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EXHIBIT 10.25
BASIC LEASE INFORMATION
INDUSTRIAL NET
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December 14, 2004
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KERBEROS PROXIMAL SOLUTIONS, INC., a
Delaware corporation
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At the Premises.
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At the Premises.
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EOP-INDUSTRIAL PORTFOLIO, L.L.C., a Delaware
limited liability company
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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
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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.
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That certain single story building located at
10600 North Tantau Avenue, Cupertino, California.
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Approximately 23,546 rentable square feet located
at 10600 North Tantau Avenue, Cupertino, California.
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General business office, sales, light
manufacturing of medical devices, lab and clean room, warehousing
of medical devices
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4 spaces per 1,000 rentable square feet of the
Premises.
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December 10, 2004
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37 Months and 21 Days
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January 31, 2008
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See Paragraph 39.A. hereof
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$5,886.50 per month
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$31,787.10
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100%
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36.3776%
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Colliers International
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PCG Investments
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There are no guarantors as of the date of this
Lease.
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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.
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TABLE OF
CONTENTS
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SIGNATURES
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37
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Exhibits:
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Rules and Regulations
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Outline and Location of Premises
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Work Letter, if any
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Hazardous Materials Questionnaire
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Asbestos Notification
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Depiction of Storage
Area
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-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
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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
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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.
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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
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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:
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(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.
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(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.
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(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
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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.
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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
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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.
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(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:
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(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.
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(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
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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.
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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
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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
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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
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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
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