LEASE
THIS LEASE
AGREEMENT (this “ Lease ”) is entered into as of
the Effective Date between TRINET MILPITAS ASSOCIATES, LLC, a
Delaware limited liability company (“ Landlord ”), and ADVANCED MEDICAL
OPTICS, INC., a Delaware corporation (“ Tenant ”).
1
.
Definitions and Basic
Provisions . The definitions and basic
provisions set forth in the Basic Lease Information (the “
Basic Lease Information
”) executed by Landlord and Tenant contemporaneously herewith
are incorporated herein by reference for all purposes.
Additionally, the following terms shall have the following meanings
when used in this Lease: “ Affiliate ” means any person or
entity which, directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common
control with the party in question; “ Building’s Structure ”
means the Building’s structural roof elements, footings,
foundation, and structural portions of exterior load-bearing walls
(expressly excluding any painting, sealing or other surface
maintenance); “ Building’s Systems ” means
the Building’s HVAC, life-safety, plumbing, electrical, and
mechanical systems; “ including ” means including,
without limitation; “ Laws ” means all federal, state,
and local laws, ordinances, rules and regulations, all court
orders, governmental directives, and governmental orders, and all
interpretations of the foregoing, and all restrictive covenants
affecting the Premises (provided that any private restrictive
covenants that become effective after the Effective Date and
materially affect the Premises or Tenant’s use thereof shall
be subject to Tenant’s prior approval, which shall not be
unreasonably withheld, conditioned or delayed), and “
Law ” means any of
the foregoing; and “ Tenant
Party ” means any of the following persons:
Tenant; any assignees claiming by, through, or under Tenant; any
subtenants claiming by, through, or under Tenant; and any of their
respective agents, contractors, employees, licensees, guests, and
invitees.
2.
Lease Grant .
Subject to the terms of this Lease, Landlord leases to Tenant, and
Tenant leases from Landlord, the Premises.
3.
Tender and Acceptance of
Possession . Landlord shall tender possession of the
Premises to Tenant on the Effective Date for performance of the
Work by Tenant as provided in Exhibit D hereto.
Subject to the terms and conditions of this Section 3, Landlord
shall deliver the Premises in good working condition (with all
mechanical, electrical, plumbing, life safety, roll-up doors,
walkways, parking lots and driveways in good working and operable
condition, and the roof water tight), “broom clean”,
and free of any personal property of prior tenants. Access
to, and use and occupancy of, the Premises by Tenant prior to the
Commencement Date shall be subject to all of the provisions of this
Lease excepting only those requiring the payment of Basic Rent and
Additional Rent, provided that Tenant shall be solely responsible
for the costs of utilities and other costs directly related to
Tenant’s access, use and occupancy of the Premises prior to
the Commencement Date, including for performance of the Work (the
“ Early Occupancy
Costs ”). Tenant formally accepts the Premises
as of the Effective Date and acknowledges that the Premises and all
components thereof are in good working condition (including with
all mechanical, electrical, plumbing, life safety, roll-up doors,
walkways, parking lots and driveways in good working and operable
condition, and the roof water tight), “broom clean”,
and free of any personal property of prior tenants, except only
that Landlord shall repair or replace, at no cost (as an Operating
Expense or otherwise) to Tenant, any components of the
Building’s Systems which (a) are not in good working
condition for reasons other than the acts or omissions of a Tenant
Party (including any alterations of the applicable Building’s
Systems by or on behalf of a Tenant Party) and (b) Tenant, acting
reasonably and in good faith, specifically identifies and describes
as not being in good working condition in a written notice,
together with reasonable supporting documentation, delivered to
Landlord within ninety (90) days after the Effective Date (the
“ Warranty Period
”), it being understood that, except for any components of
the Building’s Systems so identified and described by Tenant
during the Warranty Period, the Building’s Systems and the
Premises shall be conclusively deemed to have been delivered to
Tenant in good working condition, with the roof in watertight
condition, and otherwise in the condition called for hereunder, and
Landlord shall have no repair or replacement obligations with
respect thereto (except for Landlord’s ongoing maintenance
and repair obligations to the extent expressly set forth in
Sections 7, 15 and 16 below). To the extent in
Landlord’s possession and assignable (it being understood
that Landlord shall not be obligated to incur any costs in
connection with any such assignment), Landlord shall assign to
Tenant, on a non-exclusive basis, any warranties and/or service
contracts related to the Building’s Systems or other items
Tenant is responsible to maintain under this Lease; provided,
however, that to the extent (1) such warranties or contracts are
not assignable to Tenant or (2) Tenant elects not to pay all costs
charged by the service provider under such warranties or service
contracts to effect
the assignment,
Landlord shall promptly upon request by Tenant use commercially
reasonable efforts to enforce such warranties and contracts for the
benefit of Tenant, and the costs incurred by Landlord in connection
therewith shall be part of Operating Expenses. Landlord
represents and warrants that (i) it holds fee title to the Premises
and has the right to enter into this Lease and (ii) there are no
Mortgages (defined below) currently encumbering the Premises.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION 3 AND IN
SECTION 27, LANDLORD DOES NOT, BY THE EXECUTION AND DELIVERY OF
THIS LEASE, AND LANDLORD SHALL NOT, BY THE EXECUTION AND DELIVERY
OF ANY DOCUMENT OR INSTRUMENT EXECUTED AND DELIVERED IN CONNECTION
WITH THIS LEASE, MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, OF ANY KIND OR NATURE WHATSOEVER, WITH RESPECT TO THE
PREMISES, AND ALL SUCH REPRESENTATIONS AND WARRANTIES ARE HEREBY
DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING
PROVISION, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION 3
AND IN SECTION 27, LANDLORD MAKES, AND SHALL MAKE, NO EXPRESS OR
IMPLIED WARRANTY AS TO MATTERS OF TITLE, ZONING, TAX CONSEQUENCES,
PHYSICAL OR ENVIRONMENTAL CONDITION, VALUATION, GOVERNMENTAL
APPROVALS, GOVERNMENTAL REGULATIONS OR ANY OTHER MATTER OR THING
RELATING TO OR AFFECTING THE PREMISES. TENANT AGREES THAT,
WITH RESPECT TO THE PREMISES, EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED IN THIS SECTION 3 AND IN SECTION 27, TENANT HAS NOT RELIED
UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY
REPRESENTATION OR WARRANTY OF LANDLORD. EXCEPT TO THE EXTENT
EXPRESSLY PROVIDED OTHERWISE IN THIS LEASE (INCLUDING
LANDLORD’S ONGOING MAINTENANCE AND REPAIR OBLIGATIONS TO THE
EXTENT EXPRESSLY SET FORTH IN SECTIONS 7, 15 AND 16 BELOW),
LANDLORD SHALL LEASE TO TENANT, AND TENANT SHALL ACCEPT, THE
PREMISES “AS IS”, “WHERE IS”, AND WITH ALL
FAULTS, AND THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR
REPRESENTATIONS, COLLATERAL TO OR AFFECTING THE PREMISES BY
LANDLORD OR ANY THIRD PARTY.
4 .
Rent .
(a)
Payment . Tenant
shall timely pay to Landlord Rent, without notice, demand,
deduction or set off (except as otherwise expressly provided
herein), by good and sufficient check at Landlord’s address
provided for in this Lease or at such other address specified in
writing to Tenant by Landlord. The obligations of Tenant to
pay Basic Rent and other sums to Landlord and the obligations of
Landlord under this Lease are independent obligations. Basic
Rent, adjusted as herein provided, shall be payable monthly in
advance. The “Prepaid Rent” set forth in the
Basic Lease Information shall be payable contemporaneously with the
execution of this Lease and shall be applied to first
installment(s) of Rent due under this Lease; thereafter, Basic Rent
shall be payable on the first day of each calendar month of the
Term. The monthly Basic Rent for any partial month at the
beginning of the Term shall equal the product of 1/365 of the
annual Basic Rent in effect during the partial month and the number
of days in the partial month, and shall be due on the Commencement
Date. Payments of Basic Rent for any fractional calendar
month at the end of the Term shall be similarly prorated.
Tenant shall pay Additional Rent at the same time and in the same
manner as Basic Rent.
(b)
Operating Costs, Taxes and
Insurance Costs . Tenant shall pay Operating Costs,
Taxes and Insurance Costs in accordance with Exhibit G and
Exhibit H hereto.
5.
Delinquent Payment; Handling
Charges . All payments required of Tenant
hereunder that are not paid within five days after their due date
shall bear interest from the date due until paid at the lesser of
twelve percent (12%) per annum or the maximum lawful rate of
interest (such lesser amount is referred to herein as the “
Default Rate ”);
additionally, Landlord, in addition to all other rights and
remedies available to it, may charge Tenant a fee equal to the
greater of (a) $50.00 or (b) five percent of the delinquent payment
to reimburse Landlord for its cost and inconvenience incurred as a
consequence of Tenant’s delinquency. In no event,
however, shall the charges permitted under this Section 4(b) or
elsewhere in this Lease, to the extent they are considered to be
interest under applicable Law, exceed the maximum lawful rate of
interest. Notwithstanding the foregoing, the late fee
referenced above shall not be charged with respect to the first
occurrence (but not any subsequent occurrence during a 12-month
period) during any 12-month period that Tenant fails to make
payment when due, until five days after Landlord delivers written
notice of such delinquency to Tenant.
6.
Security Deposit
. Contemporaneously with the execution of this Lease, Tenant
shall pay to Landlord the Security Deposit, which shall be held by
Landlord to secure Tenant’s performance of its obligations
under this Lease. The Security Deposit is not an advance
payment of Rent or a measure or limit of Landlord’s damages
upon an Event of Default (as defined herein). Landlord may,
from time to time following an Event of Default and without
prejudice to any other remedy, use all or a part of the Security
Deposit to perform any obligation Tenant fails to perform hereunder
or to compensate Landlord for any damages due to an Event of
Default by Tenant. 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 Following any such
application of the Security Deposit, Tenant shall pay to Landlord
within ten (10) days after Tenant’s receipt of
Landlord’s written demand the amount so applied in order to
restore the Security Deposit to its original amount. Landlord
shall, within 60 days after the expiration or earlier termination
of the Term and Tenant’s surrender of the Premises, return to
Tenant the portion of the Security Deposit which was not applied to
satisfy Tenant’s obligations (and Tenant hereby waives the
provisions of California Civil Code Section 1950.7 to the
contrary). The Security Deposit may be commingled with other
funds, and no interest shall be paid thereon. If Landlord
transfers its interest in the Premises and the transferee assumes
Landlord’s obligations under this Lease, then Landlord shall
assign the Security Deposit to the transferee in conformity with
the provisions of Section 1950.7 of the California Civil Code
and/or any successor statute, and Landlord thereafter shall have no
further liability for the return of the Security Deposit. The
rights and obligations of Landlord and Tenant under this Section 6
are subject to any other requirements and conditions imposed by
Laws applicable to the Security Deposit.
7.
Landlord’s Maintenance
Obligations . Landlord’s maintenance
obligations are limited to the obligations specifically set forth
in this Section 7.
(a)
Warranty Period Work
. Landlord shall, as and to the extent required under Section
3 above, repair all components of the Building’s Systems
which Tenant specifically identifies and describes as not being in
good working condition or repair in a written notice delivered to
Landlord prior to the expiration of the Warranty Period. Such
work shall be at Landlord’s sole cost and expense and shall
not be part of Operating Expenses.
(b)
Building’s Structure
. Subject to Tenant’s obligations under Section 10(b),
Landlord shall repair and maintain the Building’s
Structure. The Building’s Structure does not include
exterior surfaces, roof membranes, skylights, windows, glass or
plate glass, doors or overhead doors, special fronts, or office
entries, dock bumpers, dock plates or levelers, loading areas and
docks, and loading dock equipment or any other items not expressly
set forth in Section 1 above as being part of the Building’s
Structure, all of which shall be maintained, repaired and replaced,
as necessary, by Tenant. Such work shall be at
Landlord’s sole cost and expense and shall not be part of
Operating Expenses.
(c)
Water and Sewer Mains
. Landlord shall repair and maintain the water and sewer
mains serving the Premises up to the points of common
connection. Such work shall be at Landlord’s sole cost
and expense and shall not be part of Operating Expenses.
(d)
Exterior Compliance with
Laws . Subject to Tenant’s obligations under
Section 10(b), Landlord shall make any modifications, alterations
or improvements to the exterior portions of the Premises required
by Laws in effect and as interpreted as of the Effective
Date. Such work shall be at Landlord’s sole cost and
expense and shall not be part of Operating Expenses.
(e)
Outside Areas, Landscaping,
Etc . Landlord shall maintain the areas of the
Premises outside the Building, including landscaping and general
property management duties, and the costs thereof shall be part of
Operating Costs; in addition, Tenant shall pay to Landlord a
property management fee equal to two and one-half percent (2.5%) of
the Basic Rent payable by Tenant under this Lease, and such
property management fee shall be payable 100% by Tenant
notwithstanding Tenant’s Proportionate Share during the first
two years of the Term. Notwithstanding the foregoing, but
subject to Section 8(f) below, at any time during the Term, Tenant
may elect by written notice to Landlord to take over all of
Landlord’s obligations under this Section 7(e), in which
event starting on the first day of the second full calendar month
following delivery of such notice, (i) Tenant shall be responsible,
at Tenant’s sole cost and expense, to perform all of the
obligations under this Section 7(e) (it being understood
that
such costs shall
not be part of Operating Expenses and that Tenant shall be
responsible for 100% of such costs), (ii) Landlord shall have no
further obligations under this Section 7(e), and (iii) the property
management fee shall be reduced to one percent (1%) of the Basic
Rent payable by Tenant under this Lease. Notwithstanding the
foregoing, any work which is required under this Section 7(e) but
which constitutes a Major Capital Expenditure under Paragraph 4 of
Exhibit G shall be paid for and performed as provided
thereunder.
(f)
Air Handler Replacement. Landlord shall replace the seven
(7) existing air handler units and related system components in the
Building in accordance with plans which are appropriate for a
standard research and development buildout and otherwise reasonably
acceptable to Landlord and Tenant. The cost of such work
shall be initially borne by Landlord, but (i) the cost up to one
$1,000,000.00 shall be shared by Landlord and Tenant in proportions
equal to the relationship between the length of the remaining Term
(including any Extension Period if the applicable option to extend
is then or thereafter exercised by Tenant) and the length of the
useful life of the new air handler units (which useful life is
eighteen (18) years), and (ii) any cost in excess of $1,000,000.00
shall be paid entirely by Tenant on an amortized basis over the
remaining portion of the initial Term but only if and to the extent
that the total amount of any such excess cost was approved in
advance by Tenant prior to the landlord’s performance of the
work. Upon completion of such work, Tenant shall pay its
portion of the cost on an amortized basis over the remaining months
of the Term, as provided in the immediately preceding sentence,
using the Amortization Interest Rate (as defined in Paragraph 4 of
Exhibit G), along with Basic Rent, as part of Operating Costs,
provided that such portion shall be payable 100% by Tenant
notwithstanding Tenant’s Proportionate Share during the first
two years of the Term. Notwithstanding anything to the
contrary in this Lease, including the provisions of Section 3
regarding the Warranty Period, Landlord shall have no obligations
with respect to the maintenance, repair or replacement of the air
handler units and related system components, except as expressly
set forth in this Section 7(f), as well as Landlord’s
obligations under Section 3 (concerning the assignment for the
benefit of Tenant of all warranties and/or service contracts
related to the air handler units), Section 15 (relating to the
repair/replacement of any damage to the air handler units caused by
a condemnation), and Section 16 (relating to the repair/replacement
of any damage to the air handler units caused by a
casualty).
Notwithstanding anything to the contrary in this Section 7 or
elsewhere in this Lease (but subject to the waiver of subrogation
provisions set forth in Section 12(b), as applicable), Landlord
shall not be responsible for the payment or performance of any
maintenance, repair or replacement work (i) unless and until Tenant
notifies Landlord of the need therefor in writing, (ii) which is
required by Laws and is Tenant’s responsibility under Section
10(b) below, (iii) which arises from any damage caused by the acts
or omissions of any Tenant Party or failure to comply with
Tenant’s obligations under this Lease, (iv) which is
performed at Tenant’s request as an elective or upgrade item,
or (v) to the extent such work requires that any costs be incurred
and/or any specialized consultants be hired, which costs would not
be incurred or which consultants would not be hired were it not for
the existence of any improvement, alteration or other item
constructed or installed in the Premises for Tenant’s
particular and unique use of the Premises (including as part of the
Work).
8.
Improvements; Alterations;
Tenant’s Maintenance and Repair
Obligations.
(a)
Improvements; Alterations
.
(1)
In General . Improvements to the Premises shall be
installed at Tenant’s expense only in accordance with plans
and specifications which have been previously submitted to and
approved in writing by Landlord, and by engineers, contractors and
subcontractors which have been previously approved in writing by
Landlord, which approval shall be governed by the provisions set
forth in this Section 8(a). No alterations or physical
additions in or to the Premises may be made without
Landlord’s prior written consent, which shall not be
unreasonably withheld, conditioned or delayed; however, Landlord
may withhold its consent to any alteration or addition that would
materially adversely affect (in the reasonable discretion of
Landlord) (a) the Building’s Structure or the
Building’s Systems (including the Building’s restrooms
or mechanical rooms), (b) the exterior appearance of the Building,
or (c) the provision of services to other Building occupants, if
applicable. Except as expressly provided in Section 8(g)
below, Tenant shall not paint or install lighting or decorations,
signs, window or door lettering, or advertising media of any type
visible from the exterior of the Premises without the prior
written consent of Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed. Whenever
Landlord’s consent
or
approval is required under this Section 8, if Landlord fails to
respond to Tenant in writing within fifteen (15) days after receipt
of a specific, written request from Tenant, and such failure
continues for more than ten (10) days after receipt of a second
specific, written request from Tenant (which second requests states
the following in bold, capital letters: “THIS IS THE
SECOND REQUEST FOR LANDLORD’S APPROVAL PURSUANT TO SECTION
8(a)(1) OF THE LEASE, AND LANDLORD’S FAILURE TO RESPOND
WITHIN TEN (10) DAYS WILL BE DEEMED LANDLORD’S APPROVAL OF
THE ITEMS IN QUESTION”), then Landlord shall be deemed to
have granted its consent or approval to such request. All
alterations, additions, and improvements shall be constructed,
maintained, and used by Tenant, at its risk and expense, in
accordance with all Laws; Landlord’s consent to or approval
of any alterations, additions or improvements (or the plans
therefor) shall not constitute a representation or warranty by
Landlord, nor Landlord’s acceptance, that the same comply
with sound architectural and/or engineering practices or with all
applicable Laws, and Tenant shall be solely responsible for
ensuring all such compliance. All alterations, additions and
improvements made by Tenant shall become the property of Landlord
upon installation and shall remain on and be surrendered with the
Premises upon the expiration or sooner termination of this Lease,
unless Landlord requires the removal of such alterations, additions
or improvements. Notwithstanding the foregoing: (a)
Tenant shall not be required to remove any alterations, additions
or improvements which, in Landlord’s reasonable estimation,
constitute generic and customary office improvements and which are
approved by Landlord as and to the extent required under this
Lease; and (b) upon Tenant’s specific, written request at the
time it seeks Landlord’s approval of any alteration, addition
or improvement (including the Work), Landlord agrees to indicate in
writing whether such alteration, addition or improvement
constitutes generic and customary office improvements and, if not,
whether Landlord will require such alteration, addition or
improvement to be removed upon the expiration or earlier
termination of this Lease, and if Landlord fails to indicate a
requirement that such alteration, addition or improvement be
removed, and such failure continues for more than ten (10) days
after receipt of a second specific, written request from Tenant
(which second requests states the following in bold, capital
letters: “THIS IS THE SECOND REQUEST FOR
LANDLORD’S REMOVAL DETERMINATION PURSUANT TO SECTION 8(a)(1)
OF THE LEASE, AND LANDLORD’S FAILURE TO RESPOND WITHIN TEN
(10) DAYS WILL RESULT IN NO REQUIREMENT THAT TENANT REMOVE THE
ITEMS IN QUESTION”), then Tenant shall not be required to
remove such alteration, addition or improvement.
Notwithstanding the foregoing, except to the extent otherwise
indicated on the preliminary plans identified on Schedule 1
attached to Exhibit D , Tenant shall not be required to
remove any portions of the Work, so long as such portions of the
Work are constructed strictly in accordance with all Laws, with
such preliminary plans and the Working Drawings based on those
preliminary plans and approved by Landlord in accordance with
Exhibit D .
(2)
Minor Alterations . Notwithstanding Section 8(a)(1)
above, Tenant, without Landlord’s prior written consent (but
subject to the other terms and conditions of this Section 8,
including Section 8(c) below), shall be permitted to make
alterations to the Premises that do not affect the
Building’s Structure, do not materially affect the
Building’s Systems and do not materially affect the
appearance of the Building viewed from the exterior, provided that:
(a) such alterations do not exceed $50,000 individually or $150,000
in the aggregate; (b) Tenant shall timely provide Landlord the
information required pursuant to Section 8(c) below; (c) Tenant
shall notify Landlord in writing within thirty (30) days of
completion of the alteration and deliver to Landlord a set of the
plans and specifications therefor, either “as built” or
marked to show construction changes made; and (d) Tenant shall,
upon Landlord’s request, remove the alteration at the
termination of the Lease and restore the Premises to its condition
prior to such alteration; provided, however, that, within ten (10)
days after a specific, written request from Tenant delivered
together with Tenant’s notice of completion of the
alteration, Landlord agrees to indicate in writing whether Landlord
will require such alteration to be removed upon the expiration or
earlier termination of this Lease, and if Landlord fails to
indicate within such 10-day period a requirement that such
alteration, addition or improvement be removed, and such failure
continues for more than ten (10) days after receipt of a second
specific, written request from Tenant (which second requests states
the following in bold, capital letters: “THIS IS THE
SECOND REQUEST FOR LANDLORD’S REMOVAL DETERMINATION PURSUANT
TO SECTION 8(a)(2) OF THE LEASE, AND LANDLORD’S FAILURE TO
RESPOND WITHIN TEN (10) DAYS WILL RESULT IN NO REQUIREMENT THAT
TENANT REMOVE THE ITEMS IN QUESTION”), then Tenant shall not
be required to remove such alteration.
(b)
Repairs; Maintenance
. Except as expressly set forth to be Landlord’s
responsibility under Sections 7, 15 and 16, Tenant, at its sole
expense, shall repair, replace and maintain in good, clean, safe,
and operable condition and in accordance with all Laws and the
equipment manufacturer’s suggested service programs, all
portions of the Premises, including entries, doors, ceilings,
windows, interior walls, and the interior side of demising walls,
and heating, ventilation and air conditioning systems (including
any evaporative units), and other building and mechanical systems
serving the Premises. Such repair and replacements include
capital expenditures and repairs whose benefit may extend beyond
the Term; provided that any item which constitutes a Major Capital
Expenditure under Paragraph 4 of Exhibit G shall be paid for
and performed as provided thereunder.
(c)
Performance of Work .
All work described in this Section 8, or otherwise performed by or
for Tenant under this Lease, shall be performed only by contractors
and subcontractors approved in writing by Landlord, which approval
shall not be unreasonably withheld, conditioned or delayed.
Tenant shall cause all contractors and subcontractors to procure
and maintain insurance coverage naming Landlord, Landlord’s
property management company and Landlord’s asset management
company as additional insureds against such risks and in such
amounts as Landlord may reasonably require and with reputable,
credit-worthy insurance companies. Tenant shall provide
Landlord with the identities, mailing addresses and telephone
numbers of all persons performing work or supplying materials
costing in excess of $5,000 prior to beginning such construction
and Landlord may post on and about the Premises notices of
non-responsibility pursuant to applicable Laws. All such work
shall be performed in accordance with all Laws and in a good and
workmanlike manner so as not to damage the Premises (including the
Building, the Building’s Structure and the Building’s
Systems) and in accordance with all approved plans for such work,
if applicable. Subject to Section 8(a)(2) above, all such
work which may materially affect the Building’s Structure or
the Building’s Systems must be approved by an engineer
reasonably acceptable to Landlord, at Tenant’s expense, with
no markup or additional fee by Landlord. Notwithstanding
anything to the contrary in this Section 8, if any work affecting
the roof of the Building may or could void or reduce the warranty
on the roof, then it shall be deemed reasonable for Landlord to
withhold its approval of such work.
(d)
Mechanic’s Liens
. All work performed, materials furnished, or obligations
incurred by or at the request of a Tenant Party hereunder shall be
deemed authorized and ordered by Tenant only, and Tenant shall not
permit any mechanic’s liens to be filed against the Premises
in connection therewith. Upon completion of any such work,
Tenant shall deliver to Landlord final lien waivers from all
contractors, subcontractors and materialmen who performed such work
costing in excess of $5,000. If any mechanics or materialmans
lien is filed, then Tenant shall, within fifteen days after
Landlord has delivered notice of the filing thereof to Tenant (or
such earlier time period as may be necessary to prevent the
forfeiture of the Premises or any interest of Landlord therein or
the imposition of a civil or criminal fine with respect thereto),
either (1) pay the amount of the lien and cause the lien to be
released of record, or (2) diligently contest such lien and deliver
to Landlord a bond or other security reasonably satisfactory to
Landlord. If Tenant fails to timely take either such action,
then Landlord may pay the lien claim, and any amounts so paid,
including expenses and interest at the Default Rate from the time
of Landlord’s payment, shall be paid by Tenant to Landlord
within ten business days after Landlord has invoiced Tenant
therefor. Landlord and Tenant acknowledge and agree that
their relationship is and shall be solely that of
“landlord-tenant” (thereby excluding a relationship of
“owner-contractor,” “owner-agent” or other
similar relationships). Accordingly, all materialmen,
contractors, artisans, mechanics, laborers and any other persons
now or hereafter contracting with Tenant, any contractor or
subcontractor of Tenant or any other Tenant Party for the
furnishing of any labor, services, materials, supplies or equipment
with respect to any portion of the Premises, at any time from the
Effective Date until the end of the Term, are hereby charged with
notice that they look exclusively to Tenant to obtain payment for
same. Nothing herein shall be deemed a consent by Landlord to
any liens being placed upon the Premises or Landlord’s
interest therein due to any work performed by or for Tenant or
deemed to give any contractor or subcontractor or materialman any
right or interest in any funds held by Landlord to reimburse Tenant
for any portion of the cost of such work. Without limiting
the generality of the foregoing, Tenant shall notify Landlord in
writing no later than one (1) day after the commencement of any
work or the furnishing of any materials at or to the Premises in
order that Landlord shall be able timely to post and record Notices
of Non-Responsibility. Tenant shall defend, indemnify and
hold harmless Landlord and its agents and representatives from and
against all claims, demands, causes of action, suits, judgments,
damages and expenses (including attorneys’ fees) in any way
arising from or relating to the failure by any Tenant Party to pay
for any work performed, materials furnished, or obligations
incurred by or at the request of a Tenant Party. This
indemnity provision shall survive termination or expiration of this
Lease.
(e)
Janitorial Services .
Tenant, at its sole expense, shall provide its own janitorial
services to the Premises and shall maintain the Premises in a clean
and safe condition. Tenant shall store all trash and garbage
in receptacles and shall, at its sole expense, arrange for the
regular pickup of such trash and garbage. If Tenant fails
continuously and diligently to provide janitorial services to the
Premises or trash removal services in compliance with the
foregoing, Landlord, in addition to any other rights and remedies
available to it, may cure such failure, and Tenant shall pay to
Landlord the cost thereof, together with interest thereon at the
Default Rate from the time of Landlord’s payment, plus an
administrative fee equal to 5% of such cost, within ten days after
Landlord delivers to Tenant an invoice therefor.
(f)
Landlord’s Right to Perform
Tenant’s Obligations . If Tenant fails
continuously and diligently to perform any of Tenant’s
maintenance, repair and/or replacement obligations under this
Lease, Landlord, in addition to any other rights and remedies
available to it, may elect (but without any obligation to do so)
(i) to perform such obligation(s) on a one-time basis at
Tenant’s cost, including interest thereon at the Default Rate
from the time of Landlord’s payment, or (ii) to take over the
performance of such obligation(s) for some or all of the remainder
of the Term at Tenant’s cost, including an additional
management fee equal to three percent (3%) of such cost. For
clarity, all such costs shall be payable 100% by Tenant
notwithstanding Tenant’s Proportionate Share during the first
two years of the Term.
(g)
Signage .
Notwithstanding Section 8(a) above, throughout the Term, Tenant,
and its permitted subtenants, affiliates and/or transferees, shall
have the right to install building and monument signs on, in or
about the Premises, subject to Landlord’s prior approval,
which shall not be unreasonably withheld, conditioned or delayed,
and to all applicable Laws. Tenant shall be responsible for
maintaining any such signs in good condition and shall remove such
signs at the expiration or earlier termination of this Lease.
Tenant shall repair all damage to the Premises caused by the
installation, maintenance or removal of such signs.
(h)
Rooftop Communications
Equipment . Tenant, or any permitted assignee or
permitted subtenant, shall have the exclusive right to install and
operate antennas, satellite dishes and related communications
equipment on the roof of the building; provided that such equipment
shall be for Tenant’s own use, shall not have a negative
impact on the appearance of the Building, shall be in compliance
with plans and specifications approved in advance by Landlord
(which approval shall not be unreasonably withheld, conditioned or
delayed) and with all applicable Laws, shall be in a location
subject to Landlord’s approval, which approval shall not be
unreasonably withheld, conditioned or delayed, and shall otherwise
comply with the terms and conditions of this Section 8.
Tenant shall be solely responsible for all costs related to such
equipment, including the costs of designing, fabricating,
engineering, permitting, installing, screening and maintaining any
such equipment in good condition and shall remove all such
equipment at the expiration or earlier termination of this Lease at
Tenant’s sole cost and expense. Tenant shall repair all
damage to the Premises caused by the installation, maintenance or
removal of such equipment. Tenant shall not have the right to
use any of the allowances provided in Exhibit D toward any
of the costs related to such communications equipment.
(i)
Generator/UPS. Tenant
, or any permitted assignee of Tenant’s entire interest under
this Lease, shall have the exclusive right to install and operate a
backup generator in the area of the Premises outside of the
Building; provided that such generator shall be for Tenant’s
own use, shall not have a negative impact on the appearance of the
Premises, shall be in compliance with plans and specifications
approved in advance by Landlord (which approval shall not be
unreasonably withheld, conditioned or delayed) and with all
applicable Laws, shall be in a location subject to Landlord’s
approval, which approval shall not be unreasonably withheld,
conditioned or delayed, and shall otherwise comply with the terms
and conditions of this Section 8. Tenant shall be solely
responsible for all costs related to the generator, including the
costs of designing, fabricating, engineering, permitting,
installing, screening and maintaining the generator in good
condition, provided that Tenant may use the allowances provided in
Exhibit D toward the costs of acquiring and installing the
generator. If Tenant uses the allowances provided in
Exhibit D toward the costs of acquiring and installing the
generator, then the generator and any related items shall be the
property of Landlord and shall remain at the Premises at the
expiration or earlier termination of this Lease, unless Landlord
requires removal by Tenant. If Tenant does not use any of the
allowances provided in Exhibit D toward the costs of
acquiring and installing the generator (or if Tenant uses such
allowances but Landlord nevertheless requires removal), then Tenant
shall remove the generator and any related items at the expiration
or earlier termination of this Lease at Tenant’s sole cost
and expense, in which case the generator shall
become the
property of Tenant. Tenant shall repair all damage to the
Premises caused by the installation, maintenance or removal of the
generator and any related items.
9.
Utilities; Licenses and
Permits .
(a)
Utilities . Tenant
shall, at its sole cost and expense, contract for and pay for all
water, gas, electricity, heat, telephone, sewer, sprinkler charges
and other utilities and services used at the Premises, together
with any taxes, penalties, surcharges, connection charges,
maintenance charges, and the like pertaining to Tenant’s use
of the Premises. Landlord may, at Tenant’s expense,
separately meter and bill Tenant directly for its use of any such
utility service. To the extent any utility service for the
Premises is submetered, the meter shall be read by Landlord or
Landlord’s designee, and Tenant shall pay to Landlord, within
30 days after receipt of an invoice therefor, the cost of such
service based on the actual rates charged for such service by the
utility company furnishing such service, including all fuel
adjustment charges, demand charges and taxes. To the extent
that any particular utility is not separately metered or submetered
as provided above (e.g., water or sewer charges), Landlord shall,
using its good-faith, reasonable judgment, allocate the expenses
for such utility among the existing users of such utility based
upon square footage, usage and/or otherwise in accordance with
industry standards. Tenant, at its expense, shall obtain all
utility services for the Premises (other than a utility that is
submetered or otherwise provided to the Premises by Landlord),
including making all applications therefor, obtaining meters and
other related equipment, and paying all deposits and connection
charges. Landlord shall not be liable for any interruption or
failure of utility service to the Premises, and such interruption
or failure of utility service shall not be a constructive eviction
of Tenant, constitute a breach of any implied warranty, or entitle
Tenant to any abatement of Tenant’s obligations
hereunder. If, however, Tenant is prevented from using the
Premises for more than 7 consecutive days because of the
unavailability of any such service, Tenant promptly notifies
Landlord of such unavailability, such unavailability was caused by
Landlord or any of Landlord’s agents, contractors or
invitees, and restoration of such service is within the reasonable
control of Landlord, then Tenant shall, as its exclusive remedy be
entitled to a reasonable abatement of Rent for each consecutive day
(after such 7-day period) that Tenant is so prevented from using
the Premises. Rent shall not abate by reason of the
interruption, insufficiency, unavailability or discontinuance of
such service if Tenant does not promptly notify Landlord of such
unavailability or if such unavailability or discontinuance was not
caused by Landlord and restoration of such service is not within
the reasonable control of Landlord.
(b)
Licenses and Permits
. Tenant shall, at its sole cost and expense, obtain and keep
in force during the Term, and all extensions thereof, all licenses,
certificates and permits necessary for it to use the Premises in
accordance with applicable Laws. Upon Landlord’s
request, Tenant shall promptly deliver to Landlord copies of all
such licenses, certificates and permits.
(c)
Landlord’s Right to Perform
Tenant’s Obligations . If any Event of Default
by Tenant related to its failure to perform any of its obligations
under this Section 9 shall occur, then Landlord may, if it so
elects but expressly without any obligation to do so, following the
expiration of any applicable notice and cure period provided
herein, in addition to any other remedies provided herein, make
such payments. Any out-of-pocket sums expended by Landlord
with respect to any of the foregoing, together with interest
thereon at the Default Rate from the time of Landlord’s
payment, shall be deemed to be Additional Rent owing by Tenant to
Landlord and shall be due and payable within 30 days after written
request therefor.
10.
Use; Compliance With
Laws.
(a)
Use . Tenant may use
the Premises only for the Permitted Use, shall comply with all Laws
relating to the use, condition, access to, and occupancy of the
Premises and will not commit waste, overload the Building’s
Structure or the Building’s Systems or subject the Premises
to use that would damage the Premises. The Premises shall not
be used for any use which is disreputable, creates extraordinary
fire hazards, or results in an increased rate of insurance on the
Building or its contents (unless Tenant agrees to pay for such
increase), or for the storage of any Hazardous Materials (except as
provided in Section 27 hereto). Except for parking of cars
and a limited number of trucks in the normal course conducting
Tenant’s operations at the Premises, outside storage,
including storage of trucks or other vehicles, is prohibited
without Landlord’s prior written consent, which shall not be
unreasonably withheld, conditioned or delayed. If, because of a
Tenant Party’s acts or because Tenant vacates the
Premises, the rate
of insurance on the Building or its contents increases, then Tenant
shall pay to Landlord the amount of such increase on demand, and
acceptance of such payment shall not waive any of Landlord’s
other rights. Tenant shall conduct its business and control
each other Tenant Party so as not to create any nuisance or
unreasonably interfere with other tenants (if any) or Landlord in
its management of the Building.
(b)
Compliance With Laws
. Tenant shall not do or permit anything to be done in or
about the Premises or the Building that will in any way violate or
conflict with any Law now in force or hereinafter enacted.
Tenant, at its sole cost and expense, shall promptly comply with
all present and future Laws (including any changes in
interpretation thereof) relating to the use, condition, access to,
and occupancy of the Premises and the Building, including Title III
of the Americans With Disabilities Act of 1990 (“
ADA ”), any state
laws governing handicapped access or architectural barriers, and
all rules, regulations, and guidelines promulgated under such Laws,
as amended from time to time. Tenant shall promptly furnish
Landlord with any notices received from any insurance company or
governmental agency or inspection bureau regarding any unsafe or
unlawful conditions within the Premises or the Building or the
violation of any Law. Without limiting the generality of the
foregoing, Tenant, at its sole cost and expense, shall perform all
work to the Premises and the Building, including structural work if
applicable, required to effect such compliance with Laws (or, at
Landlord’s election, Landlord may perform any such structural
work at Tenant’s cost) as a result of or in any way relating
to (i) Tenant’s use or occupancy of the Premises or the
Building, (ii) Tenant’s application for any permit or
governmental approval, (iii) any modifications, alterations or
improvements made to, within or about the Premises or the Building
by or on behalf of Tenant or any Tenant Party, and/or (iv) any new
or change in Law or change in interpretation thereof; provided,
however, that if the cost of any work or other modification,
whether structural or otherwise, which results from any new or
change in Law or change in interpretation thereof is considered a
capital expenditure under GAAP and exceeds $50,000.00, then,
subject to the penultimate sentence of Paragraph 4 of Exhibit G,
such work or other modification shall constitute a Major Capital
Expenditure under Paragraph 4 of Exhibit G and shall be paid
for and performed as provided thereunder.
11.
Assignment and
Subletting .
(a)
Transfers . Except as
provided in Sections 11(h) or 11(i), Tenant shall not, without the
prior written consent of Landlord, (1) assign, transfer, or
encumber this Lease or any estate or interest herein, whether
directly or by operation of law, (2) permit any other entity to
become Tenant hereunder by merger, consolidation, or other
reorganization, (3) if Tenant is an entity other than a corporation
whose stock is publicly traded, permit the transfer of an ownership
interest in Tenant so as to result in a change in the current
control of Tenant, (4) sublet any portion of the Premises, (5)
grant any license, concession, or other right of occupancy of any
portion of the Premises, or (6) permit the use of the Premises by
any parties other than Tenant (any of the events listed in Section
11(a)(1) through 11(a) (6) being a “ Transfer ”).
(b)
Consent Standards .
Landlord shall not unreasonably withhold its consent to any
assignment or subletting of the Premises, provided that, in
Landlord’s reasonable business judgment, the proposed
transferee (1) is creditworthy, (2) does not have an unsavory
reputation in the business community, (3) will use the Premises
only for the Permitted Use, (4) is not a governmental entity, or
subdivision or agency thereof, and (5) is not a person or entity
with whom Landlord is then, or has within the prior six months been
in active negotiations relating to the potential lease of space
within ten miles of the Premises, or any Affiliate of any such
person or entity; otherwise, Landlord may withhold its consent in
its sole discretion. Additionally, Landlord may withhold its
consent in its sole discretion to any proposed Transfer if any
Event of Default by Tenant then exists. Notwithstanding any
contrary provision of law, including California Civil Code Section
1995.310, Tenant shall have no right, and Tenant hereby waives and
relinquishes any right, to cancel or terminate this Lease in the
event Landlord is determined to have unreasonably withheld or
delayed its consent to a proposed Transfer.
(c)
Request for Consent .
If Tenant requests Landlord’s consent to a Transfer, then, at
least 15 business days prior to the effective date of the proposed
Transfer, Tenant shall provide Landlord with a written description
of all terms and conditions of the proposed Transfer, copies of the
proposed documentation, and the following information about the
proposed transferee: name and address; reasonably satisfactory
information about its business and business history; its proposed
use of the Premises; banking, financial, and other credit
information; and general references sufficient to enable Landlord
to determine the proposed transferee’s creditworthiness
and
character.
Concurrently with Tenant’s notice of any request for consent
to a Transfer, Tenant shall pay to Landlord a fee of $1,000 to
defray Landlord’s expenses in reviewing such request, and
Tenant shall also reimburse Landlord promptly upon request for its
reasonable out-of-pocket attorneys’ fees incurred in
connection with considering any request for consent to a
Transfer.
(d)
Conditions to Consent
. If Landlord consents to a proposed Transfer, then the
proposed transferee shall deliver to Landlord a written agreement
whereby it expressly assumes the applicable obligations of Tenant
hereunder; however, any transferee of less than all of the space in
the Premises shall be liable only for obligations under this Lease
that are properly allocable to the space subject to the Transfer
for the period of the Transfer. No Transfer shall release
Tenant from its obligations under this Lease, but rather Tenant and
its transferee shall be jointly and severally liable
therefor. Landlord’s consent to any Transfer shall not
waive Landlord’s rights as to any subsequent Transfers.
If an Event of Default occurs while the Premises or any part
thereof are subject to a Transfer, then Landlord, in addition to
its other remedies, may collect directly from such transferee all
rents becoming due to Tenant and apply such rents against
Rent. Tenant authorizes its transferees to make payments of
rent directly to Landlord up
