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Exhibit
10.10
STANDARD
INDUSTRIAL/COMMERCIAL MULTI-TENANT LEASE – NET
AIR COMMERCIAL REAL ESTATE
ASSOCIATION
1. Basic Provisions ( “
Basic Provisions ” ).
1.1 Parties: This
Lease (“ Lease ”), dated for reference purposes
only April 20, 2004, is made by and between Portola Land
Company (“ Lessor ”) and ChemoCentryx Inc., a
Delaware corporation (“ Lessee ”), (collectively
the “ Parties ”, or individually a “
Party ”).
1.2 (a) Premises: That
certain portion of the Project (as defined below), including all
improvements therein or to be provided by Lessor under the terms of
this Lease, commonly known by the street address of 840—850
Maude Avenue, located in the City of Mountain View, County of Santa
Clara, State of California, with zip code 94043, as outlined on
Exhibit attached hereto (“
Premises ”) and generally described as (describe
briefly the nature of the Premises): Freestanding single story
office/laboratory building consisting of 35,755 +/- square
feet.
In addition to Lessee’s rights to
use and occupy the Premises as hereinafter specified, Lessee shall
have non-exclusive rights to the Common Areas (as defined in
Paragraph 2.7 below) as hereinafter specified, but shall not
have any rights to the roof, exterior walls or utility raceways of
the building containing the Premises (“ Building
”) or to any other buildings in the Project. The Premises,
the Building, the Common Areas, the land upon which they are
located, along with all other buildings and improvements thereon,
are herein collectively referred to as the “ Project
.” (See also Paragraph 2)
1.2 (b) Parking: A
pro-rata share of the unreserved vehicle parking spaces (“
Unreserved Parking Spaces ”); and N/A reserved vehicle
parking spaces (“ Reserved Parking Spaces ”).
(See also Paragraph 2.6)
1.3 Term: Ten
(10) years and zero (0) months (“ Original
Term ”) commencing May 1, 2004 (“
Commencement Date ”) and ending April 30, 2014
(“ Expiration Date ”). (See also
Paragraph 3)
1.4 Early Possession:
Upon fully executed Lease (“ Early Possession Date
”). (See also Paragraphs 3.2 and 3.3)
1.5 Base Rent: per
month (“ Base Rent ”), payable on the see
Paragraph 51—Lease Base Rent day of each month
commencing
. (See also Paragraph 4)
þ If
this box is checked, there are provisions in this Lease for the
Base Rent to be adjusted.
1.6 Lessee’s Share
of Common Area Operating Expenses: Fifty percent
(50%) (“ Lessee’s Share
”).
1.7 Base Rent and Other
Monies Paid Upon Execution:
(a) Base Rent:
$28,604.00 for the period May 1, 2004—May 31,
2004.
(b) Common Area Operating
Expenses: $6,615.00 for the period May 1 thru.
May 31, 2004.
(c) Security Deposit:
$160, 000.00 (“ Security Deposit ”). (See also
Paragraph 5)
(d) Other: $N/A for
N/A.
(e) Total Due Upon
Execution of this Lease: $195,219.00.
1.8 Agreed Use:
General office, laboratory, research & development, and
all other legally approved uses of the City of Mountain View. (See
also Paragraph 6)
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1.9 Insuring Party.
Lessor is the “ Insuring Party ”. (See also
Paragraph 8)
1.10 Real Estate
Brokers: (See also Paragraph 15)
(a) Representation:
The following real estate brokers (the “ Brokers
”) and brokerage relationships exist in this transaction
(check applicable boxes):
¨
represents Lessor exclusively (“ Lessor’s Broker
”);
¨
represents Lessee exclusively (“ Lessee’s Broker
”); or
þ
Cornish & Carey Commercial represents both Lessor and
Lessee (“ Dual Agency ”).
(b) Payment to
Brokers: Upon execution and delivery of this Lease by both
Parties, Lessor shall pay to the Brokers the brokerage fee agreed
to in a separate written agreement for the brokerage services
rendered by the Brokers). It is understood that Randy Scott of
Cornish & Carey Commercial is a minority owner of the
Subject Premises.
1.11 Guarantor. The
obligations of the Lessee under this Lease are to be guaranteed by
N/A (“ Guarantor ”). (See also
Paragraph 37)
1.12 Addenda and
Exhibits. Attached hereto is an Addendum or Addenda consisting
of Paragraphs 50 through 54 and Exhibits
through
, all of which constitute a part of
this Lease.
2. Premises.
2.1 Letting. Lessor
hereby leases to Lessee, and Lessee hereby leases from Lessor, the
Premises, for the term, at the rental, and upon all of the terms,
covenants and conditions set forth in this Lease. Unless otherwise
provided herein, any statement of size set forth in this Lease, or
that may have been used in calculating Rent, is an approximation
which the Parties agree is reasonable and any payments based
thereon are not subject to revision whether or not the actual size
is more or less.
2.2 Condition. Lessor
shall deliver that portion of the Premises contained within the
Building (“ Unit ”) to Lessee broom clean and
free of debris asbestos and other hazardous materials on the
Commencement Date or the Early Possession Date, whichever first
occurs (“ Start Date ”), and, so long as the
required service contracts described in Paragraph 7.1(b) below
are obtained by Lessee and in effect within thirty days following
the Start Date, warrants that the existing electrical, plumbing,
fire sprinkler, lighting, heating, ventilating and air conditioning
systems (“ HVAC ”), loading doors, if any, and
all other such elements in the Unit, other than those constructed
by Lessee, shall be in good operating condition on said date and
that the structural elements of the roof, bearing walls and
foundation of the Unit shall be free of material defects. If a
non-compliance with such warranty exists as of the Start Date, or
if one of such systems or elements should malfunction or fail
within the appropriate warranty period, Lessor shall, as
Lessor’s sole obligation with respect to such matter, except
as otherwise provided in this Lease, promptly after receipt of
written notice from Lessee setting forth with specificity the
nature and extent of such non-compliance, malfunction or failure,
rectify same at Lessor’s expense. The warranty periods shall
be as follows: (i) 6 months as to the HVAC systems, and
(ii) 60 days as to the remaining systems and other elements of
the Unit. If Lessee does not give Lessor the required notice within
the appropriate warranty period, correction of any such
non-compliance, malfunction or failure shall be the obligation of
Lessee at Lessee’s sole cost and expense (except for the
repairs to foundations, and/or bearing walls—see
Paragraph 7). Also see Paragraph 51
2.3 Compliance. Lessor
warrants that the improvements on the Premises and the Common Areas
comply with the building codes that were in effect at the time that
each such improvement, or portion thereof, was constructed, and
also with all applicable laws, covenants or restrictions of record,
regulations, and ordinances in effect on the Start Date (“
Applicable Requirements ”). Said warranty does not
apply to the use to which Lessee will put the Premises or to any
Alterations or Utility Installations (as defined in
Paragraph 7.3(a)) made or to be made by Lessee. NOTE: Lessee
is responsible for determining whether or not the Applicable
Requirements, and especially
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the zoning, are appropriate for
Lessee’s intended use, and acknowledges that past uses of the
Premises may no longer be allowed. If the Premises do not comply
with said warranty, Lessor shall, except as otherwise provided,
promptly after receipt of written notice from Lessee setting forth
with specificity the nature and extent of such non-compliance,
rectify the same at Lessor’s expense. If Lessee does not give
Lessor written notice of a non-compliance with this warranty within
6 months following the Start Date, correction of that
non-compliance shall be the obligation of Lessee at Lessee’s
sole cost and expense. If the Applicable Requirements are hereafter
changed so as to require during the term of this Lease the
construction of an addition to or an alteration of the Unit,
Premises and/or Building, the remediation of any Hazardous
Substance, or the reinforcement or other physical modification of
the Unit, Premises and/or Building (“ Capital
Expenditure ”), Lessor and Lessee shall allocate the cost
of such work as follows:
(a) Subject to
Paragraph 2.3(c) below, if such Capital Expenditures are
required as a result of the specific and unique use of the Premises
by Lessee as compared with uses by tenants in general, Lessee shall
be fully responsible for the cost thereof, provided, however that
if such Capital Expenditure is required during the last 2 years of
this Lease and the cost thereof exceeds 6 months’ Base Rent,
Lessee may instead terminate this Lease unless Lessor notifies
Lessee, in writing, within 10 days after receipt of Lessee’s
termination notice that Lessor has elected to pay the difference
between the actual cost thereof and the amount equal to 6
months’ Base Rent. If Lessee elects termination, Lessee shall
immediately cease the use of the Premises which requires such
Capital Expenditure and deliver to Lessor written notice specifying
a termination date at least 90 days thereafter. Such termination
date shall, however, in no event be earlier than the last day that
Lessee could legally utilize the Premises without commencing such
Capital Expenditure.
(b) If such Capital
Expenditure is not the result of the specific and unique use of the
Premises by Lessee (such as, governmentally mandated seismic
modifications), then Lessor and Lessee shall allocate the
obligation to pay for the portion of such costs reasonably
attributable to the Premises pursuant to the formula set out in
Paragraph 7.1(d); provided, however, that if such Capital
Expenditure is required during the last 2 years of this Lease or if
Lessor reasonably determines that it is not economically feasible
to pay its share thereof, Lessor shall have the option to terminate
this Lease upon 90 days prior written notice to Lessee unless
Lessee notifies Lessor, in writing, within 10 days after receipt of
Lessor’s termination notice that Lessee will pay for such
Capital Expenditure. If Lessor does not elect to terminate, and
fails to tender its share of any such Capital Expenditure, Lessee
may advance such funds and deduct same, with Interest, from Rent
until Lessor’s share of such costs have been fully paid. If
Lessee is unable to finance Lessor’s share, or if the balance
of the Rent due and payable for the remainder of this Lease is not
sufficient to fully reimburse Lessee on an offset basis, Lessee
shall have the right to terminate this Lease upon 30 days written
notice to Lessor.
(c) Notwithstanding the
above, the provisions concerning Capital Expenditures are intended
to apply only to non-voluntary, unexpected, and new Applicable
Requirements. If the Capital Expenditures are instead triggered by
Lessee as a result of an actual or proposed change in use, change
in intensity of use, or modification to the Premises then, and in
that event, Lessee shall be fully responsible for the cost thereof,
and Lessee shall not have any right to terminate this
Lease.
2.4 Acknowledgements.
Lessee acknowledges that: (a) it has been advised by Lessor
and/or Brokers to satisfy itself with respect to the condition of
the Premises (including but not limited to the electrical, HVAC and
fire sprinkler systems, security, environmental aspects, and
compliance with Applicable Requirements and the Americans with
Disabilities Act), and their suitability for Lessee’s
intended use, (b) Lessee has made such investigation as it
deems necessary with reference to such matters and assumes all
responsibility therefor as the same relate to its occupancy of the
Premises, and (c) neither Lessor, Lessor’s agents, nor
Brokers have made any oral or written representations or warranties
with respect to said matters other than as set forth in this Lease.
In addition, Lessor acknowledges that: (i) Brokers have made
no representations, promises or warranties concerning
Lessee’s ability to honor the Lease or suitability to occupy
the Premises, and (ii) it is Lessor’s sole
responsibility to investigate the financial capability and/or
suitability of all proposed tenants.
2.5 Lessee as Prior
Owner/Occupant. The warranties made by Lessor in
Paragraph 2 shall be of no force or effect if immediately
prior to the Start Date Lessee was the owner or occupant of the
Premises. In such event, Lessee shall be responsible for any
necessary corrective work.
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2.6 Vehicle Parking.
Lessee shall be entitled to use the number of Unreserved Parking
Spaces and Reserved Parking Spaces specified in
Paragraph 1.2(b) on those portions of the Common Areas
designated from time to time by Lessor for parking. Lessee shall
not use more parking spaces than said number. Said parking spaces
shall be used for parking by vehicles no larger than full-size
passenger automobiles or pick-up trucks, herein called “
Permitted Size Vehicles .” Lessor may regulate the
loading and unloading of vehicles by adopting Rules and Regulations
as provided in Paragraph 2.9. No vehicles other than Permitted
Size Vehicles may be parked in the Common Area without the prior
written permission of Lessor.
(a) Lessee shall not permit
or allow any vehicles that belong to or are controlled by Lessee or
Lessee’s employees, suppliers, shippers, customers,
contractors or invitees to be loaded, unloaded, or parked in areas
other than those designated by Lessor for such
activities.
(b) Lessee shall not service
or store any vehicles in the Common Areas.
(c) If Lessee permits or
allows any of the prohibited activities described in this
Paragraph 2.6, then Lessor shall have the right, without
notice, in addition to such other rights and remedies that it may
have, to remove or tow away the vehicle involved and charge the
cost to Lessee, which cost shall be immediately payable upon demand
by Lessor.
2.7 Common
Areas—Definition. The term “ Common Areas
” is defined as all areas and facilities outside the Premises
and within the exterior boundary line of the Project and interior
utility raceways and installations within the Unit that are
provided and designated by the Lessor from time to time for the
general non-exclusive use of Lessor, Lessee and other tenants of
the Project and their respective employees, suppliers, shippers,
customers, contractors and invitees, including parking areas,
loading and unloading areas, trash areas, roadways, walkways,
driveways and landscaped areas.
2.8 Common
Areas—Lessee’s Rights. Lessor grants to Lessee, for
the benefit of Lessee and its employees, suppliers, shippers,
contractors, customers and invitees, during the term of this Lease,
the non-exclusive right to use, in common with others entitled to
such use, the Common Areas as they exist from time to time, subject
to any rights, powers, and privileges reserved by Lessor under the
terms hereof or under the terms of any rules and regulations or
restrictions governing the use of the Project. Under no
circumstances shall the right herein granted to use the Common
Areas be deemed to include the right to store any property,
temporarily or permanently, in the Common Areas. Any such storage
shall be permitted only by the prior written consent of Lessor or
Lessor’s designated agent, which consent may be revoked at
any time. In the event that any unauthorized storage shall occur
then Lessor shall have the right, without notice, in addition to
such other rights and remedies that it may have, to remove the
property and charge the cost to Lessee, which cost shall be
immediately payable upon demand by Lessor.
2.9 Common
Areas—Rules and Regulations. Lessor or such other
person(s) as Lessor may appoint shall have the exclusive control
and management of the Common Areas and shall have the right, from
time to time, to establish, modify, amend and enforce reasonable
rules and regulations (“ Rules and Regulations
”) for the management, safety, care, and cleanliness of the
grounds, the parking and unloading of vehicles and the preservation
of good order, as well as for the convenience of other occupants or
tenants of the Building and the Project and their invitees. Lessee
agrees to abide by and conform to all such Rules and Regulations,
and to cause its employees, suppliers, shippers, customers,
contractors and invitees to so abide and conform. Lessor shall not
be responsible to Lessee for the non-compliance with said Rules and
Regulations by other tenants of the Project.
2.10 Common
Areas—Changes. Lessor shall have the right, in
Lessor’s sole discretion, from time to time:
(a) To make changes to the
Common Areas, including, without limitation, changes in the
location, size, shape and number of driveways, entrances, parking
spaces, parking areas, loading and unloading areas, ingress,
egress, direction of traffic, landscaped areas, walkways and
utility raceways;
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(b) To close temporarily any
of the Common Areas for maintenance purposes so long as reasonable
access to the Premises remains available;
(c) To designate other land
outside the boundaries of the Project to be a part of the Common
Areas;
(d) To add additional
buildings and improvements to the Common Areas;
(e) To use the Common Areas
while engaged in making additional improvements, repairs or
alterations to the Project, or any portion thereof; and
(f) To do and perform such
other acts and make such other changes in, to or with respect to
the Common Areas and Project as Lessor may, in the exercise of
sound business judgment, deem to be appropriate as long as it does
not unreasonably interfere with Lessee’s work.
(g) Prior to exercising any
of its rights under this paragraph that may impact
Lessee’s use or occupancy of the Premises, Lessor shall give
Lessee reasonable notice of the action to be taken, and shall use
reasonable efforts to cooperate with Lessee to minimize the impact
of such actions upon Lessee’s use and occupancy of the
Premises.
3. Term.
3.1 Term. The
Commencement Date, Expiration Date and Original Term of this Lease
are as specified in Paragraph 1.3.
3.2 Early Possession.
If Lessee totally or partially occupies the Premises prior to the
Commencement Date, the obligation to pay Base Rent shall be abated
for the period of such early possession. All other terms of this
Lease (including but not limited to the obligations to pay
Lessee’s Share of Common Area Operating Expenses, Real
Property Taxes and insurance premiums and to maintain the Premises)
shall, however, be in effect during such period. Any such early
possession shall not affect the Expiration Date.
3.3 Delay In
Possession. Lessor agrees to use its best commercially
reasonable efforts to deliver possession of the Premises to Lessee
by the Commencement Date. If, despite said efforts, Lessor is
unable to deliver possession as agreed, Lessor shall not be subject
to any liability therefor, nor shall such failure affect the
validity of this Lease. Lessee shall not, however, be obligated to
pay Rent or perform its other obligations until it receives
possession of the Premises. If possession is not delivered within
60 days after the Commencement Date, Lessee may, at its option, by
notice in writing within 10 days after the end of such 60 day
period, cancel this Lease, in which event the Parties shall be
discharged from all obligations hereunder. If such written notice
is not received by Lessor within said 10 day period, Lessee’s
right to cancel shall terminate. Except as otherwise provided, if
possession is not tendered to Lessee by the Start Date and Lessee
does not terminate this Lease, as aforesaid, any period of rent
abatement that Lessee would otherwise have enjoyed shall run from
the date of delivery of possession and continue for a period equal
to what Lessee would otherwise have enjoyed under the terms hereof,
but minus any days of delay caused by the acts or omissions of
Lessee. If possession of the Premises is not delivered within 4
months after the Commencement Date, this Lease shall terminate
unless other agreements are reached between Lessor and Lessee, in
writing.
3.4 Lessee Compliance.
Lessor shall not be required to tender possession of the Premises
to Lessee until Lessee complies with its obligation to provide
evidence of insurance (Paragraph 8.5). Pending delivery of
such evidence, Lessee shall be required to perform all of its
obligations under this Lease from and after the Start Date,
including the payment of Rent, notwithstanding Lessor’s
election to withhold possession pending receipt of such evidence of
insurance. Further, if Lessee is required to perform any other
conditions prior to or concurrent with the Start Date, the Start
Date shall occur but Lessor may elect to withhold possession until
such conditions are satisfied.
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4. Rent.
4.1 Rent Defined. All
monetary obligations of Lessee to Lessor under the terms of this
Lease (except for the Security Deposit) are deemed to be rent
(“ Rent ”).
4.2 Common Area Operating
Expenses. Lessee shall pay to Lessor during the term hereof, in
addition to the Base Rent, Lessee’s Share (as specified in
Paragraph 1.6) of all Common Area Operating Expenses, as
hereinafter defined, during each calendar year of the term of this
Lease, in accordance with the following provisions:
(a) “ Common Area
Operating Expenses ” are defined, for purposes of this
Lease, as all costs incurred by Lessor relating to the ownership
and operation of the Project, including, but not limited to, the
following:
(i) The operation, repair and
maintenance, in neat, clean, good order and condition of the
following:
(aa) The Common Areas and
Common Area improvements, including parking areas, loading and
unloading areas, trash areas, roadways, parkways, walkways,
driveways, landscaped areas, bumpers, irrigation systems, Common
Area lighting facilities, fences and gates, elevators, roofs, and
roof drainage systems.
(bb) Exterior signs and any
tenant directories.
(cc) Any fire detection
and/or sprinkler systems.
(ii) The cost of water, gas,
electricity and telephone to service the Common Areas and any
utilities not separately metered.
(iii) Trash disposal, pest
control services, property management, security services, and the
costs of any environmental inspections.
(iv) Reserves set aside for
maintenance and repair of Common Areas.
(v) Real Property Taxes (as
defined in Paragraph 10).
(vi) The cost of the premiums
for the insurance maintained by Lessor pursuant to
Paragraph 8.
(vii) Any deductible portion
of an insured loss concerning the Building or the Common
Areas.
(viii) The cost of any
Capital Expenditure to the Building or the Project not covered
under the provisions of Paragraph 2.3 provided; however, that
Lessor shall allocate the cost of any such Capital Expenditure over
a 12 year period and Lessee shall not be required to pay more than
Lessee’s Share of 1/144th of the cost of such Capital
Expenditure in any given month.
(ix) Any other services to be
provided by Lessor that are stated elsewhere in this Lease to be a
Common Area Operating Expense.
(b) Any Common Area Operating
Expenses and Real Property Taxes that are specifically attributable
to the Unit, the Building or to any other building in the Project
or to the operation, repair and maintenance thereof, shall be
allocated entirely to such Unit, Building, or other building.
However, any Common Area Operating Expenses and Real Property Taxes
that are not specifically attributable to the Building or to any
other building or to the operation, repair and maintenance thereof,
shall be equitably allocated by Lessor to all buildings in the
Project.
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(c) The inclusion of the
improvements, facilities and services set forth in
Subparagraph 4.2(a) shall not be deemed to impose an
obligation upon Lessor to either have said improvements or
facilities or to provide those services unless the Project already
has the same, Lessor already provides the services, or Lessor has
agreed elsewhere in this Lease to provide the same or some of
them.
(d) Lessee’s Share of
Common Area Operating Expenses shall be payable by Lessee within 10
days after a reasonably detailed statement of actual expenses is
presented to Lessee. At Lessor’s option, however, an amount
may be estimated by Lessor from time to time of Lessee’s
Share of annual Common Area Operating Expenses and the same shall
be payable monthly or quarterly, as Lessor shall designate, during
each 12 month period of the Lease term, on the same day as the Base
Rent is due hereunder. Lessor shall deliver to Lessee within 60
days after the expiration of each calendar year a reasonably
detailed statement showing Lessee’s Share of the actual
Common Area Operating Expenses incurred during the preceding year.
If Lessee’s payments under this Paragraph 4.2(d) during
the preceding year exceed Lessee’s Share as indicated on such
statement, Lessor shall credit the amount of such over-payment
against Lessee’s Share of Common Area Operating Expenses next
becoming due. If Lessee’s payments under this
Paragraph 4.2(d) during the preceding year were less than
Lessee’s Share as indicated on such statement, Lessee shall
pay to Lessor the amount of the deficiency within 10 days after
delivery by Lessor to Lessee of the statement. Lessor will deliver
to Lessee within 45 days of request detailed reporting and copies
of invoices of Lessee’s pro-rata share of the common area
expenses.
(e) Operating cost
specifically attributable to buildings other than the premises
described per Paragraph 1.2(a) will not be included in the
common area maintenance expenses.
(f) Notwithstanding the
foregoing, the following items are excluded from Common Area
Operating Expenses; (i) interest payable by Lessor with
respect to any debt secured by a deed of trust of mortgage on the
Building and/or the Project; (ii) payments of ground rent;
(iii) depreciation; (iv) leasing commissions or other
brokerage commissions of any kind; (v) expenses incurred in
leasing or procuring new tenants, including advertising and
marketing expenses, and expenses for preparation of leases, or
renovation of space(s) for new tenant; and (vi) costs incurred
which are reimbursed by third parties (including insurance
carriers).
4.3 Payment. Lessee
shall cause payment of Rent to be received by Lessor in lawful
money of the United States, without offset or deduction (except as
specifically permitted in this Lease), on or before the day on
which it is due. Rent for any period during the term hereof which
is for less than one full calendar month shall be prorated based
upon the actual number of days of said month. Payment of Rent shall
be made to Lessor at its address stated herein or to such other
persons or place as Lessor may from time to time designate in
writing. Acceptance of a payment which is less than the amount then
due shall not be a waiver of Lessor’s rights to the balance
of such Rent, regardless of Lessor’s endorsement of any check
so stating. In the event that any check, draft, or other instrument
of payment given by Lessee to Lessor is dishonored for any reason,
Lessee agrees to pay to Lessor the sum of $25 in addition to any
late charges which may be due.
5. Security Deposit. Lessee shall
deposit with Lessor upon execution hereof the Security Deposit as
security for Lessee’s faithful performance of its obligations
under this Lease. If Lessee fails to pay Rent, or otherwise
Defaults under this Lease, Lessor may use, apply or retain all or
any portion of said Security Deposit for the payment of any amount
due Lessor or to reimburse or compensate Lessor for any liability,
expense, loss or damage which Lessor may suffer or incur by reason
thereof. If Lessor uses or applies all or any portion of the
Security Deposit, Lessee shall within 10 days after written request
therefor deposit monies with Lessor sufficient to restore said
Security Deposit to the full amount required by this Lease. If the
Base Rent increases during the term of this Lease, Lessee shall,
upon written request from Lessor, deposit additional monies with
Lessor so that the total amount of the Security Deposit shall at
all times bear the same proportion to the increased Base Rent as
the initial Security Deposit bore to the initial Base Rent. Should
the Agreed Use be amended to accommodate a material change in the
business of Lessee or to accommodate a sublessee or assignee,
Lessor shall have the right to increase the Security Deposit to the
extent necessary, in Lessor’s reasonable judgment, to account
for any increased wear and tear that the Premises may suffer as a
result thereof. If a change in control of Lessee occurs during this
Lease and following such change the financial condition of Lessee
is, in Lessor’s reasonable judgment, significantly reduced,
Lessee shall deposit such additional monies with Lessor as shall be
sufficient to cause the Security Deposit to be at a commercially
reasonable level based on such change in financial condition.
Lessor shall not be required to keep the Security Deposit separate
from its general accounts. Within 14 days after the expiration or
termination of this Lease,
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if Lessor elects to apply the Security
Deposit only to unpaid Rent, and otherwise within 30 days after the
Premises have been vacated pursuant to Paragraph 7.4(c) below,
Lessor shall return that portion of the Security Deposit not used
or applied by Lessor. No part of the Security Deposit shall be
considered to be held in trust, to bear interest or to be
prepayment for any monies to be paid by Lessee under this Lease.
The provisions in Paragraph 5 will not increase the security
deposit.
6 . Use.
6.1 Use. Lessee shall
use and occupy the Premises only for the Agreed Use, or any other
legal use which is reasonably comparable thereto, and for no other
purpose. Lessee shall not use or permit the use of the Premises in
a manner that is unlawful, creates damage, waste or a nuisance, or
that disturbs occupants of or causes damage to neighboring premises
or properties. Lessor shall not unreasonably withhold or delay its
consent to any written request for a modification of the Agreed
Use, so long as the same will not impair the structural integrity
of the improvements on the Premises or the mechanical or electrical
systems therein, and/or is not significantly more burdensome to the
Premises. If Lessor elects to withhold consent, Lessor shall within
7 days after such request give written notification of same, which
notice shall include an explanation of Lessor’s objections to
the change in the Agreed Use.
6.2 Hazardous
Substances.
(a) Reportable Uses
Require Consent. The term “ Hazardous Substance
” as used in this Lease shall mean any product, substance, or
waste whose presence, use, manufacture, disposal, transportation,
or release, either by itself or in combination with other materials
expected to be on the Premises, is either: (i) potentially
injurious to the public health, safety or welfare, the environment
or the Premises, (ii) regulated or monitored by any
governmental authority, or (iii) a basis for potential
liability of Lessor to any governmental agency or third party under
any applicable statute or common law theory. Hazardous Substances
shall include, but not be limited to, hydrocarbons, petroleum,
gasoline, and/or crude oil or any products, by-products or
fractions thereof. Lessee shall not engage in any activity in or on
the Premises which constitutes a Reportable Use of Hazardous
Substances without the express prior written consent of Lessor and
timely compliance (at Lessee’s expense) with all Applicable
Requirements. “ Reportable Use ” shall mean
(i) the installation or use of any above or below ground
storage tank, (ii) the generation, possession, storage, use,
transportation, or disposal of a Hazardous Substance that requires
a permit from, or with respect to which a report, notice,
registration or business plan is required to be filed with, any
governmental authority, and/or (iii) the presence at the
Premises of a Hazardous Substance with respect to which any
Applicable Requirements requires that a notice be given to persons
entering or occupying the Premises or neighboring properties.
Notwithstanding the foregoing, Lessee may use any ordinary and
customary materials reasonably required to be used in the normal
course of the Agreed Use, so long as such use is in compliance with
all Applicable Requirements, is not a Reportable Use, and does not
expose the Premises or neighboring property to any meaningful risk
of contamination or damage or expose Lessor to any liability
therefor. In addition, Lessor may condition its consent to any
Reportable Use upon receiving such additional assurances as Lessor
reasonably deems necessary to protect itself, the public, the
Premises and/or the environment against damage, contamination,
injury and/or liability, including, but not limited to, the
installation (and removal on or before Lease expiration or
termination) of protective modifications (such as concrete
encasements) and/or increasing the Security Deposit.
(b) Duty to Inform
Lessor. If Lessee knows, or has reasonable cause to believe,
that a Hazardous Substance has come to be located in, on, under or
about the Premises, other than as previously consented to by
Lessor, Lessee shall immediately give written notice of such fact
to Lessor, and provide Lessor with a copy of any report, notice,
claim or other documentation which it has concerning the presence
of such Hazardous Substance.
(c) Lessee
Remediation. Lessee shall not cause or permit any Hazardous
Substance to be spilled or released in, on, under, or about the
Premises (including through the plumbing or sanitary sewer system)
and shall promptly, at Lessee’s expense, take all
investigatory and/or remedial action reasonably recommended,
whether or not formally ordered or required, for the cleanup of any
contamination of, and for the maintenance, security and/or
monitoring of the Premises or neighboring properties, that was
caused or materially contributed to by Lessee, or pertaining to or
involving any Hazardous Substance brought onto the Premises during
the term of this Lease, by or for Lessee, or any third
party.
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(d) Lessee
Indemnification. Lessee shall indemnify, defend and hold
Lessor, its agents, employees, lenders and ground lessor, if any,
harmless from and against any and all loss of rents and/or damages,
liabilities, judgments, claims, expenses, penalties, and
attorneys’ and consultants’ fees arising out of or
involving any Hazardous Substance brought onto the Premises by or
for Lessee, or any third party (provided, however, that Lessee
shall have no liability under this Lease with respect to
underground migration of any Hazardous Substance under the Premises
from areas outside of the Project). Lessee’s obligations
shall include, but not be limited to, the effects of any
contamination or injury to person, property or the environment
created or suffered by Lessee, and the cost of investigation,
removal, remediation, restoration and/or abatement, and shall
survive the expiration or termination of this Lease. No
termination, cancellation or release agreement entered into by
Lessor and Lessee shall release Lessee from its obligations under
this Lease with respect to Hazardous Substances, unless
specifically so agreed by Lessor in writing at the time of such
agreement.
(e) Lessor
Indemnification. Lessor and its successors and assigns shall
indemnify, defend, reimburse and hold Lessee, its employees and
lenders, harmless from and against any and all environmental
damages, including the cost of remediation, which existed as a
result of Hazardous Substances on the Premises prior to the Start
Date or which are caused by the gross negligence or willful
misconduct of Lessor, its agents or employees. Lessor’s
obligations, as and when required by the Applicable Requirements,
shall include, but not be limited to, the cost of investigation,
removal, remediation, restoration and/or abatement, and shall
survive the expiration or termination of this Lease.
(f) Investigations and
Remediations. Lessor shall retain the responsibility and pay
for any investigations or remediation measures required by
governmental entities having jurisdiction with respect to the
existence of Hazardous Substances on the Premises prior to the
Start Date, unless such remediation measure is required as a result
of Lessee’s use (including “Alterations”, as
defined in Paragraph 7.3(a) below) of the Premises, in which
event Lessee shall be responsible for such payment. Lessee shall
cooperate fully in any such activities at the request of Lessor,
including allowing Lessor and Lessor’s agents to have
reasonable access to the Premises at reasonable times in order to
carry out Lessor’s investigative and remedial
responsibilities.
(g) Lessor Termination
Option. If a Hazardous Substance Condition (see
Paragraph 9.1(e)) occurs during the term of this Lease, unless
Lessee is legally responsible therefor (in which case Lessee shall
make the investigation and remediation thereof required by the
Applicable Requirements and this Lease shall continue in full force
and effect, but subject to Lessor’s rights under
Paragraph 6.2(d) and Paragraph 13), Lessor may, at
Lessor’s option, either (i) investigate and remediate
such Hazardous Substance Condition, if required, as soon as
reasonably possible at Lessor’s expense, in which event this
Lease shall continue in full force and effect, or (ii) if the
estimated cost to remediate such condition exceeds 12 times the
then monthly Base Rent or $100,000, whichever is greater, give
written notice to Lessee, within 30 days after receipt by Lessor of
knowledge of the occurrence of such Hazardous Substance Condition,
of Lessor’s desire to terminate this Lease as of the date 60
days following the date of such notice. In the event Lessor elects
to give a termination notice, Lessee may, within 10 days
thereafter, give written notice to Lessor of Lessee’s
commitment to pay the amount by which the cost of the remediation
of such Hazardous Substance Condition exceeds an amount equal to 12
times the then monthly Base Rent or $100,000, whichever is greater.
Lessee shall provide Lessor with said funds or satisfactory
assurance thereof within 30 days following such commitment. In such
event, this Lease shall continue in full force and effect, and
Lessor shall proceed to make such remediation as soon as reasonably
possible after the required funds are available. If Lessee does not
give such notice and provide the required funds or assurance
thereof within the time provided, this Lease shall terminate as of
the date specified in Lessor’s notice of
termination.
6.3 Lessee’s
Compliance with Applicable Requirements. Except as otherwise
provided in this Lease, Lessee shall, at Lessee’s sole
expense, fully, diligently and in a timely manner, materially
comply with all Applicable Requirements, the requirements of any
applicable fire insurance underwriter or rating bureau, and the
recommendations of Lessor’s engineers and/or consultants
which relate in any manner to the Premises, without regard to
whether said requirements are now in effect or become effective
after the Start Date. Lessee shall, within 10 days after receipt of
Lessor’s written request, provide Lessor with copies of all
permits and other documents, and other information evidencing
Lessee’s compliance with any Applicable Requirements
specified by Lessor, and shall immediately upon receipt, notify
Lessor in writing (with copies of any documents involved) of any
threatened or actual claim, notice, citation, warning, complaint or
report pertaining to or involving the failure of Lessee or the
Premises to comply with any Applicable Requirements.
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6.4 Inspection;
Compliance. Lessor and Lessor’s “ Lender
” (as defined in Paragraph 30) and consultants shall
have the right to enter into Premises at any time, in the case of
an emergency, and otherwise at reasonable times, for the purpose of
inspecting the condition of the Premises and for verifying
compliance by Lessee with this Lease. The cost of any such
inspections shall be paid by Lessor, unless a violation of
Applicable Requirements, or a contamination is found to exist or be
imminent, or the inspection is requested or ordered by a
governmental authority. In such case, Lessee shall upon request
reimburse Lessor for the cost of such inspection, so long as such
inspection is reasonably related to the violation or contamination.
Lessor agrees to provide 48 hour notice (unless an emergency) to
Lessee for inspection and/or to make repairs. Lessee agrees to be
accompanied by Lessee and to comply with the safety
regulations.
7 . Maintenance; Repairs, Utility
Installations; Trade Fixtures and Alterations.
7.1 Lessee’s
Obligations.
(a) In General.
Subject to the provisions of Paragraph 2.2 (Condition), 2.3
(Compliance), 6.3 (Lessee’s Compliance with Applicable
Requirements), 7.2 (Lessor’s Obligations), 9 (Damage or
Destruction), and 14 (Condemnation), Lessee shall, at
Lessee’s sole expense, keep the Premises, Utility
Installations (intended for Lessee’s exclusive use, no matter
where located), and Alterations in good order, condition and repair
(whether or not the portion of the Premises requiring repairs, or
the means of repairing the same, are reasonably or readily
accessible to Lessee, and whether or not the need for such repairs
occurs as a result of Lessee’s use, any prior use, the
elements or the age of such portion of the Premises), including,
but not limited to, all equipment or facilities, such as fire
detection and/or sprinkler system, fume hoods, plumbing, HVAC
equipment, electrical, lighting facilities, boilers, pressure
vessels, fixtures, interior walls, interior surfaces of exterior
walls, ceilings, floors, windows, doors, plate glass, roofs, and
skylights but excluding any items which are the responsibility of
Lessor pursuant to Paragraph 7.2. Lessee, in keeping the
Premises in good order, condition and repair, shall exercise and
perform good maintenance practices, specifically including the
procurement and maintenance of the service contracts required by
Paragraph 7.1(b) below. Lessee’s obligations shall
include restorations, replacements or renewals when necessary to
keep the Premises and all improvements thereon or a part thereof in
good order, condition and state of repair.
(b) Service Contracts.
Lessee shall, at Lessee’s sole expense, procure and maintain
contracts, and obtain proposals for equipment repair for
Lessor’s routine budgetary and monitoring of its fixed assets
with copies to Lessor, in customary form and substance for, and
with contractors specializing and experienced in the maintenance of
the following equipment and improvements, if any, if and when
installed on the Premises: (i) HVAC equipment,
(ii) boiler and pressure vessels, (iii) clarifiers, and
(iv) any other equipment, if reasonably required by Lessor.
However, Lessor reserves the right, upon notice to Lessee, to
procure and maintain any or all of such service contracts, and if
Lessor so elects, Lessee shall reimburse Lessor, upon demand, for
the cost thereof.
(c) Failure to
Perform. If Lessee fails to perform Lessee’s obligations
under this Paragraph 7.1, Lessor may enter upon the Premises
after 10 days’ prior written notice to Lessee (except in the
case of an emergency, in which case no notice shall be required),
perform such obligations on Lessee’s behalf, and put the
Premises in good order, condition and repair, and Lessee shall
promptly reimburse Lessor for the cost thereof.
(d) Replacement.
Subject to Lessee’s indemnification of Lessor as set forth in
Paragraph 8.7 below, and without relieving Lessee of liability
resulting from Lessee’s failure to exercise and perform good
maintenance practices, if an item described in
Paragraph 7.1(b) cannot be repaired other than at a cost which
is in excess of 50% of the cost of replacing such item, then such
item shall be replaced by Lessor, and the cost thereof shall be
prorated between the Parties and Lessee shall only be obligated to
pay, each month during the remainder of the term of this Lease, on
the date on which Base Rent is due, an amount equal to the product
of multiplying the cost of such replacement by a fraction, the
numerator of which is one, and the denominator of which is 144 (ie.
1/144th of the cost per month). Lessee shall pay Interest on the
unamortized balance at a rate that is commercially reasonable in
the judgment of Lessor’s accountants. Lessee may, however,
prepay its obligation at any time.
7.2 Lessor’s
Obligations. Subject to the provisions of Paragraphs 2.2
(Condition), 2.3 (Compliance), 4.2 (Common Area Operating
Expenses), 6 (Use), 7.1 (Lessee’s Obligations), 9 (Damage or
Destruction) and 14 (Condemnation), Lessor, subject to
reimbursement pursuant to Paragraph 4.2, shall keep in good
order, condition and repair the foundations, exterior walls,
structural condition of interior bearing walls, structural roof,
fire sprinkler
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system, Common Area fire alarm and/or
smoke detection systems, fire hydrants, parking lots, walkways,
parkways, driveways, landscaping, fences, signs and utility systems
serving the Common Areas and all parts thereof, as well as
providing the services for which there is a Common Area Operating
Expense pursuant to Paragraph 4.2. Lessor shall not be
obligated to paint the exterior or interior surfaces of exterior
walls nor shall Lessor be obligated to maintain, repair or replace
windows, doors or plate glass of the Premises. Lessee expressly
waives the benefit of any statute now or hereafter in effect to the
extent it is inconsistent with the terms of this Lease.
7.3 Utility Installations;
Trade Fixtures; Alterations.
(a) Definitions. The
term “ Utility Installations ” refers to all
floor and window coverings, air lines, power panels, electrical
distribution, security and fire protection systems, communication
systems, lighting fixtures, HVAC equipment, plumbing, and fencing
in or on the Premises. The term “ Trade Fixtures
” shall mean Lessee’s machinery and equipment that can
be removed without doing material damage to the Premises. The term
“ Alterations ” shall mean any modification of
the improvements, other than Utility Installations or Trade
Fixtures, whether by addition or deletion. “ Lessee Owned
Alterations and/or Utility Installations ” are defined as
Alterations and/or Utility Installations made by Lessee that are
not yet owned by Lessor pursuant to
Paragraph 7.4(a).
(b) Consent. Lessee
shall not make any Alterations or Utility Installations to the
Premises without Lessor’s prior written consent. Lessee may,
however, make non-structural Utility Installations to the interior
of the Premises (excluding the roof) without such consent but upon
notice to Lessor, as long as they are not visible from the outside,
do not involve puncturing, relocating or removing the roof or any
existing walls, and the cumulative cost thereof during this Lease
as extended does not exceed a sum equal to 3 month’s Base
Rent in the aggregate or a sum equal to one month’s Base Rent
in any one year. Notwithstanding the foregoing, Lessee shall not
make or permit any roof penetrations and/or install anything on the
roof without the prior written approval of Lessor. Lessor may, as a
precondition to granting such approval, require Lessee to utilize a
contractor chosen and/or approved by Lessor. Any Alterations or
Utility Installations that Lessee shall desire to make and which
require the consent of the Lessor shall be presented to Lessor in
written form with detailed plans. Consent shall be deemed
conditioned upon Lessee’s: (i) acquiring all applicable
governmental permits, (ii) furnishing Lessor with copies of
both the permits and the plans and specifications prior to
commencement of the work, and (iii) compliance with all
conditions of said permits and other Applicable Requirements in a
prompt and expeditious manner. Any Alterations or Utility
Installations shall be performed in a workmanlike manner with good
and sufficient materials. Lessee shall promptly upon completion
furnish Lessor with as-built plans and specifications. For work
which costs an amount in excess of one month’s Base Rent.
Subject to Lessee’s right to make non-structural Alterations
without approval, as set forth above, Lessor shall have a period of
five (5) days from receipt of the plans within which to
approve or disapprove the proposed Alteration(s), after which time
they shall be deemed approved by Lessor. Any Alteration made by
Lessee after consent has been given, and any fixture (except trade
fixtures) shall throughout the Lease, or any extension thereof,
remain the property of Lessee. Lessor will advise Lessee at the
time of Consent whether the proposed Alteration may remain or will
need to be removed by Lessee at the end of the Lease term or the
extended Lease term.
(c) Indemnification.
Lessee shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Lessee at or
for use on the Premises, which claims are or may be secured by any
mechanic’s or materialman’s lien against the Premises
or any interest therein. Lessee shall give Lessor not less than 10
days notice prior to the commencement of any work in, on or about
the Premises, and Lessor shall have the right to post notices of
non-responsibility. If Lessee shall contest the validity of any
such lien, claim or demand, then Lessee shall, at its sole expense
defend and protect itself, Lessor and the Premises against the same
and shall pay and satisfy any such adverse judgment that may be
rendered thereon before the enforcement thereof. If Lessor shall
require, Lessee shall furnish a surety bond in an amount equal to
150% of the amount of such contested lien, claim or demand,
indemnifying Lessor against liability for the same. If Lessor
elects to participate in any such action, Lessee shall pay
Lessor’s attorneys’ fees and costs.
7.4 Ownership; Removal;
Surrender; and Restoration.
(a) Ownership. Subject
to Lessor’s right to require removal or elect ownership as
hereinafter provided, all Alterations and Utility Installations
made by Lessee shall be the property of Lessee, but considered
a
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part of the Premises. Lessor may, at any
time, elect in writing to be the owner of all or any specified part
of the Lessee Owned Alterations and Utility Installations. Unless
otherwise instructed per paragraph 7.4(b) hereof, all Lessee
Owned Alterations and Utility Installations shall, at the
expiration or termination of this Lease, become the property of
Lessor and be surrendered by Lessee with the Premises.
(b) Removal. By
delivery to Lessee of written notice from Lessor not earlier than
90 and not later than 30 days prior to the end of the term of this
Lease, Lessor may require that any or all Lessee Owned Alterations
or Utility Installations be removed by the expiration or
termination of this Lease. Lessor may require the removal at any
time of all or any part of any Lessee Owned Alterations or Utility
Installations made without the required consent.
(c) Surrender;
Restoration. Lessee shall surrender the Premises by the
Expiration Date or any earlier termination date, with all of the
improvements, parts and surfaces thereof broom clean and free of
debris, and in good operating order, condition and state of repair,
ordinary wear and tear excepted. “Ordinary wear and
tear” shall not include any damage or deterioration that
would have been prevented by good maintenance practice.
Notwithstanding the foregoing, if this Lease is for 12 months or
less, then Lessee shall surrender the Premises in the same
condition as delivered to Lessee on the Start Date with NO
allowance for ordinary wear and tear. Lessee shall repair any
damage occasioned by the installation, maintenance or removal of
Trade Fixtures, Lessee owned Alterations and/or Utility
Installations, furnishings, and equipment as well as the removal of
any storage tank installed by or for Lessee. Lessee shall also
completely remove from the Premises any and all Hazardous
Substances brought onto the Premises by or for Lessee, or any third
party (except Hazardous Substances which were deposited via
underground migration from areas outside of the Project) even if
such removal would require Lessee to perform or pay for work that
exceeds statutory requirements. Trade Fixtures shall remain the
property of Lessee and shall be removed by Lessee. The failure by
Lessee to timely vacate the Premises pursuant to this
Paragraph 7.4(c) without the express written consent of Lessor
shall constitute a holdover under the provisions of
Paragraph 26 below.
8. Insurance;
Indemnity.
8.1 Payment of
Premiums. The cost of the premiums for the insurance policies
required to be carried by Lessor, pursuant to
Paragraphs 8.2(b), 8.3(a) and 8.3(b), shall be a Common Area
Operating Expense. Premiums for policy periods commencing prior to,
or extending beyond, the term of this Lease shall be prorated to
coincide with the corresponding Start Date or Expiration
Date.
8.2 Liability
Insurance.
(a) Carried by Lessee.
Lessee shall obtain and keep in force a Commercial General
Liability policy of insurance protecting Lessee and Lessor as an
additional insured against claims for bodily injury, personal
injury and property damage based upon or arising out of the
ownership, use, occupancy or maintenance of the Premises and all
areas appurtenant thereto. Such insurance shall be on an occurrence
basis providing single limit coverage in an amount not less than
$1,000,000 per occurrence with an annual aggregate of not less than
$2,000,000, an “Additional Insured-Managers or Lessors of
Premises Endorsement” and contain the “Amendment of the
Pollution Exclusion Endorsement” for damage caused by heat,
smoke or fumes from a hostile fire. The policy shall not contain
any intra-insured exclusions as between insured persons or
organizations, but shall include coverage for liability assumed
under this Lease as an “ insured contract ” for
the performance of Lessee’s indemnity obligations under this
Lease. The limits of said insurance shall not, however, limit the
liability of Lessee nor relieve Lessee of any obligation hereunder.
All insurance carried by Lessee shall be primary to and not
contributory with any similar insurance carried by Lessor, whose
insurance shall be considered excess insurance only.
(b) Carried by Lessor.
Lessor shall maintain liability insurance as described in
Paragraph 8.2(a), in addition to, and not in lieu of, the
insurance required to be maintained by Lessee. Lessee shall not be
named as an additional insured therein.
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8.3 Property
Insurance—Building, Improvements and Rental
Value.
(a) Building and
Improvements. Lessor shall obtain and keep in force a policy or
policies of insurance in the name of Lessor, with loss payable to
Lessor, any ground-lessor, and to any Lender insuring loss or
damage to the Premises. The amount of such insurance shall be equal
to the full replacement cost of the Premises, as the same shall
exist from time to time, or the amount required by any Lender, but
in no event more than the commercially reasonable and available
insurable value thereof. Lessee Owned Alterations and Utility
Installations, Trade Fixtures, and Lessee’s personal property
shall be insured by Lessee under Paragraph 8.4. If the
coverage is available and commercially appropriate, such policy or
policies shall insure against all risks of direct physical loss or
damage (flood and/or earthquake), including coverage for debris
removal and the enforcement of any Applicable Requirements
requiring the upgrading, demolition, reconstruction or replacement
of any portion of the Premises as the result of a covered loss.
Said policy or policies shall also contain an agreed valuation
provision in lieu of any coinsurance clause, waiver of subrogation,
and inflation guard protection causing an increase in the annual
property insurance coverage amount by a factor of not less than the
adjusted U.S. Department of Labor Consumer Price Index for All
Urban Consumers for the city nearest to where the Premises are
located. If such insurance coverage has a deductible clause, the
deductible amount shall not exceed $1,000 per
occurrence.
(b) Rental Value.
Lessor shall also obtain and keep in force a policy or policies in
the name of Lessor with loss payable to Lessor and any Lender,
insuring the loss of the full Rent for one year with an extended
period of indemnity for an additional 180 days (“
Rental Value insurance ”). Said insurance shall
contain an agreed valuation provision in lieu of any coinsurance
clause, and the amount of coverage shall be adjusted annually to
reflect the projected Rent otherwise payable by Lessee, for the
next 12 month period.
(c) Adjacent Premises.
Lessee shall pay for any increase in the premiums for the property
insurance of the Building and for the Common Areas or other
buildings in the Project if said increase is caused by
Lessee’s acts, omissions, use or occupancy of the
Premises.
(d) Lessee’s
Improvements. Since Lessor is the Insuring Party,
Lessor
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