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EXHIBIT 10.3
BASIC LEASE INFORMATION
LEASE DATE: November 23, 1999
TENANT: VIROLOGIC, INC., a California corporation
TENANT'S ADDRESS: Until the Term Commencement Date:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
After the Term Commencement Date:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
LANDLORD: ▇▇▇▇▇▇▇▇ ▇▇▇▇ Northern California Development, Inc.
▇▇▇▇▇▇▇▇'S ADDRESS: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇. ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇)▇▇▇-▇▇▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇
PROJECT: A two (2) building project totaling approximately 107,960 square feet to be constructed on
approximately 13,924 acres of land to be known as ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ which legal description is contained herein in Exhibit A-1.
BUILDING: That approximately 53,980 square foot two (2) story building to be constructed as part of the
Project and to be known as ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as
approximately depicted on the site plan attached as Exhibit A-2.
PREMISES: The Building to be known as ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as
shown herein in Exhibit A-3.
PERMITTED USE:
Office, laboratory and warehouse, and other related legal uses subject to Landlord's approval
which shall not be unreasonably withheld.
PARKING DENSITY: 3.3 non-designated spaces per 1000 square feet of rentable area.
ESTIMATED TERM
COMMENCEMENT DATE: July 20, 2001
LENGTH OF TERM: One Hundred Twenty (120) months
RENT:
Base Rent MONTHS OF TERM RENT PER SQUARE FOOT ESTIMATED MONTHLY RENT
-------------- -------------------- ----------------------
Months 1-12 $1.97 psf per month $106,341
Months 13-24 $2.03 psf per month $109,579
Months 25-36 $2.09 psf per month $112,818
Months 37-48 $2.15 psf per month $116,057
Months 49-60 $2.22 psf per month $119,836
Months 61-72 $2.28 psf per month $123,074
Months 73-84 $2.35 psf per month $126,853
Months 85-96 $2.42 psf per month $130,632
Months 97-108 $2.50 psf per month $134,950
Months 109-120 $2.57 psf per month $138,729
Base Rent is subject to adjustment as provided in Sections 6A and 37E of this Lease
Estimated First Year $.40 psf per month, estimated at $21,592/mo.
Basic Operating Cost
SECURITY DEPOSIT: $127,933
TENANT'S PROPORTIONATE SHARE:
Subject to change, but based on the rentable square feet of the Premises divided by the total
rentable square feet of the Building and the Project, respectively, estimated as follows:
Of Building: 100%
Of Project 50%
BROKER: Cresa Partners, LLC
▇▇▇▇▇▇▇▇ ▇▇▇▇ NW, Inc.
The foregoing Basic Lease Information is incorporated into and made a part of
this Lease. Defined terms in the Lease shall have the meanings ascribed to them
in the Basic Lease Information unless otherwise stated. Each reference in this
Lease to any of the Basic Lease Information shall mean the respective
information above and shall be construed to incorporate all of the terms
provided under the particular Lease paragraph pertaining to such information. In
the event of any conflict between the Basic Lease Information and the Lease, the
latter shall control. The term "days" as used in this Lease means "calendar
days" unless the specific term "business days" is used.
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TABLE OF CONTENTS
PAGE
Basic Lease Information............................................... (i)
Table of Contents..................................................... (ii)
1. Premises.............................................................. 1
2. Term.................................................................. 1
3. Possession............................................................ 1
4. Use................................................................... 1
5. Rules and Regulations................................................. 3
6. Rent.................................................................. 3
7. Basic Operating Cost.................................................. 3
8. Insurance and Indemnification......................................... 5
9. Waiver of Subrogation................................................. 6
10. Landlord's Repairs.................................................... 6
11. Tenant's Repairs...................................................... 7
12. Alterations........................................................... 7
13. Signs................................................................. 7
14. Inspection/Posting Notices............................................ 7
15. Utilities............................................................. 8
16. Subordination......................................................... 8
17. Financial Statements.................................................. 8
18. Estoppel Certificate.................................................. 8
19. Security Deposit...................................................... 9
20. Tenant's Remedies..................................................... 9
21. Assignment and Subletting............................................. 10
22. Authority of Parties.................................................. 10
23. Condemnation.......................................................... 11
24. Casualty Damage....................................................... 11
25. Holding Over.......................................................... 12
26. Default............................................................... 12
27. Liens................................................................. 13
28. Transfers By Landlord................................................. 13
29. Right of Landlord to Perform Tenant's Covenants....................... 13
30. Waiver................................................................ 14
31. Notices............................................................... 14
32. Attorneys' Fees....................................................... 14
33. Successors and Assigns................................................ 14
34. Force Majeure......................................................... 14
35. Brokerage Commission.................................................. 14
36. Miscellaneous......................................................... 14
37. Additional Provisions................................................. 15
Signatures................................................................. 17
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EXHIBITS:
Exhibit A-1....................................................Legal Description
Exhibit A-2............................................................Site Plan
Exhibit B-1.....................................Initial Improvements of Premises
Exhibit B-2..................................Interior Improvement Specifications
Exhibit B-3................................Moveable Equipment and Trade Fixtures
Exhibit C.........................................Initial Project Specifications
Exhibit C-1..................Site Plan, Elevations and Preliminary Planting Plan
Exhibit D............................................Tenant Estoppel Certificate
Exhibit E..........................Rules and Regulations for Tenants' Contractor
Exhibit F.....................................Disclosed Hazardous Materials List
Exhibit G................................Agreement Regarding Shell Modifications
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LEASE
THIS LEASE is made as of this 23 day of November, 1999, by and between ▇▇▇▇▇▇▇▇
▇▇▇▇ Northern California Development, Inc., a Delaware corporation,
(hereinafter called "Landlord") and ViroLogic, Inc., a California corporation
(hereinafter called "Tenant").
PREMISES
1. Landlord hereby leases to Tenant, and Tenant leases from Landlord, the
Premises, for the Term, at the rental, and upon all of the terms and
conditions set forth in this Lease. The Premises is comprised of the
building which is commonly known and designated as ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ (sometimes referred to herein as the
"Building") and is depicted on Exhibit A-3. The Premises comprises one
hundred percent (100%) of the rentable area of the Building. The Building
is part of the Project. The Building is crosshatched on Exhibit A-2.
Landlord shall, at its sole cost and expense, construct the Building
shell, parking lot, exterior common areas, and landscaping approximately
in the manner depicted on Exhibit C and Exhibit C-1 hereto ("Initial
Project Specifications"). The Initial Project Specifications shall
include, without limitation, the Building shell, roof, all exterior
windows and doors, fire sprinklers below the roof line and below the
second deck line, and utilities and services to the Building exterior.
Notwithstanding their depiction in the Initial Project Specifications, the
roof screens shall be provided by Tenant at Tenant's sole cost and
expense. Upon Landlord's delivery of Early Possession (as provided in
Section 3 hereof), Tenant shall perform Tenant's Work (as defined in
Exhibit B-1 hereto) for the Premises. Tenant's Work shall be performed in
the manner described in Exhibit B-1 hereto.
TERM
2. The Term of this Lease ("Term") shall commence on the term commencement
date ("Term Commencement Date") and continue in full force and effect for
the number of months specified as the Length of Term in the Basic Lease
Information or until this Lease is terminated as otherwise provided
herein. If the Term Commencement Date is a date other than the first day
of the calendar month, the Term shall be the number of months of the
Length of Term in addition to the remainder of the calendar month
following the Term Commencement Date. The Term Commencement Date shall be
the date which is the one-hundred twentieth (120th) day after the date on
which Landlord tenders Early Possession of the Premises to Tenant in
accordance with the provisions of Section 3 of this Lease. Within ten
(10) days after requested by Landlord, Landlord and Tenant shall execute
an amendment to this Lease stating and confirming the Term Commencement
Date and Tenant's acceptance of the Premises.
POSSESSION
3. Landlord shall permit Tenant, or Tenant's agents, to enter the Premises
("Early Possession") immediately after the concrete floor for the second
deck of the Building has been poured for the purpose of performing
Tenant's Work and installing Tenant's equipment, Fixtures, Trade Fixtures
and furniture. The estimated date for Early Possession is March 20, 2001.
If Landlord is unable by February 3, 2002 for any reason other than
Tenant Delay or Force Majeure to deliver to Tenant Early Possession,
Tenant may by written notice to Landlord given not later than February 8,
2002, terminate this lease in which case this Lease shall terminate upon
▇▇▇▇▇▇▇▇'s receipt of such notice and Landlord shall promptly refund to
Tenant the first month's Base Rent and Security Deposit and cancel the
Letter of Credit. For purposes of this Section 3 only "Tenant Delay"
shall mean (i) any default by Tenant under this Lease, including, but not
limited to, any failure to pay when due any monetary sum due hereunder;
(ii) any failure by ▇▇▇▇▇▇ to deliver within the time required hereunder
to any request by Landlord for information or approval required
hereunder; (iv) any construction delay caused by ▇▇▇▇▇▇'s request for
changes in the Initial Project Specifications or other Project
Specifications which was caused by Landlord or its agents and is not
related to Tenant's particular proposed use of the Premises; or (v) any
construction delay caused by interference with the performance of
Landlord's Work caused by Tenant or Tenant's agents. Landlord shall
deliver, and Tenant shall accept delivery and take immediate possession
of the Premises on the Term Commencement Date. The terms "Fixture" or
"Trade Fixture" as used herein shall be defined as anything attached in
any manner to Landlord's property, except that equipment shall not be
deemed a Fixture merely because of the manner in which such equipment is
connected to the electrical supply of the Building. All portable,
unattached items are Tenant's property. Tenant and Landlord agree that
Tenant does not own any Trade Fixtures in the Premises except those items
listed in Exhibit B-3 or otherwise agreed to in a separate writing
between Landlord and Tenant. Landlord owns all remaining Trade Fixtures.
In connection with ▇▇▇▇▇▇'s Early Possession, from and after the date on
which Tenant or its agent first enters the Premises therefor, all of the
terms and conditions of this Lease (including, but not limited to,
insurance and indemnity provisions) shall be applicable to Tenant's
occupancy save and except for the requirement to pay Base Rent and Basic
Operating Costs.
USE
4. A. GENERAL. Tenant shall use the Premises for the Permitted Use and for
no other use or purpose. Tenant shall control Tenant's employees, agents,
customers, visitors, invitees, licensees, contractors, assignees and
subtenants (collectively, "Tenant's Parties") in such a manner that
Tenant and ▇▇▇▇▇▇'s Parties cumulatively do not exceed the Parking
Density at any time. Tenant and ▇▇▇▇▇▇'s Parties shall have the
nonexclusive right to use, in common with other parties occupying the
Building or the Project, the parking areas and driveways of the Project
subject to such rules and regulations as Landlord may from time to time
prescribe.
B. LIMITATIONS. Tenant shall not permit any odors, smoke, dust, gas,
substances, noise or vibrations to emanate from the Premises, nor take
any action which would constitute a nuisance or would disturb, obstruct
or endanger any other tenants of the Building or the Project or interfere
with their use of their respective premises. Storage outside the Premises
of materials, vehicles or any other items is prohibited. Tenant shall not
use or allow the Premises to be used for any improper or unlawful
purpose, nor shall Tenant cause or maintain or permit any nuisance in, on
or about the Premises or the Project. Tenant shall not commit or suffer
the commission of any waste in, on or about the Premises or the Project.
Tenant shall not allow any sale by auction upon the Premises or the
Project, or place any loads upon the floors, walls or ceilings which
endanger the structure, or place any harmful liquids in the drainage
system of the Building or the Project. No waste, materials or refuse
shall be dumped upon or permitted to remain outside the Premises except
in trash containers placed inside exterior enclosures designated for that
purpose by Landlord. Landlord shall not be responsible to Tenant for the
non-compliance by any other tenant or occupant of the Building or the
Project with any of the above-referenced rules or any other terms or
provisions of such tenant's or occupant's lease or other contract.
C. COMPLIANCE WITH REGULATIONS. By entering the Premises, ▇▇▇▇▇▇ accepts
the Premises in the condition existing as of the date of such entry,
subject to Landlord's representations and warranties set forth in this
Lease and subject to all existing or future applicable municipal, state
and federal and other governmental
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statutes, regulations, laws and ordinances, including zoning ordinances and
regulations governing and relating to the use, occupancy and possession of the
Premises and the use, storage, generation and disposal of Hazardous Materials
(hereinafter defined) in, on and under the Premises (collectively
"Regulations"). Except for matters which occurred prior to the Term Commencement
Date and were not caused directly or indirectly by Tenant or by any of Tenant's
Parties, Tenant shall, at Tenant's sole expense, strictly comply with all
Regulations now in force or which may hereafter be in force relating to the
Premises and the use of the Premises and/or Tenant's and ▇▇▇▇▇▇'s Parties' use,
storage, generation of Hazardous Materials in, on and under the Premises. Tenant
shall at its sole cost and expense obtain any and all licenses or permits
necessary for Tenant's use of the Premises. Tenant shall promptly comply with
the requirements of any board of fire underwriters or other similar body now or
hereafter constituted. Tenant shall not do or permit anything to be done in, on,
or about the Premises or bring or keep anything which will in any way increase
the rate of any insurance upon the Premises, the Building or the Project, or
upon any contents therein or cause a cancellation of said insurance or otherwise
affect said insurance in any manner. Tenant shall indemnify, defend, protect and
hold Landlord harmless from and against any loss, cost, expense, damage,
attorneys' fees or liability arising out of the failure of Tenant to comply with
any Regulation or comply with the requirements as set forth herein.
Notwithstanding the foregoing or anything to the contrary contained in this
Lease, Tenant shall not be responsible for compliance with any laws, codes,
ordinances or other governmental directives where such compliance is caused by
Landlord's failure to cause the Building Shell to be constructed in compliance
with all then applicable laws. Landlord warrants that on the Commencement Date
the Building Shell shall comply with all laws, codes, ordinances, and other
governmental requirements applicable to the Premises and/or the Project as of
the date the building permit was issued.
D. HAZARDOUS MATERIALS. Tenant shall not cause, or allow any of Tenant's Parties
to cause, any Hazardous Materials to be generated, stored, used, treated,
removed, transported, handled and disposed of on or about the Premises, the
Building or the Project without Landlord's prior written approval, provided
that, Tenant shall be permitted to use the Disclosed Hazardous Materials in the
ordinary course of its business subject to the conditions and requirements of
this Lease. ▇▇▇▇▇▇▇▇'s conditional authorization of the Disclosed Hazardous
Materials shall be strictly limited to the types and quantities described in
Exhibit F, and shall not be construed as an authorization for Tenant to
generate, store, use, treat, remove, transport, handle or dispose of any
additional quantities of Disclosed Hazardous Materials or any other Hazardous
Materials in, on, about or under the Premises, Building or the Project. Tenant
acknowledges that any change in the types or quantities or Disclosed Hazardous
Materials described in Exhibit F, or any material change in the means and
methods of generating, storing, treating, removing, transporting, handling or
disposing of such Disclosed Hazardous Materials, shall require the prior written
approval of Landlord in each instance. Tenant represents and warrants to
Landlord that (a) prior to its use of Hazardous Materials on the Premises, it
will have received or obtained issuance of, and will maintain in effect, all
permits, approvals, licenses, or other authorizations necessary for Tenant's
activities with respect to the Disclosed Hazardous Materials, and (b) Tenant has
not been cited, fined, or otherwise found to be in violation of any governmental
requirement or fire, safety and insurance requirements or regulations applicable
to any Disclosed Hazardous Materials or any other Hazardous Materials in any
other leased premises. At least once during each twelve (12) month of the Lease
Term, Tenant shall provide Landlord with an inventory list describing the
minimum and maximum quantities of each of the Disclosed Hazardous Materials
generated, stored, used, treated, removed, transported, handled and disposed of
on or about the Premises, the Building or the Project the succeeding twelve (12)
months, and a copy of its Hazardous Materials Management Plan ("HMMP") in the
form submitted by Tenant to the fire department. Tenant agrees to notify
Landlord immediately if Tenant receives notification or otherwise becomes aware
of: (a) any threatened or actual release, spill or discharge of any Disclosed
Hazardous Materials in, on, about or under the Premises, the Building or the
Project, or (b) any threatened or actual lien, action, or proceeding or notice
that any Disclosed Hazardous Materials or any other Hazardous Materials is not
being generated, stored, used, treated, removed, transported, placed,
manufactured, handled, or disposed of in strict compliance with any and all
governmental requirements and regulations or applicable fire, safety or
insurance requirements and regulations. If Tenant or any of Tenant's Parties is
partially or wholly responsible or potentially responsible for such condition,
situation, lien, action or notice, ▇▇▇▇▇▇'s notice to Landlord shall include a
statement as to the actions Tenant proposes to take in response to such
condition, situation, lien, action or notice. As used in this Lease, "Hazardous
Materials" shall include, but not be limited to, hazardous, toxic and
radioactive materials and those substances defined as "hazardous substances,"
"hazardous materials," "hazardous wastes," "toxic substances," or other similar
designations in any federal, state, or local law, regulation, or ordinance.
Landlord shall have the right at all reasonable times to inspect the Premises
and to conduct tests and investigations to determine whether Tenant is in
compliance with the foregoing provisions, the costs of all such inspections,
tests and investigations to be borne by ▇▇▇▇▇▇. Tenant shall indemnify, defend
(by counsel selected by Landlord), protect and hold Landlord harmless from and
against all liabilities, losses, costs and expenses, demands, causes of action,
claims or judgments directly or indirectly arising out of the use, generation,
storage or disposal of Hazardous Materials by Tenant or any of Tenant's
Parties, which indemnity shall include, without limitation, attorneys' and
consultants' fees, the cost of any required or necessary repair, cleanup or
detoxification, and the preparation of any closure or other required plans,
whether such action is required or necessary prior to or following the
termination of this Lease. Neither the written consent by ▇▇▇▇▇▇▇▇ to the use,
generation, storage or disposal of Hazardous Materials nor the strict compliance
by Tenant with all laws pertaining to Hazardous Materials shall excuse Tenant
from Tenant's obligation of indemnification pursuant to this Paragraph 4.▇.
▇▇▇▇▇▇'s obligations pursuant to the foregoing indemnity shall survive the
termination of this Lease. Notwithstanding anything to the contrary in this
Lease, Landlord warrants that on the Commencement Date to the best of Landlord's
knowledge the Premises and the Project, and the land and groundwater thereunder,
are free of contamination in excess of allowable limits by any Hazardous
Materials introduced by Landlord or its employees, officers, or directors or,
except for substances and materials within allowable limits used in the ordinary
course of construction, by Landlord's contractors. In the event of any breach of
the foregoing warranty, Landlord shall promptly rectify the same as the sole
costs and expense and shall indemnify, defend, and hold Tenant harmless from and
against any actual damages, liability, suits, losses, claims, actions, costs or
expenses (including attorneys' and consultants' fees and costs) suffered by
Tenant in connection with any such breach.
RULES AND REGULATIONS
5. Tenant shall faithfully observe and comply with any rules an regulations
Landlord may from time to time prescribe in writing for the purpose of
maintaining the proper care, cleanliness, safety, traffic flow and general order
of the Premises, the Building, or the Project. Tenant shall cause ▇▇▇▇▇▇'s
Parties to comply with all such rules and regulations. Landlord shall not be
responsible to Tenant for the non-compliance by any other tenant or occupant of
the Building or the Project with any of the rules and regulations.
RENT
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6. A. BASE RENT. Base Rent for the Premises shall be calculated on the basis
of the rentable square feet of the Premises at the rates specified in the
Basic Lease Information and shall be subject to upward adjustment as
provided in Section 37E of this Lease. Rentable square feet shall include
all areas inside the Building as determined by Landlord's architect.
Tenant's obligation to pay Base Rent for the Premises shall commence on
the Term Commencement Date. Upon completion of Landlord's Work (as defined
in Exhibit B-1 hereto), Landlord's architect shall certify to Landlord the
retable square feet of the Premises, measured from the outside of exterior
walls, but including areas below the "dripline" in the exterior entrances
and exits and including all areas within the Building such as, but not
limited to, utility rooms and shafts for mechanical equipment. ▇▇▇▇▇▇▇▇'s
architect shall also certify the rentable square feet of the Project.
▇▇▇▇▇▇▇▇'s architect's certification of rentable square feet for the
Premises, the Building and the Project shall be binding upon both Landlord
and Tenant for all purposes under this Lease. Landlord and ▇▇▇▇▇▇
currently estimate that the rentable square feet of the Premises and the
Base Rent for the Premises will be as stated in the Basic Lease
information. Upon receipt of the architect's certification of rentable
square feet, the actual Base Rent shall be determined and, if requested by
Landlord, Landlord and Tenant shall enter into an amendment of this Lease
which states the actual Base Rent as so determined. Upon determination of
the actual Base Rent for the Premises, Landlord and Tenant shall adjust,
if necessary, the Base Rent deposited by Tenant for the first full month
of the Term as provided in Paragraph 6.B, below.
B. PAYMENTS. Tenant shall pay to Landlord, without demand throughout the
Term, Base Rent as specified in the Basic Lease information and finally
determined as provided in Paragraph 6.A., payable in monthly installments
in advance on or before the first day of each calendar month, in lawful
money of the United States, without deduction or offset whatsoever, at the
address specified in the Basic Lease Information or to such other place as
Landlord may from time to time designate in writing. Base Rent and
Estimated Basic Operating Costs as defined in Paragraph 7.A. for the first
full month of the Term (based upon the estimated rentable area as
hereinabove provided) less the Inducement Deposit shall be paid by Tenant
upon ▇▇▇▇▇▇'s execution of this Lease. If the obligation for payment of
Base Rent commences on other than the first day of a month, then Base rent
(calculated at the rate applicable to the second full month of the Term)
for the partial month shall be prorated on the basis of the actual number
of days in the month.
C. ADDITIONAL RENT. All monies other than Base Rent required to be paid by
Tenant hereunder, including, but not limited to, the interest and late
charges described in Paragraph 26.D., any monies spent by Landlord
pursuant to Paragraph 29., and ▇▇▇▇▇▇'s Proportionate Share of Basic
Operating Costs, as specified in Paragraph 7. of this Lease, shall be
considered additional rent ("Additional Rent"). "Rent" shall mean Base
Rent and Additional Rent.
BASIC OPERATING COST
7. A. BASIC OPERATING COST. In addition to the Base Rent required to be paid
hereunder, Tenant shall pay as Additional Rent, Basic Operating Costs in
the manner set forth below. The Basic Operating Costs shall be calculated
on the basis of Landlord's architect's certification of the rentable
square feet of the Building and the Project. The certification by
▇▇▇▇▇▇▇▇'s architect of the rentable square feet of the Building and the
Project shall be conclusive and binding upon both Landlord and Tenant for
all purposes of this Lease. Tenant's obligation to pay Basic Operating
Costs with respect to the Building and the Project shall commence on the
Term Commencement Date. Landlord shall account for each item of Basic
Operating Costs attributable to the Building and the Project, in a
commercially reasonable and customary manner, and unless provided to the
contrary in this Lease, Tenant shall pay be Basic Operating Costs, as set
forth in the Basic Lease Information. "Basic Operating Costs" shall mean
all commercially reasonable and customary expenses and costs of every kind
and nature which Landlord shall pay or become obligated to pay because of
or in connection with the management, maintenance, preservation and
operation of the Building and the Project (determined in accordance with
generally accepted accounting principles, consistently applied) including
but not limited to the following:
(1) TAXES. All real property taxes, possessory interest taxes,
business or license taxes or fees, service payments in lieu of such
taxes or fees, annual or periodic license or use fees, excises,
transit charges, housing fund assessments, open space charges,
assessments, levies, fees or charges general and special, ordinary
and extraordinary, unforeseen as well as foreseen, of any kind
(including fees "in-lieu" of any such tax or assessment) which are
assessed, levied, charged, confirmed, or imposed by any public
authority upon the Project, its operations or the Rent (or any
portion or component thereof) (all of the foregoing being
hereinafter collectively referred to as "real property taxes"), or
any tax imposed in substitution, partially or totally, of any tax
previously included within the definition of real property taxes,
or any additional tax the nature of which was previously included
within the definition of real property taxes, except (a) inheritance
or estate taxes imposed upon or assessed against the Project, or any
part thereof or interest therein, and (b) taxes computed upon the
basis of net income of Landlord or the owner of any interest
therein, except as otherwise provided in the following sentence.
Basic Operating Costs shall also include any taxes, assessments, or
any other fees imposed by any public authority upon or measured by
the monthly rental or other charges payable hereunder, including,
without limitation, any gross income tax or excise tax levied by the
local governmental authority in which the Project is located, the
federal government, or any other governmental body with respect to
receipt of such rental, or upon, with respect to or by reason of the
development, possession, leasing, operation, management,
maintenance, alteration, repair, use of occupancy by Tenant of the
Premises or any portion thereof, or upon this transaction or ay
document to which Tenant is a party creating or transferring an
interest or an estate in the Premises. In the event that it shall
not be lawful for Tenant to reimburse Landlord for all or any part
of such taxes, the Base Rent payable to Landlord under this Lease
shall be revised to net to Landlord the same net rental after
imposition of any such taxes on Landlord as would have been payable
to Landlord prior to the payment of any such taxes.
(2) INSURANCE. All insurance premiums and costs, including but not
limited to, any deductible amounts, premiums and costs of insurance
incurred by Landlord, as more fully set forth in Paragraph 8.A.
herein.
(3) REPAIRS AND IMPROVEMENTS. The cost of all repairs, replacements
and general maintenance for the Premises, the Building and the
Project (except for those repairs expressly made the financial
responsibility of Landlord pursuant to the terms of this Lease,
repairs to the extent paid for by proceeds of insurance or by Tenant
or other third parties, and alterations attributable solely to
tenants of the Project other than Tenant). Such repairs,
replacements, and general maintenance shall include the cost of any
capital improvements made to or capital assets acquired for the
Project or the Building after the Term Commencement Date which
reduce any other Basic Operating Cost but only to the extent of such
reduction as reasonably determined by Landlord, are reasonably
necessary for the health and safety of other occupants of the
Project, or are made to the Building by Landlord after the date of
this Lease and are
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required under any governmental law or regulation, such costs or allocable
portions thereof to be amortized over the useful life thereof, together
with interest on the unamortized balance at the "prime rate" charged at
the time such improvements or capital assets are constructed or acquired
by ▇▇▇▇▇ Fargo Bank, N.A. (San Francisco) plus two (2) percentage points,
but in no event more than the maximum rate permitted by law.
(4) SERVICES. To the extent such expenses are not the obligation of
Tenant under other provisions of this Lease, all expenses relating to
maintenance, janitorial and service agreements and services, and costs of
supplies and equipment used in operating and maintaining the Building and
the Project and the equipment therein and the adjacent sidewalks,
driveways, parking and service areas, including, without limitation, alarm
service, window cleaning, elevator maintenance, the Building exterior
maintenance and Project landscaping.
(5) UTILITIES. To the extent such expenses are not the obligation of
Tenant under other provisions of this Lease, the cost of all utilities
which benefit all or a portion of the Building or the Project.
(6) MANAGEMENT FEE. A management and accounting cost recovery fee
equal to three (3%) percent of the sum of Base Rent and Basic Operating
Cost.
(7) LEGAL AND ACCOUNTING. Reasonable legal and accounting expenses
relating to the Project, including the cost of adults by certified public
accountants.
In the event that the Building is not fully occupied during any fiscal year of
the Term as determined by Landlord, an adjustment shall be made in computing
the Basic Operating Costs for such year so that Tenant pays an equitable
portion of all variable items of Basic Operating Costs, as reasonably
determined by Landlord; provided, however, that in no event shall Landlord be
entitled to collect in excess of one hundred (100%) percent of the total Basic
Operating Costs from all of the tenants in the Building including Tenant.
Basic Operating Costs shall not include the following: specific costs incurred
for the account of, separately billed to and paid by specific tenants; the cost
of redecorating or special cleaning or similar services to individual tenant
spaces, not provided on a regular basis to other tenants of the Building; wages
or salaries paid to executive personnel higher than the property management
level of Landlord not providing full-time service at the Building; the cost of
any new item (not replacement or upgrading of an existing item) which, by
standard accounting principles, should be capitalized (except as provided
above); any charge for depreciation or interest paid or incurred by Landlord;
leasing commissions, finders fees and all other leasing expenses incurred in
procuring tenants in the Building; any costs incurred in the ownership of the
Building, as opposed to the operation and maintenance of the Building,
including Landlord's income taxes, excess profit taxes, franchise taxes or
similar taxes on Landlord's business; preparation of income tax returns;
corporation, partnership or other business form organization expenses;
franchise taxes, filing fees; or other such expenses; or any costs incurred in
cleaning up any environment hazard or condition in violation of any
environmental law (except to the extent caused by Tenant); legal fees for the
negotiation or enforcement of leases; expenses in connection with services or
other benefits of a type which are not Building standard and which are provided
to a single tenant of the Project; any items to the extent such items are
required to be reimbursed to Landlord by ▇▇▇▇▇▇ (other than through Tenant's
Additional Rent), or by other tenants or occupants of the Building or by third
parties; the cost of constructing tenant improvements or installations for any
tenant in the Project, including any relocation costs; brokerage commissions,
origination fees, points, mortgage recording taxes, title charges and other
costs or fees incurred in connection with any financing or refinancing or
transfer of the Building and/or any portion of the Project; attorneys' fees and
disbursements, incurred in connection with the leasing of space in the project
(including without limitation the enforcement of any lease or the surrender,
termination or modification of any lease of space in the Project); advertising
and promotional expenses, brochures with respect to the Project; cost of
repairs or replacements occasioned by fire, windstorm or other casualty, which
are paid by insurance or reimbursed by governmental authorities in eminent
domain; overhead and profit increment paid to subsidiaries or affiliates of
Landlord for services on or to the Project, to the extent that the costs of
such services exceed market-based costs for such services rendered by
unaffiliated persons or entitles of similar skill, competence and experience;
penalties, fines, legal expenses, or late payment interest incurred by Landlord
due to violation by Landlord or Landlord's agents, contractors or employees, of
either the payment terms and conditions of any lease or service contract
covering space in the Project or Landlord's obligations as owner of the Building
(such as late payment penalties and interest on real estate taxes, late payment
of utility bills), except to the extent caused by ▇▇▇▇▇▇'s failure to timely pay
or perform pursuant to this Lease; any compensation paid to clerks, attendants
or other persons in any commercial concession operated by Landlord in the
Project from which Landlord receives any form of income whatsoever, whether or
not Landlord actually makes a profit from such concession; or costs incurred in
connection with correcting latent defects in any portion of the Building and/or
Project or, except as provided in Section 37E of this Lease, remediating
Hazardous Materials contamination in the Building and/or Project, or in
repairing or replacing Building and/or Project equipment, where such repair or
replacement results from original defects in design, manufacture or installation
rather than from ordinary wear and tear or use. Notwithstanding anything herein
to the contrary, in any instance wherein Landlord, in Landlord's sole
discretion, deems Tenant to be responsible for any amounts greater than Tenant's
Proportionate Share, Landlord shall have the right to allocate costs in any
manner Landlord reasonably deems appropriate.
B. PAYMENT OF ESTIMATED BASIC OPERATING COST. "Estimated Basic Operating
Costs" for any particular year shall mean Landlord's estimate of the Basic
Operating Cost for such fiscal year made prior to commencement of such fiscal
year as hereinafter provided. Landlord shall have the right from time to time
to revise its fiscal year and interim accounting periods so long as the periods
as so revised are reconciled with prior periods in accordance with generally
accepted accounting principles applied in a consistent manner. During the last
month of each fiscal year during the Term, or as soon thereafter as
practicable, Landlord shall give Tenant written notice of the Estimated Basic
Operating Costs for the ensuing fiscal year. Tenant shall pay Tenant's
Proportionate Share of the Estimated Basic Operating Cost with installments of
Base Rent for the fiscal year to which the Estimated Basic Operating Cost
applies in monthly installments on the first day of each calendar month during
such year, in advance. If at any time during the course of the fiscal year,
Landlord determines that Basic Operating Cost is projected to vary from the
then Estimated Basic Operating Cost by more than ten (10%) percent, Landlord
may, by written notice to ▇▇▇▇▇▇, revise the Estimated Basic Operating Cost for
the balance of such fiscal year, and ▇▇▇▇▇▇'s monthly installments for the
remainder of such year shall be adjusted so that by the end of such fiscal year
Tenant has paid to Landlord Tenant's Proportionate Share of the revised
Estimated Basic Operating Cost for such year. Upon execution of this Lease,
Tenant shall pay to Landlord the Estimated Basic Operating Cost for the
Premises (calculated on the
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\ estimated rentable square feet) for the first full month of the Term. Upon
final determination of the rentable square feet, Landlord and Tenant shall
adjust such estimated payment.
C. COMPUTATION OF BASIC OPERATING COST ADJUSTMENT. "Basic Operating Cost
Adjustment" shall mean the difference between Estimated Basic Operating
Cost and Basic Operating Cost for any fiscal year determined as hereinafter
provided. Within one hundred twenty (120) days after the end of each fiscal
year, as determined by Landlord, or as soon thereafter as practicable,
Landlord shall deliver to Tenant a statement of Basic Operating Cost for
the fiscal year just ended, accompanied by a computation of Basic Operating
Cost Adjustment. If such statement shows that ▇▇▇▇▇▇'s payment based upon
Estimated Basic Operating Cost is less than Tenant's Proportionate Share of
Basic Operating Cost, then Tenant shall pay to Landlord the difference
within thirty (30) days after receipt of such statement. If such statement
shows that ▇▇▇▇▇▇'s payments of Estimated Basic Operating Cost exceed
▇▇▇▇▇▇'s Proportionate Share of Basic Operating Cost, then (provided that
Tenant is not in Default under this Lease) Landlord shall credit the
difference against the Estimated Basic Operating Cost payment next due. If
this Lease has been terminated or the Term hereof has expired prior to the
date of such statement, then the Basic Operating Cost Adjustment shall be
paid by the appropriate party within thirty (30) days after the date of
delivery of the statement and this obligation shall survive termination of
the Lease. Should this Lease commence or terminate at any time other than
the first day of the fiscal year, ▇▇▇▇▇▇'s Proportionate Share of the Basic
Operating Cost adjustment shall be prorated by reference to the exact
number of calendar days during such fiscal year that this Lease is in
effect.
D. NET LEASE. This shall be a net Lease and Base Rent shall be paid to
Landlord net of all costs and expenses, except as specifically provided to
the contrary in this Lease. The provisions for payment of Basic Operating
Cost and the Basic Operating Cost Adjustment are intended to pass on to
Tenant and reimburse Landlord for all costs and expenses of the nature
described in Paragraph 7.A. incurred in connection with the management,
maintenance, preservation and operation of the Building or the Project and
such additional facilities now and in subsequent years as may be reasonably
determined by Landlord to be necessary to the Building or the Project.
E. TENANT AUDIT. In the event that Tenant shall dispute the amount set
forth in any statement provided by Landlord under Paragraph 7.B. or 7.C.
above, Tenant shall have the right, not later than sixty (60) days
following the receipt of such statement and upon the condition that Tenant
shall first deposit with Landlord the full amount in dispute within sixty
(60) days of receipt of such statement, to cause ▇▇▇▇▇▇▇▇'s books and
records with respect to Basic Operating Cost for such fiscal year to be
audited by certified public accountants selected by ▇▇▇▇▇▇ and subject to
Landlord's reasonable right of approval. The Basic Operating Cost
Adjustment shall be appropriately adjusted on the basis of such audit. If
such audit discloses a liability for a refund in excess of ten (10%)
percent of Tenant's Proportionate Share of the Basic Operating Cost
Adjustment previously reported, the cost of such audit shall be borne by
Landlord; otherwise the cost of such audit shall be borne by Tenant. If
Tenant shall not request an audit in accordance with the provisions of this
Paragraph 7.E. within sixty (60) days after receipt of Landlord's statement
provided pursuant to Paragraph 7.B. or 7.C., such statement shall be final
and binding for all purposes hereof.
INSURANCE AND INDEMNIFICATION
8. A. LANDLORD'S INSURANCE. Landlord agrees to maintain insurance insuring
the Building against fire, lightning, vandalism and malicious mischief
(including, if Landlord elects, "All Risk" coverage, earthquake, and/or
flood insurance), in an amount of not less than one hundred (100%) percent
of the current replacement cost thereof, except where commercially
unreasonable, with deductibles and the form and endorsements of such
coverage as selected by Landlord. Such insurance may also include, at
Landlord's option, insurance against loss of Base Rent and Additional Rent,
in an amount equal to the amount of Base Rent and Additional Rent payable
by Tenant for a period of at least twelve (12) months commencing on the
date of loss. Such insurance shall be for the sole benefit of Landlord and
under ▇▇▇▇▇▇▇▇'s sole control. Landlord shall not be obligated to insure
any furniture, equipment, machinery, goods or supplies which Tenant may
keep or maintain in the Premises, or any leasehold improvements, additions
or alterations within the Premises. Landlord may also carry such other
insurance as Landlord may deem prudent or advisable, including, without
limitation, liability insurance in such amounts and on such terms as
Landlord shall determine.
B. TENANT'S INSURANCE.
(1) PROPERTY INSURANCE. Tenant shall procure at Tenant's sole cost and
expense and keep in effect from the date of this Lease and at all
times until the end of the Term, insurance on all personal property,
and Fixtures of Tenant and all improvements made by or for Tenant to
the Premises, insuring such property for the full replacement value of
such property.
(2) LIABILITY INSURANCE. Tenant shall procure at Tenant's sole cost
and expense and keep in effect from the date of this Lease and at all
times until the end of the Term either Comprehensive General Liability
insurance or Commercial General Liability insurance applying to the
use and occupancy of the Premises and the Building, and any part of
either, and any areas adjacent thereto, and the business operated by
Tenant, or by any other occupant on the Premises. Such insurance shall
include Broad Form Contractual Liability insurance coverage insuring
all of Tenant's indemnity obligations under this Lease. Such coverage
shall have a minimum combined single limit of liability of at least
two million dollars ($2,000,000.00), and a general aggregate limit of
five million dollars ($5,000,000.00). All such policies shall be
written to apply to all bodily injury, property damage or loss,
personal injury and other covered loss, however occasioned, occurring
during the policy term, shall be endorsed to add Landlord, and
Landlord's lenders and/or joint venture partners and the officers,
agents and employees of each of the foregoing entities, and any party
holding an interest to which this Lease may be subordinated as an
additional insured, and shall provide that such coverage shall be
primary and that any insurance maintained by Landlord shall be excess
insurance only. Such coverage shall also contain endorsements: (i)
deleting any employee exclusion on personal injury coverage; (ii)
including employees as additional insureds; (iii) deleting any liquor
liability exclusion; and (iv) providing for coverage of employer's
automobile non-ownership liability. All such insurance shall provide
for severability of interests; shall provide that an act or omission
of one of the named insureds shall not reduce or avoid coverage to the
other named insureds; and shall afford coverage for all claims based
on acts, omissions, injury and damage, which claims occurred or arose
(or the onset of which occurred or arose) in whole or in part during
the policy period. Said coverage shall be written on an "occurrence"
basis, if available. If an "occurrence" basis form is not available,
Tenant must purchase "tail" coverage for the most number of years
available, and tenant must also purchase "tail" coverage if the
retroactive date of an "occurrence" basis form is changed so as to
leave a gap in coverage for occurrences that might have occurred in
prior years. If a "claims made" policy is ever used, the policy must
be endorsed so that Landlord is given the
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right to purchase "tail" coverage should Tenant for any reason not do
so or if the policy is to be canceled for nonpayment of premium.
(3) GENERAL INSURANCE REQUIREMENTS. All coverages described in this
Paragraph 8.B. shall be endorsed to provide Landlord with thirty (30)
days' notice of cancellation or change in terms. If at any time
during the Term the amount or coverage of insurance which Tenant is
required to carry under this Paragraph 8.B. is, in Landlord's
reasonable judgment, materially less than the amount or type of
insurance coverage typically carried by owners or tenants of
properties located in the general area in which the Premises are
located which are similar to and operated for similar purposes as the
Premises, Landlord shall have the right to require Tenant to increase
the amount or change the types of insurance coverage required under
this Paragraph 8.B. All insurance policies required to be carried
under this Lease shall be written by companies rated A+XII or better
in "Best's Insurance Guide" and authorized to do business in
California. Any deductible amounts under any insurance policies
required hereunder shall be subject to Landlord's prior written
approval. In any event deductible amounts shall not exceed one
thousand dollars ($1,000.00). Tenant shall deliver to Landlord on or
before the Term Commencement Date, and thereafter at least thirty
(30) days before the expiration dates of the expiring policies,
certified copies of Tenant's insurance policies, or a certificate
evidencing the same issued by the insurer thereunder, showing that
all premiums have been paid for the full policy period; and, in the
event Tenant shall fail to procure such insurance, or to deliver such
policies or certificates, Landlord may, at Landlord's option and in
addition to ▇▇▇▇▇▇▇▇'s other remedies in the event of a Default by
Tenant hereunder, procure the same for the account of Tenant, and the
cost thereof shall be paid to Landlord as Additional Rent.
C. INDEMNIFICATION. Landlord shall not be liable to Tenant for any loss
or damage to person or property caused by theft, fire, acts of God, acts
of a public enemy, riot, strike, insurrection, war, court order,
requisition or order of governmental body or authority or for any damage
of inconvenience which may arise through repair or alteration of any part
of the Building or the Project or failure to make any such repair, except
as expressly otherwise provided in Paragraph 10. Tenant shall indemnify,
defend by counsel acceptable to Landlord, protect and hold Landlord
harmless from and against any and all liabilities, losses, costs, damages,
injuries or expenses, including reasonable attorneys' fees and court
costs, arising out of or related to: (1) claims of injury to or death of
persons or damage to property occurring or resulting directly or
indirectly from the use or occupancy of the Premises, or from activities
of Tenant, Tenant's Parties or anyone in or about the Premises or Project,
or from any cause whatsoever; (2) claims for work or labor performed, or
for materials or supplies furnished to or at the request of Tenant in
connection with performance of any work done for the account of Tenant
within the Premises or Project; and (3) claims arising from any breach or
Default on the part of Tenant in the performance of any covenant contained
in this Lease. The foregoing indemnity shall not be applicable to claims
arising from the gross negligence or willful misconduct of Landlord. The
provisions of this Paragraph shall survive the expiration or termination
of this Lease with respect to any claims or liability occurring prior to
such expiration or termination.
WAIVER OF SUBROGATION
9. To the extent permitted by law and without affecting the coverage provided
by insurance to be maintained hereunder, Landlord and Tenant each waive
any right to recover against the other for: (a) damages for injury to or
death of persons; (b) damages to property; (c) damages to the Premises or
any part thereof, and (d) claims arising by reason of the foregoing due to
hazards covered by insurance to the extent of proceeds recovered
therefrom. This provision is intended to waive fully, and for the benefit
of each party, any rights and/or claims which might give rise to a right
of subrogation in favor of any insurance carrier. The coverage obtained by
each party pursuant to this Lease shall include, without limitation, a
waiver of subrogation by the carrier which conforms to the provisions of
this Paragraph.
LANDLORD'S REPAIRS
10. Landlord shall at Landlord's expense maintain the structural soundness of
the roof, the foundations and exterior walls of the Building in good
repair, reasonable wear and tear excepted; provided that, Landlord shall
not be responsible for the cost of any repairs resulting from damage,
destruction or deterioration which is caused by Tenant, ▇▇▇▇▇▇'s Parties,
or by an act or event which is not fully insured. The term "exterior
walls" as used herein shall not include windows, glass or plate glass,
doors, special store fronts or office entries. Landlord shall perform on
behalf of Tenant and other tenants of the Project, as an item of Basic
Operating Cost, the exterior maintenance of the Building, the Project, and
public and common areas of the Project, including but not limited to the
roof, pest extermination, the landscaped areas, parking areas, driveways,
the truck staging areas, fire sprinkler systems, sanitary and storm sewer
lines, utility services, electric and telephone equipment servicing the
Building(s), exterior lighting, and anything which affects the operation
and exterior appearance of the Project, which determination shall be at
Landlord's sole discretion. Except for the expenses directly involving the
items specifically described in the first sentence of this Paragraph 10.,
Tenant shall reimburse Landlord for all such costs in accordance with
Paragraph 7. Any damage caused by or repairs necessitated by any act of
Tenant or Tenant's Parties may be repaired by Landlord at Landlord's
option and at Tenant's expense. Tenant shall immediately give Landlord
written notice of any defect or need of repairs after which Landlord shall
have a reasonable opportunity to repair same. Landlord's liability with
respect to any defects, repairs, or maintenance for which Landlord is
responsible under any of the provisions of this Lease shall be limited to
the cost of such repairs or maintenance unless caused by ▇▇▇▇▇▇▇▇'s gross
negligence or willful misconduct.
TENANT'S REPAIRS
11. Tenant shall at Tenant's expense throughout the Term of this Lease
maintain all parts of the Premises in a good, clean and secure condition
and promptly make all necessary repairs and replacements, including but
not limited to all windows, glass, doors, walls and wall finishes, floor
covering, heating, ventilating and air conditioning systems, truck doors,
dock bumpers, dock plates and levelers, plumbing work and Fixtures, roof
(exclusive of structural beams), downspouts, electrical and lighting
systems, and fire sprinklers. Tenant shall at Tenant's expense also
perform regular removal of trash and debris. Tenant shall, at ▇▇▇▇▇▇'s own
expense, enter into a regularly scheduled preventive maintenance/service
contract with a maintenance contractor for servicing all hot water,
heating and air conditioning systems and equipment within or serving the
Premises. The maintenance contractor and the contract must be approved by
Landlord which approval shall not be unreasonably withheld or delayed. The
service contract must include all services suggested by the equipment
manufacturer within the operation/maintenance manual and must become
effective and a copy thereof delivered to Landlord within thirty (30) days
after the Term Commencement Date.
ALTERATIONS
12. Tenant shall not make, or allow to be made, any Alterations or physical
additions in, about or to the Premises without obtaining the prior written
consent of Landlord, which consent shall not be unreasonably withheld with
respect to proposed alterations and additions which: (a) comply with all
applicable laws, ordinances, rules and regulations; (b) are in Landlord's
opinion, compatible with the Project and its mechanical, plumbing,
electrical, heating/ventilation/air conditioning systems, (c) are
constructed utilizing Union Labor as set forth in
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Section 2.4. of Exhibit B-1: (d) will not interfere with the use and
occupancy of any other portion of the Project by any other tenant or its
invitees; (e) are performed promptly and in a ▇▇▇▇▇▇▇ like manner; (f) the
Project remains lien free as a result of the construction; and (g) are
constructed using all new materials. Notwithstanding the foregoing,
Tenant may, without the prior consent of Landlord, perform alterations
which do not in the aggregate cost more than (A) in the case of clinical
laboratories, $200,000 per annum, and (B) in all other cases, $50,000 per
annum provided that (i) Tenant gives Landlord not less than thirty (30)
days prior written notice thereof containing a description of the work to
be performed and the estimated cost thereof, and (ii) the work to be
performed does not impair the structural integrity of the Building, is
not visible from the exterior of the Building, and does not involve or
affect any life safety or Building systems, and (iii) the work to be
performed complies in all respects with the requirements of subsections
(a), (c), (d), (e), (f) and (g) of this Section 12. The term "Alteration"
as used herein is defined as alterations, additions, substitutions,
installations, changes and improvements, but excludes minor decorations.
Specifically, but without limiting the generality of the foregoing,
Landlord shall have the right of written consent for all plans and
specifications for the proposed Alterations or additions, construction
means and methods, all appropriate permits and licenses, any contractor
or subcontractor to be employed on the work of Alteration or additions,
and the time for performance of such work. Tenant shall also supply to
Landlord any documents and information reasonably requested by Landlord
in connection with ▇▇▇▇▇▇▇▇'s consideration of a request for approval
hereunder. Tenant shall reimburse Landlord for all costs which Landlord
may reasonably incur in connection with granting approval to Tenant for
any such Alterations and additions, including any costs or expenses which
Landlord may reasonably incur in electing to have outside architects and
engineers review said plans and specifications. All such Alterations,
physical additions or improvements shall remain the property of Tenant
until termination of this Lease, at which time they shall be and become
the property of Landlord if Landlord so elects; provided, however, that
Landlord may, at Landlord's option, (provided that, at the time Landlord
grants its consent to such Alterations, Landlord notifies Tenant in
writing that removal will be required), require that Tenant, at Tenant's
expense, remove any or all Alterations, additions, improvements and
partitions made by Tenant and restore the Premises by the termination of
this Lease, whether by lapse of time, or otherwise, to their condition
existing prior to the construction of any such alterations, additions,
partitions or leasehold improvements. All such removals and restoration
shall be accomplished in a good and workmanlike manner so as not to cause
any damage to the Premises or Project whatsoever. If Tenant fails to so
remove such alterations, additions, improvements and partitions or
Tenant's Trade Fixtures or furniture, Landlord may keep and use them or
remove any of them and cause them to be stored or sold in accordance with
applicable law, at Tenant's sole expense. In addition to and wholly apart
from ▇▇▇▇▇▇'s obligation to pay Tenant's Proportionate Share of Basic
Operating Cost, Tenant shall be responsible for and shall pay prior to
delinquency any taxes or governmental service fees, possessory interest
taxes, fees or charges in lieu of any such taxes, capital levies, or other
charges imposed upon, levied with respect to or assessed against its
personal property, on the value of the alterations, additions or
improvements within the Premises, and on Tenant's interest pursuant to
this Lease. To the extent that any such taxes are not separately assessed
or billed to Tenant, Tenant shall pay the amount thereof as invoiced to
Tenant by Landlord.
SIGNS
13. All signs, notices, graphics and advertising balloons of every kind or
character, visible in or from public view or corridors, the common areas
or the exterior of the Premises, shall be subject to Landlord's prior
written approval. Landlord shall provide, at Landlord's cost, directional
signage on the Project identifying the location of the Building. Tenant
shall not place or maintain any banners whatsoever or any window decor in
or on any exterior window or window fronting upon any common areas or
service area or upon any truck doors or man doors without Landlord's
prior written approval. Any installation of signs or graphics on or about
the Premises and Project shall be subject to any applicable governmental
laws, CC&Rs, ordinances, regulations and to any other requirements
imposed by Landlord. Tenant shall remove all such signs and graphics
prior to the termination of this Lease. Such installations and removals
shall be made in such manner as to avoid injury or defacement of the
Premises, the Building or the Project and any other improvements
contained therein, and Tenant shall repair any injury or defacement,
including without limitation, discoloration caused by such installation or
removal.
INSPECTION/POSTING NOTICES
14. After reasonable notice, except in emergencies where no such notice shall
be required, Landlord, and Landlord's agents and representatives, shall
have the right to enter the Premises to inspect the same, to clean, to
perform such work as may be permitted or required hereunder, to make
repairs or alterations to the Premises or Project or to other tenant
spaces therein, to deal with emergencies, to post such notices as may be
permitted or required by law to prevent the perfection of liens against
▇▇▇▇▇▇▇▇'s interest in the Project or to exhibit the Premises to
prospective tenants, purchasers, encumbrances or others, or for any other
purpose as Landlord may deem necessary or desirable; provided, however,
that landlord shall use reasonable efforts not to unreasonably interfere
with ▇▇▇▇▇▇'s business operations and shall not, except in the case of an
emergency, enter areas of the Premises marked by Tenant as "sensitive"
unless accompanied by Tenant's representative which Tenant shall make
available to Landlord for such inspections. Tenant shall not be entitled
to any abatement of Rent by reason of the exercise of any such right of
entry. At any time within six (6) months prior to the end of the Term,
Landlord shall have the right to erect on the Premises and/or Project a
suitable sign indicating that the Premises are available for lease.
Tenant shall give written notice to Landlord at least thirty (30) days
prior to vacating the Premises and shall meet with Landlord for a joint
inspection of the Premises at the time of vacating. In the event of
▇▇▇▇▇▇'s failure to give such notice or participate in such joint
inspection. ▇▇▇▇▇▇▇▇'s inspection at or after ▇▇▇▇▇▇'s vacating the
Premises shall conclusively be deemed correct for purposes of determining
Tenant's responsibility for repairs and restoration.
UTILITIES
15. Tenant shall pay directly for all water, gas, heat, air conditioning,
light, power, telephone, sewer, sprinkler charges and other utilities and
services used on or from the Premiss, together with any taxes, penalties,
surcharges or the like pertaining thereto, and maintenance charges for
utilities and shall furnish all electric light bulbs, ballasts and tubes.
If any such services are not separately metered to Tenant, Tenant shall
pay a reasonable proportion, as determined by Landlord, of all charges
jointly serving other premises. Landlord shall not be liable for any
damages (unless caused by Landlord's gross negligence or willful
misconduct) directly or indirectly resulting from nor shall the Rent or
any monies owed Landlord under this Lease herein reserved be abated by
reason of: (a) the installation, use or interruption of use of any
equipment used in connection with the furnishing of any such utilities or
services; (b) the failure to furnish or delay in furnishing any such
utilities or services when such failure or delay is caused by acts of God
or the elements, labor disturbances of any character, or any other
accidents or other conditions beyond the reasonable control of Landlord;
or (c) the limitation, curtailment, rationing or restriction on use of
water, electricity, gas or any other form of energy or any other service
or utility whatsoever serving the Premises or Project. Landlord shall be
entitled to cooperate voluntarily and in a reasonable manner with the
efforts of national, state or local governmental agencies or utility
suppliers in reducing energy or other resource consumption. The
obligation to make services available hereunder shall be subject to the
limitations of any such voluntary, reasonable program.
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SUBORDINATION
16. Without the necessity of any additional document being executed by Tenant
for the purpose of effecting a subordination, this Lease shall be subject
and subordinate at all times to: (a) all ground leases or underlying leases
which may now exist or hereafter be executed affecting the Premises and/or
the land upon which the Premises and Project are situated, or both; and (b)
conditioned upon Tenant's receipt of a nondisturbance agreement in the
lender's customary form, any mortgage or deed of trust which may now exist
or be placed upon said Project, land, ground leases or underlying leases,
or Landlord's interest or estate in any of said items which is specified as
security. Notwithstanding the foregoing, Landlord shall have the right to
subordinate or cause to be subordinated any such ground leases or
underlying leases or any such liens to this Lease. In the event that any
ground lease or underlying lease terminates for any reason or any mortgage
or deed of trust is foreclosed or a conveyance in lieu of foreclosure is
made for any reason, Tenant shall, notwithstanding any subordination,
attorn to and become the Tenant of the successor in interest to Landlord at
the option of such successor in interest. Within ten (10) days after
request by ▇▇▇▇▇▇▇▇, and conditioned upon ▇▇▇▇▇▇'s receipt of a
nondisturbance agreement in the lender's customary form, Tenant shall
execute and deliver any additional documents evidencing ▇▇▇▇▇▇'s attornment
or the subordination of this Lease with respect to any such ground leases
or underlying leases or any such mortgage or deed of trust, in the form
requested by Landlord or by any ground landlord, mortgagee, or beneficiary
under a deed of trust.
FINANCIAL STATEMENTS
17. At the request of Landlord, Tenant shall provide to Landlord Tenant's
current financial statement or other information discussing financial worth
of Tenant within thirty (30) days after the date of Landlord's request,
which Landlord shall use solely for purposes of this Lease and in
connection with the ownership, management and disposition of the Project.
18. ▇▇▇▇▇▇ agrees from time to time, within ten (10) days after request of
Landlord, to deliver to Landlord, or Landlord's designee, an estoppel
certificate per Exhibit D or in an alternate form that the requesting party
may require stating that this Lease is in full force and effect, the date
to which Rent has been paid, the unexpired portion of this Lease, and such
other matters pertaining to this Lease as may be reasonably requested by
▇▇▇▇▇▇▇▇. Landlord and ▇▇▇▇▇▇ intend that any statement delivered pursuant
to this Paragraph may be relied upon by any mortgagee, beneficiary,
purchaser or prospective purchaser of the Project or any interest therein.
The parties agree that ▇▇▇▇▇▇'s obligation to furnish such estoppel
certificates in a timely fashion is a material inducement for Landlord's
execution of the Lease, and shall be an Event of Default if Tenant fails to
fully comply. Tenant acknowledges that failure to provide the Estoppel
Certificate to Landlord or Landlord's designee within the time provided
above may cause Landlord to incur substantial damages. Tenant hereby agrees
to indemnify Landlord for any liabilities, losses, costs, damages
(including, without limitation, compensatory, incidental and consequential
damages), injuries or expenses arising from the failure of Tenant to
deliver the Estoppel Certificate in the time and manner provided in this
Paragraph. In addition to any other remedies Landlord may have at law and
equity, Landlord shall be entitled to specific performance of this
Paragraph. The provisions of this Paragraph shall survive the expiration or
termination of this Lease with respect to any claims or liability occurring
prior to such expiration or termination. Landlord shall execute (and
acknowledge if required by any lender) and deliver to Tenant, within ten
(10) business days after Tenant provides such to Landlord, a statement in
writing certifying that, to the best of Landlord's actual knowledge this
Lease is unmodified and in full force and effect (or, if modified, stating
the nature of such modification), the date to which the Base Rent and other
charges are paid in advance, if any, and acknowledging that there are not,
to Landlord's actual knowledge, any uncured defaults on the part of Tenant
hereunder or specifying such defaults as are claimed. Landlord's failure to
deliver such statement within such time shall be conclusive upon the
Landlord that (a) this Lease is in full force and effect, without
modification except as may be represented by Tenant; (b) there are no
uncured defaults in Tenant's performance; and (c) not more than one month's
Rent has been paid in advance.
SECURITY DEPOSIT
19. ▇▇▇▇▇▇ agrees to deposit with Landlord upon execution of this Lease, a
Security Deposit as stated in the Basic Lease Information, which sum shall
be held by Landlord, without obligation for interest, as security for the
performance of Tenant's covenants and obligations under this Lease. The
Security Deposit is not an advance rental deposit or a measure of damages
incurred by Landlord in case of ▇▇▇▇▇▇'s Default. Landlord is not required
to keep all or any part of the Security Deposit separate from its general
accounts. Upon the occurrence of any Event of Default by Tenant, Landlord
may, from time to time, without prejudice to any other remedy provided
herein or provided by law, use such fund to the extent necessary to make
good any arrears of Rent or other payments due to Landlord hereunder, and
any other damage, injury, expense or liability caused by such Event of
Default, and Tenant shall pay to Landlord, on demand, the amount so applied
in order to restore the Security Deposit to its original amount. Although
the Security Deposit shall be deemed the property of Landlord, any
remaining balance of such deposit shall be returned by Landlord to Tenant
at such time after termination of this Lease that all of Tenant's
obligations under this Lease have been fulfilled. Landlord may use and
commingle the Security Deposit with other funds of Landlord. On the
Acquisition Date (as defined in Section 37H of this Lease), as collateral
for the full and faithful performance by Tenant of all of its obligations
under this Lease and for all losses and damages Landlord may suffer as
result of any default by Tenant under this Lease, Tenant shall deliver to
Landlord an unconditional irrevocable negotiable Letter of Credit in the
amount of $550,000.00 meeting the requirements of this paragraph (the
"Letter of Credit"). The Letter of Credit shall (a) designate Landlord or
its assignees as beneficiary, (b) be issued by a financial institution
approved by Landlord, (c) subject to the remaining provisions hereof,
remain in full force and effect during the entire term of this Lease and
any extension or holdover period, plus an additional period of three (3)
months, and (d) be in form satisfactory to Landlord. The Letter of Credit
may be for an initial term of fifteen (15) months so long as it provides
that Landlord may immediately draw the full amount of the Letter of Credit
if the issuer does not give Landlord written notice of renewal for
additional successive periods of twelve (12) months at least sixty (60)
days prior to the expiration date. Landlord is authorized to draw on the
Letter of Credit from time to time in the event that (i) Landlord advises
the issuer of the Letter of Credit that there is an Event of Default by
Tenant under this Lease, or (ii) the issuer gives Landlord notice that the
Letter of Credit will be terminated or will expire prior to the initial
term of fifteen (15) months, or (iii) the issuer does not give Landlord a
written notice of renewal of the term of the Letter of Credit as required
by the preceding sentence. In the event Landlord shall draw on the Letter
of Credit in the circumstances described in clause (i) of this paragraph,
Landlord shall be permitted to draw an amount necessary in Landlord's good
faith estimation to fully cure any such Event of Default, including any
damage, injury, expense or liability caused or projected to be caused by
such Event of Default, and Tenant shall, on demand from Landlord, increase
the Letter of Credit up to its full original amount. In the event Landlord
shall draw on the Letter of Credit in the circumstances described in clause
(ii) and (iii) of this paragraph, Landlord shall be permitted to draw the
entire amount of the Letter of Credit, in which case such sum shall be held
by Landlord as an additional Security Deposit and administered as such.
Landlord may draw on the Letter of Credit regardless of whether or not
Tenant disputes that an Event of Default has occurred and regardless of any
other disputes or claims between the parties. Landlord shall not be
required to deliver any certifications or documentation of any kind to the
issuer
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in order to make a draw, other than ▇▇▇▇▇▇▇▇'s written demand certifying
that an Event of Default has occurred. The issuer shall not be required to
conduct any inquiry or investigation before paying Landlord the requested
amount of the draw. Landlord may assign, transfer or pledge the Letter of
Credit to any lender or purchaser in connection with any financing or sale
of the Premises. The amount of the Letter of Credit shall be increased by
$100,000 on each thirty (30) day anniversary of the Acquisition Date until
the total outstanding amount of the Letter of Credit is $1,000,000. (For
example: If the Acquisition Date is December 1, 1999, the Letter of Credit
would be increased by $100,000 on each January 1, February 1, March 1 and
April 1, and by $50,000 on May 1). Provided that at no time during the
initial thirty-six (36) months of the Lease Term Tenant has been in
material default under this Lease beyond any applicable cure period,
Landlord shall authorize and consent to a reduction by $125,000 of the then
required amount of the Letter of Credit as of the thirty-seventh (37th)
month of the Lease Term. Provided that at no time during the initial
forty-eight (48) months of the Lease Term Tenant has been in default under
this Lease beyond any applicable cure period, Landlord shall authorize and
consent to a reduction by $125,000 of the then required amount of the
Letter of Credit as of the forty-ninth (49th) month of the Lease Term.
Provided that at no time during the initial sixty (60) months of the Lease
Term Tenant has been in material default under this Lease beyond any
applicable cure period, Landlord shall authorize and consent to a reduction
by $150,000 of the then required amount of the Letter of Credit as of the
sixty-first (61st) month of the Lease Term. Prior to the commencement of
any of Tenant's Work, and as a condition to ▇▇▇▇▇▇'s right to Early
Possession and to commence Tenant's Work, Tenant shall provide Landlord
with proof of Tenant's financial ability to complete and pay fully the cost
of the Tenant's Work. Such proof shall consist of (i) an unconditional
guaranty to Landlord from Tenant's third party lender (acceptable to
Landlord), in the form acceptable to Landlord, that such lender shall pay
as and when due all of Tenant's monetary obligations under this Lease with
respect to the performance of Tenant's Work, or (ii) payment and completion
bonds, in form and from issuers reasonably acceptable to Landlord, bonding
the full lien-free completion of all of Tenant's Work, or (iii) Tenant's
deposit into an escrow, with instructions for disbursement thereof which
are acceptable to Landlord, of all sums reasonably estimated to be payable
by Tenant to fulfill its monetary obligations under this Lease with respect
to the performance of Tenant's Work, or (iv) Tenant maintaining until
lien-free completion of Tenant's Work a minimum unrestricted cash balance
of immediately payable funds in the sum of $13,000,000. Upon ▇▇▇▇▇▇▇▇'s
acceptance of ▇▇▇▇▇▇'s proof of financial ability as set forth herein and
upon commencement of the construction of the Tenant Improvements. Landlord
shall authorize and consent to the reduction of the Letter of Credit to a
total sum of $400,000. If, upon lien-free completion of the Tenant's Work,
(A) Tenant's third party lender (acceptable to Landlord) agrees irrevocably
and unconditionally in writing for the benefit of Landlord to either (i) in
case of an Event of default under the Lease, release its lien or other
security interest in all of Tenant's equipment which is listed on Exhibit
B-3 hereto or (ii) perform (as guarantor) all of Tenant's obligations under
the Lease throughout the remaining Term of the Lease and (B) the total sum
actually expended for Tenant's Work, including the Tenant Improvement
Allowance, was not less than $75.00 per rentable square foot of the
Premises, then Landlord shall authorize and consent to cancellation of the
Letter of Credit.
TENANT'S REMEDIES
20. The liability of Landlord to tenant for any default by Landlord under the
terms of this Lease are not personal obligations of the Landlord or other
trustees, advisors, partners, directors, officers and shareholders of
Landlord, and ▇▇▇▇▇▇ agrees to look solely to Landlord's interest in the
Project for the recovery of any amount from Landlord, and shall not look to
other assets of Landlord nor seek recourse against the assets of the
Landlord or other trustees, advisors, partners, directors, officers and
shareholders of Landlord. Any lien obtained to enforce any such judgment
any levy of execution thereon shall be subject and subordinate to any lien,
mortgage or deed of trust on the Project.
ASSIGNMENT AND SUBLETTING
21. A. GENERAL. Except in connection with a Permitted Assignee, Tenant shall
not assign this Lease or sublet the Premises or any part thereof without
Landlord's prior written approval which shall not be unreasonably withheld
or delayed. Except in connection with a permitted Assignee, if Tenant
desires to assign this Lease, or sublet any or all of the Premises, it must
present the Landlord, at Landlord's option, with an ERISA Certificate, of
this Lease signed by the potential assignee or subtenant, demonstrate that
the potential assignee or subtenant has adequate credit and demonstrate to
the Landlord's satisfaction that the potential assignee's or subtenant's
proposed use of the Premises is compatible with the Project and complies
with all applicable laws, ordinances, rules and regulations. Except in
connection with a Permitted Assignee, if Tenant desires to assign this
Lease or sublet any or all of the Premises, Tenant shall give Landlord
written notice sixty (60) days prior to the anticipated effective date of
the assignment or sublease. Landlord shall then have a period of fifteen
(15) days following receipt of such notice to notify Tenant in writing that
Landlord elects either: (1) to permit Tenant to assign this Lease or sublet
such space, subject, however, to Landlord's prior written approval of the
proposed assignee or subtenant and of any related documents or agreements
associated with the assignment or sublease or (2) refuse to consent. If
Landlord should fail to notify Tenant in writing of such election within
said period, Landlord shall be deemed to have refused to consent to the
proposed assignment or subletting. Without limiting the other instances in
which it may be reasonable for Landlord to withhold Landlord's consent to
an assignment or subletting, Landlord and Tenant acknowledge that it shall
be reasonable for Landlord to withhold ▇▇▇▇▇▇▇▇'s consent in the following
instances: The use of the Premises by such proposed assignee or subtenant
would not be a permitted use or would increase the Parking Density of the
Project; the proposed assignee or subtenant is not of sound financial
condition, as reasonably determined by Landlord after receipt of the
proposed assignee's or subtenant's financial statements in form
satisfactory to Landlord; the proposed assignee or subtenant is a
governmental agency; the proposed assignee or subtenant does not have a
good reputation as a tenant of property; the proposed assignee or subtenant
is a person with whom ▇▇▇▇▇▇▇▇ is negotiating to lease comparable space in
the Project; the assignment or subletting would entail any alterations
which would lessen the value of the Project; the assignment or subletting
would entail any alterations which would lessen the value of the leasehold
improvements in the Premises; or if Tenant is in Default of any obligation
of Tenant under this Lease. Failure by Landlord to approve a proposed
assignee or subtenant shall not cause a termination of this Lease.
Notwithstanding anything in this Section 21A to the contrary, Tenant may,
without the consent of Landlord, assign this Lease or sublet the Premises
or any portion thereof to any entity with a demonstrated net worth which is
greater than $13,000,000 which (i) controls, is controlled by or is under
common control with Tenant or which (ii) results from a merger or
reorganization or a consolidation with Tenant, or which (iii) acquires all
of the stock or assets of Tenant, as a going concern, with respect to the
business that is being conducted on the Premises ("Permitted Assignees").
Any assignment or subletting to a Permitted Assignee shall be subject to
and conditioned upon the following: (a) Tenant shall not be in Default of
any of its obligations under this Lease, (b) Tenant shall give Landlord at
least sixty (60) days prior written notice of any such proposed
transaction, (c) the Permitted Assignee shall have a net equity of at least
Thirteen Million Dollars ($13,000,000) which has been demonstrated in
appropriate documentation delivered to Landlord prior to the occurrence of
such transaction, (d) Tenant shall provide Landlord with full and complete
copies of all documents executed by ▇▇▇▇▇▇ and the Permitted Assignee in
connection with such assignment or subletting,
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and (e) Permitted Assignee shall have given Landlord an ERISA Certificate
if required by Landlord. The right to assign and/or sublet the Premises is
personal to the Tenant and any Permitted Assignee and shall not inure to
the benefit of any other assignee, subtenant or successor of ▇▇▇▇▇▇.
B. BONUS RENT. Any Rent or other consideration realized by Tenant under
any approved sublease or assignment in excess of the Base Rent payable
hereunder, after amortization of a reasonable brokerage commission,
reasonable attorneys' fees related to the subletting, and the cost of
tenant improvements, if any, paid for by Tenant in excess of Tenant's Work,
shall be divided and paid, sixty (60%) percent to Tenant, forty (40%)
percent to Landlord; provided, however, that if Tenant expends $70.00 per
rentable square foot in excess of the Tenant Improvement Allowance for
Tenant's Work, exclusive of soft costs, the aforesaid division shall be
seventy-five percent (75%) to Tenant and twenty-five percent (25%) to
Landlord. In any subletting or assignment undertaken by Tenant, Tenant
shall diligently seek to obtain the maximum rental amount available in the
marketplace for such subletting or assignment.
C. CORPORATION. If Tenant is a corporation, a transfer of corporate shares
by sale, assignment, bequest, inheritance, operation of law or other
disposition (including such a transfer to or by a receiver or trustee in
federal or state bankruptcy, insolvency or other proceedings), so as to
result in a change in the present control of such corporation or any of its
parent corporations by the person or persons owning a majority of said
corporate shares, shall constitute an assignment for purposes of this
Lease, provided, however, that this Section 21C shall not apply to any
transfer in connection with a bona fide financing or capitalization of
Tenant, or if Tenant is or becomes a public company.
D. PARTNERSHIP. If Tenant is a partnership, joint venture or other
incorporated business form, a transfer of the interest of persons, firms or
entities responsible for managerial control of Tenant by sale, assignment,
bequest, inheritance, operation of law or other disposition, so as to
result in a change in the present control of said entity and/or a change in
the identity of the persons responsible for the general credit obligations
of said entity shall constitute an assignment for all purposes of this
Lease, provided that this Section shall not apply to a transfer in
connection with a bona fide financing or capitalization of Tenant.
E. LIABILITY. No assignment or subletting by Tenant shall relieve Tenant
of any obligation under this Lease. Any assignment or subletting which
conflicts with the provisions hereof shall be void.
F. OPTIONS. Except in connection with a Permitted Assignee, in the event
of assignment or subletting by Tenant, any and all options to renew and
expand shall terminate automatically.
AUTHORITY OF PARTIES
22. Landlord represents and warrants that it has full right and authority to
enter into this Lease and to perform all of Landlord's obligations
hereunder. Tenant represents and warrants that it has full right and
authority to enter into this Lease and to perform all of Tenant's
obligations hereunder.
CONDEMNATION
23. A. CONDEMNATION RESULTING IN TERMINATION. If the whole or any substantial
part of the Project of which the Premises are a part should be taken or
condemned for any public use under governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof, and the taking would prevent or materially interfere with the
Permitted Use of the Premises, this Lease shall terminate and the Rent
shall be abated during the unexpired portion of this Lease, effective when
the physical taking of said Premises shall have occurred.
B. CONDEMNATION NOT RESULTING IN TERMINATION. If a portion of the Project
of which the Premises are a part should be taken or condemned for any
public use under any governmental law, ordinance, or regulation, or by
right of eminent domain, or by private purchase in lieu thereof, and this
Lease is not terminated as provided in Paragraph 23.A. above, this Lease
shall not terminate, but the Rent payable hereunder during the unexpired
portion of the Lease shall be reduced, beginning on the date when the
physical taking shall have occurred, to such amount as may be fair and
reasonable under all of the circumstances.
C. AWARD. Landlord shall be entitled to any and all payment, income,
rent, award, or any interest therein whatsoever which may be paid or made
in connection with such taking or conveyance and Tenant shall have no
claim against Landlord or otherwise for the value of any unexpired portion
of this Lease. Notwithstanding the foregoing, any compensation
specifically awarded Tenant for loss of business, ▇▇▇▇▇▇'s personal
property, moving costs or loss of goodwill, shall be and remain the
property of Tenant.
CASUALTY DAMAGE
24. A. GENERAL. If the Premises or the Building should be damaged or
destroyed by fire, tornado, earthquake or other casualty, Tenant shall give
immediate written notice thereof to Landlord. Within thirty (30) days
after ▇▇▇▇▇▇▇▇'s receipt of such notice, Landlord shall notify Tenant
whether in Landlord's opinion such repairs can reasonably be made either:
(1) within ninety (90) days; (2) in more than ninety (90) days but in less
than one hundred eighty (180) days; or (3) in more than one hundred eighty
(180) days from the date of such notice. Landlord's determination shall be
binding on Tenant.
B. LESS THAN 90 DAYS. If the Premises or the Building should be damaged
by fire, tornado, earthquake or other casualty but only to such extent
that rebuilding or repairs can in Landlord's estimation be reasonably
completed within ninety (90) days after the date of such damage, this
Lease shall not terminate, and provided that insurance proceeds are
available to fully repair the damage, Landlord shall proceed to rebuild
and repair the Premises in the manner determined by Landlord, except that
Landlord shall not be required to rebuild, repair or replace any part of
the partitions, Fixtures, additions and other leasehold improvements which
may have been placed in, on or about the Premises. If the Premises are
untenantable in whole or in part following such damage, the Rent payable
hereunder during the period in which they are untenantable shall be abated
proportionately, but only to the extent of rental abatement insurance
proceeds received by the Landlord during the time and to the extent the
Premises are unfit for occupancy. In the event that Landlord should fail
to complete such repairs and rebuilding within one hundred eighty days
(180) days after the date upon which Landlord is notified by Tenant of
such damage, such period of time to be extended for delays caused by the
fault or neglect of Tenant or for delays (but not by more than forty-five
(45) days for such delays) because of acts of God, acts of public
agencies, labor disputes, strikes, fires, freight embargoes, rainy or
stormy weather, inability to obtain materials, supplies or fuels, or
delays of the contractors or subcontractors or any other causes or
contingencies beyond the reasonable control of Landlord, Tenant may at
Tenant's option within ten (10) days after the expiration of such one
hundred eighty (180) day period (as such may be extended), terminate this
Lease by delivering written notice of termination to Landlord as Tenant's
exclusive remedy, whereupon all rights hereunder shall cease and terminate
thirty (30) days after ▇▇▇▇▇▇▇▇'s receipt of such termination notice.
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C. GREATER THAN 90 DAYS. If the Premises or the Building should be
damaged by fire, tornado, earthquake or other casualty but only to such
extent that rebuilding or repairs can in Landlord's estimation be
reasonably completed in more than ninety (90) days but in less than one
hundred eighty (180) days, then Landlord shall have the option of either;
(1) terminating the Lease effective upon the date of the occurrence of such
damage, in which event the Rent shall be abated during the unexpired
portion of the Lease; or (2) electing to rebuild or repair the Premises to
substantially the condition in which they existed prior to such damage,
provided that insurance proceeds are available, to fully repair the damage,
except that Landlord shall not be required to rebuild, repair or replace
any part of the partitions, Fixtures, additions and other improvements
which may have been placed in, on or about the Premises. If the Premises
are untenantable in whole or in part following such damage, the Rent
payable hereunder during the period in which they are untenantable shall be
abated proportionately; but only to the extent of rental abatement
insurance proceeds received by the Landlord during the time and to the
extent the Premises are unfit for occupancy. In the event that Landlord
should fail to complete such repairs and rebuilding within one hundred
eighty days (180) days after the date upon which Landlord is notified by
Tenant of such damage, such period of time to be extended for delays caused
by the fault or neglect of Tenant or for delays (but not by more than
forty-five (45) days for such delays) because of acts of God, acts of
public agencies, labor disputes, strikes, fires, freight embargoes, rainy
or stormy weather, inability to obtain materials, supplies or fuels, or
delays of the contractors or subcontractors or any other causes or
contingencies beyond the reasonable control of Landlord, Tenant may at
Tenant's option within ten (10) days after the expiration of such one
hundred eighty (180) day period (as such may be extended), terminate this
Lease by delivering written notice of termination to Landlord as Tenant's
exclusive remedy, whereupon all rights hereunder shall cease and terminate
thirty (30) days after ▇▇▇▇▇▇▇▇'s receipt of such termination notice.
D. GREATER THAN 180 DAYS. If the Premises or the Building should be so
damaged by fire, tornado, earthquake or other casualty that rebuilding or
repairs cannot in Landlord's estimation be completed within one hundred
eighty (180) days after such damage, this Lease shall terminate and the
Rent shall be abated during the unexpired portion of this Lease, effective
upon the date of the occurrence of such damage.
E. TENANT'S FAULT. If the Premises or any other portion of the Building is
damaged by fire or other casualty resulting from the fault, negligence, or
breach of this Lease by Tenant or any of Tenant's Parties, Base Rent and
Additional Rent shall not be diminished during the repair of such damage
and Tenant shall be liable to Landlord for the cost and expense of the
repair and restoration of the Building caused thereby to the extent such
cost and expense is not covered by insurance proceeds.
F. UNINSURED CASUALTY. Notwithstanding anything herein to the contrary, in
the event that the Premises or the Building is damaged or destroyed and are
fully covered by the insurance proceeds received by Landlord or in the
event that the holder of any indebtedness secured by a mortgage or deed of
trust covering the Premises requires that the insurance proceeds be applied
to such indebtedness, then in either case Landlord shall have the right to
terminate this Lease by delivering written notice of termination to Tenant
within thirty (30) days after the date of notice to Landlord that said
damage or destruction is not fully covered by insurance or such requirement
is made by any such holder, as the case may be, whereupon all rights and
obligations hereunder shall cease and terminate.
▇. ▇▇▇▇▇▇. Except as otherwise provided in this Paragraph 24., Tenant
hereby waives the provisions of Sections 1932(a), 1933(4), 1941 and 1942 of
the Civil Code of California.
HOLDING OVER
25. If Tenant shall retain possession of the Premises or any portion thereof
without Landlord's consent following the expiration of the Lease or sooner
termination for any reason, then Tenant shall pay to Landlord for each day
of such retention 150% of the amount of the daily rental as of the last
month prior to the date of expiration of termination. Tenant shall also
indemnify, defend, protect and hold Landlord harmless from any loss,
liability or cost, including reasonable attorneys' fees, resulting from
delay by ▇▇▇▇▇▇ in surrendering the Premises, including, without
limitation, any claims made by any succeeding tenant founded on such delay.
Acceptance of Rent by Landlord following expiration or termination shall
not constitute a renewal of this Lease, and nothing contained in this
Paragraph 25, shall waive Landlord's right of reentry or any other right.
Unless Landlord consents in writing to ▇▇▇▇▇▇'s holding over, Tenant shall
be only a Tenant at sufferance, whether or not Landlord accepts any Rent
from Tenant while Tenant us holding over without ▇▇▇▇▇▇▇▇'s written
consent. Additionally, in the event that upon termination of the Lease.
Tenant has not fulfilled its obligation with respect to repairs and cleanup
of the Premises or any other Tenant obligations as set forth in this Lease,
then Landlord shall have the right to perform any such obligations as it
deems necessary at Tenant's sole cost and expense.
26. A. EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute an event of default ("Event of Default" or "Default") on the
part of tenant:
(1) ABANDONMENT. Abandonment of the Premises for a continuous period
in excess of five (5) days unless Tenant notifies Landlord in writing
in advance of such abandonment, keeps the Premises locked and secure
at all times, and timely performs and continues to perform all of the
Tenant's other monetary and non-monetary obligations under this
Lease. Tenant waives any right to notice Tenant may have under
Section 1951.3 of the Civil Code of the State of California, the
terms of this Paragraph 26.A. being deemed such notice to Tenant as
required by said Section 1951.3.
(2) NONPAYMENT OF RENT. Failure to pay any installment of Rent or
any other amount due and payable hereunder when said payment is due.
(3) OTHER OBLIGATIONS. Failure to perform any obligation, agreement
or covenant under this Lease other than those matters specified in
subparagraphs (1) and (2) of this Paragraph 26.A., such failure
continuing for fifteen (15) days after written notice of such
failure. In the event Tenant has commenced to cure the failure of
performance within the fifteen (15) day period, but has not completed
the cure despite diligent attempts to do so, Tenant shall have an
additional period not to exceed thirty (30) additional days after
such fifteen (15) day period to complete such cure so long as Tenant
continues to diligently pursue the cure to completion during such
additional thirty (30) day period.
(4) GENERAL ASSIGNMENT. A general assignment by ▇▇▇▇▇▇ for the
benefit of creditors.
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(5) BANKRUPTCY. The filing of any voluntary petition in bankruptcy by
▇▇▇▇▇▇, or the filing of an involuntary petition by ▇▇▇▇▇▇'s creditors,
which involuntary petition remains undischarged for a period of sixty (60)
days. In the event that under applicable law the trustee in bankruptcy or
Tenant has the right to affirm this Lease and continue to perform the
obligations of Tenant hereunder, such trustee or Tenant shall, in such
time period as may be permitted by the bankruptcy court having
jurisdiction, cure all Defaults of Tenant hereunder outstanding as of the
date of the affirmance of this Lease and provide to Landlord such adequate
assurances as may be necessary to ensure Landlord of the continued
performance of Tenant's obligations under this Lease.
(6) RECEIVERSHIP. The employment of a receiver to take possession of
substantially all of Tenant's assets or the Premises, if such appointment
remains undismissed or undischarged for a period of thirty (30) days after
the order therefor.
(7) ATTACHMENT. The attachment, execution or other judicial seizure of all
or substantially all of Tenant's assets or the Premises, if such
attachment or other seizure remains undismissed or undischarged for a
period of thirty (30) days after the levy thereof.
(8) DELAYS. Any delay in the construction of Landlord's Work caused by
▇▇▇▇▇▇ as provided in Exhibit B-1.
8. REMEDIES UPON DEFAULT.
(1) TERMINATION. In the event of the occurrence of any Event of Default,
Landlord shall have the right to give a written termination notice to
Tenant, and on the date specified in such notice, ▇▇▇▇▇▇'s right to
possession shall terminate, and this Lease shall terminate unless on or
before such date all arrears of rental and all other sums payable by
Tenant under this Lease and all costs and expenses incurred by or on
behalf of Landlord hereunder shall have been paid by Tenant and all other
Events of Default of this Lease by ▇▇▇▇▇▇ at the time existing shall have
been fully remedied to the satisfaction of Landlord. At any time after
such termination Landlord may recover possession of the Premises or any
part thereof and expel and remove therefrom Tenant and any other person
occupying the same, by any lawful means, and again repossess and enjoy the
Premises without prejudice to any of the remedies that Landlord may have
under this Lease, or at law or equity by reason of Tenant's Default or of
such termination.
(2) CONTINUATION AFTER DEFAULT. Even though an Event of Default may have
occurred, this Lease shall continue in effect for so long as Landlord
doses not terminate Tenant's right to possession under Paragraph 26.B.(1)
hereof, and Landlord may enforce all of Landlord's rights and remedies
under this Lease, including without limitation, the right to recover Rent
as it becomes due, and Landlord, without terminating this Lease, may
exercise all of the rights and remedies of a landlord under Section 1951.4
of the Civil Code of the State of California or any successor code
section. Acts of maintenance, preservation or efforts to lease the
Premises or the appointment of a receiver upon application of Landlord to
protect ▇▇▇▇▇▇▇▇'s interest under this Lease shall not constitute an
election to terminate Tenant's right to possession.
C. DAMAGES AFTER DEFAULT. Should Landlord terminate this Lease pursuant to
the provisions of Paragraph 26.B.(1) hereof, Landlord shall have the
rights and remedies of a Landlord provided by Section 1951.2 of the Civil
Code of the State of California, or successor code sections. Upon such
termination, in addition to any other rights and remedies to which
Landlord may be entitled under applicable law, Landlord shall be entitled
to recover from Tenant: (1) the worth at the time of award of the unpaid
Rent and other amounts which had been earned at the time of termination,
(2) the worth at the time of award of the amount by which the unpaid Rent
which would have been earned after termination until the time of award
exceeds the amount of such Rent loss that Tenant proves could have been
reasonably avoided; (3) the worth at the time of award of the amount by
which the unpaid Rent for the balance of the Term after the time of award
exceeds the amount of such Rent loss that the Tenant proves could be
reasonably avoided; and (4) any other amount necessary to compensate
Landlord for all the detriment proximately caused by ▇▇▇▇▇▇'s failure to
perform Tenant's obligations under this Lease or which, in the ordinary
course of things, would be likely to result therefrom. The "worth at the
time of award" of the amounts referred to in (1) and (2), above shall be
computed at the lesser of the "prime rate," as announced from time to time
by ▇▇▇▇▇ Fargo, N.A. (San Francisco) plus five (5) percentage points, or
the maximum interest rate allowed by law ("Applicable Interest Rate"). The
"Worth at the time of award" of the amount referred to in (3) above shall
be computed by discounting such amount at the Federal Discount Rate of the
Federal Reserve Bank of San Francisco at the time of the award plus one
(1%) percent. If this Lease provides for any periods during the Term
during which Tenant is not required to pay Base Rent or if Tenant
otherwise receives a Rent concession, then upon the occurrence of an Event
of Default, Tenant shall owe to Landlord the full amount of such Base Rent
or value of such Rent concession, plus interest at the Applicable Interest
Rate, calculated from the date that such Base Rent or Rent concession
would have been payable.
D. LATE CHARGE. If any installment of Rent is not paid on the date when due,
such amount shall bear interest at the Applicable Interest Rate from the date on
which said payment shall be due until the date on which Landlord shall receive
said payment. In addition, Tenant shall pay Landlord a late charge equal to five
(5%) percent of the delinquency, to compensate Landlord for the loss of the use
of the amount not paid and the administrative costs caused by the delinquency,
the parties agreeing that Landlord's damage by virtue of such delinquencies
would be difficult to compute and the amount stated herein represents a
reasonable estimate thereof. This provision shall not relieve Tenant of Tenant's
obligation to pay Rent at the time and in the manner herein specified.
E. REMEDIES CUMULATIVE. All rights, privileges and elections or remedies of
the parties are cumulative and not alternative, to the extent permitted by law
and except as otherwise provided herein.
LIENS
27. Except for the items scheduled on Exhibit B-3, Tenant shall keep the
Premises free from liens arising out of or related to work performed, materials
or supplies furnished or obligations incurred by Tenant or in connection with
work made, suffered or done by or on behalf of Tenant in or on the Premises or
Project. In the event that Tenant shall not, within ten (10) business days
following the imposition of any such lien, cause the same to be released of
record by payment or posting of a proper bond, Landlord shall have, in addition
to all other remedies provided herein and by law, the right, but not the
obligation, to cause the same to be released by such means as Landlord shall
deem proper, including payment of the claim giving rise to such lien. All sums
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paid by Landlord on behalf of ▇▇▇▇▇▇ and all expenses incurred by Landlord
in connection therefor shall be payable to Landlord by Tenant on demand
with interest at the Applicable Interest Rate. Landlord shall have the
right at all times to post and keep posted on the Premises any notices
permitted or required by law, or which Landlord shall deem proper, for the
protection of Landlord, the Premises, the Project and any other party
having an interest therein, from mechanics' and materialmen's liens, and
Tenant shall give Landlord not less than ten (10) business days prior
written notice of the commencement of any work in the Premises or Project
which could lawfully give rise to a claim for mechanics' or materialmen's
liens.
TRANSFERS BY LANDLORD
28. In the event of a sale or conveyance by Landlord of the Building or the
Project or a foreclosure by any creditor of Landlord, the same shall
operate to release Landlord from any liability upon any of the covenants or
conditions, express or implied, herein contained in favor of Tenant, to the
extent required to be performed after the passing of title to Landlord's
successor-in-interest. In such event, ▇▇▇▇▇▇ agrees to look solely to the
responsibility of the successor-in-interest of Landlord under this Lease
with respect to the performance of the covenants and duties of "Landlord"
to be performed after the passing of title to ▇▇▇▇▇▇▇▇'s
successor-in-interest. This Lease shall not be affected by any such sale
and ▇▇▇▇▇▇ agrees to attorn to the purchaser or assignee. ▇▇▇▇▇▇▇▇'s
successor(s)-in-interest shall not have liability to Tenant with respect to
the failure to perform all of the obligations of "Landlord", to the extent
required to be performed prior to the date of such successor(s)-in-interest
became the owner of the Building.
RIGHT OF LANDLORD TO PERFORM TENANT'S COVENANTS
29. All covenants and agreements to be performed by Tenant under any of the
terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of Rent. If Tenant shall fail to pay any
sum of money, other than Base Rent and Basic Operating Cost, required to be
paid by Tenant hereunder or shall fail to perform any other act on Tenant's
part to be performed hereunder, and such failure shall continue for five
(5) days after notice thereof by Landlord, Landlord may, but shall not be
obligated to do so, and without waiving or releasing Tenant from any
obligations of Tenant, make any such payment of perform any such act on
Tenant's part to be made or performed. All sums, so paid by ▇▇▇▇▇▇▇▇ and
all necessary incidental costs together with interest thereon at the
Applicable Interest Rate from the date of such payment by Landlord shall be
payable to Landlord on demand, and Tenant covenants to pay such sums, and
Landlord shall have, in addition to any other right or remedy of Landlord,
the same right and remedies in the event of the non-payment thereof by
Tenant as in the case of Default by Tenant in the payment of Base Rent and
Basic Operating Cost.
WAIVER
30. If either Landlord or Tenant waives the performance of any term, covenant
or condition contained in this Lease, such waiver shall not be deemed to be
a waiver of any subsequent breach of the same or any other term, covenant
or condition contained herein. The acceptance of Rent by Landlord shall not
constitute a waiver of any preceding breach by Tenant of any term, covenant
or condition of this Lease, regardless of Landlord's knowledge of such
preceding breach at the time Landlord accepted such Rent. Failure by
Landlord to enforce any of the terms, covenants or conditions of this lease
for any length of time shall not be deemed to waive or to decrease the
right of Landlord to insist thereafter upon strict performance by ▇▇▇▇▇▇.
Waiver by Landlord of any term, covenant or condition contained in this
Lease may only be made by a written document signed by Landlord.
NOTICES
31. Each provision of this Lease or of any applicable governmental laws,
ordinances, regulations and other requirements with reference to sending,
mailing or delivery of any notice or the making of any payment by Landlord
or Tenant to the other shall be deemed to be complied with when and if the
following steps are taken:
A. RENT. All Rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord at the address set forth in
the Basic Lease Information, or at such other address as Landlord may
specify from time to time by written notice delivered in accordance
herewith. Tenant's obligation to pay Rent and any other amounts to
Landlord under the terms of this Leases shall not be deemed satisfied until
such Rent and other amounts have been actually received by Landlord.
B. OTHER. All notices, demands, consents and approvals which may or are
required to be given by either party to the other hereunder shall be in
writing and either personally delivered, sent by commercial overnight
courier, sent by facsimile, or mailed, certified or registered, postage
prepaid, and addressed to the party to be notified at the address for such
party as specified in the Basic Lease information or to such other place
as the party to be notified may from time to time designate by at least
fifteen (15) days notice to the notifying party. Notices shall be deemed
serviced upon receipt or refusal to accept delivery. Tenant appoints as its
agent to receive the service of all default notices and notice of
commencement of unlawful detainer proceedings the person in charge of or
apparently in charge of occupying the Premises at the time, and, if there is
no such person, then such service may be made by attaching the same on the
main entrance of the Premises.
ATTORNEY'S FEES
32. In the event that Landlord places the enforcement of this Lease, or any part
thereof, or the collection of any Rent due, or to become due hereunder, or
recovery of possession of the Premises in the hands of an attorney, Tenant
shall pay to Landlord, upon demand, ▇▇▇▇▇▇▇▇'s reasonable attorneys' fees
and court costs. In any action which Landlord or Tenant brings to enforce
its respective rights hereunder, the unsuccessful party shall pay all costs
incurred by the prevailing party including reasonable attorneys' fees, to be
fixed by the court, and said costs and attorneys' fees shall be a part of
the judgment in said action.
SUCCESSORS AND ASSIGNS
33. This Lease shall be binding upon and inure to the benefit of Landlord, it
successors and assigns, and shall be binding upon and inure to the benefit
of Tenant, its successors, and to the extent assignment is approved by
Landlord hereunder, ▇▇▇▇▇▇'s assigns.
FORCE MAJEURE
34. In the event that Landlord shall be delayed, hindered in or prevented from
the performance of any act or obligation required under this Lease by reason of
acts of God, strikes, lockouts, labor troubles or disputes, inability to
procure or shortage of materials or labor, failure of power or utilities, delay
in transportation, fire, vandalism, accident, flood, severe weather, other
casualty, governmental requirements (including mandated changes in the plans
and specifications of Landlord's Work resulting from changes in pertinent
governmental requirements or interpretations thereof), riot, insurrection,
civil commotion, sabotage, explosion, war, natural or local emergency, acts or
omissions of others, including Tenant, or other reasons of a similar or
dissimilar nature not solely the fault of, or under the exclusive control of,
Landlord (individually and collectively, "Force Majeure"), then performance of
such act or obligation shall be excused for the period of the delay and the
period for the performance of any such act or obligations shall be extended for
the period equivalent to the period of such delay.
BROKERAGE COMMISSION
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35. Landlord shall pay a brokerage commission to Broker in accordance with a
separate agreement between Landlord and Broker. Tenant warrants to Landlord
that ▇▇▇▇▇▇'s sole contact with Landlord or with the Premises in connection
with this transaction has been directly with Landlord and Broker, and that
no other broker or finder can properly claim a right to a commission or a
finder's fee based upon contacts between the claimant and Tenant with
respect to Landlord or the Premises. Tenant shall indemnify, defend by
counsel acceptable to Landlord, protect and hold Landlord harmless from and
against any loss, cost or expense, including, but not limited to, attorneys'
fees and costs, resulting from any claim for a fee or commission by any
broker or finder in connection with the Premises and this Lease, other than
▇▇▇▇▇▇, who claims such right based upon contacts between claimant and
Tenant.
▇▇▇▇▇▇▇▇ shall indemnify, defend by counsel acceptable to Tenant, protect
and hold Tenant harmless from and against any loss, cost or expense,
including, but not limited to, attorneys' fees and costs, resulting from any
claim for a fee or commission by any broker or finder connection with the
Premises and this Lease other than ▇▇▇▇▇▇, who claims such right based upon
contacts between claimant and Landlord.
MISCELLANEOUS
36. A. GENERAL. The terms "Tenant and/or Landlord" or any pronoun used in place
thereof shall indicate and include the masculine or feminine, the singular
or plural number, individuals, firms or corporations, and their respective
successors, executors, administrators and permitted assigns, according to
the context hereof.
B. TIME. Time is of the essence regarding this Lease and all of its
provisions.
C. CHOICE OF LAW. This Lease shall in all respect be governed by the laws of
the State of California.
D. ENTIRE AGREEMENT. This Lease, together with its exhibits, contains all
the agreements of the parties hereto and supersedes any previous
negotiations. There have been no representations made by the Landlord or
understandings made between the parties other than those set forth in this
Lease and its exhibits.
E. MODIFICATION. This Lease may not be modified except by a written
instrument signed by the parties hereto.
F. SEVERABILITY. If, for any reason whatsoever, any of the provisions hereof
shall be unenforceable or ineffective, all of the other provisions shall be
and remain in full force and effect.
G. RECORDATION. Tenant shall not record this Lease or a short form
memorandum hereof.
H. EXAMINATION OF LEASE. Submission of this Lease to Tenant does not
constitute an option or offer to lease and this Lease is not effective
otherwise until execution and delivery by both Landlord and Tenant.
I. ACCORD AND SATISFACTION. No payment by Tenant of a lesser amount than the
Rent nor any endorsement on any check or letter accompanying any check or
payment of Rent shall be deemed an accord and satisfaction of full payment
of Rent, and Landlord may accept such payment without prejudice to
Landlord's right to recover the balance of such Rent or to pursue other
remedies.
J. EASEMENTS. Landlord may grant easements on the Project and dedicate for
public use portions of the Project without Tenant's consent; provided that
no such grant or dedication shall substantially interfere with ▇▇▇▇▇▇'s use
of the Premises. Upon ▇▇▇▇▇▇▇▇'s demand, ▇▇▇▇▇▇ shall execute, acknowledge
and deliver to Landlord documents, instruments, maps and plats necessary to
effectuate Tenant's covenants hereunder.
▇. DRAFTING AND DETERMINATION PRESUMPTION. The parties acknowledge that this
Lease has been agreed to by both the parties, that both Landlord and Tenant
have consulted with attorneys with respect to the terms of this Lease and
that no presumption shall be created against Landlord because Landlord
drafted this Lease. Except as otherwise specifically set forth in this
Lease, with respect to any consent, determination or estimation of Landlord
required in this Lease or requested of Landlord, ▇▇▇▇▇▇▇▇'s consent,
determination or estimation shall be made in Landlord's good faith opinion,
whether objectively reasonable or unreasonable.
L. EXHIBITS. Exhibits A through G attached hereto are hereby incorporated
herein by this reference.
M. NO LIGHT, AIR OR VIEW EASEMENT. Any diminution or shutting off of light,
air or view by any structure which may be erected on lands adjacent to or in
the vicinity of the Building shall in no way affect this Lease or impose any
liability on Landlord.
N. NO THIRD PARTY BENEFIT. This Lease is a contract between Landlord and
▇▇▇▇▇▇ and nothing herein is intended to create any third party benefit.
▇. ▇▇▇▇▇▇ OF JURY TRIAL. IF ANY ACTION OR PROCEEDING BETWEEN LANDLORD AND
TENANT TO ENFORCE THE PROVISIONS OF THIS LEASE (INCLUDING AN ACTION OR
PROCEEDING BETWEEN LANDLORD AND THE TRUSTEE OR DEBTOR IN POSSESSION WHILE
TENANT IS A DEBTOR IN A PROCEEDING UNDER ANY BANKRUPTCY LAW) PROCEEDS TO
TRIAL, LANDLORD AND TENANT HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY IN
SUCH TRIAL. Landlord and ▇▇▇▇▇▇ agree that this Paragraph constitutes a
written consent to waiver of trial by jury within the meaning of California
Code of Civil Procedure Section 631(a)(2), and ▇▇▇▇▇▇ does hereby authorize
and empower Landlord to file this Paragraph and or this Lease, as required,
with the clerk or judge of any court of competent jurisdiction as a written
consent to waiver of jury trial.
ADDITIONAL PROVISIONS
37. A. INTENTIONALLY OMITTED
B. ANTI-DISCRIMINATION. There shall be no discrimination against or
segregation of any person or group of persons, on account of race, color,
creed, religion, sex, marital status, national origin, or ancestry, in the
leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of
the Premises, nor shall the Tenant or any person claiming under or through
the Tenant establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, sublessees, subtenants, or vendees in
the Premises.
C. OPTION TO EXTEND TERM. Provided that Tenant is not in Default as of the
time of exercise of each option and the commencement date of each Option
Period, Tenant shall have two (2) successive five (5) year options to
extend the Term of the Lease for the Premises in "as is" condition at the
expiration of the original
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Lease Term and, if the first option is duly exercised, at the end of the
first Option Term. All of the terms and conditions of this Lease except
for Base Rent and the provisions of this Paragraph shall be applicable to
the Option Period.
The Base Rent for the Premises under such option shall be the then current
market rent for comparable facilities in the proximate South San Francisco
market area. The definition of comparable facilities shall incorporate the
parking amenities of the Premises, and the Building's location, age,
quality, amenities, identity, exterior appearance, interior improvements,
and type of construction, excluding Tenant Improvements in excess of
$50.00 per rentable square foot.
Tenant shall give Landlord written notice to exercise its option at least
nine (9) but not more than twelve (12) months prior to the expiration of
the then current Term for the Premises. Within fifteen (15) days after
Tenant exercises its option to extend, Landlord shall provide Tenant with
the Base Rent, as determined by Landlord, for the Option Period. The
parties are obligated to negotiate in good faith to agree on the Base
Rent. If the parties have not mutually agreed on the Base Rent within
thirty (30) days from notification by Landlord to Tenant of Landlord's
determination of Base Rent, each party hereto shall appoint one
representative who shall be a licensed real estate broker experienced in
the leasing of comparable facilities in the County of San Mateo to act as
an arbitrator. The two (2) arbitrators so appointed shall determine the
Base Rent for the relevant Option Period. The determination of said Base
Rent shall be made by said two (2) arbitrators within sixty (60) days from
notification by Landlord to Tenant of Landlord's determination of Base
Rent and they shall submit said determination in writing and signed by
said arbitrators in duplicate. One of the written notifications shall be
delivered to Landlord and the other to Tenant.
In the event the two (2) arbitrators of the parties hereto cannot agree on
the Base Rent for the Premises herein, said two (2) arbitrators shall
appoint a third arbitrator who shall be a licensed real estate broker
experienced in the leasing of comparable facilities in the County of San
Mateo, to act as an arbitrator. The Base Rent for the relevant Option
Period shall be independently determined by the third of said arbitrators,
which said determination shall be made within ninety (90) days from
notification by Landlord to Tenant of Landlord's determination of Base
Rent. The role of the third arbitrator shall then be to immediately select
from the proposed resolution of arbitrators #1 and #2 the one that most
closely approximates the third arbitrator's determination of Base Rent.
The third arbitrator shall have no right to adopt a compromise or middle
ground or any modification of either of the two final proposed
resolutions. The resolution that the third arbitrator chooses as most
closely approximating his determination of the Base Rent shall constitute
the decision of all arbitrators and shall be final and binding upon the
parties.
The parties hereto shall pay the charges of the arbitrator appointed by it
and any expenses incurred by such arbitrator. The charges and expenses of
the third arbitrator, as provided herein, shall be paid by the parties
hereto in equal shares.
In the event either arbitrator #1 or arbitrator #2 fails to present a Base
Rent figure within the thirty (30) day period, the Base Rent presented by
the other arbitrator shall be considered final and binding on both parties.
Notwithstanding anything to the contrary herein contained, ▇▇▇▇▇▇'s right
to extend the term by exercise of the foregoing Option shall be
conditioned upon the following: (i) at the time of the exercise of the
Option, and at the time of the commencement of the extended term, Tenant
or a Permitted Assignee shall be in possession of and occupying the
Premises for the conduct of its business therein and the same shall not be
occupied by any other assignee, subtenant or licensee, and (ii) the notice
of exercise shall constitute a representation by Tenant to Landlord
effective as of the date of the exercise and as of the date of
commencement of the extended term, that Tenant does not intend to seek to
assign the lease in whole or in part, or sublet all of any portion of the
Premises, the election to extend the term being for purposes of utilizing
the Premises for Tenant's purposes in the conduct of Tenant's or a
Permitted Assignee's business therein.
D. SHELL MODIFICATIONS. The Agreement Regarding Shell Modifications
attached hereto as Exhibit G is hereby incorporated into and made a part
of this Lease.
E. ADJUSTMENT TO BASE RENT. Base Rent as stated in the Basic Lease
Information has been calculated on the basis of the following costs to
develop the Project (collectively "Project Costs" and individually a
"Project Cost"):
Land $6,675,000
Due Diligence/Closing $208,000
Environmental (including $300,000 ["Remediation Cost"]
remediations and insurance
Shell (including demo) $7,020,000
Permits and Fees $580,000
Architectural and Engineering $175,000
Loan Costs -0-
Interest carry is projected at 9.25% ("Interest Carry") over a carry period
of 19 months commencing on the Acquisition Date ("Carry Period"). The time
to remediate Hazardous Materials at the Project site is estimated to be 6
months ("Haz Mat Remediation Period").
If (i) an actual Project cost exceeds the amount set forth above, or (ii)
the Interest Carry exceeds the rate set forth above, or (iii) the Haz Mat
Remediation Period exceeds the period set forth above, the Base Rent as
shown on the Basic Lease Information shall be adjusted upwards to achieve
an 11% return ("Yield") to the Landlord on two-thirds (2/3) of the
increased costs adjusted by carry over the Carry Period extended by any
increase in the Haz Mat Remediation Period plus a 5% contingency and a 4%
development fee on Shell Costs. The Base Rent calculation includes a 5%
vacancy factor and a 1% structural reserve.
[For example: If the actual Land Cost increases by $100,000 Base Rent as
shown on the Basic Lease Information would be adjusted upwards as follows:
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$115,708 (cost increased by Interest Carry over Carry Period)
$12,727.88 ($115.708 times 11% Yield)
$8,485.25 2/3 of increased cost, etc.
$.1697 ($8,488.25 divided by 50,000 square feet
[actual size to be used]
$.1714 ($.1697 divided by 1 minus the structural reserve)
$.1804 ($1714 divided by 1 minus the vacancy factor)
*$.015 ($.1804 divided by 12)
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*Monthly increase in initial Base Rent per square foot.]
Base Rent as shown on the Basic Lease Information shall also be increased if
Landlord's financial or joint venture on or before the Acquisition Date (defined
in Section 37H) requires an investment return in excess of 11%. Not later than
ten (10) days after the Acquisition Date, Landlord shall give Tenant written
notice of the amount of the investment return in excess of 11% required by
Landlord's financial or joint venture partner. In such case, the Base Rent as
shown on the Basic Lease Information shall be adjusted upwards to reflect the
required return; provided, however, that Tenant, by written notice to Landlord
within ten (10) days after receipt of written notice from Landlord of such
requirement, may terminate this lease. Upon termination of this Lease, Landlord
shall refund to Tenant (A) the Base Rent and Estimated Basic Operating Costs for
the first full month of the Lease Term paid by Tenant pursuant to Section 6B of
this Lease, and (B) the Security Deposit paid by Tenant pursuant to Section 19
of this Lease. The Inducement Deposit shall not be refundable to Tenant.
The adjustment(s) to Base Rent, if any, required hereunder shall be applied to
Base Rent for the initial twelve (12) months of the Lease Term. Base Rent for
subsequent twelve (12) month periods shall then be adjusted by an increase of
three percent (3%) per annum over the Base Rent for the prior period. Following
Substantial Completion of Landlord's Work (defined in Exhibit B-1) Landlord
shall notify Tenant in writing of the amount, if any, by which the actual
Project Costs exceed the estimated Project Costs set forth above ("Increased
Project Costs"). If the Increased Project Costs in the aggregate total more than
$1,500,000, Tenant may, by written notice to Landlord within ten (10) days after
receipt of Landlord's notice, terminate this Lease; provided, however, that
Landlord may, by written notice to Tenant within ten (10) days after receipt of
Tenant's termination notice, agree to pay the Increased Project Costs in excess
of $1,500,000 without adjustment of Base Rent for the Increased Project Costs
which are in excess of $15,000,000 in which case this Lease shall remain in full
force and effect and Tenant's termination notice shall be of no effect. If
Landlord does not so elect, this Lease shall immediately terminate and Landlord
shall refund to Tenant (A) the Base Rent and Estimated Basic Operating Costs for
the first full month of the Lease Term paid by Tenant pursuant to Section 6B of
this Lease, and (B) the Security Deposit paid by Tenant pursuant to Section 19
of this Lease. The Inducement Deposit shall not be refundable to Tenant.
F. LANDLORD'S RIGHT TO TERMINATE. A final adjustment to Base Rent based upon the
Remediation Cost shall be made at such time as the Landlord has completed
remediation of the existing environmental conditions on the land on which the
Project is to be developed and has obtained a No Further Action Letter with
respect to such conditions. If the Remediation Cost exceeds $300,000 but does
not exceed $500,000, Base Rent shall be adjusted (in addition to any other
adjustment required hereunder) in the manner described in Section 37E above for
the amount by which the Remediation Cost exceeds $300,000. Notwithstanding
anything in this Lease to the contrary, if the Remediation Cost reasonably
estimated by Landlord to complete remediation of the existing environmental
conditions on the land on which the Project is to be developed (including the
cost of environmental insurance) and to obtain a No Further Action letter
exceeds $500,000, Landlord, by written notice to Tenant, may terminate this
Lease; provided, however, that if the estimated cost is not in excess of
$1,000,000, Tenant may, by written notice to Landlord within ten (10) days after
receipt of Landlord's notice of termination, elect to keep the Lease in full
force and effect by agreeing to pay (i) immediately, the amount of the estimated
remediation cost (including the cost of environmental insurance) in excess of
$750,000 and (ii) as Additional Base Rent, the amount of the estimated
remediation cost (including the cost of environmental insurance) in excess of
$300,000 (not, however, to exceed $450,000) amortized at 11% over the initial
Term of the Lease. If the estimated remediation cost (including the cost of
environmental insurance) is in excess of $1,000,000, Landlord shall have an
absolute right to terminate this Lease. Upon termination of the Lease pursuant
to this Section 37F, Landlord shall refund to Tenant (A) the Base Rent and
Estimated Basic Operating Costs for the first full month of the Lease Term paid
by Tenant pursuant to Section 6B of this Lease, and (B) the Security Deposit
paid by Tenant pursuant to Section 19 of this Lease. The Inducement Deposit
shall not be refundable to Tenant.
G. INDUCEMENT DEPOSIT. As an inducement to Landlord to pursue the acquisition of
the land on which the Project shall be developed, Tenant has paid to Landlord
prior to execution of this Lease the sum of $60,000 ("Inducement Deposit") which
amount shall be non-refundable under all circumstances but shall be applied to
Base Rent first due and payable by Tenant under this Lease if Landlord acquires
the land and develops the Project.
H. CONDITIONS. ▇▇▇▇▇▇ understands and acknowledges that Landlord has not as of
the date this Lease is executed acquired the land on which the Project will be
developed. Landlord's obligations under this Lease are expressly conditioned
upon (i) Landlord acquiring the land on which the Project will be developed (the
date of closing of such acquisition being referred to herein as the "Acquisition
Date") and (ii) Landlord obtaining financing for the land acquisition and
development of the Project on terms which are satisfactory to Landlord in its
sole and absolute discretion. If either of said conditions is not satisfied
Landlord shall have no obligations to Tenant under this Lease or with respect to
the Project, the Building or the Premises other than (A) to refund to Tenant the
Base Rent and Estimated Basic Operating Costs for the first full month of the
Lease Term paid by Tenant pursuant to Section 6B of this Lease, and (B) to
refund to Tenant the Security Deposit paid by Tenant pursuant to Section 19 of
this lease. The Inducement Deposit shall not be refundable to Tenant. If either
of said conditions is not satisfied by March 31, 2001, Tenant may terminate this
Lease (regardless of the occurrence of any Force Majeure) by written notice to
Landlord given not later than April 15, 2001.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease the day and
year first above written.
"Landlord"
▇▇▇▇▇▇▇▇ ▇▇▇▇ NORTHERN CALIFORNIA DEVELOPMENT, INC., a Delaware
corporation
By: /s/ [Signature Illegible]
-----------------------------
Its: Vice President
----------------------------
"Tenant"
VIROLOGIC, INC., a California corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Its: President
----------------------------
By: /s/ [Signature Illegible]
-----------------------------
Its: Vice President of Finance
----------------------------
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EXHIBIT A-1
LEGAL DESCRIPTION OF PROJECT
Parcel A, as shown on that certain Parcel Map entitled, "PARCEL MAP NO. 98-033"
filed for Record on December 30, 1988 in Book 71 of Parcel Maps at Pages 13 and
14, Series No. 9822035, San Mateo County Records.
APN ▇▇▇-▇▇▇-▇▇▇
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EXHIBIT A-2
SITE PLAN
1
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EXHIBIT A-2
SITE PLAN
[SITE MAP]
24
EXHIBIT B-1
INITIAL IMPROVEMENTS OF PREMISES
1. ▇▇▇▇▇▇▇▇'S WORK
1.1 Landlord's work ("Landlord's Work") shall be defined as the
construction of the Building shell more particularly described in Exhibit C and
Exhibit C-1, including ADA facilities, to the extent required by the City. The
scope of the shell construction shall include: The Building shell, roof, all
exterior windows and doors, fire sprinklers below the roof line and below the
second deck line, utilities and services to the Building's exterior, an
elevator, the parking lot, exterior common areas, three (3) sets of interior
stairs (consisting of stair assemblies and metal handrails to be provided
f.o.b.), and landscaping.
1.2 Landlord's work shall be completed through Landlord's general
contractor, South Bay Construction, in compliance with all applicable codes and
regulations.
1.3 Landlord shall pay for all costs involved in shell construction
described in Paragraph 1.1, including, but not limited to, hard costs and
architecture, engineering, consultants, shell building permit and impact fees,
required by ▇▇▇▇▇▇ and agreed to by Landlord shall be at Tenant's sole cost and
expense.
2. TENANT'S WORK
2.1 All interior improvements, including installation of Trade
Fixtures, as indicated in Exhibit B-3, furnishings and Building Core
Improvements (collectively referred to herein as "Tenant's Work", shall be
constructed by Tenant at its sole cost and expense. All of the plans and
specifications for Tenant's Work shall be approved by Landlord in advance of
commencing any construction. Such approval by Landlord, shall not be
unreasonably withheld or delayed. The parties agree that certain items of the
Building Core Improvements (specifically, proof loading of the roof structure
and penetrations in the second deck for future mechanical drafts) shall be
completed during shell construction by Landlord and the cost of such items
shall be deducted from the Tenant Improvement Allowance. Tenant shall invest a
minimum of sixty dollars ($60.00) per rentable square foot, including the
Tenant Improvement Allowance supplied by Landlord, excluding soft costs ("Soft
Costs" are those items described in Paragraphs 2.2 (v) through (xi)), and
excluding the items described on Exhibit B-3 hereto, to improve the entire
Premises. Tenant shall, within thirty (30) days following the Term Commencement
Date, provide Landlord with an accounting, certified by an officer of Tenant,
itemizing all amounts expended by Tenant to improve the Premises. If the amount
expended by Tenant is less than sixty dollars ($60.00) per rentable square foot
of the Building, (exclusive of Soft Costs), Tenant shall, together with the
accounting, deliver to Landlord an unconditional irrevocable letter of credit
(separate from but for a purpose similar to the Letter of Credit described in
paragraph 19 of this Lease) in an amount equal to the difference between the
amount expended by Tenant and sixty dollars ($60.00) per rentable square foot
of the Building (exclusive of Soft Costs). At any time prior to the
twenty-fourth month of the Lease Term (but in no event more frequently than
monthly) Tenant may provide Landlord with an amended accounting, as above,
showing additional amounts expended by Tenant to improve the Premises
(exclusive, however, of the costs of demolition and reconstruction of the
Tenants Work) since the last date shown on the immediately preceding
accounting. If the total amount expended by Tenant is less than sixty dollars
($60.00) per rentable square foot of the Building (exclusive of Soft Costs),
the amount of the letter of credit may be reduced to a sum equal to the
difference between the amount expended by Tenant and sixty dollars ($60.00) per
rentable square foot of the Building (exclusive of Soft Costs). On or before
the last day of the twenty-fourth month of the Lease Term, with an amended
accounting as above showing in addition any amounts expended by Tenant to
improve the Premises since the last date shown on Tenant's most recent
accounting (exclusive, however, of the costs of demolition and reconstruction
of the Tenant's Work), if the total amount expended by Tenant is less than
sixty dollars ($60) per rentable square foot, Landlord shall be immediately
entitled to draw down from the letter of credit an amount equal to the
difference between the amount expended by ▇▇▇▇▇▇ and sixty dollars ($60.00) per
rentable square foot. Upon such draw the requirement that this letter of credit
be maintained shall terminate. The letter of credit shall (a) designate
Landlord or its assignees as beneficiary, (b) be issued by a financial
institution approved by Landlord, (c) be in form satisfactory to Landlord, and
(d) be for a term of twenty-six months. Landlord shall not be required to
deliver any certifications or documentation of any kind to the issuer in order
to make a draw, other than Landlord's written demand stating that Landlord is
entitled to draw in accordance with the terms of this Lease. The Issuer shall
not be required to conduct any inquiry or investigation before paying Landlord
the requested amount of the draw. Landlord may assign, transfer or pledge the
letter of credit to any lender or purchaser in connection with any financing or
sale of the Premises. Landlord shall provide to Tenant a Tenant Improvement
Allowance of up to a maximum of twenty-five dollars ($25.00) per rentable
square foot on the Premises ("Tenant Improvement Allowance") which shall
include Soft Costs. The Tenant Improvement Allowance shall be reduced by the
amount Landlord expends on Building Core Improvements as stated above. Tenant
shall promptly pay when due all costs for ▇▇▇▇▇▇'s Work. Landlord shall
reimburse Tenant a portion of such costs not to exceed in the aggregate the
amount of the Tenant Improvement Allowance less amounts expended by Landlord
for Building Core Improvements as provided above. Tenant shall, not more
frequently than monthly after commencement of the construction of Tenant's
Work, submit to Landlord requests for reimbursement of amounts expended by
Tenant for Tenant's Work. Each request shall be certified by an officer of
Tenant and shall include, without limitation, (i) copies of all invoices paid
by Tenant for which reimbursement is sought (ii) proof of payment of each
invoice (iii) a fully executed unconditional lien release from each payee, and
(iv) such additional information as Landlord may reasonably request. After
Landlord has received and approved each request as provided herein, Landlord
shall process the approved request for payment by its lender and upon
disbursement by Landlord's Lender reimburse Tenant promptly for one-half of
all amounts shown in the request as expenditures for costs to which the Tenant
Improvement Allowance applies, as hereinbelow provided, up to the maximum
amount set forth above.
2.2 Tenant's Improvement Allowance (twenty-five dollars ($25.00) per
rentable square foot on the Premises) shall be applied to, but not limited to
the following costs:
(i) Costs paid to general contractors and subcontractors for labor,
material, permits, bonds and the like relating to the Premises;
(ii) Construction management fee to Landlord in the amount of two
(2%) percent of the Tenant Improvement Allowance;
(iii) Building core improvements items such as lobbies, restrooms,
locker areas with showers, janitorial room, interior finishes
for the stairs (including framing, lights, etc.), deck
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penetrations, structurally reinforcing the roof for Tenant's
HVAC, caulking of interior concrete joints, and screening of
mechanical equipment ("Building Core Improvements");
(iv) Cost of labor, material and overhead for change orders
approved by Landlord in accordance with this Exhibit B-1 and
minor field changes;
(v) Architectural, engineering and other design fees;
(vi) Plans, drawings and printing costs;
(vii) Insurance premiums;
(viii) Cost of any reasonably required reports, surveys or studies;
(ix) The cost of utility connections, installation of utility
facilities and meters and user installation or hook-up fees;
(x) All governmental fees and development impact fees, including
fees for permits, charges and costs of obtaining governmental
approvals;
(xi) Recording costs and filing fees.
2.3 Tenant's architect, as described in Paragraph 2.4, shall
furnish all architectural and engineering plans and specifications ("Core
Improvement Plans and Specifications") required for the construction of
Building Core Improvements. Core Improvement Plans and Specifications shall be
based on the Interior Improvement Specifications attached as Exhibit B-2
herein, or as otherwise indicated by Landlord. It is understood and agreed by
Tenant that any minor changes from any plans and specifications that may be
reasonably necessary during construction of the Premises shall not affect,
change or invalidate this Lease and shall not require Tenant's consent.
2.4 Tenant shall contract with WHL Architects for ▇▇▇▇▇▇'s Work to
furnish architectural plans and specifications ("Tenant's Plans and
Specifications") required for the construction of Tenant's Work. Tenant's Plans
and Specifications shall also be based on the Interior Improvement
Specifications attached hereto as Exhibit B-2.
2.5 Tenant shall contact with South Bay Construction for completion
of Tenant's Work. Tenant's suppliers, contractors, workmen and mechanics shall
be subject to approval by Landlord, which shall not be unreasonably withheld or
delayed, prior to the commencement of work and shall be subject to Landlord's
administrative control while performing their work. Landlord shall coordinate
with ▇▇▇▇▇▇'s representative the scheduling of Tenant's Work. Prior to
Commencement of Landlord's Work, Tenant shall notify Landlord with respect to
any special scheduling requirements of Tenant in connection with the
installation of Tenant's Work. If at any time any supplier, contractor, ▇▇▇▇▇▇▇
or mechanic performing Tenant's Work hinders or delays any other work in the
Building or performs any work which may or does impair the quality, integrity
or performance of any portion of the Building, Tenant shall take all steps
necessary to bring an end to the delay or hindrance, and the contractor in
question shall not recommence Tenant's Work until reasonable steps have been
taken to avoid further delay or hindrance. In performing Tenant's Work, Tenant
shall be required to employ contractors (and subcontractors) which (a) are
parties to, and bound by, a collective bargaining agreement with a labor
organization affiliated with the Building and Construction Trades Council of
the AFL-CIO and (b) employ only members of such labor organizations to perform
work within their respective jurisdictions), with the exception of labor hired
for network cabling for personal and mainframe computer systems and related
items. Tenant shall reimburse Landlord for any repairs or corrections of
Landlord's Work or of Tenant's Work or of any portion of the Building caused by
or resulting from the work of any supplier, contractor, ▇▇▇▇▇▇▇ or mechanic
with whom ▇▇▇▇▇▇ contracts. Landlord shall provide access to ▇▇▇▇▇▇'s
suppliers, contractors, workmen and mechanics so as to achieve timely
completion and occupancy of the Premises.
2.6 Unless the Lease has been terminated pursuant to Paragraph 26 of
the Lease, upon the termination or expiration of the Lease, as such term may be
extended, Tenant shall have the right to remove items listed in Exhibit B-3
which have been installed and paid for by Tenant. Tenant shall repair any
damage to the Premises resulting from such removal, patch and repair the walls,
floor and ceiling and return the Premises in clean condition. Landlord shall
have a security interest in ▇▇▇▇▇▇'s Work pursuant to Paragraph 19. of the
Lease.
3. COMPLETION DATES
3.1 Tenant shall notify Landlord in advance of the approximate date
on which tenant's Work will be substantially completed and will notify Landlord
when Tenant's Work is in fact substantially completed ("Substantial
Completion"). If any dispute shall arise as to whether the Premises are
substantially completed and ready for Tenant's occupancy, a certificate
furnished by an independent architect mutually agreed to by Landlord and Tenant
certifying the date of Substantial Completion shall be conclusive. The
following shall constitute tenant delays ("Tenant Delays") under the Lease:
(a) Tenant's failure to furnish complete and timely
instructions or approvals;
(b) ▇▇▇▇▇▇'s failure to submit conceptual plans for ▇▇▇▇▇▇'s
Work to Landlord within forty-five (45) days from the date on which Landlord
commences Landlord's Work;
(c) Tenant's failure to submit preliminary Plans and
Specifications for Tenant's Work for approval by Landlord within seventy-five
(75) days from the date on which Landlord commences Landlord's Work unless
caused by ▇▇▇▇▇▇▇▇'s delay in responding to ▇▇▇▇▇▇'s conceptual plans;
(d) ▇▇▇▇▇▇'s failure to enter into contracts with WHL
Architects and South Bay Construction for design and construction of Tenant's
Work within ninety (90) days from the date on which Landlord commences
Landlord's Work;
(e) Tenant's failure to diligently pursue to completion the
construction of Tenant's Work unless caused by Landlord, its agents or
contractors;
(f) ▇▇▇▇▇▇'s failure to deliver a Certificate of Occupancy and
a set of as-built plans to Landlord within thirty (30) days after Substantial
Completion of Tenant's Work, unless caused by a delay by Landlord.
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Tenant Delays resulting in postponement of the Term Commencement Date shall
cause Tenant to be charged Rent under the terms of the Lease for each day of
such delay. All time periods indicated above shall be computed on a calendar
basis with no allowance for holidays, weekends or other customs.
3.2 Except as otherwise provided in Section 3 of this Lease,
failure of Landlord to deliver possession of the Premises within the time and
in the condition provided for in the Lease will not give rise to any claim for
damages by Tenant against Landlord or Landlord's general contractor. If
Landlord fails to deliver the Premises in the condition as provided for under
this Lease, Landlord shall promptly correct any such deficiencies, excluding
any immaterial deficiencies which do not prevent Tenant from using the Premises
for their intended use. If Landlord fails to correct such deficiencies within a
reasonable time, Tenant may pursue its legal remedies against Landlord.
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EXHIBIT B-2
INTERIOR IMPROVEMENT SPECIFICATIONS
NOTE: Not all specified items listed herein refer to this project.
1. WALLS
A. All walls receive paint to be properly prepared. Texture to be medium
spray finish with 1 coat of latex paint to cover. Paint to be
Pittsburg Doric white.
B. Demising walls, between tenant spaces to roof height shall be metal
studs with 5/8" gypsum board both sides. Fire tape finish. U.O.N. See
T.I. drawings for size, gauge and spacing.
C. Restroom studs with 5/8" gypsum board to 6" above adjacent ceiling
U.O.N. with friction fit sound batt insulation. Wainscot at wet walls
to be +4' -0' high with ceramic tile. Texture to be smooth finish with
semi-gloss latex paint U.O.N.
D. Interior Office Walls. Metal studs with 5/8" gypsum board on both
sides to underside of ceiling, U.O.N. Perimeter office walls between
office and warehouse areas to 6" above ceiling, U.O.N. per Title 24
energy calculation requirements.
E. Other. As may be directed by code or tenant purposes for fire
protection, sound or energy insulation, demountability and aesthetics.
F. See tenant improvements drawings for specifications on size, gauge and
spacing of studs.
2. CEILING
A. General. Finished ceiling height to be 10'.
B. Restrooms. Finished ceiling height to be 9' with metal joist with 5/8"
gypsum board. Texture to be smooth finish with semi-gloss latex paint
with friction fit sound batt insulation. See tenant improvement
drawings for specifications on size, gauge and spacing of joists.
C. Office. 2' x 4' T-bar suspended ceiling system with 2' x 4' Second
Look II acoustical ceiling tile by ▇▇▇▇▇▇▇▇▇ or approved equal.
D. Other. As may be directed by tenant or as may otherwise be required by
tenant or codes. See tenant improvement drawings.
3. FLOOR COVERING
A. Carpet - 30 oz. cut pile nylon Design Weave "Westbridge"/26 oz. loop
Design Weave "Caravan" or equivalent without pad. Carpet to be glued
down installation. Color to be selected by Tenant.
B. V.C.T. ▇▇▇▇▇▇▇▇▇ "Standard Excelon" - 1/8" gauge: 12" x 12" or
approved equal.
C. Sheet vinyl Congoleum "Forever" or approved equal.
D. Base. 2-1/2" coved base at carpet and resilient floors.
E. Ceramic tile at toilet rooms with 6" ceramic tile base.
F. Sealed Concrete. Sealed with a clear acrylic sealer.
4. DOORS
A. Interior. SP Particleboard Core Oak 3'-0" x 9'-0", Rotary Sawn Red Oak
Veneer door by ▇▇▇▇▇▇▇▇▇▇▇ or equal. 20 minute rated at one hour fire
walls.
5. FRAMES (DOORS & WINDOWS)
A. Timely Standard prefinished steel door and sidelight frame in standard
white. "Timely II" at rated walls.
B. Other. As may be directed by code.
6. HARDWARE
▇. ▇▇▇▇▇ set and lockset - Schlage D Series in brushed stainless steel
with ▇.▇. ▇▇▇▇▇ lever.
▇. ▇▇▇▇▇ - 2 pair per door finished to match.
7. RESTROOM ACCESSORIES
A. Water closet, white American Standard flush valve #2221.18 with
Olsonite #95 seat and ▇▇▇▇▇ ▇▇▇▇ #110.3 flush valve. H.C. stalls to
have white #9468.018 water closet with ▇▇▇▇▇ Royal #115.3 flush valve.
▇. ▇▇▇▇▇▇, white American Standard "Washbrook" #6501.010 with ▇▇▇▇▇ Royal
#186 flush valve.
C. Lavatory, American Standard with faucet #0355.027 and drain #2103.786.
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D. Recessed towel dispenser/waste receptacle, Bobrick #B3944.
E. Surface mounted seat cover dispenser, Bobrick.
F. Surface mounted toilet tissue dispenser, Bobrick #B2740.
▇. ▇▇▇▇, Bobrick #B8682.
▇. ▇▇▇▇ bars, Bobrick #B6806, 36" and 42".
I. Toilet partitions, Bobrick 1080 series, plastic laminate, or
equivalent. Baked enamel floor-braced with coat hook/bumper.
▇. ▇▇▇▇▇▇ partitions, Bobrick 1085 "Duraline" series, or equivalent.
K. Recessed toilet room accessories, Bobrick B301, B3570 and B35704,
or equivalent.
8. HVAC
Gas-fired roof-mounted VAV system for cooling, heating and ventilation.
Designed and installed in accordance with the California Energy Act -
Title 24.
1. All cuts in roof to be properly sealed, flashed and hot
mopped.
9. ELECTRICAL
A. Designed and installed in accordance with the California Energy Act
- Title 24.
B. Power distributed as required by tenant for warehouse, assembly and
manufacturing equipment, appliance operation and special office
machinery shall be ceiling ▇▇▇▇ ▇.▇.▇.
▇. Warehouse/Manufacturing/Assembly Lighting. High Bay THS 150-watt
high pressure sodium light fixtures by Lithonia or equal in areas
with open ceiling. U.O.N. See tenant improvement drawings. T-bar
dropped ceilings 2' x 4' recessed mounted fluorescent fixtures with
light levels ranging from 15-75 foot candles as specified by Owner.
Fixtures same as for office lighting following.
D. Office lighting is 2' x 4' recessed mounted fluorescent fixtures,
Lithonia 2PM4G B3 40 18LS 120 or equal, approved by Owner, with
parabolic lens.
E. Downlights. Halo#117-1CT-331-P Coilex Baffle 7" O.D. trim.
F. Wallwashers. Halo#1176-T-425P Coilex Baffle with scoop trim 7" O.D.
G. Track Lights. Halo 120v single circuit power trac with Coilex
Continental lampholdes #L733P.1.
H. Wall-mounted fixture at restroom. Lithonia ▇▇▇▇▇▇▇ #W240-120A.
I. Other lighting as required by tenant or code.
J. Provide plates for all power outlets. Provide pull wires at all
telephone and cable (C.R.T.) pull locations as indicated on plan.
K. Illuminated exit signs as required by tenant or code.
L. Emergency Lighting as required by code.
10. FINISHES/SPECIALTIES
A. Special office wall or floor finishes. See tenant improvement
drawings or specifications.
B. Lunch room, conference room, coffee or wet bar cabinetry and
plumbing. See tenant improvement drawings.
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EXHIBIT B-3
MOVEABLE EQUIPMENT AND TRADE FIXTURES
Moveable Equipment & Trade Fixtures includes:
Lienable and Removable Items
1. Special Devises used in Research Activities for the Following Processes:
a) Storage
b) Analysis
c) Synthesis
d) Measurement
e) Chemical, Biological, or Physical Manipulation
f) Drug Screening Equipment
g) Clinical Assays
h) Information Systems
2. computers
3. Computer Terminals and Printers
4. Computer Network
5. Microwave Antennas
6. Telephone Sets, Operator Switchboards
7. Modular Prefabricated Enclosures (▇▇▇▇ & Warm Rooms)
8. Security System Controls
9. Cylinders, Tanks, Batteries and Other Equipment for Generating or
Supplying the Following Services to the Basic Building Systems (Other Than
Electrical and HVAC);
a) Laboratory Compressed Air
b) Nitrogen
c) Carbon Dioxide Oxygen
d) Other Gases
e) Process Steam
f) Vacuum
g) Distilled Water
h) Deionized Water
i) Supplemental Process
i) Refrigeration
ii) Heating
j) Emergency Generator
k) Non-Standard Frequency and Voltage Electricity
10. Architectural
a) Window Coverings
b) Lab Casework, Counters, and Shelving
11. Electrical
a) Telephone Terminal Backboard & Cabinet
b) Telephone Conduit, Wiring Outlets and Cover Plates
c) Computer Conduit, Wiring Outlets and Cover Plates
d) Motor Generator
e) Security System Wiring
f) Critical Conditioning Monitoring Equipment
12. Mechanical - HVAC
a) Hoods
b) Hood Exhaust Duct Work
c) Hepafilters
13. Mechanical - Plumbing
a) Distribution Lines, Connections and cover Plates for process Gases
and Fluids such as Carbon Dioxide, Nitrogen, Oxygen, Freon and
Distilled and Deionized Water
b) Sinks and Fixtures
c) Equalization Vault and All Interior Components
d) Vacuum Piping
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EXHIBIT C
INITIAL PROJECT SPECIFICATIONS
GENERAL DESCRIPTION
- Two story concrete tilt-up construction.
- Clear heights of approximately 13'6" on the top floor and 14'6" on the
bottom floor.
- Bay spacing of 30' x 30' on the top and bottom floors.
BUILDING STRUCTURE
- All foundations to include footings, foundation walls or other
building foundation components required to support the entire building
structure.
- Columns shall be steel box.
- All columns, beams, joists, purlins, headers, or other framing members
to support the roof, roofing membrane and stair openings.
- Ten inch (10") thick structural concrete slab on grade with #4
reinforcing bars at 18" on center and #6 reinforcing bars at 13" on
center.
- Two and a half (2-1/2") thick concrete slab over metal deck supported
by structural open web and columns.
- Exterior walls that enclose the perimeter of the building with steel
reinforcing and structural connections that may be necessary or
required.
- All exterior glass and glazing with painted aluminum frames. Glass to
be tinted as appropriate to the aesthetic design of the building. All
exterior doors, door closer and locking devices necessary for proper
functioning.
- Hybrid Vulcraft panel roof system to support roofing membrane.
- Four (4) ply built-up roofing (including a base sheet, two plys and a
cap sheet) and all flashings by ▇▇▇▇▇-▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, or
equal.
- Painting of all concrete with Tex-Coat or Kel-Tex textural paint. All
caulking of exterior concrete joint in preparation for painting.
- The foundation and structural framing should be designed to support a
minimum live load of 100 pounds per square foot in all areas on top
floor and 125 pounds on bottom floor.
- The floor-to-floor height of the building shall allow a minimum of
10'0" interior drop ceiling height.
- Roof hatch and ladder within each building.
- One (1) 3,500 lb. capacity elevator.
- Three (3) interior stairs consisting of stair assemblies with metal
handrails to be provided f.o.b. at job site.
PLUMBING
- Underground sanitary sewer laterals connected to the city sewer main,
the street and piped into the building and under the concrete slab on
grade for the length of the building. Sewer lines to consist of a four
inch (4") sanitary sewer line and a four inch (4") biowaste sewer
line. Sanitary sewer line under the slabs will be in a close proximity
to the building restroom locations.
- Domestic water mains connected to the city water main in the street
and stubbed to the building. Water main to the building shall be three
inches (3") in size with a three inch (3") supply line.
- Roof drain leaders piped and connected to the site storm drainage
systems. Overflow drains daylight two inches (2") above grade.
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ELECTRICAL
- Gas lines connected from the city public utility mains and gas meters
adjacent to, and in close proximity to the building. Meters supplied
by utility company.
- All primary electrical service to the building that is complete
including underground conduit and wire feeders from transformers pads
into the building's main switchgear electrical room. The electrical
characteristics of the secondary side of the transformers shall be
277/480 volt, 3 Phase and the rated capacity of the transformers shall
be 2,000 amps for each building.
- Underground pull section, meter, and panel(s), for site lighting and
landscaping.
- An electrically operated landscape irrigation controller that is a
complete and functioning system.
- Underground conduit from the building to the main fire protection
system, shut off valve (PIV) for installation for security alarm
wiring.
- All parking lot and landscaping lighting to include fixtures,
underground conduit, wire distribution panel and controller. All
exterior lighting shall be a complete and functioning system.
FIRE PROTECTION
- A complete and fully functional overhead automatic fire sprinkler
system distributed throughout the building with a density of .2/3000.
- System shall include all sprinkler heads that may be required by
building codes above the ceiling, when ceilings are installed.
LOADING
- Two (2) grade level 10' x 12' roll-up doors per building.
SITEWORK
- All work outside the building perimeter walls shall be considered site
work for the building shell and shall include grading, asphalt,
concrete, paving, landscaping (hard and soft), landscape and
irrigation, storm drainage, utility service laterals, curbs, buffers,
sidewalks, specialty paving (if required), retaining walls, fencing
and gates, trash enclosures, planters, parking lot and landscape
lighting and other exterior lighting per code.
- Paving sections for automobile and truck access shall be according to
the Geological Soils Report.
- All parking lot striping to include handicap signage and spaces.
- Underground site storm drainage system shall discharge to the San
Francisco Bay via an existing 24" storm drain connected to the city
storm system main.
EXCLUSIONS
The following items are not included in the building shell:
- Roof screen.
- Proof loading roof for mechanical equipment.
- Deck penetrations for mechanical equipment.
- Caulking of interior concrete joints.
- Framing and finishes for interior stairs.
- Electrical panels and distribution.
- Security system.
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EXHIBIT D
TENANT ESTOPPEL CERTIFICATE
TO: ▇▇▇▇▇▇▇▇ ▇▇▇▇ Northern California Development, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇. ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
THIS IS TO CERTIFY:
1. That the undersigned is the Tenant under that certain Lease dated
______________, and, if applicable, amended on _____________, by and between
__________________ ("Landlord"), and the undersigned ("Tenant") covering those
certain premises located as shown on the drawing made part of the Lease (the
"Premises").
2. That said Lease is in full force and effect and, except as noted in
Paragraph 1, above, has not been modified, changed, altered or amended in any
respect, and is the only lease or agreement between the Tenant and the Landlord
affecting the Premises.
3. To the best of ▇▇▇▇▇▇'s knowledge, the information set forth below is
true and correct:
(a) Square footage of the Premises: __________________________________
(b) Annual rent as of the Commencement of Lease: $____________________
(c) Current annual rent (if different that at commencement): $________
(d) Commencement date of Lease: ______________________________________
(e) Lease termination date: __________________________________________
(f) Rent paid to and including: ______________________________________
(g) Security deposit: $_______________________________________________
(h) Prepaid rent for and in amount of $_______________________________
(i) Free rent period: ______________________ to ______________________
(j) Amount of current monthly escrow payment obligations with respect
to taxes, insurance, and Common Area Maintenance charges under the
Lease:
Taxes: $_____________________________
Insurance: $_____________________________
Common Area Maintenance Charges: $_____________________________
(k) Dates through which Tenant has paid monthly escrow payments and
Common Area Maintenance charges:
Escrow Payment for Taxes: ______________________
Escrow Payment for Insurance: ______________________
Common Area Maintenance Charges: ______________________
4. DELETE IF TENANT HAS NOT OCCUPIED THE PREMISES: Tenant now occupies
the Premises, accepts the Premises in their current condition subject only to
those punch list items listed in Exhibit A, if any, and is not aware of any
defect in the Premises except as described in Exhibit A, if any.
5. DELETE IF TENANT HAS OCCUPIED THE PREMISES: Tenant does not occupy
the Premises. The status of the plans and specifications for and the
construction of Tenant Improvements is described in Exhibit A. Tenant is
familiar with the Tenant Improvement work done to date and is not aware of any
defect in such work, except as described in Exhibit A.
6. No rent has been paid in the current month other than as disclosed in
Paragraph 3. No free rent or other concessions, benefits, or inducements other
than as specified in the Lease have been granted to Tenant or undertaken by the
Landlord.
7. Tenant has not been granted any renewal, expansion, purchase options
or any rights of first refusal, except as disclosed in writing in the Lease.
8. Neither Tenant nor to the best of Tenant's knowledge, Landlord is in
breach of the Lease and there has not occurred any event, act, omission or
condition which by notice or lapse of time or both or otherwise, will result in
any breach by Tenant or to the best of Tenant's knowledge, by Landlord. As of
the date hereof and except as set forth in the Lease, the undersigned is
entitled to no credit, offset or deduction in rent. Tenant knows of no
liabilities or obligations of Landlord which have accrued but are unsatisfied
under the Lease as of the date of this Certificate.
9. To the best of Tenant's knowledge, there are no actions, whether
voluntary or otherwise, pending against the undersigned under the bankruptcy
laws for the relief of debtors of the United States or any state thereof.
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10. With the execution of this Lease and except as otherwise disclosed in
writing to Landlord, neither the Tenant nor any affiliate of the Tenant is a
tenant under a lease or any other tenancy arrangement (i) with (a) ________;
(b)________; (c) ________; or (iii) involving any property in which the
entities named in clauses (___), (___) or (___) are known by the Tenant to have
an ownership interest.
DATED this ___ day of ________, 19___.
TENANT:
----------------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Its:
------------------------------------
(Tenant to attach Exhibit A to Tenant Estoppel Certificate, List of
Defects, if necessary.)
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EXHIBIT E
RULES AND REGULATIONS
FOR TENANT'S CONTRACTOR(S)
1. ▇▇▇▇▇▇'s contractor will be responsible for making arrangements with
Landlord as to time for the use of Building and equipment such as
elevators and loading areas. The delivery of materials, equipment and
supplies to the Building or Premises must be coordinated with Landlord at
least two (2) business days prior to delivery. The Building debris box is
not to be used for waste produced by ▇▇▇▇▇▇'s contractor.
2. ▇▇▇▇▇▇'s contractor shall not interfere with the Landlord's contractor and
sub-trades in any way and will cooperate fully with same.
3. All Tenant's contractor's waste and debris must be removed from the
Premises and Building regularly and promptly. All combustible waste and
debris must be stored in a covered, fire-proof container prior to removal.
4. Tenant's contractor and sub-trades shall take all precautions to ensure
the security and the site condition of the Premises and Building in which
the work is being performed, including their own tools, equipment and
materials, and are responsible for any damage caused by employees and
sub-trades to any part of the Building or Premises.
5. Tenant's contractor shall remove and properly replace underfloor duct
access covers as required for Tenant's trades and services. Any damage to
underfloor duct access coverings shall be repaired or replaced by ▇▇▇▇▇▇'s
contractor to the satisfaction of Landlord.
6. Tenant's contractor must provide their own fire protection equipment, have
same on premises at all times and conform to any requirements of
Landlord's contractor regarding fire protection.
7. Tenant's contractor shall carry out all work in compliance with all
Federal, State, County and City Building Codes and applicable Acts,
Ordinances and Statutes.
8. Tenant's contractor shall provide all their own protective devices and
coverings, so as to protect the Building finishes provided by Landlord in
the Building.
9. No attachments to or use of window frames and mullions, ceiling systems,
glass, ceiling frame or Building frame, will be permitted without the
expressed written consent of Landlord.
10. All Tenant's contractors, employees and trades must be confined to the
area in which work is being performed.
11. Tenant or ▇▇▇▇▇▇'s contractor shall carry builder's risk insurance with
limits of not less than the amount requested by Landlord, insurance
covering loss or damage to the work during the course of construction;
worker's compensation/employer's liability insurance covering all
employees of contractor and subcontractor. All such policies shall name
Landlord and ▇▇▇▇▇▇ as additional insureds. A certificate of insurance
must be provided to Landlord prior to commencement of work.
12. Any construction, alteration, maintenance, repair, replacement, removal
or decoration undertaken by Tenant's contractor shall be carried out in a
good, workmanlike, and prompt manner, shall comply with applicable
statutes, laws, ordinances, regulations, rules, orders and requirements of
the authorities having jurisdiction thereof, and shall be subject to
supervision by Landlord or its employees, agents, or contractors. All
construction shall be performed in a timely manner without delays or
interruptions.
13. Tenant's contractors shall not use excessive quantities of electricity or
water and shall not shut off any water, electricity, sprinkler systems or
other services without first obtaining Landlord's express authorization.
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EXHIBIT F
DISCLOSED HAZARDOUS MATERIALS LIST
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EXHIBIT G
AGREEMENT REGARDING SHELL MODIFICATIONS
As set forth in Exhibit B-1 to this Lease, Landlord is to complete and pay for
all costs involved in certain construction ("Landlord's Work"). Landlord's Work
includes the construction of a building shell more particularly described in
Exhibit C and Exhibit C-1 to the Lease ("Initial Project Specifications").
▇▇▇▇▇▇▇▇'s Work is to be completed through Landlord's general contractor, South
Bay Construction ("Contractor"). Tenant desires to have Landlord modify certain
items set forth in the Initial Project Specifications ("Modifications").
Regarding such Modifications, Landlord and ▇▇▇▇▇▇ hereby agree to the following
terms and conditions:
1. During ▇▇▇▇▇▇▇▇'s construction of ▇▇▇▇▇▇▇▇'s Work Tenant may request
in writing ("Proposal") Modifications to the Initial Project Specifications
which Tenant desires. Landlord shall have the right to approve or to disapprove
each Proposal in Landlord's sole and absolute discretion. In the event Landlord
approves some or all of the proposed Modifications, Landlord shall have
Contractor estimate the cost of such Modifications, which cost shall be
presented in writing to Tenant for Tenant's review and written approval.
Tenant's failure to approve or disapprove the estimated cost of the approved
Modifications within five (5) calendar days after receipt of the estimate shall
be conclusively deemed a disapproval.
2. Tenant shall be solely responsible for and pay to Landlord: (a) all
costs reasonably incurred by Landlord for Landlord's review of a Tenant
Proposal, including, but not limited to, any architectural, engineering and
consulting costs incurred by Landlord or Contractor to define the scope and/or
estimate the costs of any Modifications proposed by Tenant (such costs shall be
paid by Tenant whether the Proposal is approved or disapproved by Landlord and
regardless of whether Tenant approves or disapproves the estimated cost of the
proposed Modifications); (b) the actual increase in cost as a result of
constructing the approved Modifications; (c) a fee for the Contractor's
overhead and profit per Landlord's construction contract with Contractor; and
(d) all other costs and expenses reasonably incurred by Landlord in connection
with the review, approval, and construction of the Modifications, including,
but not limited to, permit fees and change order costs (collectively, the
Modification Costs"). Tenant shall pay the Modification Costs within ten (10)
days after Landlord submits to Tenant an invoice thereof, provided that
Landlord shall not submit an invoice for any Modifications Costs until Landlord
has been billed for such Cost. Landlord may invoice the Modifications Costs for
any Proposal in one or more separate invoices in Landlord's discretion.
Tenant's failure to pay the invoiced Modifications Costs in full within the
time prescribed above shall constitute an Event of Default by Tenant under
Section 26A(2) of this Lease and in such case Landlord shall be entitled to all
of its remedies under this Lease in addition to its remedies at law as a result
of such failure to pay.
3. Landlord and ▇▇▇▇▇▇ acknowledge that review of Proposals and construction
of proposed Modifications could delay construction of the Landlord's Work and,
consequently, the date on which Landlord grants permission to Tenant to
commence construction of Tenant's Work pursuant to Section 3 of this Lease.
Landlord and Tenant hereby agree that any such delay shall be a "Tenant Delay"
for the purposes of this Lease, and, in particular, for purposes of Section 3
of the Lease. For purposes of determining the number of days of such ▇▇▇▇▇▇
▇▇▇▇▇, Landlord and ▇▇▇▇▇▇ agree that the good faith joint determination
thereof by ▇▇▇ ▇▇▇▇▇ (of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Architects) and ▇▇▇▇▇▇▇ ▇▇▇▇▇ (of WHL
Architects), Landlord's and Tenant's architects, respectively, shall be
conclusive and binding on both Landlord and ▇▇▇▇▇▇.
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