EXHIBIT 10.26 LEASE (Portion of Building in Park)Office Lease Agreement |
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EXHIBIT 10.26
LEASE
TABLE OF CONTENTS
EXHIBITS
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OAK VALLEY BUSINESS CENTER
THIS LEASE (hereinafter called this “Lease”) is made and entered into as of the day of the 10th day of June , 2004, by and between WVB HOLDINGS, LLC, a California limited liability company, as landlord (hereinafter called “Landlord”), and ADVANCED TELCOM, INC., a Delaware corporation, as tenant (hereinafter called “Tenant”).
WITNESSETH:
The parties hereto hereby covenant and agree as follows:
1. DEMISE; PREMISES :(a) Landlord does hereby lease and demise to Tenant, and Tenant does hereby hire and take from Landlord, the following described premises in the building located at and commonly known as 463 Aviation Blvd. (hereinafter called the “Building”), located in Oak Valley Business Center (hereinafter called the “Park”) in the County of Sonoma and State of California, to wit: approximately eleven thousand (11,000) rentable square feet of space and approximately nine thousand eight hundred twenty-one (9,821) usable square feet of space on the first floor, all as shown crosshatched on the floor plan(s) attached as EXHIBIT “A” (hereinafter called the “Premises”); together with any and all appurtenances, rights, privileges and easements pertaining thereto including, but not limited to, the non-exclusive right to use in common with Landlord and other occupants of the Building such elevators, stairways, corridors, entranceways, rest rooms, walkways, roadways, driveways, loading docks, parking facilities and other similar or related facilities as may exist in and about the Building, Park and Land (as hereinafter defined) and that are designated by Landlord for the general use, convenience or benefit of Tenant and other tenants of the Building and the Park (hereinafter collectively called the “Common Areas”). Those Common Areas which are for the exclusive use of occupants of the Building are hereinafter called “Building Common Areas”, and those Common Areas which are for the use of all occupants of the Park are hereinafter called “Park Common Areas”. Landlord warrants and represents to Tenant that (a) the Park consists of approximately ninety-one thousand (91,000) rentable square feet of space and (b) the Building contains approximately forty thousand (40,000) rentable square feet of space (with all measurements determined in accordance with modified standards of the Building Owners and Managers Association). The parcel of land upon which the Building is located is hereinafter referred to as the “Land.” A plot plan of the Park, Land, Building and other improvements is attached as EXHIBIT “B”. Landlord further represents and warrants that Landlord is the fee owner of the Park and the Building, and has full right and authority to lease the Premises to Tenant on the terms and conditions set out herein.(b) Landlord reserves the right to (i) install, use, maintain, repair, replace and relocate pipes, ducts, shafts, conduits, wires, appurtenant meters and mechanical, electrical and plumbing equipment and appurtenant facilities for service to other parts of the Building or Park above the ceiling surfaces, below the floor surfaces and within the walls of the Premises and in
the central core areas of the Building and in the Building Common Areas, and to install, use, maintain, repair, replace and relocate any pipes, ducts, shafts, conduits, wires, appurtenant meters and mechanical, electrical and plumbing equipment and appurtenant facilities servicing the Premises, which are located either in the Premises or elsewhere outside of the Premises; (ii) change the boundary lines of the Park; (iii) alter or relocate the Common Areas, (iv) designate and/or redesignate specific parking spaces in the Park for the exclusive or non-exclusive use of specific tenants in the Park; and (v) perform such other acts and make such other changes in, to or with respect to the Common Areas, Building and/or Park as Landlord may reasonably deem appropriate; so long as Tenant’s use, occupancy and access to the Premises is not materially and adversely impacted as a result of any such changes.(c) All Common Areas shall be subject to the exclusive control and management of Landlord and Landlord shall have the right to establish, modify, amend and enforce reasonable rules and regulations with respect to the Common Areas. Tenant acknowledges receipt of a copy of the current rules and regulations (the “Rules”) attached hereto as EXHIBIT “C”, and agrees that they may, from time to time, be modified or amended by Landlord in a commercially reasonable manner. Tenant agrees to abide by and conform with the Rules; to cause its concessionaires and its and their employees and agents to abide by the Rules; and to use its best efforts to cause its customers, invitees and licensees to abide by the Rules. Notwithstanding the foregoing, Landlord shall not establish, amend or modify any rule or regulation which will materially and adversely impact Tenant’s use, occupancy and access to the Premises and Common Areas without the prior written consent of Tenant, which consent shall not be unreasonably withheld.2. USE :Tenant may use the Premises solely for office, administrative and research and development uses (“Tenant’s Intended Use”) and for no other use without Landlord’s prior written consent. Tenant shall, at Tenant’s expense, comply promptly with all applicable federal, state and local laws, regulations, ordinances, rules, orders, and requirements in effect during the Term relating to the condition, use or occupancy of the Premises. Tenant shall not use or permit the use of the Premises in any manner that will tend to create waste or a nuisance, or that unreasonably disturbs other tenants of the Building or Park, nor shall Tenant place or maintain any signs, antennas, awnings, lighting or plumbing fixtures, loudspeakers, exterior decoration or similar devises on the Building or the Park or visible from the exterior of the Premises without Landlord’s prior written consent, which consent may be withheld in Landlord’s sole discretion.
3. TERM; POSSESSION :(a) The initial term of this Lease (the “Initial Term”) is for a period of three (3) Lease Years commencing on the date (the “Commencement Date”) the Premises are delivered to Tenant in “substantially completed” condition (as defined in Paragraph 23), subject to adjustment for Tenant Delays (defined below), and shall continue until midnight on the last day of the third Lease Year (the “Expiration Date”), unless extended or sooner terminated as hereinafter provided. The Initial Term, together with each and every “Extended Term” (as defined in Paragraph 22 hereof) which shall be duly exercised by Tenant pursuant to the provisions of Paragraph 22, are hereinafter collectively called the “Term”. The estimated
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Commencement Date is August 1, 2004 (the “Estimated Commencement Date”). Landlord shall deliver possession of the Premises to Tenant free and clear of all tenancies and occupancies, broom clean and in good order and condition and with all alterations and improvements, if any, to be made by Landlord as may be elsewhere provided for in this Lease, substantially completed in a first-class workmanlike manner. If for any reason Landlord has not delivered to Tenant possession of the Premises by the Estimated Commencement Date, this Lease shall remain in effect and Landlord shall not be liable to Tenant for any loss or damage resulting therefrom, except as otherwise provided herein.(b) For purposes of this Lease, the first “Lease Year” shall mean the period commencing on the Commencement Date and ending twelve (12) months thereafter, except that if the Commencement Date is other than the first day of a calendar month, the first “Lease Year” shall mean the period commencing on the Commencement Date and ending on the last day of the twelfth (12th) full calendar month after the Commencement Date. Thereafter, the term “Lease Year” shall mean a period equal to twelve (12) full calendar months, except that if the Commencement Date is other than the first day of a calendar month the final “Lease Year” shall be extended as necessary to ensure that the Lease expires at the end of the Term.(c) If the Commencement Date of the Lease has not occurred on or before the Estimated Commencement Date, and if the cause of the delay in the occurrence of the Commencement Date is solely attributable to Tenant, then the Lease shall begin on the date the Commencement Date otherwise would have occurred but for the Tenant delays (“Tenant Delays”). Tenant Delays shall include, without limitation, those caused by (a) any changes to the Work (defined in Paragraph 23) requested by Tenant, and (b) Tenant’s or Tenant’s agents’ interference with Landlord’s performance of the Work. All costs and expenses occasioned by a Tenant Delay, including, without limitation, increases in labor or materials, shall be borne by Tenant.(d) Following the date on which Landlord delivers possession of the Premises to Tenant and the Commencement Date, Landlord may prepare and deliver to Tenant a commencement date memorandum (the “Commencement Date Memorandum”) in the form of EXHIBIT “D”, attached hereto, subject to such changes in the form as may be required to insure the accuracy thereof. The Commencement Date Memorandum shall certify the date on which Landlord delivered possession of the Premises to Tenant and the dates upon which the Term commences and expires.4. RENT :(a) Tenant shall pay to Landlord the monthly rental (herein called “Base Rent”) for the Premises in the amounts specified in the Addendum, attached hereto and made a part hereof. Tenant shall pay to Landlord the Base Rent, in advance, on the 1 st day of each and every calendar month during the Term of this Lease, without notice or demand and without any set-off or deduction, except to the extent otherwise expressly provided for in this Lease. If the Term commences on other than the first day of a calendar month, the first payment of Base Rent shall be appropriately prorated on the basis of the number of days in such calendar month. All Rent due or to become due hereunder shall be paid to Landlord at its address set forth in this Lease, unless Landlord shall designate some other payee or address for the payment thereof by
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giving written notice to that effect to Tenant. For purposes of this Lease, the term “Rent” shall mean the Base Rent, all additional rent and all of the other monetary obligations of Tenant under this Lease.(b) Tenant shall pay, as additional rent, all amounts of money required to be paid to Landlord by Tenant under this Lease in addition to monthly Base Rent whether or not the same is designated “additional rent.” Tenant shall pay to Landlord all additional rent upon Landlord’s written request or otherwise as provided in this Lease.(c) Tenant acknowledges that late payment of Rent to Landlord will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges, and late charges which may be imposed on Landlord by the terms of any trust deed covering the Premises. Accordingly, if any installment of Rent or any other sums due from Tenant shall not be received by Landlord within ten (10) days after the date such payment is due, Tenant shall pay to Landlord a late charge in an amount equal to two percent (2%) of such overdue amount. The parties agree that such late charge represents a fair and reasonable estimate of the costs Landlord will incur by reason of late payment by Tenant. Acceptance of such late charge by Landlord shall not constitute a waiver of Tenant’s default with respect to such overdue amount, nor prevent Landlord from exercising any of the other rights and remedies granted hereunder.5. UTILITIES AND SERVICES :(a) Landlord shall furnish the following utilities and services in and to the Premises, to wit: (i) heat and air-conditioning (“HVAC”) as may be required to maintain the Premises at reasonably comfortable temperatures during business hours as hereinafter defined; (ii) hot and cold water; (iii) adequate elevator service as may be reasonably required; (iv) janitorial service; (v) electricity in amounts reasonably required for Tenant’s Intended Use; and (vi) adequate sewer systems (storm and sanitary). Business hours shall be between the hours of 7:00 A.M. and 6:00 P.M. Monday through Friday, excluding State and National holidays. Upon request of Tenant, Landlord shall furnish such utilities and services in excess of the above requirements and/or outside of business hours, but only to the extent that same are available and only if Tenant agrees to pay the additional cost thereof. The current after business hours HVAC charge is Twenty-Five Dollars ($25.00) per hour.(b) To the extent that any utility is separately furnished and metered to the Premises as of the Commencement Date, Tenant shall be solely responsible for and promptly pay all charges for such separately metered utility as they are billed to Tenant by the utility company supplying same. Tenant shall not be required to install or pay the cost of installation of a separate meter.6. MAINTENANCE AND REPAIRS :(a) Landlord shall maintain and keep in a state of good condition and repair the roof structure, the structural parts of the Building and other portions of the Building not the responsibility of Tenant hereunder, the foundation, all load-bearing walls, exterior windows, the
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electrical and lighting systems (other than in the Premises, except any electrical wiring within the walls, ceiling or floor shall be the maintenance obligation of Landlord), pipes and plumbing (other than in the Premises, except any pipes or plumbing within the walls, ceiling or floor shall be the maintenance obligation of Landlord), storm and sanitary sewer systems, ventilating system, heating and air conditioning units and/or systems, elevators, stairs and halls, loading doors, the grounds (including landscaping, parking areas, walkways, roadways and driveways) and all necessary apparatus, accessories and fixtures pertaining to the Park, Land and Building; however any such repairs which are required by reason of any waste, misuse or negligence on the part of Tenant and which are not covered by insurance required to be carried by Landlord pursuant to Paragraph 9.3 hereof, shall be made by Landlord at the expense of Tenant. The term “repair” shall include replacement as necessary. Landlord shall also keep the parking areas, driveways, roadways and walkways reasonably clear of ice and snow. Tenant expressly waives the benefits of any statute, including Civil Code Sections 1941 and 1942, which would afford Tenant the right to make repairs at Landlord’s expense or to terminate this Lease due to Landlord’s failure to keep the Building in good order, condition and repair. Landlord shall have no liability to Tenant for any damage, inconvenience or interference with the use of the Premises by Tenant as the result of Landlord performing any such maintenance and repair work.(b) Tenant shall, at Tenant’s expense, maintain every part of the Premises in good order, condition and repair, including without limitation, (i) all interior surfaces, ceilings, non-load bearing walls, door frames, window frames, floors, carpets, draperies, window coverings and fixtures, (ii) all windows, doors, locks and closing devices, entrances and signs, (iii) all plumbing and sewage pipes (except to the extent otherwise provided for hereinabove), fixtures and fittings in the Premises, (iv) all phone lines, electrical wiring, equipment, switches, outlets and light bulbs in the Premises, (v) all of Tenant’s personal property, improvements and alterations, and (vi) all other fixtures and special items installed by or for the benefit of, or at the expense of Tenant. Tenant shall not enter onto the roof area of the Building. Tenant shall not commit any waste on or to the Premises and shall keep the Premises in a clean, neat and orderly condition except to the extent Landlord is required to do so pursuant to subparagraph (a) above or subparagraph 5(a).(c) All repairs and replacements to be made pursuant to the provisions of this Paragraph 6 shall be made within a reasonable time (depending on the nature of the required repair or replacement) after the party who is obligated to make such repair or replacement has actual or constructive notice of the necessity for such repair or replacement.7. ALTERATIONS :Tenant may not make any alterations, installations and changes (hereinafter collectively called “Alterations”) in, on and to the interior of the Premises without Landlord’s prior written consent, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Tenant may make Alterations without Landlord’s prior written consent where (i) the reasonably estimated cost of the Alteration and together with the cost of any other Alteration made during the immediately preceding twelve (12) months does not exceed Fifteen Thousand Dollars ($15,000), and (ii) such Alterations do not affect or involve the structural integrity, roof membrane, exterior areas, building systems or water-tight nature of the Premises, Building or Park. All such work shall be done in a good and workmanlike manner and
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in accordance with all applicable laws. Tenant may remove any or all interior and non-structural Alterations and any signage (whether or not interior or non-structural) from the Premises at any time prior to the expiration of the Term, provided that any damage caused by such removal shall be repaired by Tenant. Landlord, by written notice at the time consent for such Alteration is given, may require that Tenant, at Tenant’s expense, remove any Alterations prior to or upon the expiration of this Lease, and restore the Premises to their condition prior to such Alterations. Unless Landlord requires their removal, as provided above, all Alterations made to the Premises shall become the property of Landlord and remain upon and be surrendered with the Premises upon the expiration of this Lease.
8. OPERATING EXPENSES AND TAXES :8.1. Operating Expenses .(a) Obligation to Pay Operating Expenses . Tenant shall pay to Landlord as additional rent during the Term (i) Tenant’s Building Percentage Share of any increase in Operating Expenses attributable to the ownership, operation, repair and/or maintenance of the Building over the Base Operating Expenses attributable to the Building and (ii) a portion of any increase in Operating Expenses attributable to the ownership, repair and maintenance of the Park over the Base Operating Expenses for the Park as reasonably determined by Landlord. Landlord has the right to allocate certain Operating Expenses incurred in connection with the ownership, operation, repair and/or maintenance of the Park to one or more particular buildings within the Park to the extent Landlord determines that it is reasonable to do so based upon the nature or the expense and pursuant to generally accepted accounting principles.(b) Defined Terms . For purposes of this Lease, the following terms are defined as follows:(i) “Tenant’s Building Percentage Share” shall mean the percentage equal to the rentable square footage of the Premises divided by the rentable square footage of the Building (i.e., 11,000 rsf / 40,000 rsf = 25.5%),(ii) “Tenant’s Park Percentage Share” shall mean the percentage equal to the rentable square footage of the Premises divided by the rentable square footage of the Park (i.e., 11,000 rsf / 91,000 rsf = 12.09%),(iii) “Base Operating Expenses” shall mean those Operating Expenses incurred by Landlord during the Base Year,(iv) “Base Year” shall mean the 2004 calendar year, and(v) “Operating Expenses” shall mean all expenses and costs of every kind and nature which Landlord shall pay or become obligated to pay because of or in connection with the ownership, operation, repair and/or maintenance of the Building, Common Areas and/or Park, the surrounding property, and the supporting facilities, including, without limitation: (A) all maintenance, janitorial and security costs, (B) costs for all materials, supplies and equipment; (C) all costs of water, heat, gas power, electricity, refuse collection, parking lot
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sweeping, landscaping, and other utilities and services provided to the Building and the Common Areas; (D) all property management expenses, including, without limitation, all property management fees and all expense and cost reimbursements not to exceed Five percent (5%) of Base Rent, (E) all costs of alterations or improvements to the Building or Common Areas made to achieve compliance with federal, state and local law including, without limitation, the Americans with Disabilities Act (42 U.S.C. Section 12101 et seq.), or to reduce Operating Expenses or improve the operating efficiency of the Building, all of which costs will be amortized over the useful life of the expenditure, as reasonably determined by Landlord; (F) premiums for insurance maintained by Landlord pursuant to this Lease or with respect to the Building or the Land; (G) costs for repairs, replacements, uninsured damage or insurance deductibles and general maintenance of the Building, Common Areas and Land, but excluding any repairs or replacements paid for out of insurance proceeds or by other parties; (H) all costs incurred by Landlord for making any capital repairs or replacements to the Building or Common Areas (as distinguished from capital improvements to the Building which shall not be an Operating Expense except as otherwise expressly provided above), which costs will be amortized over the useful life of such capital expenditure as reasonably determined by Landlord; and (I) all costs of maintaining machinery, equipment and directional signage or other markers.Notwithstanding the foregoing, the term “Operating Expenses” shall not include any repairs to or replacements of the structural components of the Building (including the structural components of the roof, but excluding the roof membrane) and the foundation.
(c) Less Than Full Occupancy . If the Building or the Park are less than ninety-five percent (95%) occupied during any year of the Term, Operating Expenses for each such calendar year shall be adjusted to equal Landlord’s reasonable estimate of Operating Expenses as though ninety-five percent (95%) of the total rentable area of the Building and/or the Park as applicable had been occupied.(d) Estimates of Operating Expenses . Tenant shall pay to Landlord each month at the same time and in the same manner as monthly Base Rent one-twelfth (1/12th) of Landlord’s estimate of the amount of Operating Expenses payable by Tenant for the then-current calendar year. If at any time it appears to Landlord that Tenant’s share of Operating Expenses payable for the current calendar year will vary from Landlord’s estimate, Landlord may give notice to Tenant of Landlord’s revised estimate for the calendar year, and subsequent payments by Tenant for the calendar year shall be based on the revised estimate. Within one hundred twenty (120) days after the close of each calendar year, or as soon after such 120-day period as practicable, Landlord shall deliver to Tenant a statement in reasonable detail of the actual amount of Operating Expenses payable by Tenant for such calendar year. Landlord’s failure to provide such statement to Tenant within the 120-day period shall not act as a waiver and shall not excuse Tenant or Landlord from making the adjustments to reflect actual costs as provided herein. If on the basis of such statement Tenant owes an amount that is less than the estimated payments for such calendar year previously made by Tenant, Landlord shall credit such excess against the next payment of Operating Expenses due. If on the basis of such statement Tenant owes an amount that is more than the estimated payments for such calendar year previously made by Tenant, Tenant shall pay the deficiency to Landlord within fifteen (15) business days after delivery of the statement. In addition, if, after the end of any calendar year or
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any annual adjustment of Operating Expenses for a calendar year, Operating Expenses are incurred or billed to Landlord that are attributable to any period within the Term (e.g., sewer district flow fees), Landlord shall notify Tenant of its share of such additional Operating Expenses and Tenant shall pay such amount to Landlord within ten (15) business days after Landlord’s written request therefor. The obligations of Landlord and Tenant under this Paragraph with respect to the reconciliation between the estimated and actual amounts of Operating Expenses payable by Tenant for the last year of the Term shall survive the termination of this Lease. Landlord shall keep and maintain complete and accurate books and records reflecting such Operating Expenses and Taxes for a period of at least two (2) years following the period in which Operating Expenses and Taxes were incurred. Tenant or its representatives shall have one hundred twenty (120) days from after Tenant receives the year-end statement of the adjustment to the Operating Expenses for the prior calendar year to notify Landlord in writing of Tenant’s desire to conduct, at Tenant’s sole cost and expense, an audit of Landlord’s books and records relating to the prior calendar year. Any such audit must be conducted by Tenant or its agent during regular business hours at the offices of Landlord or the offices of Landlord’s designated agent and must be completed within one hundred fifty (150) days after Tenant receives the applicable year-end statement. The person or entity performing the audit or review of Landlord’s books and records on Tenant’s behalf or at Tenant’s request may not be compensated for the audit or review on a contingency fee basis. Any payment of Additional Rent by Tenant shall be made without prejudice to any right of Tenant to dispute any item theretofore billed pursuant to the provisions of this subparagraph (d).8.2. Taxes .(a) Tenant shall pay to Landlord, as additional rent, Tenant’s Park Percentage Share of any increase in Taxes for the Park over Base Taxes during each year of the Term (prorated for any partial calendar year during the Term). The term “Base Taxes” shall mean those taxes incurred by Landlord during the Base Year.(b) Definition of Taxes . The term “Taxes” shall include all transit charges, housing fund assessments, real estate taxes and all other taxes relating to the Premises, Building and Park of every kind and nature whatsoever, including any supplemental real estate taxes attributable to any period during the Term; all taxes which may be levied in lieu of real estate taxes; and all assessments, assessment bonds, levies, fees, penalties (if a result of Tenant’s delinquency) and other governmental charges (including, but not limited to, charges for parking, traffic and any storm drainage/flood control facilities, studies and improvements, water and sewer service studies and improvements, and fire services studies and improvements); and all amounts necessary to be expended because of governmental orders, whether general or special, ordinary or extraordinary, unforeseen as well as foreseen, of any kind and nature for public improvements, services, benefits or any other purpose, which are assessed, based upon the use or occupancy of the Premises, Building and/or Park, or levied, confirmed, imposed or become a lien upon the Premises, Building and/or Park, or become payable during the Term, and which are attributable to any period within the Term and not solely attributable to the use of any other tenant in the Building or Park.(c) Limitation . Nothing contained in this Lease shall require Tenant to pay (i) any franchise, estate, inheritance, succession or transfer tax of Landlord, (ii) for any
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increase in taxes resulting from a change of ownership of the Land or the Building, or (iii) any income, profits or revenue tax or charge upon the net income of Landlord from all sources; provided, however, that if at any time during the Term in under the laws of the United States Government or the State of California, or any political subdivision thereof, a tax or excise on rent, or any other tax however described, is levied or assessed by any such political body against Landlord on account of Rent, or any portion thereof, Tenant shall pay one hundred percent (100%) of any said tax or excise as additional rent.(d) Installment Election . In the case of any Taxes which may be evidenced by improvement or other bonds or which may be paid in annual or other periodic installments, Landlord shall elect to cause such bonds to be issued or such assessment to be paid in installments over the maximum period permitted by law.(e) Estimate of Tenant’s Share of Taxes . Prior to the commencement of each calendar year during the Term, or as soon thereafter as reasonably practicable, Landlord shall notify Tenant in writing of Landlord’s estimate of the amount of Taxes which will be payable by Tenant for the ensuing calendar year. On or before the first day of each month during the ensuing calendar year, Tenant shall pay to Landlord in advance, together with Base Rent, one-twelfth (1/12th) of the estimated amount; provided, however, if Landlord fails to notify Tenant of the estimated amount of Tenant’s share of Taxes for the ensuing calendar year prior to the end of the current calendar year, Tenant shall be required to continue to pay to Landlord each month in advance Tenant’s estimated share of Taxes on the basis of the amount due for the immediately prior month until twenty (20) days after Landlord notifies Tenant of the estimated amount of Tenant’s share of Taxes for the ensuing calendar year. If at any time it appears to Landlord that Tenant’s share of Taxes payable for the current calendar year will vary from Landlord’s estimate, Landlord may give notice to Tenant of Landlord’s revised estimate for the year, and subsequent payments by Tenant for the year shall be based on the revised estimate.(f) Annual Adjustment . Within one hundred twenty (120) days after the close of each calendar year during the Term, or as soon after the one hundred twenty (120) day period as reasonably practicable, Landlord shall deliver to Tenant a statement of the adjustment to the Taxes for the prior calendar year. If, on the basis of the statement, Tenant owes an amount that is less than the estimated payments for the prior calendar year previously made by Tenant, Landlord shall apply the excess to the next payment of Taxes due. If, on the basis of the statement, Tenant owes an amount that is more than the amount of the estimated payments made by Tenant for the prior calendar year, Tenant shall pay the deficiency to Landlord within thirty (30) days after delivery of the statement. The year end statement shall be binding upon Tenant unless Tenant notifies Landlord in writing of any objection thereto within thirty (30) days after Tenant’s receipt of the year end statement. In addition, if, after the end of any calendar year or any annual adjustment of Taxes for a calendar year, any Taxes are assessed or levied against the Premises, Building or Building that are attributable to any period within the Term (e.g., supplemental taxes or escaped taxes), Landlord shall notify Tenant of its share of such additional Taxes and Tenant shall pay such amount to Landlord within twenty (20) days after Landlord’s written request therefor.(g) Personal Property Taxes . Tenant shall pay or cause to be paid, any and all taxes and assessments levied upon all of Tenant’s trade fixtures, inventories and other
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personal property in, on or about the Premises. When possible, Tenant shall cause Tenant’s personal property to be assessed and billed separately from the real or personal property of Landlord. On request by Landlord, Tenant shall furnish Landlord with satisfactory evidence of payment of Tenant’s business personal property taxes and deliver copies of such business personal property tax bills to Landlord.9. INSURANCE AND INDEMNITY :9.1. Tenant’s Insurance . Tenant, at its sole cost and expense, shall obtain and maintain in effect as long as this Lease remains in effect and during such other time as Tenant occupies the Premises or any part thereof, insurance policies providing at least the following coverages:(a) general liability insurance, in occurrence form, insuring Tenant against any and all liability for injury to or death of a person or persons, and for damage to or destruction of property, occasioned by or arising out of or in connection with the use or occupancy of the Premises or the business operated by Tenant thereon, and including contractual liability coverage for Tenant’s indemnity obligations under this Lease (other than those contained in Paragraph 25 hereof), to afford protection with a minimum combined single limit of liability of at least Three Million Dollars ($3,000,000); and(b) worker’s compensation and similar insurance offering statutory coverage and containing statutory limits and employer’s liability insurance in form and amount deemed reasonable by Tenant in the exercise of its prudent business judgment.Such policies will be maintained in companies having a “General Policyholders Rating” of at least B plus as set forth in the most current issue of “Best’s Insurance Guide”, and will be written as primary policy coverage and not contributing with, or in excess of, any coverage which Landlord shall carry. Tenant shall deposit certificates of such required insurance with Landlord prior to the earlier to occur of (x) the Commencement Date of this Lease, or (y) Tenant’s occupancy of the Premises, which certificates shall contain a provision stating that such policy or policies shall not be canceled or materially altered except after thirty (30) days’ written notice to Landlord. Tenant shall have the right to provide the coverages required herein under blanket policies provided that the coverage afforded shall not be diminished by reason thereof.
9.2. Tenant’s Property . All furnishings, fixtures, equipment, and property of every kind and description of Tenant and of persons claiming by or through Tenant which may be on the Premises shall be at the sole risk and hazard of Tenant and no part of loss or damage thereto for whatever cause is to be charged to or borne by Landlord.9.3. Landlord’s Insurance . Landlord, at its sole cost and expense, shall obtain and maintain in effect as long as this Lease remains in effect, insurance policies providing at least the following coverages:(a) general liability insurance, in occurrence form, insuring Landlord against any and all liability for injury to or death of a person or persons, and for damage to or destruction of property, occasioned by or arising out of or in connection with the ownership or
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management of the Park, Land and Building, and including contractual liability coverage for Landlord’s indemnity obligations under this Lease (other than those contained in Paragraph 25 hereof), to afford protection with a minimum combined single limit of liability of at least Three Million Dollars (83,000,000);(b) standard all-risk property and casualty insurance, insuring the Building and all other improvements on the Land against those risks normally encompassed in an all-risk policy, as well as such other risks as a reasonably prudent owner of similar commercial buildings in the locality where the Building is located would normally insure against, such insurance to provide for the payment of full replacement cost in the event of a total destruction of the Building and other improvements so as to ensure the availability of sufficient funds to repair and restore the Building and other improvements to their condition immediately prior to any damage or destruction; and(c) Landlord may maintain rent insurance, for the benefit of Landlord, equal to at least one year’s Base Rent hereunder. If this Lease is terminated as a result of damage by fire, casualty or earthquake, all insurance proceeds shall be paid to and retained by Landlord, subject to the rights of any authorized encumbrancer of Landlord.9.4. Waiver of Recovery . Neither Landlord nor Tenant shall be liable to the other or to any insurance company insuring the other party (by way of subrogation or otherwise) for any loss or damage to any structure, building, or other tangible property, or any resulting loss of income, even though such damage or loss might have been occasioned by the negligence of Landlord or Tenant or any of their agents or employees, if any such loss or damage is covered by insurance benefiting the party suffering such loss or damage or was required of such party to be covered by insurance pursuant to this Lease.9.5. Indemnity . Except if and to the extent that such party is released from liability to the other party hereto pursuant to the provisions of Paragraph 9.4 above,(a) Landlord does hereby assume liability for, and does hereby agree to indemnify, protect, defend, save and hold harmless Tenant and its officers, directors, agents and employees, from and against any and all liabilities, obligations, claims, actions, demands, fines, suits, judgments, penalties, damages and losses (including all of the costs, fees and expenses connected therewith or incident thereto) for death of or injury to any person whomsoever and for loss of, damage to, or destruction of any property whatsoever (including loss of use thereof) arising out of the negligence or willful misconduct of Landlord and its officers, partners, employees, agents, representatives or contractors (collectively, “Landlord’s Parties”) as they relate to the Park, Land, Building and/or the Premises; and(b) Tenant does hereby assume liability for, and does hereby agree to indemnify, protect, defend, save and hold harmless Landlord, its officers, directors, agents and employees, from and against any and all liabilities, obligations, claims, actions, demands, fines, suits, judgements, penalties, damages and losses (including all of the costs, fees and expenses connected therewith or incident thereto) for death of or injury to any person whomsoever and for loss of, damage to, or destruction of any property whatsoever (including loss of use thereof) arising out of (i) any condition or occurrence in or resulting from any condition or occurrence in
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the Premises during the Term, except to the extent caused by the negl | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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