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EXHIBIT 10.14 OFFICE LEASE AGREEMENT

Office Lease Agreement

EXHIBIT 10.14 OFFICE LEASE AGREEMENT 

 | Document Parties: CORCEPT THERAPEUTICS INC | EXPONENT REALTY, LLC. You are currently viewing:
This Office Lease Agreement involves

CORCEPT THERAPEUTICS INC | EXPONENT REALTY, LLC.

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Title: EXHIBIT 10.14 OFFICE LEASE AGREEMENT
Governing Law: California     Date: 8/11/2005

EXHIBIT 10.14 OFFICE LEASE AGREEMENT 

, Parties: corcept therapeutics inc , exponent realty  llc.
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Exhibit 10.14

OFFICE LEASE AGREEMENT

by and between

EXPONENT REALTY, LLC.

a Delaware limited liability company

(“Landlord”)

and

Corcept Therapeutics Incorporated,

a Delaware corporation

(“Tenant”)

For approximately

7,702

rentable square feet

at 149 Commonwealth Drive, Menlo Park, California

(“Premises”)

 


 

TABLE OF CONTENTS

 

 

 

 

 

1.

 

Parties

 

1

 

 

 

 

 

2.

 

Premises

 

1

 

 

 

 

 

3.

 

Definitions

 

1

 

 

 

 

 

4.

 

Lease Term

 

3

 

 

A. Term

 

3

 

 

B. Commencement Date

 

3

 

 

C. Commencement Date Memorandum

 

4

 

 

D. Early Entry

 

4

 

 

E. Option To Extend

 

4

 

 

 

 

 

5.

 

Rent

 

4

 

 

A. Prorations

 

5

 

 

B. Periodic Adjustments

 

5

 

 

C. Determination of Monthly Base Rent During Extension Term

 

5

 

 

 

 

 

6.

 

Late Payment Charges

 

6

 

 

 

 

 

7.

 

Security Deposit

 

7

 

 

 

 

 

8.

 

Holding Over

 

7

 

 

 

 

 

9.

 

Tenant Improvements

 

7

 

 

 

 

 

10.

 

Condition of Premises

 

7

 

 

 

 

 

11.

 

Use of the Premises

 

7

 

 

A. Tenant’s Use

 

8

 

 

B. Compliance

 

8

 

 

C. Toxic Material

 

8

 

 

D. Transportation Systems Management

 

9

 

 

E. Rules and Regulations

 

9

 

 

 

 

 

12.

 

Quiet Enjoyment

 

10

 

 

 

 

 

13.

 

Alterations

 

10

 

 

 

 

 

14.

 

Surrender of the Premises

 

10

i


 

 

 

 

 

 

15.

 

Operating Expenses

 

11

 

 

A. Payment by Tenant

 

11

 

 

B. Operating Expenses

 

11

 

 

C. Adjustment

 

13

 

 

D. Failure to Pay

 

14

 

 

 

 

 

16.

 

Taxes and Assessments

 

14

 

 

A. Payment by Tenant

 

14

 

 

B. Annual Assessments

 

14

 

 

C. Taxes Levied Against Tenant’s Alterations and Personal Property

 

14

 

 

D. Failure to Pay

 

15

 

 

 

 

 

17.

 

Utilities and Services

 

15

 

 

A. Services Provided by Landlord

 

15

 

 

B. Services Exclusive to Tenant

 

15

 

 

C. Hours of Service

 

15

 

 

D. Excess Usage by Tenant

 

15

 

 

E. Interruptions

 

15

 

 

F. After Hours HVAC

 

15

 

 

G. Paging

 

16

 

 

 

 

 

18.

 

Repair and Maintenance

 

16

 

 

A. Premises, Building and Outside Area

 

16

 

 

B. Control and Reconfiguration

 

17

 

 

C. Waiver

 

17

 

 

D. Compliance with Governmental Regulations

 

17

 

 

E. Repair Where Tenant at Fault

 

18

 

 

 

 

 

19.

 

Fixtures

 

18

 

 

 

 

 

20.

 

Liens

 

18

 

 

 

 

 

21.

 

Landlord’s Right to Enter the Premises

 

18

 

 

 

 

 

22.

 

Signs

 

18

 

 

 

 

 

23.

 

Insurance

 

18

 

 

A. Indemnification

 

18

 

 

B. Tenant’s Insurance

 

19

 

 

C. Landlord’s Insurance

 

19

 

 

D. Evidence of Insurance

 

19

 

 

E. Co-Insurer

 

19

 

 

F. Insurance Requirements

 

19

ii


 

 

 

 

 

 

 

 

G. No Limitation of Liability

 

20

 

 

H. Landlord’s Disclaimer

 

20

 

 

I. Increased Coverage

 

20

 

 

 

 

 

24.

 

Waiver of Subrogation

 

20

 

 

 

 

 

25.

 

Damage or Destruction

 

20

 

 

A. Partial Damage — Insured

 

20

 

 

B. Partial Damage — Uninsured

 

20

 

 

C. Total Destruction

 

21

 

 

D. Tenant’s Election

 

21

 

 

E. Landlord’s Obligations

 

21

 

 

F. Damage Near End of Term

 

21

 

 

 

 

 

26.

 

Condemnation

 

21

 

 

A. Total Taking — Termination

 

21

 

 

B. Partial Taking

 

22

 

 

C. No Apportionment of Award

 

22

 

 

D. Temporary Taking

 

22

 

 

 

 

 

27.

 

Assignment and Subletting

 

22

 

 

A. Landlord’s Consent

 

22

 

 

B. Information to be Furnished

 

22

 

 

C. Landlord’s Alternatives

 

23

 

 

D. Proration

 

23

 

 

E. Executed Counterpart

 

23

 

 

F. Surrender of Lease

 

23

 

 

G. No Mortgages

 

23

 

 

H. Effect of Default

 

23

 

 

I. Permitted Transfers

 

23

 

 

 

 

 

28.

 

Sale Lease-Back

 

24

 

 

 

 

 

29.

 

Default

 

24

 

 

A. Tenant’s Default

 

24

 

 

B. Remedies

 

25

 

 

C. Landlord’s Default

 

26

 

 

 

 

 

31.

 

Notices

 

26

 

 

 

 

 

33.

 

Estoppel Certificates

 

27

 

 

 

 

 

34.

 

Transfer of the Project by Landlord

 

27

iii


 

 

 

 

 

 

35.

 

Landlord’s Right to Perform Tenant’s Covenants

 

27

 

 

 

 

 

36.

 

Tenant’s Remedy

 

28

 

 

 

 

 

37.

 

Mortgagee Protection

 

28

 

 

 

 

 

38.

 

Brokers

 

28

 

 

 

 

 

39.

 

Acceptance

 

28

 

 

 

 

 

40.

 

Recording

 

28

 

 

 

 

 

41.

 

Modifications for Lender

 

28

 

 

 

 

 

42.

 

Parking

 

28

 

 

 

 

 

43.

 

Use of Property Name Prohibited

 

29

 

 

 

 

 

44.

 

Interest

 

29

 

 

 

 

 

45.

 

Quitclaim

 

29

 

 

 

 

 

46.

 

Security

 

29

 

 

      A. Landlord Reservations

 

29

 

 

      B. Tenant Prohibitions

 

29

 

 

      C. Security Regulations

 

29

 

 

 

 

 

47.

 

Right of First Refusal

 

30

 

 

 

 

 

48.

 

Ownership of Furniture and Fixtures

 

30

 

 

 

 

 

49.

 

General

 

31

 

 

      A. Captions

 

31

 

 

      B. Executed Copy

 

31

 

 

      C. Time

 

31

 

 

      D. Severability

 

31

 

 

      E. Choice of Law

 

31

 

 

      F. Interpretation

 

31

 

 

      G. No Effect of Remeasurement

 

31

 

 

      H. Binding Effect

 

31

 

 

      I. Waiver

 

31

 

 

      J. Entire Agreement

 

31

 

 

      K. Authority

 

31

 

 

      L. Exhibits

 

31

iv


 

 

 

 

 

 

EXHIBIT A PREMISES

 

 

34

 

 

 

 

 

 

EXHIBIT A-1 RIGHT OF FIRST REFUSAL SPACE

 

 

35

 

 

 

 

 

 

EXHIBIT B PROPERTY

 

 

36

 

 

 

 

 

 

EXHIBIT C TENANT IMPROVEMENTS WORK LETTER

 

 

37

 

 

 

 

 

 

EXHIBIT C-1 APPROVED PLANS AND SPECIFICATIONS

 

 

40

 

 

 

 

 

 

EXHIBIT D COMMENCEMENT DATE MEMORANDUM

 

 

41

 

 

 

 

 

 

EXHIBIT E RULES AND REGULATIONS

 

 

42

 

v


 

OFFICE LEASE AGREEMENT

INFORMATION SHEET

(“INFORMATION SHEET”)

 

 

 

 

 

 

 

A.

 

  PARTIES

 

 

 

 

 

 

 

 

 

 1.

 

Landlord:

 

 EXPONENT REALTY, LLC, a Delaware limited liability company

 

 

 

 

 

 

 

 

 

 2.

 

Tenant:

 

 Corcept Therapeutics Incorporated, a Delaware corporation

 

 

 

 

 

 

 

B.

 

  EFFECTIVE DATE

 

 May 23, 2005

 

 

 

 

 

 

 

C.

 

  BASIC LEASE PROVISIONS

 

 

 

 

 

 

 

 

 

 1.

 

Premises:

 

 

 

 

 

 

 

 

 

 

 

 

 

a. Address:

 

 149 Commonwealth Drive, Suite 1170 Menlo Park, California 94025

 

 

 

 

 

 

 

 

 

 

 

b. Floor:

 

 First Floor

 

 

 

 

 

 

 

 

 

 

 

c Total Building rentable area (approx.):

 

 153,736 square feet

 

 

 

 

 

 

 

 

 

 2.

 

Rentable Area and Load Factor:

 

 7,702 rentable square feet

 

 

 

 

 

 

 

 

 

 

 

a. Useable Area (approx.)

 

 6,697 useable square feet

 

 

 

 

 

 

 

 

 

 

 

b. Load Factor (approx.)

 

 15%

 

 

 

 

 

 

 

 

 

 3.

 

Term:

 

 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

-i-


 

 

 

 

 

 

 

 

 

 

 4.

 

Estimated Commencement Date:

 

July 1, 2005

 

 

 

 

 

 

 

 

 

 5.

 

Tenant’s Building Percentage:

 

Four percent (4%)

 

 

 

 

 

 

 

 

 

 6.

 

Base Rent:

 

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.

 

 

 

 

 

 

 

 

 

 7.

 

Security Deposit:

 

Fourteen thousand two hundred forty-eight dollars and seventy cents ($14,248.70)

 

 

 

 

 

 

 

 

 

 8.

 

Base Year:

 

2005 (2005-2006 fiscal year for Real Property Taxes)

 

 

 

 

 

 

 

 

 

 9.

 

Adjustments to monthly Base Rent:

 

None

 

 

 

 

 

 

 

 

 

 10

 

Broker(s):

 

Cushman & Wakefield of California, Inc. and The Staubach Company

 

 

 

 

 

 

 

 

 

 11

 

Address for Notices:

 

 

 

 

 

 

 

 

 

 

 

 

 

Landlord:

 

Exponent Realty, LLC 149 Commonwealth Drive Menlo Park, California 94025 Attn: Director of Corporate Facilities

 

 

 

 

 

 

 

 

 

 

 

Tenant:

 

From and after the Commencement Date:

 

 

 

 

 

 

Corcept Therapeutics Incorporated
149 Commonwealth Drive
Menlo Park, California 94025
Attn: Mark Strem

 

 

 

 

 

 

 

 

 

 12

 

TI Allowance:

 

N/A

-ii-


 

OFFICE LEASE AGREEMENT

     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.

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               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

2


 

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.

     4.  Lease Term .

               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.

               E.  Option To Extend .

                    (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.

     5.  Rent .

           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.

Initials:

 

 

 

/s/ MRG

 

           /s/ FK

 

 

 

Landlord

 

Tenant

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     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 .

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          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.

     15.  Operating Expenses .

          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:

 

(a)

 

the cost of any additional or extraordinary services provided to other tenants of the Building;

 

 

 

 

 

(b)

 

costs paid for directly by Tenant;

 

 

 

 

 

(c)

 

principal and interest payments on loans secured by deeds of trust recorded against the Project;

 

 

 

 

 

(d)

 

real estate sales or leasing brokerage commissions; or

 

 

 

 

 

(e)

 

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).

 

 

 

 

 

(f)

 

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;

 

 

 

 

 

(g)

 

renovating or otherwise improving, decorating, painting or redecorating spaces for tenants or other occupants of the Project;

 

 

 

 

 

(h)

 

costs incurred due to violations by Landlord or any tenant of the terms and conditions of any lease;

 

 

 

 

 

(i)

 

advertising and promotional expenditures;

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(j)

 

any fines or penalties incurred due to violations by Landlord of any law or governmental rule or authority;

 

 

 

 

 

(k)

 

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;

 

 

 

 

 

(l)

 

costs for sculpture, painting or other objects of art;

 

 

 

 

 

(m)

 

charitable contributions;

 

 

 

 

 

(n)

 

any costs relating to Toxic Materials, asbestos and the like not resulting from actions of Tenant;

 

 

 

 

 

(o)

 

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.

          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.

          C. Adjustment .

               (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

13


 

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

14


 

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.

          C. Hours of Service .


 
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