect or need of repairs
in such components of the Building for which Landlord is responsible, after
which Landlord shall have a reasonably opportunity and the right to enter the
Premises at all reasonably times to repair same. Tenant's liability with respect
to any defects, repairs, or maintenance for which Landlord is responsible under
any of the provisions of the Lease shall be limited to the cost of such repairs
or maintenance, and there shall be no abatement of rent and no liability of
Landlord by reason of any injury to or interference with Tenant's business
arising from the making of repairs, alterations or improvements in or to any
portion of the Premises, the Building or the Project or to fixtures,
appurtenances or equipment in the Building, except as provided in Paragraph 24
or anywhere else in this Lease. By taking possession of the Premises, Landlord,
subject to Paragraph 2.B of this Lease, accepts them "as is," as being in good
order, condition and repair and the condition in which Landlord if obligated to
deliver them and suitable for the Permitted Use and Tenant's intended operations
in the Premises, whether or not any notice of acceptance is give.
11. TENANT'S REPAIRS AND MAINTENANCE
Tenant shall at all times during the Term at Tenant's expense maintain
all interior non-structural parts of the Premises and such portions of the
Building as are within the exclusive control of Tenant in a first-class, good,
clean and secure condition and promptly make all necessary repairs and
replacements, as reasonably determined by Landlord, including but not limited
to, all windows, glass, doors, walls, including demising walls, and wall
finishes, floors and floor coverings, ceiling insulation, truck doors, hardware,
plumbing work and fixtures, downspouts, entries, skylights, smoke hatches, roof
vents, electrical and lighting systems, and fire sprinklers, and the emergency
generator(s) described in Paragraph 38.H. of this Lease, with materials and
workmanship of the same character, kind and quality as the original. Tenant
shall at Tenant's expense also perform regular removal of trash and debris.
Notwithstanding anything to the contrary contained herein, Tenant shall, at its
expense, promptly repair any damage to the Premises or the Building or Project
resulting from or caused by any negligence or act of Tenant or Tenant's Parties.
Nothing herein shall expressly or by implication render Tenant Landlord's agent
or contractor to effect any repairs or maintenance required of Landlord under
this Paragraph 11, as to all of which Tenant shall be solely responsible.
12. ALTERATIONS
A. Except for interior, nonstructural alterations costing less than
Twenty-five Thousand Dollars ($25,000.00) to perform, Tenant shall not make, or
allow to be made, any alterations, physical additions, improvements or
partitions, in, about or to the Premises ("ALTERATIONS") without obtaining the
prior written consent of Landlord, which consent shall not be unreasonably
withheld, delayed or conditioned with respect to proposed Alterations which: (a)
comply with all applicable Regulations; (b) are, in Landlord's opinion,
compatible with the Building or the Project and its mechanical, plumbing,
electrical, heating/ventilation/air conditioning systems, and will not cause the
Building or Project or such systems to be required to be modified to comply with
any Regulations (including, without limitation, the Americans With Disabilities
Act) unless Tenant agrees to perform the same at its sole cost and expense; and
(c) will not interfere with the use and occupancy of any other portion of the
Project by any other tenant or its invitees. Specifically, but without limiting
the generality of the foregoing, Landlord shall have the right of written
consent (which consent shall not be unreasonably withheld, delayed or
conditioned) for all plans and specifications for the proposed Alterations,
construction means and methods, all appropriate permits and licenses, any
contractor or subcontractor to be employed on the work of Alterations, and the
time for performance of such work, and may impose reasonably rules and
regulations for contractors and subcontractors performing such work. Tenant
shall also supply to Landlord any documents and information reasonably requested
by Landlord in connection with Landlord's considerations of a request for
approval hereunder. Tenant shall cause all Alterations to be accomplished in a
first-class, good and workmanlike manner, and to comply with all applicable
Regulations and Paragraph 27 hereof. If Landlord does not respond in writing
within ten (10) days of Tenant's plan, stating with specificity its reasons
therefor, Tenant shall deliver a second notice to Landlord, stating in bold type
on the first page thereof "URGENT -- DELAY NOTICE," which notice may be
delivered by facsimile to Landlord at Landlord's Notice Address and as otherwise
set forth in Paragraph 32, and if Landlord fails to respond within five (5) days
thereafter, Landlord's consent shall be deemed given. Tenant shall at Tenant's
sole expense, perform any additional work required under applicable Regulations
due to the Alterations hereunder. No review or consent by Landlord of or to any
proposed Alteration or additional work shall constitute a waiver of Tenant's
obligations under this Paragraph 12. Tenant shall reimburse Landlord for all
third-party costs which Landlord may reasonably and actually incur in connection
with granting approval to Landlord for any such Alterations, including any costs
or expenses which Landlord may incur in electing to have outside architects and
engineers review said plans and specifications to the extent it is reasonably
necessary to do so. All such Alterations shall remain the property of Tenant
until the expiration or earlier termination of this Lease, at which time they
shall be and become the property of Landlord; provided, however, that Landlord
may, at Landlord's option, require that Tenant, at Tenant's expense, remove any
or all Alterations made by Tenant which Landlord indicated at the time consent
thereto was granted would have to be removed and restore the Premises by the
expiration or earlier termination of this Lease, to their condition existing
prior to the construction of any such Alterations. All such removals and
restoration shall be accomplished in a first-class and good and workmanlike
manner so as not to cause any damage to the Premises or Project whatsoever. If
Tenant fails to remove such Alterations or Tenant's trade fixtures or furniture
or other personal property, Landlord may keep and use them or remove any of them
and cause them to be stored or sold in accordance with applicable law, at
Tenant's sole expense. In addition to and wholly apart from Tenant's obligation
to pay Tenant's Proportionate Share of Operating Expense, Tenant shall be
responsible for and shall pay prior to delinquency any taxes or governmental
service fees, possessory interest taxes, fees or charges in lieu of any such
taxes, capital levies, or other charges imposed upon, levied with respect to or
assessed against its fixtures or personal property, on the value of Alterations
within the Premises, and on Tenant's interest pursuant to this Lease, or any
increase in any of the foregoing based on such Alterations. To the extent that
any such taxes are not separately assessed or billed to Tenant, Tenant shall pay
the amount thereof as invoiced to Tenant by Landlord.
The work necessary to make such Alterations shall be performed by
employees, contractors or space planners employed by Landlord or, with
Landlord's prior written consent which consent shall not be unreasonably
withheld, delayed or conditioned, by space planners and/or contractors licensed
in California which are employed by Tenant. In addition, if Landlord
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elected at the time consent to any such Alterations was granted to require that
any such Alterations be removed by Tenant upon the expiration or earlier
termination of the Term, and the Landlord elects to be responsible for
performing such removal, then notwithstanding the provisions of the preceding
paragraph, Tenant shall pay to Landlord the cost of removing any such
Alterations and restoring the Premises in their original condition such cost to
include a reasonable charge for Landlord's overhead and profit as provided
above, and such amount may be deducted from the Security Deposit or any other
sums or amounts held by Landlord under this Lease.
B. In compliance with Paragraph 27 hereof, at least ten (10) business days
before beginning construction of any Alteration, Tenant shall give Landlord
written notice of the expected commencement date of that construction to permit
Landlord to post and record a notice of non-responsibility. Upon substantial
completion of construction, if the law so provides, Tenant shall cause a timely
notice of completion to be recorded in the office of the recorder of the county
in which the Building is located.
13. SIGNS
Tenant shall not place, install, affix, paint or maintain any signs, notices,
graphics or banners whatsoever or any window decor which is visible in or from
public view or corridors, the common areas or the exterior of the Premises or
the Building, in or on any exterior window or window fronting upon any common
areas or service area or upon any truck doors or man doors without Landlord's
prior written approval which Landlord shall have the right to withhold in its
absolute and sole discretion; provided that Tenant's name shall be included in
any Building-standard door and directory signage, if any, and Tenant shall have
the right to install at Tenant's sole cost, expense and responsibility,
identifying signage on the existing monument sign at the entranceway to the
Project, in accordance with Landlord's Building signage, criteria attached as
EXHIBIT F hereto, including without limitation, payment by Tenant of any fee
charged by Landlord for maintaining such signage, which fee shall constitute
Additional Rent hereunder. Any installation of signs, notices, graphics or
banners on or about the Premises or Project approved by Landlord shall be
subject to any Regulations and to any other requirements imposed by Landlord.
Tenant shall remove all such signs or graphics by the expiration or any earlier
termination of this Lease. Such installations and removals shall be made in such
manner as to avoid injury to or defacement of the Premises, Building or Project
and any other improvements contained therein, and Tenant shall repair any injury
or defacement including without limitation discoloration caused by such
installation or removal.
14. INSPECTION/POSTING NOTICES
After reasonable notice and subject to such security requirements as Tenant may
reasonably impose, except in emergencies where no such notice or compliance with
any such security requirements shall be required, Landlord and Landlord's agents
and representatives, shall have the right to enter the Premises to inspect the
same, to clean, to perform such work as may be permitted or required hereunder,
to make repairs, improvements or alterations to the Premises, Building or
Project or to other tenant spaces therein, to deal with emergencies, to post
such notices as may be permitted or required by law to prevent the perfection of
liens against Landlord's interest in the Project or to exhibit the Premises to
prospective tenants (during the last twelve (12) months of the Term or extended
Term), purchasers, encumbrancers or to others, or for any other purpose as
Landlord may deem necessary or desirable; provided however, that Landlord shall
use reasonable efforts not to unreasonably interfere with Tenant's business
operations. Tenant shall have the right to require a representative of Tenant to
accompany Landlord during any such entry or inspection. Tenant shall not be
entitled to any abatement of Rent by reason of the exercise of any such right or
entry. Tenant waives any claim for damages for any injury or inconvenience to or
interference with Tenant's business, any loss of occupancy or quiet enjoyment of
the Premises, and any other loss occasioned thereby except for any damage to
persons as properly caused by the active negligence or willful misconduct of
Landlord or its employees, agents or contractors. Landlord shall at all times
have and retain a key with which to unlock all of the doors in, upon and about
the Premises, excluding Tenant's vaults and safes or special security areas
(designated in advance), and Landlord shall have the right to use any and all
means which Landlord may deem necessary or proper to open said doors in an
emergency, in order to obtain entry to any portion of the Premises, and any
entry to the Premises or portions thereof obtained by Landlord by any of said
means, or otherwise, shall not be construed to be a forcible or unlawful entry
into, or a detainer of, the Premises, or an eviction, actual or constructive, of
Tenant from the Premises or any portions thereof. At any time within six (6)
months prior to the expiration of the Term or following any earlier termination
of this Lease or agreement to terminate this Lease, Landlord shall have the
right to erect on the Premises, Building and/or Project a suitable sign
indicating that the Premises are available for lease.
15. SERVICES AND UTILITIES
A. Tenant shall pay directly for all water, gas, heat, air conditioning,
light, power, telephone, sewer, sprinkler charges and other utilities and
services used on or from the Premises, together with any taxes, penalties,
surcharges or the like pertaining thereto, and maintenance charges for utilities
and shall furnish all electric light bulbs, ballasts and tubes. Tenant shall
have the right to conduct its business operations within the Premises, and to
receive reasonable quantities of water, electricity and HVAC in connection
therewith, seven (7) days per week, twenty-four (24) hours per day. If any such
services are not separately billed or metered to Tenant, Tenant shall pay a
proportion, as determined by Landlord, of all charges jointly serving other
premises. All sums payable under this Paragraph 15 shall constitute Additional
Rent hereunder. Landlord shall use reasonable efforts to reasonably capture any
material benefit available through deregulation of electricity supply or of the
supply of other utilities.
B. Tenant acknowledges that Tenant has inspected and accepts the water,
electricity, heat and air conditioning and other utilities and services being
supplied or furnished to the Premises as of the date Tenant takes possession of
the Premises, if any, as being sufficient in their present condition, "as is,"
for the Permitted Use, and for Tenant's intended operations in the Premises.
C. Tenant shall not without written consent of Landlord (which consent shall
not be unreasonably withheld, delayed or conditioned) use any apparatus,
equipment or device in the Premises, including without limitation, computers,
electronic data processing machines, copying machines, and other machines, using
excess lighting or using electric current, water, or any other resource in
excess of or which will in any way increase the amount of electricity, water, or
any other resource being furnished or supplied for the use of the Premises for
reasonable and normal office use, in each case as of the date Tenant takes
possession of the Premises as reasonably determined by Landlord, or which will
require additions or alterations to or interfere with the Building power
distribution systems; nor connect with electric current, except through existing
electrical outlets in the Premises or water pipes, any apparatus, equipment or
device for the purpose of using electrical current, water, or any other
resource. If Tenant shall require water or electric current or any other
resource in excess of that being furnished or supplied for the use of the
Premises as of the date Tenant takes possession of the Premises, if any, as
reasonably determined by Landlord, Tenant shall first procure the written
consent of Landlord (which consent shall not be unreasonably withheld, delayed
or conditioned), to the use thereof, and Landlord may cause a special meter to
be installed in the Premises
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so as to measure the amount of water, electric current or other resource
consumed for any such other use. Tenant shall pay directly to Landlord as an
addition to and separate from payment of Operating Expenses the cost of all
such additional resources, energy, utility service and meters (and of
installation, maintenance and repair thereof and of any additional circuits or
other equipment necessary to furnish such additional resources, energy, utility
or service). Landlord may add to the separate or metered charge a recovery of
additional expense incurred in keeping account of the excess water, electric
current or other resource so consumed. Landlord shall not be liable for any
damages directly or indirectly resulting from nor shall the Rent or any monies
owed Landlord under this Lease herein reserved be abated by reasons of: (a) the
installation, use or interruption of use of any equipment used in connection
with the furnishing of any such utilities or services, or any change in the
character or means of supplying or providing any such utilities or services or
any supplier thereof; (b) the failure to furnish or delay in furnishing any such
utilities or services when such failure or delay is caused by acts of God or the
elements, labor disturbances of any character, or any other accidents or other
conditions beyond the reasonable control of Landlord or because of any
interruption of service due to Tenant's use of water, electric current or other
resource in excess of that being supplied or furnished for the use of the
Premises as of the date Tenant takes possession of the Premises; or (c) the
inadequacy, limitation, curtailment, rationing or restriction on use of water,
electricity, gas or any other form of energy or any other service or utility
whatsoever serving the Premises or Project otherwise; or (d) the partial or
total unavailability of any such utilities or services to the Premises or the
Building, whether by Regulation or otherwise; nor shall any such occurrence
constitute an actual or constructive eviction of Tenant. Landlord shall further
have no obligation to protect or preserve any apparatus, equipment or device
installed by Tenant in the Premises. In addition, Landlord reserves the right to
change the supplier or provider of any such utility or service from time to
time. Landlord may, but shall not be obligated to, upon notice to Tenant,
contract with or otherwise obtain any electrical or other such service for or
with respect to the Premises or Tenant's operations therein from any supplier or
provider of any such service. Tenant shall cooperate with Landlord and any
supplier or provider of such services designated by Landlord from time to time
to facilitate the delivery of such services to Tenant at the Premises and to the
Building and Project, including without limitation allowing Landlord and
Landlord's suppliers or providers, and their respective agents and contractors,
reasonable access to the Premises for the purpose of installing, maintaining,
repairing, replacing or upgrading such service or any equipment or machinery
associated therewith.
Subject to Paragraph 35 of this Lease, for service or utilities that Landlord is
required to supply to the Premises hereunder, but is actively negligent in
adequately providing or altogether fails to provide, Tenant's Rent shall be
abated or reduced for such period of time that the Premises or portion thereof
is not supplied with such services or utilities, in proportion to the rentable
square feet of the Premises that is so affected bears to the total rental square
feet of the Premises.
D. Landlord acknowledges and agrees to Tenant's exclusive use, operation,
maintenance, repair and security protection of those certain underground
conduit, vault and equipment facilities within the Project for Tenant's
telecommunication cabling and equipment. Furthermore, Tenant agrees to and
accepts complete and full responsibility and control of the facilities described
in the preceding sentence.
16. SUBORDINATION
Without the necessity of any additional document being executed by Tenant for
the purpose of effecting a subordination, the Lease shall be and is hereby
declared to be subject and subordinate at all times to: (a) all ground leases or
underlying leases which may hereafter be executed affecting the Premises and/or
the land upon which the Premises and Project are situated, or both; and (b) any
mortgage or deed of trust which may be placed upon the Building, the Project
and/or the land upon which the Premises or the Project are situated, or said
ground leases or underlying leases, or Landlord's interest or estate in any of
said items which is specified as security. Notwithstanding the foregoing,
Landlord shall have the right to subordinate or cause to be subordinated any
such ground leases or underlying leases or any such liens to this Lease. If any
ground lease or underlying lease terminates for any reason or any mortgage or
deed of trust is foreclosed or a conveyance in lieu of foreclosure is made for
any reason, Tenant shall, notwithstanding any subordination, attorn to and
become the Tenant of the successor in interest to Landlord provided that Tenant
shall not be disturbed in its possession under this Lease by such successor in
interest so long as Tenant is not in default under this Lease beyond the
expiration of all applicable grace, notice and cure periods. Within ten (10)
days after request by Landlord, Tenant shall execute and deliver any
commercially reasonable additional documents evidencing Tenant's attornment or
the subordination of this Lease with respect to any such ground leases or
underlying leases or any such mortgage or deed of trust, in the form reasonably
requested by Landlord or by any ground landlord, mortgagee, or beneficiary under
a deed of trust, subject to such nondisturbance requirement.
17. FINANCIAL STATEMENTS
At the request of Landlord from time to time, Tenant shall provide to Landlord
Tenant's and any guarantor's current financial statements or other information
discussing financial worth of Tenant and any guarantor, which Landlord shall use
solely for purposes of this Lease and in connection with the ownership,
management, financing and disposition of the Project.
18. ESTOPPEL CERTIFICATE
Tenant agrees from time to time, but not more than twice in any calendar year,
within ten (10) business days after request of Landlord, to deliver to Landlord,
or Landlord's designee, an estoppel certificate stating that this Lease is in
full force and effect, that this Lease has not been modified (or stating all
modifications, written or oral, to this Lease), the date to which Rent has been
paid, the unexpired portion of this Lease, that there are no current defaults by
Landlord or Tenant under this Lease (or specifying any such defaults), that the
leasehold estate granted by this Lease is the sole interest of Tenant in the
Premises and/or the land at which the Premises are situated (subject to such
rights of first refusal and/or options to purchase as may be set forth herein),
and such other matters pertaining to this Lease as may be reasonably requested
by Landlord or any mortgage, beneficiary, purchaser or prospective purchaser of
the Building or Project or any interest therein. If Tenant fails to execute such
certificate within such ten (10) business day period, and such failure continues
for more than five (5) days following delivery of a second request therefor,
which second notice shall be labeled at the top in bold letters "URGENT - DELAY
NOTICE," then the failure by Tenant to execute and deliver such certificate
shall constitute a default under this Lease. Landlord and Tenant intend that any
statement delivered pursuant to this Paragraph may be relied upon by any
mortgagee, beneficiary, purchaser or prospective purchaser of the Building or
Project or any interest therein. The parties agree that Tenant's obligation to
furnish such estoppel certificates in a timely fashion is a material inducement
for Landlord's execution of the Lease, and shall be an event of default (without
any cure period that might be provided under Paragraph 26.A(3) of this Lease) if
Tenant fails to fully comply or makes any material misstatement in any such
certificate.
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19. SECURITY DEPOSIT
In the event Tenant does not exercise its first and/or second option to extend
the Term pursuant to Paragraph 38.B. of this Lease, Tenant agrees to deposit
with Landlord no later than twelve (12) months prior to the expiration of the
Term, or the extended Term, a security deposit as stated in the Basic Lease
Information (the "SECURITY DEPOSIT"), which sum shall be held and owned by
Landlord, without obligation to pay interest, as security for the performance
of Tenant's covenants and obligations under this Lease. The Security Deposit is
not an advance rental deposit or a measure of damages incurred by Landlord in
case of Tenant's default. Upon the occurrence of any event of default by
Tenant, Landlord may from time to time, without prejudice to any other remedy
provided herein or by law, use such fund as a credit to the extent necessary to
credit against any arrears of Rent or other payments due to Landlord hereunder,
and any other damage, injury, expense or liability caused by such event of
default, and Tenant shall pay to Landlord, on demand, the amount so applied in
order to restore the Security Deposit to its original amount. Although the
Security Deposit shall be deemed the property of Landlord, any remaining
balance of such deposit shall be returned by Landlord to Tenant at such time
after termination of this Lease that all of Tenant's obligations under this
Lease have been fulfilled, reduced by such amounts as may be required by
Landlord to remedy defaults on the part of Tenant in the payment of Rent or
other obligations of Tenant under this Lease, to repair damage to the Premises,
Building or Project caused by Tenant or any Tenant's Parties and to clean the
Premises. Landlord may use and commingle the Security Deposit with other funds
of Landlord.
20. LIMITATION OF TENANT'S REMEDIES
The obligations and liability of Landlord to Tenant for any default by Landlord
under the terms of this Lease are not personal obligations of Landlord or of
the individual or other partners of Landlord or its or their partners,
directors, officers, or shareholders, and Tenant agrees to look solely to
Landlord's interest in the Project (including the rents, issues and proceeds
therefrom) for the recovery of any amount from Landlord, and shall not look to
other assets of Landlord nor seek recourse against the assets of the individual
or other partners of Landlord or its or their partners, directors, officers or
shareholders. Any lien obtained to enforce any such judgment and any levy of
execution thereon shall be subject and subordinate to any lien, mortgage or
deed of trust on the Project. Under no circumstances shall Tenant have the
right to offset against or recoup Rent or other payments due and to become due
to Landlord hereunder except as expressly provided in Paragraph 23.B. below or
elsewhere in this Lease, which Rent and other payments shall be absolutely due
and payable hereunder in accordance with the terms hereof.
21. ASSIGNMENT AND SUBLETTING
A. (1) GENERAL. Tenant shall not assign or pledge this Lease or sublet the
Premises or any part thereof, whether voluntarily or by operation of law,
or permit the use or occupancy of the Premises or any part thereof by
anyone other than Tenant, or suffer or permit any such assignment, pledge,
subleasing or occupancy, without Landlord's prior written consent except
as provided herein which consent shall not be unreasonably withheld,
delayed or conditioned. If Tenant desires to assign this Lease or sublet
any or all of the Premises, Tenant shall give Landlord written notice (the
"TRANSFER NOTICE") at least thirty (30) days prior to the anticipated
effective date of the proposed assignment or sublease, which shall contain
all of the information reasonably requested by Landlord to address
Landlord's decision criteria specified hereinafter. Landlord shall then
have a period of (15) business days following receipt of the Transfer
Notice to notify Tenant in writing whether Landlord consents to the
proposed assignment or sublease, subject, however, to Landlord's prior
written consent of the proposed assignee or subtenant and of any related
documents or agreements associated with the assignment or sublease and if
Landlord withholds such consent, stating with specificity the reasons
therefor. Consent to any assignment or subletting shall not constitute
consent to any subsequent transaction to which this Paragraph 21 applies.
(2) CONDITIONS OF LANDLORD'S CONSENT. Without limiting the other instances in
which it may be reasonable for Landlord to withhold Landlord's consent to
an assignment or subletting, Landlord and Tenant acknowledge that it shall
be reasonable for Landlord to withhold Landlord's consent in the following
instances: if the proposed assignee does not agree to be bound by and
assume the obligations of Tenant under this Lease in form and substance
reasonably satisfactory to Landlord; the use of the Premises by such
proposed assignee or subtenant would not be a Permitted Use or would
violate any exclusivity or other arrangement which Landlord has with any
other tenant or other occupant or any Regulation or would increase the
Occupancy Density or Parking Density of the Building or Project, as
reasonably determined by Landlord; the proposed assignee or subtenant is
not of sound financial condition as determined by Landlord in Landlord's
reasonable discretion; the proposed assignee or subtenant is a
governmental agency that occupies more than twenty-five percent (25%) of
the Premises; the proposed assignee or subtenant does not have a good
reputation as a tenant of property or a good business reputation; the
proposed assignee or subtenant is a person with whom Landlord is
negotiating to lease space in the Project or is a present tenant of the
Project; the assignment or subletting would entail any Alterations which
would lessen the value of the leasehold improvements in the Premises or
use of any Hazardous Materials or other noxious use or use which may
disturb other tenants of the Project; or Tenant is in default of any
obligation of Tenant under this Lease, or Tenant has defaulted under this
Lease on three (3) or more occasions during any twelve (12) months
preceding the date that Tenant shall request consent. Failure by or
refusal of Landlord to consent to a proposed assignee or subtenant shall
not cause a termination of this Lease. At the option of Landlord, a
surrender and termination of this Lease shall operate as an assignment to
Landlord of some or all subleases or subtenancies. Landlord shall exercise
this option by giving notice of that assignment to such subtenants on or
before the effective date of the surrender and termination. In connection
with each request for assignment or subletting, Tenant shall pay to
Landlord Landlord's standard fee for approving such requests, as well as
all costs incurred by Landlord or any mortgage or ground lessor in
approving each such request and effecting any such transfer, including,
without limitation, reasonable attorney's fees in an amount not to exceed
Twenty-five Hundred Dollars ($2,500.00).
B. BONUS RENT. For any subletting or assignment that is in the aggregate less
than twenty-five percent (25%) of the Premises, any Rent or other consideration
realized by Tenant under any such sublease or assignment, in excess of the Rent
payable hereunder, after amortization of all transaction costs reasonably
incurred in connection therewith, including but not limited to reasonable
brokerage commission incurred by Tenant, legal fees, costs of improvements shall
be divided and paid, fifty percent (50%) to Tenant, fifty percent (50%) to
Landlord ("BONUS RENT"). However, for any subleasing or assignment that is in
the aggregate twenty-five percent (25%) or more of the Premises, then the Bonus
Rent shall be divided and paid twenty-five percent (25%) to Tenant
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and seventy-five (75%) to Landlord. In any subletting or assignment undertaken
by Tenant, Tenant shall diligently seek to obtain the maximum rental amount
available in the marketplace for comparable space available for primary leasing.
C. CORPORATION. If Tenant is a corporation, a transfer of corporate shares by
sale, assignment, bequest, inheritance, operation of law or other disposition
(including such a transfer to or by a receiver or trustee in federal or state
bankruptcy, insolvency or other proceedings) resulting in a change in the
present control of such corporation or any of its parents corporations by the
person or persons owning a majority of said corporate shares, shall constitute
an assignment for purposes of this Lease. So long as Franklin Resources, Inc.,
is the "Tenant" in possession of the Premises, and Tenant is not in default of
this Lease after the expiration of all applicable grace, notice and cure
periods, Tenant shall have the right subject to the terms and conditions
hereinafter set forth, without the consent of Landlord, to (a) assign its
interest in this Lease (i) to any corporation which is a successor to Tenant
either by merger or consolidation, or (ii) to a purchaser of all or
substantially all of Tenant's assets (provided such purchaser shall have also
assumed substantially all of Tenant's liabilities), or to a corporation or other
entity which shall control, be under the control of, or be under common control
with, Franklin Resources, Inc., (the term "control" as used herein shall be
deemed to mean ownership of more than fifty percent (50%) of the outstanding
voting stock of a corporation, or other majority equity and controlling interest
if Tenant is not a corporation) (any such entity being a "Related Entity"), or
(b) sublease all or any portion of the Premises to a Related Entity; upon the
condition that (i) the principal purpose of such assignment or sublease is not
the acquisition of Tenant's interest in this Lease (except if such assignment or
sublease is made to a Related Entity and is made for a valid intra-corporate
business purpose and is not made to circumvent the provisions of this Paragraph
21), and (ii) any such assignee shall have a net worth and annual income and
cash flow, determined in accordance with generally accepted accounting
principles, consistently applied, after giving effect to such assignment, in
amounts necessary to perform its duties, obligations and liabilities hereunder,
as reasonably determined by Landlord. Tenant shall within ten (10) business days
after execution thereof, deliver to Landlord (a) a duplicate original instrument
of assignment, in form and substance reasonably satisfactory to Landlord, duly
executed by Tenant, (b) an instrument in form and substance reasonably
satisfactory to Landlord, duly executed by the assignee, in which such assignee
shall assume observance and performance of, and agree to be personally bound by
all of the terms, covenants and conditions of this Lease on Tenant's part to be
observed and performed, or (c) a duplicate original sublease in form and
substance reasonably satisfactory to Landlord, duly executed by Tenant and
subtenant, in which such assignee shall assume observance and performance of,
and agree to be personally bound by all of the terms, covenants and conditions
of this Lease on Tenant's part to be observed and performed.
D. UNINCORPORATED ENTITY. If Tenant is a partnership, joint venture,
unincorporated limited liability company or other unincorporated business form,
a transfer of the interest of persons, firms or entities responsible for
managerial control of Tenant by sale, assignment, bequest, inheritance,
operation of law or other disposition, so as to result in a change in the
present control of said entity and/or of the underlying beneficial interests of
said entity and/or a change in the identity of the persons responsible for the
general credit obligations of said entity shall constitute an assignment for
all purposes of this Lease.
E. LIABILITY. No assignment or subletting by Tenant, permitted or otherwise,
shall relieve Tenant of any obligation under this Lease or alter the primary
liability of the Tenant named herein for the payment of Rent or for the
performance of any other obligations to be performed by Tenant, including
obligations contained in Paragraph 25 with respect to any assignee or subtenant.
Landlord may collect rent or other amounts or any portion thereof from any
assignee, subtenant, or other occupant of the Premises, permitted or otherwise,
and apply the net rent collected to the Rent payable hereunder, but no such
collection shall be deemed to be a waiver of this Paragraph 21, or the
acceptance of the assignee, subtenant or occupant as tenant, or a release of
Tenant from the further performance by Tenant of the obligations of Tenant
under this Lease. Any assignment or subletting which conflicts with the
provisions hereof shall be void.
22. AUTHORITY
Landlord represents and warrants that it has full right and authority to enter
into this Lease and to perform all of Landlord's obligations hereunder and that
all persons signing this Lease on its behalf are authorized to do. Tenant and
the person or persons, if any, signing on behalf of Tenant, jointly and
severally represent and warrant that Tenant has full right and authority to
enter into this Lease, and to perform all of Tenant's obligations hereunder, and
that all persons signing this Lease on its behalf are authorized to do so.
23. CONDEMNATION
A. CONDEMNATION RESULTING IN TERMINATION. If the whole or any substantial
part of the Premises should be taken or condemned for any public use under any
Regulation, or by right of eminent domain, or by private purchase in lieu
thereof, and the taking would prevent or materially interfere with the
Permitted Use of the Premises, either party shall have the right to terminate
this Lease at its option. If any material portion of the Building or Project is
taken or condemned for any public use under any Regulation, or by right of
eminent domain, or by private purchase in lieu thereof, Landlord may terminate
this Lease at its option. In either of such events, the Rent shall be abated
during the unexpired portion of this Lease, effective when the physical taking
of said Premises shall have occurred.
B. CONDEMNATION NOT RESULTING IN TERMINATION. If a portion of the Project of
which the Premises are a part should be taken or condemned for any public use
under any Regulation, or by right of eminent domain, or by private purchase in
lieu thereof, and the taking prevents or materially interferes with the
Permitted Use of the Premises, and this Lease is not terminated as provided in
Paragraph 23.A. above, the Rent payable hereunder during the unexpired portion
of the Lease shall be reduced, beginning on the date when the physical taking
shall have occurred, to such amount as may be fair and reasonable under all of
the circumstances, but only after giving Landlord credit for all sums received
or to be received by Tenant by the condemning authority. Notwithstanding
anything to the contrary contained in this Paragraph, if the temporary use or
occupancy of any part of the Premises shall be taken or appropriated under
power of eminent domain during the Term, this Lease shall be and remain
unaffected by such taking or appropriation and Tenant shall continue to pay in
full all Rent payable hereunder by Tenant during the Term; in the event of any
such temporary appropriation or taking, Tenant shall be entitled to receive
that portion of any award which represents compensation for the use of or
occupancy of the Premises during the Term, and Landlord shall be entitled to
receive that portion of any award which represents the cost of restoration of
the Premises and the use and occupancy of the Premises.
C. AWARD. Landlord shall be entitled to (and Tenant shall assign to Landlord)
any and all payment, income, rent, award or any interest therein whatsoever
which may be paid or made in connection with such taking or conveyance and
Tenant shall have no claim against Landlord or otherwise for any sums paid by
virtue of such proceedings, whether or not attributable to the value of any
unexpired portion of this Lease, except as expressly provided in this Lease.
Notwithstanding the foregoing, any compensation specifically and separately
awarded Tenant for Tenant's personal property and moving costs, shall be and
remain in property of Tenant and the unamortized value of improvements to the
Premises paid for by Tenant.
D. WAIVER OF CCP SECTION 1265.130. Each party waives the provisions of
California Civil Code Procedure Section 1265.130 allowing either party to
petition the superior court to terminate this Lease as a result of a partial
taking.
24. CASUALTY DAMAGE
A. GENERAL. If the Premises or Building should be damaged or destroyed by
fire, tornado, or other casualty (collectively, "CASUALTY"), Tenant shall give
immediate written notice thereof to Landlord. Within thirty (30) days after
Landlord's receipt of such
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notice, Landlord shall notify Tenant whether in Landlord's estimation (based
upon the certificate of a general contractor reasonably acceptable to Tenant)
material restoration of the Premises can reasonably be made within one hundred
eighty (180) days from the date of such notice and receipt of required permits
for such restoration. Landlord's determination shall be binding on Tenant.
B. WITHIN 180 DAYS. If the Premises or Building should be damaged by Casualty to
such extent that material restoration can in Landlord's estimation be reasonably
completed within one hundred eighty (180) days after the date of such notice and
receipt of required permits for such restoration, this Lease shall not
terminate. Provided that insurance proceeds are received by Landlord to fully
repair the damage (less the amount of any deductible), Landlord shall proceed to
rebuild and repair the Premises in the manner reasonably determined by Landlord,
except that Landlord shall not be required to rebuild, repair or replace any
part of the Alterations which may have been placed on or about the Premises by
Tenant. If the Premises are untenantable in whole or in part following such
damage, the Rent payable hereunder during the period in which they are
untenantable shall be abated proportionately.
C. GREATER THAN 180 DAYS. If the Premises or Building should be damaged by
Casualty to such extent that rebuilding or repairs cannot in Landlord's
estimation be reasonably completed within one hundred eighty (180) days after
the date of such notice and receipt of required permits for such rebuilding or
repair, then either party shall have the option, to be exercised within thirty
(30) days following receipt of Landlord's estimate, of terminating this Lease
effective upon the date of the occurrence of such damage, in which event the
Rent shall be abated during the unexpired portion of this Lease. If neither
party elects to so terminate, Landlord shall commence to rebuild or repair the
Premises diligently and in the manner reasonably determined by Landlord.
Notwithstanding the above, Landlord shall commence to rebuild, repair or replace
any part of any Alterations which may have been placed, on or about the Premises
by Tenant. If the Premises are untenantable in whole or in part following such
damage, the Rent payable hereunder during the period in which they are
untenantable shall be abated proportionately.
D. TENANT'S FAULT. Notwithstanding anything herein to the contrary, if the
Premises or any other portion of the Building are damaged by Casualty resulting
from the fault, negligence, or breach of this Lease by Tenant or any of Tenant's
Parties, Base Rent and Additional Rent shall not be diminished during the repair
of such damage (to the extent Tenant is responsible for the loss and Landlord is
not being covered by any other insurance proceeds) and Tenant shall be liable to
Landlord for the cost and expense of the repair and restoration of the Building
caused thereby to the extent such cost and expense is not covered by insurance
proceeds.
E. INSURANCE PROCEEDS. Notwithstanding anything herein to the contrary, if the
Premises or Building are damaged or destroyed and are not fully covered by the
insurance proceeds received by Landlord or if the holder of any indebtedness
secured by a mortgage or deed of trust covering the Premises requires, despite
Landlord's commercially reasonable effort to obtain such proceeds, that the
insurance proceeds be applied to such indebtedness, then in either case Landlord
shall have the right to terminate this Lease by delivering written notice of
termination to Tenant within thirty (30) days after the date of notice to
Landlord that said damage or destruction is not fully covered by insurance or
such requirement is made by any such holder, as the case may be, whereupon this
Lease shall terminate.
F. WAIVER. This Paragraph 24 shall be Tenant's sole and exclusive remedy in the
event of damage or destruction to the Premises or the Building. As a material
inducement to Landlord entering into this Lease, Tenant hereby waives any rights
it may have under Sections 1932, 1933(4), 1941 or 1942 of the Civil Code of
California with respect to any destruction of the Premises, Landlord's
obligation for tenantability of the Premises and Tenant's right to make repairs
and deduct the expenses of such repairs, or under any similar law, statute or
ordinance now or hereafter in effect.
G. TENANT'S PERSONAL PROPERTY. In the event of any damage or destruction of the
Premises or the Building, under no circumstances shall Landlord be required to
repair any injury or damage to, or make any repairs to or replacements of,
Tenant's personal property.
25. HOLDING OVER
Unless Landlord expressly consents in writing to Tenant's holding over, Tenant
shall be unlawfully and illegally in possession of the Premises, whether or not
Landlord accepts any rent from Tenant or any other person while Tenant remains
in possession of the Premises without Landlord's written consent. If Tenant
shall retain possession of the Premises or any portion thereof without
Landlord's consent following the expiration of this Lease or sooner termination
for any reason, then Tenant shall pay to Landlord for each day of such retention
two hundred percent (200%) the amount of daily rental as of the last month prior
to the date of expiration or earlier termination. Tenant shall also indemnify,
defend, protect and hold Landlord harmless from any loss, liability or cost,
including consequential and incidental damages and reasonable attorneys' fees,
incurred by Landlord resulting from delay by Tenant in surrendering the Premises
within thirty (30) days following the expiration or earlier termination of the
Term or extended Term of this Lease, including, without limitation, any claims
made by the succeeding tenant founded on such delay. Acceptance of Rent by
Landlord following expiration or earlier termination of this Lease, or following
demand by Landlord for possession of the Premises, shall not constitute a
renewal of this Lease, and nothing contained in this Paragraph 25 shall waive
Landlord's right of reentry of any other right. Additionally, if upon expiration
or earlier termination of this Lease, or following demand by Landlord for
possession of the Premises, Tenant has not fulfilled its obligation with respect
to repairs and cleanup of the Premises or any other Tenant obligations as set
forth in this Lease, then Landlord shall have the right to perform any such
obligations as it deems necessary at Tenant's sole cost and expense, and any
time required by Landlord to complete such obligations shall be considered a
period of holding over and the terms of this Paragraph 25 shall apply. The
provisions of this Paragraph 25 shall survive any expiration or earlier
termination of this Lease. If by written notice to Landlord delivered not later
than twelve (12) months prior to the Term Expiration Date, or the expiration of
the extended Term (the "Hold-Over Notice"), Tenant advises Landlord of its
intent to hold-over specifying the period of such hold-over (which period must
be for a period of no longer than six (6) months)(the "Hold-Over Term") then
Tenant may, as a matter of right, remain in possession following the Term
Expiration Date or the expiration of the extended Term, as the case may be, for
the Hold-Over Term set forth in the Hold-Over Notice; provided, that the Base
Rent for the Hold-Over Term shall be one hundred fifty percent (150%) of the sum
of the Base Rent and other charges payable for the last month of the Term or
extended Term. In no event under the preceding sentence shall Tenant have the
right to hold-over in the Premises for more than one (1) six (6) month or
shorter period beyond the Term Expiration Date or the expiration of the extended
Term.
26. DEFAULT
A. EVENTS OF DEFAULT. The occurrence of any of the following shall constitute an
event of default on the part of Tenant:
(1) ABANDONMENT.
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2. NONPAYMENT OF RENT. Failure to pay any installment of Rent or
any other amount due and payable hereunder upon the date when said
payment is due, as to which time is of the essence.
3. OTHER OBLIGATIONS. Failure to perform any obligation, agreement
or covenant under this Lease other than those matters specified in
subparagraphs (1) and (2) of this Paragraph 26.A., such failure
continuing for twenty (20) days after written notice of such failure
unless such default cannot reasonably be cured within such twenty (20)
day period and Tenant shall within such period commence with due
diligence and dispatch the curing of such default, and having so
commenced, shall thereafter, with periodic written reports submitted to
Landlord, prosecute or complete with due diligence and dispatch the
curing of such default, as to which time is of the essence.
(4) GENERAL ASSIGNMENT. A general assignment by Tenant for the
benefit of creditors.
(5) BANKRUPTCY. The filing of any voluntary petition in bankruptcy
by Tenant, or the filing of an involuntary petition by Tenant's
creditors, which involuntary petition remains undercharged for a period
of thirty (30) days. If under applicable law, the trustee in bankruptcy
or Tenant has the right to affirm this Lease and continue to perform the
obligations of Tenant hereunder, such trustee or Tenant shall, in such
time period as may be permitted by the bankruptcy court having
jurisdiction, cure all defaults of Tenant hereunder outstanding as of
the date of the affirmance of this Lease and provide to Landlord such
adequate assurances as may be necessary to ensure Landlord of the
continued performance of Tenant's obligations under this Lease.
(6) RECEIVERSHIP. The employment of a receiver to take possession of
substantially all of Tenant's assets or the Premises, if such
appointment remains undismissed or undischarged for a period of fifteen
(15) days after the order therefor.
(7) ATTACHMENT. The attachment, execution or other judicial seizure
of all or substantially all of Tenant's assets or Tenant's leasehold of
the Premises, if such attachment or other seizure remains undismissed or
undischarged for a period of fifteen (15) days after the levy thereof.
(8) INSOLVENCY. The admission by Tenant in writing of its inability
to pay its debts as they become due.
B. REMEDIES UPON DEFAULT.
(1) TERMINATION. In the event of the occurrence of any event of
default, Landlord shall have the right to give a written termination
notice to Tenant, and on the date specified in such notice, Tenant's
right to possession shall terminate, and this Lease shall terminate
unless on or before such date all Rent in arrears and all costs and
expenses incurred by or on behalf of Landlord hereunder shall have been
paid by Tenant and all other events of default of this Lease by Tenant
at the time existing shall have been fully remedied to the satisfaction
of Landlord. At any time after such termination, Landlord may recover
possession of the Premises or any part thereof and expel and remove
therefrom Tenant and any other person occupying the same, including any
subtenant or subtenants notwithstanding Landlord's consent to any
sublease, by any lawful means, and again repossess and enjoy the
Premises without prejudice to any of the remedies that Landlord may have
under this Lease, or at law or equity by any reason of Tenant's default
or of such termination. Landlord hereby reserves the right, but shall
not have the obligation, to recognize the continued possession of any
subtenant. The delivery or surrender to Landlord by or on behalf of
Tenant of keys, entry codes, or other means to bypass security at the
Premises shall not terminate this Lease.
(2) CONTINUATION AFTER DEFAULT. Even though an event of default may
have occurred, this Lease shall continue in effect for so long as
Landlord does not terminate Tenant's right to possession under Paragraph
26.B.(1) hereof, and Landlord may enforce all of Landlord's rights and
remedies under this Lease and at law or in equity, including without
limitation, the right to recover Rent as it becomes due, and Landlord,
without terminating this Lease, may exercise all of the rights and
remedies of a landlord under Section 1951.4 of the Civil Code of the
State of California or any successor code section. Acts of maintenance,
preservation or efforts to lease the Premises or the appointment of a
receiver under application of Landlord to protect Landlord's interest
under this Lease or other entry by Landlord upon the Premises shall not
constitute an election to terminate Tenant's right to possession.
(3) INCREASED SECURITY DEPOSIT. If Tenant is in default under
Paragraph 26.A.(2) hereof and such default remains uncured for ten (10)
days after such occurrence or such default occurs more than three times
in any twelve (12) month period, Landlord may require that Tenant
increase the Security Deposit to the amount of three times the current
month's Rent at the time of the most recent default.
C. DAMAGES AFTER DEFAULT. Should Landlord terminate this Lease pursuant to
the provisions of Paragraph 26.B.(1) hereof, Landlord shall have the rights and
remedies of a Landlord provided by Section 1951.2 of the Civil Code of the State
of California, or any successor code sections. Upon such termination, in
addition to any other rights and remedies to which Landlord may be entitled
under applicable law or at equity, Landlord shall be entitled to recover from
Tenant: (1) the worth at the time of award of the unpaid Rent and other amounts
which has been earned at the time of termination, (2) the worth at the time of
award of the amount by which the unpaid Rent and other amounts that would have
been earned after the date of termination until the time of award exceeds the
amount of such Rent loss that Tenant proves could have been reasonably avoided;
(3) the worth at the time of award of the amount by which the unpaid Rent and
other amounts for the balance of the Term after the time of award exceeds the
amount of such Rent loss that the Tenant proves could be reasonably avoided; and
(4) any other amount and court costs necessary to compensate Landlord for all
detriment proximately caused by Tenant's failure to perform Tenant's obligations
under this Lease or which, in the ordinary course of things, would be likely to
result therefrom. The "worth at the time of award" as used in (1) and (2) above
shall be computed at the Applicable Interest Rate (defined below). The "worth at
the time of award" as used in (3) above shall be computed by discounting such
amount at the Federal Discount Rate of the Federal Reserve Bank of San Francisco
at the time of award plus one percent (1%).
D. LATE CHARGE. In addition to its other remedies, Landlord shall have the
right without notice or demand to add to the amount of any payment required to
be made by Tenant hereunder, and which is not paid and received by Landlord on
or before the fifth business day of each calendar month, an amount equal to (i)
two and one-half percent (2.5%) for the first late payment during any calendar
year, and (ii) five percent (5%) for the second and subsequent late payment
during any calendar year of the delinquency for each month or portion thereof
that the delinquency remains outstanding to compensate Landlord for the loss of
the use of the amount not paid and the administrative costs caused by the
delinquency, the parties agreeing that Tenant's damage by virtue of such
delinquencies would be extremely difficult and impracticable to compute and the
amount stated herein represents a reasonably estimate thereof, provided,
however, that on one (1) occasion during any calendar year of the Term, Landlord
shall give Tenant written notice of such late payment and Tenant shall have a
period of five (5) calendar days thereafter in which to make such payment before
any late charge shall be assessed. Any waiver by Landlord of any late charges or
failure to claim the same shall not constitute a waiver of other late charges or
any other remedies available to Landlord.
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E. INTEREST. Interest shall accrue on all sums not paid when due
hereunder at the lesser of fourteen percent (14%) per annum or the maximum
interest rate allowed by law ("Applicable Interest Rate") from the due date
until paid.
F. REMEDIES CUMULATIVE. All rights, privileges and elections or remedies
of the parties are cumulative and not alternative, to the extent permitted by
law and except as otherwise provided herein.
G. LANDLORD'S DEFAULT. Landlord shall not be in default hereunder unless
Landlord fails to perform any material obligation required of Landlord under the
terms of this Lease within a reasonable time, but in no event later than sixty
(60) days after written notice by Tenant to Landlord, subject to Paragraph 35 of
this Lease, specifying the nature of Landlord's failure to perform. If, however,
the nature of Landlord's obligation is such that more than sixty (60) days are
reasonably required for performance, then Landlord shall not be in default
hereunder if Landlord commences performance within such sixty (60) day period,
subject to Paragraph 35 of this Lease, and thereafter diligently prosecutes such
cure to completion. If Landlord at the expiration of such notice and cure
periods has failed to cure such default, then, subject to the exculpatory
provisions of this Paragraph 26, Tenant may pursue any of its legal or equitable
remedies, but Tenant shall have no right to otherwise terminate this Lease.
Notwithstanding the foregoing, nothing contained in this Paragraph 26.G. shall
be deemed to expand Tenant's remedies under circumstances where particular
provisions of this Lease expressly provide for an available remedy and where
such available remedies are so set forth they shall be deemed Tenant's exclusive
remedy.
27. LIENS
Tenant shall at all times keep the Premises and the Project free from liens
arising out of or related to work or services performed, materials or supplies
furnished or obligations incurred by or on behalf of Tenant or in connection
with work made, suffered or done by or on behalf of Tenant in or on the Premises
or Project. If Tenant shall not, within ten (10) days following the imposition
of any such lien, cause the same to be released of record by payment or posting
of a proper bond, Landlord shall have, in addition to all other remedies
provided herein and by law, the right, but not the obligation, to cause the same
to be released by such means as Landlord shall deem proper, including payment of
the claim giving rise to such lien. All sums paid by Landlord on behalf of
Tenant and all expenses incurred by Landlord in connection therefor shall be
payable to Landlord by Tenant on demand with interest at the Applicable Interest
Rate as Additional Rent. Landlord shall have the right at all times to post and
keep posted on the Premises any notices permitted or required by law, or which
Landlord shall deem proper, for the protection of Landlord, the Premises, the
Project and any other party having an interest therein, from mechanics' and
materialmen's liens, and Tenant shall give Landlord not less than ten (10)
business days prior written notice of the commencement of any work in the
Premises or Project which could lawfully give rise to a claim for mechanics' or
materialmen's liens to permit Landlord to post and record a timely notice of
non-responsibility, as Landlord may elect to proceed or as the law may from time
to time provide, for which purpose, if Landlord shall so determine, Landlord may
enter the Premises. Tenant shall not remove any such notice posted by Landlord
without Landlord's consent, and in any event not before completion of the work
which could lawfully give rise to a claim for mechanics' or materialmen's liens.
28. SUBSTITUTION
A.
29. TRANSFERS BY LANDLORD
In the event of a sale or conveyance by Landlord of the Building or a
foreclosure by any creditor of Landlord, the same shall operate to release
Landlord from any liability upon any of the covenants or conditions, express or
implied, herein contained in favor of Tenant, to the extent required to be
performed after the passing of title to Landlord's successor-in-interest. In
such event, Tenant agrees to look solely to the responsibility of the
successor-in-interest of Landlord under this Lease with respect to the
performance of the covenants and duties of "Landlord" to be performed after the
passing of title to Landlord's successor-in-interest provided such
successor-in-interest assumes in writing Landlord's duties, obligations or
liabilities hereunder. This Lease shall not be affected by any such sale and
Tenant agrees to attorn to the purchaser or assignee. Landlord's
successor(s)-in-interest shall not have liability to Tenant with respect to the
failure to perform any of the obligations of "Landlord," to the extent required
to be performed prior to the date such successor(s)-in-interest became the owner
of the Building.
30. RIGHT OF LANDLORD TO PERFORM TENANT'S COVENANTS
All covenants and agreements to be performed by Tenant under any of the terms of
this Lease shall be performed by Tenant at Tenant's sole cost and expense and
without any abatement of Rent, except as otherwise expressly set forth herein.
If Tenant shall fail to pay any sum of money, other than Base Rent, required to
be paid by Tenant hereunder or shall fail to perform any other act on Tenant's
part to be performed hereunder, including Tenant's obligations under Paragraph
11 hereof, and such failure shall continue for fifteen (15) days after notice
thereof by Landlord, in addition to the other rights and remedies of Landlord,
Landlord may make any such payment and perform any such act on Tenant's part. In
the case of an emergency, no prior notification by Landlord shall be required.
Landlord may take such actions without any obligation and without releasing
Tenant from any of Tenant's obligations. All sums so paid by Landlord and all
incidental costs incurred by Landlord and interest thereon at the Applicable
Interest Rate, from the date of payment by Landlord, shall be paid to Landlord
on demand as Additional Rent.
31. WAIVER
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 any subsequent breach of the same or any other term, covenant or
condition contained herein, or constitute a course of dealing contrary to the
expressed terms of this Lease. 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 accepted 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 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, based upon full knowledge of the circumstances.
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32. NOTICES
Each provision of this Lease or of any applicable governmental laws, ordinances,
regulations and other requirements with reference to sending, mailing, or
delivery of any notice or the making of any payment by Landlord or Tenant to the
other shall be deemed to be complied with when and if the following steps are
taken:
A. RENT. All Rent and other payments required to be made by Tenant to Landlord
hereunder shall be payable to Landlord at Landlord's Remittance Address set
forth in the Basic Lease Information, or at such other address as Landlord may
specify from time to time by written notice delivered in accordance herewith.
Tenant's obligation to pay Rent and any other amounts to Landlord under the
terms of this Lease shall not be deemed satisfied until such Rent and other
amounts have been actually received by Landlord.
B. OTHER. All notices, demands, consents and approvals which may or are
required to be given by either party to the other hereunder shall be in writing
and either personally delivered, sent by commercial overnight courier, mailed,
certified or registered, postage prepaid or sent by facsimile with confirmed
receipt (and with an original sent by commercial overnight courier), and in each
case addressed to the party to be notified at the Notice Address for such party
as specified in the Basic Lease Information or to such other place as the party
to be notified may from time to time designate by at least fifteen (15) days
notice to the notifying party. Notices shall be deemed served upon receipt or
refusal to accept delivery.
C. REQUIRED NOTICES. Tenant shall immediately notify Landlord in writing of
any notice of a violation or a potential or alleged violation of any Regulation
that relates to the Premises or the Project, or of any inquiry, investigation,
enforcement or other action that is instituted or threatened by any governmental
or regulatory agency against Tenant or any other occupant of the Premises, or
any claim that is instituted or threatened by any third party that relates to
the Premises or the Project.
33. ATTORNEYS' FEES
If Landlord places the enforcement of this Lease, or any part thereof, or the
collection of any Rent due, or to become due hereunder, or recovery of
possession of the Premises in the hands of an attorney, Tenant shall pay to
Landlord, upon demand, Landlord's reasonable attorneys' fees and court costs,
whether incurred at trial, appeal or review. In any action which Landlord or
Tenant brings to enforce its respective rights hereunder, the unsuccessful party
shall pay all costs incurred by the prevailing party including reasonable
attorneys' fees, to be fixed by the court, and said costs and attorneys' fees
shall be a part of the judgment in said action.
34. SUCCESSORS AND ASSIGNS
This Lease shall be binding upon and inure to the benefit of Landlord, its
successors and assigns, and shall be binding upon and inure to the benefit of
Tenant, its successors, and to the extent assignment is approved by Landlord as
provided hereunder, Tenant's assigns.
35. FORCE MAJEURE
If performance by a party of any portion of this Lease is made impossible by any
prevention, delay, or stoppage caused by strikes, lockouts, labor disputes, acts
of God, inability to obtain services, labor, or materials or reasonable
substitutes for those items, government actions, civil commotions, fire or other
casualty, or other causes beyond the reasonable control of the party obligated
to perform, performance by that party for a period equal to the period of that
prevention, delay, or stoppage is excused. Tenant's obligation to pay Rent,
however, is not excused by this Paragraph 35.
36. SURRENDER OF PREMISES
Tenant shall, upon expiration or sooner termination of this Lease, surrender the
Premises to Landlord in the same condition as existed on the date Tenant
originally took possession thereof (reasonable wear and tear, casualty damage
and acts of God excepted), including, but not limited to, all holes in walls
repaired, all HVAC equipment in operating order and in good repair, and all
floors cleaned, waxed, and free of any Tenant-introduced marking or painting,
all to the reasonable satisfaction of Landlord. Tenant shall remove all of its
debris from the Project. At or before the time of surrender, Tenant shall comply
with the terms of Paragraph 12.A. hereof with respect to Alterations to the
Premises and all other matters addressed in such Paragraph. If the Premises are
not so surrendered at the expiration or sooner termination of this Lease, the
provisions of Paragraph 25 hereof shall apply. All keys to the Premises or any
part thereof shall be surrendered to Landlord upon expiration or sooner
termination of the Term. Tenant shall meet with Landlord for a joint inspection
of the Premises fifteen (15) days prior to vacating, but nothing contained
herein shall be construed as an extension of the Term or as a consent by
Landlord to any holding over by Tenant. In the event of Tenant's failure to give
such notice or participate in such joint inspection, Landlord's inspection at or
after Tenant's vacating the Premises shall conclusively be deemed correct for
purposes of determining Tenant's responsibility for repairs and restoration. Any
delay caused by Tenant's failure to carry out its obligations under this
Paragraph 36 beyond the term hereof, shall constitute unlawful and illegal
possession of Premises under Paragraph 25 hereof.
37. MISCELLANEOUS
A. GENERAL. The term "Tenant" or any pronoun used in place thereof shall
indicate and include the masculine or feminine, the singular or plural number,
individuals, firms or corporations, and their respective successors, executors,
administrators and permitted assigns, according to the context hereof.
B. TIME. Time is of the essence regarding this Lease and all of its
provisions.
C. CHOICE OF LAW. This Lease shall in all respects be governed by the laws of
the State of California.
D. ENTIRE AGREEMENT. This Lease, together with its Exhibits, addenda and
attachments and the Basic Lease Information, 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, addenda and
attachments and the Basic Lease Information.
E. MODIFICATION. This Lease may not be modified except by a written instrument
signed by the parties hereto. Tenant accepts the area of the Premises as
specified in the Basic Lease Information as the approximate area of the Premises
for all purposes under this Lease, and acknowledges and agrees that no other
definition of the area (rentable, usable or otherwise) of the Premises shall
apply. Tenant shall in no event be entitled to a recalculation of the square
footage of the Premises, rentable, usable or otherwise, and no recalculation, if
made,
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irrespective of its purpose, shall reduce Tenant's obligations under this Lease
in any manner, including without limitation the amount of Base Rent payable by
Tenant or Tenant's Proportionate Share of the Building and of the Project.
F. SEVERABILITY. If, for any reason whatsoever, any of the provisions hereof
shall be unenforceable or ineffective, all of the other provisions shall be and
remain in full force and effect.
G. RECORDATION. Tenant shall have the right to record a mutually acceptable
short form memorandum hereof, provided that Tenant agrees upon the expiration or
earlier termination of this Lease to execute and deliver to Landlord a quitclaim
deed terminating said short form memorandum.
H. EXAMINATION OF LEASE. Submission of this Lease to Tenant does not
constitute an option or offer to lease and this Lease is not effective otherwise
until execution and delivery by both Landlord and Tenant.
I. ACCORD AND SATISFACTION. No payment by Tenant of a lesser amount than the
total Rent due nor any endorsement on any check or letter accompanying any check
or payment of Rent shall be deemed an accord and satisfaction of full payment of
Rent, and Landlord may accept such payment without prejudice to Landlord's right
to recover the balance of such Rent or to pursue other remedies. All offers by
or on behalf of Tenant of accord and satisfaction are hereby rejected in
advance.
J. EASEMENTS. Landlord may grant easements on the Project and dedicate for
public use portions of the Project without Tenant's consent; provided that no
such grant or dedication shall materially interfere with Tenant's Permitted Use
of the Premises. Upon Landlord's request, Tenant shall execute, acknowledge and
deliver to Landlord documents, instruments, maps and plats reasonably necessary
to effectuate Tenant's covenants hereunder.
K. DRAFTING AND DETERMINATION PRESUMPTION. The parties acknowledge that this
Lease has been agreed to by both the parties, that both Landlord and Tenant have
consulted with attorneys with respect to the terms of this Lease and that no
presumption shall be created against Landlord because Landlord drafted this
Lease. Except as otherwise specifically set forth in this Lease, with respect to
any consent, determination or estimation of Landlord required or allowed in this
Lease or requested of Landlord, Landlord's consent, determination or estimation
shall be given or made solely by Landlord in Landlord's good faith and
reasonable opinion.
L. EXHIBITS. The Basic Lease Information, and the Exhibits, addenda and
attachments attached hereto are hereby incorporated herein by this reference and
made a part of this Lease as though fully set forth herein.
M. NO LIGHT, AIR OR VIEW EASEMENT. Any diminution or shutting off of light,
air or view by any structure which may be erected on lands adjacent to or in the
vicinity of the Building shall in no way affect this Lease or impose any
liability on Landlord.
N. NO THIRD PARTY BENEFIT. This Lease is a contract between Landlord and
Tenant and nothing herein is intended to create any third party benefit.
O. QUIET ENJOYMENT. Upon payment by Tenant of the Rent, and upon the
observance and performance of all of the other covenants, terms and conditions
on Tenant's part to be observed and performed, Tenant shall peaceably and
quietly hold and enjoy the Premises for the term hereby demised without
hindrance or interruption by Landlord or any other person or persons lawfully or
equitably claiming by, through or under Landlord, subject, nevertheless, to all
of the other terms and conditions of this Lease. Landlord shall not be liable
for any hindrance, interruption, interference or disturbance by other tenants or
third persons, nor shall Tenant be released from any obligations under this
Lease because of such hindrance, interruption, interference or disturbance.
P. COUNTERPARTS. This Lease may be executed in any number of counterparts,
each of which shall be deemed an original.
Q. MULTIPLE PARTIES. If more than one person or entity is named herein as
Tenant, such multiple parties shall have joint and several responsibility to
comply with the terms of this Lease.
R. PRORATIONS. Any Rent or other amounts payable to Landlord by Tenant
hereunder for any fractional month shall be prorated based on a month of 30
days. As used herein, the term "fiscal year" shall mean the calendar year or
such other fiscal year as Landlord may deem appropriate.
S. OPERATING POLICIES. During the Term of this Lease, Landlord shall operate
and maintain the Building in a manner generally consistent with other comparable
first-class business park projects in San Diego County.
T. LANDLORD'S COVENANT. In connection with the exercise by Landlord of the
rights and reservations granted or afforded by this Lease, Landlord hereby
covenants and agrees to:
(1) use its reasonable good faith efforts to avoid taking any actions
(excepting any actions to comply with Regulations) which may
materially adversely affect Tenant's use of or normal business
operations within the Premises;
(2) use its reasonable good faith efforts to provide Tenant with prior
written notice of any such actions by Landlord (excepting any actions
to comply with Regulations) which may materially adversely affect
Tenant's use of or normal business operations within the Premises and
at least forty-eight (48) hours prior written notice of any scheduled
work to be performed by Landlord which may materially adversely
interfere with Tenant's normal business operations; it being
understood, however, that the giving of such prior written notice may
be impossible or impractical under emergency circumstances;
(3) in a manner consistent with the prudent and efficient operation of the
Project, to reasonably coordinate and reasonably cooperate with Tenant
to reasonably minimize any cessation or degradation of Tenant's use of
or normal business operations within the Premises; and
(4) use its reasonable good faith efforts to perform all work in an
expeditious and workmanlike manner and to restore access to the
Premises and the availability of Building services as soon as
reasonably practicable.
Notwithstanding anything contained in this Paragraph 37.T. to the contrary, in
no event shall Landlord be liable or responsible for any consequential or
exemplary damages.
U. CONSENT/DUTY TO ACT REASONABLY. Except for the provisions of this Lease
which expressly grant a party the right to act in its sole discretion, whereupon
in each such case, Landlord's and Tenant's duty is to act in good faith (but
shall not otherwise be subject to a
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"reasonableness" standard) (i) any time the consent of Landlord or Tenant is
required, such consent shall not be unreasonably withheld, delayed or
conditioned, and (ii) whenever this Lease grants Landlord or Tenant the right
to take action, exercise discretion, establish rules and regulations or make
allocations or other determinations, Landlord and Tenant shall act reasonably
and in good faith and take no action which might result in the frustration of
the other party's reasonable expectations concerning the benefits to be enjoyed
under this Lease.
V. YEAR 2000 COMPLIANCE. Landlord hereby represents, warrants and covenants
to the best of its knowledge to Tenant that all of the Project's mechanical,
electrical, elevator, fire and life safety systems (the "Building Systems")
will operate on and after January 1, 2000 without normal operations being
impaired by dates in and after the year 2000. At Tenant's request, Landlord
shall provide Tenant with reasonably satisfactory evidence of the Building
Systems' compliance with the foregoing.
38. ADDITIONAL PROVISIONS
A. BASE RENT. The monthly Base Rent during the initial Term shall be as
follows:
Period Monthly Base Rent
------ -----------------
December 1, 1998 - January 31, 1999
February 1, 1999 - March 31, 1999
April 1, 1999 - March 31, 2000
April 1, 2000 - March 31, 2001
April 1, 2001 - March 31, 2002
April 1, 2002 - March 31, 2003
April 1, 2003 - March 31, 2004
April 1, 2004 - March 31, 2005
April 1, 2005 - March 31, 2006
April 1, 2006 - March 31, 2007
April 1, 2007 - March 31, 2008
April 1, 2008 - March 31, 2009
B. RENEWAL OPTION. Provided Tenant is not, and has not been, in material
default of any of its obligations under this Lease or any other lease Tenant may
have in the Project, after expiration of all applicable grace, notice and cure
periods, it shall have an option to renew this Lease for the Premises in "as is"
condition for two (2) five (5) year periods on the same terms and conditions as
set forth in this Lease except that the Base Rent of each option period shall be
the then prevailing fair market rental rate for comparable space of at least one
hundred thousand (100,000) square feet at comparable buildings within the
Eastgate Technology Park and University Towne Centre areas, as defined and
determined by Subparagraph 38B.(1) and/or 38B.(2) below. In no event will the
Base Rent for each option period be less than that of the previous period.
Tenant shall give Landlord written notice to exercise option no earlier than
eighteen (18) months but not less than fifteen (15) months prior to the
expiration of the Term, or extended Term.
Notwithstanding anything to the contrary herein contained, Tenant's right
to extend the Term by exercise of the foregoing option shall be conditioned
upon the following: (a) at the time of the exercise of the option, and at the
time of the commencement of the extended Term, Tenant shall be in possession of
and occupying at least seventy-five percent (75%) of the Premises and at least
seventy-five percent (75%) of all other premises under any other lease Tenant
may have in the Project, for the conduct of its business therein and the same
shall not be occupied by any assignee, subtenant, or licensee; and (b) the
notice of exercise shall constitute a representation, by commencement of the
extended Term, that Tenant does not intend to seek to assign or sublet more
than twenty-five percent (25%) of the Premises, or assign or sublet more than
twenty-five percent (25%) of any other premises under any other leases Tenant
may have in the Project.
(1) "Fair Market Rental" shall mean the rate being charged to tenants recently
renewing existing leases for comparable space in buildings within the Eastgate
Technology Park and University Towne Centre areas, taking into consideration all
relevant factors, including but not limited to, the following: size, location,
floor level, proposed term of the lease, expense stops, extent of building
services to be provided, and the time the rental rate under consideration is to
become effective. Fair Market Rental as of the commencement of each option
period shall be determined by Landlord with written notice (the "Notice") given
to Tenant not later than thirty (30) days after the receipt of the option
notice, subject to Tenant's right to arbitration as provided in Subparagraph
38.B(2) below. Failure on the part of Tenant to demand arbitration within thirty
(30) days after receipt of the Notice from Landlord shall bind Tenant to the
Fair Market Rental as determined by Landlord. Notwithstanding anything to
contrary herein, Tenant's right to arbitrate shall conclude no later than ninety
(90) days after the date of the Notice.
(2) If Tenant disputes the amount claimed by Landlord as Fair Market Rental,
Tenant may require that Landlord submit the dispute to arbitration. The
arbitration shall be conducted and determined in San Diego, California, in
accordance with the then prevailing rules of the American Arbitration
Association or its successor for arbitration of commercial disputes, except
that the procedures mandated by such rules shall be modified as follows:
(a) Tenant shall make demand for arbitration in writing within thirty (30)
days after service of the Notice, specifying therein the name and address of
the person to act as the arbitrator on Tenant's behalf. The arbitrator shall be
M.A.I. designated and independent real estate appraiser with at least ten (10)
years full-time commercial appraisal experience who is familiar with the Fair
Market Rental of first-class business park space in San Diego County. (In the
event M.A.I. appraisers are no longer available, a comparable designation with
at least ten (10) years experience with commercial property appraisal in San
Diego County will be acceptable.) Failure on the part of Tenant to make the
timely and proper demand for such arbitration shall constitute a waiver of the
right thereto. Within ten (10) business days after the service of the demand
for arbitration, Landlord shall give notice to Tenant specifying the name and
address of the person designated by Landlord to act as arbitrator on its
behalf, which arbitrator shall be
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similarly qualified. If Landlord fails to notify Tenant of the appointment
of its arbitrator, within or by the time specified, then the arbitrator
appointed by Tenant shall be the arbitrator to determine the Fair Market
Rental for the Premises.
(b) If two arbitrators are chosen pursuant to Subparagraph 38.B.(2)(a)
above, the arbitrators so chosen shall meet within ten (10) business days
after the second arbitrator is appointed and shall appoint a third
arbitrator, who shall be a competent and impartial person with
qualifications similar to those required of the first two arbitrators
pursuant to Subparagraph 38.B(2)(a) above. If they are unable to agree
upon such appointment within five (5) business days after expiration of
such ten (10) day period, the third arbitrator shall be selected by the
parties themselves. If the parties do not agree on the third arbitrator
within five (5) business days after expiration of the foregoing five (5)
business day period, then either party, on behalf of both, may request
appointment of such a qualified arbitrator by (i) the majority of board
members of the San Diego County Chapter of M.A.I. appraisers, or (ii) the
chief arbitrator of the San Diego County Chapter of the American
Arbitration Association. The three arbitrators shall decide the dispute,
if it has not been previously resolved, by following the procedures set
forth in Subparagraph 38.B(2)(c) below. Each party shall pay the fees and
expenses of its respective arbitrator and both shall share the fees and
expenses of the third arbitrator. Attorney's fees and expenses of counsel
and of witnesses or other experts for the respective parties shall be paid
by the respective party engaging such counsel or calling such witnesses or
other experts.
(c) The Fair Market Rental shall be fixed by the three arbitrators in
accordance with the following procedures. Each of the arbitrators
selected by the parties shall state in writing, his or her determination
of the Fair Market Rental supported by the reasons therefor and shall make
counterpart copies for each of the other arbitrators. The arbitrators
shall arrange for a simultaneous exchange of such proposed resolutions
within ten (10) business days after appointment of the third arbitrator.
If either arbitrator fails to deliver to the other arbitrators his or her
determination within such ten (10) business day period, then the
determination of the other arbitrator shall be final and binding upon the
parties. The role of the third arbitrator shall be to select which of the
two proposed resolutions most closely approximates his or her
determination of Fair Market Rental. The third arbitrator shall have no
right to propose a middle ground or any modification of either of the two
proposed resolutions. The resolution he or she chooses as the most closely
approximating his or her determination of the Fair Market Rental shall
constitute the decision of the arbitrators and shall be final and binding
upon the parties. If either party fails to pay it share of the fees of the
third arbitrator within thirty (30) days after receipt of an invoice, or
fails to execute and deliver any documents reasonably required by the
third arbitrator within thirty (30) days after receipt thereof, then the
Fair Market Rental shall be determined solely by the arbitrator selected
by the other party.
(d) In the event of a failure, refusal or inability of any arbitrator to
act, his or her successor shall be appointed by him or her, but in the
case of the third arbitrator, his or her successor shall be appointed in
the same manner as that set forth herein with respect to the appointment
of the original third arbitrator. The arbitrators shall attempt to decide
the issue within ten (10) business days after the appointment of the third
arbitrator. Any decision in which the arbitrator appointed by Landlord and
the arbitrator appointed by Tenant concur shall be binding and conclusive
upon the parties, except that such arbitrators shall not attempt by
themselves to mutually ascertain the Fair Market Rental and any such
determination, in a manner other than that provided for in Subparagraph
38.B(2)(c) hereof, shall not be binding on the parties.
C. ALTERNATIVE TERM EXPIRATION DATE. Subject to a certain lease dated
September 2, 1998 for approximately 150,000 square feet within Phase B of
the Project which adjoins the Premises ("Phase B Premises") and Tenant
taking full occupancy and commencing the payment of Rent, Tenant shall
have the right to alter the Term Expiration Date upon written notice to
Landlord no earlier than twenty-four (24) months and not less than
eighteen (18) months prior to the scheduled Term Expiration Date. This
alteration of the Premises' Term Expiration Date shall consist of
exchanging the term expiration date of the Phase B Premises with the Term
Expiration Date for the Premises. In this event, monthly Base Rent for the
period beyond the scheduled Term Expiration Date and through the new Term
Expiration Date, as modified by the immediately preceding sentence, shall
be the then prevailing fair market rental rate for comparable space of at
least one hundred thousand (100,000) square feet at comparable buildings
within the Eastgate Technology Park and University Towne Centre areas as
reasonably determined by Landlord. In no event will the Base Rent be less
than that of the previous period. Landlord shall submit to Tenant the then
prevailing market rate by a written notice given to Tenant not later than
thirty (30) days after the receipt of the Tenant's notice to alter the
Term Expiration Date. Tenant shall have fifteen (15) days to accept said
rental rate or Tenant's right to alter the Term Expiration Date hereunder
shall terminate.
D. PREPAID RENT. Upon execution of this Lease, Tenant shall pay the first
and second month's Base Rent for the entire Premises, totaling Three
Hundred Seventy-one Thousand Seven Hundred Sixty Dollars $371,760.00
("Pre-paid Rent"). Landlord shall apply the Pre-paid Rent to the Base Rent
for the Premises as they become due during the initial months of the Term.
E. FIRST RIGHT OF OFFER TO LEASE. Tenant is granted a first right of offer
to lease Building 2 of Phase A of the Project located at 0000 Xxxxxxxx
Xxxx, which is approximately sixty thousand nine hundred 60,900 rentable
square feet, ("Building 2") when it comes available (termination of the
Building 2 tenant's lease obligation, right and interest to Building 2) at
the end of the initial term of such lease, or at the end of any option
period for Building 2, if the existing tenant thereof elects to extend the
term of such lease, on the following terms: Before Landlord enters into a
lease for Building 2, and provided Tenant is not then in default under
this Lease, or any other lease Tenant may have in the Project, after any
applicable grace, notice and cure periods, and has not been in material
default of any terms or conditions of this Lease, or any other lease
Tenant may have in the Project, and provided Tenant has not assigned or
sublet more than twenty-five percent (25%) of its Premises, or any other
premises under any other leases Tenant may have in the Project. Landlord
will so notify Tenant in writing and propose a rent and other lease terms
and conditions ("Landlord's Notice"). Tenant shall have five (5) days
after notification to notify Landlord in writing of its intent to pursue
negotiations. Thereafter, Landlord and Tenant shall negotiate in good
faith in an attempt to reach an agreement on the terms of the lease for
Building 2. If Tenant exercises this first right of offer in the manner
prescribed, Tenant shall immediately deliver to Landlord payment for the
first month's rent for Building 2 (in the same manner as provided for in
this Lease), and the lease for Building 2 will be consummated without
delay in accordance with the terms and conditions set forth in Landlord's
Notice. If Landlord and Tenant are unable to agree in writing within ten
(10) days after Landlord's notice to Tenant, Landlord may lease Building 2
to another tenant. Thereafter, Tenant's first right of offer to lease
Building 2 shall terminate, and Landlord shall be relieved from any
further obligations to lease Building 2 to Tenant.
F. TERMINATION RIGHTS. Notwithstanding anything to the contrary contained in
this Lease, if Tenant is notified by Landlord, or Tenant becomes aware and
notifies Landlord of the occurrence of a Trigger Event (defined below), and
such Trigger Event materially adversely affects the operation of Tenant's
normal business in, use of, prevents Tenant's reasonable access to the
Premises, and such Trigger Event continues for such a time greater than
twelve (12) months (the "Maximum Restoration Period"), then Tenant may
elect to exercise an ongoing right to terminate this Lease, upon thirty
(30) days' prior written notice sent to Landlord within a period of sixty
(60) days following the later of the occurrence of the Trigger Event or
Tenant's receipt (or giving) of notice thereof (such notice, in the case
of a Trigger Event described in subparagraphs (1) and (2) below, to
contain a reasonably detailed description of the scope of the Trigger
Event). Notwithstanding the forgoing, Tenant shall not have a right to so
terminate this Lease if Landlord takes action within said sixty (60) day
period (but no later than the expiration of the thirty (30) day period)
which will result in the restoration of the Tenant's normal
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business operations in, Tenant's reasonable access to, and Tenant's use of the
Premises in a condition suitable for the efficient conduct of Tenant's normal
business (including, without limitation, utilities required or necessary for
the operation of Tenant's normal business in the Premises) prior to the end of
the Maximum Restoration Period.
As used herein, the term "TRIGGER EVENT" shall mean and refer to:
(1) continuous interruption of electrical, water, telecommunication,
telephone, gas, sewer or other essential utility services used or required
in connection with Tenant's occupancy of the Premises or interruption of
Tenant's access to the Premises;
(2) discovery of Hazardous Materials or any other material
environmental condition in, on or around the land, Building, Project,
common areas or Premises, which, taking into account applicable
environmental laws, either is unlawful or represents a significant health
risk to occupants of the Premises, excepting those Hazardous Materials
either:
(a) used by Tenant's contractor in the construction of Alterations
in the Premises; or
(b) generated by Tenant or brought onto or into the Project,
Building, Premises or common areas, by Tenant as more
particularly described in Paragraph 4.D. of this Lease.
G. ROOFTOP COMMUNICATIONS EQUIPMENT. During the Term of this Lease (and any
renewal or extensions thereof), Tenant shall have the right, without payment of
any fee or charge therefor, to install and operate, for Tenant's personal use
only, one (1) microwave transmitter-receiver or satellite dish (the "Satellite
Dish") on one Building rooftop (the "Designated Building") of a weight, height,
and width reasonably acceptable to Landlord. Landlord shall not withhold consent
to the installation of a Satellite Dish reasonably comparable to those
installed within the Project. Tenant's rights pursuant to this Paragraph 38.G
are subject to the following:
(1) All costs for the installation of the Satellite Dish including, but
not limited to, electrical equipment and connections, mounting fixtures,
engineering studies, inspections, permits, etc. will be at the Tenant's
sole cost, expense and responsibility.
(2) Prior to installing the Satellite Dish, Tenant must notify Landlord
in writing, specifying the type, character, size, location, amount of
space required, installation details and electrical requirements. Landlord
in its reasonable discretion shall approve of said specifications of the
Satellite Dish within ten (10) days following receipt of Tenant's written
request to install a Satellite Dish on the roof of the Designated
Building.
(3) Tenant shall pay any federal, state and local taxes applicable to the
installation and use of the Satellite Dish and Tenant shall procure,
maintain and pay for and obtain all fees, permits and governmental agency
licenses necessary in connection with all installation, maintenance and
operation of the Satellite Dish; provided, however, that Landlord shall
reasonably cooperate with the efforts of Tenant in connection with any
governmental application or filing required thereby. Tenant shall reimburse
Landlord for any actual costs Landlord may incur to assist Tenant as
detailed in the preceding sentence.
(4) Tenant shall be permitted, at its sole cost, expense and
responsibility, but without separate charge other than any charges
permitted to be imposed by Landlord under Paragraph 7, to install, modify,
alter, repair , maintain, operate and replace one (1) existing chaseway of
the Designated Building in an area in the core of the Designated Building,
one (1) non-dedicated conduit for its cabling use (and the use of the
Satellite Dish and cable contained therein connecting to such Building's
roof for operation of Tenant's Satellite Dish). All installations required
in connection with the Satellite Dish shall be made by means of conduits,
wires or cables that will pas through existing openings in the walls or
roof decks of the Designated Building, and all cable and wires located on
the roof of the Designated Building used in connection with Satellite Dish
shall be covered by rust-proof conduits and attachments. In no event shall
any of Tenant's installations be made through the roof surface or membrane
of the Designated Building without the prior written consent of Landlord,
which consent may be withheld in Landlord's sole and absolute discretion.
The installation of the Satellite Dish shall be subject to Landlord's
review and approval and shall conform to the engineering standards
commonly used for installing similar satellite dishes within the Project.
(5) Tenant, at its sole cost, expense, and responsibility, will comply
with all present and future laws, and with any reasonable requirements of
any applicable fire rating bureau relating to the maintenance, use,
installation and operation of the Satellite Dish. Tenant shall install,
maintain and operate all of its equipment used in connection with the
Satellite Dish in conformity with all Regulations of all governmental
agencies having jurisdiction over the installation, use and operation of
the Satellite dish, including, without limitation, the Federal Aviation
Administration and the Federal Communications Commission; provided,
however, that if compliance with such laws or regulations would require a
change in the size, configuration or location of the Satellite Dish, such
changes shall be subject to Landlord's prior written consent.
(6) Prior to the expiration or earlier termination of the Term of this
Lease, or any extended Term, Tenant shall remove the Satellite Dish and
all wires and cables used in connection with the Satellite Dish, and shall
restore and repair all damage to the Designated Building occasioned by the
installation, maintenance or removal of the Satellite Dish. If Tenant
fails to timely complete such removal, restoration and repair, all sums
incurred by Landlord to complete such work shall be paid by Tenant to
Landlord upon demand.
(7) Landlord makes no representations or warranties whatsoever with
respect to the fitness or suitability of the Designated Building for the
installation, maintenance and operation of the Satellite Dish, including,
without limitation, with respect to the quality and clarity or any
receptions and transmissions to or from the Satellite Dish and the
presence of any interference with such signals, whether emanating from the
Designated Building or otherwise. Landlord shall permit Tenant to have
reasonable access to such other parts of the Designated Building as are
open to the public or for which access is otherwise reasonably necessary
in order to install, maintain and operate the Satellite Dish.
Notwithstanding anything set forth in this Paragraph 38.G. to the contrary,
if Landlord reasonably determines that the installation of the Satellite
Dish will be detrimental to the design or structural soundness of the
Designated Building or will create risk of injury or damage to persons or
property, Tenant shall not be permitted to install said Satellite Dish.
(8) Tenant must notify Landlord in writing to the scheduled date Tenant
proposes to install the Satellite Dish on the roof of the Designated
Building in order to make arrangements for the movement of materials
needed in connection with the Installation of the Satellite Dish.
(9) Tenant shall provide at its sole cost, expense and responsibility,
adequate maintenance personnel in order to ensure the safe operation of the
Satellite Dish. In addition, Tenant shall install, maintain and operate all
of its equipment used in connection with the Satellite Dish in a fashion
and manner so as not to interfere with the use and operation of any: (a)
other televisions or radio equipment in the Designated Building; (b)
present or future electronic control system for any operating services or
the operation of elevators in any Building within the Project; (c) other
transmitting, receiving or master television, telecommunications or
microwave antenna equipment currently located on the roof of the Designated
Building or
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other buildings within the Project; or (d) any radio communication system
now used by Landlord and/or other tenants of the Project. In addition,
Tenant shall use its commercially reasonable efforts to ensure that Tenant
will not interfere with any equipment installed by Landlord and/or other
tenants of the Project in the future. Landlord shall use its commercially
reasonable efforts to ensure that Tenant's equipment will not be
unreasonably interfered with.
H. Emergency Generator. During the Term or extended Term of this Lease, upon
written approval by Landlord, which shall not be unreasonably withheld, delayed
or conditioned, Tenant shall have the right, at its sole cost, expense and
responsibility, in accordance with all applicable laws and in a location as
determined by Landlord, to install one (1) emergency electrical generator per
Building and all appurtenant equipment. The maintenance and operation of said
equipment shall be at Tenant's sole cost, expense and responsibility and subject
to Paragraph 11 of this Lease.
I. Measurement of the Premises. Within thirty (30) days after the date on which
Landlord's Base Building Work is substantially complete for Tenant Improvements
construction, but in no event later than the Term Commencement Date, Landlord
shall cause the Premises to be measured by a mutually acceptable and
professionally qualified architect (other than Landlord's or Tenant's architect)
licensed in the state of California. The rentable square feet of the Premises
shall be based on a dripline measurement. If the rentable square footage of the
Premises is other than the stated rentable feet of the Premises in the Basic
Lease Information, the Base Rent shall correspondingly be adjusted, at the same
rate per square foot as set forth in the Basic Lease Information. Any
modification or adjustment to the rentable square feet of the Premises and any
other terms of the Lease must be made and agreed to in writing by the parties
within fifteen (15) days after Landlord's receipt of architect's measurement.
Failure on the part of the parties to agree within fifteen (15) days or any
dispute between Landlord and Tenant pertaining this Paragraph 38.I shall be
resolved by submitting to binding arbitration, conducted and determined in San
Diego County according to the prevailing rules of the American Arbitration
Association for arbitration of commercial disputes.
39. JURY TRIAL WAIVER
EACH PARTY HERETO (WHICH INCLUDES ANY ASSIGNEE, SUCCESSOR HEIR OR PERSONAL
REPRESENTATIVE OF A PARTY) SHALL NOT SEEK A JURY TRIAL, HEREBY WAIVES TRIAL BY
JURY, AND HEREBY FURTHER WAIVES ANY OBJECTION TO VENUE IN THE COUNTY IN WHICH
THE BUILDING IS LOCATED, AND AGREES AND CONSENTS TO PERSONAL JURISDICTION OF
THE COURTS OF THE STATE IN WHICH THE PROPERTY IS LOCATED, IN ANY ACTION OR
PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY HERETO AGAINST THE OTHER ON ANY
MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE
RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF THE PREMISES,
OR ANY CLAIM OF INJURY OR DAMAGE, OR THE ENFORCEMENT OF ANY REMEDY UNDER ANY
STATUTE, EMERGENCY OR OTHERWISE, WHETHER ANY OF THE FOREGOING IS BASED ON THIS
LEASE OR ON TORT LAW. EACH PARTY REPRESENTS THAT IT HAS HAD THE OPPORTUNITY TO
CONSULT WITH LEGAL COUNSEL CONCERNING THE EFFECT OF THIS PARAGRAPH 39. THE
PROVISIONS OF THE PARAGRAPH 39 SHALL SURVIVE THE EXPIRATION OR EARLIER
TERMINATION OF THIS LEASE.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day
and the year first above written.
LANDLORD
Xxxxxxx Properties, L.P.,
a California limited partnership
By: Xxxxxxx Properties, Inc.,
a Maryland corporation,
its general partner
By: /s/ XXXXXXX X. XXXXXX
--------------------------------
Xxxxxxx X. Xxxxxx
Its: Senior Vice President
Date: 9/2/98
-----------------------------------
TENANT
Franklin Resources, Inc., a Delaware corporation
By: /s/ XXXXXXX X. XxXXXXXXX
-------------------------------------
Xxxxxxx X. XxXxxxxxx
Its: Director of Corporate Services
Date: 9/2/98
-----------------------------------
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EXHIBIT A
INDUSTRIAL LEASE
RULES AND REGULATIONS
1. Driveways, sidewalks, halls, passages, exits, entrances, elevators,
escalators and stairways shall not be obstructed by tenants or used by
tenants for any purpose other than for ingress to and egress from their
respective premises. The driveways, sidewalks, halls, passages, exits,
entrances, elevators and stairways are not for the use of the general
public and Landlord shall in all cases retain the right to control and
prevent access thereto by all persons whose presence, in the judgment of
Landlord, shall be prejudicial to the safety, character, reputation and
interests of the Building, the Project and its tenants, provided that
nothing herein contained shall be construed to prevent such access to
persons with whom any tenant normally deals in the ordinary course of such
tenant's business unless such persons are engaged in illegal activities. No
tenant, and no employees or invitees of any tenant, shall go upon the roof
of any Building, except as authorized by Landlord.
2. No sign, placard, banner, picture, name, advertisement or notice, visible
from the exterior of the Premises or the Building or the common areas of
the Building shall be inscribed, painted, affixed, installed or otherwise
displayed by Tenant either on its Premises or any part of the Building or
Project without the prior written consent of Landlord in Landlord's sole
and absolute discretion. Landlord shall have the right to remove any such
sign, placard, banner, picture, name, advertisement, or notice without
notice to and at the expense of Tenant, which were installed or displayed
in violation of this rule. If Landlord shall have given such consent to
Tenant at any time, whether before or after the execution of Tenant's
Lease, such consent shall in no way operate as a waiver or release of any
of the provisions hereof or of the Lease, and shall be deemed to relate
only to the particular sign, placard, banner, picture, name, advertisement
or notice so consented to by Landlord and shall not be construed as
dispensing with the necessity of obtaining the specific written consent of
Landlord with respect to any other such sign, placard, banner, picture,
name, advertisement or notice. All approved signs or lettering on doors and
walls shall be printed, painted, affixed or inscribed at the expense of
Tenant by a person or vendor approved by Landlord and shall be removed by
Tenant at the time of vacancy at Tenant's expense.
3. The directory of the Building or Project will be provided exclusively for
the display of the name and location of tenants only.
4. No curtains, draperies, blinds, shutters, shades, screens or other
coverings, awnings, hangings or decorations shall be attached to, hung or
placed in, or used in connection with, any window or door on the Premises
without the prior consent of Landlord. In any event with the prior written
consent of Landlord, all such items shall be installed inboard of
Landlord's standard window covering and shall in no way be visible from the
exterior of the Building. All electrical ceiling fixtures hung in offices
or spaces along the perimeter of the Building must be fluorescent or of a
quality, type, design, and bulb color approved reasonably by Landlord. No
articles shall be placed or kept on the window xxxxx so as to be visible
from the exterior of the Building. No articles shall be placed against
glass partitions or doors which Landlord considers unsightly from outside
Tenant's Premises.
5. Each tenant shall be responsible for all persons for whom it allows to
enter the Building or the Project and shall be liable to Landlord for all
acts of such persons. Landlord and it agents shall not be liable for
damages for any error concerning the admission to, or exclusion from, the
Building or the Project of any person. During the continuance of any
invasion, mob, riot, public excitement or other circumstance rendering such
action advisable in Landlord's opinion, Landlord reserves the right (but
shall not be obligated) to prevent access to the Building and the Project
during the continuance of that event by any means it considers appropriate
for the safety of tenants and protection of the Building, property in the
Building and the Project.
6. Tenant shall not alter any lock or access device or install a new or
additional lock or access device or bolt on any door of its Premises,
without the prior written consent of Landlord which consent shall not be
unreasonably withheld, delayed or conditioned. If Landlord shall give its
consent, Tenant shall in each case furnish Landlord with a key for any such
lock. Tenant, upon the termination of its tenancy, shall delivery to
Landlord the keys for all doors which have been furnished to Tenant, and in
the event of loss of any keys so furnished, shall pay Landlord therefor.
7. The restrooms, toilets, urinals, wash bowls and other apparatus shall not
be used for any purpose other than that for which they were constructed and
no foreign substance of any kind whatsoever shall be thrown into them. The
expense of any breakage, stoppage, or damage resulting from violation of
this rule shall be borne by the tenant who, or whose employees or invitees,
shall have caused the breakage, stoppage, or damage.
8. Tenant shall not use or keep in or on the Premises, the Building or the
Project any kerosene, gasoline, or inflammable or combustible fluid or
material except in strict accordance with the terms of the Lease.
9. Tenant shall not use, keep or permit to be used or kept in its Premises any
foul or noxious gas or substance. Tenant shall not allow the Premises to be
occupied or used in a manner offensive or objectionable to Landlord or
other occupants of the Building by reason of noise, odors and/or vibrations
or interfere in any way with other tenants or those having business
therein, nor shall any animals or birds be brought or kept in or about the
Premises, the Building, or the Project.
10. Except with the prior written consent of Landlord, Tenant shall not sell,
or permit the sale, at retail, of newspapers, magazines, periodicals,
theater tickets or any other goods or merchandise in or on the Premises,
nor shall Tenant carry on, or permit or allow any employee or other person
to carry on, the business of stenography, typewriting or any similar
business in or from the Premises for the service or accommodation of
occupants of any other portion of the Building, or the business of a public
xxxxxx shop, beauty parlor, nor shall the Premises be used for any illegal
purpose, or any business or activity other than that specifically provided
for in such Tenant's Lease. Tenant shall not accept hairstyling, barbering,
shoeshine, nail, massage or similar services in the Premises or common
areas except as authorized by Landlord.
11. If Tenant requires telegraphic, telephonic, telecommunications, data
processing, burglar alarm or similar services, it shall first obtain, and
comply with, Landlord's instructions in their installation. The cost of
purchasing, installation and maintenance of such services shall be borne
solely by Tenant.
12. Landlord will direct electricians as to where and how telephone, telegraph
and electrical wires are to be introduced or installed. No boring or
cutting for wires will be allowed without the prior written consent of
Landlord which consent shall not be unreasonably withheld, delayed or
conditioned. The location of burglar alarms, telephones, call boxes and
other office equipment affixed to the Premises shall be subject to the
prior written approval of Landlord which consent shall not be unreasonably
withheld, delayed or conditioned.
13. Tenant shall not install any radio or television antenna, satellite dish,
loudspeaker or any other device on the exterior walls or the roof of the
Building, without Landlord's consent which consent shall not be
unreasonably withheld, delayed or conditioned. Tenant shall not interfere
with radio or television broadcasting or reception from or in the
Building,the Project or elsewhere.
25
53
14. Tenant shall not xxxx, or drive nails, screws or drill into the partitions,
woodwork or drywall or in any way deface the Premises or any part thereof other
than in connection with the hanging of artwork. Tenant shall not lay linoleum,
tile, carpet or any other floor covering so that the same shall be affixed to
the floor of its Premises in any manner except as reasonably approved in writing
by Landlord. The expense of repairing any damage resulting from a violation of
this rule or the removal of any floor covering shall be borne by the tenant by
whom, or by whose contractors, employees or invitees, the damage shall have been
caused.
15. Tenant shall not place a load upon any floor of its Premises which exceeds
the load per square foot which such floor was designed to carry or which is
allowed by law. Business machines and mechanical equipment belonging to Tenant
which cause noise or vibration that may be transmitted to the structure of the
Building or to any space therein to such a degree as to be objectionable to
Landlord or to any tenants in the Building shall be placed and maintained by
Tenant, at Tenant's expense, on vibration eliminators or other devices
sufficient to eliminate noise or vibration. The persons employed to move such
equipment in or out of the Building must be acceptable to Landlord.
16. Each tenant shall store all of its trash and garbage within the interior of
the Premises or as otherwise directed by Landlord from time to time. Tenant
shall not place in the trash boxes or receptacles any personal trash or any
material that may not or cannot be disposed of in the ordinary and customary
manner of removing and disposing of trash and garbage in the city, without
violation of any law or ordinance governing such disposal.
17. Canvassing, soliciting, distribution of handbills or any other written
material and peddling in the Building and the Project are prohibited and each
tenant shall cooperate to prevent the same. No tenant shall make room-to-room
solicitation of business from other tenants in the Building or Project, without
the written consent of the Landlord.
18. Landlord shall have the right, exercisable upon not less than six (6) months
prior notice but without liability to any tenant, to change the name and address
of the Building and the Project.
19. Landlord reserves the right to exclude or expel from the Project any person
who, in the Landlord's judgment, is under the influence of alcohol or drugs or
who commits any act in violation of any of these Rules and Regulations.
20. Without the prior written consent of Landlord, Tenant shall not use the name
of the Building or the Project or any photograph or other likeness of the
Building or the Project in connection with, or in promoting or advertising,
Tenant's business except that Tenant may include the Building's or Project's
name in Tenant's address.
21. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations reasonably established by Landlord or any
governmental agency.
22. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
23. Landlord reserves the right to designate the use of the parking spaces on
the Project. Tenant or Tenant's guests shall park between designated parking
lines only, and shall not occupy two parking spaces with one car. No trucks,
truck tractors, trailers or fifth wheel are allowed to be parked anywhere at any
time within the Project other than in Tenant's own truck dock well. Vehicles in
violation of the above shall be subject to tow-away, at vehicle owner's expense.
Vehicles parked on the Project overnight without prior written consent of the
Landlord shall be deemed abandoned and shall be subject to two-away at vehicle
owner's expense. No tenant of the Building shall park in visitor or reserved
parking areas or loading areas. Any tenant found parking in such designated
visitor or reserved parking areas or loading areas or unauthorized areas shall
be subject to tow-away at vehicle owner's expense. The parking areas shall not
be used to provide car wash, oil changes, detailing, automotive repair or other
services unless otherwise approved or furnished by Landlord. Tenant will from
time to time, upon the request of Landlord, supply Landlord with a list of
license plate numbers of vehicles owned or operated by its employees or agents.
24. No Tenant is allowed to unload, unpack, pack or in any way manipulate any
products, materials or goods in the common areas of the Project including the
parking and driveway areas of the Project. All products, goods and materials
must be manipulated, handled, kept, and stored within the Tenant's Premises and
not in any exterior areas, including, but not limited to, exterior dock
platforms, against the exterior of the Building, parking areas and driveway
areas of the Project. Tenant also agrees to keep the exterior of the Premises
clean and free of nails, wood, pallets, packing materials, barrels and any other
debris produced from their operation. All products, materials and goods are to
enter and exit the Premises by being loaded or unloaded through dock high doors
into trucks and or trailers, over dock high loading platforms into trucks and or
trailers or loaded or unloaded into trucks and or trailers within the Premises
through grade level door access.
25. Tenant shall be responsible for the observance of all of the foregoing Rules
and Regulations by Tenant's employees, agents, clients, customers, invitees and
guests.
26. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify, alter or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of any premises in the
Project.
27. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular tenant or tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of any
other tenant or tenants, nor prevent Landlord from thereafter enforcing any
such Rules and Regulations against any or all tenants of the Building.
28. Landlord reserves the right to make such other and reasonable rules and
regulations as in its judgment may from time to time be needed for safety and
security, for care and cleanliness of the Building and the Project and for the
preservation of good order therein. Tenant agrees to abide by all such Rules
and Regulations herein stated and any additional rules and regulations which
are adopted.
26
54
EXHIBIT B
SITE PLAN, PREMISES
Bridge Pointe Corporate Centre consists of approximately of 29 acres and up to
approximately 591,000 square feet in up to 9 buildings. Phase A consists of four
buildings indicated on the site plan below as 4760, 4770, 4780 and 0000 Xxxxxxxx
Xxxx, totaling 215,800 square feet consisting of approximately 12.5 net acres.
Phase B will consist of two buildings totaling approximately 150,000 square feet
and consisting of approximately 8.5 acres. Phase C will consist of three
buildings totaling up to approximately 225,000 square feet and consisting of
approximately 8 acres.
The Premises consists of the buildings located at 4760, 4770 and 0000 Xxxxxxxx
Xxxx xx Xxx Xxxxx, Xxxxxxxxxx.
The Site Plan detailing the Premises and the Project follows this page and
consists of two (2) pages.
27
55
[FLOOR PLAN]
Franklin Resources, Inc.
XXXXXX XXXXXX XXXXXXXXX XXXXXX -- XXX XXXXX, XXXXXXXXXX
56
[GARAGE PLAN GRAPHIC]
Franklin Resources, Inc.
XXXXXX XXXXXX XXXXXXXXX XXXXXX -- XXX XXXXX, XXXXXXXXXX
57
EXHIBIT D
TENANT'S HAZARDOUS MATERIALS DECLARATION
This exhibit shall be completed by Tenant upon occupancy of the entire Premises,
but not later than May 1, 1999. The final Exhibit D, to be mutually agreed upon
by the parties, shall be inserted to replace this Exhibit D.
33
58
CLUP
Comprehensive Land Use Plan
1990
[PHOTO]
Naval Air Station Miramar
San Diego, California
AIRPORT NOISE/LAND USE COMPATIBILITY MATRIX
IMPLEMENTATION DIRECTIVES
All the uses specified are "compatible" up to the noise level indicated.
Specified uses are also allowed as "conditionally compatible" in the noise
levels shown if two specific conditions are met and certified by the local
general purpose agency:
1. Proposed buildings will be noise attenuated to the level shown on the matrix
based on an acoustical study submitted along with building plans.
2. In the case of discretionary actions, such as approval of subdivisions,
zoning changes, or conditional use permits, an aviation easement for noise
shall be required to be recorded with the County Recorder as a condition of
approval of the project. A copy shall also be filed with the affected airport
operator. For all property transactions, appropriate legal notice shall be
given to all purchasers, lessees and renters of property in "conditionally
compatible" areas which clearly describes the potential for impacts from
airplane noise associated with airport operations. Notice will also be
provided as required on the State Real Estate Disclosure form.
Identified uses proposed in noisier areas than the level indicated on the matrix
are considered "incompatible."
The directives below relate to the specific "conditionally compatible" land use
categories identified by number on the matrix.
3. New schools, preschools and libraries located within the CNEL 60-65 contours
must be subjected to an acoustical study to assure that interior levels will
not exceed CNEL 45.
4. New residential and related uses located within the CNEL 60-65 contours must
be subjected to an acoustical study to assure that the interior levels will
not exceed CNEL 45. Appropriate legal notice shall be provided to purchasers,
lessees, and renters of properties in this conditionally compatible zone in
the manner previously described.
"Residential hotels" are defined as those that have 75% or more of
accommodations occupied by permanent guests (staying more than 30 days) or
those hotels which have at least 50 percent of their accommodations
containing kitchens.
5. Transient Lodging is defined as hotels and motels, membership lodgings (Y's
etc.), suite or apartment hotels, hotels, or other temporary residence units,
not defined as residential hotels, above. Within the CNEL 60-70 contours,
buildings must be subjected to an acoustical study to assure that interior
levels do not exceed CNEL 45. Appropriate legal notice shall be provided to
purchasers, lessees, and renters of properties in this conditionally
compatible zone in the manner previously described.
6. Office buildings include many types of office and service uses: business and
business services, finance, insurance, real estate; personal services;
professional (medical, legal and educational); and government, research and
development and others. Within the CNEL 65-70 contours, buildings must be
subjected to an acoustical study to assure that interior levels do not exceed
CNEL 50. Appropriate legal notice shall be provided to purchasers, lessees,
and renters of properties in this conditionally compatible zone in the manner
previously described.
8. For new commercial retail uses located within the CNEL 65-75 contours,
buildings must be subjected to an acoustical study to assure that interior
levels do not exceed CNEL 50. Appropriate legal notice shall be provided to
purchasers, lessees, and renters of properties in this conditionally
compatible zone in the manner previously described.
59
EXHIBIT E
MCAS Miramar Comprehensive Land Use Plan
The MCAS Miramar Comprehensive Land Use Plan follows this page, and consists of
four (4) pages.
60
What is the CLUP?
The Naval Air Station (NAS) Miramar Comprehensive Land Use Plan (CLUP)
represents Navy and community recommendations for achieving compatible
development near the air station. The CLUP was prepared by the San Diego
Association of Governments (SANDAG) under authority of Article 3.5 of the
California Public Utilities Code. The CLUP also incorporates recommendations of
the Navy's Air Installation Compatible Use Zones (AICUZ) program, part of a
nation-wide planning effort by the Department of Defense to look at accident
potential and noise impacts around each military air installation in the United
States. The goals of the CLUP are to:
o Protect NAS Miramar from incompatible land uses;
o Provide criteria for the orderly growth of the area surrounding the air
station;
o Safeguard the general welfare of those inhabitants within the vicinity of
the air station by protecting them from the adverse effects of aircraft
noise and accident potential; and
o Ensure that no obstructions or other hazards affect navigable airspace.
Why is there a Problem?
Many military and civilian airfields were originally constructed in the open
countryside. Over the years pressures to house a growing population meant people
tended to move onto land near airfields. This nearby land normally has
established access routes, and in many cases offers the advantages of living or
working close to a major employment base. Meanwhile the level of air traffic has
increased. These counteracting trends can cause problems for the air facility as
well as local residents. Specifically, problems arise when use of the land is
not controlled for compatibility with air operations.
Although noise impact areas no longer grow at rates experienced in the 1970's
(and have actually decreased at NAS Miramar), the land near all airfields will
continue to have high noise levels and potential for aircraft accidents. Land
near airfields is suitable for certain types of development, such as agriculture
or industrial uses, but may not be suitable for other types of development. Land
near NAS Miramar consists of a mix of residential, commercial and industrial
uses. For the most part, these developments are considered compatible with the
current land use plan.
Community Participation
Land use compatibility is a shared concern of the Navy, the public, and the
local government agencies who have planning and zoning authority. The decision
makers for the local government have the key responsibility for taking actions
that preserve land use compatibility. The cooperative action of all parties
helps to resolve land use compatibility problems.
Navy Role in the Economy
More than 11,000 military and 2,500 civilian personnel work at NAS Miramar.
Nearly 2,500 bachelor and 615 married military personnel (with 1,000 dependents)
live at the air facility. An additional 1,800 military, with 5,500 dependents
live in military housing off station with the rest living in the surrounding
communities. All totalled -- military, civilians and dependents -- NAS Miramar
has an extended family of nearly 30,000.
NAS Miramar is part of the naval complex in San Diego County. Over 175,000
Department of Defense personnel work in San Diego with a total economic impact
to the community of $9.5 billion annually. NAS Miramar accounts for over $700
million of this total. Overall, one in five dollars in the San Diego economy is
a Navy dollar.
Installation Mission
NAS Miramar is the home of the jet fighter and early warning aircraft of the
Pacific Fleet. The mission of the station is to maintain and operate facilities
and provide services and materials to support operations of aviation activities
and units of the operating forces of the Navy.
What is NAS Miramar doing?
The people stationed at NAS Miramar are aware of their responsibility to
minimize noise levels and hazards for the residents of nearby communities. Since
1974, noise complaints at NAS Miramar have decreased from a high of over 2,000
to 210 in 1991. This decrease resulted from the installation of hush houses to
suppress ground engine runups, noise abatement procedures, and changes in
aircraft mix.
More Information
Copies of the NAS Miramar CLUP may be obtained from SANDAG. Information on
height restrictions and obstruction determination can be obtained from the
Federal Aviation Administration or NAS Miramar. Information on land use
compatibility may be obtained from the Community Planning Liaison Office at NAS
Miramar.
NAS Miramar Community Planning Liaison Office
NOISE COMPLAINTS Code: 00M, NAS Miramar
(000) 000-0000 Xxx Xxxxx, XX 00000-0000
(000) 000-0000
San Diego Association of Governments Federal Aviation Administration
000 X Xxxxxx, Xxxxx 000 00000 Xxxxxxxx Xxxx.
Xxx Xxxxx, XX 00000 Xxxxxxxxx, XX 00000
(000) 000-0000 (000) 000-0000
61
[MAP]
CLUP COMPOSITE MAP
CLUP AREA
The NAS Miramar CLUP Composite Map shows a combination of noise and Accident
Potential Zones (APZs). The noise descriptor used in this study is CNEL, which
stands for Community Noise Equivalent Level. CNEL is the weighted average sound
level for a 24-hour day. It is calculated by weighing evening and night
operations five and ten times more than day operations, respectively, to adjust
for the increased irritation caused by noise during evening and night hours. The
depicted noise footprint ranges from 60 dB CNEL to 75 dB CNEL. The Accident
Potential Zones represent areas that are overflown by aircraft and, therefore,
more susceptible to accidents. The three APZs are APZ II, APZ I, and the Clear
Zone; each progressively closer to the runway and potentially of more concern.
The Land Use Compatibility Guidelines for noise and APZs promote compatible
development near the air station. The guidelines recommend restricting noise
sensitive development in the high noise zones, and restricting population
density within the APZs. Zones of highest noise and accident potential have the
smallest range of compatible land uses.
[VICINITY MAP]
HEIGHTS AND OBSTRUCTIONS
In addition to noise and APZ considerations, height restrictions are necessary
to insure that no object will interfere with safe operation of aircraft or deny
operational capability of the air station. Any development proposal that
includes an object over 200 feet above ground level (AGL) or which penetrates
the 100:1 slope extending 20,000 feet from the nearest point of the nearest
runway must be submitted to the Federal Aviation Administration (FAA) for an
obstruction evaluation. SANDAG and NAS Miramar must also be notified of these
proposals by the applicant. The following should also be examined for
compatibility:
* Uses that release into the air any substance that would impair
visibility or otherwise interfere with the operation of aircraft
(e.g., dust, smoke, or steam).
* Uses which emit or reflect light that would interfere with aircrew
vision.
* Uses that produce emissions which would interfere with aircraft
communications systems, navigation systems or other electrical
systems.
* Uses which attract birds, such as (but not limited to) sanitary
landfills, maintenance of feed stations, growing certain types of
vegetation, etc.
62
AIRPORT NOISE/LAND USE COMPATIBILITY MATRIX
----------------------------------------------------------------------------------
Annual Community Noise Equivalent Level
(CNEL) in decibels
LAND USE 55 60 65 70 75
----------------------------------------------------------------------------------
1. OUTDOOR AMPHITHEATERS
----------------------------------------------------------------------------------
2. NATURE PRESERVES, WILDLIFE PRESERVES, [ ]
LIVESTOCK FARMING, NEIGHBORHOOD PARKS COMPATIBLE
AND PLAYGROUNDS The outdoor community noise equivalent
---------------------------------------------------------------------------------- level is sufficiently attenuated by
3. SCHOOLS, PRESCHOOLS, LIBRARIES 45 conventional construction that the indoor
---------------------------------------------------------------------------------- noise level is acceptable, and both indoor
4. RESIDENTIAL-SINGLE FAMILY, MULTIPLE FAMILY 45 and outdoor activities associated with the
MOBILE HOMES, RESIDENTIAL HOTELS, land use may be carried out with
RETIREMENT HOMES, INTERMEDIATE CARE essentially no interference from aircraft
FACILITIES, HOSPITALS, NURSING HOMES noise.
----------------------------------------------------------------------------------
5. HOTELS AND MOTELS, OTHER TRANSIENT 45 45 [45]
LODGING, AUDITORIUMS, CONCERT HALLS, CONDITIONALLY COMPATIBLE
INDOOR ARENAS, CHURCHES The outdoor community noise equivalent
---------------------------------------------------------------------------------- level will be attenuated to the indoor level
6. OFFICE BUILDINGS-BUSINESS, EDUCATION, 50 shown, and the outdoor noise level is
PROFESSIONAL AND PERSONAL SERVICES; acceptable for associated outdoor
R & D OFFICES AND LABORATORIES activities.
----------------------------------------------------------------------------------
7. RIDING STABLES, WATER RECREATION [ ]
FACILITIES, REGIONAL PARKS AND ATHLETIC INCOMPATIBLE
FIELDS, CEMETERIES, OUTDOOR SPECTATOR The community noise equivalent level is
SPORTS, GOLD COURSES severe. Although extensive mitigation
---------------------------------------------------------------------------------- techniques could make the indoor
8. COMMERCIAL-RETAIL; SHOPPING CENTERS, 50 50 environment acceptable for performance of
RESTAURANTS, MOVIE THEATERS activities the outdoor environment would
---------------------------------------------------------------------------------- be intolerable for outdoor activities
9. COMMERCIAL-WHOLESALE; INDUSTRIAL; associated with the land use.
MANUFACTURING
----------------------------------------------------------------------------------
10. AGRICULTURE (EXCEPT RESIDENCES AND
LIVESTOCK), EXTRACTIVE INDUSTRY, FISHING,
UTILITIES, & PUBLIC R-O-W.
----------------------------------------------------------------------------------
This matrix should be used with reference to the Implementation Directives
shown on the reverse.
LAND USE COMPATIBILITY IN ACCIDENT POTENTIAL ZONES
LAND USE APZ 1 APZ 2
---------------------------------------------------------------------
RESIDENTIAL(?) APARTMENTS,
AND TRANSIENT LODGING
---------------------------------------------------------------------
ASSEMBLY AREAS [ ] COMPATIBLE
Schools, Churches, Libraries, Auditoriums,
Sports Arenas, etc., Preschools, Nurseries, [50 or fewer ] CONDITIONALLY
and Restaurants [Persons/Acre] COMPATIBLE
[ ] INCOMPATIBLE
---------------------------------------------------------------------
Hospitals, Sanitariums, and
Nursing Homes
---------------------------------------------------------------------
OFFICES, RETAIL SHOPS(?) 50
---------------------------------------------------------------------
WHOLESALE STORES, 50
MANUFACTURING(?)
---------------------------------------------------------------------
OUTDOOR USES: 50
Playgrounds, Neighborhood Parks,
Golf Courses, Riding Stables,
Public Right-of-Way
---------------------------------------------------------------------
(?) Residential land uses include single-family homes, multi-family, and
retirement homes.
(?) See 1992 CLUP revision for siting of flammable, hazardous, and toxic
materials within the APZs.
(?) It is suggested that for coverage in APZ1 should be less than 25% and less
than 40% in APZ2.
For further information on determining compatibility in APZs, please see the NAS
Miramar CLUP.
63
EXHIBIT F
SIGNAGE CRITERIA
FOR
BRIDGE POINTE CORPORATE CENTRE
The final Exhibit F, to be mutually agreed upon by the parties, shall be
inserted to replace this Exhibit F.
35
64
EXHIBIT F
SIGNAGE CRITERIA
FOR
BRIDGE POINTE CORPORATE CENTRE
The Signage Criteria for Bridge Pointe Corporate Centre follows this page and
consists of nine (9) pages.
35
65
SIGNAGE CRITERIA
FOR
BRIDGE POINTE CORPORATE CENTRE
INTRODUCTION
The purpose of Exhibit 'F' is to establish signage standards necessary to
balance maximum tenant identification with an overall unity of design for
Bridge Pointe Corporate Centre. All tenant signs shall conform to the overall
criteria outlined herein as well as to any additional criteria that may be
specified elsewhere on the drawings of Exhibit 'F'. In addition, the following
definitions shall apply:
Copy Area
The area of a sign, exclusive of margins, in which copy and graphics may
be placed.
Letter Height
The height of a normal capital letter of a type font exclusive of swashes,
descenders and ascenders.
Logo
An image composed of a collection of symbols, figures, design elements,
and letters which together for a distinct and unique identifying xxxx.
Major Tenant
A tenant of a site or building who occupies at least 47,000 square feet of
leased floor space, or as designated by owner.
Monument
A ground structure forming a continuous mass including the sign face, base
and its connection to the earth and existing solely for the purpose of
displaying signs.
Owner
The party holding legal title to the site and/or building(s) or its agents
(e.g. landlord, developer, architect or other consultant).
Project
Development composed of one or more buildings of consistent character
where the principal use is commercial office space.
Sign Background Area
The area of a building wall or fascia which is designated for signage
applications.
Sign Face Area
The area of a sign, including margins, potentially available for display
of copy and graphics. The sign face area of monument signs and signs on
garden walls shall be computed by drawing a line around each graphic
element and/or line of copy and calculating the area contained within the
lines. The architectural screening surrounding posts and forming the base
of ground signs shall not be calculated as part of the sign face area.
Wall Sign
Any sign affixed to the elevation of a building wall, or letters, figures
or signs affixed to a freestanding garden or retaining wall.
TERMS AND CONDITIONS FOR SIGNAGE IMPLEMENTATION
In signing this lease, Tenant acknowledges receipt of the Tenant Sign Criteria
and Guidelines, and agrees to the requirements contained therein and
specifically the following requirements with regard to signage:
1. Each tenant shall provide a minimum of one primary identification sign
in accordance with the approved criteria.
2. Tenant shall be responsible for the expenses relating to its signage,
including but not limited to:
- design fees
- permit processing costs and application fees
- 100% of costs for sign fabrication and installation including review
of shop drawings and patterns by the Owner or its authorized agent
Tenant shall also be responsible for maintaining the appearance and
operating condition of all signs once installed.
Version 10.3 1
66
3. Tenant shall submit to Owner for approval sign design and shop drawing in
accordance with the provisions contained herein (see "Submittals and
Approvals" section). ALL SIGN DESIGNS ARE SUBJECT TO REVIEW AND APPROVAL BY
OWNER, INCLUDING LOCATIONS, NUMBER AND SIZE OF ALL SIGNS.
4. Tenant agrees to abide by all provisions, guidelines, and criteria contained
within this Exhibit 'F', as well as with applicable City of San Diego sign
regulations.
5. Only those sign types provided for and specifically approved in writing by
the Owner will be allowed. Owner may, at its sole discretion, and at
Tenant's expense, correct, replace or remove any sign that is installed
without its written approval and/or that is deemed not to be in conformance
with the plans as submitted and with requirements and documents referenced
herein.
6. Tenant shall maintain its signage in like-new condition. Owner may, at its
sole discretion and at Tenant's expense, replace, refurbish or remove any
sign that has become deteriorated. The Tenant shall, upon termination of
this lease and at its own expense, remove all signs associated with this
lease and restore building walls to their original condition.
BUILDING WALL SIGNS
General Criteria
1. Configuration: Individual, internally illuminated channel letters with
luminous faces. (See Example 1.)
2. Location: Signs to be affixed to building wall in the Sign Background Area
designated and approved by Owner. See "Sign Location Plan" for possible
locations.
3. Color: All tenant wall signs are to have translucent bronze acrylic
letterfaces with five inch deep returns painted tan to match Sign Background
Area building color. In cases where Tenant has a regionally or nationally
recognized corporate identity, Owner may allow Tenant to utilize a letter
color in accordance with its corporate specifications subject to Owner's
prior written approval.
4. Letter Style: In cases where Tenant has a regionally or nationally
recognized corporate identity, Owner may allow Tenant to utilize a
letterstyle in accordance with its corporate specifications subject to
Owner's prior written approval.
Sign Type 'E': Tenant Identification Wall Sign
Intended as primary identification signage for all tenant spaces. One (1)
wall sign allowed per building elevation with a maximum of two (2) wall
signs per major tenant, for a maximum total of four (4) tenant wall signs
per building. Maximum three feet six inches (3'6") letter height, with
maximum of one hundred square feet of copy area.
MONUMENT SIGNS
General Criteria
1. Configuration: Concrete rectangular structure. Layout must be approved in
writing by Owner. See examples on Page 8.
2. Location: See "Sign Location Plan" for possible locations.
3. Color: To be determined by Owner.
4. Letter Style: For Project Identification Monument Signs ('A'), in cases
where Tenant has a regionally or nationally recognized corporate identity,
Owner may allow Tenant to utilize a letterstyle in accordance with its
corporate specifications subject to Owner's prior written approval.
Lettering shall be centered within the copy panel.
Sign Type 'A': Project Identification Monument with Tenant Listings
o Single-faced project identification monument sign including tenant
listings and project address. Located at the southwest corner facing
intersection of Judicial Drive and Eastgate Mall, and at the southeast
entry facing Eastgate Mall.
o 5 feet 10 inches maximum height
o 12 square feet maximum copy area
o Eleven feet ten inches (11'10") maximum copy width
o May be internally and/or front-illuminated
o Two (2) signs only
67
Sign Type 'F': Vehicular Directional Monument
o Single-faced vehicular directional monument sign including tenant
copy. Located at the Judicial Drive entrance.
o 6 feet maximum height
o .4 square feet maximum copy area per tenant
o One foot maximum copy width
o May be internally and/or front-illuminated
o Two (2) signs only
GENERAL PROVISIONS
1. Signs shall be designed in a manner that is compatible with and
complementary to the overall project and adjacent facades.
2. Only those sign types provided for in the Sign Criteria & Guidelines
and/or specifically approved in writing by the Owner will be allowed.
3. Signage that incorporates logos, business identity, and/or images denoting
the type of business shall be encouraged. Logo design and colors to be
approved by the Owner.
4. Logo, letter heights and sign square footages, where specified, shall be
determined by measuring the normal capital letter of type exclusive of
typographic swashes, ascenders, descenders or exaggerated initial capitals.
For purposes of calculating copy area, wall signage shall be considered to
be composed of two elements:
A. Lettering and Logos
Includes the letters and characters that form the sign copy,
exclusive of any figures, symbols and decorative elements. Where
extended spacing between letters is used, copy area may be
measured by calculating the area of each individual letter
exclusive of space between letters.
Logos and/or images that are in use on similar buildings
operated by the tenant in California may be used, provided that
said images are architecturally compatible and approved by the
Owner and shall be counted in overall allowable square footage
for tenant signs.
Where lettering and logos are placed on architectural background, the
height of the lettering and logos shall not exceed 80% of the height of the
architectural background. Logo height may be greater than letter height but
shall conform to sign are guidelines.
Maximum copy areas shall be calculated exclusive of display surfaces,
backings, architectural elements, and mounting devices.
5. Notwithstanding the maximum square footages specified for copy area
allowances, signs and typography in all cases shall appear balanced and in
scale within the context of the sign spaces - monuments and building walls
- as a whole. Thickness, height, and color of sign lettering shall be
visually balanced and in proportion to other signs on the building.
6. Wall signs shall be affixed without visible means of attachment, unless
attachments make an intentional statement. Wall signs need not be attached
directly to the lease space to which they refer.
7. Ground signs or monument signs may be located within landscaped zones
between property lines and building setback lines, allowing for adequate
site-lines for approaching vehicular traffic at street intersections and
project entries, but may not be located in the public right-of-way.
8. All sign fabrication work shall be of excellent quality. All logo images
and typestyles shall be accurately reproduced. Lettering that approximates
typestyles shall not be acceptable. The Owner reserves the right to reject
any fabrication work deemed to below standard.
9. Sign contractor shall be approved in writing by Owner. Contractor shall be
licensed and carry insurance in accordance with Owner's requirements.
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CONSTRUCTION REQUIREMENTS
1. All formed metal, such as letter forms, shall be fabricated using full-weld
construction.
2. All ferrous and non-ferrous metals shall be separated with non-conductive
gaskets to prevent electrolysis. In addition to gaskets, stainless steel
fasteners shall be used to secure ferrous to nor-ferrous metals.
3. Threaded rods or anchor bolts shall be used to mount sign letters which are
spaced out from background panel. Angle clips attached to letter sides will
not be permitted.
4. Surfaces with color mixes and hues prone to fading (e.g., pastels,
fluorescent, complex mixtures, and intense reds, yellows and purples) shall
be coated with ultraviolet-inhibiting clear coat in a matte, gloss, or
semi-gloss finish.
5. Joining of materials (e.g., seams) shall be finished in such a way as to be
unnoticeable. Visible welds shall be continuous and ground smooth. Rivets,
screws, and other fasteners that extend to visible surfaces shall be flush,
filled, and finished so as to be unnoticeable.
6. Finished surfaces of metal shall be free from canning and warping. All sign
finishes shall be free of dust, orange peel, drips, and runs and shall have
a uniform surface conforming to the highest standards of the industry.
7. Reverse channel letters shall be pinned 2" off building wall. Return depth
shall be 2-1/4", maximum, for letters less than 12" in height and such signs
shall have a clear acrylic backing. Double tube neon shall be used when
width of letter stroke exceeds 2-1/4".
8. Depth of open channel letters shall not exceed 2". All hardware and neon
tube supports inside open channel letters shall be painted to match interior
letter color. Neon tubing shall be sufficient to make letters read "solid"
and shall be installed to that top surface of neon is flush with front edges
of open channel.
9. Signs illuminated with neon shall use 30 m.a. transformers. The ballot for
fluorescent lighting shall be 430 m.a. Fluorescent lamps shall be single pin
(slimline) with 12" center-to-center lamp separation. All lighting must
match the exact specifications of the approval shop drawings.
10. Surface brightness of all illuminated materials shall be consistent in all
letters and components of the sign. Light leaks will not be permitted.
11. The back side of all bare neon used for signage shall be painted to provide
an opaque finish. Paint color shall exactly match the Owner-approved
specifications.
12. All conduit, raceways, crossovers, wiring, ballast boxes, transformers, and
other equipment necessary for sign connection shall be concealed. All bolts,
fastenings and clips shall consist of enameling iron with porcelain enamel
finish, stainless steel, anodized aluminum, brass or bronze; or
carbon-bearing steel with painted finish. No black iron material will be
allocated.
13. Underwriter's Laboratory-approved labels shall be affixed to all electrical
fixtures. Fabrication and installation of electrical signs shall comply with
all national and local building and electrical codes.
14. Penetrations into building walls, where required, shall be made waterproof.
Walls shall be restored to their original condition upon removal of
attachments.
15. Location of all openings for conduit sleeves and support in sign panels and
building walls shall be indicated by the sign contractor on drawings
submitted to the Owner. Sign contractor shall install same in accordance
with the approved drawings.
16. In no case shall any manufacturer's label be visible from normal viewing
angles.
17. Sign permit stickers shall be affixed to the bottom edge of signs, and only
that portion of the permit sticker that is legally required to be visible
shall be exposed.
SUBMITTALS AND APPROVALS
Tenant signs shall be themed and designed to contribute to the overall Project
design theme. Tenant sign designs shall be consistent with the Project theme,
the provisions of the Team Sign Criteria and Guidelines.
Tenant shall submit all sign designs to Owner and obtain its written approval
prior to sign fabrication. Approval or disapproval shall remain the sole right
and discretion of Owner. Approval shall not be unreasonably withheld. Tenant
must continue to revise and resubmit rejected designs until approval is
obtained.
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69
Prior to sign fabrication, Tenant shall submit for Owner approval three (3)
sets of complete and fully-dimensioned shop drawings reflecting the sign design
approved by the Owner. Shop drawings are to be submitted to Owner within twenty
(20) calendar days after design has been approved. Two (2) separate submittals
will be required prior to implementation of signage:
a. Design Review
Tenant shall submit all sign designs to Owner and obtain its written
approval prior to sign fabrication. Approval or disapproval shall
remain the sole right and discretion of Owner. Tenant must continue
to revise and resubmit rejected designs until approval is obtained.
b. Shop Drawings
Prior to sign fabrication, Tenant shall submit for Owner approval
three (3) sets of complete and fully-dimensioned shop drawings
reflecting the sign design approved by the Owner. Tenant must
continue to revise and resubmit rejected designs until approval is
obtained. The shop drawings submittal shall include:
a. Name, address and phone number of tenant/user.
b. Name, address and phone number of Sign Contractor, Designer.
c. Elevation of structure showing all proposed signs indicating sign
type, design, location, size and layout of sign drawn to scale
and indicating dimensions, attachment devices and construction
details, colors, materials and lighting details.
d. Section detail of letters and/or sign element showing the
dimensioned projection of the face of letters, method and
intensity of illumination.
e. Color board with actual sample colors (8-1/2" x 11" format).
f. Site plan showing property lines, buildings, location and
dimensions from public right of way.
All Tenant sign submittals shall be reviewed by Owner for conformance with the
provisions of the Bridge Pointe Corporate Centre Sign Criteria and Guidelines,
this Exhibit 'F', and the design intent drawings approved by Owner.
Within fifteen (15) business days after receipt of Tenant's shop drawings,
Owner shall either approve the submittal continent upon any required
modifications or disapprove Tenant's sign submittal, which approval or
disapproval shall remain the sole right and discretion of Owner. Tenant must
continue to resubmit rejected plans until approval is obtained. A full set of
final plans must be approved in writing by the Owner prior to permit
application or sign fabrication.
Following Owner's approval of proposed signage, Tenant or its agent shall
submit to the City of San Diego sign plans signed by Owner and applications for
all permits for fabrication and installation by sign contractor. Tenant shall
furnish Owner with a copy of said permits prior to installation of Tenant's
sign(s).
Fabrication and installation of all sign shall be performed in accordance with
the standards and specifications outline in this Exhibit 'F' and in the final
approved plans and shop drawings. Owner may perform an in-shop inspection and
buy-off of the signage prior to installation. Any work deemed unacceptable
shall be rejected and shall be corrected or modified at Tenant's expense as
required by the Owner or its agent.
Tenant shall install the minimum required signage within 60 calendar days after
receipt of permit from the City of San Diego. If signage is not in place by
that date, Owner may order fabrication and installation on Tenant's behalf.
Tenant shall reimburse Owner for these costs.
SIGN CONTRACTOR RESPONSIBILITIES
Tenant shall require its sign contractor to do the following:
o provide to the Owner, prior to commencing fabrication, an original
certificate of insurance naming the Owner as an additional insured for
liability coverage.
o obtain approved sign permits from the City of San Diego prior to sign
fabrication and deliver copies of same to Owner.
o prepare for approval prior to fabrication complete and fully-dimensioned
shop drawings along with items listed under "Submittals and Approvals"
section.
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[PREMISES LAYOUT]
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[DIAGRAM]
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[PREMISES LAYOUT]
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[BRIDGE POINTE LOGO]
CORPORATE CENTRE
SCANNED LOGO
BRIDGE POINTE
CORPORATE CENTRE
COMPUTER SET - GARAMOND REGULAR
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ALPHABET - GARAMOND REGULAR
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ADDRESS NUMBERS - GARAMOND REGULAR
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EXHIBIT "C"
DEMISING PLAN
The Demising Plan follows this page and consists of two (2) pages.
C-1.
75
0000 XXXX XXXX XXXX
XXX XXXXX, XX. FIRST FLOOR PLAN
76
0000 XXXX XXXX XXXX
XXX XXXXX, XX. SECOND FLOOR PLAN
77
EXHIBIT "D"
WORK LETTER AGREEMENT
This Work Letter Agreement ("WORK LETTER") sets forth the
terms and conditions relating to construction of the initial tenant improvements
described in the Plans to be prepared and approved as provided below (the
"TENANT IMPROVEMENTS") in the Sublease Premises. Capitalized terms used but not
otherwise defined herein shall have the meanings set forth in the Sublease (the
"SUBLEASE") to which this Work Letter is attached and forms a part.
1. Base Building Work. The "Base Building Work" described on SCHEDULE 1 to this
EXHIBIT D, if any, has been performed by Landlord at Landlord's sole cost and
expense. Furthermore, a) Landlord represents that no Hazardous Materials were
used, to Landlord's actual knowledge, in the construction of the Sublease
Premises, except in compliance with all Regulations applicable to Hazardous
Material and the environment; and b) Landlord shall deliver the Sublease
Premises to Subtenant in compliance with all laws, rules, regulations and
ordinances, including the Americans with Disabilities Act of 1990.
2. Plans and Specifications.
2.1 Subtenant shall retain the services of Xxxx & Xxxxxxx (the "SPACE
PLANNER") to prepare a detailed space plan (the "SPACE PLAN") mutually
satisfactory to Landlord, Sublandlord and Subtenant for the construction of the
Tenant Improvements in the Sublease Premises. Subtenant shall submit the Space
Plan and any proposed revisions thereto to Landlord and Sublandlord for their
approval.
2.2 Based on the approved Space Plan, Subtenant shall cause the Space
Planner to prepare detailed plans, specifications and working drawings mutually
satisfactory to Landlord, Sublandlord and Subtenant for the construction of the
Tenant Improvements (the "PLANS") no later than thirty (30) days after full
execution of the Sublease Agreement. Landlord, Sublandlord and Subtenant shall
diligently pursue the preparation of the Plans and any proposed revisions
thereto, including the estimated cost of the Tenant Improvements. All necessary
revisions to the Space Plan and the Plans shall be made within three (3)
business days after Landlord's and Sublandlord's response thereto, until
Landlord and Sublandlord ultimately approve the Space Plan and Plans.
2.3 Subtenant shall be responsible for ensuring that the Plans are
compatible with the design, construction and equipment of the Building, comply
with applicable Regulations and the Standards (defined below), and contain all
such information as may be required to show locations, types and requirements
for all heat loads, people loads, floor loads, power and plumbing, regular and
special HVAC needs, telephone communications, telephone and electrical outlets,
lighting, light fixtures and related power, and electrical and telephone
switches, B.T.U. calculations, electrical requirements and special receptacle
requirements. The Plans shall also include mechanical, electrical, plumbing,
structural and engineering drawings mutually satisfactory to Landlord,
Sublandlord and Subtenant. Notwithstanding Landlord's and Sublandlord's
preparation, review and approval of the Space Plan and the Plans and any
revisions thereto, Landlord and Sublandlord shall have no responsibility or
liability whatsoever
D-1.
78
for any errors or omissions contained in the Space Plan or Plans or any
revisions thereto, or to verify dimensions or conditions, or for the quality,
design or compliance with applicable Regulations of any improvements described
therein or constructed in accordance therewith. Subtenant hereby waives all
claims against Landlord and Sublandlord relating to, or arising out of the
design or construction of, the Tenant Improvements.
2.4 Landlord and/or Sublandlord shall approve or disapprove the Space
Plan or Plans or any proposed revision thereto submitted to Landlord and
Sublandlord in Landlord's and Sublandlord's reasonable discretion, provided that
Landlord and Sublandlord shall not unreasonably withhold such approval. Landlord
and Sublandlord shall approve or disapprove any Space Plan, Plans or proposed
revisions thereto submitted to Landlord and Sublandlord for Landlord's and
Sublandlord's approval within three (3) business days after Landlord's and
Sublandlord's receipt thereof. If Landlord or Sublandlord has not approved or
disapproved in writing any Space Plan, Plans, or proposed revisions thereto
submitted to Landlord and Sublandlord within five (5) business days after
Landlord's and Sublandlord's receipt thereof, Landlord and Sublandlord shall be
deemed to have approved the same.
3. Specifications for Standard Tenant Improvements.
3.1 Specifications and quantities of standard building components which
will comprise and be used in the construction of the Tenant Improvements
("STANDARDS") are set forth in SCHEDULE 2 to this EXHIBIT D. As used herein,
"STANDARDS" OR "BUILDING STANDARDS" shall mean the standards for a particular
item selected from time to time by Landlord for the Building, including those
set forth on SCHEDULE 2 of this EXHIBIT D, or such other standards of equal or
better quality as may be mutually agreed between Landlord and Subtenant in
writing.
3.2 No deviations from the Standards are permitted without Landlord's
prior written approval, which will not be unreasonably withheld, conditioned or
delayed.
4. Tenant Improvement Cost.
4.1 The cost of the Tenant Improvements shall be paid for by Subtenant,
including, without limitation, the cost of Standards; space plans and studies;
architectural and engineering fees; permits, approvals and other governmental
fees; labor, material, equipment and supplies; construction fees and other
amounts payable to contractors or subcontractors; remediation and preparation of
the Sublease Premises for construction of the Tenant Improvements; taxes; filing
and recording fees; premiums for insurance and bonds; attorneys' fees; financing
costs; and all other costs expended or to be expended in the construction of the
Tenant Improvements.
4.2 Provided Subtenant is not in default under the Sublease, including
this Work Letter, beyond any applicable notice and cure period, Landlord shall
contribute a tenant improvement allowance not to exceed $1,504,000.00 ("TENANT
IMPROVEMENT ALLOWANCE") toward the cost of the initial Tenant Improvements
(including without limitation all construction costs, cabling, architecture,
design and engineering fees, permit fees and construction management fees) and
shall disburse the Tenant Improvement Allowance to Subtenant as follows: (a)
Twenty Percent (20%) of the Tenant Improvement Allowance within ten (10) days of
execution of the Sublease; (b) Seventy Percent (70%) of the Tenant Improvement
Allowance
D-2.
79
at Substantial Completion (as defined below) of the entire Sublease Premises;
and (c) the remaining balance of Ten Percent (10%) of the Tenant Improvement
Allowance upon submission by Subtenant to Landlord copies of a certificate of
completion executed by the Space Planner and Subtenant's contractor, and
unconditional mechanics' lien releases (which mechanics' lien releases shall be
executed by the subcontractors, labor suppliers and materialmen in addition to
Subtenant's contractor), in each case in form and substance reasonably
satisfactory to Landlord, and all appropriate bills and supporting documentation
for the work ordered by Subtenant or its contractor or any subcontractor
reasonably required by Landlord.
4.3 In the event the estimated cost of the design and construction of
the Tenant Improvements exceeds the Tenant Improvement Allowance, Subtenant
shall pay such excess cost to Subtenant's contractor.
4.4 For the purposes of this Work Letter, "Substantial Completion"
shall mean (A) all of the Sublease Premises' plumbing, heating, life safety,
ventilation, air conditioning and electrical systems are operational to the
extent necessary to service the Sublease Premises, (B) Landlord has
substantially completed all work required to be performed by Landlord in
accordance with this Work Letter, except minor "punch-list" items which shall
thereafter be promptly completed, (C) Subtenant has obtained a certificate of
occupancy for the Sublease Premises or its equivalent in accordance with this
Work Letter, and (D) Subtenant has been tendered access to the Sublease
Premises.
5. Construction of Tenant Improvements.
5.1 Within ten (10) days after Subtenant's, Sublandlord's and
Landlord's approval of the Plans and the estimated costs of the Tenant
Improvements, Subtenant shall cause the contractor to proceed to secure a
building permit and commence construction of the Tenant Improvements.
5.2 Subtenant shall be responsible for obtaining all governmental
approvals to the full extent necessary for the construction and installation of
the Tenant Improvements and for Subtenant's occupancy of the Sublease Premises,
in compliance with all applicable Regulations. Subtenant shall employ Reno
Contractors as the contractor or such other contractor or contractors as shall
be reasonably approved by Landlord in writing to construct the Tenant
Improvements in conformance with the approved Space Plan and Plans. The
construction contracts between Subtenant and the approved contractor shall be
subject to Landlord's prior reasonable approval and shall provide for progress
payments. The contractor(s) shall be duly licensed and Landlord's approval of
the contractor(s) shall be conditioned, among other things, upon the
contractor's reputation for quality of work, timeliness of performance and
integrity.
5.3 Sublandlord and Landlord shall not be liable for any direct or
indirect damages suffered by Subtenant as a result of delays in construction
beyond Landlord's and Sublandlord's reasonable control, including, but not
limited to, delays due to strikes or unavailability of materials or labor, or
delays caused by Subtenant (including delays by the Space Planner, the
contractor or anyone else performing services on behalf of Landlord or
Subtenant).
D-3.
80
5.4 All work to be performed on the Sublease Premises by Subtenant or
Subtenant's contractor or agents shall be subject to the following conditions:
(a) Such work shall proceed upon Landlord's written
approval of Subtenant's contractor, and public liability and
property damage insurance carried by Subtenant's contractor,
and shall further be subject to the provisions of Paragraphs
12 and 27 of the Master Lease.
(b) All work shall be done in conformity with a valid
building permit when required, a copy of which shall be
furnished to Sublandlord and Landlord before such work is
commenced, and in any case, all such work shall be performed
in a good and workmanlike and first-class manner, and in
accordance with all applicable Regulations and the
requirements and standards of any insurance underwriting
board, inspection bureau or insurance carrier insuring the
Sublease Premises pursuant to the Sublease. Notwithstanding
any failure by Sublandlord or Landlord to object to any such
work, neither Sublandlord nor Landlord shall have any
responsibility for Subtenant's failure to comply with all
applicable Regulations. Subtenant shall be responsible for
ensuring that construction and installation of the Tenant
Improvements will not affect the structural integrity of the
Building.
(c) Landlord or Landlord's agents shall have the
right to inspect the construction of the Tenant Improvements
by Subtenant during the progress thereof. If Landlord shall
give notice of faulty construction or any other deviation from
the approved Space Plan or Plans, Subtenant shall cause its
contractor to make corrections promptly. However, neither the
privilege herein granted to Landlord to make such inspections,
nor the making of such inspections by Landlord, shall operate
as a waiver of any right of Landlord to require good and
workmanlike construction and improvements erected in
accordance with the approved Space Plan or Plans.
(d) Subtenant shall cause its contractor to complete
the Tenant Improvements as soon as reasonably possible.
(e) Subtenant's construction of the Tenant
Improvements shall comply with the following: (i) the Tenant
Improvements shall be constructed in strict accordance with
the approved Space Plan or Plans; (ii) Subtenant and its
contractor shall submit schedules of all work relating to the
Tenant Improvements to Landlord for Landlord's approval within
two (2) business days following the later to occur of the
selection of the contractor and the approval of the Plans.
Landlord shall within three (3) business days after receipt
thereof inform Subtenant of any changes which are necessary
and Subtenant's contractor shall adhere to such corrected
schedule; and (iii) Subtenant shall abide by
D-4.
81
all reasonable rules made by Landlord with respect to the use
of freight, loading dock, and service elevators, storage of
materials, coordination of work with the contractors of other
tenants, and any other matter in connection with this Work
Letter, including, without limitation, the construction of the
Tenant Improvements.
(f) Subtenant or Subtenant's contractor or agents
shall arrange for necessary utility, hoisting and elevator
service with Landlord's contractor and shall pay such
reasonable charges for such services as may be charged by
Subtenant's or Landlord's contractor.
(g) Subtenant's entry to the Sublease Premises for
any purpose, including, without limitation, inspection or
performance of Subtenant construction by Subtenant's agents,
prior to the date Subtenant's obligation to pay Rent commences
shall be subject to all the terms and conditions of the
Sublease except the payment of Rent. Subtenant's entry shall
mean entry by Subtenant, its officers, contractors, licensees,
agents, servants, employees, guests, invitees, or visitors.
Landlord and Sublandlord shall have the right to post the
appropriate notices of non-responsibility and to require
Subtenant to provide Landlord and Sublandlord with evidence
that Subtenant has fulfilled its obligation to provide
insurance pursuant to the Sublease.
(h) Subtenant shall promptly reimburse Landlord upon
demand for any reasonable expense actually incurred by
Landlord by reason of faulty work done by Subtenant or its
contractors or by reason of inadequate clean-up.
(i) Subtenant hereby indemnifies and holds
Sublandlord and Landlord harmless with respect to any and all
costs, losses, damages, injuries and liabilities relating in
any way to any act or omission of Subtenant or Subtenant's
contractor or agents, or anyone directly or indirectly
employed by any of them, in connection with the Tenant
Improvements and any breach of Subtenant's obligations under
this Work Letter, or in connection with Subtenant's
non-payment of any amount arising out of the Tenant
Improvements. Such indemnity by Subtenant, as set forth above,
shall also apply with respect to any and all costs, losses,
damages, injuries, and liabilities related in any way to
Sublandlord's and Landlord's performance of any ministerial
acts reasonably necessary (i) to permit Subtenant to complete
the Tenant Improvements, and (ii) to enable Subtenant to
obtain any building permit or certificate of occupancy for the
Sublease Premises, except to the extent Landlord's actions are
associated with completing the Building shell or core.
D-5.
82
(j) Subtenant's contractor and the subcontractors
utilized by Subtenant's contractor shall guarantee to
Subtenant and for the benefit of Sublandlord and Landlord that
the portion of the Tenant Improvements for which it is
responsible shall be free from any defects in workmanship and
materials for a period of not less than one (1) year from the
date of completion thereof. Each of Subtenant's contractor and
the subcontractors utilized by Subtenant's contractor shall be
responsible for the replacement or repair, without additional
charge, of all work done or furnished in accordance with its
contract that shall become defective within one (1) year after
the later to occur of (i) completion of the work performed by
such contractor of subcontractors and (ii) the Sublease
Commencement Date. The correction of such work shall include,
without additional charge, all additional expenses and damages
incurred in connection with such removal or replacement of all
or any part of the Tenant Improvements, and/or the Building
and/or common areas that may be damaged or disturbed thereby.
All such warranties or guarantees as to materials or
workmanship of or with respect to the Tenant Improvements
shall be contained in the construction contract or subcontract
and shall be written such that such guarantees or warranties
shall inure to the benefit of Sublandlord, Landlord and
Subtenant, as their respective interests may appear, and can
be directly enforced by any of the parties. Subtenant
covenants to give to Landlord and Sublandlord any assignment
or other assurances which may be reasonably necessary to
effect such rights of direct enforcement.
(k) Commencing upon the execution of the Sublease,
Subtenant shall hold weekly meetings at a reasonable time with
the Space Planner and the contractor regarding the progress of
the preparation of the Plans and the construction of the
Tenant Improvements, which meetings shall be held at a
location designated by Subtenant, and Landlord and/or its
agents shall receive prior notice of, and shall have the right
to attend, all such meetings, and upon Landlord's advance
request, certain of Subtenant's contractors shall attend such
meetings.
6. Insurance Requirements.
6.1 All of Subtenant's contractors shall carry worker's compensation
insurance covering all of their respective employees, and shall also carry
public liability insurance, including property damage, all with limits, in form
and with companies as are required to be carried by Subtenant as set forth in
the Sublease.
6.2 Subtenant shall carry "Builder's All Risk" insurance in an amount
approved by Landlord covering the construction of the Tenant Improvements, and
such other insurance as Landlord may reasonably require, it being understood and
agreed that the Tenant Improvements shall be insured by Subtenant pursuant to
the Sublease immediately upon completion thereof. Such insurance shall be in
amounts and shall include such extended coverage endorsements as
D-6.
83
may be reasonably required by Landlord including, but not limited to, the
requirement that all of Subtenant's contractors shall carry excess liability and
Products and Completed Operation coverage insurance, each in amounts not less
than $500,000 per incident, $1,400,000 in aggregate, and in form and with
companies as are required to be carried by Subtenant as set forth in the
Sublease.
6.3 Certificates for all insurance carried pursuant to this Work Letter
must comply with the requirements of the Sublease and shall be delivered to
Landlord before the commencement of construction of the Tenant Improvements and
before the contractor's equipment is moved onto the site. In the event the
Tenant Improvements are damaged by any cause during the course of the
construction thereof, Subtenant shall immediately repair the same at Subtenant's
sole cost and expense. Subtenant's contractors shall maintain all of the
foregoing insurance coverage in force until the Tenant Improvements are fully
completed and accepted by Landlord, except for any Product and Completed
Operation Coverage insurance required by Landlord, which is to be issued on an
"occurrence" (as opposed to a "claims made") basis and be maintained for five
(5) years following completion of the work and acceptance by Landlord and
Subtenant. All policies carried under this Paragraph 6 shall insure Landlord and
Subtenant, as their interests may appear, as well as the contractors. All
insurance maintained by Subtenant's contractors shall preclude subrogation
claims by the insurer against anyone insured thereunder. Such insurance shall
provide that it is primary insurance as respects the owner and that any other
insurance maintained by owner is excess and noncontributing with the insurance
required hereunder.
6.4 Any insurance required to be carried by Subtenant under this Work
Letter may be carried under blanket insurance policies.
7. Notice of Completion. Within ten (10) days after completion of construction
of the Tenant Improvements, Subtenant shall cause a Notice of Completion to be
recorded in the office of the Recorder of the county in which the Building is
located in accordance with Section 3093 of the Civil Code of the State of
California or any successor statute, and shall furnish a copy thereof to
Landlord upon such recordation. If Subtenant fails to do so, Landlord may
execute and file the same on behalf of Subtenant as Subtenant's agent for such
purpose, at Subtenant's sole cost and expense. At the conclusion of
construction, (i) Subtenant shall cause the Space Planner and the contractor (i)
to update the approved working drawings as necessary to reflect all changes made
to the approved working drawings during the course of construction, (ii) to
certify to the best of their knowledge that the "record-set" of as-built
drawings are true and correct, which certification shall survive the expiration
or termination of the Lease, and (c) to deliver to Landlord two (2) sets of
copies of such record set of drawings within ninety (90) days following issuance
of a certificate of occupancy for the Sublease Premises, and (iii) Subtenant
shall deliver to Sublandlord and Landlord a copy of all warranties, guarantees,
and operating manuals and information relating to the improvements, equipment,
and systems in the Sublease Premises installed on behalf of Subtenant.
8. Work Letter Default. A default under this Work Letter shall constitute a
default under the Sublease, and the parties shall be entitled to all rights and
remedies under the Sublease in the
D-7.
84
event of a default hereunder by the other party (notwithstanding that the
Sublease Term thereof has not commenced).
IN WITNESS WHEREOF, the parties have entered into this Work Letter
which is of even date with the Sublease of which this is a part.
SUBLANDLORD:
FRANKLIN XXXXXXXXX CORPORATE
SERVICES, INC.,a Delaware corporation
By: /s/ XXXXXX X. XXXXXXX
-------------------------------------
XXXXXX X. XXXXXXX
Its: VICE PRESIDENT & SECRETARY
------------------------------------
SUBTENANT:
INTUIT INC., a Delaware corporation
By: [SIGNATURE ILLEGIBLE]
-------------------------------------
Its: CFO, SVP of FInance
------------------------------------
By: [SIGNATURE ILLEGIBLE]
-------------------------------------
Its: VP, Investor Relations and Treasurer
------------------------------------
LANDLORD:
XXXXXXX PROPERTIES, L.P., a California limited
partnership
By: Xxxxxxx Properties, Inc., a Maryland corporation
Its: General Partner
By: /S/ XXXXXXX X. XXXXXX
----------------------------------
Xxxxxxx X. Xxxxxx
Senior Vice President
By: /s/ XXXXX X. XXXXXXXX
----------------------------------
Its: Vice President
---------------------------------
Xxxxx X. Xxxxxxxx
D-8.
85
SCHEDULE 1
TO EXHIBIT D
BASE BUILDING WORK
Completed according to the plans and specifications prepared by Pacific
Cornerstone Architects consisting of sheets TS-1 to L-7 and dated June 1, 1998.
Landlord and Subtenant hereby acknowledge that Landlord has provided CAD
drawings of said plans to Subtenant.
D-9.
86
SCHEDULE 2
TO EXHIBIT D
BUILDING STANDARDS
The following constitutes the Building Standard tenant improvements
("STANDARDS") in the quantities specified:
With respect to all construction standards and guidelines, the ADC
Telecommunication initial tenant improvements in Building 2, located at 0000
Xxxxxxxx Xxxx, Xxx Xxxxx, XX 00000 shall be considered "Building Standards".
Landlord and Subtenant hereby acknowledge that Landlord has provided CAD
drawings of said plans to Subtenant.
X-00
00
0. RIGHT OF FIRST REFUSAL TO LEASE BUILDING 8.
(a) Provided Tenant satisfies the conditions set forth in Section 3
below, Tenant shall have the ongoing option to lease Building 8 from Landlord
(the "Building 8 Option") as follows:
(i) Landlord shall notify Tenant in writing ("Landlord's
Building 8 Notice") at the time Landlord intends to accept a bona fide written
letter of intent from a third party to lease Building 8 (the "Building 8
Offer"). Landlord's Building 8 Notice shall include the terms of the Building 8
Offer including the square footage, whether it be for a portion of Building 8,
the entire building or several buildings within the Project ("Building 8
Designated Space").
(ii) Within five (5) business days after Tenant's receipt of
Xxxxxxxx'x Xxxxxxxx 0 Xxxxxx, Xxxxxx shall notify Landlord in writing as to
Tenant's election to either (A) decline to lease the entire Building 8
Designated Space; or (B) commit to lease the entire Building 8 Designated Space
on the same economic terms as the Building 8 Offer ("Tenant's Building 8
Acceptance Notice").
(b) In the event Tenant commits to lease the entire Building 8
Designated Space, Landlord and Tenant shall enter into a new lease for the
entire Building 8 Designated Space, substantially in the form of the Phase A
Lease (as expressly modified by the Sublease), provided, that the economic teens
and conditions shall be the same as those in the Building 8 Offer, and provided
(i) Tenant's parking ratio is not less than that granted under the Phase A Lease
and (ii) the roof rights granted under Paragraph 38 (G) shall also apply to
Building 8, subject to any charges for such uses as agreed to in the Building 8
Offer.
(c) If Landlord has not executed a lease on the terms set forth in the
Building 8 Offer for the Building 8 Designated Space within six (6) months of
Landlord's Building 8 Notice to Tenant, the Building 8 Option shall be
reinstated.
2. OPTION TO RENEW THE LEASE OF THE PHASE A-2 PREMISES. Provided Tenant
satisfies the conditions set forth in Section 3 below, Tenant shall have the
option to enter into a new lease directly with Landlord, for one (1) additional
teen of five (5) years, commencing April 1, 2009 and expiring on March 31, 2014
(the "Renewal Option") pursuant to the procedure set forth below.
(a) If Tenant elects to exercise such option, then Tenant shall provide
Landlord with written notice no earlier then October 1, 2007, but no later than
January 1, 2008 ("Tenant's Intent to Renew Notice"). If Tenant fails to provide
such notice, Tenant shall have no further or additional right to the Renewal
Option.
(b) The Base Rent in effect at the expiration of the Sublease shall be
adjusted to reflect the current fair market rental for comparable space in the
Project and in other similar buildings in the Eastgate Technology Park area as
of April 1, 2009, taking into account the specific provisions of the Sublease
which will remain constant, and the Building amenities,
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location, identity, quality, age, conditions, term of lease, tenant
improvements, services provided, and other pertinent items, including tenant
concessions then offered in the market place.
(c) Landlord shall advise Tenant ("Landlord's Notice") of the new Base
Rent for the Phase A-2 Premises for the renewal term which will be based on
Landlord's good faith determination of fair market rental value ("Fair Market
Rate"), as well as additional terms and conditions for the renewal term, no
later than fifteen (15) days after receipt of Tenant's Intent to Renew Notice.
(d) Tenant shall notify Landlord of its election to exercise (the
"Exercise Notice") the Renewal Option within ten (10) days of Tenant's receipt
of Landlord's Notice.
(e) If Tenant disputes the amount claimed by Landlord as the Fair
Market Rate, Tenant may require that Landlord submit the dispute to arbitration.
The arbitration shall be conducted and determined in San Diego, California, in
accordance with the then prevailing rules of the American Arbitration
Association or its successor for arbitration of commercial disputes, except that
the procedures mandated by such rules shall be modified as follows:
(i) Tenant shall make demand for arbitration in writing on or
before it sends Tenant's Exercise Notice to Landlord hereunder, specifying
therein the name and address of the person to act as the arbitrator on Tenant's
behalf. The arbitrator shall be an independent real estate broker with at least
ten (10) years full-time commercial real estate experience in San Diego office
properties, prior to the date of Tenant's Intent to Renew Notice, who is
familiar with the Fair Market Rate of first-class business park space in San
Diego County. Failure on the part of Tenant to make the timely and proper demand
for such arbitration shall constitute a waiver of the right thereto. Within ten
(10) business days after the service of the demand for arbitration, Landlord
shall give notice to Tenant specifying the name and address of the person
designated by Landlord to act as arbitrator on its behalf, which arbitrator
shall be similarly qualified. If Landlord fails to notify Tenant of the
appointment of its arbitrator, within or by the time specified, then the
arbitrator appointed by Tenant shall be the arbitrator to determine the Fair
Market Rate for the subject premises. The arbitration shall be concluded within
sixty (60) days after the date of Tenant's Exercise Notice.
(ii) If two arbitrators are chosen as set forth above, the
arbitrators so chosen shall meet within ten (10) business days after the second
arbitrator is appointed and shall determine the Fair Market Rate. If the two
arbitrators shall be unable to agree upon a determination of Fair Market Rent
within such ten (10) business day period, they, themselves, shall appoint a
third arbitrator, who shall be a competent and impartial person with
qualifications similar to those required of the first two arbitrators pursuant
to this paragraph. In the event the arbitrators are unable to agree upon such
appointment within seven (7) days after expiration of such ten (10) day period,
the third arbitrator shall be selected by the parties themselves, if they can
agree thereon, within a further period of fifteen (15) business days. If the
parties do not agree on the third arbitrator within fifteen (15) business days
after expiration of the foregoing seven (7) day period, then either party, on
behalf of both, may request appointment of such a qualified arbitrator by (i)
the President of the San Diego Board of Realtors, or (ii) the chief arbitrator
of the San Diego County Chapter of the American Arbitration Association. The
three arbitrators shall decide the dispute, if it has not been previously
resolved, by following the procedures set
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89
forth in Subparagraph (iii) below. Each party shall pay the fees and expenses of
its respective arbitrator and both shall share the fees and expenses of the
third arbitrator. Attorneys' fees and expenses of counsel and of witnesses or
other experts for the respective parties shall be paid by the respective party
engaging such counsel or calling such witnesses or other experts.
(iii) The Fair Market Rate shall be fixed by the three
arbitrators in accordance with the following procedures. Each of the two (2)
arbitrators selected by the parties shall state, in writing, his or her
determination of the Fair Market Rate supported by the reasons therefor and
shall make counterpart copies for each of the other arbitrators. The arbitrators
shall arrange for a simultaneous exchange of such proposed resolutions within
ten (10) business days after appointment of the third arbitrator. If either
arbitrator fails to deliver to the other arbitrators his or her determination
within such ten (10) business day period, then the determination of the other
arbitrator shall be final and binding upon the parties. The role of the third
arbitrator shall be to select which of the two proposed resolutions most closely
approximates his or her determination of Fair Market Rate. The third arbitrator
shall have no right to propose a middle ground or any modification of either of
the two proposed resolutions. The resolution he or she chooses as the most
closely approximating his or her determination of the Fair Market Rate shall
constitute the decision of the arbitrators and shall be final and binding upon
the parties. If either party fails to pay its share of the fees of the third
arbitrator within thirty (30) days after receipt of an invoice, or fails to
execute and deliver any documents reasonably required by the third arbitrator
within thirty (30) days after receipt thereof, then the Fair Market Rate shall
be determined solely by the arbitrator selected by the other party.
(iv) In the event of a failure, refusal or inability of any
arbitrator to act, his or her successor shall be appointed by him or her, but in
the case of the third arbitrator, his or her successor shall be appointed in the
same manner as that set forth herein with respect to the appointment of the
original third arbitrator. The arbitrators shall attempt to decide the issue
within ten (10) business days after the appointment of the third arbitrator.
(f) Any exercise by Tenant of any option to renew under this Paragraph
shall be irrevocable. Tenant agrees to execute a new lease agreement
substantially in the form of the Phase A Lease, as expressly modified by the
Sublease, reflecting the foregoing terms and conditions, prior to the
commencement of the renewal term. The option to renew granted under this
Paragraph is not transferable; the parties hereto acknowledge and agree that
they intend that the option to renew the Sublease under this Paragraph shall be
"personal" to the specific Tenant named in this Lease and that in no event will
any assignee or sublessee have any rights to exercise such option to renew
(except for affiliates, subsidiaries or successors of Tenant). Furthermore,
Subtenant's parking ratio provided in the Basic Lease Information of the Master
Lease and the roof rights pursuant to Paragraph 38(G) of the Master Lease shall
be reflected in the renewal lease, except that Landlord shall have the right to
charge Tenant for such uses to the extent any such charges would not be
inconsistent with parking and roof right charges then imposed at similarly
situated office buildings in San Diego.
3. CONDITIONS TO EXERCISE OF RIGHTS TO LEASE AND OPTIONS TO RENEW.
Tenant's exercise of its right to lease Building 8 and Tenant's exercise of its
options to renew pursuant to Section 2 of this Agreement, is subject to Tenant's
satisfaction of each of the following conditions:
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90
(a) Tenant shall not be in material default (beyond any applicable
notice and cure periods) under the Sublease or lease at the time of exercise of
the right and has not committed more than one (1) material default (beyond any
applicable notice and cure periods set forth in the Sublease) during the
Sublease Term (as defined in the Sublease); and
(b) as to the Renewal Option, Tenant does not intend to assign or
sublet more than twenty-five percent (25%) of the Subleased Premises (excluding
its affiliates, subsidiaries or successors); or as to Tenant's right to lease
Building 8, Tenant (or its affiliates, subsidiaries or successors) is in
occupancy of not less than seventy-five percent (75%) of the Subleased Premises.
4. NOTICES. All notices, demands and requests shall be in writing and
shall be sent either by hand delivery or by a nationally recognized overnight
courier service (e.g., Federal Express), in either case return receipt
requested, to the address of the appropriate party. Notices, demands and
requests so sent shall be deemed given when the same are received. Notices to
Landlord shall be sent to the attention of:
Xxxxxxx Properties, L.P.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx
Notices to Tenant shall be sent to the attention of
Intuit Inc.
0000 Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Facilities Director
Fax No.: 858/0000-0000
With copies of all notices to:
Intuit Inc. 0000 Xxxxxx Xxxxxx, Xxxxxx Xxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Fax No.: 650/000-0000
And to:
Intuit Inc.
0000 Xxxxxx Xxxxxx, Xxxxxx Xxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Vice President - Finance and Administration
Fax No.: 650/0000-0000
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5. CONFIDENTIALITY. The covenants, obligations and conditions contained in
this Agreement shall remain strictly confidential. Tenant agrees to keep such
terms, covenants, obligations and conditions strictly confidential and not to
disclose such matters to any other landlord, tenant, or broker (other than
Tenant's brokers, attorneys and advisors).
6. ENTIRE AGREEMENT. It is understood and acknowledged that there are no
oral agreements between the parties hereto affecting this Agreement and this
Agreement supersedes and cancels any and all previous negotiations,
arrangements, brochures, agreements and understandings, if any, between the
parties hereto or displayed by Landlord to Tenant with respect to the subject
matter thereof, and none thereof shall be used to interpret or construe this
Agreement. None of the terms, covenants, conditions or provisions of this
Agreement can be modified, deleted or added to except in writing signed by the
parties hereto. All negotiations and oral agreements acceptable to both parties
have been merged into and are included herein. There are no other
representations or warranties between the parties, and all reliance with respect
to representations is based totally upon the representations and agreements
contained in this Agreement.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the date first written above.
LANDLORD:
XXXXXXX PROPERTIES, L.P., a California limited
partnership
By: Xxxxxxx Properties, Inc., a Maryland corporation
Its: General Partner
By: /s/ XXXXXXX X. XXXXXX
-----------------------------------------
Xxxxxxx X. Xxxxxx
Senior Vice President
TENANT:
Intuit Inc., a Delaware corporation
By: [SIGNATURE ILLEGIBLE]
-------------------------------------------------
Its: CFO, SVP of Finance
------------------------------------------------
6
