Exhibit 10.22
TABLE OF CONTENTS Protein Polymer Technologies
Suite 200 8586 SF
Bldg 1 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
MULTI-TENANT OFFICE R & D BUILDING LEASE - MODIFIED GROSS
PAGE
Article 1 LEASE OF PREMISES............................................. 1
Article 2 DEFINITIONS................................................... 1
Article 3 EXHIBITS AND ADDENDA.......................................... 2
Article 4 DELIVERY OF POSSESSION........................................ 2
Article 5 RENT.......................................................... 2
Article 6 INTEREST AND LATE CHARGES..................................... 4
Article 7 SECURITY DEPOSIT.............................................. 4
Article 8 TENANT'S USE OF THE PREMISES.................................. 5
Article 9 SERVICES AND UTILITIES........................................ 5
Article 10 CONDITION OF THE PREMISES..................................... 6
Article 11 CONSTRUCTION, REPAIRS AND MAINTENANCE......................... 6
Article 12 ALTERATIONS AND ADDITIONS..................................... 6
Article 13 LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY..................... 7
Article 14 RULES AND REGULATIONS......................................... 7
Article 15 CERTAIN RIGHTS RESERVED BY LANDLORD........................... 7
Article 16 ASSIGNMENT AND SUBLETTING..................................... 7
Article 17 HOLDING OVER.................................................. 8
Article 18 SURRENDER OF PREMISES......................................... 8
Article 19 DESTRUCTION OR DAMAGE......................................... 8
Article 20 EMINENT DOMAIN................................................ 9
Article 21 INDEMNIFICATION............................................... 9
Article 22 TENANT'S INSURANCE............................................ 10
Article 23 WAIVER OF SUBROGATION......................................... 10
Article 24 SUBORDINATION AND ATTORNMENT.................................. 10
Article 25 TENANT ESTOPPEL CERTIFICATES.................................. 10
Article 26 TRANSFER OF LANDLORD'S INTEREST............................... 11
Article 27 DEFAULT....................................................... 11
Article 28 BROKERAGE FEES................................................ 12
Article 29 NOTICES....................................................... 12
Article 30 GOVERNMENT ENERGY OR UTILITY CONTROLS......................... 12
Article 31 RELOCATION OF PREMISES........................................ 12
Article 32 QUIET ENJOYMENT............................................... 13
Article 33 OBSERVANCE OF LAW............................................. 13
Article 34 FORCE MAJEURE................................................. 13
Article 35 CURING TENANT'S DEFAULTS...................................... 13
Article 36 SIGN CONTROL.................................................. 13
Article 37 MISCELLANEOUS................................................. 13
Addendum Quality of Construction; Landlord's Representations; Audit
Provision Oper Exp Exclusions; Abatement of Rent/Casualty; Limit
on Tenant's Indemnity; Landlord's Reciprocal Indemnity; Rules &
Regs Changes; NonDisturbance Agreements; Real Prop Tax Limit;
Landlord's Estoppel; Option to Renew; Services, Utils & Cost
Proration; Alterations & Additions; Damage & Destruction; Adj Base
Rent; Temp Premises; Landlord's Common Area Improvements
MULTI-TENANT OFFICE R & D BUILDING LEASE - MODIFIED GROSS
This Lease between Sycamore/San Diego Investors
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an Illinois Limited Partnership
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("Landlord"), and Protein Polymer Technologies, INC.
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a Delaware Corporation ("Tenant"), is
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dated March 1, 1996
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1. LEASE OF PREMISES.
In consideration of the Rent (as defined at Section 5.4) and the provisions of this Lease, Landlord leases to Tenant and Tenant
leases from Landlord the Premises shown by diagonal lines on the floor plan attached hereto as Exhibit "A," and further described at
Section 2l. The Premises are located within the Building and Project described in Section 2m. Tenant shall have the non-exclusive
right (unless otherwise provided herein) in common with Landlord, other tenants, subtenants and invitees, to use of the Common
Areas (as defined at Section 2e.)
2. DEFINITIONS.
As used in this Lease, the following terms shall have the following meanings:
a. Base Rent: $167,736.00 One Hundred Sixty Seven Thousand Seven Hundred Thirty Six $ no/00 per year.
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b. Base Year: The calendar year of 1997
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c. Broker(s) and Sales Agent(s): ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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d. Commencement Date: January 1, 1997
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e. Common Areas: the building lobbies, common corridors and hallways, restrooms, garage and parking areas, stairways, elevators and
other generally understood public or common areas. Landlord shall have the right to regulate or reasonably restrict the use of
the Common Areas.
f. Expense Stop: (fill in if applicable): $ N/A
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g. Expiration Date: December 31, 1998 , unless otherwise
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sooner terminated in accordance with the provisions of this Lease.
h. Index (Section 5.2): United States Department of Labor, Bureau of Labor Statistics Consumer Price Index for All Urban
Consumers, All Items Index for San Diego area (1982-84 = 100) 2nd 1/2 1996 = Base.
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i. Landlord's Mailing Address: c/o Shell Properties Corporation
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10665 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Tenant's Mailing Address: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
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San Diego, CA 92121
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j. Monthly Installments of Base Rent: $ 13,978.00 Thirteen Thousand Nine Hundred Seventy Eight & no/00 per month.
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k. Parking: Tenant shall be permitted at no charge to park 3.26 cars per 1000SF cars on a non-exclusive basis in the area(s)
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designated by Landlord for parking. Tenant shall abide by any and all parking regulations and rules reasonably established
from time to time by Landlord or Landlord's parking operator.
l. Premises: that portion of the Building containing approximately 8586 square feet of Rentable Area,
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shown by diagonal lines on Exhibit "A," located on the 2nd floor of the Building and known as Suite 200 in
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Building 1 at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
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m. Project: the building of which the Premises are a part (the "Building") and any other buildings or improvements on the real
property (the "Property") located at ▇▇▇▇▇ - ▇▇ - ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and further described at
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Exhibit "B." The Project is known as Sycamore Creek Office Park.
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n. Rentable Area: as to both the Premises and the Project, the respective measurements of floor area as may from time to time be
subject to lease by ▇▇▇▇▇▇ and all tenants of the Project, respectively, as determined by Landlord according to B.O.M.A.
standards and applied on a consistent basis throughout the Project.
(1)
o. Security Deposit (Article 7): $13,978.00 ($6,556.50 received previously and
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applied hereto, balance of $7,421.50 due on Commencement Date.)
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p. State: the State of California
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q. Tenant's First Adjustment Date (Section 5.2): the first day of the calendar
month following the Commencement Date plus 12 months.
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r. Tenant's Proportionate Share: 11.02%. Such share is a fraction, the
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numerator of which is the Rentable Area of the Premises and the denominator
of which is the Rentable Area of the Project, as determined by Landlord
according to B.O.M.A. standards from time to time. The Project consists of 3
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building(s) containing a total Rentable Area of 77,880 square feet.
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s. Tenant's Use Clause (Article 8): Biomedical Laboratory and Related Office
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Uses.
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t. Term: the period commencing on the Commencement Date and expiring at
midnight on the Expiration Date.
3. EXHIBITS AND ADDENDA.
The exhibits and addenda listed below (unless lined out) are incorporated by
reference in this Lease:
a. Exhibit "A"--Floor Plan showing the Premises. Exhibit "A2" - floor plan
showing temporary premises.
b. Exhibit "B"--Site Plan of the Project.
c. Exhibit "C"--Landlord's Improvements to 2nd floor common area.
d. Exhibit "D"--Rules and Regulations.
e. Exhibit "E"--
f. Addenda:
Quality of Construction/Standard for Maint & Repair; Landlord's
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Representations; Audit Provision; Operating Expense Exclusions;
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Abatement of Rent/Casualty; Limitation of Tenant's Indemnity;
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Landlord's Reciprocal Indemnity; Rules & Regulations/Changes; Non
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Disturbance Agreements; Real Prop Tax/Limit on Pass-Thru;
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Landlord's Estoppel; Option to Extend Lease Term; Services &
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Utilities and Proration of 2nd Fl Costs; Alterations & Additions;
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Damage & Destruction; Adjusted Base Rent; Tenant's Temporary
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Premises; Landlord's Improvements to 2nd Fl Common Area.
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4. DELIVERY OF POSSESSION.
Intentionally left blank
5. RENT
5.1. Payment of Base Rent. ▇▇▇▇▇▇ agrees to pay the Base Rent for the Premises.
Monthly Installments of Base Rent shall be payable in advance on the first day
of each calendar month of the Term. If the Term begins (or ends) on other than
the first (or last) day of a calendar month, the Base Rent for the partial month
shall be prorated on a per diem basis. Tenant shall pay Landlord the first
Monthly Installment of Base Rent when Tenant executes the Lease.
5.2 Adjusted Base Rent.
SEE ADDENDUM
5.3 Project Operating Costs.
a. In order that the Rent payable during the Term reflect any increase in
Project Operating Costs, ▇▇▇▇▇▇ agrees to pay to Landlord as Rent, ▇▇▇▇▇▇'s
Proportionate Share of all increases in costs, expenses and obligations
attributable to the Project and its operation, all as provided below.
b. If, during any calendar year during the Term, Project Operating Costs
exceed the Project Operating Costs for the Base Year, Tenant shall pay to
Landlord, in addition to the Base Rent and all other payments due under this
Lease, an amount equal to Tenant's Proportionate Share of such excess
Project Operating Costs in accordance with the provisions of this Section
5.3b.
(2)
(1) The term "Project Operating Costs" shall include all those items described
in the following subparagraphs (a) and (b).
(a) All taxes, assessments, water and sewer charges and other similar
governmental charges levied on or attributable to the Building or Project
or their operation, including without limitation, (i) real property taxes
or assessments levied or assessed against the Building or Project, (ii)
assessments or charges levied or assessed against the Building or Project
by any redevelopment agency, and (iii) any tax measured by gross rentals
received from the leasing of the Premises, Building or Project, excluding
any net income, franchise, capital stock, estate or inheritance taxes
imposed by the State or federal government or their agencies, branches or
departments; provided that if at any time during the Term any
governmental entity levies, assesses or imposes on Landlord any (1) general
or special, ad valorem or specific, excise, capital levy or other tax,
assessment, levy or charge directly on the Rent received under this Lease
or on the rent received under any other leases of space in the Building or
Project, or (2) any license fee, excise or franchise tax, assessment, levy
or charge measured by or based, in whole or in part, upon such rent, or (3)
any transfer, transaction, or similar tax, assessment, levy or charge based
directly or indirectly upon the transaction represented by this Lease or
such other leases, or (4) any occupancy, use, per capita or other tax,
assessment, levy or charge based directly or indirectly upon the use or
occupancy of the Premises or other premises within the Building or Project,
then any such taxes, assessments, levies and charges shall be deemed to be
included in the term Project Operating Costs. If at any time during the
Term the assessed valuation of, or taxes on, the Project are not based on a
completed Project having at least eighty-five percent (85%) of the Rentable
Area occupied, then the "taxes" component of Project Operating Costs shall
be adjusted by Landlord to reasonably approximate the taxes which would
have been payable if the Project were completed and at least eighty-five
percent (85%) occupied.
(b) Operating costs incurred by Landlord in maintaining and operating the
Building and Project, including without limitation the following: costs of
(1) utilities; (2) supplies; (3) insurance (including public liability,
property damage, earthquake, and fire and extended coverage insurance for
the full replacement cost of the Building and Project as required by
Landlord or its lenders for the Project; (4) services of independent
contractors; (5) compensation (including employment taxes and fringe
benefits) of all persons who perform duties connected with the operation,
maintenance, repair or overhaul of the Building or Project, and equipment,
improvements and facilities located within the Project, including without
limitation engineers, janitors, painters, floor waxers, window washers,
security and parking personnel and gardeners (but excluding persons
performing services not uniformly available to or performed for
substantially all Building or Project tenants); (6) operation and
maintenance of a room for delivery and distribution of mail to tenants of
the Building or Project as required by the U.S. Postal Service; (7)
management of the Building or Project, whether managed by Landlord or an
independent contractor; (8) rental expenses for (or a reasonable
depreciation allowance on) personal property used in the maintenance,
operation or repair of the Building or Project; (9) costs, expenditures or
charges (whether capitalized or not) required by any governmental or quasi-
governmental authority; (12) amortization of capital expenses (i) required
by a governmental entity for energy conservation or life safety purposes or
(ii) made by Landlord to reduce Project Operating Costs; and (13) any other
costs or expenses reasonably incurred by Landlord under this Lease and not
otherwise reimbursed by tenants of the Project. If at any time during the
Term, less than eighty-five percent (85%) of the Rentable Area of the
Project is occupied, the "operating costs" component of Project Operating
Costs shall be adjusted by Landlord to reasonably approximate the operating
costs which would have been incurred if the Project had been at least
eighty-five percent (85%) occupied.
(2) Tenant's Proportionate Share of Project Operating Costs shall be payable by
Tenant to Landlord as follows:
(a) Beginning with the calendar year following the Base Year and for each
calendar year thereafter ("Comparison Year"), Tenant shall pay Landlord an
amount equal to Tenant's Proportionate Share of the Project Operating Costs
incurred by Landlord in the Comparison Year which exceeds the total amount
of Project Operating Costs payable by Landlord for the Base Year. This
excess is referred to as the "Excess Expenses."
(b) To provide for current payments of Excess Expenses, Tenant shall, at
Landlord's request, pay as additional rent during each Comparison Year, an
amount equal to Tenant's Proportionate Share of the Excess Expenses payable
during such Comparison Year, as reasonably estimated by Landlord from time
to time. Such payments shall be made in monthly installments, commencing on
the first day of the month following the month in which Landlord notifies
Tenant of the amount it is to pay hereunder and continuing until the first
day of the month following the month in which Landlord gives Tenant a new
notice of estimated Excess Expenses. It is the intention hereunder to
estimate from time to time the amount of the Excess Expenses for each
Comparison Year and Tenant's Proportionate Share thereof, and then to make
an adjustment in the following year based on the actual Excess Expenses
incurred for that Comparison Year.
(c) On or before April 1 or each Comparison Year after the first Comparison
Year (or as soon thereafter as is practical), Landlord shall deliver to
Tenant a statement setting forth Tenant's Proportionate Share of the Excess
Expenses for the preceding Comparison Year. If ▇▇▇▇▇▇'s Proportionate Share
of the actual Excess Expenses for the previous Comparison Year exceeds the
total of the estimated monthly payments made by Tenant for such year,
Tenant shall pay Landlord the amount of the deficiency within twenty (20)
days of the receipt of the statement. If such total exceeds Tenant's
Propor-
(3)
ionate Share of the actual Excess Expenses for such Comparison Year, then
Landlord shall reimburse to Tenant an amount equal to the difference
within 20 days of delivery of that statement. The obligations of Tenant
and Landlord to make payments required under this Section 5.3 shall survive
the Expiration Date.
(d) Tenant's Proportionate Share of Excess Expenses in any Comparison Year
having less than 365 days shall be appropriately prorated.
(e) If any dispute arises as to the amount of any additional rent due
hereunder, Tenant shall have the right after reasonable notice and at
reasonable times to inspect Landlord's accounting records at Landlord's
accounting office and, if after such inspection Tenant still disputes the
amount of additional rent owed, a certification as to the proper amount
shall be made by Landlord's certified public accountant, which
certification shall be final and conclusive. ▇▇▇▇▇▇ agrees to pay to the
cost of such certification unless it is determined that ▇▇▇▇▇▇▇▇'s original
statement overstated Project Operating Costs by more than five percent
(5%).
5.4 Definition of Rent. All costs and expenses which ▇▇▇▇▇▇ assumes or agrees to
pay to Landlord under this Lease shall be deemed additional rent (which,
together with the Base Rent is sometimes referred to as the "Rent"). The Rent
shall be paid to the Building manager (or other person) and at such place, as
Landlord may from time to time designate in writing, without any prior demand
therefor and without deduction or offset, in lawful money of the United States
of America.
5.5 Rent Control. If the amount of Rent or any other payment due under this
Lease violates the terms of any governmental restrictions on such Rent or
payment, then the Rent or payment due during the period of such restrictions
shall be the maximum amount allowable under those restrictions. Upon termination
of the restrictions, Landlord shall, to the extent it is legally permitted,
recover from Tenant the difference between the amounts received during the
period of the restrictions and the amounts Landlord would have received had
there been no restrictions.
5.6 Taxes Payable by ▇▇▇▇▇▇. In addition to the Rent and any other charges to be
paid by Tenant hereunder, Tenant shall reimburse Landlord upon demand for any
and all taxes payable by Landlord (other than net income taxes) which are not
otherwise reimbursable under this Lease, whether or not now customary or within
the contemplation of the parties, where such taxes are upon, measured by or
reasonably attributable to (a) the cost or value of Tenant's equipment,
furniture, fixtures and other personal property located in the Premises, or the
cost or value of any leasehold improvements made in or to the Premises by or for
Tenant, other than Building Standard Work made by Landlord, regardless of
whether title to such improvements is held by Tenant or Landlord; (b) the gross
or net Rent payable under this Lease, including, without limitation, any rental
or gross receipts tax levied by any taxing authority with respect to the receipt
of the Rent hereunder; (c) the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy by Tenant of the Premises or
any portion thereof; or (d) this transaction or any document to which Tenant is
a party creating or transferring an interest or an estate in the Premises. If it
becomes unlawful for Tenant to reimburse Landlord for any costs as required
under this Lease, the Base Rent shall be revised to net Landlord the same net
Rent after imposition of any tax or other charge upon Landlord as would have
been payable to Landlord but for the reimbursement being unlawful.
6. INTEREST AND LATE CHARGES.
If Tenant fails to pay when due any Rent or other amounts or charges which
Tenant is obligated to pay under the terms of this Lease, the unpaid amounts
shall bear interest at the maximum rate then allowed by law. Tenant acknowledges
that the late payment of any Monthly Installment of Base Rent will cause
Landlord to lose the use of that money and incur costs and expenses not
contemplated under this Lease, including without limitation, administrative and
collection costs and processing and accounting expenses, the exact amount of
which is extremely difficult to ascertain. Therefore, in addition to interest,
if any such installment is not received by Landlord within ten (10) days from
the date it is due, Tenant shall pay Landlord a late charge equal to five
percent (5%) of such installment. Landlord and Tenant agree that this late
charge represents a reasonable estimate of such costs and expenses and is fair
compensation to Landlord for the loss suffered from such nonpayment by ▇▇▇▇▇▇.
Acceptance of any interest or late charge shall not constitute a waiver of
Tenant's default with respect to such nonpayment by Tenant nor prevent Landlord
from exercising any other rights or remedies available to Landlord under this
Lease.
7. SECURITY DEPOSIT.
▇▇▇▇▇▇ agrees to deposit with Landlord the Security Deposit set forth at Section
2o upon execution of this Lease, as security for ▇▇▇▇▇▇'s faithful performance
of its obligations under this Lease. Landlord and Tenant agree that the
Security Deposit may be commingled with funds of Landlord and Landlord shall
have no obligation or liability for payment of interest on such deposit. Tenant
shall not mortgage, assign, transfer or encumber the Security Deposit without
the prior written consent of Landlord and any attempt by Tenant to do so shall
be void, without force or effect and shall not be binding upon Landlord.
If Tenant fails to pay any Rent or other amount when due and payable under this
Lease, or fails to perform any of the terms hereof, Landlord may appropriate and
apply or use all or any portion of the Security Deposit for Rent payments or any
other amount then due and unpaid, for payment of any amount for which Landlord
has become obligated as a result of Tenant's default or breach, and for any loss
or damage sustained by Landlord as a result of Tenant's default or breach, and
Landlord may so apply or use this deposit without prejudice to any other remedy
Landlord may have by reason of Tenant's default or breach. If Landlord so uses
any of the Security Deposit
(4)
Tenant shall, within ten (10) days after written demand therefor, restore the
Security Deposit to the full amount originally deposited; Tenant's failure to do
so shall constitute an act of default hereunder and Landlord shall have the
right to exercise any remedy provided for at Article 27 hereof. Within fifteen
(15) days after the Term (or any extension thereof) has expired or Tenant has
vacated the Premises, whichever shall last occur, and provided Tenant is not
then in default on any of its obligations hereunder, Landlord shall return the
Security Deposit to Tenant, or, if Tenant has assigned its interest under this
Lease, to the last assignee of Tenant. If Landlord sells its interest in the
Premises, Landlord may deliver this deposit to the purchaser of Landlord's
interest and thereupon be relieved of any further liability or obligation with
respect to the Security Deposit.
8. TENANT'S USE OF THE PREMISES.
Tenant shall use the Premises solely for the purposes set forth in Tenant's Use
Clause. Tenant shall not use or occupy the Premises in violation of law or any
covenant, condition or restriction affecting the Building or Project or the
certificate of occupancy issued for the Building or Project, and shall, upon
notice from Landlord, immediately discontinue any use of the Premises which is
declared by any governmental authority having jurisdiction to be a violation of
law or the certificate of occupancy. Tenant, at Tenant's own cost and expense,
shall comply with all laws, ordinances, regulations, rules and/or any directions
of any governmental agencies or authorities having jurisdiction which shall, by
reason of the nature of Tenant's use or occupancy of the Premises, impose any
duty upon Tenant or Landlord with respect to the Premises or its use or
occupation. A judgment of any court of competent jurisdiction or the admission
by Tenant in any action or proceeding against Tenant that Tenant has violated
any such laws, ordinances, regulations, rules and/or directions in the use of
the Premises shall be deemed to be a conclusive determination of that fact as
between Landlord and Tenant. Tenant shall not do or permit to be done anything
which will invalidate or increase the cost of any fire, extended coverage or
other insurance policy covering the Building or Project and/or property located
therein, and shall comply with all rules, orders, regulations, requirements and
recommendations of the Insurance Services Office or any other organization
performing a similar function. Tenant shall promptly upon demand reimburse
Landlord for any additional premium charged for such policy by reason of
▇▇▇▇▇▇'s failure to comply with the provisions of this Article. Tenant shall not
do or permit anything to be done in or about the Premises which will in any way
unreasonably obstruct or interfere with the rights of other tenants or occupants
of the Building or Project, or injure or annoy them, or use or allow the
Premises to be used for any unlawful purpose, nor shall Tenant cause, maintain
or permit any nuisance in, on or about the Premises. Tenant shall not commit or
suffer to be committed any waste in or upon the Premises.
9. SERVICES AND UTILITIES.
Landlord shall provide and install at its expense a separate electric meter for
the Premises. Landlord shall maintain and keep lighted the common areas of the
Project, including parking areas, building entries, lobbies, corridors,
staircases, and restrooms, and Landlord shall furnish restroom supplies and
lightbulb replacement for Building Standard (ie Landlord installed) light
fixtures within the Premises. See Addendum 2
Landlord shall not be in default hereunder or be liable for any damages directly
or indirectly resulting from, nor shall rent be abated by reason of (i) the
installation, use or interruption of use of any equipment in connection with the
furnishing of any of the foregoing services or utilities, (ii) failure to
furnish or delay in furnishing any such services or utilities where such failure
or delay is caused by accident or any condition or event beyond the reasonable
control of Landlord, or by the making of necessary repairs or improvements to
the Premises, Building or Project, or (iii) the limitation, curtailment or
rationing of, or restrictions on, use of water, electricity, gas or any other
form of energy serving the Premises, Building or Project. Landlord shall not be
liable under any circumstances, unless directly attributable to Landlord's
wrongful or negligent acts, for the loss or damage to Tenant's property or
business, through or in connection with or incidental to failure to furnish or
delay in the furnishing of any of the foregoing services or utilities.
Tenant shall arrange for the initiation of service for any separately metered
utilities to the Premises, including telephone service, directly with the
appropriate utility vendor or supplier, and all billing invoices, security
deposits, and any other charges relating to the initiation and continued
provision of such separately metered utilities and telephone service shall be
the responsibility of and in the name of Tenant.
(5)
10. CONDITION OF THE PREMISES.
▇▇▇▇▇▇'s taking possession of the Premises shall be deemed conclusive evidence
that as of the date of taking possession the Premises are in good order and
satisfactory condition, except for such matters as to which ▇▇▇▇▇▇ gave Landlord
notice on or before the Commencement Date. No promise of Landlord to alter,
remodel, repair or improve the Premises, the Building or the Project and no
representation, express or implied, respecting any matter or thing relating to
the Premises, Building, Project or this Lease (including, without limitation,
the condition of the Premises, the Building or the Project) have been made to
Tenant by Landlord or its Broker or Sales Agent, other than as may be contained
herein or in a separate exhibit or addendum signed by Landlord and Tenant.
11. CONSTRUCTION, REPAIRS AND MAINTENANCE.
a. Landlord's Obligations. Landlord shall perform any Landlord's Work to
the Premises as described in Exhibit "C". Landlord shall maintain in good
order, condition and repair the Building and all other portions of the
Premises not the obligation of Tenant or of any other tenant in the
Building.
b. Tenant's Obligations.
(1) Tenant shall perform any Tenant's Work to the Premises as
described in Exhibit "C".
(2) Tenant at Tenant's sole expense shall, except for services
furnished by Landlord pursuant to Article 9 hereof, maintain the
Premises in good order, condition and repair, including the interior
surfaces of the ceilings, walls and floors, all doors, all interior
windows, all plumbing, pipes and fixtures, electrical wiring, switches
and fixtures, Building Standard furnishings and special items and
equipment installed by or at the expense of Tenant.
(3) Tenant shall be responsible for all repairs and alterations in and
to the Premises, Building and Project and the facilities and systems
thereof, the need for which directly arises out of (i) Tenant's use or
occupancy of the Premises, (ii) the installation, removal, use or
operation of Tenant's Property (as defined in Article 13) in the
Premises, (iii) the moving of Tenant's Property into or out of the
Building, or (iv) the wrongful act, omission, misuse or negligence of
Tenant, its agents, contractors, employees or invitees.
(4) If Tenant fails to maintain the Premises in good order, condition
and repair, Landlord shall give Tenant notice to do such acts as are
reasonably required to so maintain the Premises. If Tenant fails to
promptly commence such work and diligently prosecute it to completion,
then Landlord shall have the right to do such acts and expend such
funds at the expense of Tenant as are reasonably required to perform
such work. Any amount so expended by Landlord shall be paid by Tenant
promptly after demand with interest at the prime commercial rate then
being charged by Bank of America NT & SA plus two percent (2%) per
annum, from the date of such work, but not to exceed the maximum rate
then allowed by law. Landlord shall have no liability to Tenant for
any damage, inconvenience, or interference with the use of the
Premises by ▇▇▇▇▇▇ as a result of performing any such work.
c. Compliance with Law. Landlord and Tenant shall each do all acts required
to comply with all applicable laws, ordinances, and rules of any public
authority relating to their respective maintenance obligations as set forth
herein.
d. Waiver by ▇▇▇▇▇▇. Tenant expressly waives the benefits of any statute
now or hereafter in effect which would otherwise afford the Tenant the
right to make repairs at Landlord's expense or to terminate this Lease
because of Landlord's failure to keep the Premises in good order, condition
and repair, except as otherwise expressly set forth herein.
e. Load and Equipment Limits. Tenant shall not place a load upon any floor
of the Premises which exceeds the load per square foot which such floor was
designed to carry, as determined by Landlord's structural engineer. The
reasonable cost of any such determination made by ▇▇▇▇▇▇▇▇'s structural
engineer shall be paid for by Tenant upon demand. Tenant shall not install
business machines or mechanical equipment which cause noise or vibration to
such a degree as to be objectionable to Landlord or other Building tenants.
f. Except as otherwise expressly provided in this Lease, Landlord shall
have no liability to Tenant nor shall Tenant's obligations under this Lease
be reduced or abated in any manner whatsoever by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's making any repairs or changes which Landlord is required or
permitted by this Lease or by any other tenant's lease or required by law
to make in or to any portion of the Project, Building or the Premises.
Landlord shall nevertheless use reasonable efforts to minimize any
interference with ▇▇▇▇▇▇'s business in the Premises.
g. Tenant shall give Landlord prompt notice following discovery by Tenant
of any damage to or defective condition in any part or appurtenance of the
Building's mechanical, electrical, plumbing, HVAC or other systems serving,
located in, or passing through the Premises.
h. Upon the expiration or earlier termination of this Lease, Tenant shall
return the Premises to Landlord clean and in the same condition as on the
date Tenant took possession, except for normal wear and tear. Any damage to
the Premises, including any structural damage, resulting from ▇▇▇▇▇▇'s use
or from the removal of Tenant's fixtures, furnishings and equipment
pursuant to Section 13b shall be repaired by Tenant at Tenant's expense.
12. ALTERATIONS AND ADDITIONS.
a. Tenant shall not make any additions, alterations or improvements to the
Premises without obtaining the prior written consent of Landlord, which
consent shall not be unreasonably withheld or delayed. ▇▇▇▇▇▇▇▇'s consent
may be conditioned on ▇▇▇▇▇▇'s removing any such additions, alterations or
improvements upon the expiration of the Term and restoring the Premises to
the same condition as on the date Tenant took possession. All work with
respect to any addition, alteration or improvement shall be done in a good
and workmanlike manner by properly qualified and licensed personnel as
mutually approved by Landlord and Tenant, and such work shall be diligently
prosecuted to completion. Landlord may, at Landlord's option, require that
Landlord's contractor supervise and/or perform that portion of any such
alteration or additions involving the Building's roof, exterior metal
siding and/or stucco surfaces, windows and/or window frames, waterproofing
elements associated with any of the above, underground work, landscaping,
building entry doors and/or building security system, common area equipment
or improvements, and/or any item or element within the Premises building or
project subject to a warranty to Landlord.
b. Except as expressly provided for herein, Tenant shall pay the costs of
any work done on the Premises pursuant to Section 12a, and shall keep the
Premises, Building and Project free and clear of liens of any kind related
to such work. Tenant shall indemnify, defend against and keep Landlord free
and harmless from all liability, loss, damage, costs, attorneys' fees and
any other expense incurred on account of claims by any person performing
work or furnishing materials or supplies for Tenant or any person claiming
under Tenant.
Tenant shall keep Tenant's leasehold interest, and any additions or
improvements which are or become the property of Landlord under this Lease,
free and clear of all attachment or judgement liens filed against Tenant.
Before the actual commencement of any work for which a claim or lien may be
filed, Tenant shall give Landlord notice of the intended commencement date
a sufficient time before that date to enable Landlord to post notices of
nonresponsibility or any other notices which Landlord deems necessary for
the proper protection of ▇▇▇▇▇▇▇▇'s interest in the Premises, Building or
the Project, and Landlord shall have the right to enter the Premises and
post such notices at any reasonable time.
c. Landlord may require, at ▇▇▇▇▇▇▇▇'s sole option, that Tenant provide to
Landlord, at Tenant's expense, a lien and completion bond in an amount
equal to at least one and one-half (1 1/2) times the total estimated cost
of any additions, alterations or improvements to be made in or to the
Premises, to protect Landlord against any liability for mechanic's and
materialmen's liens and to insure timely completion of the work. Nothing
contained in this Section 12c shall relieve Tenant of its obligation under
Section 12b to keep the Premises, Building and Project free of all liens as
set forth in said Section 12b.
d. Unless their removal is required by Landlord as provided in Section 12a,
all additions, alterations and improvements made to the Premises shall
become the property of Landlord and be surrendered with the Premises upon
the expiration of the Term; provided, however, Tenant's equipment,
machinery and trade fixtures which can be removed without damage to the
Premises shall remain the property of Tenant and may be removed, subject to
the provisions of Section 13b.
13. LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY.
a. All fixtures, equipment, improvements and appurtenances attached to or
built into the Premises at the commencement of or during the Term, whether
or not by or at the expense of Tenant ("Leasehold Improvements"), shall be
and remain a part of the Premises, shall be the property of Landlord and
shall not be removed by Tenant, except as expressly provided in Section
13b.
b. All movable partitions, business and trade fixtures, machinery and
equipment, communications equipment and office equipment located in the
Premises and acquired by or for the account of Tenant, without expense to
Landlord, which can be removed without structural damage to the Building,
and all furniture, furnishings and other articles of movable personal
property owned by Tenant and located in the Premises (collectively
"Tenant's Property") shall be and shall remain the property of Tenant and
may be removed by Tenant at any time during the Term; provided that if any
of Tenant's Property is removed. Tenant shall promptly repair any damage to
the Premises or to the Building resulting from such removal.
14. RULES AND REGULATIONS.
Tenant agrees to comply with (and cause its agents, contractors, employees and
invitees to comply with) the rules and regulations attached hereto as Exhibit
"D" and with such reasonable modifications thereof and reasonable additions
thereto as Landlord may from time to time make and notify Tenant of in writing.
Landlord shall not be responsible for any violation of said rules and
regulations by other tenants or occupants of the Building or Project.
15. CERTAIN RIGHTS RESERVED BY LANDLORD.
Landlord reserves the following rights, exercisable without liability to Tenant
for (a) damage or injury to property, person, or business, (b) causing an actual
or constructive eviction from the Premises, or (c) disturbing Tenant's use or
possession of the Premises:
a. To name the Building and Project and to change the name or street
address of the Building or Project;
b. To install and maintain all signs on the exterior and interior of the
Building and Project;
c. To have pass keys to the Premises and all doors within the Premises,
excluding ▇▇▇▇▇▇'s vaults and safes;
d. At any time during the Term, without unreasonably interfering with
▇▇▇▇▇▇'s operations, and on reasonable prior notice to Tenant, to inspect
the Premises, and to show the Premises to any prospective purchaser or
mortgagee of the Project, or to any assignee of any mortgage on the
Project, or to others having an interest in the Project or Landlord, and
during the last six months of the Term, to show the Premises to
prospective tenants thereof; and
e. To enter the Premises for the purpose of making inspections, repairs,
alterations, additions or improvements to the Premises or the Building
(including, without limitation, checking, calibrating, adjusting or
balancing controls and other parts of the HVAC system), and to take all
steps as may be necessary or desirable for the safety, protection,
maintenance or preservation of the Premises or the Building or Landlord's
interest therein, or as may be necessary or desirable for the operation or
improvement of the Building or in order to comply with laws, orders or
requirements of governmental or other authority. Landlord agrees to use its
best efforts (except in an emergency) to minimize interference with
▇▇▇▇▇▇'s business in the Premises in the course of any such entry.
16. ASSIGNMENT AND SUBLETTING.
No assignment of this Lease or sublease of all or any part of the Premises shall
be permitted, except as provided in this Article 16.
a. Tenant shall not, without the prior written consent of Landlord, assign
or hypothecate this Lease or any interest herein or sublet the Premises or
any part thereof, or permit the use of the Premises by any party other than
Tenant. Any of the foregoing acts without such consent shall be void and
shall, at the option of Landlord, terminate this Lease. This Lease shall
not, nor shall any interest of Tenant herein, be assignable by operation
(7)
of law without the written consent of Landlord.
b. If at any time or from time to time during the Term Tenant desires to
assign this Lease or sublet all or any part of the Premises, Tenant shall
give notice to Landlord setting forth the terms and provisions of the
proposed assignment or sublease, and the identity of the proposed assignee
or subtenant. Tenant shall promptly supply Landlord with such information
concerning the business background and financial condition of such proposed
assignee or subtenant as Landlord may reasonably request. Landlord shall
have the option, exercisable by notice given to Tenant within twenty (20)
days after ▇▇▇▇▇▇'s notice is given, either to sublet such space from
Tenant at the rental and on the other terms set forth in this Lease for the
term set forth in Tenant's notice, or, in the case of an assignment, to
terminate this Lease. If Landlord does not exercise such option, Tenant may
assign the Lease or sublet such space to such proposed assignee or
subtenant on the following further conditions:
(1) Landlord shall have the right to approve such proposed assignee or
subtenant, which approval shall not be unreasonably withheld; or
delayed;
(2) The assignment or sublease shall be on substantially the same
terms set forth in the notice given to Landlord;
(3) No assignment or sublease shall be valid and no assignee or
sublessee shall take possession of the Premises until an executed
counterpart of such assignment or sublease has been delivered to
Landlord;
(4) No assignee or sublessee shall have a further right to assign or
sublet except on the terms herein contained; and
(5) Any sums or other economic consideration received by Tenant as a
result of such assignment or subletting, however denominated under the
assignment or sublease, which exceed, in the aggregate, (i) the total
sums which Tenant is obligated to pay Landlord under this Lease
(prorated to reflect obligations allocable to any portion of the
Premises subleased), plus (ii) any real estate brokerage commissions
or fees payable in connection with such assignment or subletting,
shall be paid to Landlord as additional rent under this Lease without
affecting or reducing any other obligations of Tenant hereunder.
c. Notwithstanding the provisions of paragraphs a and b above, Tenant may
assign this Lease or sublet the Premises or any portion thereof, without
Landlord's consent and without extending any recapture or termination
option to Landlord, to any corporation which controls, is controlled by or
is under common control with Tenant, or to any corporation resulting from a
merger or consolidation with Tenant, or to any person or entity which
acquires all the assets of Tenant's business as a going concern, provided
that (i) the assignee or sublessee assumes, in full, the obligations of
Tenant under this Lease, (ii) Tenant remains fully liable under this Lease,
and (iii) the use of the Premises under Article 8 remains unchanged.
d. No subletting or assignment shall release Tenant of Tenant's obligations
under this Lease or alter the primary liability of Tenant to pay the Rent
and to perform all other obligations to be performed by Tenant hereunder.
The acceptance of Rent by Landlord from any other person shall not be
deemed to be a waiver by Landlord of any provision hereof. Consent to one
assignment or subletting shall not be deemed consent to any subsequent
assignment or subletting. In the event of default by an assignee or
subtenant of Tenant or any successor of ▇▇▇▇▇▇ in the performance of any of
the terms hereof, Landlord may proceed directly against Tenant without the
necessity of exhausting remedies against such assignee subtenant or
successor. Landlord may consent to subsequent assignments of the Lease or
sublettings or amendments or modifications to the Lease with assignees of
Tenant, without notifying Tenant, or any successor of Tenant, and without
obtaining its or their consent thereto and any such actions shall not
relieve Tenant of liability under this Lease.
e. If Tenant assigns the Lease or sublets the Premises or requests the
consent of Landlord to any assignment or subletting or if Tenant requests
the consent of Landlord where such consent is required under this Lease for
the act that Tenant proposes to do, then Tenant shall, upon demand, pay
Landlord any attorneys' fees reasonably incurred by Landlord in connection
with such act or request.
17. HOLDING OVER.
If after expiration of the term, Tenant remains in possession of the Premises
Tenant shall become a tenant from month to month only, upon all the provisions
of this Lease (except as to term and Base Rent), but the "Monthly Installments
of Base Rent" payable by Tenant shall be increased to one hundred fifty percent
(150%) of the Monthly Installments of Base Rent payable by Tenant at the
expiration of the Term. Such monthly rent shall be payable in advance on or
before the first day of each month. If either party desires to terminate such
month to month tenancy, it shall give the other party not less than thirty (30)
days advance written notice of the date of termination.
18. SURRENDER OF PREMISES.
a. Tenant shall peaceably surrender the Premises to Landlord on the
Expiration Date, in broom-clean condition and in as good condition as when
▇▇▇▇▇▇ took possession, except for (i) reasonable wear and tear, (ii) loss
by fire or other casualty, and (iii) loss by condemnation. Tenant shall, on
▇▇▇▇▇▇▇▇'s request, remove ▇▇▇▇▇▇'s Property on or before the Expiration
Date and promptly repair all damage to the Premises or Building caused by
such removal.
b. If ▇▇▇▇▇▇ abandons or surrenders the Premises, or is dispossessed by
process of law or otherwise, any of Tenant's Property left on the Premises
shall be deemed to be abandoned, and, at Landlord's option, title shall
pass to Landlord under this Lease as by a bill of sale. If Landlord elects
to remove all of any part of such Tenant's Property, the cost of removal,
including repairing any damage to the Premises or Building caused by such
removal, shall be paid by Tenant. On the Expiration Date Tenant shall
surrender all keys to the Premises.
19. DESTRUCTION OR DAMAGE.
a. If the Premises or the portion of the Building necessary for ▇▇▇▇▇▇'s
occupancy is damaged by fire, earthquake, act of God, the elements or other
casualty, Landlord shall, subject to the provisions of this Article,
(8)
promptly repair the damage, if such repairs can, in Landlord's reasonable
opinion, be completed within ninety (90) days. If Landlord reasonably
determines that repairs can be completed within ninety (90) days, this
Lease shall remain in full force and effect, except that if such damage is
not the result of the negligence or willful misconduct of Tenant or
Tenant's agents and employees, the Base Rent shall be abated to the extent
Tenant's use of the Premises is impaired, commencing with the date of
damage and continuing until completion of the repairs required of Landlord
under Section 19d.
b. If in Landlord's reasonable opinion, such repairs to the Premises or
portion of the Building necessary for ▇▇▇▇▇▇'s occupancy cannot be
completed within ninety (90) days, Landlord may elect, upon notice to
Tenant given within thirty (30) days after the date of such fire or other
casualty, to repair such damage, in which event this Lease shall continue
in full force and effect, but the Base Rent shall be partially abated as
provided in Section 19a. If Landlord does not so elect to make such
repairs, this Lease shall terminate as of the date of such fire or other
casualty.
c. If any other portion of the Building or Project is totally destroyed or
damaged to the extent that in Landlord's reasonable opinion repair thereof
cannot be completed within ninety (90) days, Landlord may elect upon notice
to Tenant given within thirty (30) days after the date of such fire or
other casualty, to repair such damage, in which event this Lease shall
continue in full force and effect, but the Base Rent shall be partially
abated as provided in Section 19a. If Landlord does not elect to make such
repairs, this Lease shall terminate as of the date of such fire or other
casualty.
d. If the Premises are to be repaired under this Article, Landlord shall
repair at its cost any injury or damage to the Building and Building
Standard Work in the Premises. Tenant shall be responsible at its sole cost
and expense for the repair, restoration and replacement of any other
Leasehold Improvements and Tenant's Property. Landlord shall not be liable
for any loss of business, inconvenience or annoyance arising from any
repair or restoration of any portion of the Premises, Building or Project
as a result of any damage from fire or other casualty, except where such
damages are the result of the negligence or willful misconduct of Landlord
or Landlord's agents and employees.
e. This Lease shall be considered an express agreement governing any case
of damage to or destruction of the Premises, Building or Project by fire or
other casualty, and any present or future law which purports to govern the
rights of Landlord and Tenant in such circumstances in the absence of
express agreement, shall have no application.
20. EMINENT DOMAIN
a. If the whole of the Building or Premises is lawfully taken by
condemnation or in any other manner for any public or quasi-public purpose,
this Lease shall terminate as of the date of such taking, and Rent shall be
prorated to such date. If less than the whole of the Building or Premises
is so taken, this Lease shall be unaffected by such taking, provided that
(i) Tenant shall have the right to terminate this Lease by notice to
Landlord given within ninety (90) days after the date of such taking if
twenty percent (20%) or more of the Premises or parking is taken and the
remaining area of the Premises or parking is not reasonably sufficient for
Tenant to continue operation of its business, and (ii) Landlord shall have
the right to terminate this Lease by notice to Tenant given within ninety
(90) days after the date of such taking. If either Landlord or Tenant so
elects to terminate this Lease, the Lease shall terminate as of the date of
such taking. The Rent shall be prorated to the date of termination. If this
Lease continues in force upon such partial taking, the Base Rent and
▇▇▇▇▇▇'s Proportionate Share shall be equitably adjusted according to the
remaining Rentable Area of the Premises and Project.
b. In the event of any taking, partial or whole, all of the proceeds of any
award, judgement or settlement payable by the condemning authority shall be
the exclusive property of Landlord, and Tenant hereby assigns to Landlord
all of its right, title and interest in any award, judgement or settlement
from the condemning authority. Tenant, however, shall have the right, to
the extent that Landlord's award is not reduced or prejudiced, to claim
from the condemning authority (but not from Landlord) such compensation as
may be recoverable by Tenant in its own right for relocation expenses and
damage to ▇▇▇▇▇▇'s personal property.
c. In the event of a partial taking of the Premises which does no result in
a termination of this Lease, Landlord shall restore the remaining portion
of the Premises as nearly as practicable to its condition prior to the
condemnation or taking, but only to the extent of Building Standard Work.
Tenant shall be responsible at its sole cost and expense for the repair,
restoration and replacement of any other Leasehold Improvements and
Tenant's Property.
21. INDEMNIFICATION.
a. Tenant shall indemnify and hold Landlord harmless against and from
liability and claims of any kind for loss or damage to property of Tenant
or any other person, or for any injury to or death of any person, arising
out of: (1) Tenant's use and occupancy of the Premises, or any work,
activity or other things allowed or suffered by Tenant to be done in, on or
about the Premises; (2) any breach or default by Tenant of any of Tenant's
obligations under this Lease; or (3) any negligent or otherwise tortious
act or omission of Tenant, its agents, employees, invitees or contractors.
Tenant shall, at Tenant's expense, and by counsel satisfactory to Landlord,
defend Landlord in any action or proceeding arising from any such claim and
shall indemnify Landlord against all costs, attorneys' fees, expert witness
fees and any other expenses reasonably incurred in such action or
proceeding. As a material part of the consideration for ▇▇▇▇▇▇▇▇'s
execution of this Lease, ▇▇▇▇▇▇ hereby assumes all risk of damage or injury
to any person or property in, on or about the Premises from any cause,
except where such damages are the result of the negligence or willful
misconduct of Landlord or Landlord's agents and employees.
b. Except as otherwise expressly provided for herein, Landlord shall not be
liable for injury or damage which may be sustained by the person or
property of Tenant, its employees, invitees or customers, or any other
person in or about the Premises, caused by or resulting from fire, steam,
electricity, gas, water or rain which may leak or flow from or into any
part of the Premises, or from the breakage, leakage, obstruction or other
defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning
or lighting fixtures, whether such damage or injury results from conditions
arising upon the Premises or upon other portions of the Building or Project
or from other sources. Landlord shall not be liable for any damages arising
from any act or omission of any other tenant of the Building or Project.
(9)
22. TENANT'S INSURANCE.
a. All insurance required to be carried by Tenant hereunder shall be issued
by responsible insurance companies with a minimum rating by "Best's Key
Rating Guide of A: XII" and qualified to do business in the State. Each
policy shall name ▇▇▇▇▇▇▇▇, and at ▇▇▇▇▇▇▇▇'s request any mortgagee of
Landlord, as an additional insured, as their respective interests may
appear. Each policy shall contain (i) a cross-liability endorsement, (ii) a
provision that such policy and the coverage evidenced thereby shall be
primary and non-contributing with respect to any policies carried by
Landlord and that any coverage carried by Landlord shall be excess
insurance, and (iii) a waiver by the insurer of any right of subrogation
against Landlord, its agents, employees and representatives, which arises
or might arise by reason of any payment under such policy or by reason of
any act or omission of Landlord, its agents, employees or representatives.
A copy of each paid up policy (authenticated by the insurer) or certificate
of the insurer evidencing the existence and amount of each insurance policy
required hereunder shall be delivered to Landlord within thirty (30) days
after any demand by Landlord therefor. Landlord may, at any time and from
time to time, inspect and/or copy any insurance policies required to be
maintained by Tenant hereunder. No such policy shall be cancellable except
after twenty (20) days written notice to Landlord and Landlord's lender.
Tenant shall furnish Landlord with renewals or "binders" of any such policy
at least ten (10) days prior to the expiration thereof. Tenant agrees that
if ▇▇▇▇▇▇ does not take out and maintain such insurance, Landlord may (but
shall not be required to) procure said insurance on Tenant's behalf and
charge the Tenant the premiums, payable upon demand. Tenant shall have the
right to provide such insurance coverage pursuant to blanket policies
obtained by the Tenant, provided such blanket policies expressly afford
coverage to the Premises, Landlord, ▇▇▇▇▇▇▇▇'s mortgagee and Tenant as
required by this Lease.
b. Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the Term, Tenant shall procure,
pay for and maintain in effect policies of casualty insurance covering (i)
all Leasehold improvements (including any alterations, additions or
improvements as may be made by Tenant pursuant to the provisions of Article
12 hereof), and (ii) trade fixtures, merchandise and other personal
property from time to time in, on or about the Premises, in an amount not
less than one hundred percent (100%) of their actual replacement cost from
time to time, providing protection against any peril included with the
classification "Fire and Extended Coverage" together with insurance against
sprinkler damage, vandalism and malicious mischief. The proceeds of such
insurance shall be used for the repair or replacement of the property so
insured. Upon termination of this Lease following a casualty as set forth
herein, the proceeds under (i) shall be paid to Landlord, and the proceeds
under (ii) above shall be paid to Tenant.
c. Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the Term, Tenant shall procure,
pay for and maintain in effect workers' compensation insurance as required
by law and comprehensive public liability and property damage insurance
with respect to the construction of improvements on the Premises, the use,
operation or condition of the Premises and the operations of Tenant in, on
or about the Premises, providing personal injury and broad form property
damage coverage for not less than One Million Dollars ($1,000,000.00)
combined single limit for bodily injury, death and property damage
liability.
d. Not less than every three (3) years during the Term, Landlord and Tenant
shall mutually agree to increases in all of Tenant's insurance policy
limits for all insurance to be carried by Tenant as set forth in this
Article. In the event Landlord and ▇▇▇▇▇▇ cannot mutually agree upon the
amounts of said increases, then ▇▇▇▇▇▇ agrees that all insurance policy
limits as set forth in this Article shall be adjusted for increases in the
cost of living in the same manner as is set forth in Section 5.2 hereof for
the adjustment of the Base Rent.
23. WAIVER OF SUBROGATION.
Landlord and ▇▇▇▇▇▇ each hereby waive all rights of recovery against the other
and against the officers, employees, agents and representatives of the other, on
account of loss by or damage to the waiving party or its property or the
property of others under its control, to the extent that such loss or damage is
insured against under any fire and extended coverage insurance policy which
either may have in force at the time of the loss or damage. Tenant shall, upon
obtaining the policies of insurance required under this Lease, give notice to
its insurance carrier or carriers that the foregoing mutual waiver of
subrogation is contained in this Lease.
24. SUBORDINATION AND ATTORNMENT.
Upon written request of ▇▇▇▇▇▇▇▇, or any first mortgagee or first deed of trust
beneficiary of Landlord, or ground lessor of Landlord, Tenant shall, in writing,
subordinate its rights under this Lease to the lien of any first mortgage or
first deed of trust, or to the interest of any lease in which Landlord is
lessee, and to all advances made or hereafter to be made thereunder. However,
before signing any subordination agreement, Tenant shall have the right to
obtain from any lender or lessor of Landlord requesting such subordination, an
agreement in writing providing that, as long as Tenant is not in default
hereunder, this Lease shall remain in effect for the full Term. The holder of
any security interest may, upon written notice to Tenant, elect to have this
Lease prior to its security interest regardless of the time of the granting or
recording of such security interest.
In the event of any foreclosure sale, transfer in lieu of foreclosure or
termination of the lease in which Landlord is lessee, Tenant shall attorn to the
purchaser, transferee or lessor as the case may be, and recognize that party as
Landlord under this Lease, provided such party acquires and accepts the Premises
subject to this Lease.
25. TENANT ESTOPPEL CERTIFICATES.
Within ten working (10) days after written request from Landlord, Tenant shall
execute and deliver to Landlord or Landlord's designee, a written statement
certifying (a) that this Lease is unmodified and in full force and effect, or is
in full force and effect as modified and stating the modifications; (b) the
amount of Base Rent and the date to which Base Rent and additional rent have
been paid in advance; (c) the amount of any security deposited with Landlord;
and (d) that Landlord is not in default hereunder or, if Landlord is claimed to
be in default, stating the nature any claimed default. Any such statement may be
relied upon by a purchaser, assignee or lender. Tenant's failure to
(10)
execute and deliver such statement within the time required shall at Landlord's
election be a default under this Lease and shall also be conclusive upon Tenant
that: (1) this Lease is in full force and effect and has not been modified
except as represented by Landlord; (2) there are no uncured defaults in
Landlord's performance and that Tenant has no right of offset, counter-claim or
deduction against Rent; and (3) not more than one month's Rent has been paid in
advance.
26. TRANSFER OF LANDLORD'S INTEREST.
In the event of any sale or transfer by Landlord of the Premises, Building or
Project, and assignment of this Lease by Landlord, Landlord shall be and is
hereby entirely freed and relieved of any and all liability and obligations
contained in or derived from this Lease arising out of any act occurrence or
omission relating to the Premises, Building, Project or Lease occurring after
the consummation of such sale or transfer, providing the purchaser shall
expressly assume all of the covenants and obligations of Landlord under this
Lease. If any security deposit or prepaid Rent has been paid by Tenant,
Landlord may transfer the security deposit or prepaid Rent to Landlord's
successor and upon such transfer, Landlord shall be relieved of any and all
further liability with respect thereto.
27. DEFAULT.
27.1 Tenant's Default. The occurrence of any one or more of the following events
shall constitute a default and breach of this Lease by Tenant:
a. If Tenant abandons or vacates the Premises; or
b. If Tenant fails to pay any Rent or any other charges required to be paid
by Tenant under this Lease and such failure continues for ten (10) days
after such payment is due and payable; or
c. If Tenant fails to promptly and fully perform any other covenant,
condition or agreement contained in this Lease and such failure continues
for thirty (30) days after written notice thereof from Landlord to Tenant;
or
d. If a writ of attachment of execution is levied on this Lease or on any
of Tenant's Property; or
e. If ▇▇▇▇▇▇ makes a general assignment for the benefit of creditors, or
provides for an arrangement, composition, extension or adjustment with its
creditors; or
f. If Tenant files a voluntary petition for relief or if a petition against
Tenant in a proceeding under the federal bankruptcy laws or other
insolvency laws is filed and not withdrawn or dismissed within forty-five
(45) days thereafter, or if under the provisions of any law providing for
reorganization or winding up of corporations, any court of competent
jurisdiction assumes jurisdiction, custody or control of Tenant or any
substantial part of its property and such jurisdiction, custody or
control remains in force unrelinquished, unstayed or unterminated for a
period of forty-five (45) days; or
g. If in any proceeding or action in which Tenant is a party, a trustee,
receiver, agent or custodian is appointed to take charge of the Premises or
Tenant's Property (or has the authority to do so) for the purpose of
enforcing a lien against the Premises or Tenant's Property; or
h. If Tenant is a partnership or consists of more than one (1) person or
entity, if any partner of the partnership or other person or entity is
involved in any of the acts or events described in subparagraphs d through
g above.
27.2 Remedies, in the event of ▇▇▇▇▇▇'s default hereunder, then in addition to
any other rights or remedies Landlord may have under any law, Landlord shall
have the right, at Landlord's option, without further notice or demand of any
kind to do the following:
a. Terminate this Lease and ▇▇▇▇▇▇'s right to possession of the Premises
and reenter the Premises and take possession thereof, and Tenant shall have
no further claim to the Premises or under this Lease; or
b. Continue this Lease in effect, reenter and occupy the Premises for the
account of Tenant and collect any unpaid Rent or other charges which have
or thereafter become due and payable; or
c. Reenter the Premises under the provisions of subparagraph b, and
thereafter elect to terminate this Lease and ▇▇▇▇▇▇'s right to possession
of the Premises.
If Landlord reenters the Premises under the provisions of subparagraphs b or c
above, Landlord shall not be deemed to have terminated this Lease or the
obligation of Tenant to pay any Rent or other charges thereafter accruing,
unless Landlord notifies Tenant in writing of Landlord's election to terminate
this Lease. In the event of any reentry or retaking of possession by Landlord,
Landlord shall have the right, but not the obligation, to remove all or any part
of Tenant's Property in the Premises and to place such property in storage at a
public warehouse at the expense and risk of Tenant. If Landlord elects to relet
the Premises for the account of Tenant, the rent received by Landlord from such
reletting shall be applied as follows: first to the payment of any indebtedness
other than Rent due hereunder from Tenant to Landlord,; second, to the payment
of any costs of such reletting; third, to the payment of the cost of any
alterations or repairs to the Premises; fourth, to the payment of Rent due and
unpaid hereunder; and the balance, if any, shall be held by Landlord and applied
in payment of future Rent as it becomes due. If that portion of rent received
from the reletting which is applied against the Rent due hereunder is less than
the amount of the Rent due, Tenant shall pay the deficiency to Landlord promptly
upon demand by Landlord. Such deficiency shall be calculated and paid monthly.
Tenant shall also pay to Landlord, as soon as determined, any costs and expenses
incurred by Landlord in connection with such reletting or in making alterations
and repairs to the Premises, which are not covered by the rent received from the
reletting.
Should Landlord elect to terminate this Lease under the provisions of
subparagraph a or c above, Landlord may recover as damages from Tenant the
following:
1. Past Rent. The worth at the time of the award of any unpaid Rent which
has been earned at the time of termination; plus
2. Rent Prior to Award. The worth at the time of the award of the amount by
which the unpaid Rent which would have been earned after termination
until the time of award exceeds the amount of such rental loss that
Tenant proves could have been reasonably avoided; plus
(11)
3. Rent After Award. The worth at the time of the award of the amount by which
the unpaid Rent for the balance of the Term after the time of award exceeds the
amount of the rental loss that Tenant proves could be reasonably avoided; plus
4. Proximately Caused Damages. Any other amount necessary to compensate
Landlord for all detriment proximately caused by ▇▇▇▇▇▇'s failure to perform
its obligations under this Lease or which in the ordinary course of things
would be likely to result therefrom, including, but not limited to, any costs
or expenses (including attorney's fees), incurred by Landlord in (a) retaking
possession of the Premises, (b) maintaining the Premises after Tenant's default,
(c) preparing the Premises for reletting to a new tenant, including any repairs
or alterations, and (d) reletting the Premises, including brokers' commissions.
"The worth at the time of the award" as used in subparagraphs 1 and 2 above, is
to be computed by allowing interest at the rate of ten percent (10%) per annum.
"The worth at the time of the award" as used in subparagraph 3 above, is to be
computed by discounting the amount at the discount rate of the Federal Reserve
Bank situated nearest to the Premises at the time of the award plus one percent
(1%).
The waiver by Landlord of any breach of any term, covenant or condition of this
Lease shall not be deemed a waiver of such term, covenant or condition or of any
subsequent breach of the same or any other term, covenant or condition.
Acceptance of Rent by Landlord subsequent to any breach hereof shall not be
deemed a waiver of any preceding breach other than the failure to pay the
particular Rent so accepted, regardless of Landlord's knowledge of any breach at
the time of such acceptance of Rent. Landlord shall not be deemed to have waived
any term, covenant or condition unless Landlord gives Tenant written notice of
such waiver.
27.3 Landlord's Default. If Landlord fails to perform any covenant, condition or
agreement contained in this Lease within thirty (30) days after receipt of
written notice from Tenant specifying such default, or if such default cannot
reasonably be cured within thirty (30) days, if Landlord fails to commence to
cure within that thirty (30) day period, then Landlord shall be liable to Tenant
for any damages sustained by ▇▇▇▇▇▇ as a result of Landlord's breach; provided,
however, it is expressly understood and agreed that if Tenant obtains a money
judgment against Landlord resulting from any default or other claim arising
under this Lease, that judgment shall be satisfied only out of the rents,
issues, profits, and other income actually received on account of Landlord's
right, title and interest in the Premises, Building or Project, and no other
real, personal or mixed property of Landlord (or of any of the partners which
comprise Landlord, if any) wherever situated, shall be subject to levy to
satisfy such judgment. If, after notice to Landlord of default, Landlord (or any
first mortgagee or first deed of trust beneficiary of Landlord) fails to cure
the default as provided herein, then Tenant shall have the right to cure that
default at Landlord's expense. Tenant shall not have the right to terminate this
Lease or to withhold, reduce or offset any amount against any payments of Rent
or any other charges due and payable under this Lease except as otherwise
specifically provided herein.
28. BROKERAGE FEES.
Tenant warrants and represents that it has not dealt with any real estate broker
or agent in connection with this Lease or its negotiation except Broker and
Sales Agent. Tenant shall indemnify and hold Landlord harmless from any cost,
expense or liability (including costs of suit and reasonable attorneys' fees)
for any compensation, commission or fees claimed by any other real estate broker
or agent in connection with this Lease or its negotiation by reason of any act
of Tenant.
29. NOTICES
All notices, approvals and demands permitted or required to be given under this
Lease shall be in writing and deemed duly served or given if personally
delivered or sent by certified or registered U.S. mail, postage prepaid, and
addressed as follows: (a) if to Landlord, to Landlord's Mailing Address and to
the Building manager, and (b) if to Tenant, to Tenant's Mailing Address;
provided, however, notices to Tenant shall be deemed duly served or given if
delivered or mailed to Tenant at the Premises. Landlord and ▇▇▇▇▇▇ may from time
to time by notice to the other designate another place for receipt of future
notices.
30. GOVERNMENT ENERGY OR UTILITY CONTROLS.
In the event of imposition of federal, state or local government controls,
rules, regulations, or restrictions on the use or consumption of energy or other
utilities during the Term, both Landlord and Tenant shall be bound thereby, and
Landlord shall have the right to enforce compliance therewith, including the
right of entry into the Premises to effect compliance.
31. RELOCATION OF PREMISES
(12)
32. QUIET ENJOYMENT.
Tenant, upon paying the Rent and performing all of its obligations under this
Lease, shall peaceably and quietly enjoy the Premises, subject to the terms of
this Lease and to any mortgage, lease, or other agreement to which this Lease
may be subordinate.
33. OBSERVANCE OF LAW.
Tenant shall not use the Premises or permit anything to be done in or about the
Premises which will in any way conflict with any law, statute, ordinance or
governmental rule or regulation now in force or which may hereafter be enacted
or promulgated. Tenant shall, at its sole cost and expense, promptly comply with
all laws, statutes, ordinances and governmental rules, regulations or
requirements now in force or which may hereafter be in force, and with the
requirements of any board of fire insurance underwriters or other similar bodies
now or hereafter constituted, relating to, or affecting the condition, use or
occupancy of the Premises, excluding structural changes not related to or
affected by Tenant's improvements or acts. The judgment of any court of
competent jurisdiction or the admission of Tenant in any action against Tenant,
whether Landlord is a party thereto or not, that Tenant has violated any law,
statute, ordinance or governmental rule, regulation or requirement, shall be
conclusive of that fact as between Landlord and Tenant.
34. FORCE MAJEURE.
Any prevention, delay or stoppage of work to be performed by Landlord or Tenant
which is due to strikes, labor disputes, inability to obtain labor, materials,
equipment or reasonable substitutes therefor, acts of God, governmental
restrictions or regulations or controls, judicial orders, enemy or hostile
government actions, civil commotion, fire or other casualty, or other causes
beyond the reasonable control of the party obligated to perform hereunder, shall
excuse performance of the work by that party for a period equal to the duration
of that prevention, delay or stoppage. Nothing in this Article 34 shall excuse
or delay ▇▇▇▇▇▇'s obligation to pay Rent or other charges under this Lease.
35. CURING TENANT'S DEFAULTS.
If Tenant defaults in the performance of any of its obligations under this
Lease, Landlord may (but shall not be obligated to) without waiving such
default, perform the same for the account and at the expense of Tenant. Tenant
shall pay Landlord all costs of such performance promptly upon receipt of a bill
therefor.
36. SIGN CONTROL.
Tenant shall not affix, paint, erect or inscribe any sign, projection, awning,
signal or advertisement of any kind to any part of the Premises, Building or
Project, including without limitation, the inside or outside of windows or
doors, without the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed. Landlord shall have the right to remove any
signs or other matter, installed without ▇▇▇▇▇▇▇▇'s permission, without being
liable to Tenant by reason of such removal, and to charge the cost of removal to
Tenant as additional rent hereunder, payable within ten (10) days of written
demand by ▇▇▇▇▇▇▇▇.
37. MISCELLANEOUS.
a. Accord and Satisfaction; Allocation of Payments. No payment by Tenant or
receipt by Landlord of a lesser amount than the Rent provided for in this Lease
shall be deemed to be other than on account of the earliest due Rent, nor shall
any endorsement or statement on any check or letter accompanying any check or
payment as Rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of the Rent or pursue any other remedy provided for in this Lease. In
connection with the foregoing, Landlord shall have the absolute right in its
sole but reasonable discretion to apply any payment received from Tenant to any
account or other payment of Tenant then not current and due or delinquent.
b. Addenda. If any provision contained in an addendum to this Lease is
inconsistent with any other provision herein, the provision contained in the
addendum shall control, unless otherwise provided in the addendum.
c. Attorneys' Fees. If any action or proceeding is brought by either party
against the other pertaining to or arising out of this Lease, the finally
prevailing party shall be entitled to recover all costs and expenses, including
reasonable attorneys' fees, incurred on account of such action or proceeding.
d. Captions, Articles and Section Numbers. The captions appearing within the
body of this Lease have been inserted as a matter of convenience and for
reference only and in no way define, limit or enlarge the scope or meaning of
this Lease. All references to Article and Section numbers refer to Articles and
Sections in this Lease.
e. Changes Requested by ▇▇▇▇▇▇. Neither Landlord or Tenant shall unreasonably
withhold its consent to administrative changes or amendments to this Lease
requested by the Lender on Landlord's interest, so long as these changes do not
alter the basic business terms of this Lease or otherwise materially diminish
any rights or materially increase any obligations of the party from whom the
consent to such change or amendment is requested.
f. Choice of Law. This Lease shall be construed and enforced in accordance with
the laws of the State.
g. Consent. Notwithstanding anything contained in this Lease to the contrary,
Tenant shall have no claim, and hereby waives the right to any claim against
Landlord for money damages by reason of any reasonable refusal, withholding or
delaying by Landlord of any consent, approval or statement of satisfaction, and
in such event, ▇▇▇▇▇▇'s only remedies therefor shall be an action for specific
performance, injunction or declaratory judgment to enforce any right to such
consent, etc.
h. Corporate Authority. If Tenant is a corporation, each individual signing
this Lease on behalf of ▇▇▇▇▇▇ represents
and warrants that he is duly authorized to execute and deliver this Lease on
behalf of the corporation, and that this Lease is binding on Tenant in
accordance with its terms. Tenant shall, at ▇▇▇▇▇▇▇▇'s request, deliver a
certified copy of a resolution of its board of directors authorizing such
execution.
i. Counterparts. This lease may be executed in multiple counterparts, all
of which shall constitute one and the same Lease.
j. Execution of Lease; No Option. The submission of this Lease to Tenant shall
be for examination purposes only, and does not and shall not constitute a
reservation of or option for Tenant to lease, or otherwise create any interest
of Tenant in the Premises or any other premises within the Building or Project.
Execution of this Lease by Tenant and its return to Landlord shall not be
binding on Landlord notwithstanding any time interval, pending Landlord's
Lender's approval of this Lease and execution and delivery of this Lease to
Tenant.
k. Furnishings of Financial Statement; Tenant's Representations. In order to
induce ▇▇▇▇▇▇▇▇ to enter into this Lease or any extention thereof Tenant agrees
that it shall promptly furnish Landlord for Landlord's review and approval, upon
▇▇▇▇▇▇▇▇'s written request, with financial statements reflecting ▇▇▇▇▇▇'s
current financial condition. Tenant represents and warrants that all financial
statements, records and information furnished by Tenant to Landlord in
connection with this Lease or any extention thereof are true, correct and
complete in all respects.
l. Further Assurances. The parties agree to promptly sign all documents
reasonably requested to give effect to the provisions of this Lease.
m. Mortgagee Protection. ▇▇▇▇▇▇ agrees to send by certified or registered mail
to any first mortgagee or first deed of trust beneficiary of Landlord whose
address has been furnished to Tenant, a copy of any notice of default served by
Tenant to Landlord. If Landlord fails to cure such default within the time
provided for in this Lease, such mortgagee or beneficiary shall have an
additional thirty (30) days to cure such default; provided that if such default
cannot reasonably be cured within that thirty (30) day period, then such
mortgagee or beneficiary shall have such additional time to cure the default as
is reasonably necessary under the circumstances.
n. Prior Agreements; Amendments. This Lease contains all of the agreements of
the parties with respect to any matter covered or mentioned in this Lease, and
no prior agreement or understanding pertaining to any such matter shall be
effective for any purpose. No provisions of this Lease may be amended or added
to except by an agreement in writing signed by the parties or their respective
successors in interest.
o. Recording. Tenant shall not record this Lease without the prior consent of
Landlord. Tenant, upon the request of ▇▇▇▇▇▇▇▇, shall execute and acknowledge a
"short form" memorandum of this Lease for recording purposes.
p. Severability. A final determination by a court of competent jurisdiction
that any provision of this Lease is invalid shall not affect the validity of any
other provision, and any provision so determined to be invalid shall, to the
extent possible, be construed to accomplish its intended effect.
q. Successors and Assigns. This Lease shall apply to and bind the heirs,
personal representatives, and permitted successors and assigns of the parties.
r. Time of the Essence. Time is of the essence of this Lease.
s. Waiver. No delay or omission in the exercise of any right or remedy of a
party upon any default by the other party shall impair such right or remedy or
be construed as a waiver of such default.
The receipt and acceptance by Landlord of delinquent Rent shall not constitute a
waiver of any other default; it shall constitute only a waiver of timely payment
for the particular Rent payment involved.
No act or conduct of Landlord, including, without limitation, the acceptance of
keys to the Premises, shall constitute an acceptance of the surrender of the
Premises by Tenant before the expiration of the Term. Only a written notice
from Landlord to Tenant shall constitute acceptance of the surrender of the
Premises and accomplish a termination of the Lease.
A party's consent to or approval of any act by the other party requiring the
first party consent or approval shall not be deemed to waive or render
unnecessary the first party's consent to or approval of any subsequent act by
the other party.
Any waiver by a party of any default must be in writing and shall not be a
waiver of any other default concerning the same or any other provision of the
Lease.
The parties hereto have executed this Lease of the date set forth on page 1.
Sycamore/San Diego Investors Protein Polymer Technologies, Inc.
-------------------------------------- -------------------------------------
By: Shell Properties Corp., Agent
-------------------------------------- -------------------------------------
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------- -------------------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President By: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
3-15-96 March 8, 1996
-------------------------------------- -------------------------------------
Landlord Tenant
SEE YOUR ATTORNEY
-----------------
This lease should be given to your attorney for review before your sign
it. Landlord and ▇▇▇▇▇▇▇▇'s agent make no representation or
recommendation concerning the tax or legal effects or the legal
sufficiency of this lease. These are questions for legal counsel.
(14)
ADDENDUM TO LEASE DATED MARCH 1, 1996, BY AND
BETWEEN SYCAMORE/SAN DIEGO INVESTORS, LANDLORD,
AND PROTEIN POLYMER TECHNOLOGIES, INC., TENANT.
-----------------------------------------------
Landlord and ▇▇▇▇▇▇ hereby agree that notwithstanding anything contained
in the Lease to the contrary, the provisions set forth below will be deemed to
be a part of the Lease and shall supercede, to the extent appropriate, any
contrary provision in the Lease. All references in the Lease and in this
Addendum to "Lease" shall be construed to mean the Lease, as amended and
supplemented by this Addendum. All terms used in this Addendum, unless
specifically defined in this Addendum, shall have the same meaning as the terms
used in the Lease.
1. Quality of Construction - Standard for Maintenance, Repairs &
-------------------------------------------------------------
Operation. Landlord hereby represents and warrants to Tenant that the
---------
improvements to be completed by Landlord as provided in Paragraph 18 herein and
as depicted in Exhibit "C" of this Lease shall be constructed according to plans
and specifications as may be mutually agreed upon between Tenant and Landlord,
but, in any event, according to plans and specifications as may be mutually
agreed upon between Tenant and Landlord, but, in any event, according to plans
and specifications as approved by all interested governmental agencies.
Otherwise, Landlord shall maintain, repair and operate the Project (subject to
Tenant's maintenance and repair obligations set forth in the Lease) in a
condition customary in the industry for comparable buildings, and shall operate
the Project in a like manner.
2. Landlord's Representations. Landlord hereby represents and
--------------------------
warrants that to the best of Landlord's knowledge the use by Tenant of the
Premises for the purposes set forth in the Tenant Use Clause is not, as of the
date of this Lease, in violation of any law or covenant, condition or
restriction affecting the Building or Project or the certificate of occupancy
issued for the Building or Project. Landlord further represents and warrants
that to the best of Landlord's knowledge Tenant's use of the Premises for the
purposes set forth in the Tenant Use Clause will not, as of the date of this
Lease, invalidate any fire, extended coverage or other insurance policy covering
the Building or Project and/or property located therein, and to the best of
Landlord's knowledge complies with all rules, orders, regulations, requirements
and recommendations of the Insurance Services Office or any other organization
performing a similar function.
3. Audit Provision. If, after any inspection conducted by Tenant
under Section 5.3(e) of the Lease, Tenant continues to dispute the amount of
additional rent owed, Tenant shall have the right, exercisable not more than
once in any calendar year, to retain an independent, certified public accounting
firm, which firm shall be subject to Landlord's consent, (which consent shall
not be unreasonably withheld or delayed), to audit and/or review
▇▇▇▇▇▇▇▇'s records to determine the proper amount of Tenant's Proportionate
Share of Project Operating Costs and any other additional rent. If such audit or
review reveals that ▇▇▇▇▇▇▇▇ has overcharged Tenant, then within thirty (30)
days after the results of such audit are made available to Landlord, Landlord
shall reimburse Tenant the amount of such overcharge plus interest at the
Interest Rate. The "Interest Rate" is defined as the lesser of (a) the prime
rate of Bank of America NT & SA, plus two percent (2%) or (ii) the maximum rate
permitted by law. If the audit reveals that ▇▇▇▇▇▇ was undercharged, then,
within thirty (30) days after the results of the audit are made available to
Tenant, Tenant shall reimburse Landlord the amount of such undercharge plus
interest thereon at the Interest Rate. ▇▇▇▇▇▇ agrees to pay the cost of any such
audits; provided, however, that if any audit reveals that ▇▇▇▇▇▇▇▇'s
determination of ▇▇▇▇▇▇'s Proportionate Share of Project Operating Costs of
other additional rent was in error in Landlord's favor by more than five percent
(5%), then Landlord shall pay the cost of such audit. Landlord shall be required
to maintain records of the Project Operating Costs for the entirety of the three
(3) year period following Landlord's delivery to Tenant of each operating cost
statement setting forth Tenant's Proportionate Share of Project Operating Costs.
The payment by Tenant of any amounts pursuant to Article 5 of the Lease shall
not preclude Tenant from questioning the correctness of any operating cost
statement provided by Landlord. If ▇▇▇▇▇▇▇▇'s books and records are audited or
reviewed by any independent certified public accountant or accounting firm
retained by Landlord, the existence of such audit or review, together with a
copy of the results, shall be disclosed and transmitted to Tenant by Landlord
within twenty (20) days of ▇▇▇▇▇▇▇▇'s receipt of such review or audit results.
4. Project Operating Costs Exclusions.
----------------------------------
Notwithstanding anything to the contrary set forth in Article 5 of the Lease,
Project Operating Costs shall not include the following:
(i) Any ground lease rental;
(ii) Any principal, interest, points or other fees on debts or
amortization on any mortgage or mortgages or any other debt instrument with
regard to the project;
(iii) That portion of any costs of capital repairs, replacements,
improvements or equipment, including interest thereon if any, which would result
in Tenant's prorata share (for such capital items) exceeding the hereby agreed
upon amount of $1,600.00 per month during the Lease Term where such items are
described as those having a useful life in excess of one (l) year and where the
cost of such items are amortized over their reasonably anticipated lives
pursuant to generally accepted accounting principles consistently applied;
(iv) Rentals for items not directly required or involved in Landlord's
performance of its obligations pursuant to this Lease;
(v) Costs incurred by Landlord for the repair of damage to the Project
to the extent that Landlord is reimbursed by insurance proceeds;
(vi) Costs incurred by Landlord with respect to the negotiation or
installation of past, present, future or prospective tenants or occupants within
the Project including tenant improvement and refurbishment costs, space
planning, leasing commissions and other marketing costs, attorney costs and
other fees, and any other costs and expenses connected therewith;
(vii) Expenses for items and services not offered to Tenant, or for
which Tenant or any other tenant or occupant directly reimburses Landlord (other
than through Tenant's Proportionate Share of Project Operating Cost Increases);
(viii) Costs incurred by Landlord due to the violation by ▇▇▇▇▇▇▇▇ and/or
other tenant or occupant of the terms and conditions of any other lease
agreement.
(ix) Overhead and profit increments paid to Landlord or to subsidiaries
or affiliates of Landlord for goods and/or services in the Project to the extent
the same exceeds the costs of such goods and/or services rendered by
unaffiliated third parties on a competitive basis;
(x) Landlord's general corporate overhead and administrative expenses;
(xi) Electric power costs for which any tenant or occupant directly
contracts with the local public service company;
(xii) Governmental fines and/or tax penalties incurred as a result of
Landlord's negligence, inability or unwillingness to make payments when due;
(xiii) Landlord's charitable or political contributions;
(xiv) Costs, attorney fees, judgements and payments arising from claims,
disputes, arbitration, litigation or the threat of litigation pertaining to the
Landlord and/or the Building and/or the Project or any other tenant or occupant
therein except where the tenants of the project would receive benefits if
Landlord prevails.
(xv) Costs incurred by Landlord which are not customarily treated as
"operating expenses" or "operating costs" at comparable office buildings.
5. Abatement of Rent When Tenant is Prevented from Using Premises.
--------------------------------------------------------------
Notwithstanding anything to the contrary contained in the Lease, in the event
that Tenant is prevented from using, and does not use, the Premises or any
portion of the Premises greater than five percent (5%) of the Rentable Area of
the Premises for ten (10) consecutive days (the "Eligibility Period") as a
result of any damage or destruction to the Premises, or the taking of all or any
part of the Premises by eminent domain, or any failure on the part of Landlord
or Landlord's agents, employees, contractors or representatives, to provide
services or access to the Premises, except for those provided by public
utilities or other public entities over which Landlord has no control, then
Tenant's obligation to pay Rent shall be abated or reduced, as the case may be,
after expiration of the Eligibility Period, for such time that Tenant continues
to be so prevented from using, and does not use, the Premises or a portion
thereof, in the proportion that the Rentable Area of the portion of the Premises
that Tenant is prevented from using, and does not use, bears to the total
Rentable area of the Premises. If ▇▇▇▇▇▇'s right to abatement occurs because of
an eminent domain taking and/or because of damage or destruction to the Premises
or Tenant's personal property, ▇▇▇▇▇▇'s abatement period shall commence
immediately and shall continue until Tenant has been given sufficient time (as
reasonably determined by Landlord and Tenant), and sufficient access to the
Premises (as reasonably determined by Landlord and Tenant), to rebuild the
portion of the Premises it is required to rebuild, to install its property,
furniture, fixtures, and equipment, and to move in over a weekend.
6. Limitation on Tenant's Indemnity.
--------------------------------
Notwithstanding anything to the contrary contained in the Lease, Tenant shall
not be required to indemnify and hold Landlord harmless from any loss, cost,
liability, damage and expense, including, but not limited to, penalties, fines
and actual attorneys' fees and costs, (collectively "Claims"), to any person,
property or entity resulting from any breach
of the Lease by Landlord or any default by Landlord thereunder or from the
negligence or the willful misconduct of Landlord or its agents, employees, in
connection with Landlord's activities in the Project and/or the Building (except
for damage to the tenant improvements and Tenant's personal property, fixtures,
furniture and equipment in the Premises as to which Tenant is required to obtain
the requisite insurance coverage) and Landlord hereby so indemnifies and saves
Tenant harmless from any such Claims. However, ▇▇▇▇▇▇'s agreement to indemnify
and hold Landlord harmless pursuant to Article 21 of the Lease, and the
agreement by Landlord to indemnify and hold Tenant harmless set forth above are
not intended to, and shall not relieve any insurance carrier of its obligations
under policies required to be carried by Landlord or Tenant, respectively,
pursuant to the provisions of the Lease to the extent that such policies cover
the results of such acts or conduct. The parties hereby agree that if either
party breaches this Addendum No. 2 provision by its failure to carry required
insurance, such failure shall automatically be deemed to be the covenant and
agreement by such party to self-insure said required coverage, with full waiver
of subrogation in favor of the other party. The parties further agree that to
the extent any damage or repair obligation of Tenant is covered by insurance
obtained by Landlord or would have been covered by insurance had Landlord
maintained the insurance required to be maintained by Landlord under the Lease
as part of the Project Operating Costs, but is not covered by insurance obtained
by Tenant, then Tenant shall be relieved of its indemnity obligation up to the
amount of the insurance proceeds which the Landlord actually receives (or would
have received had Landlord maintained insurance as aforesaid).
7. Reciprocal Indemnity. Notwithstanding anything contained in this Lease
--------------------
to the contrary, Landlord hereby indemnifies and holds Tenant harmless from any
loss, cost, liability, damage or expense (including, but not limited to,
penalties, fines, and reasonable actual attorneys' fees and costs) to any person
or property outside of the Premises or unrelated to the Premises, (except if
resulting from the sole or joint and several negligent acts or omissions of
Tenant or those of its employees, licensees or agents) to the extent such loss,
costs, liability, damage or expenses are covered by the insurance obtained by
Landlord. In the event the Premises, the Building or the Project are damaged or
destroyed and such damage or destruction is covered by insurance obtained by
Landlord but not covered by insurance obtained by Tenant, and further, that
Tenant is not in default hereunder and ▇▇▇▇▇▇ has fully complied with all
insurance required to be carried by Tenant hereunder, Landlord shall use the
proceeds of its insurance to repair the damage or destruction to the Premises,
the Building and/or the Project, subject to any rights either Landlord or Tenant
may have to terminate this Lease in the event such damage or destruction occurs.
8. Rules and Regulations. Landlord agrees that the Rules and Regulations
---------------------
of the Project, attached to and made a part of this Lease as Exhibit "D" shall
not be changed or revised at Landlord's will in a manner which materially
interferes with the purposes permitted under ▇▇▇▇▇▇'s Use Clause.
9. Non-Disturbance Agreements. Landlord also agrees (a) to provide Tenant
with commercially reasonable Non-Disturbance Agreements in favor of Tenant from
any ground lessors, mortgage holders or lien holders of Landlord in existence as
of the date of this Lease on or before December 10, 1991, and (b) to provide
Tenant with commercially reasonable Non-Disturbance Agreements in favor of
Tenant from any ground lessors, mortgage holders or lien holders of Landlord who
later come into existence at any time during the term of the Lease in
consideration of, and as a condition precedent to, ▇▇▇▇▇▇'s agreement to be
bound by Article 24 of the Lease. Such Non-Disturbance Agreement(s) shall
provide that such Holders shall be responsible for fulfilling all of Landlord's
obligations pursuant to the Lease.
19
10. Real Property. Notwithstanding any contrary provision of
-------------
Article 5 of the Lease, Tenant's Proportionate Share of Project Operating Costs
shall not include (i) any increases in real property taxes resulting from any
assessment or reassessment of the Building or the Project or the real property
on which the Project is located, to the extent that any such increase arises out
of or results from: (a) the sale or transfer of ownership or ground lease of all
or any part of the Project or any part of the real property on which the Project
is located, or (b) the refinancing or placement of any debt related to or
secured by all or any part of the Project or any part of the real property on
which the Project is located.
11. Landlord's Estoppel Certificates. Provided that Tenant is not
--------------------------------
at the time in default hereunder, then Landlord within (20) days after written
request from Tenant, Landlord shall execute and deliver to Tenant or ▇▇▇▇▇▇'s
designee, a written statement certifying (a) this Lease is unmodified and in
full force and effect, or in full force and effect as modified in stating the
modifications; (b) the amount of Base Rent and date to which Base Rent and
additional rent have been paid in advance; (c) the amount of any security
deposit held by Landlord; and (d) that Tenant is not in default hereunder or, if
▇▇▇▇▇▇ is claimed in default, stating the nature of any claim default. Any such
statement may be relied upon by any assignee, sublessee or lender. ▇▇▇▇▇▇▇▇'s
failure to execute and deliver such statement within the time required shall at
Tenant's election be a default under this Lease and shall be conclusive upon
Landlord that: (1) this Lease is in full force and effect and has not been
modified except as represented by Tenant; and (2) there are no uncured defaults
in Tenant's performance.
12. Option to Extend Lease Term. Tenant shall have the option
---------------------------
(provided that Tenant shall not at the time of exercise of said option or at any
subsequent time thru commencement date of said option term be in default
hereunder) to extend the term of this Lease for an additional Sixty (60) months
subject to all of the terms and conditions contained in this Lease. Said option
shall be exercised by Tenant by giving to Landlord written notice of ▇▇▇▇▇▇'s
election to exercise said option not later than September 1, 1998. During said
option term Base Rent shall be adjusted pursuant to the provisions of Paragraph
16 hereof.
13. Services and Utilities. Landlord shall furnish to the Premises,
----------------------
subject to the provisions of paragraph 5.3 of the Lease, lighting, water,
electricity, gas, sewer and other utilities, elevator service, janitorial
service, exterior window-washing, HVAC equipment and filter maintenance services
pursuant to the standard set forth in Section 1, above. All utilities,
including, without limitation, water, electricity, gas and sewer, shall be
available to the Premises 24 hours per day, every day throughout the term, in
quantities sufficient for Tenant's normal business operations. Landlord shall
also provide to Tenant access to the Premises 24 hours per day, every day
throughout the term. In the event that Tenant consumes services or utilities in
excess of that usually supplied to the Premises for use of the Premises as
general office space, as reasonably determined by Landlord, and such services of
utilities are not separately metered or otherwise directly paid for by ▇▇▇▇▇▇,
then Landlord may under such circumstances establish a monthly prorata charge
for Tenant's excess use or consumption of such services and utilities.
notwithstanding any provisions of Article 9 of the Lease to the contrary,
Landlord shall provide natural gas and electricity, including UPS and emergency
power, to the second floor of Building 1 and to the Premises through the
Building's second floor house meters. Landlord, Tenant and ▇▇▇▇▇▇'s second floor
co-tenant, shall cooperate to establish fair and equitable methods for the
proration of second floor costs of the natural gas and electricity supplied by
Landlord. Such agreed upon methods shall be in writing and incorporated within
the Lease. If no such methods can be agreed upon, the costs of such utilities
shall be prorated by Landlord on a straight square-footage basis; provided,
however, in the event that said formula does not lead to a fair and equitable
proration because the second floor tenants do not use electricity or other
utilities in proportionally equal amounts, Landlord shall adjust said formula as
necessary to lead to such fair and equitable proration. Any such proration shall
be reviewed from time to time so that it accomplishes the purposes intended
hereby. In either case, the prorated costs of such utilities shall be additional
rent due under the Lease.
14. Alterations and Additions. Notwithstanding any limitations set
-------------------------
forth in Article 12 of the Lease, Tenant shall have the right to make minor,
non-structural alterations, improvements and additions to the Premises, except
for any life safety systems, without obtaining Landlord's prior written consent
where the cost of each such alteration, improvement and addition does not exceed
$1,000, so long as Tenant meets all of the other requirements of said Article
12.
15. Damage and Destruction. Notwithstanding any language to the
----------------------
contrary in Article 19 of the Lease, if the Premises or the portion of the
Building or parking areas necessary for Tenant's occupancy is damaged by fire,
earthquake, act of God, the elements, or other casualty, Landlord shall notify
Tenant within thirty (30) days of said casualty if Landlord, in its reasonable
judgment, believes that the repairs will take longer than sixty (60) days to
complete, which notice shall include Landlord's best estimate of the total time
that said repairs will take to complete (the "Estimate"). If the Estimate
exceeds ninety (90) days, then Tenant shall have the right to terminate the
Lease by providing Landlord written notice of ▇▇▇▇▇▇'s receipt of the Estimate,
in which case the Lease shall terminate as of the date of the casualty.
16. (Article 5 Paragraph 2) Adjusted Base Rent. The amount of Base
------------------------------------------
Rent Per Year set forth in Article 2(a) hereof (and the corresponding Monthly
Installments of Base Rent set forth in Article 2(j) hereof) shall be adjusted
annually commencing with Tenant's First Adjustment Date set forth in Article
2(q) hereof, by the same percentage (%) increase, if any, in the Index set forth
in Article 2(h) hereof. The Base Index shall be the Index as it stands as of
the end of the 2nd 1/2 of 1996 and the Comparison Index shall be the same Index
as it stands at the end of each twelve (12) month interval from the date of the
Base Index. The Base Index shall be subtracted from the Comparison Index of the
time and the positive difference, if any, shall be divided by the Base Index to
yield the cumulative percentage (%) increase in the Index between the Base Index
date and the Comparison Index date of the time. The yearly and monthly Base
Rent set forth in Article 2 (a & j) hereof shall be multiplied by the percentage
increase in the Index as above calculated (rounded to the nearest hundredth of a
percent) and those respective products shall be added to said yearly and monthly
Base Rent to determine the Adjusted Base Rent payable yearly and monthly between
each such anniversary date. No such adjustment made pursuant to the preceding
formula shall exceed seven (7%) of the Base Rent of Article 2 (a & j)
nor shall any such adjustment be less than three (3%) of said Base Rent. When
the Adjusted Base Rent payable as of each
adjustment date has been determined, Landlord shall give Tenant written notice
setting forth the calculation of Base Rent as adjusted. Delay in Landlord's
notice to Tenant shall not relieve Tenant of Tenant's obligation to pay Adjusted
Base Rent as of the adjustment date.
17. Tenant's Temporary Premises. Commencing March 1, 1996 and continuing
---------------------------
through to the Commencement Date of the term of the Lease for the Premises
Tenant shall be entitled to occupy and use those temporary premises known as
Suite 201 on the second floor at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ (containing
approximately 4,371 square feet and as depicted on Lease Exhibit "A2") under all
of the same terms and conditions of this Lease with the exception of Monthly
Base Rent which rent shall be in the amount of $6,721.72 and which rent shall be
subject to adjustment pursuant to Paragraph 16 above for any percentage change
in the "Index" over the period 2nd 1/2 1994 thru 2nd 1/2 1995. For the purposes
of this paragraph, the initial base rent for the Temporary Premises is $6,557
per month.
18. Landlord's Improvements. Prior to the Commencement Date of the term
-----------------------
of the Lease for the Premises Landlord shall, at Landlord's sole cost and
expense, construct or cause to be constructed the 1 Hr rated fire corridor
depicted in Exhibit "C" of the Lease. Tenant, ▇▇▇▇▇▇'s 2nd floor co-tenant and
Landlord shall cooperate in their final design, location of doorways, etc. to
permit Landlord's timely completion of said improvements.
SYCAMORE/SAN DIEGO INVESTORS
By: Shell Properties Corporation, Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. Server
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
President
PROTEIN POLYMER TECHNOLOGIES, INC.
By: /s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
President
EXHIBIT "A"
Suite 200
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
(DIAGRAM OF FLOOR PLAN)
EXHIBIT "A2"
Suite ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
[DIAGRAM OF FLOOR PLAN]
EXHIBIT "B"
Site Plan
---------
SYCAMORE CREEK OFFICE R&D PARK
10655 10665 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
San Diego, CA
I 805
(Diagram of Site Plan)
SORRENTO VALLEY ROAD
EXHIBIT "C"
-----------
2nd Fl.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
(Diagram of 2nd Floor for Sycamore Creek Office)
EXHIBIT "D"
RULES AND REGULATIONS ATTACHED TO
AND MADE A PART OF THIS LEASE
1
No sign, placard, picture, advertisement, awning, shade, window film, name
or notice shall be inscribed, displayed or printed or affixed on or to any part
of the outside or inside of the building without the written consent of Lessor
first having been obtained and Lessor shall have the right to remove any such
sign, placard, picture, advertisement, awning, shade, window film, name or
notice without notice to and at the expense of Lessee.
All approved signs or lettering on doors and directories shall be
printed, painted, affixed or inscribed at the expense of ▇▇▇▇▇▇. All such signs
and installation will be ordered through the Lessor.
Lessee shall not place anything or allow anything to be placed near the
glass of any window, door, partition or wall which may appear unsightly
from outside the premises; provided, however, that Lessor is to furnish and
install a building standard window drapery at all exterior windows.
2
3
The bulletin board or directory of the building will be provided
exclusively for the display of the name and location of Lessee only and Lessor
reserves the right to exclude any other names therefrom.
4
The sidewalks, halls, passages, exits, entrances, parking areas, elevators
and stairways shall not be obstructed by any of the lessees or used by them for
any purpose other than for ingress to and egress from their respective premises.
The halls, passages, exits, entrances, elevators, stairways, balconies and roof
are not for the use of the general public and the Lessor shall in all cases
retain the right to control and prevent access thereto by all persons whose
presence in the judgement of the Lessor shall be prejudicial to the safety,
character, reputation and interests of the building and its lessees, provided
that nothing herein contained shall be construed to prevent such access to
persons with whom the lessee normally deals in the ordinary course of Lessee's
business unless such persons are engaged in illegal activities. No lessee and
no employees or invitees of any lessee shall go upon the roof of the building.
5
Lessee shall not alter any lock or install any new or additional locks or
any bolts on any door of the premises.
6
The toilet rooms, urinals, wash bowls and other apparatus shall not be
used for any purpose other than that for which they were constructed and no
foreign substance of any kind whatsoever shall be thrown therein and the expense
of any breakage, stoppage or damage resulting from the violation of this rule
shall be born by the Lessee who, or whose employees or invitees shall have
caused it.
7
Lessee shall not overload the floor of the premises or, except in the
course of normal business operations, mark, drive nails, screw or drill into
partitions, woodwork or plaster or in any way deface the premises or any part
thereof.
8
No furniture, freight or equipment of any kind shall be brought into the
building without the consent of ▇▇▇▇▇▇ and all moving of the same into or out of
the building shall be done at such time and in such manner as Lessor shall
designate. Lessor shall have the right to prescribe the weight, size and
position of all safes and other heavy equipment brought into the building and
also the times and manner of moving the same in and out of the building. Safes
or other heavy objects shall, if considered necessary by Lessor, stand on wood
strips of such thickness as is necessary to properly distribute the weight.
Lessor will not be responsible for loss of or damage to any such safe or
property from any cause and all damage done to the building by moving or
maintaining any such safe or other property shall be repaired at the expense of
Lessee.
9
Lessee shall not employ any person or persons other than the janitor of
Lessor for the purpose of cleaning the premises unless otherwise agreed to by
Lessor. Except with the written consent of Lessor, no person or persons other
than those approved by Lessor shall be permitted to enter the building for the
purpose of cleaning the same. Lessee shall not cause any unnecessary labor by
reason of ▇▇▇▇▇▇'s carelessness or indifference in the preservation of good
order and cleanliness. Lessor shall in no way be responsible to any Lessee for
any loss of property on the premises, however occurring, or for any damage done
to the effects of any Lessee by the janitor or any other employee or any other
person. Janitor service shall include ordinary dusting and cleaning by the
janitor assigned to such work and shall not include cleaning of carpets or
rugs, except normal vacuuming, or moving of furniture or other special services.
10
11
No cooking other than by microwave shall be done or permitted by any
Lessee on the premises, except as related to Tenant's normal business
operations, nor shall the premises be used for the storage of merchandise, for
washing clothes, except as related to Tenant's normal business operations, or
for lodging.
12
13
Lessor will direct electricians as to where and how telephone and
telegraph wires are to be introduced. No boring or cutting for wires will be
allowed without the consent of Lessor, except as otherwise provided in the
Lease. The location of telephones, call boxes and other office equipment
affixed to the premises shall be subject to the approval of Lessor, except as
otherwise provided in the Lease.
14
Each Lessee, upon the termination of the tenancy, shall deliver to the
Lessor the keys of building access, offices, rooms and toilet rooms which shall
have been furnished to the Lessee or which the Lessee shall have had made, and
in the event of loss of any keys so furnished, shall pay the Lessor therefor.
15
No Lessee shall lay linoleum, tile, carpet of other similar floor
covering so that the same shall be affixed to the floor of the premises in any
manner except as approved by the Lessor. The expense of repairing any damage
resulting from a violation of this rule or removal of any floor covering shall
be born by the Lessee by whom, or by whose contractors, employees or invitees,
the damage shall have been caused. Lessee, at Lessee's expense, is to provide
and use carpet protection plates where roll type chairs are used to prevent
excessive carpet wear.
16
17
On Sundays and legal holidays, and on other days between the hours of
6:00 P.M. and 8:00 A.M. the following day, access to the building, or to the
halls, corridors, elevators or stairways in the building, or to the premises may
be refused unless the person seeking access is known to the person or employee
of the building in charge and has a pass or is properly identified. The Lessor
shall in no case be liable for damages for any error with regard to the
admission or exclusion from the building of any person. In case of invasion,
mob, riot, public excitement, or other commotion, the Lessor reserves the right
to prevent access to the building during the continuance of the same by closing
the doors or otherwise, for the safety of the Lessees and protection of property
in the building and the building.
18
Lessee shall see that the doors of the premises are closed and securely
locked before leaving the building and must observe strict care and caution that
all water faucets or water apparatus are entirely shut off before Lessee or
▇▇▇▇▇▇'s employees leave the building, and that all electricity shall likewise
by carefully shut off, so as to prevent waste or damage, and for any default of
carelessness Lessee shall make good all injuries sustained by other tenants or
occupants of the building or Lessor. Lessee must observe strict care not to
leave windows, sliding glass doors open when it rains; and, for any default or
carelessness the Lessee shall make good all injuries and damages sustained by
other tenants and building Lessor.
19
Lessor reserves the right to exclude or expel from the building any person
who, in the judgement of Lessor, is intoxicated or under the influence of liquor
or drugs, or who shall in any manner do any act in violation of any of the rules
and regulations of the building.
20
The requirements of Lessee will be attended to only by an application at
the Office of the Building. Employees of Lessor shall not perform any work or do
anything outside of their regular duties unless under special instructions from
the Lessor, and no employee will admit any person (Lessee or otherwise) to an
office without specific instructions from the Lessor.
21
22
Lessor shall have the right, exercisable without notice and without
liability to Lessee, to change the name and the street address of the building
of which the premises are a part.
23
Lessee shall not disturb, solicit, or canvass an occupant of the building
and shall cooperate to prevent the same.
24
Without the written consent of Lessor, Lessee shall not use the name of the
building in connection with or in promoting or advertising the business of
Lessee except as ▇▇▇▇▇▇'s address.
25
26
The word "building" as used herein means the building which the premises
are a part.
27
In the event and in each occurrence, Lessee issues a check to Lessor which
is dishonored by the bank, ▇▇▇▇▇▇ agrees to pay ▇▇▇▇▇▇ as a penalty the
amount of $15.00 which is immediately due and payable along with the redemption
of such dishonored check.
28
No monthly rent statements are issued by Lessor. If a rent statement is
requested by ▇▇▇▇▇▇, a monthly fee of $5.00 will be charged to Lessee, payable
with monthly rent.
29
If ▇▇▇▇▇▇ locks himself out of the leased premises, a copy of the key can
be obtained from the Lessor's office during normal business hours. A deposit of
$10.00 is required with the pickup of the key, refundable upon return of the key
to ▇▇▇▇▇▇'s office.
30
The Lessee shall not do anything in the premises, or bring or keep
anything herein, which will in any way increase or tend to increase the risk of
fire or rate of insurance, or which shall conflict with the Regulations of the
Fire Department or the fire laws or with any insurance policy on the building or
any part thereof, or with any rules or ordinances established by Public
Authority.
31
The Lessor reserves the right at any time to change or rescind any one or
more of these Rules and Regulations, or make any reasonable Rules and
Regulations as in the Lessor's judgement may from time to time be necessary for
the safety, care and cleanliness of the premises, and for the preservation of
good order therein. Lessor shall give Lessee notice of any changes or additions
to, these Rules and Regulations thirty (30) days before the effective date of
such changes or additions.
32
If an inconsistency exists or arises between the provisions of the Lease
between the Lessee and Lessor and these Rules and Regulations, the provisions of
the Lease between the Lessee and Lessor shall govern.