a Delaware limited liability
company
Corcept Therapeutics
Incorporated,
at 149 Commonwealth Drive, Menlo
Park, California
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Parties
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1
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Premises
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1
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Definitions
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1
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Lease
Term
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3
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A.
Term
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3
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B.
Commencement Date
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3
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C.
Commencement Date Memorandum
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4
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D. Early
Entry
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4
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E. Option To
Extend
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4
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Rent
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4
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A.
Prorations
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5
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B. Periodic
Adjustments
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5
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C.
Determination of Monthly Base Rent During Extension
Term
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5
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Late Payment
Charges
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6
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Security
Deposit
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7
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Holding
Over
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7
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Tenant
Improvements
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7
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Condition of
Premises
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7
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Use of the
Premises
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7
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A.
Tenant’s Use
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8
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B.
Compliance
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8
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C. Toxic
Material
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8
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D.
Transportation Systems Management
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9
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E. Rules and
Regulations
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9
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Quiet
Enjoyment
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10
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Alterations
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10
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Surrender of
the Premises
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10
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Operating
Expenses
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11
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A. Payment
by Tenant
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11
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B. Operating
Expenses
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11
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C.
Adjustment
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13
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D. Failure
to Pay
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14
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Taxes and
Assessments
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14
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A. Payment
by Tenant
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14
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B. Annual
Assessments
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14
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C. Taxes
Levied Against Tenant’s Alterations and Personal
Property
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14
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D. Failure
to Pay
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15
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Utilities
and Services
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15
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A. Services
Provided by Landlord
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15
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B. Services
Exclusive to Tenant
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15
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C. Hours of
Service
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15
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D. Excess
Usage by Tenant
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15
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E.
Interruptions
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15
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F. After
Hours HVAC
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15
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G.
Paging
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16
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Repair and
Maintenance
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16
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A. Premises,
Building and Outside Area
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16
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B. Control
and Reconfiguration
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17
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C.
Waiver
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17
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D.
Compliance with Governmental Regulations
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17
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E. Repair
Where Tenant at Fault
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18
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Fixtures
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18
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Liens
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18
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Landlord’s Right to Enter the
Premises
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18
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Signs
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18
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Insurance
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18
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A.
Indemnification
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18
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B.
Tenant’s Insurance
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19
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C.
Landlord’s Insurance
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19
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D. Evidence
of Insurance
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19
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E.
Co-Insurer
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19
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F. Insurance
Requirements
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19
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ii
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G. No
Limitation of Liability
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20
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H.
Landlord’s Disclaimer
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20
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I. Increased
Coverage
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20
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Waiver of
Subrogation
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20
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Damage or
Destruction
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20
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A. Partial
Damage — Insured
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20
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B. Partial
Damage — Uninsured
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20
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C. Total
Destruction
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21
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D.
Tenant’s Election
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21
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E.
Landlord’s Obligations
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21
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F. Damage
Near End of Term
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21
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Condemnation
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21
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A. Total
Taking — Termination
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21
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B. Partial
Taking
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22
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C. No
Apportionment of Award
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22
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D. Temporary
Taking
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22
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Assignment
and Subletting
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22
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A.
Landlord’s Consent
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22
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B.
Information to be Furnished
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22
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C.
Landlord’s Alternatives
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23
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D.
Proration
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23
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E. Executed
Counterpart
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23
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F. Surrender
of Lease
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23
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G. No
Mortgages
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23
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H. Effect of
Default
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23
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I. Permitted
Transfers
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23
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Sale
Lease-Back
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24
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Default
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24
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A.
Tenant’s Default
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24
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B.
Remedies
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25
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C.
Landlord’s Default
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26
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Notices
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26
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Estoppel
Certificates
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27
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Transfer of
the Project by Landlord
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27
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iii
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Landlord’s Right to Perform Tenant’s
Covenants
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27
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Tenant’s Remedy
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28
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Mortgagee
Protection
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28
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Brokers
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28
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Acceptance
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28
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Recording
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28
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Modifications for Lender
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28
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Parking
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28
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Use of
Property Name Prohibited
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29
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Interest
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29
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Quitclaim
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29
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Security
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29
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A. Landlord
Reservations
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29
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B. Tenant
Prohibitions
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29
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C. Security
Regulations
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29
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Right of
First Refusal
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30
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Ownership of
Furniture and Fixtures
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30
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General
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31
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A.
Captions
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31
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B. Executed
Copy
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31
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C.
Time
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31
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D.
Severability
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31
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E. Choice of
Law
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31
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F.
Interpretation
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31
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G. No Effect
of Remeasurement
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31
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H. Binding
Effect
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31
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I.
Waiver
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31
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J. Entire
Agreement
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31
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K.
Authority
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31
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L.
Exhibits
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31
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iv
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34
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EXHIBIT A-1
RIGHT OF FIRST REFUSAL SPACE
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35
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36
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EXHIBIT C
TENANT IMPROVEMENTS WORK LETTER
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37
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EXHIBIT C-1
APPROVED PLANS AND SPECIFICATIONS
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40
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EXHIBIT D
COMMENCEMENT DATE MEMORANDUM
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41
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EXHIBIT E RULES
AND REGULATIONS
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42
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v
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A.
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PARTIES
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1.
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Landlord:
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EXPONENT
REALTY, LLC, a Delaware limited liability company
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2.
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Tenant:
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Corcept
Therapeutics Incorporated, a Delaware corporation
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B.
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EFFECTIVE DATE
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May 23, 2005
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C.
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BASIC LEASE PROVISIONS
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1.
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Premises:
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a.
Address:
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149
Commonwealth Drive, Suite 1170 Menlo Park, California
94025
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b.
Floor:
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First
Floor
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c Total
Building rentable area (approx.):
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153,736
square feet
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2.
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Rentable Area
and Load Factor:
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7,702
rentable square feet
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a. Useable Area
(approx.)
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6,697
useable square feet
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b. Load Factor
(approx.)
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15%
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3.
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Term:
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Thirty
(30) months [assuming that the Commencement Date is the
Estimated Commencement Date], commencing on the Commencement Date
and ending on December 31, 2007, as such term may be extended
or sooner terminated as provided in this Lease
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4.
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Estimated
Commencement Date:
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July 1,
2005
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5.
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Tenant’s
Building Percentage:
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Four percent
(4%)
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6.
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Base
Rent:
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One dollar
eighty five ($1.85) per rentable square foot per month full service
for the entire lease term (or $14,248.70 monthly) with no annual
increases.
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7.
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Security
Deposit:
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Fourteen
thousand two hundred forty-eight dollars and seventy cents
($14,248.70)
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8.
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Base
Year:
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2005 (2005-2006
fiscal year for Real Property Taxes)
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9.
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Adjustments to
monthly Base Rent:
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None
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10
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Broker(s):
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Cushman &
Wakefield of California, Inc. and The Staubach Company
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11
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Address for
Notices:
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Landlord:
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Exponent
Realty, LLC 149 Commonwealth Drive Menlo Park, California 94025
Attn: Director of Corporate Facilities
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Tenant:
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From and after
the Commencement Date:
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Corcept
Therapeutics Incorporated
149 Commonwealth Drive
Menlo Park, California 94025
Attn: Mark Strem
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12
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TI
Allowance:
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N/A
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-ii-
1.
Parties . THIS OFFICE LEASE AGREEMENT
(“Lease”), effective as of the date (“Effective
Date”) set forth in section B of the Office Lease Agreement
Information Sheet (“Information Sheet”), is entered
into by and between Exponent Realty, LLC, a Delaware limited
liability company (“Landlord”), and the entity set
forth in section A.2. of the Information Sheet
(“Tenant”).
2.
Premises . Landlord hereby leases to Tenant, and
Tenant hereby leases from Landlord, a portion of that certain
Building located in the City of Menlo Park, County of San Mateo,
State of California containing the total rentable floor area set
forth in section C.2. of the Information Sheet, as more
particularly shown on EXHIBIT A (“Premises”),
and located at the address, as designated in section C.1. of the
Information Sheet, together with a right in common to the Outside
Area, as defined in Paragraph 3.K., of the Property, as
defined in Paragraph 3.N. Tenant’s right to use the Outside
Area shall be a right in common with other tenants of the Property
and is subject to the reasonable rules and regulations and changes
therein from time to time promulgated by Landlord governing the use
of the Outside Area. The currently existing such rules and
regulations are set forth on EXHIBIT E .
3.
Definitions . The following initially capitalized
terms shall have the following meanings when used in this
Lease:
A.
Alterations . Any alterations, additions or
improvements made in, on or about the Building or the Premises
after the Commencement Date, including, but not limited to,
lighting, heating, ventilating, air conditioning, electrical,
telecommunication cabling, partitioning, drapery and carpentry
installations.
B.
Building . That certain building on the Property,
commonly known as 149 Commonwealth Drive, Menlo Park, California
94025, containing an aggregate rentable area in the approximate
amount set forth in section C.1.c. of the Information
Sheet.
C.
CC&R’s . The declaration of covenants,
conditions, restrictions and easements contained in that certain
Grant Deed dated May 12, 1965 established by David D. Bohannon
and Ophelia E. Bohannon and recorded on May 14, 1965 in Book
4953 at page 326 et. seq., of the Official Records of San Mateo
County, California, as they may be amended from time to time.
Tenant hereby acknowledges that it has received and read a copy of
the present CC&R’s.
D.
City . The City of Menlo Park in the State of
California.
E.
Commencement Date . The Commencement Date of this
Lease shall be the first day of the Lease Term determined in
accordance with Paragraph 4.B.
F.
County . The County of San Mateo in the State of
California.
G.
HVAC . Heating, ventilating and air
conditioning.
H.
Interest Rate . Interest Rate shall have the meaning
set forth in Paragraph 44.
I.
Landlord’s Agents . Landlord’s authorized
agents, together with any partners and any subsidiary, parent, and
affiliate corporations, partnerships, limited liability
partnerships or limited liability companies of Landlord, and any
directors, officers, shareholders, members, managers, partners and
employees of Landlord or of any such agents, partners, or
subsidiary, parent or affiliate corporations, partnerships, limited
liability partnerships or limited liability companies.
1
J.
Monthly Rent . The rent payable pursuant to
Paragraph 5.A., as adjusted from time to time pursuant to the
terms of this Lease. Such amount includes monthly Base Rent (as
defined in section C.6 of the Information Sheet) and the Monthly
Operating Expense Reimbursement, as provided in such
Paragraph 5.A(ii).
K.
Outside Area . All areas and facilities within the
Property, but outside the Building, provided and designated by
Landlord for the general use and convenience of Tenant and other
tenants and occupants of the Building, including, without
limitation, the parking areas, access and perimeter roads,
sidewalks, landscaped areas, service areas, trash disposal
facilities, and similar areas and facilities, and the exterior
walls and windows of the Building, subject to the reasonable rules
and regulations and changes therein from time to time promulgated
by Landlord governing the use of the Outside Area. The current
rules and regulations are set forth on EXHIBIT E
.
L.
Permitted Transferees . Such term has the meaning
given to it in Section 27(i).
M.
Project . The Property, Building (including the
Premises), and Outside Area.
N.
Property . That certain real property, described in
EXHIBIT B upon which is located the Building.
O.
Real Property Taxes . Any form of assessment,
license, fee, rent tax, levy, interest or penalty (unless a result
of Tenant’s delinquency), or tax (other than net income,
estate, succession, inheritance, transfer or franchise taxes),
imposed by any authority having the direct or indirect power to
tax, or by any city, county, state or federal government or any
improvement or other district or division thereof, whether such tax
is: (i) determined by the value or area of the Project or any
part thereof (or any improvements now or hereafter made to the
Project or any portion thereof by Landlord, Tenant or other
tenants) or the rent and other sums payable hereunder by Tenant or
by other tenants, including, but not limited to, any gross income
or excise tax levied by any of the foregoing authorities with
respect to receipt of such rent or other sums due under this Lease;
(ii) upon any legal or equitable interest of Landlord in the
Project or any part thereof; (iii) upon this transaction or
any document to which Tenant is a party creating or transferring
any interest in the Project; (iv) levied or assessed in lieu
of, in substitution for, or in addition to, existing or additional
taxes against the Project whether or not now customary or within
the contemplation of the parties; (v) assessed for the purpose
of constructing or maintaining or reimbursing the cost of
construction of any streets, utilities or other public
improvements; (vi) surcharged against the parking area; or
(vii) levied upon any personal property of Landlord, Tenant or
other tenants located on or used exclusively in connection with the
operation of the Project. Notwithstanding anything to the contrary
contained in this Lease, Real Property Taxes shall not include any
of the following tax or assessment expenses: (a) gift taxes of
Landlord or any federal, state or local income, sales or transfer
tax, (b) penalties and interest, other than those attributable
to Tenant’s failure to comply timely with its obligations
pursuant to this Lease, (c) increases in Real Property Taxes
(whether increases result from increased rate, valuation, or both)
attributable to additional improvements to the Premises unless
constructed for Tenant’s primary benefit or for the common
benefit of Tenant and other tenants in the Project, and
(d) any Real Property Taxes in excess of the amount which
would be payable if such tax or assessment expense were paid in
installments over the longest possible term.
P.
Rent . Monthly Rent plus any other amounts payable by
Tenant under this Lease, all other such amounts being additional
rent hereunder for all purposes.
Q.
Sublet . Any assignment or transfer of any estate or
interest in this Lease; any subletting or parting with or sharing
of the occupation, control, or possession of the Premises, or of
any part thereof or any right or privilege appurtenant thereto;
allowing anyone to conduct business at or from the Premises
(whether as concessionaire, franchisee, licensee, permittee,
subtenant or otherwise); if Tenant is a corporation, any transfer
of the effective voting control of Tenant; if Tenant is a
partnership or limited liability company, any transfer of forty
percent (40%) or more, in the aggregate, of the interests in either
capital or profits of Tenant; any other transfer by
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voluntary or
involuntary act or by operation of law (including by merger or
consolidation); or any attempt to do any of the
foregoing.
R.
Subrent . Any consideration of any kind received, or
to be received, by Tenant from a subtenant if such sums are related
to Tenant’s interest in this Lease or in the Premises,
including, but not limited to, bonus money and payments (in excess
of fair market value) for Tenant’s assets including its trade
fixtures, equipment and other personal property, goodwill, general
intangibles, and any capital stock or other equity ownership of
Tenant or for any services provided by Tenant.
S.
Subtenant . The person or entity with whom a Sublet
agreement is proposed to be or is made.
T.
Tenant Improvements . Those certain improvements to
the Premises to be constructed by Tenant pursuant to EXHIBIT
C .
U.
Tenant’s Agents . Tenant’s agents,
employees, officers, directors, members, partners, contractors,
representatives, invitees and licensees.
V.
Tenant’s Building Percentage . The percentage
determined by dividing the approximate rentable square footage of
the Premises by the approximate total rentable square footage of
the Building. Tenant’s Building Percentage is currently
agreed to be the percentage set forth in section C.5. of the
Information Sheet.
W.
Tenant’s Personal Property . Tenant’s
trade fixtures, furniture, equipment and other personal property in
the Premises.
X.
Term . The term of this Lease set forth in
Paragraph 4.A., as it may be sooner terminated under the terms
hereof or as it may be extended hereunder pursuant to any options
to extend granted herein or by any written amendments to or
extensions of this Lease.
A.
Term . The Term shall be the period set forth in
section C.3. of the Information Sheet, commencing on the
Commencement Date, as defined below, and ending 5:00 p.m. on the
last day of such period, unless the Term is extended or sooner
terminated, as hereinafter provided.
B.
Commencement Date . Commencement Date shall be
defined to mean the earliest to occur of the following:
(i) the
date Tenant commences occupancy of any portion of the Premises for
the conduct of its business; or
(ii) the
date upon which the Tenant Improvements have been Substantially
Completed, as defined in the Tenant Improvements Work Letter
attached hereto as EXHIBIT C and incorporated by reference herein
(“Work Letter”), but in no event shall the Commencement
Date occur prior to July 1, 2005.
If
Landlord fails to deliver the Premises to Tenant with the Tenant
Improvements Substantially Completed (excluding, however, items 6
and 7 in Section 1 of the Work Letter) by June 30, 2005
for any reason other than due to a Tenant Delay (as defined in the
Work Letter), (i) Landlord shall reimburse Tenant for
Tenant’s holdover rent amount for its current premises in the
amount that is above and beyond the existing base rent and expenses
required to be paid by Tenant under its current lease until the
Commencement Date occurs, and Tenant shall not be obligated to pay
any Rent hereunder until the date that Landlord delivers possession
of the Premises to Tenant with the Tenant Improvements
Substantially Completed (which date shall then be deemed the
Commencement Date). No such delay in the Commencement Date shall
alter the validity of this Lease or the
3
obligations of
Tenant hereunder. Notwithstanding anything to the contrary
contained in this Lease, if Landlord has not delivered the Premises
to Tenant in the required condition by August 1, 2005,
excluding, however, items 6 and 7 in Section 1 of the Work
Letter) Tenant shall have the right to terminate this Lease as of
such date, in which case neither party shall have any further
rights or obligations under this Lease and Landlord promptly shall
refund to Tenant all sums paid by Tenant to Landlord in connection
with Tenant’s execution of this Lease.
C.
Commencement Date Memorandum . When the actual
Commencement Date is determined, the parties shall execute a
Commencement Date Memorandum, in the form attached hereto as
EXHIBIT D , setting forth the Commencement Date and
Expiration Date.
D.
Early Entry . Landlord shall permit Tenant to enter
upon the Premises from and after the date of full execution of this
Lease for the purpose of commencing construction of the Tenant
Improvements, in accordance with the provisions of EXHIBIT C
, installing its furniture, fixtures and telephone, internet and
data communications cabling and wiring or any other purpose,
excluding the conduct of its business; provided, however, that
Tenant may occupy the Premises for the purpose of conducting its
business thereon from June 20, 2005 until the Commencement
Date. Such early entry shall be at Tenant’s sole risk and
subject to all the terms and provisions hereof, except for the
payment of Rent which shall commence on the date set forth in
Paragraph 4.B. Landlord shall have the right to impose such
additional reasonable conditions on Tenant’s early entry as
Landlord reasonably shall deem appropriate, and shall further have
the right to require that Tenant execute an early entry agreement
in form reasonably satisfactory to Tenant containing such
conditions prior to Tenant’s early entry.
(i)
Conditions to Exercise of Option . Provided that Tenant is
not in Default under this Lease at the time of exercise of the
option to extend or at the commencement of the extension term,
Tenant shall have the right to extend the Term of this Lease for an
additional period of one (1) year (“Extension
Term”) commencing upon January 1, 2008.
(ii)
Notice of Exercise . If Tenant elects to extend this Lease
for the Extension Term, Tenant shall deliver written notice
(“Exercise Notice”) of its exercise to Landlord not
earlier than two hundred seventy (270) days prior to the
Expiration Date of the initial Term of this Lease and not less than
one hundred eighty (180) days prior to the Expiration Date of
the initial Term of this Lease. Tenant’s failure to deliver
the Exercise Notice in a timely manner shall be deemed a waiver of
Tenant’s rights to extend the Term of this Lease.
(iii)
Terms of the Extension Term . The delivery of an Exercise
Notice shall constitute an irrevocable election by Tenant to extend
the Term of the Lease upon the terms, covenants and conditions set
forth herein. The terms, covenants and conditions applicable to the
Extension Term shall be the same terms, covenants and conditions of
this Lease except that (i) Tenant shall not be entitled to any
further option to extend after the Extension Term; (ii) the
Monthly Base Rent for the Extension Term shall be adjusted as
provided in Paragraph 5.D.; and (iii) no provisions relating
to the initial delivery of the Premises to Tenant (including, but
not limited to, any TI Allowance provisions) shall be applicable to
the Extension Term.
(iv)
Extension Option Personal to Original Tenant . The option to
extend granted to Tenant pursuant to this Paragraph 4.E. shall
not be assignable to any successor or assign of Tenant except for a
Permitted Transferee, and shall terminate at the option of
Landlord, if, at any time during the initial Term of this Lease,
Tenant has subleased all or any portion of the Premises to any
other party except for a Permitted Transferee.
Monthly Rent . Upon execution of this Lease by
Tenant, Tenant shall prepay the first month’s Base Rent. On
or before the first day of each calendar month, without prior
notice or demand, deduction or offset,
4
Tenant shall
pay Monthly Rent to Landlord, in lawful money of the United States
at the Office of the Landlord specified in section C.11. of the
Information Sheet, or to such other place or person as Landlord may
designate in the manner set forth in Paragraph 31. Monthly
Rent shall consist of the sum of the following:
(i)
Base Rent . Base Rent in the amount specified in
section C.6. of the Information Sheet; and
(ii)
Monthly Operating Expense Reimbursement . Commencing
on January 1, 2006, the Monthly Operating Expense
Reimbursement (“Monthly Operating Expense
Reimbursement”) equal to one twelfth (1/12) of Tenant’s
Property Percentage of the amount by which Landlord’s
estimate of the Operating Expenses for the relevant calendar year
of the Term exceeds the Base Year Operating Expenses, as such terms
are defined in Paragraph 15.
A.
Prorations . If the Commencement Date is not the
first (1st) day of a month, or if the termination date is not the
last day of a month, a prorated monthly installment based on a
thirty (30) day month shall be paid for the fractional month
during which this Lease commences or terminates.
B.
Periodic Adjustments . INTENTIONALLY
OMITTED.
C.
Determination of Monthly Base Rent During Extension
Term .
(i)
Extension Term Initial Monthly Base Rent . The
monthly Base Rent during the first year of the Extension Term shall
be equal to the greater of (i) ninety five percent (95%) of
the “Fair Market Rental Value” of the Premises for the
first year of the Extension Term as of the first day of the
Extension Term determined as provided herein or (ii) the
monthly Base Rent for the last month of the initial Term of the
Lease, as adjusted as provided in Paragraph 5.C. of this Lease
and section C.9. of the Information Sheet (as so determined
pursuant to clause (i) or (ii) above) (the
“Extension Term Initial Monthly Base Rent”).
(ii)
Fair Market Rental Value . Fair Market Rental Value
as used herein shall mean: 100% of the monthly base rent and other
amounts new or renewal tenants (who do not have any below market
renewal rights) are then generally agreeing to pay under leases
then being executed or renewed for comparable, improved office
space in the Highway 101/Menlo Park submarket for office space. In
determining the fair market rental value of the Premises during the
Extension Term, consideration shall be given to all relevant
factors, including, without limitation, such factors as
credit-worthiness of the tenant, the duration of the term, any
rental or other concessions granted, whether a broker’s
commission or finder’s fee will be paid, responsibility for
Operating Expenses. the uses of the Premises permitted under this
Lease and the quality, condition, size, design and location of the
Premises. Notwithstanding anything to the contrary contained in
this Lease, the base year for the Extension Term shall be the
calendar year in which the Extension Term commences.
(iii)
Landlord and Tenant to Seek to Agree . Landlord and
Tenant shall have thirty (30) days after Landlord receives the
Exercise Notice in which to seek to agree on the Extension Term
Initial Monthly Base Rent. If Landlord and Tenant agree on the
Extension Term Initial Monthly Base Rent during such thirty
(30) day period (or at any time thereafter), they immediately
shall execute an amendment to this Lease confirming the Extension
Term Initial Monthly Base Rent as so agreed as the monthly Base
Rent for the first year of the Extension Term.
(iv)
Selection of Brokers to determine the Extension Term Initial
Monthly Base Rent . If Landlord and Tenant are unable to
agree on the Extension Term Initial Monthly Base Rent within the
thirty (30) day period, then within ten (10) days after
the expiration of the thirty (30) day period, Landlord and
Tenant each, at its cost and by giving notice to the other party,
shall appoint a licensed commercial real estate broker with at
least five (5) years’ full-time commercial brokerage
experience in the geographical area of the
5
Project (a
“Broker”) to evaluate and set the Extension Term
Initial Monthly Base Rent. If either Landlord or Tenant does not
appoint a Broker within ten (10) days after the other party
has given notice of the name of its Broker, the single Broker
appointed shall be the sole Broker and shall set the Extension Term
Initial Monthly Base Rent. If two (2) Brokers are appointed by
Landlord and Tenant as stated in this Paragraph, they shall meet
promptly and attempt to set the Extension Term Initial Monthly Base
Rent. If the two (2) Brokers are unable to agree within thirty
(30) days after the second Broker has been appointed, they
shall attempt to select a third Broker meeting the qualifications
stated in this Paragraph (with the additional qualification that
such third Broker shall have had no prior, current, or presently
committed future business or personal relationship with either
Landlord or Tenant) within ten (10) days after the last day
the two (2) Brokers are given to set the Extension Term
Initial Monthly Base Rent; provided, however, if the two
Broker’s proposed Extension Term Initial Monthly Base Rent
figures are ten percent (10%) or less apart, the two figures shall
be added together and such total be divided by two to determine the
Extension Term Initial Monthly Base Rent. If they are unable to
agree on the third Broker, either Landlord or Tenant, by giving ten
(10) days’ notice to the other party, can apply to the
then Presiding Judge of the Superior Court of San Mateo County for
the selection of a third Broker who meets the qualifications stated
in this Paragraph. Landlord and Tenant each shall bear one-half
(1/2) of the cost of appointing the third Broker and of paying the
third Broker’s fee.
(v)
Value Determined by Three (3) Brokers . Within
thirty (30) days after the selection of the third Broker, a
majority of the Brokers shall set the Extension Term Initial
Monthly Base Rent. If a majority of the Brokers is unable to set
the Extension Term Initial Monthly Base Rent within the stipulated
period of time, the three (3) evaluations shall be added
together and their total divided by three (3); the resulting
quotient shall be the Extension Term Initial Monthly Base Rent for
the Premises. If the low evaluation is more than ten percent (10%)
lower than the middle evaluation, the low evaluation shall be
disregarded; if the high evaluation is more than ten percent (10%)
higher than the middle evaluation, the high evaluation shall be
disregarded. If only one (1) evaluation is disregarded, the
remaining two (2) evaluations shall be added together and
their total divided by two (2); the resulting quotient shall be the
Extension Term Initial Monthly Base Rent for the Premises. If both
the low evaluation and the high evaluation are disregarded as
stated in this Paragraph, the middle evaluation shall be the
Extension Term Initial Monthly Base Rent for the
Premises.
(vi)
Notice to Landlord and Tenant . After the Extension
Term Initial Monthly Rent for the first year of the Extension Term
has been set, the Brokers shall notify Landlord and Tenant
immediately and Landlord and Tenant shall immediately execute an
amendment to this Lease confirming the Extension Term Initial
Monthly Rent as so determined as the Monthly Rent for the first
year of the Extension.
6.
Late Payment Charges . TENANT ACKNOWLEDGES THAT LATE
PAYMENT BY TENANT TO LANDLORD OF RENT AND OTHER CHARGES PROVIDED
FOR UNDER THIS LEASE WILL CAUSE LANDLORD TO INCUR COSTS NOT
CONTEMPLATED BY THIS LEASE, THE EXACT AMOUNT OF SUCH COSTS BEING
EXTREMELY DIFFICULT OR IMPRACTICABLE TO FIX. THEREFORE, IF ANY
INSTALLMENT OF RENT OR ANY OTHER CHARGE DUE FROM TENANT IS NOT
RECEIVED BY LANDLORD WITHIN FIVE DAYS FOLLOWING THE DATE OF
LANDLORD’S DELIVERY OF WRITTEN NOTICE TO TENANT STATING THAT
SUCH AMOUNT WAS NOT RECEIVED ON OR BEFORE THE DATE DUE, TENANT
SHALL PAY TO LANDLORD AN ADDITIONAL SUM EQUAL TO FIVE PERCENT (5%)
OF THE AMOUNT OVERDUE AS A LATE CHARGE. THE PARTIES AGREE THAT THIS
LATE CHARGE REPRESENTS A FAIR AND REASONABLE ESTIMATE OF THE COSTS
THAT LANDLORD WILL INCUR BY REASON OF THE LATE PAYMENT BY TENANT.
SUCH LATE CHARGE SHALL BE IN ADDITION TO, AND NOT IN LIEU OF, ANY
INTEREST THAT MAY ACCRUE ON ANY SUCH OVERDUE AMOUNT PURSUANT TO THE
PROVISIONS OF PARAGRAPH 44.
6
7.
Security Deposit . By execution hereof, Landlord
acknowledges receipt of the sum set forth in section C.7. of the
Information Sheet from Tenant, as security for the faithful
performance by Tenant of all of the terms and conditions of this
Lease to be kept and performed by Tenant during the term hereof
(“Security Deposit”). As the Monthly Rent is adjusted
under the provisions of this Lease, Tenant shall pay an additional
amount to Landlord to maintain the amount of the Security Deposit
equal to the then effective Monthly Rent under this Lease. The
Security Deposit shall secure Tenant’s obligations hereunder
to pay rent and all other sums due to Landlord hereunder, to
maintain the Premises and repair damages thereto as provided in
this Lease, to surrender the Premises to Landlord in clean
condition and good repair upon termination of this Lease and timely
to discharge Tenant’s other obligations hereunder. Landlord
may use and commingle the Security Deposit with other funds of
Landlord. If Tenant commits a Default hereunder, then Landlord may,
but without any obligation so to do, apply that portion of the
Security Deposit necessary to cure such Default and to reimburse
Landlord for any sums incurred by Landlord as a result of such
Default. If Landlord does so apply any portion of the Security
Deposit, Tenant, within five (5) days after receipt of written
demand by Landlord, shall pay to Landlord a sufficient amount in
cash to restore the Security Deposit to its full original amount.
On the expiration or earlier termination of this Lease, if Tenant
has then fully performed all its obligations hereunder, Landlord
shall return the Security Deposit to Tenant not more than thirty
(30) days after Tenant has surrendered the Premises to
Landlord in the condition required by this Lease. If Landlord,
prior to the expiration of the term of this Lease, sells or
otherwise transfers Landlord’s rights or interest under this
Lease, Landlord shall deliver the Security Deposit to the
transferee, whereupon, Landlord shall have no further liability to
Tenant concerning the Security Deposit. In the event that the
Security Deposit is delivered to Landlord in the form of a letter
of credit, to the extent permitted under this Lease, Landlord shall
be entitled to draw the entire amount of such letter of credit in
the event that such letter of credit is not extended for an
additional one year period by the issuing bank on or before the
date that is thirty (30) days prior to the expiration date
thereof. In such event, Landlord shall hold such cash proceeds of
the applicable letter of credit as the Security Deposit
hereunder.
8.
Holding Over . If Tenant remains in possession of all
or any part of the Premises after the expiration of the Term, with
the consent of Landlord, such tenancy shall be from month-to-month
only and not a renewal hereof or any extension for any further
term, and in such case, Monthly Rent shall be increased to an
amount equal to one hundred fifty percent (150%) of the Monthly
Rent paid during the last month of the Term and all other sums due
hereunder shall be payable in the amount and at the time applicable
at the time of expiration and at the time specified in this Lease
and such month-to-month tenancy shall be subject to every other
term, covenant and agreement of this Lease, excluding any option to
extend the Term. In addition, Tenant shall defend, indemnify and
hold Landlord, and Landlord’s Agents free and harmless from
and against any claim, loss, liability, expense or damage,
including reasonable attorneys’ fees and costs, arising out
of Tenant’s failure to surrender the Premises at the
expiration of the Term, including, without limitation, any such
damages resulting from Landlord’s inability to honor its
commitments to any other tenant for the Premises.
9.
Tenant Improvements . Landlord and Tenant agree to
the terms and procedures for the planning, construction and funding
of the construction of the Tenant Improvements as set forth in
EXHIBIT C .
10.
Condition of Premises . By taking possession of the
Premises, Tenant shall be deemed to have accepted the Premises in
“As Is” condition in good, clean and completed
condition and repair, subject to all applicable laws, codes and
ordinances. Tenant acknowledges that, except as expressly set forth
in this Lease, neither Landlord nor Landlord’s Agents have
made any representations or warranties as to the suitability or
fitness of the Premises or any other part of the Project
(including, without limitation, the intrabuilding network cabling)
for the conduct of Tenant’s business or for any other
purpose, nor has Landlord or Landlord’s Agents agreed to
undertake any Alterations or construct any Tenant Improvements to
the Premise except as expressly provided in Exhibit C of this
Lease.
11.
Use of the Premises .
7
A.
Tenant’s Use . Tenant shall use the Premises
solely for general office purposes and shall not use the Premises
for any other purpose without obtaining the prior written consent
of Landlord, which Landlord may withhold in its sole and absolute
discretion. Tenant agrees that the Property is subject and this
Lease is subordinate to the CC&R’s. Tenant acknowledges
that it has read the CC&R’s and knows the contents
thereof. Throughout the Term, Tenant shall faithfully and timely
perform and comply with the CC&R’s and any modification
or amendments thereof. Tenant shall comply with all duly adopted
rules, regulations and restrictions as may be adopted from time to
time by any committee established pursuant to the CC&Rs
(“Association”). Any periodic or special dues or
Outside Area assessments of the Association shall be included
within the definition of Operating Expenses pursuant to
Paragraph 15.B. and Tenant shall pay Tenant’s Property
Percentage of such amounts over the Base Year amounts as further
set forth in Paragraph 15. Tenant shall defend, indemnify and
hold Landlord, and Landlord’s Agents free and harmless from
and against any claim, loss, liability, expense or damage,
including reasonable attorneys’ fees and costs, arising out
of the actual or asserted failure of Tenant to perform or comply
with the CC&R’s. Tenant shall not permit or make any use
of the Premises which will increase the existing rate of insurance
upon the Project, or cause the cancellation of any insurance policy
covering the Project, or any part thereof. If any insurance policy
covering the Project is canceled as a result of Tenant’s or
Tenant’s Agent’s acts or omissions, then Landlord, in
addition to such remedies as Landlord may have under this Lease or
pursuant to law or equity, shall be entitled to reimbursement from
Tenant within ten (10) days after receipt of written demand
therefor for the entire amount of any additional amount which must
be paid for a new insurance policy.
B.
Compliance . Tenant shall not use the Project or
permit Tenant’s Agents to do anything in or about the Project
in conflict with any law, statute, zoning restriction, ordinance or
governmental law, rule, regulation or requirement of duly
constituted public authorities now in force or which may hereafter
be in force, or the requirements of the Board of Fire Underwriters
or other similar body now or hereafter constituted relating to or
affecting the condition, use or occupancy of the Project. If any
law, statute, zoning restriction, ordinance or governmental law,
rule, regulation or requirement of duly constituted public
authorities requires any capital improvement to the Premises or the
Building solely as the result of Tenant’s particular use of
the Premises, then Tenant shall be responsible for the same (or at
the election of Landlord, for reimbursing Landlord for the cost of
performing the same); provided, however, that if such capital
improvement is so required for any reason other than Tenant’s
particular use of the Premises, then Landlord shall be responsible
for the same, at Landlord’s sole cost and expense, subject to
Landlord’s right to include such amounts as Operating
Expenses on an amortized basis as provided in Paragraph 15.B.
Tenant shall not abandon the Premises; provided, however, that if
Tenant vacates the Premises while performing all of Tenant’s
other obligations under this Lease, such vacation shall not be
deemed an abandonment and a Default hereunder. Tenant shall not
commit any public or private nuisance or any other act or practice
which might or would disturb the quiet enjoyment of any other
tenant of Landlord or any occupant of nearby properties. Tenant
shall place no loads upon the floors, walls or ceilings in excess
of the maximum designed load determined by Landlord or which
endanger the structure; nor place any harmful liquids in the
drainage systems; nor dump or store waste materials or refuse or
allow such to remain outside the Building proper, except in the
enclosed trash areas provided. Tenant shall not store or permit to
be stored or otherwise placed any material of any nature whatsoever
outside the Building. If as a result of any use or change in use of
the Premises by Tenant or any Alteration (including, without
limitation, the Tenant Improvements) made to the Premises by or on
behalf of Tenant, any alterations are required to the Premises, the
Building or the Project (including, but not limited to, the
Americans with Disabilities Act, and any state or local building,
fire or safety codes, ordinances or regulations), Tenant shall be
responsible for the same (or at the election of Landlord, for
reimbursing Landlord for the cost of performing the
same).
C.
Toxic Material . Tenant, at its sole cost, shall
comply with and cause Tenant’s Agents to comply with all laws
relating to the storage, use and disposal of hazardous, toxic or
radioactive matter, including those materials identified in
Sections 66680 through 66685 of Title 22 of the California
Administrative Code, Division 4, Chapter 30 (“Title
22”) as they may be amended from time to time (collectively,
“Toxic Materials”). If Tenant or Tenant’s Agents
desire to store, use or dispose of any Toxic Materials in, on or
about the Premises (other than the storage and use of reasonable
quantities of customary office supplies), Tenant shall first
request and obtain Landlord’s approval to such proposed
storage, use or disposal in writing, which request must be made at
least ten
8
(10) days
prior to the storage, use or disposal thereof in, on or about the
Premises. Notwithstanding anything to the contrary contained in
this Lease, Tenant shall be permitted to use ordinary office and
cleaning products in amounts reasonably necessary for
Tenant’s permitted use of the Premises (“Permitted
Toxic Materials”), and Landlord hereby consents to such use
by Tenant. Whether or not Landlord is aware or approves of the
storage, use or disposal of any Toxic Material by Tenant or
Tenant’s Agents, Tenant shall be solely responsible for and
shall defend, indemnify and hold Landlord and Landlord’s
Agents harmless from and against all claims, costs and liabilities,
including reasonable attorneys’ fees and costs, arising out
of or in connection with the storage, use, generation,
transportation, disposal or release of Toxic Materials by Tenant or
Tenant’s Agents, including without limitation, any such
claims, costs, damages and liabilities (including reasonable
attorneys’ fees and costs) arising out of or in connection
with any investigation, testing, remediation, removal, clean-up
and/or restoration services, work, materials and equipment
necessary to return the Premises and any other property of whatever
nature to their condition existing prior to the storage, use,
generation, transportation, disposal or release of Toxic Materials
by Tenant or Tenant’s Agents in, on or about the Premises or
the Project, and to otherwise satisfactorily investigate and
remediate the contamination arising therefrom to the reasonable
satisfaction of Landlord and all governmental authorities. If at
any time during or after the term of this Lease, as it may be
extended, Tenant becomes aware of any injury, investigation,
administrative proceeding, or judicial proceeding regarding the
storage, use or disposition of any Toxic Materials by Tenant or
Tenant’s Agents on or about the Premises or the Project,
Tenant shall within five (5) days after first learning of such
injury, investigation or proceeding give Landlord written notice
advising Landlord of same. Tenant acknowledges receipt of a copy of
that certain June 1998 Focused Environmental Site Assessment,
149 Commonwealth Drive, Menlo Park, California, dated as of
August 16, 1998, prepared by The Gauntlett Group, LLC,
together with all attachments thereto (“Site
Assessment”), that Landlord previously made available to
Tenant, and which Tenant agrees to maintain in confidence. In
addition, Landlord utilizes Toxic Materials in the operation of its
business. Landlord represents and warrants to Tenant that Landlord
uses all such Toxic Materials in compliance with all applicable
laws, rules, regulations and ordinances. Landlord shall be solely
responsible for, and Tenant hereby is released from, and Landlord
shall defend, indemnify and hold Tenant and Tenant’s Agents
harmless from and against all claims, costs and liabilities,
including reasonable attorneys’ fees and costs, arising out
of or in connection with the storage, use, generation,
transportation, disposal or release of Toxic Materials (including,
without limitation, the Toxic Materials disclosed in the Site
Assessment) by any person other than Tenant or Tenant’s
Agents, including without limitation, any such claims, costs,
damages and liabilities (including reasonable attorneys’ fees
and costs) arising out of or in connection with any investigation,
testing, remediation, removal, clean up and/or restoration
services, work, materials and equipment necessary to return the
Premises and any other property of whatever nature to their
condition existing prior to the storage, use, generation,
transportation, disposal or release of Toxic Materials by any
person other than Tenant or Tenant’s Agents in, on or about
the Premises or the Project, and to otherwise satisfactorily
investigate and remediate the contamination arising therefrom to
the reasonable satisfaction of Tenant and all governmental au
thorities. The foregoing indemnities shall survive the expiration
or earlier termination of this Lease.
D.
Transportation Systems Management . Tenant shall
comply with the requirements of the City or County mandated parking
or transportation systems management ordinances.
E.
Rules and Regulations . The Rules and Regulations for
the Project in effect as of the Effective Date are attached hereto
as EXHIBIT E . Landlord reserves the right to adopt or amend
the Rules and Regulations from time to time in its reasonable
discretion. Tenant agrees that Tenant, its employees and agents
and, to the extent Tenant can require the same, its invitees and
others over whom Tenant can reasonably be expected to exercise
control, shall observe and perform the Rules and Regulations as
they may be amended or adopted. A breach of the Rules and
Regulations by Tenant or such persons shall constitute a Default
under this Lease as if the Rules or Regulations were contained in
this Lease as covenants of the Tenant. Tenant acknowledges that
Landlord has no obligation to enforce, and shall have no liability
for non-enforcement of, the Rules and Regulations. Notwithstanding
the foregoing, in the event of any inconsistency between the Rules
and Regulations and the provisions of this Lease, the provisions of
this Lease shall control, and Landlord shall not enforce the Rules
and Regulations in a discriminatory manner.
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12.
Quiet Enjoyment . Landlord covenants that Tenant,
upon performing the terms, covenants and conditions of this Lease,
shall have quiet and peaceful possession of the Premises as against
any person claiming the same by, through or under
Landlord.
13.
Alterations . Landlord hereby consents to
Tenant’s design and construction of the Tenant Improvements,
on the terms and subject to the conditions of Exhibit C
. Tenant shall not make or permit any Alterations in, on or about
the Premises without the prior written consent of Landlord, and
according to plans and specifications approved in writing by
Landlord, which consent and approval shall not be unreasonably
withheld, conditioned or delayed. Landlord, at its sole option,
may, however, require as a condition to the granting of any such
consent, where the cost of any Alteration is estimated to be in
excess of $15,000.00, that Tenant provide to Landlord, at
Tenant’s sole cost and expense, a lien and completion bond in
an amount equal to one and one-half (1 1 / 2
) times any and all estimated costs
of such intended improvements to the Premises, to insure Landlord
against any liability for mechanics’ and materialmen’s
liens and to insure completion of the work. Tenant shall, at its
sole cost and expense, obtain all necessary permits and
governmental inspections and approvals required in connection with
any Alterations. All Alterations shall be installed at
Tenant’s sole expense, in compliance with all applicable laws
(including, but not limited to, The Americans With Disabilities
Act, and any state or local building, fire or safety codes,
ordinances or regulations), the Rules and Regulations and the
CC&R’s, by a licensed contractor reasonably acceptable to
Landlord, shall be done in a good and workmanlike manner conforming
in quality and design with the Premises existing as of the
Commencement Date, and shall not diminish the value of the Project.
In the event that any Alteration made by Tenant necessitates the
making of other alterations to the interior or exterior of the
Building, the Outside Area or elsewhere within the Project for
purposes of complying with applicable laws (including, but not
limited to, The Americans With Disabilities Act, and any state or
local building, fire or safety codes, ordinances or regulations),
Tenant shall undertake such additional alterations at its sole cost
and expense or shall, at Landlord’s option, reimburse
Landlord for the cost and expenses incurred with respect to such
additional alterations required for purposes of complying with
applicable law as a result of Tenant’s Alterations. All
Alterations made by Tenant shall be and become the property of
Landlord upon installation and shall not be deemed Tenant’s
Personal Property; provided, however, that Landlord may, at its
option, at the time that Landlord grants consent therefor, require
that Tenant, at Tenant’s expense, prior to the expiration of
the Term of this Lease, remove any or all Alterations installed by
Tenant and return the Premises to their condition as of the
Commencement Date of this Lease, Tenant Improvements and normal
wear and tear, acts of God, condemnation, Toxic Materials not
stored, used, released or disposed of by Tenant or Tenant’s
Agents excepted and subject to the provisions of Paragraph 25.
Notwithstanding any other provisions of this Lease, Tenant shall be
solely responsible for the maintenance and repair of any and all
Alterations made by it to the Premises. Tenant shall give Landlord
written notice of Tenant’s intention to perform any work on
the Premises at least twenty (20) days prior to the
commencement of such work to enable Landlord to post and record an
appropriate Notice of Nonresponsibility or other notice deemed
proper before the commencement of any such work.
14.
Surrender of the Premises . Upon the expiration or
earlier termination of the Term, Tenant shall surrender the
Premises to Landlord in its condition existing as of the
Commencement Date, Tenant Improvements, Alterations that Landlord
did not require to have removed as a condition of installation,
normal wear and tear, acts of God, Toxic Materials not stored,
used, released or disposed of by Tenant or Tenant’s Agents
and fire or other insured casualty for which Tenant is not
otherwise obligated under the provisions of Paragraph 18 to
repair excepted, with all interior areas cleaned. Any damage or
deterioration of the Premises shall not be deemed ordinary wear and
tear if Tenant was responsible to maintain the same under the
provisions of Paragraph 18 and if the same could have been
prevented by good maintenance practices by Tenant. Except as
otherwise stated in this Lease, Tenant shall leave the air lines,
power panels, electrical distribution systems, lighting fixtures,
air conditioning, window coverings, wall coverings, carpets, wall
paneling, ceilings, and plumbing on the Premises and in good
operating condition. Tenant shall prior to the expiration or
termination of the Term remove from the Premises at Tenant’s
sole cost all of Tenant’s Alterations required to be removed
pursuant to Paragraph 13, and all Tenant’s Personal
Property, including all voice, data, and security wiring installed
by Tenant if requested by Landlord, and repair any damage and
perform any restoration work caused or necessitated by any such
removal. If Tenant fails to remove such Alterations and
Tenant’s Personal Property, and such failure continues after
the termination of this
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Lease, Landlord
may retain such property and all rights of Tenant with respect to
it shall cease, or Landlord may place all or any portion of such
property in public storage for Tenant’s account. Tenant shall
be liable to Landlord for costs of removal of any such Alterations
and Tenant’s Personal Property and storage and transportation
costs of same, and the cost of repairing and restoring the
Premises, together with interest at the Interest Rate from the date
of expenditure by Landlord until paid.
A.
Payment by Tenant . Commencing on January 1,
2006 and continuing thereafter during the Term of this Lease,
Tenant shall pay to Landlord, as Rent on a monthly basis as set
forth in Paragraph 5.A., one-twelfth (1/12) of Tenant’s
Property Percentage of the amount by which Landlord’s
reasonable estimate of the Operating Expenses for each calendar
year during the Term (after the Base Year) are reasonably estimated
by Landlord to exceed the Operating Expenses incurred by Landlord
for the Base Year, as such Base Year is specified in section C.8.
of the Information Sheet (“Base Year Operating
Expenses”).
B.
Operating Expenses . The term “Operating
Expenses” shall mean all expenses, costs and disbursements
(but not capital investment items except as otherwise expressly
provided below, or specific costs especially billed to and paid by
specific tenants) of every kind and nature which Landlord shall pay
or become obligated to pay because of or in connection with the
ownership, maintenance, repair or operation of the Project and such
additional building or Outside Area facilities in subsequent years
as may be determined by Landlord to be necessary or appropriate.
Operating Expenses shall include, but not be limited to, the
following, all of which shall be included in the Base
Year:
(i) Wages
and salaries of all employees engaged in the operation, maintenance
and security of the Project, including taxes, insurance and
benefits relating thereto; and the rental cost and overhead of any
office and storage space used to provide such services;
(ii) All
supplies and materials used in operation, repair and maintenance of
the Project;
(iii) Cost
of all utilities, including surcharges, for the Project, including
the cost of water, sewer, gas, power, heating, lighting, air
conditioning and ventilating for the Project;
(iv) Cost
of all maintenance and service agreements for the Project and the
equipment thereon, including but not limited to, security and
energy management services, window cleaning, floor waxing, elevator
maintenance, janitorial service, engineers, gardeners, and trash
removal services;
(v) Cost
of all insurance which Landlord or Landlord’s lender deems
necessary or appropriate for the Project such as the cost of
“All-Risk” property insurance including, at
Landlord’s option, earthquake and flood coverage, insurance
against loss of rents on an “All-Risk” basis, and a
lender’s loss payable endorsement in favor of any lenders
with respect to the Project, and naming Landlord and such lenders
as insureds; and casualty and liability insurance applicable to the
Building, Property and Outside Area and Landlord’s personal
property used in connection therewith, naming Landlord and
Landlord’s Agents as named or additional insureds;
(vi) Cost
of repairs and general maintenance (excluding repairs and general
maintenance to the extent then paid by proceeds of insurance or
other third parties);
(vii) A
management fee of no more than three percent (3%) of annual gross
rentals generated by the Project (which management may be provided
either by Landlord, affiliates of Landlord and/or by third parties)
(the “Management Fee”), and with any space in the
Project utilized by Landlord deemed to be leased at the rate of
Monthly Rent under this Lease (on a rentable square foot
basis);
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(viii) The
costs of any additional services not provided to the Project at the
Commencement Date but thereafter provided by Landlord in its
management of the Building, Property or Outside Area;
(ix) The
cost of only those capital improvements (including interest) made
to the Project after the Effective Date that are (i) intended
to reduce other Operating Expenses (as to which the amortized cost
to be included in Operating Expenses in any year shall be limited
to the actual reduction in Operating Expenses during such year as a
result thereof or (ii) are required to be made in order to
conform to any changes subsequent to the Commencement Date in any
applicable laws, ordinances, rules, regulations or orders of any
governmental agencies having jurisdiction over the Building or
which enhance in any material respect the general appearance or use
of the Project or any portion thereof, with the cost of such
capital improvements described in clauses (i) and (ii) above
being amortized with interest at an annual rate of eight percent
(8%) simple over the period Landlord reasonably determines to be
the useful life of the capital improvement, consistent with
applicable governmental requirements and generally accepted
accounting principles consistently applied, with Tenant paying
Tenant’s Building Percentage of such amortization payment for
each month after such improvement is completed until the first to
occur of the expiration of the Term or the end of the term over
which such costs are required to be amortized.;
(x) Real
Property Taxes, as that term is defined in Paragraph 16;
and
(xi) Assessments,
dues and other amounts payable pursuant to the CC&R’s,
including any and all assessments and dues of the
Association.
The
cost of additional or extraordinary services provided to Tenant and
not paid or payable by Tenant pursuant to other provisions of this
Lease shall be payable by Tenant on a monthly basis.
Operating
Expenses shall not include:
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(a)
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the
cost of any additional or extraordinary services provided to other
tenants of the Building;
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(b)
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costs paid for directly by
Tenant;
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(c)
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principal and interest payments on
loans secured by deeds of trust recorded against the
Project;
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(d)
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real estate sales or leasing
brokerage commissions; or
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(e)
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executive salaries of off-site
personnel employed by Landlord except for the charge (or pro rata
share) of the manager of the Project (which manager’s salary
is not included within the Management Fee).
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(f)
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attorneys’ fees, leasing
commissions, costs and disbursements and other expenses incurred in
connection with negotiations or disputes with Tenant, other
occupants, or prospective tenant or occupants;
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(g)
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renovating or otherwise improving,
decorating, painting or redecorating spaces for tenants or other
occupants of the Project;
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(h)
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costs incurred due to violations by
Landlord or any tenant of the terms and conditions of any
lease;
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(i)
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advertising and promotional
expenditures;
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(j)
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any
fines or penalties incurred due to violations by Landlord of any
law or governmental rule or authority;
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(k)
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the
cost of any items for which the Landlord is actually reimbursed by
condemnation proceeds, insurance carried (or required by this Lease
to be carried and not so carried) or by warranty or for which
Landlord is otherwise actually compensated;
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(l)
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costs for sculpture, painting or
other objects of art;
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(m)
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charitable contributions;
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(n)
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any
costs relating to Toxic Materials, asbestos and the like not
resulting from actions of Tenant;
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(o)
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costs incurred by Landlord due to
the negligence or misconduct of Landlord or its agents,
contractors, licensees and employees or the violation by Landlord
or any tenants or other occupants of the terms and conditions of
any lease of space or other agreements including this
Lease.
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The
Landlord shall not recover under this Section 15 or elsewhere
in this Lease any item of cost more than once. In addition,
notwithstanding anything to the contrary contained in this Lease,
Tenant’s Building Share of any deductible for earthquake or
flood insurance shall not exceed $10,000.00 per
occurrence.
(i)
Projected Increases . Prior to or at any time after
the commencement of each calendar year during the Term following
the Base Year, Landlord may provide Tenant with notice of
Landlord’s reasonable estimate of the amount by which the
then current year’s Operating Expenses are projected, if at
all, to exceed the Base Year Operating Expenses (the
“Projected Increase in Operating Expenses”). Tenant
shall thereafter during such year pay adjusted Monthly Rent which
shall include as the Monthly Operating Expense Reimbursement an
amount equal to one-twelfth (1/12) of Tenant’s Property
Percentage multiplied by any Projected Increase in Operating
Expenses.
(ii)
Accounting . Within ninety (90) days (or as soon
thereafter as possible) after the close of the Base Year, Landlord
shall provide Tenant a statement of the Base Year Operating
Expenses. Within ninety (90) days (or as soon thereafter as
possible) after the close of each calendar year after the Base
Year, Landlord shall provide Tenant a statement of (a) such
year’s actual Operating Expenses, (b) the Base Year
Operating Expenses, (c) the amount, if any, by which the
actual Operating Expenses exceed the Base Year Operating Expenses
(the “Actual Increase in Operating Expenses”),
(d) the amount equating to Tenant’s Property Percentage
of any Actual Increase in Operating Expenses and (e) the sum
of any amounts theretofore paid by Tenant as Monthly Operating
Expense Reimbursements pursuant to Paragraph 5.A. with respect
to such year. If the amount set forth in clause (d) above
exceeds the amount set forth in clause (e) above, Tenant shall
pay the amount of such excess to Landlord within fifteen
(15) days after receipt of such statement, which obligation
shall survive the expiration or earlier termination of its Term of
the Lease. If the amount set forth in clause (e) above exceeds
the amount set forth in clause (d) above, Landlord shall
credit the amount of such excess against the next accruing
payment(s) of Monthly Operating Expense Reimbursements or reimburse
Tenant for same if this Lease has terminated prior to the date such
determination is made. If Tenant disputes the amount of the Actual
Increase in Operating Expenses stated in said statement, Tenant may
designate, within sixty (60)days after receipt of such statement,
an independent certified public accountant to inspect
Landlord’s records, at Tenant’s sole cost. Tenant is
not entitled to request that inspection, however, if Tenant is then
in Default under this Lease. The accountant shall be a member of a
nationally recognized accounting firm and shall not charge a fee
based on the amount of the
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Actual Increase
in Operating Expenses that the accountant is able to save Tenant by
the inspection. Such accountant and Tenant shall, at
Landlord’s option, prior to the occurrence of any such
inspection, execute a confidentiality agreement in form reasonably
acceptable to the parties thereto in which such accountant and
Tenant agree to maintain Landlord’s books and records and the
results of such inspection in confidence. Tenant shall give
reasonable notice to Landlord of the request for inspection, and
the inspection shall be conducted in Landlord’s offices at a
reasonable time or times. If, after that inspection, Tenant still
disputes the Actual Increase in Operating Expenses, a certification
of the proper amount shall be made, at Tenant’s expense, by
Landlord’s independent certified public accountant. That
certification shall be final and conclusive. If any such
certification demonstrates that Landlord’s statement
overstated the amount of the Actual Increase in Operating Expenses,
Landlord shall credit or reimburse the amount of Tenant’s
Property Percentage thereof against the next accruing payment(s) of
Monthly Operating Expense Reimbursements or reimburse Tenant for
same if this Lease has terminated prior to the date such
determination is made. Such reimbursements are Tenant’s sole
remedy for any error in such statement from Landlord.
(iii)
Proration . Tenant’s liability to pay
Tenant’s Property Percentage of Operating Expenses in excess
of Base Year Operating Expenses shall be prorated on the basis of a
365-day year to account for any fractional portion of a year
included at the commencement or expiration of the term of this
Lease.
(iv)
Not Fully Occupied . Notwithstanding any other
provision to the contrary, it is agreed that if the Building, in
total, is less than ninety-five percent (95%) occupied during all
or any portion of any calendar year (including, without limitation,
the Base Year), an adjustment shall be made in calculating the
Operating Expenses for the Project for such year so that
Tenant’s Percentage of Operating Expenses in excess of the
Base Year Operating Expenses shall be equivalent to the Operating
Expenses calculated as though the Building, in total, had been
ninety-five percent (95%) occupied during the entirety of such
year.
(v)
Survival . Landlord and Tenant’s obligation to
pay for or credit any increase or decrease in payments pursuant to
this Paragraph shall survive the expiration or termination of the
Term of this Lease.
D.
Failure to Pay . Failure of Tenant to pay any of the
charges required to be paid under this Paragraph 15. shall
constitute a breach of this Lease and Landlord’s remedies
shall be as specified in Paragraph 29.B.
16. Taxes
and Assessments .
A.
Payment by Tenant . Except as provided for in
Paragraph 16.C., Real Property Taxes for the Project shall be
included within Operating Expenses pursuant to
Paragraph 15.B.
B.
Annual Assessments . With respect to any taxes or
assessments which may be levied against or upon the Project, or
which under the laws then in force may be evidenced by improvement
or other bonds or may be paid in annual installments, only the
amount of such annual installment (with appropriate proration for
any partial year) and interest due thereon shall be included within
the computation of the annual taxes and assessments levied against
the Project.
C.
Taxes Levied Against Tenant’s Alterations and Personal
Property . In addition to Tenant’s obligation to pay
its Property Percentage of Operating Expenses over Base Year
Operating Expenses as provided in Paragraphs 15 and 16.A.,
(i) Tenant shall be responsible for and shall pay to the
taxing authority prior to
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delinquency to
the extent Tenant is billed directly, all Real Property Taxes
assessed with respect to or against Tenant, or any Alterations,
improvements, fixtures, equipment, facilities, furniture or other
Personal Property owned by Tenant or placed, installed or located
within, upon or about the Premises by Tenant or at Tenant’s
direction (collectively “Personal Property Taxes”), and
(ii) to the extent any Personal Property Taxes are billed to
Landlord and Landlord elects not to include such Personal Property
Taxes in Operating Expenses, Tenant shall be responsible for and
shall pay to Landlord within ten (10) days after notice from
Landlord, the amount of such Personal Property Taxes so billed to
Landlord. Tenant shall provide Landlord with evidence of
Tenant’s payment of the same upon Landlord’s
request.
D.
Failure to Pay . Failure of Tenant to pay any of the
charges required to be paid under this Paragraph 16 shall
constitute a Default, and Landlord’s remedies shall be as
specified in Paragraph 29.B.
17.
Utilities and Services .
A.
Services Provided by Landlord . Landlord shall
provide heating, ventilation, air conditioning, security,
janitorial service, reasonable amounts of electricity for normal
lighting and office machines, water for reasonable and normal
drinking and lavatory use, and replacement light bulbs and/or
fluorescent tubes and ballasts for standard overhead fixtures. All
such costs shall be included in Operating Expenses, pursuant to
Paragraph 15.B.
B.
Services Exclusive to Tenant . Tenant shall pay for
all telephone and other utilities and services specially or
exclusively supplied and/or metered exclusively to the Tenant,
together with any taxes thereon. Any such services that are not
separately metered to the Premises shall be included in Operating
Expenses, pursuant to Paragraph 15.B.
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