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EXHIBIT 10.6A
NET LEASE AGREEMENT
(Multi-Tenant)
by and between
LASERSCOPE,
A CALIFORNIA CORPORATION
("TENANT")
and
REALTEC PROPERTIES I, L.P.
A California limited partnership
("Landlord")
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TABLE OF CONTENTS
Page
----
1. Summary of Lease Provisions...........................................1
2. Property Leased.......................................................2
2.1 Premises.......................................................2
2.2 Improvements...................................................2
2.3 Acceptance of Premises.........................................3
3. Term..................................................................3
3.1 Commencement Date..............................................3
3.2 Delay of Commencement Date.....................................4
3.3 Early Occupancy................................................4
3.4 Tenant to Physically Occupy Premises...........................4
4. Rent..................................................................4
4.1 Rent...........................................................4
4.2 Late Charge....................................................4
4.3 Additional Rent................................................5
5. Security Deposit......................................................5
6. Use of Premises.......................................................5
6.1 Permitted Uses.................................................5
6.2 Tenant to Comply with Legal Requirements.......................5
6.3 Prohibited Uses................................................6
6.4 Hazardous Materials........................................... 6
7. Taxes............................................................... 7
7.1 Personal Property Taxes...................................... 8
7.2 Other Taxes Payable Separately by Tenant..................... 8
7.3 Common Taxes................................................. 8
8. Insurance; Indemnity; Waiver......................................... 9
8.1 Insurance by Landlord......................................... 9
8.2 Insurance by Tenant.......................................... 10
8.3 Failure by Tenant to Obtain Insurance........................ 10
8.4 Indemnification.............................................. 11
8.5 Claims by Tenant............................................. 11
8.6 Mutual Waiver of Subrogation................................. 11
9. Utilities........................................................... 11
10. Repairs and Maintenance............................................. 12
10.1 Landlord's Responsibilities.................................. 12
10.2 Tenant's Responsibilities.................................... 12
11. Common Area......................................................... 12
11.1 In General................................................... 12
11.2 Parking Areas................................................ 13
11.3 Maintenance by Landlord...................................... 13
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12. Common Area Charges................................................. 13
12.1 Definition................................................... 13
12.2 Payment of Common Area Charges by Tenant..................... 14
12.3 Exclusions From Common Area Charges. ........................ 15
13. Alterations and Improvements........................................ 15
13.1 In General................................................... 16
13.2 Removal Upon Lease Termination............................... 16
13.3 Landlord's Improvements...................................... 16
14. Default and Remedies................................................ 16
14.1 Events of Default............................................ 16
14.2 Remedies..................................................... 17
15. Damage or Destruction............................................... 18
15.1 Definition of Terms.......................................... 18
15.2 Insured Casualty............................................. 18
15.3 Uninsured Casualty........................................... 19
15.4 Tenant's Election............................................ 19
15.5 Damage or Destruction Near End of Lease Term................. 20
15.6 Termination of Lease......................................... 20
15.7 Abatement of Rentals......................................... 20
15.8 Liability for Personal Property.............................. 20
15.9 Waiver of Civil Code Remedies................................ 20
15.10 Damage or Destruction to the Building........................ 20
16. Condemnation........................................................ 20
16.1 Definition of Terms.......................................... 20
16.2 Rights....................................................... 21
16.3 Total Taking................................................. 21
16.4 Partial Taking............................................... 21
17. Liens............................................................... 21
17.1 Premises to Be Free of Liens................................. 21
17.2 Notice of Lien; Bond......................................... 21
18. Landlord's Right of Access to Premises.............................. 22
19. Landlord's Right to Perform Tenant's Covenants...................... 22
20. Lender Requirements................................................. 22
20.1 Subordination................................................ 22
20.2 Subordination Agreements..................................... 22
20.3 Approval by Lenders.......................................... 23
20.4 Attornment................................................... 23
20.5 Estoppel Certificates and Financial Statements............... 23
21. Holding Over........................................................ 24
22. Notices............................................................. 24
23. Attorneys' Fees..................................................... 24
24. Assignment, Subletting and Hypothecation............................ 24
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24.1 In General................................................... 24
24.2 Voluntary Assignment and Subletting.......................... 24
24.3 Collection of Rent........................................... 26
24.4 Corporations and Partnerships................................ 26
24.5 Reasonable Provisions........................................ 26
24.6 Attorneys' Fees.............................................. 26
24.7 Involuntary Transfer......................................... 26
24.8 Hypothecation................................................ 27
24.9 Binding on Successors........................................ 27
25. Successors.......................................................... 27
26. Landlord Default; Mortgagee Protection.............................. 27
27. Exhibits............................................................ 27
28. Surrender of Lease Not Merger....................................... 27
29. Waiver.............................................................. 27
30. General............................................................. 28
30.1 Captions and Headings........................................ 28
30.2 Definitions.................................................. 28
30.3 Copies....................................................... 28
30.4 Time of Essence.............................................. 28
30.5 Severability................................................. 28
30.6 Governing Law................................................ 29
30.7 Joint and Several Liability.................................. 29
30.8 Construction of Lease Provisions............................. 29
30.9 Tenant's Financial Statements................................ 29
30.10 Withholding of Landlord's Consent............................ 29
31. Signs............................................................... 29
32. Landlord as Party Defendant......................................... 29
33. Landlord Not a Trustee.............................................. 29
34. Interest............................................................ 30
35. Surrender of Premises............................................... 30
36. Labor Disputes...................................................... 30
37. No Partnership or Joint Venture..................................... 30
38. Entire Agreement.................................................... 30
39. Submission of Lease................................................. 30
40. Quiet Enjoyment..................................................... 31
41. Authority........................................................... 31
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42. Addendum.............................................................31
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NET LEASE AGREEMENT
(MULTI-TENANT)
For and in consideration of the rentals, covenants, and conditions hereinafter
set forth, Landlord hereby leases to Tenant, and Tenant hereby rents from
Landlord, the following described Premises for the term, at the rental and
subject to and upon all of the terms, covenants and agreements set forth in this
Net Lease Agreement, including Landlord's right to recover the Premises pursuant
to Paragraph 24 below ("Lease"):
1. Summary of Lease Provisions.
1.1 Tenant: LASERSCOPE, A CALIFORNIA CORPORATION, ("Tenant").
1.2 Landlord: REALTEC PROPERTIES I, L.P., A CALIFORNIA LIMITED
PARTNERSHIP ("Landlord").
1.3 Date of Lease, for reference purposes only: OCTOBER 18, 2000
1.4 Premises: That certain space hereinafter more particularly
described, situated in that certain building shown crosshatched on
the site plan attached hereto as Exhibit A and commonly referred to
as 0000 XXXXX XXXXX XXXXXX and located in the City of SAN XXXX,
County of SANTA XXXXX, State of California. (Paragraph 2.1)
1.5 Term: FIVE (5) YEARS (Paragraph 3)
1.6 Commencement Date: OCTOBER 23, 2000, subject to the provisions of
Paragraph 3 below. (Paragraph 3)
1.7 Ending Date: OCTOBER 31, 2005, unless sooner terminated pursuant to
the terms of this Lease. (Paragraph 3)
1.8 Rent:
MONTHS 01 TO 12 $33,703.00
MONTHS 13 TO 24 $35,051.00
MONTHS 25 TO 36 $36,453.00
MONTHS 37 TO 48 $37,911.00
MONTHS 49 TO 60 $39,427.00
(Paragraph 4)
Receipt of the first month's Rent is hereby acknowledged by
Landlord.
1.9 Use of Premises: GENERAL OFFICE USE, MANUFACTURING, STORAGE,
RESEARCH AND DEVELOPMENT, AND OTHER LEGAL RELATED USES.
(Paragraph 6)
1.10 Tenant's percentage share of Common Area Charges: 23.13% percent.
(Paragraph 12)
1.11 Security Deposit: THIRTY-NINE THOUSAND FIVE HUNDRED DOLLARS
($39,500.00). (Paragraph 5)
1.12 Addresses for Notices:
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To Landlord: REALTEC PROPERTIES I, L.P.
0000 XXXXX XXXXXX XXXXXX, XXXXX 000
XXX XXXX, XX 00000
To Tenant: To the Premises, with a courtesy copy to:
LASERSCOPE
0000 XXXXXXX XXXXXXX
XXX XXXX, XX 00000
1.13 Nonexclusive Right to Use No More Than: FORTY-ONE (41) parking
spaces within the Common Area. (Paragraph 11.2).
1.14 Summary Provisions in General. Parenthetical references in this
Paragraph 1 to other paragraphs in this Lease are for convenience of reference,
and designate some of the other Lease paragraphs where applicable provisions are
set forth. All of the terms and conditions of each such referenced paragraph
shall be construed to be incorporated within and made a part of each of the
above referring Summary of Lease Provisions. In the event of any conflict
between any Summary of Lease Provision as set forth above and the balance of the
Lease, the latter shall control.
2. Property Leased.
2.1 Premises. Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord upon the terms and conditions herein set forth, those certain
premises ("Premises") referred to in Paragraph 1.4 above and shown crosshatched
on the floor plan attached hereto as Exhibit B. In addition, Tenant shall have
such rights in and to the Common Area (defined in Paragraph 11.1 below) as are
more fully described in Paragraph 11.1 below.
The building in which the Premises are located is referred to herein as the
"Building." The "Land" shall mean and refer to all of the real property outlined
in red on Exhibit A, and shall not be limited to the parcel of real property on
which the Building is located (if the same is a separate legal parcel). Any
reference in this Lease to the "Parcel" shall be deemed a reference to the Land.
The Land, Building and any other building(s) or improvement(s) now or hereafter
located on the Land are referred to herein collectively as the "Project."
Landlord reserves the right to grant to tenants of the Project, and to the
agents, employees, servants, invitees, contractors, guests, customers and
representatives of such tenants or to any other user authorized by Landlord, the
nonexclusive right to use the Land for pedestrian and vehicular ingress and
egress and vehicular parking (excluding only that portion of the Land designated
herein for Tenant's exclusive use for vehicular parking, if any).
2.2 Improvements. The improvements to be constructed by Landlord for
Tenant's use in the Premises are set forth in detail on the attached Exhibit C.
The work described in Exhibit C includes any additional improvements to the
Premises, the Building and/or the Common Area that may be required pursuant to
Title 24 and Title III of the Americans with Disabilities Act of 1990, 42 U.S.C.
section 12101 et. Seq., and the regulations promulgated thereunder (the "ADA")
by reason of the construction of the improvements in the Premises.
In the event of changes to any of the work set forth in Exhibit C (whether
such changes are required by any public agency, or by reason of any error or
omission in plans because of information provided to Landlord by Tenant, or
because requested in writing by Tenant and accepted in writing by Landlord),
Tenant shall pay to Landlord Landlord's costs related to such changes before
work in regard to such changes is commenced; provided, however, in no event
shall Landlord's failure to demand such payment before commencement of work in
regard to such changes, or Tenant's failure to pay for the same before
commencement of work in regard to such changes be deemed to be a waiver of
Landlord's right to require or enforce collection of such payment for changes at
any time
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thereafter. Landlord's costs related to the changes shall include, without
limitation, all architectural, contractor, and engineering expenses, and the
cost of all buildings and other permits and inspection fees. Tenant acknowledges
that Landlord or a person or entity related to Landlord and/or controlled by
Landlord may serve as Landlord's architect, engineer, and/or contractor in
regard to the above-described work and in the event of any changes, Landlord's
costs shall be deemed to include architect, engineering and/or contractor
expenses at the rates charged to third parties by Landlord and/or such related
person or entity for such services, unless otherwise expressly provided in this
Lease.
Since any construction work on the Premises by Tenant prior to substantial
completion of the work required of Landlord pursuant to this Paragraph 2.2 may
interfere with the work required of Landlord or with Landlord's ability to
obtain a certificate of occupancy (or equivalent) therefore, any such work by
Tenant shall be subject to the provisions of Paragraph 13.1 hereof, and Landlord
may in its reasonable discretion withhold its consent to any such work by
Tenant.
2.3 Acceptance of Premises. By taking possession of the Premises, Tenant
shall be deemed to have accepted the Premises as being in good and sanitary
order, condition and repair and to have accepted the Premises in their condition
existing as of the date Tenant takes possession of the Premises, subject to all
applicable laws, covenants, conditions, restrictions, easements and other
matters of public record and the reasonable rules and regulations from time to
time promulgated by Landlord (and non-discriminatorily applied) governing the
use of any portion of the Project. Tenant acknowledges that neither Landlord nor
Landlord's agents have made any representation or warranty as to the suitability
of the Premises for the conduct of Tenant's business, the condition of the
Building or Premises, or the use or occupancy which may be made thereof and
Tenant has independently investigated and is satisfied that the Premises are
suitable for Tenant's intended use and that the Building and Premises meet all
governmental requirements for such intended use. In addition, except for
Landlord's obligation to perform the ADA Work, Landlord makes no representation
or warranty as to the compliance of the Building or the Project with the
requirements of the ADA.
Notwithstanding anything to the contrary contained in this Lease, Tenant's
acceptance of the Premises or submission of a "punchlist" shall not be deemed a
waiver of Tenant's right to have defects in the improvements constructed by
Landlord pursuant to Paragraph 2.2 or the Premises repaired at no cost to
Tenant. Tenant shall give notice to Landlord whenever any such defect becomes
reasonably apparent, and Landlord shall repair the defect as soon as
practicable. Landlord also hereby assigns to Tenant all warranties with respect
to the Premises, including warranties that would reduce Tenant's maintenance
obligations under this Lease, and shall cooperate with Tenant to enforce such
warranties. Finally, notwithstanding anything to the contrary contained in this
Lease, as of the Commencement Date, the roof (including roof screens and
membrane), plumbing, electrical (including all outlets), heating and air
conditioning systems in the Premises shall be in good working order and repair.
3. Term.
3.1 Commencement Date. The term of this Lease ("Lease Term") shall be
for the period specified in Paragraph 1.5 above, commencing on the date set
forth in Paragraph 1.6 ("Commencement Date"); provided, however, in the event
the ADA Work and any UBC Work to be performed by Landlord as to which Landlord
has been advised prior to the Execution Date, if any ("Landlord's Work"), is not
completed by the aforesaid Commencement Date, then the Commencement Date shall
be the date on which Landlord's Work is substantially completed. Landlord's Work
shall be deemed to be substantially completed upon the occurrence of the earlier
of the following:
(a) The date on which all improvements to be constructed by Landlord
have been substantially completed except for punch list items which do not
prevent Tenant from using the Premises for its intended use, and the appropriate
governmental approvals for occupancy of the Premises have been issued; or
(b) The date on which all improvements to be constructed by Landlord
would have been substantially completed except for such work as Landlord is
required to perform but which is delayed because of any of the following (each,
a "Tenant Delay"): (i) fault or neglect of Tenant, acts of Tenant or
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Tenant's agents (including without limitation delays caused by work done on the
Premises by Tenant or Tenant's agents or by acts of Tenant's contractors or
subcontractors); (ii) delays caused by change orders requested by Tenant or
required because of any errors or omissions in plans submitted by Tenant: and
(iii) such work as Landlord is required to perform but cannot complete until
Tenant performs necessary portions of construction work it has elected or is
required to do; or
(c) The date Tenant opens for business in the Premises.
If the improvements to be constructed by Landlord are deemed to be
substantially completed pursuant to Paragraph 3.1(b) above, Tenant acknowledges
that the Commencement Date shall occur, and therefore Tenant's obligation to pay
Rentals shall commence, earlier than the date of actual completion of Landlord's
Work. Landlord's Work shall be deemed to be substantially completed one day
earlier than the date of actual completion for each day that actual completion
is delayed by reason of a Tenant Delay.
If the Commencement Date is a date other than the date set forth in Paragraph
1.6, then the Ending Date set forth in Paragraph 1.7, the rental adjustment
dates set forth in Paragraph 1.8 and any other certain dates specified herein
shall be adjusted accordingly. When the Commencement Date, Ending Date, rental
adjustment dates, and such other dates become ascertainable, Landlord and Tenant
shall specify the same in writing, in the form of the attached Exhibit D, which
writing shall be deemed incorporated herein. Tenant's failure to execute and
deliver the letter attached hereto as Exhibit D within thirty (30) days after
Tenant receives written request from Landlord to do so (subject to any
legitimate disagreement by Tenant with the terms thereof, which both parties
shall use reasonable efforts to resolve) shall be a Default by Tenant hereunder.
The expiration of the Lease Term or sooner termination of this Lease is referred
to herein as the "Lease Termination."
3.2 Delay of Commencement Date. Landlord shall not be liable for any
damage or loss incurred by Tenant for Landlord's failure for whatever cause to
deliver possession of the Premises by a particular date (including the
Commencement Date), nor shall this Lease be void or voidable on account of such
failure to deliver possession of the Premises; provided that if Landlord does
not deliver possession of the Premises to Tenant by the date which is ninety
(90) days from the date this Lease is executed by both parties, Tenant shall
have the right to terminate this Lease by written notice delivered to Landlord
within five (5) days thereafter, and Landlord and Tenant shall be relieved of
their respective obligations hereunder; provided further that said ninety (90)
day period shall be extended by the number of days work on the Premises is
delayed due to fault or neglect of Tenant, acts of Tenant or Tenant's agents, or
due to acts of God, labor disputes, strikes, fires, rainy or stormy weather,
acts or failures to act of public agencies, inability to obtain labor or
materials, earthquake, war, insurrection, riots and other causes beyond
Landlord's reasonable control, excluding, however, delays caused solely by
Landlord, its agents, employees, contractors or invitees.
3.3 Early Occupancy. If Tenant takes possession of the Premises prior to
the Commencement Date, Tenant shall do so subject to all of the terms and
conditions hereof and shall pay the Rentals provided for herein
3.4 Tenant to Physically Occupy Premises. Tenant shall, no later than
thirty (30) days after the Commencement Date, go into actual physical occupancy
of the Premises and open the Premises for business in accordance with the uses
specified in Paragraph 6 below; provided, however, the date of Tenant's physical
occupancy of the Premises shall in no event extend the Commencement Date, the
Lease Termination date or the date the payment of Rentals hereunder commences.
Time is of the essence.
4. Rent.
4.1 Rent. Tenant shall pay to Landlord as rent for the Premises
("Rent"), in advance, on the first day of each calendar month, commencing on the
date specified in Paragraph 1.6 and continuing throughout the Lease Term (until
adjusted pursuant to Paragraph 4.4 below) the Rent set forth in Paragraph 1.8
above. Rent shall be prorated, based on thirty (30) days per month, for any
partial month during the Lease Term. Rent shall be payable without deduction,
offset, prior notice or demand in lawful money of the United States to Landlord
at the
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address herein specified for purposes of notice or to such other persons or such
other places as Landlord may designate in writing.
4.2 Late Charge. Tenant hereby acknowledges that late payment by Tenant
to Landlord of Rent will cause Landlord to incur costs not contemplated by this
Lease, the exact amount of which will be extremely difficult to ascertain. Such
costs include, but are not limited to, processing and accounting charges, and
late charges which may be imposed on Landlord by the terms of any mortgage or
deed of trust covering the Premises. Accordingly, Tenant shall pay to Landlord,
as Additional Rent (as defined in Paragraph 4.3 below), without the necessity of
prior notice or demand, a late charge equal to ten percent (10%) of any
installment of Rent which is not received by Landlord within ten (10) days after
the due date for such installment. The parties hereby agree that such late
charge represents a fair and reasonable estimate of the costs Landlord will
incur by reason of late payment by Tenant. In no event shall this provision for
a late charge be deemed to grant to Tenant a grace period or extension of time
within which to pay any installment of Rent or prevent Landlord from exercising
any right or remedy available to Landlord upon Tenant's failure to pay such
installment of Rent when due, including without limitation the right to
terminate this Lease. In the event any installment of Rent is not received by
Landlord by the thirtieth (30th) day after the due date for such installment,
such installment shall bear interest at the annual rate set forth in Paragraph
34 below, commencing on the thirty-first (31st) day after the due date for such
installment and continuing until such installment is paid in full.
4.3 Additional Rent. All taxes, charges, costs and expenses and other
sums which Tenant is required to pay hereunder (together with all interest and
charges that may accrue thereon in the event of Tenant's failure to pay the
same), and all damages, costs and reasonable expenses which Landlord may incur
by reason of any Default by Tenant shall be deemed to be additional rent
hereunder ("Additional Rent"). Additional Rent shall accrue commencing on the
Commencement Date. In the event of nonpayment by Tenant of any Additional Rent,
Landlord shall have all the rights and remedies with respect thereto as Landlord
has for the nonpayment of Rent. The term "Rentals" as used in this Lease shall
mean Rent and Additional Rent.
5. Security Deposit. Concurrently with Tenant's execution of this Lease,
Tenant shall deposit with Landlord a security deposit ("Security Deposit") in
the amount set forth in Paragraph 1.11 above. The Security Deposit shall be held
by Landlord as security for the faithful performance by Tenant of each and every
term, covenant and condition of this Lease applicable to Tenant, and not as
prepayment of Rent. If Tenant shall at any time fail to keep or perform any
term, covenant or condition of this Lease applicable to Tenant, including
without limitation, the payment of Rentals or those provisions requiring Tenant
to repair damage to the Premises caused by Tenant or to surrender the Premises
in the condition required pursuant to Paragraph 35 below, Landlord may, but
shall not be obligated to, and without waiving or releasing Tenant from any
obligation under this Lease, use, apply or retain the whole or any part of the
Security Deposit reasonably necessary for the payment of any amount which
Landlord may spend by reason of Tenant's default or as necessary to compensate
Landlord for any loss or damage which Landlord may suffer by reason of Tenant's
default. In the event Landlord uses or applies any portion of the Security
Deposit, Tenant shall, within five (5) business days after written demand by
Landlord, remit to Landlord sufficient funds to restore the Security Deposit to
its original sum. Failure by Tenant to so remit funds shall be a Default by
Tenant. Should Tenant comply with all of the terms, covenants and conditions of
this Lease applicable to Tenant, the balance of the Security Deposit shall be
returned to Tenant within fourteen (14) days after Lease Termination and
surrender of the Premises by Tenant; provided, however, if any portion of the
Security Deposit is to be applied to repair damages to the Premises caused by
Tenant or Tenant's agents, to clean the Premises, or to remove alterations and
restore the Premises pursuant to Paragraph 13.2 below, then the balance of the
Security Deposit shall be returned to Tenant no later than thirty (30) days
after the date Landlord receives possession of the Premises.
6. Use of Premises.
6.1 Permitted Uses. Tenant shall use the Premises and the Common Area
only in conformance with applicable governmental or quasi-governmental laws,
statutes, orders, regulations, rules, ordinances and other requirements now or
hereafter in effect (collectively, "Laws") for the purposes set forth in
Paragraph 1.9 above, and for no other purpose without the prior written consent
of Landlord, which consent shall
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not be unreasonably withheld or delayed, provided that such other use is in
conformance with applicable Laws. Tenant acknowledges and agrees that Landlord
has selected or will be selecting tenants for the Building in order to produce a
mix of tenant uses compatible and consistent with the design integrity of the
Building and with other uses of the Building; provided, however, the selection
of Building tenants shall be in Landlord's reasonable discretion and Landlord in
making such selection shall not be deemed to be warranting that any use of the
Building made by any such tenant is compatible or consistent with the design
integrity of the Building or other uses of the Building. Any change in use of
the Premises or the Common Area without the prior written consent of Landlord
shall be a Default by Tenant. Tenant and Tenant's agents shall comply with the
provisions of any Declaration of Covenants, Conditions, and Restrictions
affecting the Premises and the Common Area.
6.2 Tenant to Comply with Legal Requirements. Tenant shall, at its sole
cost, promptly comply with all Laws relating to or affecting Tenant's particular
use or occupancy of the Premises or use of the Common Area, now in force, or
which may hereafter be in force, including without limitation those relating to
utility usage and load or number of permissible occupants or users of the
Premises, whether or not the same are now contemplated by the parties; with the
provisions of all recorded documents affecting the Premises or the Common Area
insofar as the same relate to or affect Tenant's particular use or occupancy of
the Premises or use of the Common Area; and with the requirements of any board
of fire underwriters (or similar body now or hereafter constituted) relating to
or affecting Tenant's particular or occupancy of the Premises or use of the
Common Area. Tenant's obligations pursuant to this Paragraph 6.2 shall include,
without limitation, maintaining or restoring the Premises and making structural
and non-structural alterations and additions in compliance and conformity with
all Laws and recorded documents (including, without limitation, alterations or
additions to the Premises, Building or Common Area that are required pursuant to
the ADA), each relating to Tenant's particular use or occupancy of the Premises
during the Lease Term or alterations made to the Premises by Tenant. At
Landlord's option, Landlord may make the required alteration, addition or
change, and Tenant shall pay the cost thereof as Additional Rent. The foregoing
notwithstanding, Landlord shall make any alteration or addition required to
bring the Premises and that portion of the Common Area related to the Premises
into compliance with Title 24 and the ADA as of the Commencement Date. In
addition, Landlord shall perform the UBC Work if requested by Tenant pursuant to
Paragraph 2.2(b), subject to the cost limitations set forth therein. Tenant
shall obtain prior to taking possession of the Premises any permits, licenses or
other authorizations required for the lawful operation of its business at the
Premises. The judgment of any court of competent jurisdiction or the admission
of Tenant in any action or proceeding against Tenant, regardless of whether
Landlord is a party thereto or not, that Tenant has violated such Law or
recorded document relating to Tenant's particular use or occupancy of the
Premises or use of the Common Area shall be conclusive of the fact of such
violation by Tenant. Any alterations or additions undertaken by Tenant pursuant
to this Paragraph 6.2 shall be subject to the requirements of Paragraph 13.1
below.
6.3 Prohibited Uses. Tenant and Tenant's agents shall not commit or
suffer to be committed any waste upon the Premises. Tenant and Tenant's agents
shall not do or permit anything to be done in or about the Premises or Common
Area which will in any way obstruct or interfere with the rights of any other
tenants of the Building, other authorized users of the Common Area, or occupants
of neighboring property, or injure or annoy them. Tenant shall not conduct or
permit any auction or sale open to the public to be held or conducted on or
about the Premises or Common Area. Tenant and Tenant's agents shall not use or
allow the Premises to be used for any unlawful, immoral or hazardous purpose or
any purpose not permitted by this Lease, nor shall Tenant or Tenant's agents
cause, maintain, or permit any nuisance in, on or about the Premises. Tenant and
Tenant's agents shall not do or permit anything to be done in or about the
Premises nor bring or keep anything in the Premises which will in any way
increase the rate of any insurance upon any portion of the Project or any of its
contents, or cause a cancellation of any insurance policy covering any portion
of the Project or any of its contents, nor shall Tenant or Tenant's agents keep,
use or sell or permit to be kept, used or sold in or about the Premises any
articles which may be prohibited by a standard form policy of fire insurance. In
the event the rate of any insurance upon any portion of the Project or any of
its contents is increased because of Tenant's particular use of the Premises or
that of Tenant's agents, Tenant shall pay, as Additional Rent, the full cost of
such increase; provided, however this provision shall in no event be deemed to
constitute a waiver of Landlord's right to declare a default hereunder by reason
of the act or conduct of Tenant or Tenant's agents causing such increase or of
any other rights or remedies of Landlord in connection therewith. Tenant and
Tenant's agents shall not place any loads upon the floor, walls or ceiling of
the Premises which would endanger the Building or the structural elements
thereof or of the Premises, nor
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place any harmful liquids in the drainage system of the Building or Common Area.
No waste materials or refuse shall be dumped upon or permitted to remain upon
any part of the Project except in enclosed trash containers designated for that
purpose by Landlord. No materials, supplies, equipment, finished products (or
semi-finished products), raw materials, or other articles of any nature shall be
stored upon, or be permitted to remain on, any portion of the Project outside
the Premises.
6.4 Hazardous Materials. Neither Tenant nor Tenant's agents shall permit
the introduction, placement, use, storage, manufacture, transportation, release
or disposition (collectively "Release") of any Hazardous Material(s) (defined
below) on or about any portion of the Project without the prior written consent
of Landlord, which consent may be withheld in the sole and absolute discretion
of Landlord without any requirement of reasonableness in the exercise of that
discretion. Notwithstanding the immediately preceding sentence to the contrary,
Tenant may use de minimis quantities of the types of materials which are
technically classified as Hazardous Materials but commonly used in domestic or
office use to the extent not in an amount, which, either individually or
cumulatively, would be a "reportable quantity" under any applicable Law. Tenant
covenants that, at its sole cost and expense, Tenant will comply with all
applicable Laws with respect to the Release by Tenant, its agents, employees,
contractors or invitees of such permitted Hazardous Materials. Any Release
beyond the scope allowed in this paragraph shall be subject to Landlord's prior
consent, which may be withheld in Landlord's sole and absolute discretion, and
shall require an amendment to the Lease in the event Landlord does consent which
shall set forth the materials, scope of use, indemnification and any other
matter required by Landlord in Landlord's sole and absolute discretion. Tenant
shall indemnify, defend and hold Landlord and Landlord's agents harmless from
and against any and all claims, losses, damages, liabilities, or expenses
arising in connection with the Release of Hazardous Materials in violation of
Hazardous Materials Laws by Tenant, Tenant's agents or any other person using
the Premises with Tenant's knowledge and consent or authorization. Tenant's
obligation to defend, hold harmless and indemnify pursuant to this Paragraph 6.4
shall survive Lease Termination.
The foregoing indemnity shall not apply to, and Tenant shall not be
responsible for, the presence of Hazardous Materials on, under, or about the
Premises, Building or Common Area to the extent caused by any third parties or
by Landlord or Landlord's employees, agents, contractors or invitees.
Notwithstanding anything to the contrary contained in this Lease, Landlord
hereby represents and warrants to Tenant that, to the best of Landlord's
knowledge, (i) the Premises, the Building, and Project are in compliance with
all laws regarding Hazardous Materials ("Hazardous Materials Laws"); (ii) no
asbestos-containing materials exist in or on the Premises, the Building, or
Project; and (iii) any handling, transportation, storage or use of Hazardous
Materials that occurred in the Premises, the Building, or Project prior to the
Commencement Date is now in compliance with all Hazardous Materials Laws.
Landlord further represents and warrants that, to the best of Landlord's
knowledge, no litigation has been brought or threatened, nor any settlements
reached with any governmental or private party, concerning the actual or alleged
presence of Hazardous Materials on or about the Premises, Building, or Project,
nor has Landlord received any notice of any violation, or alleged violation, of
any Hazardous Materials Laws, pending claims or pending investigations with
respect to the presence of Hazardous Materials on or about the Premises,
Building, or Project. Landlord's representations and warranties set forth in
this paragraph shall survive termination of this Lease.
As used in this Lease, the term "Hazardous Materials" means any chemical,
substance, waste or material which has been or is hereafter determined by any
federal, state or local governmental authority to be capable of posing risk of
injury to health or safety, including without limitation, those substances
included within the definitions of "hazardous substances," "hazardous
materials," "toxic substances," or "solid waste" under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, the Resource
Conservation and Recovery Act of 1976, and the Hazardous Materials
Transportation Act, as amended, and in the regulations promulgated pursuant to
said laws; those substances defined as "hazardous wastes" in section 25117 of
the California Health & Safety Code, or as "hazardous substances" in section
25316 of the California Health & Safety Code, as amended, and in the regulations
promulgated pursuant to said laws; those substances listed in the United States
Department of Transportation Table (49 CFR 172.101 and amendments thereto) or
designated by the Environmental Protection Agency (or any successor agency) as
hazardous substances (see, e.g., 40 CFR Part 302 and amendments thereto); such
other substances, materials and wastes which are or become regulated or become
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classified as hazardous or toxic under any Laws, including without limitation
the California Health & Safety Code, Division 20, and Title 26 of the California
Code of Regulations; and any material, waste or substance which is (i)
petroleum, (ii) asbestos, (iii) polychlorinated biphenyls, (iv) designated as a
"hazardous substance" pursuant to section 311 of the Clean Water Act of 1977, 33
U.S.C. sections 1251 et seq. (33 U.S.C. Section 1321) or listed pursuant to
section 307 of the Clean Water Act of 1977 (33 U.S.C. Section 1317), as amended;
(v) flammable explosives; (vi) radioactive materials; or (vii) radon gas.
Landlord shall have the right, upon reasonable advance notice to Tenant, to
inspect, investigate, sample and/or monitor the Premises, the Building and
Common Area, including any soil, water, groundwater, or other sampling, to the
extent reasonably necessary to determine whether Tenant is complying with the
terms of this Lease with respect to Hazardous Materials. Unless a previous
inspection has disclosed a violation by Tenant of the covenants contained in
this Paragraph 6.4, such inspections, investigations, sampling and/or monitoring
shall be performed not more often than semi-annually. In connection therewith,
Tenant shall provide Landlord with reasonable access to all portions of the
Premises; provided, however, that Landlord shall avoid any unreasonable
interference with the operation of Tenant's business on the Premises. All costs
incurred by Landlord in performing such inspections, investigation, sampling
and/or monitoring shall be reimbursed by Tenant to Landlord as Additional Rent
within ten (10) days after Landlord's demand for payment.
7. Taxes.
7.1 Personal Property Taxes. Tenant shall cause Tenant's trade fixtures,
equipment, furnishings, furniture, merchandise, inventory, machinery, appliances
and other personal property installed or located on the Premises (collectively
the "personal property") to be assessed and billed separately from the Land and
the Building. Tenant shall pay before delinquency any and all taxes, assessments
and public charges levied, assessed or imposed upon or against Tenant's personal
property. If any of Tenant's personal property shall be assessed with the Land
or the Building, Tenant shall pay to Landlord, as Additional Rent, the amounts
attributable to Tenant's personal property within thirty (30) days after receipt
of a written statement from Landlord setting forth the amount of such taxes,
assessments and public charges attributable to Tenant's personal property.
Tenant shall comply with the provisions of any Law which requires Tenant to file
a report of Tenant's personal property located on the Premises.
7.2 Other Taxes Payable Separately by Tenant. Tenant shall pay (or
reimburse Landlord, as Additional Rent, if Landlord is assessed), prior to
delinquency or within thirty (30) days after receipt of Landlord's statement
thereof, any and all taxes, levies, assessments or surcharges payable by
Landlord or Tenant and relating to this Lease or the Premises (other than
Landlord's net income, succession, transfer, gift, franchise, estate or
inheritance taxes, and Taxes, as that term is defined in Paragraph 7.3(a) below,
payable as a Common Area Charge), whether or not now customary or within the
contemplation of the parties hereto, whether or not now in force or which may
hereafter become effective, including but not limited to taxes:
(a) Upon, allocable to, or measured by the area of the Premises or
the Rentals payable hereunder, including without limitation any gross rental
receipts, excise, or other tax levied by the state, any political subdivision
thereof, city or federal government with respect to the receipt of such Rentals;
(b) Upon or with respect to the use, possession occupancy, leasing,
operation and management of the Premises or any portion thereof;
(c) Upon this transaction or any document to which Tenant is a party
creating or transferring an interest or an estate in the Premises; or
(d) Imposed as a means of controlling or abating environmental
pollution or the use of energy or any natural resource (including without
limitation gas, electricity or water), including, without limitation, any
parking taxes, levies or charges or vehicular regulations imposed by any
governmental agency. Tenant shall also pay, prior to delinquency, all privilege,
sales, excise, use, business, occupation, or other taxes,
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assessments, license fees, or charges levied, assessed or imposed upon Tenant's
business operations conducted at the Premises.
In the event any such taxes are payable by Landlord and it shall not be
lawful for Tenant to reimburse Landlord for such taxes, then the Rentals payable
hereunder shall be increased to net Landlord the same net Rental after
imposition of any such tax upon Landlord as would have been payable to Landlord
prior to the imposition of any such tax.
7.3 Common Taxes.
(a) Definition of Taxes. The term "Taxes" as used in this Lease
shall collectively mean (to the extent any of the following are not paid by
Tenant pursuant to Paragraphs 7.1 and 7.2 above) all real estate taxes and
general and special assessments (including, but not limited to, assessments for
public improvements or benefit); personal property taxes; taxes based on
vehicles utilizing parking areas on the Land; taxes computed or based on rental
income or on the square footage of the Premises or the Building (including
without limitation any municipal business tax but excluding federal, state and
municipal net income taxes); environmental surcharges; excise taxes; gross
rental receipts taxes; sales and/or use taxes; employee taxes; water and sewer
taxes, levies, assessments and other charges in the nature of taxes or
assessments (including, but not limited to, assessments for public improvements
or benefit); and all other governmental, quasi-governmental or special district
impositions of any kind and nature whatsoever; regardless of whether any of the
foregoing are now customary or within the contemplation of the parties hereto
and regardless of whether resulting from increased rate and/or valuation, or
whether extraordinary or ordinary, general or special, unforeseen or foreseen,
or similar or dissimilar to any of the foregoing and which during the Lease Term
are laid, levied, assessed or imposed upon Landlord and/or become a lien upon or
chargeable against any portion of the Project under or by virtue of any present
or future laws, statutes, ordinances, regulations, or other requirements of any
governmental, quasi-governmental or special district authority whatsoever. The
term "environmental surcharges" shall include any and all expenses, taxes,
charges or penalties imposed by the Federal Department of Energy, Federal
Environmental Protection Agency, the Federal Clean Air Act, or any regulations
promulgated thereunder, or imposed by any other local, state or federal
governmental agency or entity now or hereafter vested with the power to impose
taxes, assessments or other types of surcharges as a means of controlling or
abating environmental pollution or the use of energy or any natural resource in
regard to the use, operation or occupancy of the Project. The term "Taxes" shall
include (to the extent the same are not paid by Tenant pursuant to Paragraphs
7.1 and 7.2 above), without limitation, all taxes, assessments, levies, fees,
impositions or charges levied, imposed, assessed, measured, or based in any
manner whatsoever upon or with respect to the use, possession, occupancy,
leasing, operation or management of the Project or in lieu of or equivalent to
any Taxes set forth in this Paragraph 7.3(a). In the event any such Taxes are
payable by Landlord and it shall not be lawful for Tenant to reimburse Landlord
for such Taxes, then the Rentals payable hereunder shall be increased to net
Landlord the same net Rental after imposition of any such Tax upon Landlord as
would have been payable to Landlord prior to the imposition of any such Tax.
Notwithstanding anything to the contrary contained in this Lease, Tenant
shall not be required to pay any portion of any tax or assessment (i) in excess
of the amount which would be payable if the tax or assessment were paid in
installments over the longest possible term; or (ii) imposed on land and
improvements other than the Project.
(b) Common Area Charge. All Taxes which are levied or assessed or
which become a lien upon any portion of the Project or which become due or
accrue during the Lease Term shall be a Common Area Charge, and Tenant shall pay
as Additional Rent each month during the Lease Term 1/12th of its annual share
of such Taxes, based on Landlord's estimate thereof, pursuant to Paragraph 12
below. Tenant's share of Taxes during any partial tax fiscal year(s) within the
Lease Term shall be prorated according to the ratio which the number of days
during the Lease Term or of actual occupancy of the Premises by Tenant,
whichever is greater, during such year bears to 365.
8. Insurance; Indemnity; Waiver.
8.1 Insurance by Landlord.
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(a) Landlord shall, during the Lease Term, procure and keep in force
the following insurance, the cost of which shall be a Common Area Charge,
payable by Tenant pursuant to Paragraph 12 below:
(i) Property Insurance. "All risk" property insurance,
including, without limitation, coverage for earthquake and flood; boiler and
machinery (if applicable); sprinkler damage; vandalism; malicious mischief; full
coverage plate glass insurance; and demolition, increased cost of construction
and contingent liability from change in building laws on the Building and the
Land, including any improvements or fixtures constructed or installed in the
Building and on the Land by Landlord. Such insurance shall be in the full amount
of the replacement cost of the foregoing, with reasonable deductible amounts,
which deductible amounts shall be a Common Area Charge, payable by Tenant
pursuant to Paragraph 12. Such insurance shall also include rental income
insurance, insuring that one hundred percent (100%) of the Rentals (as the same
may be adjusted hereunder) will be paid to Landlord for a period of up to twelve
(12) months if the Premises are destroyed or damaged, or such longer period as
may be required by any beneficiary of a deed of trust or any mortgagee of any
mortgage affecting the Premises. Such insurance shall not cover any leasehold
improvements installed in the Premises by Tenant at its expense, or Tenant's
equipment, trade fixtures, inventory, fixtures or personal property located on
or in the Premises;
(ii) Liability Insurance. Comprehensive general liability
(lessor's risk) insurance against any and all claims for personal injury, death
or property damage occurring in or about the Building or the Land. Such
insurance shall have a combined single limit of not less than Three Million
Dollars ($3,000,000) per occurrence and Five Million Dollars ($5,000,000)
aggregate; and
(iii) Other. Such other insurance as Landlord deems necessary
and prudent.
8.2 Insurance by Tenant. Tenant shall, during the Lease Term, at
Tenant's sole cost and expense, procure and keep in force the following
insurance:
(a) Personal Property Insurance. "All risk" property insurance,
including, without limitation; boiler and machinery (if applicable); sprinkler
damage; vandalism; malicious mischief; and demolition, increased cost of
construction and contingent liability from changes in building laws on all
leasehold improvements installed in the Premises by Tenant at its expense (if
any), and on all equipment, trade fixtures, inventory, fixtures and personal
property located on or in the Premises, including improvements or fixtures
hereinafter constructed or installed on the Premises. Such insurance shall be in
an amount equal to the full replacement cost of the aggregate of the foregoing
and shall provide coverage comparable to the coverage in the standard ISO all
risk form, when such form is supplemented with the coverages required above.
(b) Liability Insurance. Comprehensive general liability insurance
for the mutual benefit of Landlord and Tenant, against any and all claims for
personal injury, death or property damage occurring in or about the Premises and
Common Area or arising out of Tenant's or Tenant's agents' use of the Common
Area, use or occupancy of the Premises or Tenant's operations on the Premises.
Such insurance shall have a combined single limit of not less than One Million
Dollars ($1,000,000) per occurrence and Three Million Dollars ($3,000,000)
aggregate. Such insurance shall contain a cross-liability (severability of
interests) clause and an extended ("broad form") liability endorsement,
including blanket contractual coverage. The minimum limits specified above are
the minimum amounts required by Landlord, and may be revised by Landlord from
time to time to meet changed circumstances, including without limitation to
reflect (i) changes in the purchasing power of the dollar, (ii) changes
indicated by the amount of plaintiffs' verdicts in personal injury actions in
the State of California, or (iii) changes consistent with the standards required
by other landlords in the county in which the Premises are located. Such
liability insurance shall be primary and not contributing to any insurance
available to Landlord, and Landlord's insurance (if any) shall be in excess
thereto. Such insurance shall specifically insure Tenant's performance of the
indemnity, defense and hold harmless agreements contained in Paragraph 8.4,
although Tenant's obligations pursuant to Paragraph 8.4 shall not be limited to
the amount of any insurance required of or
16
carried by Tenant under this Paragraph 8.2(b). Tenant shall be responsible for
insuring that the amount of insurance maintained by Tenant is sufficient for
Tenant's purposes.
(c) Other. Such other insurance as required by law, ----- including,
without limitation, workers' compensation insurance.
(d) Form of the Policies. The policies required to be maintained by
Tenant pursuant to Paragraphs 8.2(a), (b), and (c) above shall be with
companies, on forms, with deductible amounts (if any), and loss payable clauses
reasonably satisfactory to Landlord, shall include Landlord and the beneficiary
or mortgagee of any deed of trust or mortgage encumbering the Premises and/or
the Land as additional insureds, and shall provide that such parties may,
although additional insureds, recover for any loss suffered by Tenant's
negligence. Certified copies of policies or certificates of insurance shall be
delivered to Landlord prior to the Commencement Date; a new policy or
certificate shall be delivered to Landlord at least ten (10) business days prior
to the expiration date of the old policy. Tenant shall have the right to provide
insurance coverage which it is obligated to carry pursuant to the terms hereof
in a blanket policy, provided such blanket policy expressly affords coverage to
the Premises and Common Area and to Tenant as required by this Lease. Tenant
shall obtain a written obligation on the part of Tenant's insurer(s) to notify
Landlord and any beneficiary or mortgagee of a deed of trust or mortgage
encumbering the Premises and/or the Land in writing of any delinquency in
premium payments and at least thirty (30) days prior to any cancellation or
modification of any policy. Tenant's policies shall provide coverage on an
occurrence basis and not on a claims made basis. In no event shall the limits of
any policies maintained by Tenant be considered as limiting the liability of
Tenant under this Lease.
8.3 Failure by Tenant to Obtain Insurance. If Tenant does not take out
the insurance required pursuant to Paragraph 8.2 or keep the same in full force
and effect, Landlord may, but shall not be obligated to, take out the necessary
insurance and pay the premium therefor, and Tenant shall repay to Landlord, as
Additional Rent, the amount so paid promptly upon demand. In addition, Landlord
may recover from Tenant and Tenant agrees to pay, as Additional Rent, any and
all reasonable expenses (including reasonable attorneys' fees) and damages which
Landlord may sustain by reason of the failure of Tenant to obtain and maintain
such insurance, it being expressly declared that the expenses and damages of
Landlord shall not be limited to the amount of the premiums thereon.
8.4 Indemnification. Tenant shall indemnify, hold harmless, and defend
Landlord with competent counsel reasonably satisfactory to Landlord (except for
Landlord's negligence or willful misconduct, or that of its agents, employees,
contractors or invitees) against all claims, losses, damages, expenses or
liabilities for injury or death to any person or for damage to or loss of use of
any property arising out of any occurrence in, on or about the Building, Common
Area or Land, if caused or contributed to by Tenant or Tenant's agents, or
arising out of any occurrence in, upon or at the Premises or on account of the
use, condition, occupational safety or occupancy of the Premises. Tenant's
indemnification, defense and hold harmless obligations under this Lease shall
include and apply to reasonable attorneys' fees, investigation costs, and other
costs actually incurred by Landlord. Tenant shall further indemnify, defend and
hold harmless Landlord from and against any and all claims, losses, damages,
liabilities or expenses arising from any breach or default in the performance of
any obligation on Tenant's part to be performed under the terms of this Lease.
The provisions of this Paragraph 8.4 shall survive Lease Termination with
respect to any damage, injury, death, breach or default occurring prior to such
termination. Except as set forth in this Paragraph 8.4, this Lease is made on
the express condition that Landlord shall not be liable for, or suffer loss by
reason of, injury to person or property, from whatever cause, in any way
connected with the condition, use, occupational safety or occupancy of the
Premises specifically including, without limitation, any liability for injury to
the person or property of Tenant or Tenant's agents.
8.5 Claims by Tenant. Except as expressly provided in Paragraph 8.4,
Landlord shall not be liable to Tenant, and Tenant waives all claims against
Landlord, for injury or death to any person, damage to any property, or loss of
use of any property in any portion of the Project by and from all causes,
including without limitation, any defect in any portion of the Project and/or
any damage or injury resulting from fire, steam, electricity, gas, water or
rain, which may leak or flow from or into any part of the Premises, or from
breakage, leakage, obstruction or other defects of pipes, sprinklers, wires,
appliances, plumbing, air conditioning or lighting
17
fixtures, whether the damage or injury results from conditions arising upon the
Premises or upon other portions of the Project or from other sources. Neither
Landlord nor Tenant shall be liable for any damages arising from any act or
negligence of any other tenant or user of the Project. Tenant or Tenant's agents
shall immediately notify Landlord in writing of any known defect in the Project.
The provisions of this Paragraph 8.5 shall not apply to any damage or injury
caused by Landlord's willful misconduct or negligence, or that of its agents,
employees, contractors or invitees.
8.6 Mutual Waiver of Subrogation. Landlord hereby releases Tenant, and
Tenant hereby releases Landlord, and their respective officers, agents,
employees and servants, from any and all claims or demands of damages, loss,
expense or injury to the Project, or to the furnishings, fixtures, equipment,
inventory or other property of either Landlord or Tenant in, about or upon the
Project, which is caused by or results from perils, events or happenings which
are the subject of insurance carried by the respective parties pursuant to this
Paragraph 8 and in force at the time of any such loss, whether due to the
negligence of the other party or its agents and regardless of cause or origin;
provided, however, that such waiver shall be effective only to the extent
permitted by the insurance covering such loss, to the extent such insurance is
not prejudiced thereby, and to the extent insured against.
9. Utilities. Tenant shall pay during the Lease Term and prior to
delinquency all charges for water, gas, light, heat, power, electricity,
telephone or other communication service, janitorial service, trash pick-up,
sewer and all other services supplied to Tenant or consumed by Tenant on the
Premises (collectively the "Services") and all taxes, levies, fees or surcharges
therefor. Tenant shall arrange for Services to be supplied to the Premises and
shall contract for all of the Services in Tenant's name prior to the
Commencement Date. The Commencement Date shall not be delayed by reason of any
failure by Tenant to so contract for Services. In the event that any of the
Services are not separately billed or metered to the Premises, or if any of the
Services are not separately metered as of the Commencement Date, the cost of
such Services shall be a Common Area Charge and Tenant shall pay, as Additional
Rent, Tenant's proportionate share of such cost to Landlord as provided in
Paragraph 12 below, except that if any meter services less than the entire
Building, Tenant's proportionate share of the costs measured by such meter shall
be based upon the square footage of the gross leasable area in the Premises as a
percentage of the total square footage of the gross leasable area of the portion
of the Building serviced by such meter. If Landlord determines that Tenant is
using a disproportionate amount of any commonly metered Services or an amount in
excess of the customary amount of any Services ordinarily furnished for use of
the Premises in accordance with the uses set forth in Paragraph 6 above, then
Landlord may elect to periodically charge Tenant, as Additional Rent, a sum
equal to Landlord's estimate of the cost of Tenant's excess use of any or all
such Services. The lack or shortage of any Services due to any cause whatsoever
(except for a lack or shortage proximately caused by the negligent acts or
willful misconduct Landlord or that of its agents, employees, contractors or
invitees) shall not affect any obligation of Tenant hereunder, and Tenant shall
faithfully keep and observe all the terms, conditions and covenants of this
Lease and pay all Rentals due hereunder, all without diminution, credit or
deduction.
10. Repairs and Maintenance.
10.1 Landlord's Responsibilities. Subject to the provisions of
Paragraph 15 below, Landlord shall maintain in reasonably good order and repair
the structural roof, roof membrane and roof surface, structural and exterior
walls (including painting thereof) and foundations of the Building. In addition,
Landlord shall maintain the service contract (covering periodic inspection and
servicing) for the heating and air conditioning systems of the Premises. Tenant
shall give prompt written notice to Landlord of any known maintenance work
required to be made by Landlord pursuant to this Paragraph 10.1. The costs of
(i) repairs and maintenance of the roof membrane, (ii) periodic inspection and
regular servicing of the heating and air conditioning systems of the Premises,
and (iii) painting the exterior of the Premises which are the obligation of
Landlord hereunder shall be a Common Area Charge and Tenant shall pay, as
Additional Rent, Tenant's share of such costs to Landlord as provided in
Paragraph 12 below. The costs of maintenance, repair, and replacement of the
structural parts of the Premises and the Building (including foundations, floor
slab, load bearing walls and roof structure) which are the obligation of
Landlord hereunder shall be at the cost and expense of Landlord and shall not be
a Common Area Charge, except for any repairs required because of the wrongful
act of Tenant or Tenant's agents, which repairs shall be made at the expense of
Tenant and as Additional Rent.
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10.2 Tenant's Responsibilities. Except as expressly provided in
Paragraph 10.1 above, and subject to the provisions of Paragraph 2.3 above,
Tenant shall, at its sole cost, maintain the entire Premises and every part
thereof, including without limitation, windows, skylights, window frames, plate
glass, freight docks, doors and related hardware, interior walls and partitions,
and the electrical, plumbing, lighting, heating and air conditioning systems in
good order, condition and repair. Tenant's obligations with respect to the
heating and air conditioning systems of the Premises shall include the
replacement of components thereof. If Tenant fails to make repairs or perform
maintenance work required of Tenant hereunder within fourteen (14) days after
written notice from Landlord specifying the need for such repairs or maintenance
work, Landlord or Landlord's agents may, in addition to all other rights and
remedies available hereunder or by law and without waiving any alternative
remedies, enter into the Premises and make such repairs and/or perform such
maintenance work. If Landlord makes such repairs and/or performs such
maintenance work, Tenant shall reimburse Landlord upon demand and as Additional
Rent, for the cost of such repairs and/or maintenance work. Landlord shall use
reasonable efforts to avoid causing any inconvenience to Tenant or interference
with the use of the Premises by Tenant or Tenant's agents during the performance
of any such repairs or maintenance. Landlord shall have no liability to Tenant
for any damage, inconvenience or interference with the use of the Premises by
Tenant or Tenant's agents as a result of Landlord performing any such repairs or
maintenance (except for the negligent acts or willful misconduct Landlord or
that of its agents, employees, contractors or invitees). Tenant shall reimburse
Landlord, on demand and as Additional Rent, for the cost of damage to the
Project caused by Tenant or Tenant's agents. Tenant expressly waives the
benefits of any statute now or hereafter in effect (including without limitation
the provisions of subsection 1 of Section 1932, Section 1941 and Section 1942 of
the California Civil Code and any similar law, statute or ordinance now or
hereafter in effect) which would otherwise afford Tenant the right to make
repairs at Landlord's expense (or to deduct the cost of such repairs from
Rentals due hereunder) or to terminate this Lease because of Landlord's failure
to keep the Premises in good and sanitary order.
11. Common Area.
11.1 In General. Subject to the terms and conditions of this Lease and
such rules and regulations as Landlord may from time to time prescribe, Tenant
and Tenant's agents shall have, in common with other tenants of the Building and
other permitted users, the nonexclusive right to use during the Lease Term the
access roads, parking areas, sidewalks, landscaped areas and other facilities on
the Land or in the Building designated by Landlord for the general use and
convenience of the occupants of the Building and other authorized users, which
areas and facilities are referred to herein as the "Common Area." This right to
use the Common Area shall terminate upon Lease Termination. Landlord reserves
the right to promulgate such reasonable rules and regulations relating to the
use of all or any portion of the Common Area and to amend such rules and
regulations from time to time with or without advance notice, as Landlord may
deem appropriate for the best interests of the occupants of the Building and
other authorized users. Any amendments to the rules and regulations shall be
effective as to Tenant, and binding on Tenant, upon delivery of a copy of such
rules and regulations to Tenant. Tenant and Tenant's agents shall observe such
rules and regulations and any failure by Tenant or Tenant's agents to observe
and comply with the rules and regulations shall be a Default by Tenant. Landlord
shall not be responsible for the nonperformance of the rules and regulations by
any tenants or occupants of the Building or other authorized users, nor shall
Landlord be liable to Tenant by reason of the noncompliance with or violation of
the rules and regulations by any other tenant or user.
11.2 Parking Areas. Tenant is allocated and Tenant and Tenant's
employees and invitees shall have the nonexclusive right to use not more than
the number of parking spaces set forth in Paragraph 1.13, the location of which
may be designated from time to time by Landlord. Neither Tenant nor Tenant's
agents shall at any time use more parking spaces than the number so allocated to
Tenant or park or permit the parking of their vehicles in any portion of the
Land not designated by Landlord as a nonexclusive parking area. Tenant and
Tenant's agents shall not have the exclusive right to use any specific parking
space except as called for in Paragraph 1.13 of the Lease. Notwithstanding the
number of parking spaces designated for Tenant's nonexclusive use, in the event
by reason of any Law relating to or affecting parking on the Land, or any other
cause beyond Landlord's reasonable
19
control, Landlord is required to reduce the number of parking spaces on the
Land, Landlord shall have the right to proportionately reduce the number of
Tenant's parking spaces and the nonexclusive parking spaces of other tenants in
the Building. Landlord reserves the right to promulgate such reasonable rules
and regulations relating to the use of such parking areas on the Land as
Landlord may deem appropriate. Landlord furthermore reserves the right, after
having given Tenant reasonable notice, to have any vehicles owned by Tenant or
Tenant's agents which are parked in violation of the provisions of this
Paragraph 11.2 or in violation of Landlord's rules and regulations relating to
parking, to be towed away at Tenant's cost. In the event Landlord elects or is
required by any law to limit or control parking on the Land, by validation of
parking tickets or any other method, Tenant agrees to participate in such
validation or other program under such reasonable rules and regulations as are
from time to time established by Landlord. Provided that Tenant's use, occupancy
and enjoyment of the Premises or access to the Premises is not unreasonably
interfered with, Landlord shall have the right to close, at reasonable times,
all or any portion of the parking areas for any reasonable purpose, including
without limitation, the prevention of a dedication thereof, or the accrual of
rights of any person or public therein. Tenant and Tenant's agents shall not at
any time park or permit the parking of (i) trucks or other vehicles (whether
owned by Tenant or other persons) adjacent to any loading areas so as to
interfere in any manner with the use of such areas, (ii) Tenant's or Tenant's
agents' vehicles or trucks, or the vehicles or trucks of Tenant's suppliers or
others, in any portion of the Common Area not designated by Landlord for such
use by Tenant, or (iii) any inoperative vehicles or equipment on any portion of
the Common Area.
11.3 Maintenance by Landlord. Landlord shall maintain the Common Area
in good repair and condition and shall manage the Common Area to reasonable and
customary standards. The expenditures for such maintenance shall be at the
reasonable discretion of Landlord. The cost of such maintenance, operation and
management shall be a "Common Area Charge," and Tenant shall pay to Landlord, as
Additional Rent, Tenant's share of such costs as provided in Paragraph 12 below.
12. Common Area Charges.
12.1 Definition. "Common Area Charge" or "Common Area Charges" as used
in this Lease shall mean and include all items identified in other paragraphs of
this Lease as a Common Area Charge and the total cost paid or incurred by
Landlord for the operation, maintenance, repair, and management of the Project
which costs shall include, without limitation: the cost of Services and
utilities supplied to the Project (to the extent the same are not separately
charged or metered to tenants of the Building); water; sewage; trash removal;
fuel; electricity; heat; lighting systems; professional management fee (not to
exceed three percent (3%) of the Premises' gross rental income); fire protection
systems; storm drainage and sanitary sewer systems; periodic inspection and
regular servicing of the heating and air conditioning systems of the Premises;
maintaining, repairing and replacing the roof membrane; property and liability
insurance covering the Building and the Land and any other insurance carried by
Landlord pursuant to Paragraph 8 above; window cleaning; cleaning, sweeping,
striping, resurfacing of parking and driveway areas; cleaning the Common Area
following storms or other severe weather; cleaning and repairing of sidewalks,
curbs, stairways; costs related to irrigation systems and Project signs; fees
for licenses and permits required for the operation of the Project; the cost of
complying with Laws, including, without limitation, maintenance, alterations and
repairs required in connection therewith (subject to the provisions of Paragraph
12.3 hereof); costs related to landscape maintenance; and the cost of contesting
the validity or applicability of any governmental enactments which may affect
Common Area Charges. If the Project contains more than one (1) building at any
time during the Lease Term, then the term "Common Area Charges" shall mean and
include all of the Common Area Charges allocable to the Building and a
proportionate share (based on the square footage of gross leasable area in the
Building as a percentage of the total of square footage of gross leasable area
of the buildings in the Project at the time in question) of all Common Area
Charges which are related to the Project in general and are not allocated to any
one building in the Project. Common Area Charges shall also include an
accounting fee to Landlord in an amount equal to five percent (5%) of the total
Common Area Charges. The cost of (i) capital repair items (i.e., items which
Landlord is required to capitalize and not expense in the current year for
federal income tax purposes), (ii) replacement of the roof membrane or roof
surface, (iii) resurfacing the parking lot, (iv) repainting the exterior of the
Building, and shall be amortized at ten percent (10%) over the useful life of
the repair or item, and be paid monthly by Tenant from the date of installation
or repair through Lease Termination.
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The specific examples of Common Area Charges stated in this Paragraph 12.1
are in no way intended to and shall not limit the costs comprising Common Area
Charges, nor shall such examples be deemed to obligate Landlord to incur such
costs or to provide such services or to take such actions except as Landlord may
be expressly required in other portions of this Lease, or except as Landlord, in
its reasonable discretion, may elect. All reasonable costs incurred by Landlord
in good faith for the operation, maintenance, repair and management of the
Project shall be deemed conclusively binding on Tenant.
Notwithstanding anything to the contrary contained in this Lease, within
thirty (30) days after receipt by Tenant of Landlord's statement of Common Area
Charges prepared pursuant to Paragraph 12.2 hereof for any prior annual period
during the Lease Term, Tenant or its authorized representative shall have the
right to inspect the books of Landlord during the business hours of Landlord at
Landlord's office or, at Landlord's option, such other location as Landlord
reasonably may specify, for the purpose of verifying the information contained
in the statement. Unless Tenant asserts specific errors within thirty (30) days
after receipt of the statement, the statement shall be deemed correct as between
Landlord and Tenant, except as to individual components subsequently determined
to be in error by future audit.
12.2 Payment of Common Area Charges by Tenant. Prior to the
Commencement Date, and annually thereafter, Landlord shall deliver to Tenant an
estimate of Common Area Charges for the succeeding year. Tenant's payment of
Common Area Charges shall be based upon Landlord's estimate of Common Area
Charges and shall be payable in equal monthly installments in advance on the
first day of each calendar month commencing on the date specified in Paragraph
1.6 and continuing throughout the Lease Term. Tenant shall pay to Landlord, as
Additional Rent and without deduction or offset, an amount equal to Tenant's
percentage share (stated in Paragraph 1.10 above) of the Common Area Charges.
Landlord shall revise its estimate of Common Area Charges on an annual
basis, and Landlord may adjust the amount of Tenant's monthly installment in the
event of a material change in Common Area Charges during any year. Landlord
shall furnish Tenant an annual statement (and a statement within one hundred
eighty (180) days after Lease Termination) showing the actual Common Area
Charges for the period to which Landlord's estimate pertains and shall
concurrently either xxxx Tenant for the balance due (payable upon demand by
Landlord) or credit Tenant's account for the excess previously paid.
Alternatively, Common Area Charges actually incurred or paid by Landlord
but not theretofore billed to Tenant, as invoiced by Landlord shall be payable
by Tenant within ten (10) days after receipt of Landlord's invoice, but not more
often than once each calendar month.
Notwithstanding the foregoing provisions of this Paragraph 12, Landlord and
Tenant agree that if Landlord incurs any costs for insurance, Services, repairs
or maintenance exclusively for or to the Premises or for less than all the
tenants of the Building and such costs are Common Area Charges, or if any
improvements installed in the Premises by Tenant or Landlord are valued by the
assessor disproportionately higher than those of any other tenants in the
Building, then Tenant's share of such Common Area Charges shall be equitably
increased by Landlord to reflect the portion of any such costs or taxes incurred
by Landlord in regard to the Premises, and Tenant shall pay the same to Landlord
as Additional Rent.
12.3 Exclusions From Common Area Charges. Notwithstanding anything to
the contrary contained in this Lease, in no event shall Tenant have any
obligation to perform, to pay directly, or to reimburse Landlord for, all or any
portion of the following repairs, maintenance, improvements, replacements,
premiums, claims, losses, fees, commissions, charges, disbursements, attorneys'
fees, experts' fees, costs and expenses (collectively, "Costs").
(a) Losses Caused by Others and Construction Defects. Costs
occasioned by the act, omission or violation of Law by Landlord, any other
occupant of the Project, or their respective agents, employees or contractors,
or Costs to correct any construction defect in the Premises (other than
alterations constructed by Tenant), Building or Project, or costs arising out of
the failure to construct the Building, Premises,
21
tenant improvements installed by Landlord pursuant to Paragraph 2.2, or Common
Areas in accordance with Laws and private restrictions applicable at the time of
construction thereof.
(b) Condemnation and Insurance Costs. Costs occasioned by the
exercise of the power of eminent domain, or increases in insurance Costs caused
by the activities of other occupant(s) of the Project.
(c) Reimbursable Expenses. Costs for which Landlord has a right of
reimbursement from others, or Costs which Tenant pays directly to a third
person.
(d) Utilities or Services. Costs (i) arising from the
disproportionate use of any utility or service supplied by Landlord to any other
occupant of the Project; or (ii) associated with utilities and services of a
type not provided to Tenant.
(e) Leasing Expenses. Costs incurred in connection with
negotiations or disputes with other occupant(s) of the Project, and Costs
arising from the violation by Landlord or any occupant of the Project (other
than Tenant) of the terms and conditions of any lease or other agreement.
(f) Reserves. Depreciation, amortization or other expense
reserves.
(g) Mortgages. Interest, charges and fees incurred on debt,
payments or mortgages and rent under ground leases.
(h) Hazardous Materials. Costs incurred to investigate the
presence of any Hazardous Material, Costs to respond to any claim of Hazardous
Material contamination or damage, Costs to remove any Hazardous Material from
the Premises, Building or Project or to remediate any Hazardous Material
contamination, and any judgments or other Costs incurred in connection with any
Hazardous Material exposure or release, except to the extent such Costs are
incurred by Landlord in accordance with Paragraph 6.4 or incurred by Landlord or
caused by reason of the storage, use or disposal of the Hazardous Material in
question by Tenant, its agents, employees, contractors or invitees.
(i) Management. Wages, salaries, compensation and labor burden for
any employee not stationed on the Project on a full-time basis, or any fee,
profit or compensation retained by Landlord or its affiliates for management and
administration of the Project in excess of the management fee and accounting fee
specified in Paragraph 12.1.
(j) Capital Improvements Required by Law. Costs in excess of the
monthly amortization described above for capital improvements or structural
alterations required by Law that do not relate solely to Tenant's particular use
or occupancy of the Premises, and Costs of retrofitting any part of the Project,
other than the Premises, in order to comply with the ADA in connection with the
leasing or alteration of portions of the Project other than the Premises.
13. Alterations and Improvements.
13.7 In General. Tenant shall not make, or permit to be made, any
alterations, removals, changes, enlargements, improvements or additions
(collectively "Alterations") in, on, about or to the Premises, or any part
thereof, including Alterations required pursuant to Paragraph 6.2, without the
prior written consent of Landlord (which consent shall not be unreasonably
withheld or delayed) and without acquiring and complying with the conditions of
all permits required for such Alterations by any governmental authority having
jurisdiction thereof. The term "Alterations" as used in this Paragraph 13 shall
also include all heating, lighting, electrical (including all wiring, conduit
outlets, drops, xxxx ducts, main and subpanels), air conditioning and
partitioning in the Premises made by Tenant regardless of how affixed to the
Premises. As a condition to the giving of its consent, Landlord may impose such
reasonable requirements as Landlord reasonably may deem necessary, including
without limitation, the manner in which the work is done; a right of approval of
the contractor by whom the work is to be
22
performed; the times during which the work is to be accomplished; the
requirement that Tenant post a completion bond in an amount and form reasonably
satisfactory to Landlord; and the requirement that Tenant reimburse Landlord, as
Additional Rent, for Landlord's actual costs for outside consultants incurred in
reviewing any proposed Alteration, whether or not Landlord's consent is granted.
In the event Landlord consents to the making of any Alterations by Tenant, the
same shall be made by Tenant at Tenant's sole cost and expense, in accordance
with the plans and specifications approved by Landlord and in a manner causing
Landlord and Landlord's agents and other tenants of the Building the least
interference and inconvenience practicable under the circumstances. Tenant shall
give written notice to Landlord five days prior to employing any laborer or
contractor to perform services related to, or receiving materials for use upon
the Premises, and prior to the commencement of any work of improvement on the
Premises. Any Alterations to the Premises made by Tenant shall be made in
accordance with applicable Laws and in a first-class workmanlike manner. In
making any such Alterations, Tenant shall, at Tenant's sole cost and expense,
file for and secure and comply with any and all permits or approvals required by
any governmental departments or authorities having jurisdiction thereof and any
utility company having an interest therein. In no event shall Tenant make any
structural changes to the Premises or make any changes to the Premises which
would weaken or impair the structural integrity of the Building.
13.2 Removal Upon Lease Termination. At the time Tenant requests
Landlord's consent, Tenant shall request a decision from Landlord in writing as
to whether Landlord will require Tenant, at Tenant's expense, to remove any such
Alterations and restore the Premises to their prior condition at Lease
Termination. In the event Tenant fails to earlier obtain Landlord's written
decision as to whether Tenant will be required to remove any Alteration, then no
less than ninety (90) nor more than one hundred twenty (120) days prior to the
expiration of the Lease Term, Tenant by written notice to Landlord shall request
Landlord to inform Tenant whether or not Landlord desires to have any of such
Alterations removed at Lease Termination. Following receipt of such notice,
Landlord may elect to have all or a portion of such Alterations removed from the
Premises at Lease Termination, and Tenant shall, at its sole cost and expense,
remove at Lease Termination such Alterations designated by Landlord for removal
and repair all damage to the Project arising from such removal. In the event
Tenant fails to so request Landlord's decision or fails to remove any such
Alterations designated by Landlord for removal, Landlord may remove any
Alterations made to the Premises by Tenant and repair all damage to the Premises
and Common Area arising from such removal, and may recover from Tenant all
reasonable costs and expenses incurred thereby. Tenant's obligation to pay such
costs and expenses to Landlord shall survive Lease Termination. Unless Landlord
elects to have Tenant remove (or, upon Tenant's failure to obtain Landlord's
decision, Landlord removes) any such Alterations, all such Alterations, except
for moveable furniture, personal property and equipment, and trade fixtures of
Tenant not affixed to the Premises, shall become the property of Landlord upon
Lease Termination (without any payment therefor) and remain upon and be
surrendered with the Premises at Lease Termination.
13.3 Landlord's Improvements. All fixtures, improvements or equipment
which are installed, constructed on or attached to the Premises, Building or
Common Area by Landlord shall be a part of the realty and belong to Landlord.
14. Default and Remedies.
14.8 Events of Default. The term "Default by Tenant" as used in this
Lease shall mean the occurrence of any of the following events:
(a) Tenant's failure to pay when due any Rentals;
(b) Commencement and continuation for at least sixty (60) days of
any case, action or proceeding by, against or concerning Tenant under any
federal or state bankruptcy, insolvency or other debtor's relief law, including
without limitation, (i) a case under Title 11 of the United States Code
concerning Tenant, whether under Chapter 7, 11, or 13 of such Title or under any
other Chapter, or (ii) a case, action or proceeding seeking Tenant's financial
reorganization or an arrangement with any of Tenant's creditors;
(c) Voluntary or involuntary appointment of a receiver, trustee,
keeper or other person who takes possession for more than sixty (60) days of
substantially all of Tenant's assets or of any asset
23
used in Tenant's business on the Premises, regardless of whether such
appointment is as a result of insolvency or any other cause;
(d) Execution of an assignment for the benefit of creditors of
substantially all assets of Tenant available by law for the satisfaction of
judgment creditors;
(e) Commencement of proceedings for winding up or dissolving
(whether voluntary or involuntary) the entity of Tenant, if Tenant is a
corporation or a partnership;
(f) Levy of a writ of attachment or execution on Tenant's interest
under this Lease, if such writ continues for a period of thirty (30) days;
(g) Transfer or attempted Transfer of this Lease or the Premises
by Tenant contrary to the provisions of Paragraph 24 below; or
(h) Breach by Tenant of any term, covenant, condition, warranty,
or other provision contained in this Lease or of any other obligation owing or
due to Landlord.
14.2 Remedies. Upon any Default by Tenant, Landlord shall have the
following remedies, in addition to all other rights and remedies provided by
law, to which Landlord may resort cumulatively, or in the alternative:
14.2.1 Termination. Upon any Default by Tenant, Landlord shall
have the right (but not the obligation) to give written notice to Tenant of such
default and terminate this Lease and Tenant's right to possession of the
Premises if (i) such default is in the payment of Rentals and is not cured
within seven (7) days after any such notice, or, (ii) with respect to the
defaults referred to in subparagraphs 14.1(d), (e), (g) and (h), such default is
not cured within thirty (30) days after any such notice (or if a default under
subparagraph 14.1(h) cannot be reasonably cured within thirty (30) days, if
Tenant does not commence to cure the default within the thirty (30) day period
or does not diligently and in good faith prosecute the cure to completion), or,
(iii) with respect to the defaults specified in subparagraphs 14.1(b), (c) and
(f) such default is not cured within the respective time periods specified in
those subparagraphs. The parties agree that any notice given by Landlord to
Tenant pursuant to this Paragraph 14.2.1 shall be sufficient notice for purposes
of California Code of Civil Procedure Section 1161 and Landlord shall not be
required to give any additional notice in order to be entitled to commence an
unlawful detainer proceeding. Upon termination of this Lease and Tenant's right
to possession of the Premises, Landlord shall have the right to recover from
Tenant:
(a) The worth at the time of award of the unpaid Rentals
which had been earned at the time of termination;
(b) The worth at the time of award of the amount by which
the Rentals which would have been earned after termination until the time of
award exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided;
(c) The worth at the time of award (computed by discounting
at the discount rate of the Federal Reserve Bank of San Francisco at the time of
award plus one percent) of the amount by which the Rentals for the balance of
the Lease Term after the time of award exceed the amount of such rental loss
that Tenant proves could be reasonably avoided;
(d) Any other amounts necessary to compensate Landlord for
all detriment proximately caused by the Default by Tenant or which in the
ordinary course of events would likely result, including without limitation the
following:
(i) Expenses in retaking possession of the Premises;
24
(ii) Expenses for cleaning, repairing or restoring the
Premises;
(iii) Any unamortized real estate brokerage commission
paid in connection with this Lease;
(iv) Expenses for removing, transporting, and storing
any of Tenant's property left at the Premises (although Landlord shall have no
obligation to remove, transport, or store any such property);
(v) Expenses of reletting the Premises, including
without limitation, brokerage commissions for the remaining term of the lease
and reasonable attorneys' fees;
(vi) Reasonable attorneys' fees and court costs; and
(vii) Costs of carrying the Premises such as repairs,
maintenance, taxes and insurance premiums, utilities and security precautions
(if any).
(e) The "worth at the time of award" of the amounts
referred to in subparagraphs (a) and (b) of this Paragraph 14.2.1 is computed by
allowing interest at an annual rate equal to the greater of: ten percent (10%);
or five percent (5%) plus the rate established by the Federal Reserve Bank of
San Francisco, as of the twenty-fifth (25th) day of the month immediately
preceding the Default by Tenant, on advances to member banks under Sections 13
and 13(a) of the Federal Reserve Act, as now in effect or hereafter from time to
time amended, not to exceed the maximum rate allowable by law.
14.2,1 Continuance of Lease. Upon any Default by Tenant and unless
and until Landlord elects to terminate this Lease pursuant to Paragraph 14.2.1
above, this Lease shall continue in effect after the Default by Tenant and
Landlord may enforce all its rights and remedies under this Lease, including
without limitation, the right to recover payment of Rentals as they become due.
Neither efforts by Landlord to mitigate damages caused by a Default by Tenant
nor the acceptance of any Rentals shall constitute a waiver by Landlord of any
of Landlord's rights or remedies, including the rights and remedies specified in
Paragraph 14.2.1 above.
15. Damage or Destruction.
15.9 Definition of Terms. For the purposes of this Lease, the term: (a)
"Insured Casualty" means damage to or destruction of the Premises from a cause
actually insured against, or required by this Lease to be insured against, for
which the insurance proceeds paid or made available to Landlord are sufficient
to rebuild or restore the Premises under then existing building codes to the
condition existing immediately prior to the damage or destruction; and (b)
"Uninsured Casualty" means damage to or destruction of the Premises from a cause
not actually insured against, or not required to be insured against, or from a
cause actually insured against but for which the insurance proceeds paid or made
available to Landlord are for any reason insufficient to rebuild or restore the
Premises under then existing building codes to the condition existing
immediately prior to the damage or destruction, or from a cause actually insured
against but for which the insurance proceeds are not paid or made available to
Landlord within ninety (90) days of the event of damage or destruction.
15.2 Insured Casualty.
15.2.1 Rebuilding Required. In the event of an Insured Casualty
where the extent of damage or destruction is less than twenty-five percent (25%)
of the then full replacement cost of the Premises, Landlord shall rebuild or
restore the Premises to the condition existing immediately prior to the damage
25
or destruction, provided the damage or destruction was not a result of a
negligent or willful act of Tenant, and that there exist no governmental codes
or regulations that would interfere with Landlord's ability to so rebuild or
restore.
15.2.2 Landlord's Election. In the event of an Insured Casualty
where the extent of damage or destruction is equal to or greater than
twenty-five percent (25%) of the then full replacement cost of the Premises,
Landlord may, at its option and at its sole discretion, rebuild or restore the
Premises to the condition existing immediately prior to the damage or
destruction, or terminate this Lease. Landlord shall notify Tenant in writing
within sixty (60) days after the event of damage or destruction of Landlord's
election to either rebuild or restore the Premises or terminate this Lease.
15.2.3 Continuance of Lease. If Landlord is required to rebuild or
restore the Premises pursuant to Paragraph 15.2.1 or if Landlord elects to
rebuild or restore the Premises pursuant to Paragraph 15.2.2, this Lease shall
remain in effect and Tenant shall have no claim against Landlord for
compensation for inconvenience or loss of business during any period of repair
or restoration.
15.3 Uninsured Casualty.
15.3.1 Landlord's Election. In the event of an Uninsured Casualty,
Landlord may, at its option and at its sole discretion (i) rebuild or restore
the Premises as soon as reasonably possible at Landlord's expense (unless the
damage or destruction was caused by a negligent or willful act of Tenant, in
which event Tenant shall pay all costs of rebuilding or restoring), in which
event this Lease shall continue in full force and effect or (ii) terminate this
Lease, in which event Landlord shall give written notice to Tenant within sixty
(60) days after the event of damage or destruction of Landlord's election to
terminate this Lease as of the date of the event of damage or destruction, and
if the damage or destruction was caused by a negligent or willful act of Tenant,
Tenant shall be liable therefor to Landlord.
15.3.2 Tenant's Ability to Continue Lease. If Landlord elects to
terminate this Lease and the extent of damage or destruction is less than
twenty-five percent (25%) of the then full replacement cost of the Premises or
the proceeds paid or made available to Landlord are for any reason insufficient
to rebuild or restore the Premises under then existing building codes to the
condition existing immediately prior to the damage or destruction, and if there
exist no governmental codes or regulations that would interfere with Landlord's
ability to so repair or restore, then Tenant may nevertheless cause the Lease to
continue in effect by (i) notifying Landlord in writing within ten (10) days
after Landlord's notice of termination of Tenant's agreement to pay all costs of
rebuilding or restoring not covered by insurance, and (ii) providing Landlord
with reasonable security for or assurance of such payment. Tenant shall pay to
Landlord in cash no later than thirty (30) days prior to the date of
commencement of construction the reasonable estimated cost of rebuilding or
restoring. In the event Tenant fails to pay such cost to Landlord by the date
specified, Landlord may immediately terminate the Lease and recover from Tenant
all reasonable costs incurred by Landlord in preparation for construction. If
the actual cost of rebuilding or restoring exceeds the estimated cost of such
work, Tenant shall pay the difference to Landlord in cash upon notification by
Landlord of the final cost. If the cost of rebuilding or restoring is less than
the estimated cost of such work, Tenant shall be entitled to a refund of the
difference upon completion of the rebuilding or restoring and determination of
final cost.
15.4 Tenant's Election. Notwithstanding anything to the contrary
contained in this Paragraph 15, Tenant may elect to terminate this Lease in the
event the Premises are damaged or destroyed and, in the reasonable opinion of
Landlord's architect or construction consultants, the restoration of the
Premises cannot be substantially completed within one hundred eighty (180) days
after the event of damage or destruction. Tenant's election shall be made by
written notice to Landlord within ten (10) days after Tenant receives from
Landlord the estimate of the time needed to complete repair or restoration of
the Premises. If Tenant does not deliver said notice within said ten (10) day
period, Tenant may not later terminate this Lease even if substantial completion
of the rebuilding or restoration occurs subsequent to said one hundred eighty
(180) day period, provided that Landlord is proceeding with diligence to rebuild
or restore the Premises. If Tenant delivers said notice within said ten (10) day
period, this Lease shall terminate as of the date of the event of damage or
destruction.
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15.5 Damage or Destruction Near End of Lease Term. Notwithstanding
anything to the contrary contained in this Paragraph 15, in the event the
Premises are damaged or destroyed in whole or in part (regardless of the extent
of damage) from any cause during the last twelve (12) months of the Lease Term,
Landlord or Tenant may, at its option, terminate this Lease as of the date of
the event of damage or destruction by giving written notice to the other of its
election to do so within thirty (30) days after the event of such damage or
destruction. For purposes of this Paragraph 15.5, if Tenant has been granted an
option to extend or renew the Lease Term pursuant to another provision of this
Lease, then the damage or destruction shall be deemed to have occurred during
the last twelve (12) months of the Lease Term if Tenant fails to exercise its
option to extend or renew within twenty (20) days after the event of damage or
destruction.
15.6 Termination of Lease. If the Lease is terminated pursuant to this
Paragraph 15, the unused balance of the Security Deposit shall be refunded to
Tenant. The current Rent shall be proportionately reduced during the period
following the event of damage or destruction until the date on which Tenant
surrenders the Premises, based upon the extent to which the damage or
destruction interferes with Tenant's business conducted in the Premises, as
reasonably determined by Landlord and Tenant, to the extent such loss is covered
as an insured peril by the insurance carried by Landlord pursuant to Paragraph
8.1. All other Rentals due hereunder shall continue unaffected during such
period. The proceeds of insurance carried by Tenant pursuant to Paragraph 8.2
shall be paid to Landlord and Tenant, as their interests appear.
15.7 Abatement of Rentals. If the Premises are to be rebuilt or
restored pursuant to this Paragraph 15, the then current Rentals shall be
proportionately reduced during the period of repair or restoration, based upon
the extent to which the making of repairs interferes with Tenant's business
conducted in the Premises, as reasonably determined by Landlord and Tenant, to
the extent such loss is covered as an insured peril by the insurance carried, or
required to be carried, by Landlord pursuant to Paragraph 8.1.
15.8 Liability for Personal Property. Except for the negligent acts or
willful misconduct Landlord or that of its agents, employees, contractors or
invitees, in no event shall Landlord have any liability for, nor shall it be
required to repair or restore, any injury or damage to any Alterations to the
Premises made by Tenant, trade fixtures, equipment, merchandise, furniture, or
any other property installed by Tenant or at the expense of Tenant. If Landlord
or Tenant do not elect to terminate this Lease pursuant to this Paragraph 15,
Tenant shall be obligated to promptly rebuild or restore the same to the
condition existing immediately prior to the damage or destruction in accordance
with the provisions of Paragraph 13.1.
15.9 Waiver of Civil Code Remedies. Landlord and Tenant acknowledge
that the rights and obligations of the parties upon damage or destruction of the
Premises are as set forth herein; therefore Tenant hereby expressly waives any
rights to terminate this Lease upon damage or destruction of the Premises,
except as specifically provided by this Lease, including without limitation any
rights pursuant to the provisions of Subdivision 2 of Section 1932 and
Subdivision 4 of Section 1933 of the California Civil Code, as amended from time
to time, and the provisions of any similar law hereinafter enacted, which
provisions relate to the termination of the hiring of a thing upon its
substantial damage or destruction.
15.10 Damage or Destruction to the Building. The foregoing
notwithstanding, in the event the Building is damaged or destroyed to the extent
of more than thirty-three and one-third percent (33 1/3%) of the then
replacement cost thereof, Landlord may elect to terminate this Lease, whether or
not the Premises are injured.
16. Condemnation.
16.1 Definition of Terms. For the purposes of this Lease, the term: (a)
"Taking" means a taking of the Premises, Common Area or Building or damage
related to the exercise of the power of eminent domain and includes, without
limitation, a voluntary conveyance, in lieu of court proceedings, to any agency,
authority, public utility, person or corporate entity empowered to condemn
property; (b) "Total Taking" means the Taking of the entire Premises or so much
of the Premises, Building or Common Area as to prevent or substantially impair
the use thereof by Tenant for the uses herein specified; provided, however, that
in no event shall the Taking
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of less than twenty percent (20%) of the Premises or fifty percent (50%) of the
Building and Common Area be considered a Total Taking; (c) "Partial Taking"
means the Taking of only a portion of the Premises, Building or Common Area
which does not constitute a Total Taking; (d) "Date of Taking" means the date
upon which the title to the Premises, Building or Common Area or a portion
thereof, passes to and vests in the condemnor or the effective date of any order
for possession if issued prior to the date title vests in the condemnor; and (e)
"Award" means the amount of any award made, consideration paid, or damages
ordered as a result of a Taking.
16.2 Rights. The parties agree that in the event of a Taking all
rights between them or in and to an Award shall be as set forth herein.
16.3 Total Taking. In the event of a Total Taking during the Lease
Term: (a) the rights of Tenant under this Lease and the leasehold estate of
Tenant in and to the Premises shall cease and terminate as of the Date of
Taking; (b) Landlord shall refund to Tenant any prepaid Rent and the unused
balance of the Security Deposit; (c) Tenant shall pay Landlord any Rentals due
Landlord under the Lease, prorated as of the Date of Taking; (d) to the extent
the Award is not payable to the beneficiary or mortgagee of a deed of trust or
mortgage affecting the Premises, Tenant shall receive from the Award those
portions of the Award attributable to trade fixtures of Tenant; and (e) the
remainder of the Award shall be paid to and be the property of Landlord. Nothing
contained in this Paragraph 16.3 shall be deemed to deny Tenant its right to
recover awards made by the condemning authority for moving costs, relocation
costs, and costs attributable to goodwill and leasehold improvements installed
by Tenant.
16.4 Partial Taking. In the event of a Partial Taking during the Lease
Term: (a) the rights of Tenant under the Lease and the leasehold estate of
Tenant in and to the portion of the Premises taken shall cease and terminate as
of the Date of Taking; (b) from and after the Date of Taking the Rent shall be
an amount equal to the product obtained by multiplying the then current Rent by
the quotient obtained by dividing the fair market value of the Premises
immediately after the Taking by the fair market value of the Premises
immediately prior to the Taking; (c) to the extent the Award is not payable to
the beneficiary or mortgagee of a deed of trust or mortgage affecting the
Premises, Tenant shall receive from the Award the portions of the Award
attributable to trade fixtures of Tenant; and (d) the remainder of the Award
shall be paid to and be the property of Landlord. Each party waives the
provisions of California Code of Civil Procedure Section 1265.130 allowing
either party to petition the Superior Court to terminate this Lease in the event
of a Partial Taking. Nothing contained in this Paragraph 16.4 shall be deemed to
deny Tenant its right to recover awards made by the condemning authority for
moving costs, relocation costs, and costs attributable to goodwill and leasehold
improvements installed by Tenant.
17. Liens.
17.1 Premises to Be Free of Liens. Tenant shall pay for all labor and
services performed for, and all materials used by or furnished to Tenant,
Tenant's agents, or any contractor employed by Tenant with respect to the
Premises. Tenant shall indemnify, defend and hold Landlord harmless from and
keep the Project free from any liens, claims, demands, encumbrances, or
judgments, including all costs, liabilities and attorneys' fees with respect
thereto, created or suffered by reason of any labor or services performed for,
or materials used by or furnished to Tenant or Tenant's agents or any contractor
employed by Tenant with respect to the Premises. 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 and the Premises, Building, Common Area and Land, and any other party
having an interest therein, from mechanics' and materialmen's liens, including
without limitation a notice of nonresponsibility. In the event Tenant is
required to post an improvement bond with a public agency in connection with any
work performed by Tenant on or to the Premises, Tenant shall include Landlord as
an additional obligee.
17.2 Notice of Lien; Bond. Should any claims of lien be filed against,
or any action be commenced affecting the Premises, Tenant's interest in the
Premises or any other portion of the Project, Tenant shall give Landlord notice
of such lien or action within five (5) business days after Tenant receives
notice of the filing of the lien or the commencement of the action. In the event
that Tenant shall not, within twenty (20) days following the imposition of any
such lien, cause such lien to be released of record by payment or posting of a
proper bond,
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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 or posting of a proper bond. All such sums paid by Landlord and all
expenses incurred by Landlord in connection therewith, including attorneys' fees
and costs, shall be payable to Landlord by Tenant as Additional Rent on demand.
18. Landlord's Right of Access to Premises. Landlord reserves and shall
have the right and Tenant and Tenant's agents shall permit Landlord and
Landlord's agents to enter the Premises at any reasonable time during normal
business hours (except in the event of an emergency) and subject to any security
measures of Tenant that are applied to visitors to the Premises on a
non-discriminatory basis for the purpose of (i) inspecting the Premises, (ii)
performing Landlord's maintenance and repair responsibilities set forth herein,
(iii) posting notices of nonresponsibility, (iv) placing upon the Premises at
any time "For Sale" signs, (v) placing on the Premises ordinary "For Lease"
signs at any time within one hundred eighty (180) days prior to Lease
Termination, or at any time Tenant is in uncured default hereunder, or at such
other times as agreed to by Landlord and Tenant, (vi) protecting the Premises in
the event of an emergency and (vii) exhibiting the Premises to prospective
purchasers or lenders at any reasonable time or to prospective tenants within
one hundred eighty (180) days prior to Lease Termination. In the event of an
emergency, Landlord shall have the right to use any and all means which Landlord
reasonably may deem proper to gain access to the Premises. Any entry to the
Premises by Landlord or Landlord's agents in accordance with this Paragraph 18
or any other provision of this Lease shall not under any circumstances be
construed or deemed to be a forcible or unlawful entry into, or a detainer of
the Premises, or an eviction of Tenant from the Premises or any portion thereof
nor give Tenant the right to xxxxx the Rentals payable under this Lease. Except
to the extent caused by the negligence or willful misconduct of Landlord, its
agents, employees, contractors or invitees, Tenant hereby waives any claims 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 by Landlord's or Landlord's agents' entry into the
Premises as permitted by this Paragraph 18 or any other provision of this Lease.
Notwithstanding anything to the contrary contained in this Lease, Landlord and
Landlord's agents, except in the case of emergency, shall provide Tenant with
twenty-four (24) hours' notice prior to entry of the Premises. Any entry by
Landlord and Landlord's agents shall not impair Tenant's operations more than
reasonably necessary, and Tenant shall have the right to have an employee
accompany Landlord at all times that Landlord is present on the Premises.
19. Landlord's Right to Perform Tenant's Covenants. Except as otherwise
expressly provided herein, if Tenant shall at any time fail to make any payment
or perform any other act required to be made or performed by Tenant under this
Lease, Landlord may upon ten (10) days written notice to Tenant, but shall not
be obligated to and without waiving or releasing Tenant from any obligation
under this Lease, make such payment or perform such other act to the extent that
Landlord may deem desirable, and in connection therewith, pay expenses and
employ counsel. All reasonable sums so paid by Landlord and all penalties,
interest and reasonable costs in connection therewith shall be due and payable
by Tenant as Additional Rent upon demand.
20. Lender Requirements.
20.1 Subordination. This Lease, at Landlord's option, shall be subject
and subordinate to the lien of any mortgages or deeds of trust (including all
advances thereunder, renewals, replacements, modifications, supplements,
consolidations, and extensions thereof) in any amount(s) whatsoever now or
hereafter placed on or against or affecting the Premises, Building or Land, or
Landlord's interest or estate therein without the necessity of the execution and
delivery of any further instruments on the part of Tenant to effectuate such
subordination. If any mortgagee or beneficiary shall elect to have this Lease
prior to the lien of its mortgage or deed of trust, and shall give written
notice thereof to Tenant, this Lease shall be deemed prior to such mortgage or
deed of trust, whether this Lease is dated prior or subsequent to the date of
such mortgage or deed of trust or the date of the recording thereof.
20.2 Subordination Agreements. Tenant shall execute and deliver,
without charge therefor, such further instruments evidencing subordination of
this Lease to the lien of any mortgages or deeds of trust affecting the
Premises, Building or Land as may be required by Landlord within ten (10) days
following
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Landlord's request therefor; provided that such mortgagee or beneficiary under
such mortgage or deed of trust agrees in writing that this Lease shall not be
terminated or modified in any material way in the event of any foreclosure if
Tenant is not in default under this Lease. Failure of Tenant to execute such
instruments evidencing subordination of this Lease shall constitute a Default by
Tenant hereunder.
20.3 Approval by Lenders. Tenant recognizes that the provisions of this
Lease may be subject to the approval of any financial institution that may make
a loan secured by a new or subsequent deed of trust or mortgage affecting the
Premises, Building or Land. If the financial institution should require, as a
condition to such financing, any modifications of this Lease in order to protect
its security interest in the Premises including without limitation, modification
of the provisions relating to damage to and/or condemnation of the Premises,
Tenant agrees to negotiate in good faith with Landlord and such financial
institution to agree on mutually acceptable modifications and execute the
appropriate amendments; provided, however, that no modification shall
substantially change the size, location or dimension of the Premises, or
increase the Rentals payable by Tenant hereunder. If Tenant refuses to execute
any such amendment, Landlord may, in Landlord's reasonable discretion, terminate
this Lease.
20.4 Attornment. In the event of foreclosure or the exercise of the
power of sale under any mortgage or deed of trust made by Landlord and covering
the Premises, Building or Land, Tenant shall attorn to the purchaser upon any
such foreclosure or sale and recognize such purchaser as the Landlord under this
Lease, provided such purchaser expressly agrees in writing to be bound by the
terms of the Lease, including, but not limited to, the quiet enjoyment
provisions of Paragraph 40.
Landlord and Tenant shall diligently seek to obtain and execute a Subordination,
Attornment, and Non-Disturbance Agreement upon execution of a lease agreement.
Landlord makes no representation as to landlord's ability to obtain such
Subordination, Attornment, and Non-Disturbance Agreement upon execution of a
lease agreement.
20.5 Estoppel Certificates and Financial Statements.
(a) Delivery by Tenant. Tenant shall, within ten (10) business
days following request by Landlord therefor and without charge, execute and
deliver to Landlord any and all documents, estoppel certificates, and current
financial statements of Tenant reasonably requested by Landlord in connection
with the sale or financing of the Premises, Building or Land, or requested by
any lender making a loan affecting the Premises, Building or Land. Landlord may
require that Tenant in any estoppel certificate shall (i) certify that this
Lease is unmodified and in full force and effect (or, if modified, state the
nature of such modification and certify that this Lease, as so modified, is in
full force and effect) and has not been assigned, (ii) certify the date to which
Rentals are paid in advance, if any, (iii) acknowledge that there are not, to
Tenant's knowledge, any uncured defaults on the part of Landlord hereunder, or
specify such defaults if claimed, (iv) evidence the status of this Lease as may
be required either by a lender making a loan to Landlord to be secured by a deed
of trust or mortgage covering the Premises, Building or Land or a purchaser of
the Premises, Building or Land from Landlord, (v) warrant that in the event any
beneficiary of any security instrument encumbering the Premises, Building or
Land forecloses on the security instrument or sells the Premises, Building or
Land pursuant to any power of sale contained in such security instrument, such
beneficiary shall not be liable for the Security Deposit, unless the Security
Deposit actually has been received by the beneficiary from Landlord, (vi)
certify the date Tenant entered into occupancy of the Premises and that Tenant
is conducting business at the Premises, (vii) certify that all improvements to
be constructed on the Premises by Landlord have been substantially completed
except for punch list items which do not prevent Tenant from using the Premises
for its intended use, and (viii) certify such other matters relating to the
Lease and/or Premises as may be reasonably requested by a lender making a loan
to Landlord or a purchaser of the Premises, Building or Land from Landlord. Any
such estoppel certificate may be conclusively relied upon by any prospective
purchaser or encumbrancer of the Premises, Building or Land. Any financial
statements of Tenant shall include an opinion of a certified public accountant
(if available) and a balance sheet and profit and loss statement for the most
recent fiscal year, or a reasonable substitute for the form of such financial
information, all prepared in accordance with generally accepted accounting
principles consistently applied.
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(b) Nondelivery by Tenant. Tenant's failure to deliver an estoppel
certificate as required pursuant to Paragraph 20.5(a) above shall be conclusive
upon Tenant that (i) this Lease is in full force and effect, without
modification except as may be represented by Landlord and has not been assigned,
(ii) there are now no uncured defaults in Landlord's performance, (iii) no
Rentals have been paid in advance except those that are set forth in this Lease,
(iv) no beneficiary of any security instrument encumbering the Premises,
Building or Land shall be liable for the Security Deposit in the event of a
foreclosure or sale under such security instrument, unless the Security Deposit
actually has been received by the beneficiary from Landlord, (v) the
improvements to be constructed on the Premises by Landlord have been
substantially completed except for punch list items which do not prevent Tenant
from using the Premises for its intended use, and (vi) Tenant has entered into
occupancy of the Premises on such date as may be represented by Landlord and is
open and conducting business at the Premises. Tenant's failure to deliver any
financial statements, estoppel certificates or other documents as required
pursuant to Paragraph 20.5(a) above shall be a Default by Tenant.
21. Holding Over. This Lease shall terminate without further notice at the
expiration of the Lease Term. It is the desire of Landlord either to enter into
a new lease with Tenant for the Premises prior to the expiration of the Lease
Term, or to have Tenant vacate the Premises upon expiration of the Lease Term
pursuant to Paragraph 35 below. Therefore, any holding over by Tenant after
Lease Termination shall not constitute a renewal or extension of the Lease Term,
nor give Tenant any rights in or to the Premises except as expressly provided in
this Lease. Any holding over after Lease Termination with the consent of
Landlord shall be construed to be a tenancy from month to month, at one hundred
fifty percent (150%) of the monthly Rent for the month preceding Lease
Termination in addition to all Additional Rent payable hereunder, and shall
otherwise be on the terms and conditions herein specified insofar as applicable.
If Tenant remains in possession of the Premises after Lease Termination without
Landlord's consent, Tenant shall indemnify, defend and hold Landlord harmless
from and against any loss, damage, expense, claim or liability resulting from
Tenant's failure to surrender the Premises, including without limitation, any
claims made by any succeeding tenant based on delay in the availability of the
Premises.
22. Notices. Any notice required or desired to be given under this Lease
shall be in writing, and all notices shall be given by personal delivery or
mailing. All notices personally given on Tenant may be delivered to any person
apparently in charge at the Premises, on any corporate officer or agent of
Tenant if Tenant is a corporation, or on any one signatory party if more than
one party signs this Lease on behalf of Tenant; any notice so given shall be
binding upon all signatory parties as if served upon each such party personally.
Any notice given pursuant to this Paragraph 22 shall be deemed to have been
given when personally delivered, or if mailed, when three (3) business days have
elapsed from the time when such notice was deposited in the United States mail,
certified or registered mail and postage prepaid, addressed to the party at the
last address given for purposes of notice pursuant to the provisions of this
Paragraph 22. At the date of execution of this Lease, the addresses of Landlord
and Tenant are set forth in Paragraph 1.12 above.
23. Attorneys' Fees. In the event either party hereto shall bring any
action or legal proceeding for damages for an alleged breach of any provision of
this Lease, to recover Rentals, to enforce an indemnity, defense or hold
harmless obligation, to terminate the tenancy of the Premises, or to enforce,
protect, interpret, or establish any term, condition, or covenant of this Lease
or right or remedy of either party, the prevailing party shall be entitled to
recover, as a part of such action or proceeding, reasonable attorneys' fees and
court costs, including reasonable attorneys' fees and costs for appeal, as may
be fixed by the court or jury. Notwithstanding anything to the contrary
contained in this Lease, "prevailing party" as used in this paragraph shall
include the party who dismisses an action for recovery hereunder in exchange for
sums allegedly due, performance of covenants allegedly breached or
considerations substantially equal to the relief sought in the action.
24. Assignment, Subletting and Hypothecation.
24.1 In General. Tenant shall not voluntarily sell, assign or transfer
all or any part of Tenant's interest in this Lease or in the Premises or any
part thereof, sublease all or any part of the Premises, or permit all or any
part of the Premises to be used by any person or entity other than Tenant or
Tenant's employees, except as specifically provided in this Paragraph 24.
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24.2 Voluntary Assignment and Subletting.
(a) Notice to Landlord. Tenant shall, by written notice, advise
Landlord of Tenant's desire on a stated date (which date shall not be less than
fifteen (15) days nor more than ninety (90) days after the date of Tenant's
notice) to assign this Lease or to sublet all or any part of the Premises for
any part of the Lease Term. Said notice shall state that the notice constitutes
an offer to terminate the Lease pursuant to Paragraph 24.2(b) if the notice
applies to a proposed assignment of the Lease or Tenant's interest herein.
Tenant's notice shall state the name, legal composition and address of the
proposed assignee or subtenant, and Tenant shall provide the following
information to Landlord with said notice: a true and complete copy of the
proposed assignment agreement or sublease; a financial statement of the proposed
assignee or subtenant prepared in accordance with generally accepted accounting
principles within one year prior to the proposed effective date of the
assignment or sublease; the nature of the proposed assignee's or subtenant's
business to be carried on in the Premises; the payments to be made or other
consideration to be given on account of the assignment or sublease; a current
financial statement of Tenant; and such other pertinent information as may be
requested by Landlord, all in sufficient detail to enable Landlord to evaluate
the proposed assignment or sublease and the prospective assignee or subtenant.
Tenant's notice shall not be deemed to have been served or given until such time
as Tenant has provided Landlord with all information reasonably requested by
Landlord pursuant to this Paragraph 24.2. Tenant shall immediately notify
Landlord of any modification to the proposed terms of such assignment or
sublease. Tenant may withdraw its notice at any time prior to or after exercise
by Landlord of Landlord's right to terminate as described in Paragraph 24.2(b).
(b) Offer to Terminate. If Tenant notifies Landlord of its desire
to assign this Lease or Tenant's interest herein, Tenant's notice shall
constitute an offer to terminate this Lease and Landlord shall have the right,
to be exercised by giving written notice to Tenant within fifteen (15) days
after receipt of Tenant's notice, to terminate the Lease. If Landlord elects to
terminate, then within ten (10) days after receipt of Landlord's election,
Tenant shall have the right to rescind its request to assign, and this Lease
shall continue in full force and effect. If Tenant does not rescind its request,
this Lease shall terminate on the date stated in the notice given by Tenant
pursuant to Paragraph 24.2(a), subject to any obligations which have accrued and
are unfulfilled as of such date.
(c ) Landlord's Consent. If Landlord does not exercise its right
to terminate pursuant to Paragraph 24.2(b) within fifteen (15) days after
receipt of Tenant's notice or if Tenant proposes a sublease, Landlord shall not
unreasonably withhold or delay its consent to the proposed assignment or
subletting, on the terms and conditions specified in said notice. If Tenant's
notice fails to state that it constitutes an offer to terminate the Lease as may
be required pursuant to Paragraph 24.2(a), such notice shall be deemed
insufficient for the purposes of this Paragraph 24.2, and Landlord may withhold
its consent to the proposed assignment in Landlord's absolute discretion.
Without otherwise limiting the criteria upon which Landlord may withhold its
consent to any proposed assignment or sublease, if Landlord withholds its
consent where Tenant is in default at the time of the giving of Tenant's notice
or at any time thereafter, or where the net worth of the proposed assignee
(according to generally accepted accounting principles) is less than the greater
of (i) the net worth of Tenant immediately prior to the assignment (ii) or the
net worth of Tenant at the time this Lease is executed, such withholding of
consent shall be presumptively reasonable. Fifty percent (50%) of any and all
rent paid by an assignee or subtenant in excess of the Rentals to be paid under
this Lease (prorated in the event of a sublease of less than the entire
Premises), after Tenant's deduction therefrom of all reasonable costs to effect
the assignment or subletting, including without limitation, brokerage
commissions, attorneys' fees, and the cost of leasehold improvements or
alterations installed or redecorating performed by Tenant for the sublessee,
shall be paid directly to Landlord, as Additional Rent, at the time and place
specified in this Lease. For the purposes of this Paragraph 24, the term "rent"
shall include any consideration of any kind received, or to be received, by
Tenant from an assignee or subtenant, if such sums are related to Tenant's
interest in this Lease or in the Premises, including, but not limited to key
money, bonus money, and payments (in excess of the fair market value thereof)
for Tenant's assets, fixtures, trade fixtures, inventory, accounts, goodwill,
equipment, furniture, general intangibles, and any capital stock or other equity
ownership interest of Tenant. Any assignment or subletting without Landlord's
consent shall be
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voidable at Landlord's option, and shall constitute a Default by Tenant.
Landlord's consent to any one assignment or sublease shall not constitute a
waiver of the provisions of this Paragraph 24 as to any subsequent assignment or
sublease nor a consent to any subsequent assignment or sublease; further,
Landlord's consent to an assignment or sublease shall not release Tenant from
Tenant's obligations under this Lease, and Tenant shall remain jointly and
severally liable with the assignee or subtenant.
(d) Assumption of Obligations. In the event Landlord consents to
any assignment, such consent shall be conditioned upon the assignee expressly
assuming and agreeing to be bound by each of Tenant's covenants, agreements and
obligations contained in this Lease, pursuant to a written assignment and
assumption agreement in a form reasonably approved by Landlord. Landlord's
consent to any assignment or sublease shall be evidenced by Landlord's signature
on said assignment and assumption agreement or on said sublease or by a separate
written consent. In the event Landlord consents to a proposed assignment or
sublease, such assignment or sublease shall be valid and the assignee or
subtenant shall have the right to take possession of the Premises only if an
executed original of the assignment or sublease is delivered to Landlord, and
such document contains the same terms and conditions as stated in Tenant's
notice to Landlord given pursuant to Paragraph 24.2(a) above, except for any
such modifications to which Landlord has consented in writing.
24.3 Collection of Rent. Tenant hereby irrevocably gives to and confers
upon Landlord, as security for Tenant's obligations under this Lease, the right,
power and authority to collect all rents from any assignee or subtenant of all
or any part of the Premises as permitted by this Paragraph 24, or otherwise, and
Landlord, as assignee of Tenant, or a receiver for Tenant appointed on
Landlord's application, may collect such rent and apply it toward Tenant's
obligations under this Lease; provided, however, that until the occurrence of
any Default by Tenant, subject to applicable cure periods, or except as provided
by the provisions of Paragraph 24.2(c) above, Tenant shall have the right to
collect such rent. Upon the occurrence of any Default by Tenant, Landlord may at
any time without notice in Landlord's own name xxx for or otherwise collect such
rent, including rent past due and unpaid, and apply the same, less costs and
expenses of operation and collection, including reasonable attorneys' fees,
toward Tenant's obligations under this Lease. Landlord's collection of such
rents shall not constitute an acceptance by Landlord of attornment by such
subtenants. In the event of a Default by Tenant, Landlord shall have all rights
provided by this Lease and by law, and Landlord may, upon re-entry and taking
possession of the Premises, eject all parties in possession or eject some and
not others, or eject none, as Landlord shall determine in Landlord's sole
discretion.
24.4 Corporations and Partnerships. If Tenant is a partnership, any
withdrawal or substitution (whether voluntary, involuntary, or by operation of
law and whether occurring at one time or over a period of time) of any
partner(s) owning fifty percent (50%) or more (cumulatively) of the partnership,
any assignment(s) of fifty percent (50%) or more (cumulatively) of any interest
in the capital or profits of the partnership, or the dissolution of the
partnership shall be deemed an assignment of this Lease requiring the prior
written consent of Landlord. If Tenant is a corporation, any dissolution,
merger, consolidation or other reorganization of Tenant, any sale or transfer
(or cumulative sales or transfers) of the capital stock of Tenant in excess of
fifty percent (50%), or any sale (or cumulative sales) of all of the assets of
Tenant shall be deemed an assignment of this Lease requiring the prior written
consent of Landlord. Any such withdrawal or substitution of partners or
assignment of any interest in or dissolution of a partnership tenant, and any
such sale of stock or assets of a corporate tenant without the prior written
consent of Landlord shall be a Default by Tenant hereunder. The foregoing
notwithstanding, the sale or transfer of any or all of the capital stock of a
corporation, the capital stock of which is now or hereafter becomes publicly
traded, shall not be deemed an assignment of this Lease.
Notwithstanding anything to the contrary contained in this Lease, Tenant,
without Landlord's prior written consent (but with notice to Landlord), may
sublet the Premises or assign this Lease to (i) a subsidiary, affiliate,
division or corporation controlled by or under common control with Tenant; (ii)
a successor corporation related to Tenant by merger, consolidation,
non-bankruptcy reorganization or government action; or (iii) a purchaser of
substantially all of Tenant's assets located at the Premises, provided that in
either of the latter two instances the successor or purchaser has a net worth
not less than the net worth of Tenant at the time that Tenant executes this
Lease (each, a "Permitted Assignee"). Notwithstanding that a Transfer is made to
a Permitted Assignee, Tenant shall not be released from any of its obligations
under this Lease and such Permitted Assignee shall be required to
33
assume all of Tenant's obligations hereunder as a condition to such transfer
being permitted without Landlord's prior written consent.
24.5 Reasonable Provisions. Tenant expressly agrees that the provisions
of this Paragraph 24 are not unreasonable standards or conditions for purposes
of Section 1951.4(b)(2) of the California Civil Code, as amended from time to
time, under bankruptcy laws, or for any other purpose.
24.6 Attorneys' Fees. Tenant shall pay, as Additional Rent, Landlord's
reasonable attorneys' fees for reviewing, investigating, processing and/or
documenting any requested assignment or sublease, whether or not Landlord's
consent is granted.
24.7 Involuntary Transfer. No interest of Tenant in this Lease shall be
assignable involuntarily or by operation of law, including, without limitation,
the transfer of this Lease by testacy or intestacy. Each of the following acts
shall be considered an involuntary assignment:
(a ) If Tenant is or becomes bankrupt or insolvent, makes an
assignment for the benefit of creditors, or a proceeding under any bankruptcy
law is instituted in which Tenant is the bankrupt; or, if Tenant is a
partnership or consists of more than one person or entity, if any partner of the
partnership or other person or entity is or becomes bankrupt or insolvent, or
makes an assignment for the benefit of creditors;
(b) Levy of a writ of attachment or execution on this Lease;
(c) Appointment of a receiver with authority to take possession of
the Premises in any proceeding or action to which Tenant is a party; or
(d ) Foreclosure of any lien affecting Tenant's interest in the
Premises, which lien was not consented to by Landlord pursuant to Paragraph
24.9.
An involuntary assignment shall constitute a Default by Tenant and Landlord
shall have the right to terminate this Lease, in which case this Lease shall not
be treated as an asset of Tenant. In the event the Lease is not terminated, the
provisions of Paragraph 24.2(c) regarding rents paid by an assignee or subtenant
shall apply. If a writ of attachment or execution is levied on this Lease, or if
any involuntary proceeding in bankruptcy is brought against Tenant or a receiver
is appointed, Tenant shall have sixty (60) days in which to cause the attachment
or execution to be removed, the involuntary proceeding dismissed, or the
receiver removed.
24.8 Hypothecation. Tenant shall not hypothecate, mortgage or encumber
Tenant's interest in this Lease or in the Premises or otherwise use this Lease
as a security device in any manner without the consent of Landlord, which
consent Landlord may withhold in its sole and absolute discretion. Consent by
Landlord to any such hypothecation or creation of a lien or mortgage shall not
constitute consent to an assignment or other transfer of this Lease following
foreclosure of any permitted lien or mortgage.
24..9 Binding on Successors. The provisions of this Paragraph 24
expressly apply to all heirs, successors, sublessees, assignees and transferees
of Tenant.
25. Successors. Subject to the provisions of Paragraph 24 above and
Paragraph 30.2(a) below, the covenants, conditions, and agreements contained in
this Lease shall be binding on the parties hereto and on their respective heirs,
successors and assigns.
26. Landlord Default; Mortgagee Protection. Landlord shall not be in
default under this Lease unless Tenant shall have given Landlord written notice
of the breach and, within thirty (30) days after notice, Landlord has not cured
the breach or, if the breach is such that it cannot reasonably be cured under
the circumstances within thirty (30) days, has not commenced diligently to
prosecute the cure to completion. Any money judgment obtained by Tenant based
upon Landlord's breach of this Lease shall be satisfied only out of the proceeds
of the sale or disposition of Landlord's interest in the Premises (whether by
Landlord or by execution of
34
judgment). In the event of any default on the part of Landlord under this Lease,
Tenant shall give notice by registered or certified mail to any beneficiary of a
deed of trust or any mortgagee of a mortgage affecting the Premises, Building or
Land whose address shall have been furnished to Tenant, and shall offer such
beneficiary or mortgagee a reasonable opportunity to cure the default, including
time to obtain possession of the Premises by power of sale or judicial
foreclosure, if such should prove necessary to effect a cure.
27. Exhibits. All exhibits attached to this Lease shall be deemed to be
incorporated herein by the individual reference to each such exhibit, and all
such exhibits shall be deemed to be a part of this Lease as though set forth in
full in the body of the Lease.
28. Surrender of Lease Not Merger. The voluntary or other surrender of this
Lease by Tenant, or a mutual cancellation thereof, shall not work a merger and
shall, at the option of Landlord, terminate all or any existing subleases or
subtenants, or may, at the option of Landlord, operate as an assignment to
Landlord of any or all such subleases or subtenants.
29. Waiver. The waiver by Landlord of any breach of any term, covenant or
condition herein contained (or the acceptance by Landlord of any performance by
Tenant after the time the same shall become due) shall not be deemed to be a
waiver of such term, covenant or condition or any subsequent breach thereof or
of any other term, covenant or condition herein contained, unless otherwise
expressly agreed to by Landlord in writing. The acceptance by Landlord of any
sum less than that which is required to be paid by Tenant shall be deemed to
have been received only on account of the obligation for which it is paid (or
for which it is allocated by Landlord, in Landlord's reasonable discretion, if
Tenant does not designate the obligation as to which the payment should be
credited), and shall not be deemed an accord and satisfaction notwithstanding
any provisions to the contrary written on any check or contained in any letter
of transmittal. The acceptance by Landlord of any sum tendered by a purported
assignee or transferee of Tenant shall not be deemed a consent by Landlord to
any assignment or transfer of Tenant's interest herein. No custom or practice
which may arise between the parties hereto in the administration of the terms of
this Lease shall be construed as a waiver or diminution of Landlord's right to
demand performance by Tenant in strict accordance with the terms of this Lease.
30. General.
30.1 Captions and Headings. The captions and paragraph headings used in
this Lease are for convenience of reference only. They shall not be construed to
limit or extend the meaning of any part of this Lease, and shall not be deemed
relevant in resolving any question of interpretation or construction of any
paragraph of this Lease.
30.2 Definitions.
(a ) Landlord. The term Landlord as used in this Lease, so far as
the covenants or obligations on the part of Landlord are concerned, shall be
limited to mean and include only the owner at the time in question of the fee
title to the Premises. In the event of any transfer(s) of such interest, the
Landlord herein named (and in case of any subsequent transfers or conveyances,
the then grantor) shall have no further liability under this Lease to Tenant
except as to matters of liability which have accrued and are unsatisfied as of
the date of such transfer, it being intended that the covenants and obligations
contained in this Lease on the part of Landlord shall be binding on Landlord and
its successors and assigns only during and in respect of their respective
periods of ownership of the fee; provided that any funds in the possession of
Landlord or the then grantor and as to which Tenant has an interest, less any
deductions permitted by law or this Lease, shall be turned over to the grantee.
The covenants and obligations contained in this Lease on the part of Landlord
shall, subject to the provisions of this Paragraph 30.2(a), be binding upon each
Landlord and such Landlord's heirs, personal representatives, successors and
assigns only during its respective period of ownership. Except as provided in
this Paragraph 30.2(a), this Lease shall not be affected by any transfer of
Landlord's interest in the Premises, and Tenant shall attorn to any transferee
of Landlord provided that all of Landlord's obligations hereunder are assumed in
writing by such transferee.
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(b) Agents. For purposes of this Lease and without otherwise
affecting the definition of the word "agent" or the meaning of an "agency," the
term "agents" shall be deemed to include the agents, employees, officers,
directors, servants, invitees, contractors, successors, representatives,
subcontractors, guests, customers, suppliers, partners, affiliated companies,
and any other person or entity related in any way to the respective party,
Tenant or Landlord.
(c ) Interpretation of Terms. The words "Landlord" and "Tenant" as
used herein shall include the plural as well as the singular. Words in the
neuter gender include the masculine and feminine and words in the masculine or
feminine gender include the neuter.
30.3 Copies. Any executed copy of this Lease shall be deemed an
original for all purposes.
30.4 Time of Essence. Time is of the essence as to each and every
provision in this Lease requiring performance within a specified time.
30.5 Severability. In case any one or more of the provisions contained
herein shall for any reason be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Lease, but this Lease shall be construed as if such
invalid, illegal or unenforceable provision had not been contained herein.
However, if Tenant's obligation to pay the Rentals is determined to be invalid
or unenforceable, this Lease at the option of Landlord shall terminate.
30.6 Governing Law. This Lease shall be construed and enforced in
accordance with the laws of the State of California.
30.7 Joint and Several Liability. If Tenant is more than one person or
entity, each such person or entity shall be jointly and severally liable for the
obligations of Tenant hereunder. If Tenant is a husband and wife, the
obligations hereunder shall extend to their sole and separate property as well
as community property.
30.8 Construction of Lease Provisions. Although printed provisions of
this Lease were prepared by Landlord, this Lease shall not be construed either
for or against Tenant or Landlord, but shall be construed in accordance with the
general tenor of the language to reach a fair and equitable result.
30.9 Tenant's Financial Statements. Tenant hereby warrants that all
financial statements delivered by Tenant to Landlord are true, correct, and
complete, and prepared in accordance with generally accepted accounting
principles. Tenant acknowledges and agrees that Landlord is relying on such
financial statements in accepting this Lease, and that a breach of Tenant's
warranty as to such financial statements shall constitute a Default by Tenant.
Notwithstanding anything to the contrary contained in this Lease, Landlord shall
keep confidential all such financial information received from Tenant, except
that Landlord may provide such financial information to Landlord's lenders or
prospective lenders with respect to the Premises.
30.10 Withholding of Landlord's Consent. Notwithstanding any other
provision of this Lease where Tenant is required to obtain the consent (whether
written or oral) of Landlord to do any act, or to refrain from the performance
of any act, Tenant agrees that if Tenant is in default with respect to any term,
condition, covenant or provision of this Lease, then Landlord shall be deemed to
have acted reasonably in withholding its consent if said consent is, in fact,
withheld.
31. Signs. Tenant shall not place or permit to be placed any sign or
decoration on the Land or the exterior of the Building or that would be visible
from the exterior of the Building or Premises, without the prior written consent
of Landlord, which consent shall not be unreasonably withheld or delayed. Tenant
may place "for lease" signs in connection with efforts to assign or sublease the
Premises, subject to the prior written consent of Landlord, which consent shall
not be unreasonably withheld or delayed; provided that all such signs shall be
removed not later than the one hundred eightieth (180th) day prior to Lease
Termination. In no event shall any such sign revolve, rotate, move or create the
illusion of revolving, rotating or moving or be internally illuminated and
36
there shall be no exterior spotlighting or other illumination on any such sign.
Tenant, upon written notice by Landlord, shall immediately remove any of
Tenant's signs or decorations that are visible from the exterior of the Building
or Premises or that Tenant has placed or permitted to be placed on the Land or
the exterior of the Building without the prior written consent of Landlord, or
which remain beyond the one hundred eightieth (180th) day prior to Lease
Termination. If Tenant fails to so remove such sign or decoration within five
(5) days after Landlord's written notice, Landlord may enter the Premises and
remove such sign or decoration and Tenant shall pay Landlord, as Additional Rent
upon demand, the cost of such removal. All signs placed on the Premises,
Building or Land by Tenant shall comply with all recorded documents affecting
the Premises, including but not limited to any Declaration of Conditions,
Covenants and Restrictions; the sign criteria attached hereto as Exhibit E if
applicable (as the same may be amended from time to time); and applicable
statutes, ordinances, rules and regulations of governmental agencies having
jurisdiction thereof. At Landlord's option, Tenant shall at Lease Termination
remove any sign which it has placed on the Premises, Land or the Building, and
shall, at its sole cost, repair any damage caused by the installation or removal
of such sign.
32. Landlord as Party Defendant. If, by reason of any act or omission by
Tenant or Tenant's agents, Landlord is made a party defendant concerning this
Lease, or any portion of the Project, Tenant shall indemnify Landlord against
all liability actually incurred (or threatened against) Landlord as a party
defendant, including all damages, costs and reasonable attorneys' fees.
33. Landlord Not a Trustee. Landlord shall not be deemed to be a trustee of
any funds paid to Landlord by Tenant (or held by Landlord for Tenant) pursuant
to this Lease, including without limitation the Security Deposit. Landlord shall
not be required to keep any such funds separate from Landlord's general funds or
segregated from any funds paid to Landlord by (or held by Landlord for) other
tenants of the Building. Any funds held by Landlord pursuant to this Lease shall
not bear interest.
34. Interest. Any payment due from Tenant to Landlord, except for Rent
received by Landlord within thirty (30) days after the same is due, shall bear
interest from the date due until paid, at an annual rate equal to the greater
of: ten percent (10%); or five percent (5%) plus the rate established by the
Federal Reserve Bank of San Francisco, as of the twenty-fifth (25th) day of the
month immediately preceding the due date, on advances to member banks under
Sections 13 and 13(a) of the Federal Reserve Act, as now in effect or hereafter
from time to time amended. In addition, Tenant shall pay all costs and
reasonable attorneys' fees incurred by Landlord in the collection of such
amounts.
35. Surrender of Premises. On the last day of the Lease Term or upon the
sooner termination of this Lease, Tenant shall, to the reasonable satisfaction
of Landlord, surrender the Premises to Landlord in good condition (reasonable
wear and tear, acts of God, casualty, condemnation, Hazardous Materials other
than those stored, used or disposed of by Tenant, its agents, employees,
contractors or invitees, and alterations concerning which Landlord has not
reserved the right to require removal excepted) with all originally painted
interior walls washed, or re-painted if marked or damaged, and other interior
walls cleaned and repaired or replaced, all carpets cleaned and in good
condition, the air conditioning, ventilating and heating equipment inspected,
serviced and repaired by a reputable and licensed service firm (unless Landlord
has elected to maintain heating and air conditioning systems pursuant to
Paragraph 10.1 above), and all floors cleaned and waxed. Tenant shall remove all
of Tenant's personal property and trade fixtures from the Premises, and all
property not so removed shall be deemed abandoned by Tenant. Furthermore, Tenant
shall immediately repair all damage to the Project caused by any such removal.
If the Premises are not so surrendered at Lease Termination, Tenant shall
indemnify, defend and hold Landlord harmless from and against any loss, damage,
expense, claim or liability resulting from delay by Tenant in so surrendering
the Premises including, without limitation, any claims made by any succeeding
tenant or losses to Landlord due to lost opportunities to lease to succeeding
tenants.
36. Labor Disputes. In the event Tenant shall in any manner be involved in
or be the object of a labor dispute which subjects the Premises or any part of
the Project to any picketing, work stoppage or other concerted activity which in
the reasonable opinion of Landlord is detrimental to the operation of the
Project or its tenants, Landlord shall have the right to require Tenant, at
Tenant's own expense and within a reasonable period of time, to use Tenant's
best efforts to either resolve such labor dispute or terminate or control any
such picketing,
37
work stoppage or other concerted activity to the extent necessary to eliminate
any interference with the operation of the Project. To the extent such labor
dispute interferes with the performance of Landlord's duties hereunder, Landlord
shall be excused from the performance of such duties. Failure by Tenant to use
its best efforts to so resolve such dispute or terminate or control such
picketing, work stoppage or other concerted activity within a reasonable period
of time shall constitute a Default by Tenant hereunder. Nothing contained in
this Paragraph 36 shall be construed as placing Landlord in an employer/employee
relationship with any of Tenant's employees or with any other employees who may
be involved in such labor dispute.
37. No Partnership or Joint Venture. Nothing in this Lease shall be
construed as creating a partnership or joint venture between Landlord, Tenant,
or any other party, or cause Landlord to be responsible for the debts or
obligations of Tenant or any other party.
38. Entire Agreement. Any agreements, warranties, or representations not
expressly contained herein shall in no way bind either Landlord or Tenant, and
Landlord and Tenant expressly waive all claims for damages by reason of any
statement, representation, warranty, promise or agreement, if any, not contained
in this Lease. This Lease supersedes and cancels any and all previous
negotiations, arrangements, brochures, agreements and understandings, whether
written or oral, between Landlord and its agents and Tenant and its agents with
respect to the Project or this Lease. This Lease constitutes the entire
agreement between the parties hereto and no addition to, or modification of, any
term or provision of this Lease shall be effective until and unless set forth in
a written instrument signed by both Landlord and Tenant.
39. Submission of Lease. Submission of this instrument for Tenant's
examination or execution does not constitute a reservation of space nor an
option to lease. This instrument shall not be effective until executed by both
Landlord and Tenant. Execution of this Lease by Tenant shall constitute an offer
by Tenant to lease the Premises, which offer shall be deemed accepted by
Landlord when this Lease is executed by Landlord and delivered to Tenant.
40. Quiet Enjoyment. Landlord covenants and agrees with Tenant that upon
Tenant paying Rentals and performing its covenants and conditions under the
Lease, Tenant shall and may peaceably and quietly have, hold and enjoy the
Premises for the Lease Term, subject, however, to the terms of this Lease and of
any mortgages or deeds of trust affecting the Premises, and the rights reserved
by Landlord hereunder. Any purchaser upon any foreclosure or exercise of the
power of sale under any mortgage or deed of trust made by Landlord and covering
the Premises, Building or Land to whom Tenant attorns pursuant to Paragraph 20.4
above shall be bound by the terms of this Paragraph 40.
41. Authority. The undersigned parties hereby warrant that they have proper
authority and are empowered to execute this Lease on behalf of the Landlord and
Tenant, respectively. If Tenant is a corporation (or partnership), each
individual executing this Lease on behalf of said corporation (or partnership)
represents and warrants that he is duly authorized to execute and deliver this
Lease on behalf of said corporation in accordance with a duly adopted resolution
of the Board of Directors of said corporation or in accordance with the by-laws
of said corporation (or on behalf of said partnership in accordance with the
partnership agreement of such partnership), and that this Lease is binding upon
said corporation (or partnership) in accordance with its terms. If Tenant is a
corporation, and this Lease is not executed by two corporate officers, Tenant
shall, upon execution of this Lease, deliver to Landlord evidence of the
authority of the individual executing this Lease on behalf of Tenant to execute
this Lease on behalf of Tenant. In the event Tenant should fail to deliver such
evidence to Landlord upon execution of this Lease, Landlord shall not be deemed
to have waived its right to require delivery of such evidence, and at any time
during the Lease Term Landlord may request Tenant to deliver the same, and
Tenant agrees it shall thereafter promptly deliver such evidence to Landlord. If
Tenant is a corporation, Tenant warrants that:
(a ) Tenant is a valid and existing corporation;
(b) Tenant is qualified to do business in California;
(c ) All fees and all franchise and corporate taxes are paid to date,
and will be paid when due;
38
(d) All required forms and reports will be filed when due; and
(e) The signers of this Lease are properly authorized to execute this
Lease.
42. Addendum. Paragraphs 42 through 42 are added hereto and made a part of
this Lease.
IN WITNESS WHEREOF, the parties have executed this Lease effective as of
the date set forth below.
LANDLORD: TENANT:
By /s/ Xxxxxx Xxxxxxx By /s/ Van X. Xxxxxxx
------------------------------ ---------------------------------------
Title General Partner Title Vice President, Quality & Regulatory
----------------------------- ------------------------------------
Date 10/24/00 Date 10/20/00
------------------------------ --------------------------------------
By /s/ Xxxxxx Xxxxxxx By
-------------------------------- ----------------------------------------
Title General Partner Title
---------------------------- -------------------------------------
Date 10/27/00 Date
---------------------------- -------------------------------------
ADDENDUM to the certain Lease Agreement dated October 18, 2000, by and between
REALTEC PROPERTIES I, L.P., as Landlord, and LASERSCOPE, A CALIFORNIA
CORPORATION, as Tenant, for the premises commonly known as 0000 Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000.
42. Stock Options. In consideration of this Lease Agreement and in lieu of
Tenant depositing with Landlord a letter of credit as security for the Lease
Agreement in the amount of Three Hundred Fifty Thousand Dollars ($350,000.00),
Tenant agrees to grant to Landlord at the time of lease execution, a total of
Forty Thousand (40,000) stock options. These options would be granted
individually to Xxxxx X. Xxxxxx in the amount of Twenty-Thousand (20,000) and to
Xxxxxx X. Xxxxxxx in an equal amount of Twenty-Thousand (20,000) at
fifty-percent (50%) of market price ("Stock Options"). The vesting of these
Stock Options would be accelerated such that fifty percent (50%) of the options
(10,000) would vest at the time of granting ("Initial Vesting") and the
remaining fifty percent (50%) would vest effectively one (1) year from the date
of the Initial Vesting ("Final Vesting"). Xxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxx,
collectively referred to herein as "Owners" may exercise the vested Stock
Options at anytime. These Stock Options shall be personal to the Owners and
shall not be considered a Security Deposit pursuant to Paragraph 5 of the Lease
Agreement.
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EXHIBITS
A Site Plan Paragraph 1.4 (Shows Building crosshatched and the
Land outlined in red pursuant to Paragraph 2.1)
B Floor Plan Paragraph 2.1 (Shows Premises crosshatched)
C Improvements Paragraph 2.2
D Commencement Paragraph 3.1
Date Letter
E Sign Criteria Paragraph 31
F Lease Termination
Agreement Paragraph 35
40
EXHIBIT "A"
SITE PLAN
Laserscope
October 18, 2000
41
EXHIBIT "B"
FLOOR PLAN
42
EXHIBIT "C"
IMPROVEMENTS
1. Tenant is accepting Premises in an "AS IS" condition. Landlord is not
providing any tenant improvements.
43
EXHIBIT "D"
COMMENCEMENT DATE LETTER
Date
___________________________
___________________________
___________________________
___________________________
Re:
Dear ___________________:
In regard to that certain Lease dated _____________________________, by and
between __________________________________, as Landlord, and
_______________________________, a ______________________, as Tenant, this
letter shall confirm our understandings and agreements relative to the Lease
commencement date.
Notwithstanding anything to the contrary contained in the Lease it is agreed
that the Lease commenced on ________________________, and shall terminate on
________________________.
Please acknowledge receipt of this letter and your Agreement and Approval of the
foregoing, by signing below and return one copy of this letter to our office.
Very truly yours,
44
EXHIBIT "E"
SIGN CRITERIA
Tenant shall be allowed signage on the property consistent with the other
tenants in the project and other signage on the Premises subject to approval of
the City of San Xxxx and the Landlord, which shall not be unreasonably withheld.
45
EXHIBIT "F"
LEASE TERMINATION AGREEMENT
Notwithstanding anything to the contrary contained in this Lease, Tenant
understands and agrees to the following Lease Termination conditions.
Tenant agrees to provide written notice to Landlord no less than ninety (90) nor
more than one hundred twenty (120) days prior to the expiration of the Lease
Term, requesting Landlord to inform Tenant whether or not Landlord desires to
have any of such Alterations by Tenant removed at Lease Termination. Following
receipt of such notice, Landlord may elect to have all or a portion of such
Alterations removed from the Premises at Lease Termination, and Tenant shall, at
its sole cost and expense, remove at Lease Termination such Alterations
designated by Landlord for removal and repair all damage to the Premises and
Common Area arising from such removal. In addition, no less than thirty (30)
days prior to the expiration of the Lease Term, Tenant agrees to provide written
notice to Landlord to schedule and conduct a walk-through inspection of the
Premises to insure that the agreed upon restoration is in process and including
all Tenant work required to return the Premises in good condition defined in
Section 35.
In the event Tenant fails to request Landlord's decision, or fails to notify
Landlord regarding the walk-through inspection, or fails to remove any such
Alternations designated by Landlord for removal at Lease Termination, then
Landlord may remove any Alterations made to the Premises by Tenant and repair
all damage to the Premises and Common Area arising from such removal, and may
recover from Tenant all reasonable costs and expense incurred thereby, including
a holding over rate defined in Section 20 of the Lease Agreement for a period
not to exceed ninety (90) days. In addition to all other costs and expenses
Tenant is obligated to pay, Tenant shall also pay the holding over rate until
Landlord's completion of the removal of Alterations and repair of all damage to
the Premises and Common Area arising from such removal, which shall be prorated
on thirty (30) days per month. Tenant's failure to surrender the Premises to
Landlord in good condition on the last day of the Lease Term or upon sooner
termination of this Lease, shall also be subject to the holding over rate
defined in Section 20.
Tenant's obligation to pay such costs and expenses to Landlord shall survive
Lease Termination. Unless Landlord elects to have Tenant remove (or, upon
Tenant's failure to obtain Landlord's decision, Landlord removes) any such
Alterations, then all such Alterations shall become the property of Landlord
upon Lease Termination (without any payment therefor) and remain upon and be
surrendered with the Premises at Lease Termination. All other property not
removed by Tenant at Lease Termination shall be deemed abandoned by Tenant and
shall become the property of Landlord (without any payment therefor).
