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Exhibit
10.16
File No.
INDUSTRIAL SPACE
LEASE
(SINGLE TENANT
NET)
THIS LEASE, dated
October 12, 2006, for reference purposes only, is made
by and between: the Neidig Family Trust U/D/T July 25,
1986 (“Landlord”), and Virage Logic, a
California Corporation (“Tenant”), to be effective and
binding upon the parties as of the date the last of the designated
signatories to this Lease shall have executed this Lease (the
“Effective Date of this Lease”).
ARTICLE 1
REFERENCES
1.1
REFERENCES: All references in this Lease (subject to any
further clarifications contained in this Lease) to the following
terms shall have the following meaning or refer to the respective
address, person, date, time period, amount, percentage, calendar
year or fiscal year as below set forth:
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A.
Tenant’s Address for Notices:
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47100
Bayside Parkway
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Fremont,
California 94538
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B.
Tenant’s Representative:
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Ms. Christine Russell
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Phone Number:
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510.360.8000
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C.
Landlord’s Address for Notices:
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615
National Avenue,
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Mountain View, California 94043
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D.
Landlord’s Representative:
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William
Neidig Email Neidig@riverii.com
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Phone Number:
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650.428.1400
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E.
Commencement Date:
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The
earlier of January 1, 2007 or the expiration of the existing lease
with Ciena Corporation, Tenant’s current
sublessor.
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F.
Term:
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One (1)
Year
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G. Lease
Expiration Date:
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December
31, 2007
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H.
Tenant’s Punchlist Period:
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“As Is” Tenant takes the Property in its
currently existing condition as Tenant is currently in occupancy as
the subtenant of Ciena Corporation.
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I. First
Month’s Prepaid Rent:
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Forty
One Thousand Six Hundred Seventy Dollars
($41,670.00)
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J. Last
Month’s Prepaid Rent:
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None
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K.
Tenant’s Security Deposit:
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Forty
One Thousand Six Hundred Seventy Dollars
($41,670.00)
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L. Late
Charge Amount:
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Ten (10%)
Percent of the late amount
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M.
Tenant’s Required Liability Coverage:
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Three
Million ($3,000,000.00) Dollars single limit
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N.
Brokers:
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Cornish
& Carey Commercial
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O. Property or Project: That
certain real property, situated in the City of Fremont, County of
Alameda, State of California, as presently improved with one
building, which real property is shown on the Site Plan attached
hereto as Exhibit “A” and is commonly known as or
otherwise described as follows:
A building
identified as Renco 50 located at 47100 Bayside Parkway in Fremont,
California
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P. Buildings: Those
certain Buildings located on the Property, which Buildings are
shown outlined in red on Exhibit “B” hereto.
Q. Outside Areas:
The “Outside Areas” shall mean all areas within the
Property which are located outside the buildings, such as covered
and uncovered walkways, parking areas, landscaped areas, open areas
and enclosed trash disposal areas.
R. Leased Premises:
All of the space which is located within the Building, consisting
of approximately 61,454 square feet of gross leaseable area and,
for purposes of this Lease, agreed to contain said number of square
feet measuring to the outside edge of the outside walls and drip
lines, including the electrical room and other common spaces and,
for purposes of this Lease, agreed between Landlord and Tenant to
contain said number of square feet.
S. Base Monthly
Rent: The term “Base Monthly Rent” shall mean the
following monthly sums:
The initial Base Monthly
Rent shall be Forty One Thousand Six Hundred Seventy Dollars
($41,670.00). This is based on Tenant having approximately one
hundred thirty five (135) employees using the Premises on a
regular basis. Tenant shall report to Landlord the Tenant’s
employee headcount on a monthly basis. When Tenant’s
headcount exceeds one hundred seventy (170) employees, then
the Base Monthly Rent shall increase by two hundred fifty dollars
($250.00) for each additional employee above one hundred seventy
(170). For purposes of this section employees shall include
contract workers and any individual retained to perform a service
for Tenant on a regular basis whether such individual is legally
employed by Tenant or by a third party so long as the
individual’s principal responsibility is performing a service
for Tenant while located on the Premises. The Base Monthly Rent
shall not decrease below the initial Base Monthly Rent nor shall
the Base Monthly Rent decrease once it has
increased.
T. Permitted Use:
The term “Permitted Use” shall mean the
following:
The design, assembly, repair,
sale, and distribution of small electronic parts and components,
general office and support functions, and for no other
purpose.
U. Exhibits: The
term “Exhibits” shall mean the Exhibits to this Lease
which are described as follows;
Exhibit
“A” Site Plan showing the
Property and delineating the Building in which the Leased Premises
are located.
Exhibit
“B” Floor Plan outlining the
Leased Premise
Exhibit
“D” Acceptance
Agreement
V. Addenda: The
term “Addenda” shall mean the Addendum (or Addenda) to
this Lease which is (or are) described as follows:
First
Addendum to Lease
ARTICLE 2:
LEASED PREMISES, TERM AND
POSSESSION
2.1 DEMISE OF
LEASED PREMISES: Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord for Tenant’s own use in the
conduct of Tenant’s business and not for purposes of
speculating in real estate, for the Lease Term and upon the terms
and subject to the conditions of this Lease, that certain interior
space described in Article I as the Leased Premises, reserving and
excepting to Landlord the exclusive right to all profits to be
derived from any assignments or sublettings by Tenant during the
Lease Term by reason of the appreciation in the fair market rental
value of the Leased Premises. Tenant’s lease of the Leased
Premises, together with the appurtenant right to use the Outside
Areas as described in Article 2.2 below, shall be conditioned upon
and be subject to the continuing compliance by Tenant with
(i) all the terms and conditions of this Lease, (ii) all
Laws governing the use of the Leased Premises and the Property,
(iii) all Private Restrictions, easements and other matters
now of public record respecting the use of the Leased Premises and
the Property, and (iv) all reasonable rules and regulations
from time to time established by Landlord.
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2.2 RIGHT TO USE
OUTSIDE AREAS: As an appurtenant right to Tenant’s right
to the use and occupancy of the Leased Premises, Tenant shall have
the right to use the Outside Areas in conjunction with its use of
the Leased Premises solely for the purposes for which they were
designed and intended and for no other purposes whatsoever.
Tenant’s right to so use the Outside Areas shall be subject
to the limitations on such use as set forth in Article 4 and shall
terminate concurrently with any termination of this
Lease.
2.3 LEASE
COMMENCEMENT DATE AND LEASE TERM: The term of this Lease shall
begin, and the Lease Commencement Date shall be deemed to have
occurred, on the earlier of the termination of the existing
Ciena lease or January 1, 2007. The term of the Lease
shall end on the Lease Expiration Date (as set forth in Article I),
irrespective of whatever date the Lease Commencement Date is
determined to be pursuant to the foregoing sentence. The Lease Term
shall be that period of time commencing on the Lease Commencement
Date and ending on the Lease Expiration Date (the “Lease
Term”).
2.4 DELIVERY OF
POSSESSION: Tenant is currently in possession of the Premises by
virtue of a sublease with Ciena Corporation. If Landlord is
unable to deliver possession of the Leased Premises in the agreed
condition to Tenant within the described delivery grace period
(including any extensions thereof by reason of Force Majeure or the
actions of Tenant), then Tenant’s sole remedy shall be to
cancel and terminate this Lease, and in no event shall Landlord be
liable in damages to Tenant for such delay. Tenant may not cancel
this Lease at any time after the date Landlord notifies Tenant that
the Leased Premises have been put into the agreed condition and are
Ready for Occupancy.
2.5 ACCEPTANCE
OF POSSESSION: Tenant has accepted possession of the Premises in
its condition as of the commencement of the Ciena lease which was
December 6, 1999 (this is pursuant to the Ciena
sublease).
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2.6 SURRENDER OF
POSSESSION: Immediately prior to the expiration or upon the
sooner termination of this Lease, Tenant shall remove all of
Tenant’s signs from the exterior of the Building and shall
remove all of Tenant’s equipment, trade fixtures, furniture,
supplies, wall decorations and other personal property from the
Leased Premises, and shall vacate and surrender the Leased Premises
to Landlord in the same condition existing as of
December 6, 1999 which is the date Ciena Corporation
accepted possession of the Premises (Tenant’s current
sublease requires Tenant to return the Premises to the condition
existing as of that date and Tenant acknowledges that this same
obligation continues with this Lease), broom clean. Tenant
shall repair all damage to the Leased Premises caused by
Tenant’s removal of Tenant’s property and all damage to
the exterior of the Building caused by Tenant’s removal of
Tenant’s signs. Tenant shall patch and refinish, to
Landlord’s reasonable satisfaction, all penetrations made by
Tenant or its employees to the floor, walls or ceiling of the
Leased Premises, whether such penetrations were made with
Landlord’s approval or not. Tenant shall clean, repair or
replace all stained or damaged ceiling tiles, wall coverings and
clean or replace as may be required floor coverings to the
reasonable satisfaction of Landlord. Tenant shall replace all
burned out light bulbs and damaged light lenses, and clean and
repaint all painted walls. Landlord shall retain a mechanical
contractor at Tenant’s expense to service all heating,
ventilating, and air-conditioning equipment, and Tenant shall pay
the cost for the service and the cost to restore (or replace as
required) said equipment to good working order. Tenant shall pay
the cost of restoring or replacing all trees, shrubs, plants, lawn
and ground cover, and repair (or replace as required) all paved
surfaces of the Property, and otherwise satisfy all requirements to
repair any damage or excessive wear to the Leased Premises,
Building, Outside Areas, and/or Property. Tenant shall repair all
damage caused by Tenant to the exterior surface of the Building and
the paved surfaces of the outside areas adjoining the Leased
Premises and, where necessary, replace or resurface same.
Additionally, Tenant shall, prior to the expiration or sooner
termination of this Lease, remove any improvements constructed or
installed by Tenant (or Tenant’s predecessor Ciena
Corporation) which Landlord requests be so removed by Tenant
and repair all damage caused by such removal. If the Leased
Premises are not surrendered to Landlord in the condition required
by this Article at the expiration or sooner termination of this
Lease, Landlord may, at Tenant’s expense, so remove
Tenant’s signs, property and/or improvements not so removed
and make such repairs and replacements not so made or hire, at
Tenant’s expense, independent contractors to perform such
work. Tenant shall be liable to Landlord for all costs incurred by
Landlord in returning the Leased Premises to the required
condition, plus interest on all costs incurred from the date paid
by Landlord at the then maximum rate of interest not prohibited by
Law until paid, payable by Tenant to Landlord within ten days after
receipt of a statement therefore from Landlord, and Tenant shall be
deemed to have impermissibly held over until such time as such
required work is completed, and Tenant shall pay Base Monthly Rent
and Additional Rent in accordance with the terms of
Section 13.2 (Holding Over) until such work is completed.
Tenant shall indemnify Landlord against loss or liability resulting
from delay by Tenant in so surrendering the Leased Premises,
including, without limitation, any claims made by any succeeding
tenant or any losses to Landlord due to lost opportunities to lease
to succeeding tenants.
2.7 EARLY
OCCUPANCY: If Tenant enters into possession of the Leased
Premises prior to the Intended Commencement Date (or permits its
contractors to enter the Leased Premise prior to the Intended
Commencement Date), unless otherwise agreed in writing by Landlord,
the Lease Commencement Date shall be deemed to have occurred on
such sooner date, and Tenant shall be obligated to perform all its
obligations under this Lease, including the obligation to pay rent,
from that sooner date.
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ARTICLE 3:
RENT, LATE CHARGES AND
SECURITY DEPOSITS
3.1 BASE MONTHLY
RENT: Commencing on the Lease Commencement Date (as determined
pursuant to Article 2.3 above) and continuing throughout the Lease
Term, Tenant shall pay to Landlord, without prior demand therefore,
in advance on the first day of each calendar month, as base monthly
rent, the amount set forth as “Base Monthly Rent” in
Article 1 (the “Base Monthly Rent”).
3.2 ADDITIONAL
RENT: Commencing on the Lease Commencement Date (as determined
pursuant to Article 2.3 above) and continuing throughout the Lease
Term, in addition to the Base Monthly Rent, Tenant shall pay to
Landlord as additional rent (the “Additional Rent”) the
following amounts:
A. An amount equal
to all Property Operating Expenses (as defined in Article 13)
incurred by Landlord. Payment shall be made by whichever of the
following methods (or combination of methods) is (are) from time to
time designated by Landlord:
(1) Landlord may
bill to Tenant, on a periodic basis not more frequently than
monthly, the amount of such expenses (or group of expenses) as paid
or incurred by Landlord, and Tenant shall pay to Landlord the
amount of such expenses within ten days after receipt of a written
bill therefore from Landlord; and/or
(2) Landlord may
deliver to Tenant Landlord’s reasonable estimate of any given
expense (such as Landlord’s Insurance Costs or Real Property
Taxes), or group of expenses, which it anticipates will be paid or
incurred for the ensuing calendar or fiscal year, as Landlord may
determine, and Tenant shall pay to Landlord an amount equal to the
estimated amount of such expenses for such year in equal monthly,
installments during such year with the installments of Base Monthly
Rent.
(3) Landlord
reserves the right to change from time to time the methods of
billing Tenant for any given expense or group of expenses or the
periodic basis on which such expenses are billed.
B. Landlord’s
share of the consideration received by Tenant upon certain
assignments and sublettings as required by Article 7;
C. Any legal fees
and costs that Tenant is obligated to pay or reimburse to Landlord
pursuant to Article 13; and
D. Any other
charges or reimbursements due Landlord from Tenant pursuant to the
terms of his Lease other than late charges and interest on
defaulted rent.
3.3 YEAR-END
ADJUSTMENTS: If Landlord shall have elected to bill Tenant for
the Property Operating Expenses (or any group of such expenses) on
an estimated basis in accordance with the provisions of Article
3.2A(2) above, Landlord shall furnish to Tenant within three months
following the end of the applicable calendar or fiscal year, as the
case may be, a statement setting forth (i) the amount of such
expenses paid or incurred during the just ended calendar or fiscal
year, as appropriate, and (ii) the amount that Tenant has paid
to Landlord for credit against such expenses for such period. If
Tenant shall have paid more than its obligation for such expenses
for the stated period, Landlord shall, at its election, either
(i) credit the amount of such overpayment toward the next
ensuing payment or payments of Additional Rent that would otherwise
be due or (ii) refund in cash to Tenant the amount of such
overpayment. If such year-end statement shall show that Tenant did
not pay its obligation for such expenses in full, then Tenant shall
pay to Landlord the amount of such underpayment within ten days
from Landlord’s billing of same to Tenant. The provisions of
this Article shall survive the expiration or sooner termination of
this Lease.
3.4 LATE CHARGE
AND INTEREST ON RENT IN DEFAULT: Tenant acknowledges that the
late payment by Tenant of any monthly installment of Base Monthly
Rent or any Additional Rent will cause Landlord to incur certain
costs and expense not contemplated under this Lease, the exact
amounts of which are extremely difficult or impractical to fix.
Such costs and expenses will include, without limitation,
administration and collection
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costs and processing and
accounting expenses. Therefore, if any installment of Base Monthly
Rent is not received by Landlord from Tenant within six calendar
days after receipt of written notice that the same becomes
due, Tenant shall immediately pay to Landlord a late charge in an
amount equal to the amount set forth in Article 1 as the
“Late Charge Amount”, and if any Additional Rent is not
received by Landlord within six calendar days after receipt of
written notice that same becomes due, Tenant shall immediately
pay to Landlord a late charge in an amount equal to ten percent of
the Additional Rent not so paid. Landlord and Tenant agree that
this late charge represents a reasonable estimate of such costs and
expenses and is fair compensation to Landlord for the anticipated
loss Landlord would suffer by reason of Tenant’s failure to
make timely payment. In no event shall this provision for a late
charge be deemed to grant to Tenant a grace period or extension of
time within to pay any rental installment or prevent Landlord from
exercising any right or remedy available to Landlord upon
Tenant’s failure to pay each rental installment due under
this Lease when due, including the right to terminate this Lease.
If any rent remains delinquent for a period in excess of six
calendar days, then, in addition to such late charge, Tenant shall
pay to Landlord interest on any rent that is not so paid from said
sixth day at the then maximum rate of interest not prohibited or
made usurious by Law until paid.
3.5 PAYMENT OF
RENT: All rent shall be paid in lawful money of the United
States, without any abatement, reduction or offset for any reason
whatsoever, to Landlord at such address as Landlord may designate
from time to time. Tenant’s obligation to pay Base Monthly
Rent and all Additional Rent shall be appropriately prorated at the
commencement and expiration of the Lease Term. The failure by
Tenant to pay any Additional Rent as required pursuant to this
Lease when due shall be treated the same as a failure by Tenant to
pay Base Monthly Rent when due, and Landlord shall have the same
rights and remedies against Tenant as Landlord would have if Tenant
failed to pay the Base Monthly Rent when due.
3.6 PREPAID
RENT: Concurrent with the execution of this Lease, Tenant shall
pay to Landlord the amount set forth in Article I as First
Month’s Prepaid Rent” as prepayment of rent for credit
against the first installment(s) of Base Monthly Rent due
hereunder. Additionally, Tenant has paid to Landlord the amount set
forth in Article I as “Last Month’s Prepaid Rent”
as prepayment of rent for credit against the last installment(s) of
Base Monthly Rent due hereunder, subject, however, to the
provisions of Article 3.7 below.
3.7 SECURITY
DEPOSIT: Concurrent with the execution of this Lease, Tenant
shall deposit with Landlord the amount set forth in Article 1 as
the “Security Deposit” as security for the performance
by Tenant of the terms of this Lease to be performed by Tenant, and
not as prepayment of rent. Landlord may apply such portion or
portions of the Security Deposit as are reasonably necessary for
the following purposes: (i) to remedy any default by Tenant in
the payment of Base Monthly Rent or Additional Rent or a late
charge or interest on defaulted rent; (ii) to repair damage to
the Leased Premises, the Building or the Outside Areas caused by
Tenant; (iii) to clean and repair the Leased Premises, the
Building or the Outside Areas following their surrender to Landlord
if not surrendered in the condition required pursuant to the
provisions of Article 2; and (iv) to remedy any other default
of Tenant to the extent permitted by Law including, without
limitation, paying in full on Tenant’s behalf any sums
claimed by materialmen or contractors of Tenant to be owing to them
by Tenant for work done or improvements made at Tenant’s
request to the Leased Premises. In this regard, Tenant hereby
waives any restriction on the uses to which the Security Deposit
may be applied as contained in Section 1950.7(c) of the
California Civil Code and/or any successor statute. In the event
the Security Deposit or any portion thereof is so used, Tenant
shall pay to Landlord, promptly upon demand, an amount in cash
sufficient to restore the Security Deposit to the full original
sum. If Tenant fails to promptly restore the Security Deposit and
if Tenant shall have paid to Landlord any sums as “Last
Month’s Prepaid Rent”, Landlord may, in addition to any
other remedy Landlord may have under this Lease, reduce the amount
of Tenant’s Last Month’s Prepaid Rent by transferring
all or portions of such Last Month’s Prepaid Rent to
Tenant’s Security Deposit until such Security Deposit is
restored to the amount set forth in Article 1. Landlord shall not
be deemed a trustee of the Security Deposit. Landlord may use the
Security Deposit in Landlord’s ordinary business and shall
not be required to segregate it from its general accounts. Tenant
shall not be entitled to any interest on the Security Deposit. If
Landlord transfers the Building or the Property during the Lease
Term, Landlord may pay the Security Deposit to any subsequent owner
in conformity with the provisions of Section 1950.7 of the
California Civil Code and/or any successor statute, in which event
the transferring landlord shall be released from all liability for
the return of the Security Deposit. Tenant specifically grants to
Landlord (and Tenant hereby waives the provisions of California
Civil Code Section 1950.7 to the contrary) a period of sixty
days following a surrender of the Leased Premises by Tenant to
Landlord within which to return the Security Deposit (less
permitted deductions) to Tenant, it
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being agreed between Landlord
and Tenant that sixty days is a reasonable period of time within
which to inspect the Leased Premises, make required repairs,
receive and verify workmen’s billings therefore, and prepare
a final accounting with respect to such deposit. In no event shall
the Security Deposit, or any portion thereof, be considered prepaid
rent.
ARTICLE 4:
USE OF LEASED PREMISES AND
OUTSIDE AREA
4.1 PERMITTED
USE: Tenant shall be entitled to use the Leased Premises solely
for the “Permitted Use” as set forth in Article 1 and
for no other purpose whatsoever. Tenant shall use the Leased
Premises for such purpose for the entire Lease Term. Any
discontinuance of such use for a period of thirty consecutive
calendar days shall be, at Landlord’s election, a default by,
Tenant under the terms of this Lease. Tenant shall have the right
to use the Outside Areas in conjunction with its Permitted Use of
the Leased Premises solely for the purposes for which they were
designed and intended and for no other purposes
whatsoever.
4.2 GENERAL
LIMITATIONS ON USE: Tenant shall not do or permit anything to
be done in or about the Leased Premises, the Building, the Outside
Areas or the Property which does or could (i) jeopardize the
structural integrity of the Building or (ii) cause damage to
any part of the Leased Premises, the Building, the Outside Areas or
the Property. Tenant shall not operate any equipment within the
Leased Premises which does or could (i) injure, vibrate or
shake the Leased Premises or the Building, (ii) damage,
overload, corrode, or impair the efficient operation of any
electrical, plumbing, sewer, heating, ventilating or air
conditioning systems within or servicing the Leased Premises or the
Building or (iii) damage or impair the efficient operation of
the sprinkler system (if any) within or servicing the Leased
Premises or the Building. Tenant shall not install any equipment or
antennas on or make any penetrations of the exterior walls or roof
of the Building. Tenant shall not affix any equipment to or make
any penetrations or cuts in the floor, ceiling or walls of the
Leased Premises. Tenant shall not place any loads upon the floors,
walls, ceiling or roof systems which could endanger the structural
integrity of the Building or damage its floors, foundations or
supporting structural components. Tenant shall not place any
explosive, flammable or harmful fluids or other waste materials
including Hazardous Materials in the drainage systems of the Leased
Premises, the Building, the Outside Areas or the Property. Tenant
shall not drain or discharge any fluids in the landscaped areas or
across the paved areas of the Property. Tenant shall not use any of
the Outside Areas for the storage of its materials, supplies,
inventory or equipment, and all such materials, supplies, inventory
or equipment shall at all times be stored within the Leased
Premises. Tenant shall not commit nor permit to be committed any
waste in or about the Leased Premises, the Building, the Outside
Areas or the Property.
4.3 NOISE AND
EMISSIONS: All noise generated by Tenant in its use of the
Leased Premises shall be confined or muffled so that it does not
interfere with the businesses of or annoy the occupants and/or
users of adjacent properties. All dust, fumes, odors and other
emissions generated by Tenant’s use of the Leased Premises
shall be sufficiently dissipated in accordance with sound
environmental practices and exhausted from the Leased Premises in
such a manner so as not to interfere with the businesses of or
annoy the occupants and/or users of adjacent properties, or cause
any damage to the Leased Premises, the Building, the Outside Areas
or the Property or any component part thereof or the property of
adjacent property owners.
4.4 TRASH
DISPOSAL: Tenant shall provide trash bins (or other adequate
garbage disposal facilities) within the trash enclosure areas
provided or permitted by Landlord outside the Leased Premises
sufficient for the interim disposal of all of its trash, garbage
and waste. All such trash, garbage and waste temporarily stored in
such areas shall be stored in such a manner so that it is not
visible from outside of such areas, and Tenant shall cause such
trash, garbage and waste to be regularly removed from the Property
at Tenant’s sole cost. Tenant shall at all times keep the
Leased Premises, the Building, the Outside Areas and the Property
in a clean, safe and neat condition free and clear of all trash,
garbage, waste and/or boxes, pallets and containers containing same
at all times.
4.5 PARKING:
Tenant shall not, at any time, park or permit to be parked any
recreational vehicles, inoperative vehicles or equipment in the
Outside Areas or on any portion of the Property. Tenant agrees to
assume responsibility for compliance by its employees and invitees
with the parking provisions contained herein. If Tenant or its
employees park any vehicle within the Property in violation of
these provisions, then Landlord may, in addition to any other
remedies Landlord may have under this Lease, charge Tenant, as
Additional Rent, and Tenant agrees to pay, as Additional Rent,
Fifty Dollars per day for each day or partial day that each such
vehicle is so parked within the Property.
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4.6 SIGNS:
Other than one business identification sign which is first approved
by Landlord in accordance with this Article, Tenant shall not place
or install on or within any portion of the Leased Premises, the
exterior of the Building, the Outside Areas or the Property any
sign, advertisement, banner, placard, or picture which is visible
from the exterior of the Leased Premises. Tenant shall not place or
install on or within any portion of the Leased Premises, the
exterior of the Building, the Outside Areas or the Property any
business identification sign which is visible from the exterior of
the Leased Premises until Landlord shall have first approved in
writing the location, size, content, design, method of attachment
and material to be used in the making of such sign. Any sign, once
approved by Landlord, shall be installed only in strict compliance
with Landlord’s approval, at Tenant’s expense, using a
person first approved by Landlord to install same. Landlord may
remove any signs (which have not been first approved in writing by
Landlord), advertisements, banners, placards or pictures so placed
by Tenant on or within the Leased Premises, the exterior of the
Building, the Outside Areas or the Property and charge to Tenant
the cost of such removal, together with any costs incurred by
Landlord to repair any damage caused thereby, including any cost
incurred to restore the surface upon which such sign was so affixed
to its original condition. Tenant shall remove all of
Tenant’s signs, repair any damage caused thereby, and restore
the surface upon which the sign was afixed to its original
condition, all to Landlord’s reasonable satisfaction, upon
the termination of this Lease.
4.7 COMPLIANCE
WITH LAWS AND PRIVATE RESTRICTIONS: Tenant shall abide by and
shall promptly observe and comply with, at its sole cost and
expense, all Laws and Private Restrictions respecting the use and
occupancy of the Leased Premises, the Building, the Outside Areas
or the Property including, without limitation, all Laws governing
the use and/or disposal of hazardous materials, and shall defend
with competent counsel, indemnify and hold Landlord harmless from
any claims, damages or liability resulting from Tenant’s
failure to do so. The indemnity provision of this Article shall
survive the expiration or sooner termination of this Lease, with
respect to any activities of Tenant occurring on or about the
Property while Tenant was in possession of the Leased
Premises.
4.8 COMPLIANCE
WITH INSURANCE REQUIREMENTS: With respect to any insurance
policies required or permitted to be carried by Landlord in
accordance with the provisions of this Lease, Tenant shall not
conduct (or permit any other person to conduct) any activities nor
keep, store or use (or allow any other person to keep, store or
use) any item or tiling within the Leased Premises, the Building,
the Outside Areas or the Property which (i) is prohibited
under the terms of any of such policies, (ii) could result in
the termination of the coverage afforded under any of such
policies, (iii) could give to the insurance carrier the right
to cancel any of such policies, or (iv) could cause an
increase in the rates (over standard rates) charged for the
coverage afforded under any of such policies. Tenant shall comply
with all requirements of any insurance company, insurance
underwriter, or Board of Fire Underwriters which are necessary to
maintain, at standard rates, the insurance coverages carried by
either Landlord or Tenant pursuant to this Lease.
4.9
LANDLORD’S RIGHT TO ENTER: Landlord and its agents shall
have the right to enter the Leased Premises during normal business
hours after giving Tenant reasonable notice and subject to
Tenant’s reasonable security measures for the purpose of
(i) inspecting the same; (ii) showing the Leased Premises
to prospective purchasers, mortgagees or tenants; (iii) making
necessary alterations, additions or repairs; (iv) performing
any of Tenant’s obligations when Tenant has failed to do so.
Landlord shall have the right to enter the Leased Premises during
normal business hours (or as otherwise agreed), subject to
Tenant’s reasonable security measures, for purposes of
supplying any maintenance or services agreed to be supplied by
Landlord. Landlord shall have the right to enter the Outside Areas
during normal business hours for purposes of (i) inspecting
the exterior of the Building and the Outside Areas,
(ii) posting notices of non-responsibility, or “For
Lease” of “For Sale” signs, and
(iii) supplying any services to be provided by Landlord. Any
entry into the Leased Premises or the Outside Areas obtained by
Landlord in accordance with this Article shall not under any
circumstances be construed or deemed to be a forcible or unlawful
entry into, or a detainer of, the Leased Premises, or an eviction,
actual or constructive of Tenant from the Leased Premises or any
portion thereof.
4.10 USE OF
OUTSIDE AREAS: Tenant, in its use of the Outside Areas, shall
at all times keep the Outside Areas in a safe condition free and
clear of all materials, equipment, debris, trash (except within
existing enclosed trash areas), inoperable vehicles, and other
items which are not specifically permitted by Landlord to
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stored or located thereon by
Tenant. If, in the opinion of Landlord, unauthorized persons are
using any of the Outside Areas by reason of, or under claim of, the
express or implied authority or consent of Tenant, then Tenant,
upon demand of Landlord, shall restrain, to the fullest extent then
allowed by Law, such unauthorized use, and shall initiate such
appropriate proceedings as may be required to so restrain such
use.
4.11 RULES AND
REGULATIONS: Landlord shall have the right from time to time to
establish reasonable rules and regulations and/or amendments or
additions thereto resulting the use of the Leased Premises and the
Outside Areas for the care and orderly management of the Property.
Upon delivery to Tenant of a copy of such rules and regulations or
any amendments or additions thereto, Tenant shall comply with such
rules and regulations. A violation by Tenant of any of such rules
and regulations shall constitute a default by Tenant under this
Lease. If there is a conflict between the rules and regulations and
any of the provisions of this Lease, the provisions of this Lease
shall prevail. Landlord shall not be responsible or liable to
Tenant for the violation of such rules and regulations by any other
tenant of the Property.
4.12
ENVIRONMENTAL PROTECTION: Landlord may voluntarily cooperate in
a reasonable manner with the efforts of all governmental agencies
in reducing actual or potential environmental damage. Tenant shall
not be entitled to terminate this Lease or to any reduction in or
abatement of rent by reason of such compliance or cooperation.
Tenant agrees at all times to cooperate fully with Landlord and to
abide by all rules and regulations and requirements which Landlord
may reasonably prescribe in order to comply with the requirements
and recommendations of governmental agencies regulating, or
otherwise involved in, the protection of the
environment.
4.13 OUTSIDE
AREAS: No materials, pallets, supplies, tanks or containers
whether above or below ground level, equipment, finished products
or semifinished products, raw materials, inoperable vehicles or
articles of any nature shall be stored upon or permitted to remain
outside of the Leased Premises except in fully fenced and screened
areas outside the Building which have been designed for such
purpose and have been approved in writing by Landlord for such use
by Tenant.
4.14 HAZARDOUS
MATERIALS: Landlord and Tenant agree as follows with respect to
the existence or use of Hazardous Materials on the
Property:
A. Any handling,
transportation, storage, treatment, disposal or use of Hazardous
Materials by Tenant, Tenant’s Agents, or any other party
after the Effective Date of this Lease in or about the Property
shall strictly comply with all applicable Hazardous Materials Laws.
Tenant shall indemnify, defend upon demand with counsel reasonably
acceptable to Landlord, and hold harmless Landlord from and against
any and all liabilities, losses, claims, damages, lost profits,
consequential damages, interest, penalties, fines, court costs,
remediation costs, investigation costs, and other expenses which
result from or arise in any manner whatsoever out of the use,
storage, treatment, transportation, release, or disposal of
Hazardous Materials on or about the Property by Tenant,
Tenant’s Agents, Permits, or Invites after the Effective
Date.
B. If the presence
of Hazardous Materials on the Property caused or permitted by
Tenant, Tenant’s Agents, Permits, or Invites after the
Effective Date of this Lease results in contamination or
deterioration of water or soil or any other part of the Property,
then Tenant shall promptly take any and all action necessary to
investigate and remedial such contamination. Tenant shall further
be solely responsible for, and shall defend, indemnify and hold
Landlord and its agents harmless from and against, all claims,
costs and liabilities, including attorney’s fees and costs,
arising out of or in connection with any investigation and
remediation (including investigative analysis, removal, cleanup,
and/or restoration work) required hereunder to return the Leased
Premises, Building, Common Areas, Outside Areas, and/or Property
and any other property of whatever nature to their condition
existing prior to the appearance of such Hazardous
Materials.
C. Landlord and
Tenant shall each give written notice to the other as soon as
reasonably practicable of (i) any communication received from
any governmental authority concerning Hazardous Materials which
relates to the Property, and (ii) any contamination of the
Property by Hazardous Materials which constitutes a violation of
any Hazardous Materials Law. Tenant acknowledges that Landlord, as
the owner of the Property, at Landlord’s election, shall have
the sole right at Tenant’s expense to negotiate, defend,
approve, and/or appeal any action taken or order issued with regard
to Hazardous Materials by any applicable governmental authority.
Tenant may use small quantities of household chemicals such as
adhesives, lubricants, and cleaning fluids in order to conduct its
business at the Premises and such other Hazardous Materials as are
necessary to the operation of Tenant’s business of which
Landlord receives notice prior to such Hazardous Materials being
brought onto the Property (or any portion thereof)
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and which Landlord consents
in writing may be brought onto the Property. In granting
Landlord’s consent, Landlord may specify the location and
manner or use, storage, or handling of any Hazardous Material.
Landlord’s consent shall in no way relieve Tenant from any of
its obligations as contained herein. Tenant shall notify Landlord
in writing at least ten (10) days prior to the first
appearance of any Hazardous Material on the Leased Premises,
Building, Common Areas, Outside Areas, and/or Property. Tenant
shall provide Landlord with a list of all Hazardous Materials and
the quantities of each Hazardous Material to be stored on any
portion of the Property, and upon Landlord’s request Tenant
shall provide Landlord with copies of any and all Hazardous
Materials Management Plans, Material Safety Data Sheets, Hazardous
Waste Manifests, and other documentation maintained or received by
Tenant pertaining to the Hazardous Materials used, stored, or
transported or to be used, stored, or transported on any portion of
the Property. At any time during the Lease Term, Tenant shall,
within five days after written request therefor received from
Landlord, disclose in writing all Hazardous Materials that are
being used by Tenant on the Property (or have been used on the
Property), the nature of such use, and the manner of storage and
disposal.
D. Landlord may
cause testing wells to be installed on the Property, and may cause
the ground water to be tested to detect the presence of Hazardous
Material by the use of such tests as are then customarily used for
such purposes. If Tenant so requests, Landlord shall supply Tenant
with copies of such test results. The cost of such tests and of the
installation, maintenance, repair and replacement of such wells
shall be paid by Tenant if such tests disclose the existence of
facts which give rise to liability of Tenant pursuant to its
indemnity given in A and or B above. Landlord may retain
consultants to inspect the Property, conduct periodic environmental
audits, and review any information provided by Tenant. Tenant shall
pay the reasonable cost of fees charged by Landlord and/or
Landlord’s consultants as a Property Maintenance
Cost.
E. Upon the
expiration or earlier termination of the Lease, Tenant, at its sole
cost, shall remove all Hazardous Materials from the Property and
shall provide a certificate to Landlord from a registered
consultant satisfactory to Landlord certifying that Tenant has
caused no contamination of building (s), soil or groundwater in or
about the Leased Premises, Building, Common Areas, Outside Areas,
or Property. If Tenant fails to so surrender the Property, Tenant
shall indemnify and hold Landlord harmless from all damages
resulting from Tenant’s failure to surrender the Property as
required by this Subsection, including, without limitation, any
claims or damages in connection with the condition of the Property
including, without limitation, damages occasioned by the inability
to release the Property (or any portion thereof) or a reduction in
the fair market and/or rental value of the Property, Building,
Common Areas, Outside Areas, and/or Property by reason of the
existence of any Hazardous Materials in or around the Leased
Premises, Building, Common Areas, Outside Areas, and/or Property.
If any action is required to be taken by a governmental authority
to test, monitor, and/or clean up Hazardous Materials from the
Leased Premises, Building, Common Areas, Outside Areas, and/or
Property and such action is not completed prior to the expiration
or earlier termination of the Lease, Tenant shall be deemed to have
impermissibly held over until such time as such required action is
completed, and Tenant shall pay Base Monthly Rent and Additional
Rent in accordance with the terms of Section 13.2 (Holding
Over). In addition, Landlord shall be entitled to all damages
directly or indirectly incurred in connection with such holding
over, including without limitation, damages occasioned by the
inability to release the Property or a reduction of the fair market
and/or rental value of the Leased Premises, Building, Common Areas,
Outside Areas, and/or Property.
F. As used herein,
the term “Hazardous Materials(s)” means any hazardous
or toxic substance, material or waste, which is or becomes
regulated by any federal, state, regional or local governmental
authority because it is in any way hazardous, toxic, carcinogenic,
mutagenic or otherwise adversely affects any part of the
environment or creates risks of any such hazards or effects,
including, but not limited to, petroleum; asbestos, and
polychlorinated bipheyls and any material, substance, or waste
(a) defined as a “hazardous waste,”
“extremely hazardous waste” or “restricted
hazardous waste” under Sections 25115, 25117 or 25122.7, or
listed pursuant to Section 25140 of the California Health and
Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control
Law); (b) defined as a “hazardous substance” under
Section 25316 of the California Health and Safety Code,
Division 20, Chapter 6.8 (Carpenter-Presley Tanner Hazardous
Substance Account Act); (c) defined as a “hazardous
material,” “hazardous substance” or
“hazardous waste” under Section 25501 of the
California Health and Safety Code, Division 20, Chapter 6.95
(Hazardous Materials Release Response Plans and Inventory);
(d) defined as a “hazardous substance” under
Section 25281 of the California Health and Safety Code,
Division 20, Chapter 6.7 (Underground Storage of Hazardous
Substances); (e) defined as a “hazardous
substance” pursuant to Section 311 of the Clean Water
Act, 33 United States Code Sections 1251 et seq. (33 U.S.C.
1321) or listed pursuant to Section 307 of the Clean Water Act
(33 U.S.C. 1317); (f) defined as a “hazardous
waste” pursuant to Section 1004 of the Resource
Conservation and Recovery Act, 42 United States Code Sections 6901
et seq . (42 U.S.C. 6903); or (g) defined as a
“hazardous sub stance” pursuant to Section 101 of
the Comprehensive Environmental Response, Compensation, and
Liability Act,
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42 United States Code
Section 9601 et seq . (42 U.S.C. 9601) or
(h) defined as a “hazardous substance” pursuant to
Section 311 of the Federal Water Pollution Control Act, 33
U.S.C. 1251 et seq or (i) listed pursuant to
Section 307 of the Federal Water Pollution Control Act (33
U.S.C. 1317 ) or (j) regulated under the Toxic Substances
Control Act (15 U.S.C. 2601 et seq .) or (k) defined as
a “hazardous material “under Section 66680 or
66084 of Title 22 of the California Code of Regulations
(Administrative Code) (l) listed in the United States
Department of Transportation Hazardous Materials Table (49 C. F.R.
172.101) or (m) listed by the Environmental Protection Agency
as “hazardous substances” (40 C.F.R. Part 302 ) and
amendments thereto . The term “Hazardous Material Laws”
shall mean (i) all of the foregoing laws as amended from time
to time and (ii) any other federal, state, or local law,
ordinance, regulation, or order regulating Hazardous
Materials.
G. Tenant’s
failure to comply with any of the requirements of this Section
regarding the storage, use, disposal, or transportation of
Hazardous Materials, or the appearance of any Hazardous Materials
on the Leased Premises, Building, Common Area, Outside Area, and/or
the Property without Landlord’s consent shall be an Event of
Default as defined in this Lease. The obligations of Landlord and
Tenant under this Section shall survive the expiration or earlier
termination of the Lease Term. The rights and obligations of
Landlord and Tenant within respect to issues relating to Hazardous
Materials are exclusively established by this section. In the event
of any inconsistency between any other part of this Lease and this
Section, the terms of this Section shall control.
ARTICLE 5
REPAIRS, MAINTENANCE,
SERVICES AND UTILITIES
5.1 REPAIR AND
MAINTENANCE: Except in the case of damage to or destruction of
the Leased Premises, the Building, the Outside Areas or the
Property caused by an Act of God or other peril, in which case the
provisions of Article 10 shall control, the parties shall have the
following obligations and responsibilities with respect to the
repair and maintenance of the Leased Premises, the Building and the
Outside Areas.
A.
Tenant’s Obligation: Tenant shall, at all times during
the Lease Term and at its sole cost and expense, regularly clean
and continuously keep and maintain in good order, condition and
repair the Leased Premises and every part thereof including,
without limiting the generality of the foregoing, (i) all
interior walls, floors and ceilings, (ii) all windows, doors
and skylights, (iii) all electrical wiring, conduits,
connectors and fixtures, (iv) all plumbing, pipes, sinks,
toilets, faucets and drains, (v) all lighting fixtures, bulbs
and lamps, (vi) all heating, ventilating and air conditioning
equipment, and (vii) all entranceways to the Leased Premises.
Tenant, if requested to do so by Landlord shall hire, at
Tenant’s sole cost and expense, a licensed heating,
ventilating and air conditioning contractor to regularly and
periodically (not less frequently than every three months) inspect
and perform required maintenance on the heating, ventilating and
air conditioning equipment and systems serving the Leased Premises,
or alternatively, Landlord may, at its election, contract in its
own name for such regular and periodic inspections of and
maintenance on such heating, ventilating and air conditioning
equipment and systems and charge to Tenant, as Additional Rent, the
cost thereof. Tenant shall, at all times during the Lease Term,
keep in a clean and safe condition the Outside Areas. Tenant shall
regularly and periodically sweep and clean the driveways and
parking areas. Tenant shall, at its sole cost and expense, repair
all damage to the Leased Premises, the Building, the Outside Areas
or the Property caused by the activities of Tenant, its employees,
invitees or contractors promptly following written notice from
Landlord to so repair such damage. If Tenant shall fail to perform
the required maintenance or fail to make repairs required of it
pursuant to this Article within a reasonable period of time
following notice from Landlord to do so, then Landlord may, at its
election and without waiving any other remedy it may otherwise have
under this Lease or at Law, perform such maintenance or make such
repairs and charge to Tenant, as Additional Rent, the costs so
incurred by, Landlord for same. All glass within or a part of the
Leased Premises, both interior and exterior, is at the sole risk of
Tenant and any broken glass shall promptly be replaced by Tenant at
Tenant’s expense with glass of the same kind, size and
quality.
B.
Landlord’s Obligation: Landlord shall, at all times
during the Lease Term, maintain in good condition and repair:
(i) the exterior and structural parts of the Building
(including the foundation, subflooring, load-bearing and exterior
walls, and roof); and (ii) the landscaped areas located
outside the Building. The provisions of this Subarticle B shall in
no way limit the right of Landlord to charge to Tenant, as
Additional Rent pursuant to Article 3 (to the extent permitted
pursuant to Article 3), the costs incurred by Landlord in
performing such maintenance and/or making such repairs.
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5.2
UTILITIES: Tenant shall arrange, at its sole cost and expense
and in its own name, for the supply of gas and electricity to the
Leased Premises. In the event that such services are not separately
metered, Tenant shall, at its sole expense, cause such meters to be
installed. Landlord shall maintain the water meter(s) in its own
name; provided, however, that if at any time during the Lease Term
Landlord shall require Tenant to put the water service in
Tenant’s name, Tenant shall do so at Tenant’s sole
cost. Tenant shall be responsible for determining if the local
supplier of water, gas and electricity can supply the needs of
Tenant and whether or not the existing water, gas and electrical
distribution systems within the Building and the Leased Premises
are adequate for Tenant’s needs. Tenant shall be responsible
for determining if the existing sanitary and storm sewer systems
now servicing the Leased Premises and the Property are adequate for
Tenant’s needs. Tenant shall pay all charges for water, gas,
electricity, and storm and sanitary sewer services as so supplied
to the Leased Premises, irrespective of whether or not the services
are maintained in Landlord’s or Tenant’s
name.
5.3
SECURITY: Tenant acknowledges that Landlord has not undertaken
any duty whatsoever to provide security for the Leased Premises,
the Building, the Outside Areas or the Property and, accordingly,
Landlord is not responsible for the security of same or the
protection of Tenant’s property or Tenant’s employees,
invitees or contractors. To the extent Tenant determines that such
security or protection services are advisable or necessary, Tenant
shall arrange for and pay the costs of providing same.
5.4 ENERGY AND
RESOURCE CONSUMPTION: Landlord may voluntarily cooperate in a
reasonable manner with the efforts of governmental agencies and/or
utility suppliers in reducing energy or other resource consumption
within the Property. Tenant shall not be entitled to terminate this
Lease or to any reduction in or abatement of rent by reason of such
compliance or cooperation. Tenant agrees at all times to cooperate
fully with Landlord and to abide by all reasonable rules
established by Landlord (i) in order to maximize the efficient
operation of the electrical, heating, ventilating and air
conditioning systems and all other energy or other resource
consumption systems within the Property and/or (ii) in order
to comply with the requirements and recommendations of utility
suppliers and governmental agencies regulating the consumption of
energy and/or other resources.
5.5 LIMITATION
OF LANDLORD’S LIABILITY: Landlord shall not be liable to
Tenant for injury to Tenant, its employees, agents, invitees or
contractors, damage to Tenant’s property or loss of
Tenant’s business or profits, nor shall Tenant be entitled to
terminate this Lease or to any reduction in or abatement of rent by
reason of (i) Landlord’s failure to provide security
services or systems within the Property for the protection of the
Leased Premises, the Building or the Outside Areas, or the
protection of Tenant’s property or Tenant’s employees,
invitees, agents or contractors, or (ii) Landlord’s
failure to perform any maintenance or repairs to the Leased
Premises, the Building, the Outside Areas or the Property until
Tenant shall have first notified Landlord, in writing, of the need
for such maintenance or repairs, and then only after Landlord shall
have had a reasonable period of time following its receipt of such
notice within which to perform such maintenance or repairs, or
(iii) any failure, interruption, rationing or other
curtailment in the supply of water, electric current, gas or other
utility service to the Leased Premises, the Building, the Outside
Areas or the Property from whatever cause (other than
Landlord’s sole active negligence or willful misconduct), or
(iv) the unauthorized intrusion or entry into the Leased
Premises by third parties (other than Landlord).
ARTICLE 6:
ALTERATIONS AND
IMPROVEMENTS
6.1 BY
TENANT: Tenant shall not make any alterations to or
modifications of the Leased Premises or construct any improvements
to or within the Leased Premises without Landlord’s prior
written approval, and then not until Landlord shall have first
approved, in writing, the plans and specifications therefore, which
approval shall not be unreasonably withheld. All such
modifications, alterations or improvements, once so approved, shall
be made, constructed or installed by Tenant at Tenant’s
expense, using a licensed contractor first approved by Landlord, in
substantial compliance with the Landlord-approved plans and
specifications therefore. All work undertaken by Tenant shall be
done in accordance with all Laws and in a good and workmanlike
manner using new materials of good quality that match or complement
the original improvements existing as of the Lease Commencement
Date. Tenant shall not commence the making of any such
modifications or alterations or the construction of any such
improvements until (i) all required governmental approvals and
permits shall have been obtained, (ii) all requirements
regarding insurance imposed by this Lease have been satisfied,
(iii) Tenant shall have given Landlord
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at least five business days
prior written notice of its intention to commence such work so that
Landlord may post and file notices of non-responsibility, and
(iv) if requested by Landlord, Tenant shall have obtained
contingent liability and broad form builder’s risk insurance
in an amount satisfactory to Landlord to cover any perils relating
to the proposed work not covered by insurance carried by Tenant
pursuant to Article 9. In no event shall Tenant make any
modifications, alterations or improvements to the Common Areas or
any areas outside of the Leased Premises. As used in this Article,
the term “modifications, alterations and/or
improvements” shall include, without limitation, the
installation of additional electrical outlets, overhead lighting
fixtures, drains, sinks, partitions, doorways, or the like. As a
part of granting Landlord’s approval for Tenant to make
alterations or modifications Landlord may require Tenant to
increase the amount of it’s Security Deposit to cover the
cost of removing Tenant’s alterations or modifications and to
restore the condition of the Premises to it’s prior
condition. Tenant shall pay Landlord’s reasonable costs to
inspect the construction of Tenant’s alterations or
modifications and to have Landlord’s architect revise
Landlord’s drawings to show the work performed by
Tenant.
6.2 OWNERSHIP OF
IMPROVEMENTS : All modifications, alterations or improvements
made or added to the Leased Premises by Tenant (other than
Tenant’s inventory, equipment, movable furniture, wall
decorations and trade fixtures) shall be deemed real property and a
part of the Leased Premises, but shall remain the property of
Tenant during the Lease Term. Any such modifications, alterations
or improvements, once completed, shall not be altered or removed
from the Leased Premises during the Lease Term without
Landlord’s written approval first obtained in accordance with
the provisions of Article 6.1 above. At the expiration or sooner
termination of this Lease, all such modifications, alterations and
improvements (other than Tenant’s inventory, equipment,
movable furniture, wall decorations and trade fixtures) shall
automatically become the property of Landlord and shall be
surrendered to Landlord as a part of the Leased Premises as
required pursuant to Article 2, unless Landlord shall require
Tenant to remove any of such modifications, alterations or
improvements in accordance with the provisions of Article 2, in
which case Tenant shall so remove same. Landlord shall have no
obligation to reimburse to Tenant all or any portion of the cost or
value of any such modifications, alterations or improvements so
surrendered to Landlord. All modifications, alterations or
improvements which are installed or constructed on or attached to
the Leased Premises by Landlord at Landlord’s expense shall
be deemed real property and a part of the Leased Premises and shall
be the property of Landlord. All lighting, plumbing, electrical,
heating, ventilating and air conditioning fixtures, partitioning,
window coverings, wall coverings and floor coverings installed by
Tenant shall be deemed improvements to the Leased Premises and not
trade fixtures of Tenant.
6.3
ALTERATIONS : Tenant shall, at its sole cost make all
modifications, alterations and improvements to the Leased Premises
that are required by any Law because of (i) Tenant’s use
or occupancy of the Leased Premises, the Building, the Outside
Areas, or the Property, (ii) Tenant’s application for
any permit or governmental approval, or (iii) Tenant’s
making of any modifications, alterations or improvements to or
within the Leased Premises. If Landlord shall, at any time during
the Lease Term, (i) be required by any governmental authority
to make any modifications, alterations or improvements to the
Building or the Project, (ii) modify the existing (or
construct additional) capital improvements or provide building
service equipment for the purpose of reducing the consumption of
utility services or project maintenance costs for the property, the
cost incurred by Landlord in making such modifications, alterations
or improvements, including an eighteen percent per annum cost of
money factor, shall be amortized by Landlord over the useful life
of such modifications, alterations or improvements, as determined
in accordance with generally accepted accounting standards, and the
monthly amortized cost of such modifications, alterations and
improvements as so amortized shall be considered a Property
Maintenance Cost.
6.4 LIENS :
Tenant shall keep the Property and every part thereof free from any
liens and shall pay when due all bills arising out of any work
performed, materials furnished, or obligations incurred by Tenant,
its agents, employees or contractors relating to the Property. If
any such claim of lien is recorded against Tenant’s interest
in this Lease, the Property or any part thereof, Tenant shall bond
against, discharge or otherwise cause such lien to be entirely
released within ten days after the same has been so recorded.
Tenant’s failure to do so shall be conclusively deemed a
material default under the terms of this Lease.
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ARTICLE 7
ASSIGNMENT AND SUBLETTING
BY TENANT
7.1 BY
TENANT : Tenant shall not sublet the Leased Premises (or any
portion thereof) or assign or encumber its interest in this Lease,
whether voluntarily or by operation of Law, without
Landlord’s prior written consent first obtained in accordance
with the provisions of this Article 7. Any attempted subletting,
assignment or encumbrance without Landlord’s prior written
consent, at Landlord’s election, shall constitute a default
by Tenant under the terms of this Lease. The acceptance of rent by
Landlord from any person or entity other than Tenant, or the
acceptance of rent by Landlord from Tenant with knowledge of a
violation of the provisions of this Article, shall not be deemed to
be a waiver by Landlord of any provision of this Article or this
Lease or to be a consent to any subletting by Tenant or any
assignment or encumbrance of Tenant’s interest in this
Lease.
7.2 MERGER OR
REORGANIZATION : If Tenant is a corporation, any dissolution,
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