Back to top

LEASE

Office Lease Agreement

LEASE | Document Parties: EOP Operating Limited Partnership | EOP-INDUSTRIAL PORTFOLIO, LLC | KERBEROS PROXIMAL SOLUTIONS, INC You are currently viewing:
This Office Lease Agreement involves

EOP Operating Limited Partnership | EOP-INDUSTRIAL PORTFOLIO, LLC | KERBEROS PROXIMAL SOLUTIONS, INC

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.
Title: LEASE
Governing Law: California     Date: 3/13/2007

LEASE, Parties: eop operating limited partnership , eop-industrial portfolio  llc , kerberos proximal solutions  inc
50 of the Top 250 law firms use our Products every day

EXHIBIT 10.25

BASIC LEASE INFORMATION

INDUSTRIAL NET

 

 

     
  • LEASE DATE:

    (same as date in first paragraph of Lease)

  

December 14, 2004

  • TENANT:

  

KERBEROS PROXIMAL SOLUTIONS, INC., a Delaware corporation

  • TENANT’S NOTICE ADDRESS:

  

At the Premises.

  • TENANT’S BILLING ADDRESS:

  

At the Premises.

  • LANDLORD:

  

EOP-INDUSTRIAL PORTFOLIO, L.L.C., a Delaware limited liability company

  • LANDLORD’S NOTICE ADDRESS:

  

EOP-INDUSTRIAL PORTFOLIO, L.L.C.

1740 Technology Drive

Suite 150

San Jose, California 95110

Attn: Property Manager—Cupertino Business Center

 

with a copy to:

 

Equity Office

One Market, Spear Tower, Suite 600

San Francisco, California 94105

Attn: Regional Counsel - San Jose Region

  • Project Description:

  

That certain industrial project commonly known as "Cupertino Business Center" which currently includes the buildings located at 10590 and 10600 North Tantau Avenue, the parcel(s) of land on which such buildings are located, those exterior areas of the Project which are not located within the Building or any other building and which are provided and maintained for the use and benefit of Landlord and tenants of the Building and/or the Project generally and the employees, invitees and licensees of Landlord and such tenants (including, without limitation, any artificial lakes, walkways, plaza, roads, driveways, sidewalks, surface parking and landscapes), and, at Landlord’s option, the parking facilities serving the Project, all of which are located in Cupertino, California. Notwithstanding the foregoing, Landlord and Tenant agree that the definition of the Project may change from time to time if Landlord elects to add or remove buildings or parcels of land to or from the Project. In such event, the definition of "Project" shall be deemed to be amended without any further action of the parties herein to reflect such addition or deletion of the building(s) or parcels of land to or from the Project.



 

-1-

 

     
  • Building Description:

  

That certain single story building located at 10600 North Tantau Avenue, Cupertino, California.

  • Premises:

  

Approximately 23,546 rentable square feet located at 10600 North Tantau Avenue, Cupertino, California.

  • Permitted Use:

  

General business office, sales, light manufacturing of medical devices, lab and clean room, warehousing of medical devices

  • Parking Density:

  

4 spaces per 1,000 rentable square feet of the Premises.

  • Scheduled Term Commencement Date:

  

December 10, 2004

  • Scheduled Length of Term:

  

37 Months and 21 Days

  • Scheduled Term Expiration Date:

  

January 31, 2008

  • Rent:

  

 
    • Base Rent:

  

See Paragraph 39.A. hereof

    • Estimated First Year Operating Expenses:

  

$5,886.50 per month

  • Security Deposit:

  

$31,787.10

  • Tenant’s Proportionate Share:

  

 
    • Of Building:

  

100%

    • Of Project:

  

36.3776%

  • Landlord’s Broker:

  

Colliers International

  • Tenant’s Broker:

  

PCG Investments

  • Guarantor:

  

There are no guarantors as of the date of this Lease.



The foregoing Basic Lease Information is incorporated into and made a part of this Lease. Each reference in this Lease to any of the Basic Lease Information shall mean the respective information above and shall be construed to incorporate all of the terms provided under the particular Lease paragraph pertaining to such information. In the event of any conflict between the Basic Lease Information and the Lease, the latter shall control.

 

-2-

TABLE OF CONTENTS

 

 

         

 

  

 

  

Page

 

  

  • BASIC LEASE INFORMATION

  

1

 

  

  • TABLE OF CONTENTS

  

i

1.

  

  • PREMISES

  

1

2.

  

  • POSSESSION AND LEASE COMMENCEMENT

  

1

3.

  

  • TERM

  

2

4.

  

  • USE

  

2

5.

  

  • RULES AND REGULATIONS

  

4

6.

  

  • RENT

  

4

7.

  

  • OPERATING EXPENSES

  

4

8.

  

  • INSURANCE AND INDEMNIFICATION

  

9

9.

  

  • WAIVER OF SUBROGATION

  

11

10.

  

  • LANDLORD’S REPAIRS AND MAINTENANCE

  

12

11.

  

  • TENANT’S REPAIRS AND MAINTENANCE

  

12

12.

  

  • ALTERATIONS

  

13

13.

  

  • SIGNS

  

14

14.

  

  • INSPECTION/POSTING NOTICES

  

14

15.

  

  • SERVICES AND UTILITIES

  

15

16.

  

  • SUBORDINATION

  

16

17.

  

  • FINANCIAL STATEMENTS

  

17

18.

  

  • ESTOPPEL CERTIFICATE

  

17

19.

  

  • SECURITY DEPOSIT

  

18

20.

  

  • LIMITATION OF TENANT’S REMEDIES

  

18

21.

  

  • ASSIGNMENT AND SUBLETTING

  

18

22.

  

  • AUTHORITY

  

21

23.

  

  • CONDEMNATION

  

21

24.

  

  • CASUALTY DAMAGE

  

22

25.

  

  • HOLDING OVER

  

24

26.

  

  • DEFAULT

  

24

27.

  

  • LIENS

  

27



 

-i-

 

         

28.

  

  • SUBSTITUTION [INTENTIONALLY OMITTED)

  

27

29.

  

  • TRANSFERS BY LANDLORD

  

27

30.

  

  • RIGHT OF LANDLORD TO PERFORM TENANT’S COVENANTS

  

28

31.

  

  • WAIVER

  

28

32.

  

  • NOTICES

  

28

33.

  

  • ATTORNEYS’ FEES

  

29

34.

  

  • SUCCESSORS AND ASSIGNS

  

29

35.

  

  • FORCE MAJEURE

  

29

36.

  

  • SURRENDER OF PREMISES

  

29

37.

  

  • HAZARDOUS MATERIALS

  

30

38.

  

  • MISCELLANEOUS

  

32

39.

  

  • ADDITIONAL PROVISIONS

  

34

40.

  

  • JURY TRIAL WAIVER

  

36

SIGNATURES

  

37



 

 

         

Exhibits:

 

  

    • Exhibit A

  

Rules and Regulations

 

  

    • Exhibit B

  

Outline and Location of Premises

 

  

    • Exhibit C

  

Work Letter, if any

 

  

    • Exhibit D

  

Hazardous Materials Questionnaire

 

  

    • Exhibit E

  

Asbestos Notification

 

  

    • Exhibit F

  

Depiction of Storage Area



 

-ii-

LEASE

THIS LEASE is made as of the      day of              , 2003, by and between EOP-INDUSTRIAL PORTFOLIO, L.L.C. , a Delaware limited liability company (hereinafter called " Landlord "), and KERBEROS PROXIMAL SOLUTIONS, INC. , a Delaware corporation (hereinafter called ‘ Tenant ").

1. PREMISES

Landlord leases to Tenant and Tenant leases from Landlord, upon the terms and conditions hereinafter set forth, those premises (the " Premises ") outlined on Exhibit B and described in the Basic Lease Information. The Premises shall be all or part of a building (the " Building ") and of a project (the " Project "), which may consist of more than one building and additional facilities, as described in the Basic Lease Information. Landlord and Tenant acknowledge that physical changes may occur from time to time in the Premises, Building or Project, and that the number of buildings and additional facilities which constitute the Project may change from time to time, which may result in an adjustment in Tenant’s Proportionate Share, as defined in the Basic Lease Information, as provided in Paragraph 7.A.

2. POSSESSION AND LEASE COMMENCEMENT

A. Existing Improvements . If this Lease pertains to a Premises in which the interior improvements have already been constructed (" Existing Improvements "), the provisions of this Paragraph 2.A. shall apply and the term commencement date (" Term Commencement Date ") shall be the earlier of the date on which: (1) Tenant takes possession of some or all of the Premises; or (2) Landlord notifies Tenant that Tenant may occupy the Premises. If for any reason Landlord cannot deliver possession of the Premises to Tenant on the Scheduled Term Commencement Date, Landlord shall not be subject to any liability therefor, nor shall Landlord be in default hereunder nor shall such failure affect the validity of this Lease, and Tenant agrees to accept possession of the Premises at such time as Landlord is able to deliver the same, which date shall then be deemed the Term Commencement Date. Notwithstanding anything to the contrary set forth herein, if the Term Commencement Date has not occurred on or before December 31, 2004, Tenant as its sole remedy, may terminate this Lease by giving Landlord written notice of termination on or before the earlier to occur of (i) January 5, 2005 and (ii) the Term Commencement Date. Tenant shall not be liable for any Rent (defined below) for any period prior to the Term Commencement Date. Tenant acknowledges that Tenant has inspected and accepts the Premises in their present condition, subject to Paragraph 2.B. below, broom clean, "as is," and as suitable for, the Permitted Use (as defined below), and for Tenant’s intended operations in the Premises. Tenant agrees that the Premises and other improvements are in good and satisfactory condition as of when possession was taken. Tenant further acknowledges that no representations as to the condition or repair of the Premises nor promises to alter, remodel or improve the Premises have been made by Landlord or any agents of Landlord unless such are expressly set forth in this Lease. Upon Landlord’s request, Tenant shall promptly execute and return to Landlord a "Start-Up Letter" in which Tenant shall agree, among other things, to acceptance of the Premises and to the determination of the Term Commencement Date, in accordance with the terms of this Lease, but Tenant’s failure or refusal to do so shall not negate Tenant’s acceptance of the Premises or affect determination of the Term Commencement Date.

B. Base Building Systems in Good Working Order . Notwithstanding anything to the contrary set forth herein, except to the extent caused by Tenant or any of the Tenant’s Parties (defined in Paragraph 4.A.), the base Building electrical, heating, ventilation and air conditioning, mechanical and plumbing systems shall

 

-1-

be in good and working order as of the date Landlord delivers possession of the Premises to Tenant. Following the Term Commencement Date, Tenant may inspect the same and if the foregoing are not in good and working order as provided above, Landlord shall be responsible for repairing or restoring same at its cost and expense promptly, provided that Tenant has delivered written notice thereof to Landlord not later than thirty (30) days following the Term Commencement Date. Notwithstanding the foregoing, Tenant, and not Landlord, shall be responsible, at its cost, for any repairs or the correction of any defects that arise out of or in connection with the specific nature of Tenant’s business (other than for general office use), the acts or omissions of Tenant, its agents, employees or contractors, Tenant’s arrangement of any furniture, equipment or other property in the Premises, any repairs, alterations, additions or improvements performed by or on behalf of Tenant (except Alterations or improvements customarily required for general office use), and any design or configuration of the Premises created by or for Tenant which specifically results in the need for such repair to the correction of such defect in the mechanical or electrical systems in the Premises. Tenant further acknowledges that no representations as to the condition or repair of the Premises nor promises to alter, remodel or improve the Premises have been made by Landlord or any agents of Landlord unless such are expressly set forth in this Lease.

3. TERM

The term of this Lease (the " Term ") shall commence on the Term Commencement Date and continue in full force and effect for the number of months specified as the Length of Term in the Basic Lease Information or until this Lease is terminated as otherwise provided herein. If the Term Commencement Date is a date other than the first day of the calendar month, the Term shall be the number of months of the Length of Term in addition to the remainder of the calendar month following the Term Commencement Date.

4. USE

A. General . Tenant shall use the Premises for the permitted use specified in the Basic Lease Information (" Permitted Use ") and for no other use or purpose. Tenant shall control Tenant’s trustees, directors, shareholders, partners, lenders, members, managers, affiliates, employees, agents, customers, visitors, invitees, licensees, contractors, assignees and subtenants (individually, a " Tenant Party " and collectively, " Tenant’s Parties ") in such a manner that Tenant and Tenant’s Parties cumulatively do not exceed the parking density specified in the Basic Lease Information (the " Parking Density ") at any time. So long as Tenant is occupying the Premises, Tenant and Tenant’s Parties shall have the nonexclusive right to use, in common with other parties occupying the Building or Project, the parking areas, driveways and other common areas of the Building and Project, subject to the terms of this Lease and such rules and regulations as Landlord may from time to time prescribe. Landlord reserves the right, without notice or liability to Tenant, and without the same constituting an actual or constructive eviction, to alter or modify the common areas from time to time, including the location and configuration thereof, and the amenities and facilities which Landlord may determine to provide from time to time, on a commercially reasonable basis.

B. Limitations . Tenant shall not permit any odors, smoke, dust, gas, substances, noise or vibrations to emanate from the Premises or from any portion of the common areas as a result of Tenant’s or any Tenant’s Party’s use thereof, nor take any action which would constitute a nuisance or would disturb, obstruct or endanger any other tenants or occupants of the Building or Project or elsewhere, or interfere with their use of their respective premises or common areas. Storage outside the Premises of materials, vehicles or any other items is prohibited, except as set forth in Paragraph 39.C. below. Tenant shall not use or allow the Premises to be used for any immoral, improper or unlawful purpose, nor shall Tenant cause or maintain or permit any nuisance in, on or about the Premises. Tenant shall not commit or suffer the commission of any waste in, on

 

-2-

or about the Premises. Tenant shall not allow any sale by auction upon the Premises, or place any loads upon the floors, walls or ceilings which could endanger the structure, or place any harmful substances in the drainage system of the Building or Project. No waste, materials or refuse shall be dumped upon or permitted to remain outside the Premises except in trash containers placed inside exterior enclosures designated for that purpose by Landlord. Landlord shall not be responsible to Tenant for the non-compliance by any other tenant or occupant of the Building or Project with any of the above-referenced rules or any other terms or provisions of such tenant’s or occupant’s lease or other contract.

C. Tenant Compliance with Regulations . By entering the Premises, Tenant accepts the Premises in the condition existing as of the date of such entry, subject to Paragraph 2.B. above. Tenant shall at its sole cost and expense strictly comply with all existing or future applicable municipal, state and federal and other governmental statutes, rules, requirements, regulations, laws and ordinances, including zoning ordinances and regulations, and covenants, easements and restrictions of record (collectively, " Regulations "), regarding the operation of Tenant’s business and the use, condition, configuration and occupancy of the Premises, including without limitation, Regulations relating to the use, storage, generation or disposal of Hazardous Materials (hereinafter defined). Tenant shall at its sole cost and expense obtain any and all licenses or permits necessary for Tenant’s use of the Premises. Tenant shall at its sole cost and expense promptly comply with the requirements of any board of fire underwriters or other similar body now or hereafter constituted. In addition, Tenant shall, at its sole cost and expense, promptly comply with all Regulations that relate to the structural portions of the Building, common areas, and the base Building electrical, heating, ventilation and air conditioning, mechanical and plumbing systems, but only to the extent triggered by Tenant’s use of the Premises, other than for general office use, or Alterations or improvements in the Premises (other than Alterations or improvements customarily required for general office use) performed or requested by Tenant. Tenant shall not do or permit anything to be done in, on, under or about the Project or bring or keep anything which will in any way increase the rate of any insurance upon the Premises, Building or Project or upon any contents therein or cause a cancellation of said insurance or otherwise affect said insurance in any manner. Tenant shall indemnify, defend (by counsel reasonably acceptable to Landlord), protect and hold Landlord harmless from and against any loss, cost, expense, damage, attorneys’ fees or liability arising out of the failure of Tenant to comply with any Regulation. Tenant’s obligations pursuant to the foregoing indemnity shall survive the expiration or earlier termination of this Lease. As of the date hereof, Landlord has not received written notice from any governmental agencies that the Building is in violation of Regulations.

D. Landlord Compliance with Regulations . Landlord shall, at Landlord’s expense (except to the extent properly included in Operating Expenses), cause structural elements of the Building, common areas, and the base Building electrical, heating, ventilation and air conditioning, mechanical and plumbing systems and the common areas to comply with all applicable Regulations to the extent that (i) such compliance is necessary in order for Tenant to use the Premises for general office use in a normal and customary manner and for Tenant’s employees and visitors to have reasonably safe access to and from the Premises, or (ii) Landlord’s failure to cause such compliance would impose liability upon Tenant under applicable Regulations; provided, however, that Landlord shall not be obligated to cause such compliance to the extent that any non-compliance (i) is caused or triggered by any of the matters that are Tenant’s responsibility under any provision of this Lease, including, without limitation, Paragraph 4.C. above or Paragraph 12 below, or (ii) arises under any provision of the Americans with Disabilities Act other than Title III thereof. Notwithstanding the foregoing, Landlord shall have the right to contest any alleged violation in good faith, including, without limitation, the right to apply for and obtain a waiver or deferment of compliance, the right to assert any and all defenses allowed by Regulation and the right to appeal any decisions, judgments or rulings to the fullest extent permitted by Regulation. Landlord, after the exhaustion of any and all rights to appeal or contest, will make all repairs, additions, alterations or improvements necessary to comply with the terms of any final order or judgment.

 

-3-

5. RULES AND REGULATIONS

Tenant shall faithfully observe and comply with the building rules and regulations attached hereto as Exhibit A and any other commercially reasonable rules and regulations and any commercially reasonable modifications or additions thereto which Landlord may from time to time prescribe in writing for the purpose of maintaining the proper care, cleanliness, safety, traffic flow and general order of the Premises or the Building or Project. Tenant shall cause Tenant’s Parties to comply with such rules and regulations. Landlord shall not be responsible to Tenant for the non-compliance by any other tenant or occupant of the Building or Project with any of such rules and regulations, any other tenant’s or occupant’s lease or any Regulations. The rules and regulations shall be generally applicable, and generally applied in the same manner, to all tenants of the Project.

6. RENT

A. Base Rent . Tenant shall pay to Landlord and Landlord shall receive, without notice or demand throughout the Term, Base Rent as specified in the Basic Lease Information, payable in monthly installments in advance on or before the first day of each calendar month, in lawful money of the United States, without deduction or offset whatsoever, which Base Rent and Additional Rent (as defined below) shall be made payable to the entity, and sent to the address Landlord may from time to time designate in writing. Rent (as defined below) for the first full month of the Term shall be paid by Tenant upon Tenant’s execution of this Lease. If the obligation for payment of Rent commences on a day other than the first day of a month, then Base Rent shall be prorated and the prorated installment shall be paid on the first day of the calendar month next succeeding the Term Commencement Date. The Base Rent payable by Tenant hereunder is subject to adjustment as provided elsewhere in this Lease, as applicable. As used herein, the term "Base Rent" shall mean the Base Rent specified in the Basic Lease Information as it may be so adjusted pursuant to the terms of this Lease.

B. Additional Rent . All monies other than Base Rent required to be paid by Tenant hereunder, including, but not limited to, Tenant’s Proportionate Share of Operating Expenses, as specified in Paragraph 7 of this Lease, charges to be paid by Tenant under Paragraph 15, the interest and late charge described in Paragraphs 26.D. and E., and any monies spent by Landlord pursuant to Paragraph 30, shall be considered additional rent (" Additional Rent "). " Rent " shall mean Base Rent and Additional Rent.

7. OPERATING EXPENSES

A. Operating Expenses . In addition to the Base Rent required to be paid hereunder, Tenant shall pay as Additional Rent, Tenant’s Proportionate Share of the Building and/or Project (as applicable), as defined in the Basic Lease Information, of Operating Expenses (defined below) in the manner set forth below. Tenant shall pay the applicable Tenant’s Proportionate Share of each such Operating Expenses. Landlord and Tenant acknowledge that if the number of buildings which constitute the Project increases or decreases, or if physical changes are made to the Premises, Building or Project or the configuration of any thereof, Landlord may at its discretion reasonably adjust Tenant’s Proportionate Share of the Building or Project to reflect the change. Landlord’s determination of Tenant’s Proportionate Share of the Building and of the Project shall be conclusive so long as it is reasonably and consistently applied. " Operating Expenses " shall mean all expenses and costs of every kind and nature which Landlord shall pay or become obligated to pay, because of

 

-4-

or in connection with the ownership, management, maintenance, repair, preservation, replacement and operation of the Building or Project and its supporting facilities and such additional facilities now and in subsequent years as may be determined by Landlord to be necessary or desirable to the Building and/or Project (as determined in a reasonable manner) other than those expenses and costs which are specifically attributable to Tenant or which are expressly made the financial responsibility of Landlord or specific tenants of the Building or Project pursuant to this Lease. Operating Expenses shall include, but are not limited to, the following:

  • (1) Taxes . All real property taxes and assessments, possessory interest taxes, sales taxes, personal property taxes, business or license taxes or fees, gross receipts taxes, service payments in lieu of such taxes or fees, annual or periodic license or use fees, excises, transit charges, and other impositions, general and special, ordinary and extraordinary, unforeseen as well as foreseen, of any kind (including fees "in-lieu" of any such tax or assessment) which are now or hereafter assessed, levied, charged, confirmed, or imposed by any public authority upon the Building or Project, its operations or the Rent (or any portion or component thereof), or any tax, assessment or fee imposed in substitution, partially or totally, of any of the above. Operating Expenses shall also include any taxes, assessments, reassessments, or other fees or impositions with respect to the development, leasing, management, maintenance, alteration, repair, use or occupancy by Tenant of the Premises, Building or Project or any portion thereof, including, without limitation, by or for Tenant, and all increases therein or reassessments thereof whether the increases or reassessments result from increased rate and/or valuation (whether upon a transfer of the Building or Project or any portion thereof or any interest therein or for any other reason). Operating Expenses shall not include inheritance, gift, or estate taxes imposed upon or assessed against the interest of any person in the Project, or taxes computed upon the basis of the net income of any owners of any interest in the Project or any capital levy, transfer, or capital stock taxes. If it shall not be lawful for Tenant to reimburse Landlord for all or any part of such taxes, the monthly rental payable to Landlord under this Lease shall be revised to net Landlord the same net rental after imposition of any such taxes by Landlord as would have been payable to Landlord prior to the payment of any such taxes.

    (2) Insurance . All insurance premiums and costs, including, but not limited to, any deductible amounts, premiums and other costs of insurance incurred by Landlord, including for the insurance coverage set forth in Paragraph 8.A. herein.

    (3) Common Area Maintenance.

      • (a) Repairs, replacements, capital improvements and general maintenance of, to and for the Building and Project and public and common areas and facilities of and comprising the Building and Project, including, but not limited to, elevators, mechanical rooms, alarm systems, pest extermination, landscaped areas, parking and service areas, driveways, sidewalks, truck staging areas, rail spur areas, fire sprinkler systems, sanitary and storm sewer lines, utility services, heating/ventilation/air conditioning systems, electrical, mechanical or other systems, telephone equipment and wiring servicing, plumbing, lighting, and any other items or areas which affect the operation or appearance of the Building or Project, which determination shall be at Landlord’s discretion, except for: those items to the extent paid for by the proceeds of insurance; and those items attributable solely or jointly to specific tenants of the Building or Project.

        (b) Intentionally Omitted.

 

-5-

  • (c) Payment under or for any easement, license, permit, operating agreement, declaration, restrictive covenant or instrument relating to the Building or Project.

    (d) All expenses and rental related to services and costs of supplies, materials and equipment used in operating, managing and maintaining the Premises, Building and Project, the equipment therein and the adjacent sidewalks, driveways, parking and service areas, including, without limitation, expenses related to service agreements regarding security, fire and other alarm systems, to the extent not addressed in Paragraph 11 hereof, window cleaning, elevator maintenance, Building exterior maintenance, landscaping and expenses related to the administration, management and operation of the Project, including without limitation salaries, wages and benefits and management office rent; provided, however, that if any employee performs services in connection with Project and other buildings or projects, costs associated salaries, wages and benefits for such employee shall be proportionately included in Operating Expenses based upon the percentage such employee spends in connection with the operation, maintenance and management of the Project

    (e) The cost of supplying any services and utilities which benefit all or a portion of the Premises, Building or Project to the extent not addressed in Paragraph 15 hereof.

    (f) Legal expenses and the cost of audits by certified public accountants; provided, however, that legal expenses chargeable as Operating Expenses shall not include the cost of negotiating leases, collecting rents, evicting tenants nor shall it include costs incurred in legal proceedings with or against any tenant or to enforce the provisions of any lease.

    (g) A management and accounting cost recovery fee equal to three percent (3%) of the applicable annual Base Rent payable to Landlord hereunder (the " Management Fee "); provided, however, that notwithstanding anything to the contrary set forth herein, for purposes of computing the Additional Rent payable by Tenant pursuant to this Paragraph 7.A, Tenant’s Proportionate Share of the Management Fee shall be equal to one hundred percent (100%) of such Management Fee.

Operating Expenses shall not include any of the following: (1) the cost of providing tenant improvements or other specific costs incurred for the account of, separately billed to and paid by specific tenants of the Building or Project; (2) the initial construction cost of the Building or Project; (3) debt service on any mortgage or deed of trust recorded with respect to the Project other than pursuant to Paragraph 7.A.(3)(b) above or principal payments on other non-operating debts of Landlord; (4) depreciation; (5) costs in connection with leasing space in the Project, including brokerage commissions, lease concessions, rental abatements and construction allowances granted to specific tenants; (6) costs incurred in connection with the sale, financing or refinancing of the Building or Project; (7) the cost or expense of any services or benefits provided generally to other tenants of the Project and not provided or available to Tenant; (8) all items (including repairs) and services for which Tenant or other tenants pay directly to third parties or for which Tenant or other tenants reimburse Landlord (other than through Operating Expenses); (9) ground lease rental; (10) sums (other than management fees, it being agreed that the management fees included in Operating Expenses are as described in Paragraph 7.A.3(g) above) paid to subsidiaries or other affiliates of Landlord for services on or to the Project, Building and/or Premises, but only to the extent that the costs of such services exceed the competitive cost for such services rendered by persons or entities of similar skill, competence and experience; (11) Landlord’s charitable and political contributions; (12) all costs of purchasing or leasing major sculptures, paintings or other major works or objects of art (as opposed to decorations purchased or

 

-6-

leased by Landlord for display in the common areas); (13) advertising and promotional expenditures; (14) all costs associated with the operation of the business of the entity which constitutes "Landlord" (as distinguished from the costs of operating, maintaining, repairing and managing the Building or Project) including but not limited to, Landlord’s or Landlord’s managing agent’s general corporate overhead and general administrative expenses; (15) reserves not spent by Landlord by the end of the calendar year for which Operating Expenses are paid; (16) all bad debt loss, rent loss or reserves for bad debt or rent loss; (17) any cost or expense related to removal, cleaning, abatement or remediation of Hazardous Materials in or about the Building, common area or Project, including without limitation, Hazardous Materials in the ground water or soil, except to the extent such removal, cleaning, abatement or remediation is related to the general repair and maintenance of the Building, common area or Project (for example, disposal of toner, aerosol cans, paint and paint remover), but not to exceed $1,500.00 per calendar year; (18) costs, fines or penalties incurred due to violations by Landlord of any Regulation which was in effect (and as enforced by applicable governmental or judicial authority) as of the Term Commencement Date, except if the Building, common area or Project becomes out of compliance due to normal wear and tear, the cost of bringing such portion of the Building, common area or Project into compliance shall be included in Operating Expenses unless otherwise excluded pursuant to the terms hereof; (19) costs incurred by Landlord for the repair of damage to the Building or Project, to the extent that Landlord is reimbursed for such costs by insurance proceeds, contractor warranties, guarantees, judgments or other third party sources; (20) fines, interest and penalties incurred due to the late payment of taxes or other Operating Expenses; and (21) costs arising from the maintenance and repairs of the roof and roof membrane. Further, Operating Expenses shall not include any expenditure (including, without limitation, the rental or purchase cost of any improvement, part, supply, tool, item of equipment, or repair) that would be deemed a capital expenditure under generally accepted accounting principles ( "GAAP" ), except any such expenditure that: (i) is incurred primarily to reduce current or future operating expense costs or otherwise improve the operating efficiency of the Building or Project (provided that such savings are not primarily for the benefit of any particular tenant other than Tenant) ( "Cost-Saving Expenditure" ); or (ii) is required to comply with any Regulations that are enacted, or first interpreted by applicable governmental or judicial authority to apply to the Building, common area or Project, after the date of this Lease ( "Code-Required Expenditures" ). Any capital expenditure that is deemed an Operating Expense pursuant to clause (i) of the preceding sentence (and not pursuant to any other provision hereof) shall be amortized by Landlord over such period as may be selected by Landlord provided that the annual amortized portion of such expenditure shall not exceed the actual cost savings generated by the item for which such expenditure was incurred. Any capital expenditure that is deemed an Operating Expense pursuant to clause (ii) of the preceding sentence shall be amortized by Landlord over the actual useful life of the item for which such expenditure was incurred (as reasonably determined by Landlord in accordance with GAAP); provided, however, that if such item generates a cost savings, such expenditure may, at Landlord’s option, be amortized over such shorter period, if any, as may be selected by Landlord provided that the annual amortized portion of such expenditure shall not exceed the actual cost savings realized. The amortized cost of any capital items may, at Landlord option, include actual or imputed interest at the rate that Landlord would reasonably be required to pay to finance the cost of the capital improvement, not to exceed eight percent (8%).

The above enumeration of services and facilities shall not be deemed to impose an obligation on Landlord to make available or provide such services or facilities except to the extent if any that Landlord has specifically agreed elsewhere in this Lease to make the same available or provide the same. Without limiting the generality of the foregoing, Tenant acknowledges and agrees that it shall be responsible for providing adequate security for its use of the Premises, the Building and the Project and that Landlord shall have no obligation or liability with respect thereto, except to the extent if any that Landlord has specifically agreed elsewhere in this Lease to provide the same.

 

-7-

B. Payment of Estimated Operating Expenses . " Estimated Operating Expenses " for any particular year shall mean Landlord’s estimate of the Operating Expenses for such fiscal year made with respect to such fiscal year as hereinafter provided. Landlord shall have the right from time to time to revise its fiscal year and interim accounting periods so long as the periods as so revised are reconciled with prior periods in a reasonable manner. During the last month of each fiscal year during the Term, or as soon thereafter as practicable, Landlord shall give Tenant written notice of the Estimated Operating Expenses for the ensuing fiscal year. Tenant shall pay Tenant’s Proportionate Share of the Estimated Operating Expenses with installments of Base Rent for the fiscal year to which the Estimated Operating Expenses applies in monthly installments on the first day of each calendar month during such year, in advance. Such payment shall be construed to be Additional Rent for all purposes hereunder. If at any time during the course of the fiscal year, Landlord determines that Operating Expenses are projected to vary from the then Estimated Operating Expenses by more than five percent (5%), Landlord may, by written notice to Tenant, revise the Estimated Operating Expenses for the balance of such fiscal year, and Tenant’s monthly installments for the remainder of such year shall be adjusted so that by the end of such fiscal year Tenant has paid to Landlord Tenant’s Proportionate Share of the revised Estimated Operating Expenses for such year, such revised installment amounts to be Additional Rent for all purposes hereunder.

C. Computation of Operating Expense Adjustment . "Operating Expense Adjustment" shall mean the difference between Estimated Operating Expenses and actual Operating Expenses for any fiscal year determined as hereinafter provided. Within one hundred twenty (120) days after the end of each fiscal year, or as soon thereafter as practicable, Landlord shall deliver to Tenant a statement of actual Operating Expenses for the fiscal year just ended, accompanied by a computation of Operating Expense Adjustment. If such statement shows that Tenant’s payment based upon Estimated Operating Expenses is less than Tenant’s Proportionate Share of Operating Expenses, then Tenant shall pay to Landlord the difference within twenty (20) days after receipt of such statement, such payment to constitute Additional Rent for all purposes hereunder. If such statement shows that Tenant’s payments of Estimated Operating Expenses exceed Tenant’s Proportionate Share of Operating Expenses, then Landlord shall pay to Tenant the difference within twenty (20) days after delivery of such statement to Tenant. If this Lease has been terminated or the Term hereof has expired prior to the date of such statement, then the Operating Expense Adjustment shall be paid by the appropriate party within twenty (20) days after the date of delivery of the statement. Should this Lease commence or terminate at any time other than the first day of the fiscal year, Tenant’s Proportionate Share of the Operating Expense Adjustment shall be prorated based on a month of 30 days and the number of calendar months during such fiscal year that this Lease is in effect. Notwithstanding anything to the contrary contained in Paragraph 7.A or 7.B, Landlord’s failure to provide any notices or statements within the time periods specified in those paragraphs shall in no way excuse Tenant from its obligation to pay Tenant’s Proportionate Share of Operating Expenses.

D. Net Lease . This shall be a triple net Lease and Base Rent shall be paid to Landlord absolutely net of all costs and expenses, except as specifically provided to the contrary in this Lease. The provisions for payment of Operating Expenses and the Operating Expense Adjustment are intended to pass on to Tenant and reimburse Landlord for all costs and expenses of the nature described in Paragraph 7.A. (except as expressly otherwise excluded by this Lease) incurred in connection with the ownership, management, maintenance, repair, preservation, replacement and operation of the Building and/or Project and its supporting facilities and such additional facilities now and in subsequent years as may be determined by Landlord to be necessary or desirable to the Building and/or Project.

E. Tenant Audit . If Tenant shall dispute the amount set forth in any statement provided by Landlord under Paragraph 7.B. or 7.C. above, Tenant shall have the right, not later than twenty (20) days following

 

-8-

receipt of such statement and upon the condition that Tenant shall first deposit with Landlord the full amount in dispute, to cause Landlord’s books and records with respect to Operating Expenses for such fiscal year to be audited by certified public accountants selected by Tenant and subject to Landlord’s reasonable right of approval. The Operating Expense Adjustment shall be appropriately adjusted on the basis of such audit. If such audit discloses a liability for a refund in excess of ten percent (10%) of Tenant’s Proportionate Share of the Operating Expenses previously reported, the cost of such audit shall be borne by Landlord; otherwise the cost of such audit shall be paid by Tenant. If Tenant shall not request an audit in accordance with the provisions of this Paragraph 7.E. within twenty (20) days after receipt of Landlord’s statement provided pursuant to Paragraph 7.B. or 7.C., such statement shall be final and binding for all purposes hereof. Tenant acknowledges and agrees that any information revealed in the above described audit may contain proprietary and sensitive information and that significant damage could result to Landlord if such information were disclosed to any party other than Tenant’s auditors. Tenant shall not in any manner disclose, provide or make available any information revealed by the audit to any person or entity without Landlord’s prior written consent, which consent may be withheld by Landlord in its sole and absolute discretion. The information disclosed by the audit will be used by Tenant solely for the purpose of evaluating Landlord’s books and records in connection with this Paragraph 7.E.

8. INSURANCE AND INDEMNIFICATION

A. Landlord’s Insurance . All insurance maintained by Landlord shall be for the sole benefit of Landlord and under Landlord’s sole control.

  • (1) Property Insurance . Landlord agrees to maintain property insurance insuring the Building against damage or destruction due to risk including fire, vandalism, and malicious mischief in an amount not less than the replacement cost thereof, in the form and with deductibles and endorsements as selected by Landlord. At its election, Landlord may instead (but shall have no obligation to) obtain "All Risk" coverage, and may also obtain earthquake, pollution, and/or flood insurance in amounts selected by Landlord.

    (2) Optional Insurance . Landlord, at Landlord’s option, may also (but shall have no obligation to) carry (i) insurance against loss of rent, in an amount equal to the amount of Base Rent and Additional Rent that Landlord could be required to abate to all Building tenants in the event of condemnation or casualty damage for a period of twelve (12) months; and (ii) liability insurance and such other insurance as Landlord may deem prudent or advisable, including, without limitation, liability insurance in such amounts and on such terms as Landlord shall determine. Landlord shall not be obligated to insure, and shall have no responsibility whatsoever for any damage to, any furniture, machinery, goods, inventory or supplies, or other personal property or fixtures which Tenant may keep or maintain in the Premises, or any leasehold improvements, additions or alterations within the Premises.

B. Tenant’s Insurance . Tenant shall procure at Tenant’s sole cost and expense and keep in effect from the date of this Lease and at all times until the end of the Term the following:

  • (1) Property Insurance . Property/Business Interruption Insurance written on an All Risk or Special Perils form, with coverage for broad form water damage including earthquake sprinkler leakage, at replacement cost value and with a replacement cost endorsement covering all of Tenant’s business and trade fixtures, equipment, movable partitions, furniture, merchandise and other personal property within the Premises (" Tenant’s Property ") and all improvements, additions or alterations made by or for Tenant to the Premises. Other than earthquake sprinkler leakage coverage, Tenant is not required to carry earthquake insurance.

 

-9-

  • (2) Liability Insurance . Commercial General Liability insurance covering bodily injury and property damage liability occurring in or about the Premises or arising out of the use and occupancy of the Premises and the Project, and any part of either, and any areas adjacent thereto, and the business operated by Tenant or by any other occupant of the Premises. Such insurance shall include contractual liability coverage insuring all of Tenant’s indemnity obligations under this Lease. Such coverage shall have a minimum combined single limit of liability of at least Two Million Dollars ($2,000,000.00), and a minimum general aggregate limit of Three Million Dollars ($3,000,000.00), with an "Additional Insured – Managers or Lessors of Premises Endorsement" and the "Amendment of the Pollution Exclusion Endorsement." All such policies shall be written to apply to all bodily injury (including death), property damage or loss, personal and advertising injury and other covered loss, however occasioned, occurring during the policy term, shall be endorsed to add Landlord (or its successors and assignees), the managing agent for the Building (or any successor), EOP Operating Limited Partnership, Equity Office Properties Trust and their respective members, principals, beneficiaries, partners, officers, directors, employees, and agents and other designees of Landlord and its successors as the interest of designees shall appear, as an additional insured, and shall provide that such coverage shall be " primary " and non-contributing with any insurance maintained by Landlord, which shall be excess insurance only. Such coverage shall also contain endorsements including employees as additional insureds if not covered by Tenant’s Commercial General Liability Insurance. All such insurance shall provide for the severability of interests of insureds; and shall be written on an " occurrence " basis, which shall afford coverage for all claims based on acts, omissions, injury and damage, which occurred or arose (or the onset of which occurred or arose) in whole or in part during the policy period.

    (3) Workers’ Compensation and Employers’ Liability Insurance . Workers’ Compensation Insurance as required by any Regulation, and Employers’ Liability Insurance in amounts not less than One Million Dollars ($1,000,000) each accident for bodily injury by accident; One Million Dollars ($1,000,000) policy limit for bodily injury by disease; and One Million Dollars ($1,000,000) each employee for bodily injury by disease.

    (4) Commercial Auto Liability Insurance . Commercial auto liability insurance with a combined limit of not less than One Million Dollars ($1,000,000.00) for bodily injury and property damage for each accident. Such insurance shall cover liability relating to any auto (including owned, hired and non-owned autos).

    (5) Alterations Requirements . In the event Tenant shall desire to perform any Alterations, Tenant shall deliver to Landlord, prior to commencing such Alterations (i) evidence satisfactory to Landlord that Tenant carries "Builder’s Risk" insurance covering construction of such Alterations in an amount and form approved by Landlord, (ii) such other insurance as Landlord shall nondiscriminatorily require, and (iii) a lien and completion bond or other security in form and amount satisfactory to Landlord.

    (6) General Insurance Requirements . All coverages described in this Paragraph 8.B shall be endorsed to (i) provide Landlord with thirty (30) days’ notice of cancellation or change in terms; and (ii) waive all rights of subrogation by the insurance carrier against Landlord. If at any time during the Term the amount or coverage of insurance which Tenant is required to carry under this Paragraph 8.B

 

-10-

  • is, in Landlord’s reasonable judgment, materially less than the amount or type of insurance coverage typically carried by owners or tenants of properties located in the general area in which the Premises are located which are similar to and operated for similar purposes as the Premises or if Tenant’s use of the Premises should change with or without Landlord’s consent, Landlord shall have the right to require Tenant to increase the amount or change the types of insurance coverage required under this Paragraph 8.B. All insurance policies required to be carried by Tenant under this Lease shall be written by companies rated A X or better in "Best’s Insurance Guide" and authorized to do business in the State of California. In any event deductible amounts under all insurance policies required to be carried by Tenant under this Lease shall not exceed Five Thousand Dollars ($5,000.00) per occurrence. Tenant shall deliver to Landlord on or before the Term Commencement Date, and thereafter at least thirty (30) days before the expiration dates of the expired policies, certified copies of Tenant’s insurance policies, or a certificate evidencing the same issued by the insurer thereunder; and, if Tenant shall fail to procure such insurance, or to deliver such policies or certificates, Landlord may, at Landlord’s option and in addition to Landlord’s other remedies in the event of a default by Tenant hereunder, procure the same for the account of Tenant, and the cost thereof shall be paid to Landlord as Additional Rent.

C. Indemnification . Except to the extent caused by the negligence or willful misconduct of Landlord, Equity Office Properties Trust, a Maryland real estate investment trust, EOP Operating Limited Partnership, a Delaware limited partnership, and each of their respective trustees, directors, shareholders, partners, lenders, members, managers, contractors, affiliates, employees, mortgagees and agents (individually, a "Landlord Party" and collectively, "Landlord Parties," Tenant shall indemnify, defend and hold Landlord and the Landlord Parties harmless against and from all liabilities, obligations, damages, penalties, claims, actions, costs, charges and expenses, including, without limitation, reasonable attorneys’ fees and other professional fees (if and to the extent permitted by Regulations) (collectively referred to as "Losses" ), which may be imposed upon, incurred by or asserted against Landlord or any Landlord Party by any third party and arising out of or in connection with any damage or injury occurring in the Premises or any acts or omissions (including violations of Regulations) of Tenant or any Tenant Party. Except to the extent caused by the negligence or willful misconduct of Tenant or any Tenant Party, Landlord shall indemnify, defend and hold Tenant and the Tenant Parties harmless against and from all Losses which may be imposed upon, incurred by or asserted against Tenant or any Tenant Party by any third party and arising out of or in connection with the acts or omissions (including violations of Regulations) of Landlord or any Landlord Party. Tenant hereby waives all claims against and releases Landlord and the Landlord Parties from all claims for any injury to or death of persons, damage to property or business loss in any manner related to (a) Force Majeure, (b) acts of third parties, (c) the bursting or leaking of any tank, water closet, drain or other pipe, (d) the inadequacy or failure of any security or protective services, personnel or equipment, or (e) any matter not within the reasonable control of Landlord. Notwithstanding the foregoing, except as provided in Paragraph 9 to the contrary, Tenant shall not be required to waive any claims against Landlord (other than for loss or damage to Tenant’s business) where such loss or damage is due to the gross negligence or willful misconduct of landlord or any Landlord Party.

9. WAIVER OF SUBROGATION

Landlord and Tenant each waive, and shall cause their respective insurance carriers to waive, any claim, loss or cost it might have against the other for any injury to or death of any person or persons, or damage to or theft, destruction, loss, or loss of use of any property (a "Loss" ), to the extent the same is insured against (or is required to be insured against under the terms hereof) under any property damage insurance policy covering the Building, the Premises, Landlord’s or Tenant’s fixtures, personal property, leasehold improvements, or business, regardless of whether the negligence of the other party caused such Loss.

 

-11-

10. LANDLORD’S REPAIRS AND MAINTENANCE

Landlord, at its sole cost and expenses, except to the extent properly included in Operating Expenses, shall maintain in good repair, reasonable wear and tear excepted, the structural soundness of the roof, roof membrane, foundations, and exterior walls of the Building. The term "exterior walls" as used herein shall not include windows, glass or plate glass, doors, dock bumpers or dock plates, special store fronts or office entries. Any damage caused by or repairs necessitated by any negligence or act of Tenant or Tenant’s Parties may be repaired by Landlord at Landlord’s option and Tenant’s expense, to the extent Landlord is not reimbursed by proceeds of the insurance required to be carried by Landlord hereunder. Tenant shall immediately give Landlord written notice of any defect or need of repairs in such components of the Building for which Landlord is responsible, after which Landlord shall have a reasonable opportunity and the right to enter the Premises at all reasonable times to repair same. Landlord’s liability with respect to any defects, repairs, or maintenance for which Landlord is responsible under any of the provisions of this Lease shall be limited to the cost of such repairs or maintenance, and there shall be no abatement of rent and no liability of Landlord by reason of any injury to or interference with Tenant’s business arising from the making of repairs, alterations or improvements in or to any portion of the Premises, the Building or the Project or to fixtures, appurtenances or equipment in the Building, except as provided in Paragraph 24. Subject to Paragraph 2.B above, by taking possession of the Premises, Tenant accepts them "as is," as being in good order, condition and repair and the condition in which Landlord is obligated to deliver them and suitable for the Permitted Use and Tenant’s intended operations in the Premises, whether or not any notice of acceptance is given.

11. TENANT’S REPAIRS AND MAINTENANCE

Subject to reasonable wear and tear, and damage by Casualty or condemnation, Tenant shall at all times during the Term at Tenant’s expense maintain all parts of the Premises and such portions of the Building as are within the exclusive control of Tenant in a good, clean and secure condition and promptly make all necessary repairs and replacements, as determined by Landlord, including but not limited to, all windows, glass, doors, walls, including demising walls, and wall finishes, floors and floor covering, heating, ventilating and air conditioning systems, ceiling insulation, truck doors, hardware, dock bumpers, dock plates and levelers, plumbing work and fixtures, downspouts, entries, skylights, smoke hatches, roof vents, electrical and lighting systems, and fire sprinklers, with materials and workmanship of the same character, kind and quality as the original. Tenant shall at Tenant’s expense also perform regular removal of trash and debris. If Tenant uses rail and if required by the railroad company, Tenant agrees to sign a joint maintenance agreement governing the use of the rail spur, if any. Tenant shall, at Tenant’s own expense, enter into a regularly scheduled preventative maintenance/service contract with a maintenance contractor for servicing all hot water, heating and air conditioning systems and equipment within or serving the Premises. The maintenance contractor and the contract must be approved by Landlord. The service contract must include all services suggested by the equipment manufacturer within the operation/maintenance manual and must become effective and a copy thereof delivered to Landlord within thirty (30) days after the Term Commencement Date. In the event that Tenant does not enter into such a service contract or allows such service contract to lapse, Landlord may enter into such a service contract on Tenant’s behalf and charge Tenant the cost thereof along with a reasonable amount for Landlord’s overhead. In the event that Tenant does not make the repairs required hereunder, Landlord may perform the work and charge Tenant the cost thereof along with a reasonable amount for Landlord’s overhead. Notwithstanding anything to the contrary contained herein, Tenant shall, at its expense, promptly repair any damage to the Premises or the Building or Project resulting

 

-12-

from or caused by any negligence or act of Tenant or Tenant’s Parties, to the extent Landlord is not reimbursed by proceeds of the insurance required to be carried by Landlord hereunder. Nothing herein shall expressly or by implication render Tenant Landlord’s agent or contractor to effect any repairs or maintenance required of Tenant under this Paragraph 11, as to all of which Tenant shall be solely responsible.

12. ALTERATIONS

A. Tenant shall not make, or allow to be made, any alterations, physical additions, improvements or partitions, including without limitation the attachment of any fixtures or equipment, in, about or to the Premises ( "Alterations" ) without obtaining the prior written consent of Landlord, which consent shall not be unreasonably withheld with respect to proposed Alterations which: (1) comply with all applicable Regulations; (2) are, in Landlord’s opinion, compatible with the Building or the Project and its mechanical, plumbing, electrical, heating/ventilation/air conditioning systems, and will not cause the Building or Project or such systems to be required to be modified to comply with any Regulations (including, without limitation, the Americans With Disabilities Act); and (3) will not interfere with the use and occupancy of any other portion of the Building or Project by any other tenant or its invitees. However, Landlord’s consent shall not be required for any Alteration that satisfies all of the following criteria (a "Cosmetic Alteration" ): (a) is of a cosmetic nature such as painting, wallpapering, hanging pictures, and installing carpeting; (b) is not visible for the exterior of the Building; (c) will not affect the mechanical, plumbing, heating/ventilation/air conditioning systems; and (d) does not require work to be performed inside the walls or above the ceiling of the Premises. Further, any electrical work performed in accordance with applicable Regulations shall be deemed a Cosmetic Alteration for the purposes hereof. Prior to starting work on the Alterations, whether Cosmetic Alterations or otherwise, Tenant shall furnish Landlord with plans (if necessary for the issuance of any required permits for any Alterations or if reasonably determined by Landlord for any non-Cosmetic Alterations due to the nature of the work to be performed) for the proposed Alterations, construction means and methods, all appropriate permits and licenses, any contractor or subcontractor to be employed on the work of Alterations, and the time for performance of such work, and may impose rules and regulations for contractors and subcontractors performing such work. Tenant shall also supply to Landlord any documents and information reasonably requested by Landlord in connection with Landlord’s consideration of a request for approval hereunder. Tenant shall cause all Alterations to be accomplished in a first-class, good and workmanlike manner, and to comply with all applicable Regulations and Paragraph 27 hereof. Tenant shall at Tenant’s sole expense, perform any additional work required under applicable Regulations due to the Alterations hereunder. No review or consent by Landlord of or to any proposed Alteration or additional work shall constitute a waiver of Tenant’s obligations under this Paragraph 12. Tenant shall reimburse Landlord for all sums paid by Landlord for third party examination of Tenant’s plans for non-Cosmetic Alterations and shall pay Landlord an administration fee of five percent (5%) of the cost of any non-Cosmetic Alterations as Additional Rent hereunder. All such Alterations shall remain the property of Tenant until the expiration or earlier termination of this Lease, at which time they shall be and become the property of Landlord; provided, however, that Landlord may, at Landlord’s option, require that Tenant, at Tenant’s expense, remove any or all Alterations made by Tenant and restore the Premises by the expiration or earlier termination of this Lease, to their condition existing prior to the construction of any such Alterations. Tenant, at the time it requests approval for a proposed Alteration, may request in writing that Landlord advise Tenant whether the Alteration, or portion thereof, shall be required to be removed upon the expiration or earlier termination of this Lease and Landlord shall so advise Tenant. All such removals and restoration shall be accomplished in a first-class and good and workmanlike manner so as not to cause any damage to the Premises or Project whatsoever. If Tenant fails to remove such Alterations or Tenant’s trade fixtures or furniture or other personal property, Landlord may keep and use them or remove any of them and cause them to be stored or sold in accordance with applicable law, at Tenant’s sole expense. In addition to and wholly apart from

 

-13-

Tenant’s obligation to pay Tenant’s Proportionate Share of Operating Expenses, Tenant shall be responsible for and shall pay prior to delinquency any taxes or governmental service fees, possessory interest taxes, fees or charges in lieu of any such taxes, capital levies, or other charges imposed upon, levied with respect to or assessed against its fixtures or personal property, on the value of Alterations within the Premises, and on Tenant’s interest pursuant to this Lease, or any increase in any of the foregoing based on such Alterations. To the extent that any such taxes are not separately assessed or billed to Tenant, Tenant shall pay the amount thereof as invoiced to Tenant by Landlord.

B. In compliance with Paragraph 27 hereof, at least ten (10) business days before beginning construction of any Alteration (defined in Paragraph 12.A. above), Tenant shall give Landlord written notice of the expected commencement date of that construction to permit Landlord to post and record a notice of non-responsibility. Upon substantial completion of construction, if the law so provides, Tenant shall cause a timely notice of completion to be recorded in the office of the recorder of the county in which the Building is located.

13. SIGNS

Tenant shall not place, install, affix, paint or maintain any signs, notices, graphics or banners whatsoever or any window decor which is visible in or from public view or corridors, the common areas or the exterior of the Premises or the Building, in or on any exterior window or window fronting upon any common areas or service area or upon any truck doors or man doors without Landlord’s prior written approval which Landlord shall have the right to withhold in its absolute and sole discretion; provided that Tenant’s name shall be included in any Building-standard door and directory signage, if any, in accordance with Landlord’s Building signage program (except as provided in Paragraph 39.B. below), including without limitation, payment by Tenant of any fee charged by Landlord for maintaining such signage, which fee shall constitute Additional Rent hereunder. Any installation of signs, notices, graphics or banners on or about the Premises or Project approved by Landlord shall be subject to any Regulations and to any other requirements imposed by Landlord. Tenant shall remove all such signs or graphics by the expiration or any earlier termination of this Lease. Such installations and removals shall be made in such manner as to avoid injury to or defacement of the Premises, Building or Project and any other improvements contained therein, and Tenant shall repair any injury or defacement including without limitation discoloration caused by such installation or removal,

14. INSPECTION/POSTING NOTICES

After reasonable notice, except in emergencies where no such notice shall be required, Landlord and Landlord’s agents and representatives, shall have the right to enter the Premises to inspect the same, to perform such work as may be permitted or required hereunder, to make repairs, improvements or alterations to the Premises, Building or Project or to other tenant spaces therein, to deal with emergencies, to post such notices as may be permitted or required by law to prevent the perfection of liens against Landlord’s interest in the Project or to exhibit the Premises to prospective tenants, purchasers, encumbrancers or to others, or for any other purpose as Landlord may deem necessary or desirable; provided, however, that Landlord shall use reasonable efforts not to unreasonably interfere with Tenant’s business operations. Tenant shall not be entitled to any abatement of Rent by reason of the exercise of any such right of entry. Tenant waives any claim for damages for any injury or inconvenience to or interference with Tenant’s business, any loss of occupancy or quiet enjoyment of the Premises, and any other loss occasioned thereby. Landlord shall at all times have and retain a key with which to unlock all of the doors in, upon and about the Premises, excluding Tenant’s vaults and safes or special security areas (designated in advance), and Landlord shall have the right

 

-14-

to use any and all means which Landlord may deem necessary or proper to open said doors in an emergency, in order to obtain entry to any portion of the Premises, and any entry to the Premises or portions thereof obtained by Landlord by any of said means, or otherwise, shall not be construed to be a forcible or unlawful entry into, or a detainer of, the Premises, or an eviction, actual or constructive, of Tenant from the Premises or any portions thereof. At any time within six (6) months prior to the expiration of the Term or following any earlier termination of this Lease or agreement to terminate this Lease, Landlord shall have the right to erect on the Premises, Building and/or Project a suitable sign indicating that the Premises are available for lease.

15. SERVICES AND UTILITIES

A. Tenant shall (where practicable) contract for and pay directly when due, for all water, gas, heat, air conditioning, light, power, telephone, sewer, sprinkler charges, cleaning, waste disposal and other utilities and services used on or from the Premises, together with any taxes, penalties, surcharges or the like pertaining thereto, and maintenance charges for utilities and shall furnish all electric light bulbs, ballasts and tubes. If any such services are not separately billed or metered to Tenant, Tenant shall pay an equitable proportion, as determined in good faith by Landlord, of all charges billed or metered with other premises. All sums payable under this Paragraph 15 shall constitute Additional Rent hereunder.

B. Subject to Paragraph 2.B. above, Tenant acknowledges that Tenant has inspected and accepts the water, electricity, heat and air conditioning and other utilities and services being supplied or furnished to the Premises as of the date Tenant takes possession of the Premises, if any, as being sufficient in their present condition, "as is," for the Permitted Use, and for Tenant’s intended operations in the Premises. Landlord shall have no obligation to provide additional or after-hours electricity, heating or air conditioning, but if Landlord elects to provide such services at Tenant’s request, Tenant shall pay upon demand to Landlord a reasonable charge for such services as determined by Landlord. Tenant agrees to keep and cause to be kept closed all window covering when necessary because of the sun’s position, and Tenant also agrees at all times to cooperate fully with Landlord and to abide by all of the regulations and requirements which Landlord may prescribe for the proper functioning and protection of electrical, heating, ventilating and air conditioning systems. Wherever heat-generating machines, excess lighting or equipment are used in the Premises which affect the temperature otherwise maintained by the air conditioning system, Landlord reserves the right to install supplementary air conditioning units in the Premises and the cost thereof, including the cost of installation and the cost of operation and maintenance thereof, shall be paid by Tenant to Landlord upon demand by Landlord.

C. Tenant shall not without written consent of Landlord use any apparatus, equipment or device in the Premises, including without limitation, computers, electronic data processing machines, copying machines, and other machines, using excess lighting or using electric current, water, or any other resource in excess of or which will in any way increase the amount of electricity, water, or any other resource being furnished or supplied for the use of the Premises for reasonable and normal office use, in each case as of the date Tenant takes possession of the Premises and as d


 
SITE SEARCH

AGREEMENTS / CONTRACTS

Document Title:

Entire Document: (optional)

Governing Law:(optional)


Try our advanced search >>
 

CLAUSES

Search Contract Clauses >>

Browse Contract Clause Library>>

Get Email Updates
Email:
This is only a partial view of this document. We have millions of legal documents and clauses drafted by top law firms. learn more search for free browse for free learn more