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Sample Business ContractsHome: Sample Business Contracts:
STANDARD FORM
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SUBLEASE
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This Sublease is made as of the 30th day of November, 2001, by and
between Acacia Research Corporation, a California corporation (hereinafter
referred to as "Sublandlord") and Jenkens & Gilchrist, a Texas Professional
Corporation (hereinafter collectively referred to as "Subtenant") with regard to
the following facts.
R E C I T A L S :
- - - - - - - -
A. Sublandlord is the tenant under that certain Office Lease (the
"Lease"), dated as of April 30, 1998, as amended by a Parking Agreement dated
April 30, 1998, and a First Amendment dated June 26, 2000 (the "First
Amendment") (collectively, the "Master Lease") with EOP-Pasadena Towers, L.L.C.,
a Delaware limited liability company (the "Landlord") (a copy of which Master
Lease is attached hereto as Exhibit A and by this reference made a part hereof)
concerning approximately 7,019 rentable square feet of office space (the
"Premises") located on the 6th floor of the building (the "Building") located at
55 S. Lake Avenue, Pasadena, California.
B. Subtenant desires to sublease the entire Premises from Sublandlord,
and Sublandlord has agreed to sublease the Premises to Subtenant upon the terms,
covenants and conditions herein set forth. The term "Premises" as used in this
Sublease shall also mean the "Subleased Premises," and vice versa.
AGREEMENT
In consideration of the mutual covenants contained herein, the
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows.
1. SUBLEASE. Sublandlord hereby subleases and demises to Subtenant and
Subtenant hereby hires and takes from Sublandlord the Premises.
2. TERM. The term of this Sublease shall commence on February 15, 2002
("Commencement Date") and shall end, unless sooner terminated as provided in the
Master Lease on November 30, 2003.
3. RENT. Subtenant shall pay base rent during the term of this Sublease
in the amount of $14,038.00 per month, payable monthly in advance on the first
day of each month. Furthermore, in the event that the term of this Sublease
shall begin or end on a date which is not the first day of a month, base rent
shall be prorated as of such date. Concurrent with Subtenant's execution of this
Sublease, Subtenant shall deliver to Sublandlord the first month's base rent in
the amount of $14,038.00. Subtenant shall also, prior to the Commencement Date,
pay to Sublandlord an amount equal to the Security Deposit which is currently
being held by Landlord pursuant to the terms of Section VI, Page 15 of the
Lease, and Section III, page 2 of the First Amendment (such amount being
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<PAGE>
$16,876.08), and Sublandlord hereby assigns to Subtenant all of Sublandlord's
rights and interest in such Security Deposit. Sublandlord shall credit Subtenant
with $5,000.00 toward its rent obligation due month 2 of the Sublease Term
(being the month of March 2002) in lieu of shampooing carpet and painting walls.
4. TAX AND EXPENSE INCREASES. In addition to the rent set forth in
Section 3, Subtenant shall pay to Sublandlord, as additional rent, (a) an amount
equal to Tenant's Pro Rata Share of the increase in Taxes for any calendar year
in excess of the Taxes for the Base Year, and (b) an amount equal to Tenant's
Pro Rata Share of the increase in Expenses for any calendar year in excess of
Expenses for the Base Year, to the extent such Taxes and Expenses for any such
calendar year arise or accrue during the term of this Sublease. Defined terms
used in this Section 4 shall have the same meaning as set forth in the Master
Lease, except that the term "Base Year" shall mean the calendar year 2001. Such
additional rent shall be paid by Subtenant concurrently with the base rent and
may be estimated by Sublandlord, consistent with the estimates of Additional
Base Rental under the Master Lease provided by Landlord, with a reconciliation
made at such time as the reconciliation is made under the Master Lease.
5. USE. Subtenant covenants and agrees to use the Premises in
accordance with the provisions of the Master Lease and for no other purpose and
otherwise in accordance with the terms and conditions of the Master Lease and
this Sublease.
6. MASTER LEASE. As applied to this Sublease, the words "Landlord" and
"Tenant" as used in the Master Lease shall be deemed to refer to Sublandlord and
Subtenant hereunder, respectively. Subtenant and this Sublease shall be subject
in all respects to the terms of, and the rights of the Landlord under, the
Master Lease. Except as otherwise expressly provided in Section 8 hereof, the
covenants, agreements, terms, provisions and conditions of the Master Lease
insofar as they relate to the Subleased Premises and insofar as they are not
inconsistent with the terms of this Sublease are made a part of and incorporated
into this Sublease as if recited herein in full, and the rights and obligations
of the Landlord and the Tenant under the Master Lease shall be deemed the rights
and obligations of Sublandlord and Subtenant respectively hereunder and shall be
binding upon and inure to the benefit of Sublandlord and Subtenant respectively.
As between the parties hereto only, in the event of a conflict between the terms
of the Master Lease and the terms of this Sublease, the terms of this Sublease
shall control.
7. LANDLORD'S PERFORMANCE UNDER MASTER LEASE.
7.1 Subtenant recognizes that Sublandlord is not in a position
to render any of the services or to perform certain obligations which relate to
the Premises required of Sublandlord by the terms of this Sublease. Therefore,
notwithstanding anything to the contrary contained in this Sublease, Subtenant
agrees that performance by Sublandlord of its obligations hereunder, to the
extent that performance is beyond Sublandlord's control and within the control
of Landlord, are conditional upon due performance by the Landlord of its
corresponding obligations under the Master Lease and Sublandlord shall not be
liable to Subtenant for any default of the Landlord under the Master Lease.
Subtenant shall not have any claim against Sublandlord by reason of the
Landlord's failure or refusal to comply with any of the provisions of the Master
Lease unless such failure or refusal is a result of Sublandlord's act or failure
to act. This Sublease shall remain in full force and effect notwithstanding the
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<PAGE>
Landlord's failure or refusal to comply with any such provisions of the Master
Lease and Subtenant shall pay the base rent and additional rent and all other
charges provided for herein without any abatement, deduction or setoff
whatsoever. Notwithstanding the foregoing, should the Landlord's failure or
refusal to comply with any provisions of the Master Lease give rise to the right
of Sublandlord to terminate the Master Lease (which right will not be exercised
without the consent of Subtenant), or to have the rent abated thereunder, then,
as applicable, Subtenant shall concurrently terminate the Sublease, or Subtenant
shall have its rent under the Sublease abated in the same proportion as
Sublandlord's rent is abated under the Master Lease. Subtenant covenants and
warrants that it fully understands and agrees to be subject to and bound by all
of the covenants, agreements, terms, provisions and conditions of the Master
Lease, except as otherwise set forth herein. Furthermore, Subtenant and
Sublandlord further covenant not to take any action or do or perform any act or
fail to perform any act which would result in the failure or breach of any of
the covenants, agreements, terms, provisions or conditions of the Master Lease
on the part of the Tenant thereunder.
7.2 Whenever the consent of Landlord shall be required by, or
Landlord shall fail to perform its obligations under, the Master Lease,
Sublandlord agrees to use its commercially reasonable efforts to obtain, at
Subtenant's sole cost and expense, such consent and/or performance on behalf of
Subtenant.
7.3 Sublandlord represents and warrants to Subtenant that the
Master Lease is in full force and effect, and that it has not been amended or
modified except as described in the recitals and First Amendment, all
obligations of both Landlord and Sublandlord thereunder have been satisfied and
Sublandlord has neither given nor received a notice of default pursuant to the
Master Lease.
7.4 Sublandlord covenants as follows: (i) not to voluntarily
terminate the Master Lease and not to take any actions (or fail to take any
actions) which would constitute a default under the Master Lease, (ii) not to
modify the Master Lease so as to adversely affect Subtenant's rights hereunder,
and (iii) to take all actions reasonably necessary to preserve the Master Lease,
including but not limited to, the payment of rent and other sums due to Landlord
thereunder, except to the extent that Subtenant pays same directly to Landlord.
7.5 It is understood and agreed that Subtenant's only monetary
obligations under this Sublease are to pay (i) base rent described in Section 3
above, (ii) additional rent described in Section 4 above, and (iii) all other
amounts payable under the Master Lease (except for "Base Rental" payable under
the Master Lease, and Tenant's Pro Rata Share of the increases in Taxes and
Expenses payable under the Master Lease which are in excess of the amounts
payable by Subtenant pursuant to Section 4 above) which arise or accrue during
the term of this Sublease, including, but not limited to, parking charges.
8. VARIATIONS FROM MASTER LEASE. The following covenants, agreements,
terms, provisions and conditions of the Master Lease are hereby modified or not
incorporated herein:
8.1 Notwithstanding anything to the contrary set forth in
Sections I, IV, and VI of the Lease, as amended by the First Amendment, the term
of this Sublease, the base rent payable under Section 3 of this Sublease,
Tenant's Pro Rata Share of increases in Taxes and Expenses payable under Section
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<PAGE>
4 of this Sublease, and the amount of the Security Deposit required of Subtenant
shall be as set forth in this Sublease and not in the Master Lease.
8.2 The parties hereto represent and warrant to each other
that neither party dealt with any broker or finder in connection with the
consummation of this Sublease except for Staubach-Los Angeles, Inc., on behalf
of Sublandlord and Insignia/E.S.G. and Staubach-Los Angeles, Inc., as
cooperating brokers on behalf of Subtenant. Each party agrees to indemnify, hold
and save the other party harmless from and against any and all claims for
brokerage commissions or finder's fees arising out of either of their acts in
connection with this Sublease. The provisions of this Section 8.2 shall survive
the expiration or earlier termination of this Sublease. The commission to
Staubach-Los Angeles, Inc. and Insignia/E.S.G. has been memorialized in a
separate agreement.
8.3 Notwithstanding anything contained in the Master Lease to
the contrary, as between Sublandlord and Subtenant only, all insurance proceeds
or condemnation awards received by Sublandlord under the Master Lease shall be
deemed to be the property of Sublandlord, but nothing herein shall prohibit
Subtenant from recovery of any such insurance proceeds or condemnation awards
which are specifically for Subtenant's personal property.
8.4 Any notice which may or shall be given by either party
hereunder shall be either delivered personally or sent by nationally recognized
overnight courier or certified mail, return receipt requested, addressed to the
party for whom it is intended (i) (on and after the Commencement Date) at the
Subleased Premises and (at any time) to Jenkens & Gilchrist, 1445 Ross Avenue,
Suite 3200, Dallas, Texas 75202-2799 Attn: Roger L. Hayse (if to the Subtenant),
or (ii) (prior to the Commencement Date) at the Subleased Premises, and (at any
time) to Acacia Research Corporation, c/o Allen Matkins Leck Gamble & Mallory
LLP, 1901 Avenue of the Stars, Suite 1800, Los Angeles, California 90067 Attn:
Mark Kelson, Esq. (if to the Sublandlord), or to such other address or to such
additional addressees, as may be designated in a notice given in accordance with
the provisions of this Section 8.4.
8.5 All amounts payable hereunder by Subtenant shall be
payable directly to Sublandlord, and Sublandlord shall represent and warrant to
pay its rental obligation to Landlord on a timely basis.
8.6 Sublandlord shall deliver the Subleased Premises to
Subtenant in their current "as is" condition, except that all of Sublandlord's
personal property shall be removed from the Premises (and any damage caused by
such removal shall be repaired by Sublandlord), which shall be "broom clean,"
but otherwise in its currently existing "as is" condition.
8.7 Sublandlord shall leave the reception desk in place and
does hereby sell and assign all of its rights and title therein to Subtenant,
provided that Subtenant accepts such desk in its "as is" condition.
8.8 Subtenant shall have no right to exercise the renewal
option set forth in Exhibit E, Section I, attached to the Lease, unless Landlord
agrees to contract directly with Subtenant and fully release Sublandlord of any
and all obligation, responsibility or reference, in any manner whatsoever, as
related to the Lease.
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<PAGE>
9. INDEMNITIES. Subtenant hereby agrees to protect, defend, indemnify
and hold Sublandlord harmless from and against any and all liabilities, claims,
expenses, losses and damages, including, without limitation, reasonable
attorneys' fees and disbursements, which may at any time be asserted against
Sublandlord by (a) the Landlord for failure of Subtenant to perform any of the
covenants, agreements, terms, provisions or conditions contained in the Master
Lease which by reason of the provisions of this Sublease Subtenant is obligated
to perform, or (b) any person by reason of Subtenant's use and/or occupancy of
the Subleased Premises. Sublandlord hereby agrees to indemnify, defend, protect,
and hold Subtenant harmless from and against any and all losses, costs, claims,
damages, expenses and liabilities (including, without limitation, reasonable
attorneys' fees and disbursements), arising from any default by Sublandlord in
the performance of any of Sublandlord's obligations under the Master Lease
(subject to Subtenant's performance of its obligations as set forth in this
Sublease). The provisions of this Section 9 shall survive the expiration or
earlier termination of the Master Lease and/or this Sublease.
10. CANCELLATION OF MASTER LEASE. In the event of the cancellation or
termination of the Master Lease for any reason whatsoever or of the involuntary
surrender of the Master Lease by operation of law prior to the expiration date
of this Sublease, Subtenant agrees to make full and complete attornment to the
Landlord under the Master Lease for the balance of the term of this Sublease and
upon the then executory terms hereof at the option of the Landlord at any time
during Subtenant's occupancy of the Premises, which attornment shall be
evidenced by an agreement in form and substance reasonably satisfactory to the
Landlord. Subtenant agrees to execute and deliver such an agreement at any time
within ten (10) business days after request of the Landlord, and Subtenant
waives the provisions of any law now or hereafter in effect which may give
Subtenant any right of election to terminate this Sublease or to surrender
possession of the Subleased Premises in the event any proceeding is brought by
the Landlord under the Master Lease to terminate the Master Lease.
11. CERTIFICATES. Each party hereto shall at any time and from time to
time as requested by the other party upon not less than ten (10) days prior
written notice, execute, acknowledge and deliver to the other party, a statement
in writing certifying that this Sublease is unmodified and in full force and
effect (or if there have been modifications that the same is in full force and
effect as modified and stating the modifications, if any) certifying the dates
to which rent and any other charges have been paid and stating whether or not,
to the knowledge of the person signing the certificate, that the other party is
not in default beyond any applicable grace period provided herein in performance
of any of its obligations under this Sublease, and if so, specifying each such
default of which the signer may have knowledge, it being intended that any such
statement delivered pursuant hereto may be relied upon by others with whom the
party requesting such certificate may be dealing.
12. ASSIGNMENT OR SUBLETTING. Subject further to all of the rights of
the Landlord under the Master Lease and the restrictions contained in the Master
Lease, Subtenant shall not be entitled to assign this Sublease or to sublet all
or any portion of the Subleased Premises without the prior written consent of
Sublandlord, which will not be unreasonably withheld.
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<PAGE>
13. SEVERABILITY. If any term or provision of this Sublease or the
application thereof to any person or circumstances shall, to any extent, be
invalid and unenforceable, the remainder of this Sublease or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby and each term
or provision of this Sublease shall be valid and be enforced to the fullest
extent permitted by law.
14. ENTIRE AGREEMENT; WAIVER. This Sublease contains the entire
agreement between the parties hereto and shall be binding upon and inure to the
benefit of their respective heirs, representatives, successors and permitted
assigns. Any agreement hereinafter made shall be ineffective to change, modify,
waive, release, discharge, terminate or effect an abandonment hereof, in whole
or in part, unless such agreement is in writing and signed by the parties
hereto.
15. CAPTIONS. Captions to the Sections in this Sublease are included
for convenience only and are not intended and shall not be deemed to modify or
explain any of the terms of this Sublease.
16. FURTHER ASSURANCES. The parties hereto agree that each of them,
upon the request of the other party, shall execute and deliver, in recordable
form if necessary, such further documents, instruments or agreements and shall
take such further action that may be necessary or appropriate to effectuate the
purposes of this Sublease.
17. GOVERNING LAW. This Sublease shall be governed by and in all
respects construed in accordance with the internal laws of the State of
California.
18. CONSENT OF LANDLORD. The validity of this Sublease shall be subject
to the Landlord's prior written consent hereto, and if Landlord's consent shall
not be obtained either on Landlord's form therefor or on the form attached
hereto as Exhibit B and a copy thereof delivered to Subtenant within thirty (30)
days of the date hereof, then this Sublease shall be void and of no force or
effect, and the Security Deposit and prepaid base rent paid by Subtenant to
Sublandlord shall be immediately refunded to Subtenant. Subtenant acknowledges
that the form of consent to be used by Landlord in the event Landlord is willing
to consent to this Sublease shall be determined by Landlord in Landlord's sole
discretion.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be
executed as of the day and year first above written.
"Sublandlord":
ACACIA RESEARCH CORPORATION,
a California corporation
By: /s/ Robert L. Harris, II
------------------------------------
Its: President
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By:
------------------------------------
Its:
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"Subtenant":
JENKENS & GILCHRIST,
a Texas Professional Corporation
By: /s/ signature
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Its: President
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By:
------------------------------------
Its:
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<PAGE>
EXHIBIT A
PASADENA TOWERS
TOWER II
Pasadena, California
STANDARD FORM OFFICE LEASE
BETWEEN
EOP-PASADENA TOWERS, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY DOING
BUSINESS AS EOP-PASADENA TOWERS, LLC, a Delaware limited liability company
("LANDLORD"),
AND
ACACIA RESEARCH CORPORATION, a California corporation ("TENANT")
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
I. BASIC LEASE INFORMATION; DEFINITIONS. . . . . . . . . . . . . . . 1
II. LEASE GRANT . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
III. ADJUSTMENT OF COMMENCEMENT DATE/POSSESSION. . . . . . . . . . . . 5
IV. RENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
V. USE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
VI. SECURITY DEPOSIT. . . . . . . . . . . . . . . . . . . . . . . . . 15
VII. SERVICES TO BE FURNISHED BY LANDLORD. . . . . . . . . . . . . . . 15
VIII. LEASEHOLD IMPROVEMENTS. . . . . . . . . . . . . . . . . . . . . . 17
IX. GRAPHICS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
X. REPAIRS AND ALTERATIONS . . . . . . . . . . . . . . . . . . . . . 17
XI. USE OF ELECTRICAL SERVICES BY TENANT. . . . . . . . . . . . . . . 19
XII. ENTRY BY LANDLORD . . . . . . . . . . . . . . . . . . . . . . . . 19
XIII. ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . . . 20
XIV. LIENS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
XV. INDEMNITY AND WAIVER OF CLAIMS. . . . . . . . . . . . . . . . . . 23
XVI. TENANT'S INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . 24
XVII. SUBROGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
XVIII. LANDLORD'S INSURANCE. . . . . . . . . . . . . . . . . . . . . . . 26
XIX. CASUALTY DAMAGE . . . . . . . . . . . . . . . . . . . . . . . . . 26
XX. DEMOLITION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
XXI. CONDEMNATION. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
XXII. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . 28
XXIII. REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
XXIV. LIMITATION OF LIABILITY . . . . . . . . . . . . . . . . . . . . . 30
XXV. NO WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
XXVI. EVENT OF BANKRUPTCY . . . . . . . . . . . . . . . . . . . . . . . 31
XXVII. WAIVER OF JURY TRIAL. . . . . . . . . . . . . . . . . . . . . . . 32
XXVIII. RELOCATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
XXIX. HOLDING OVER. . . . . . . . . . . . . . . . . . . . . . . . . . . 33
XXX. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE. . . . . . . . . 33
XXXI. ATTORNEYS' FEES . . . . . . . . . . . . . . . . . . . . . . . . . 34
XXXII. NOTICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
XXXIII. LANDLORD'S LIEN . . . . . . . . . . . . . . . . . . . . . . . . . 34
XXXIV. EXCEPTED RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . 34
XXXV. SURRENDER OF PREMISES . . . . . . . . . . . . . . . . . . . . . . 35
XXXVI. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . 35
XXXVII. ENTIRE AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . 37
</TABLE>
<PAGE>
OFFICE LEASE AGREEMENT
This Office Lease Agreement (the "Lease") is made and entered into as of the
______ day of April, 1998, by and between EOP-PASADENA TOWERS, L.L.C., a
Delaware limited liability company doing business as EOP-PASADENA TOWERS,
LLC, a Delaware limited liability company ("Landlord") and ACACIA RESEARCH
CORPORATION, a California corporation ("Tenant").
I. BASIC LEASE INFORMATION; DEFINITIONS.
A. The following are some of the basic lease information and defined
terms used in this Lease.
1. "Additional Base Rental" shall mean Tenant's Pro Rata Share
of Basic Costs and any other sums (exclusive of Base Rental)
that are required to be paid by Tenant to Landlord
hereunder, which sums are deemed to be additional rent under
this Lease. Additional Base Rental and Base Rental are
sometimes collectively referred to herein as "Rent."
2. "Base Rental" shall mean the sum of Seven Hundred Nineteen
Thousand Two Hundred Sixty-Eight and NO/100 Dollars
($719,268.00), payable by Tenant to Landlord in sixty (60)
monthly installments as follows:
1) Sixty (60) equal installments of Eleven Thousand Nine
Hundred Eighty-Seven and 80/100 Dollars ($11,987.80)
each payable on or before the first day of each month
during the period beginning May 1, 1998, and ending
April 30, 2003, provided that the installment of Base
Rental for the first full calendar month of the Lease
Term shall be payable upon the execution of this Lease
by Tenant.
Notwithstanding anything contained herein to the contrary, as long as
Tenant is not in default (after notice and the expiration of any
applicable cure period under this Lease), Tenant shall be entitled to
an abatement of Base Rental in the amount of Eleven Thousand Nine
Hundred Eighty-Seven and 80/100 Dollars ($11,987.80) per month for one
(1) full calendar month of the Lease Term, beginning with the first
(1st) full calendar month (the "Base Rental Abatement Period"). The
total amount of Base Rental abated during the Base Rental Abatement
Period shall equal Eleven Thousand Nine Hundred Eighty-Seven and
80/100 Dollars ($11,987.80) (the "Abated Base Rental"). In the event
Tenant defaults at any time during the Lease Term, and fails to cure
such default within the applicable grace periods provided in the
Lease, all Abated Base Rental shall immediately become due and
payable. The payment by Tenant of the Abated Base Rental in the event
of a default shall not limit or effect any of Landlord's other rights,
pursuant to this Lease or at law or in equity, provided that the
foregoing shall not entitle Landlord to receive a double recovery of
its costs, expenses or damages in any action against Tenant for a
default under this Lease. During the Base Rental Abatement Period,
only Base Rental shall be abated, and all Additional Base Rental and
other costs and charges specified in this Lease shall remain as due
and payable pursuant to the provisions of this Lease.
3. "Building" shall mean the nine (9) story office tower
commonly described as Tower II, consisting of approximately
208,244 rentable square feet located at 55 South Lake
Avenue, Pasadena, Los Angeles County, State of California,
as outlined on Exhibit A-2 attached hereto and incorporated
herein.
4. The "Commencement Date," "Lease Term" and "Termination Date"
shall have the meanings set forth in subsection I.A.4.b.
below:
1) INTENTIONALLY OMITTED.
1
<PAGE>
2) The "Lease Term" shall mean a period of sixty (60)
months commencing on the later to occur of (1) May 1,
1998, (the "Target Commencement Date"); and (2) the
first (1st) Monday following the date Tenant receives
written notice that all Landlord Work in the Premises
has been substantially completed, as such date is
determined pursuant to Section III.A. hereof (the later
to occur of such dates being defined as the
"Commencement Date"). The "Termination Date" shall,
unless sooner terminated as provided herein, mean the
last day of the Lease Term. Notwithstanding the
foregoing, if the Termination Date, as determined
herein, does not occur on the last day of a calendar
month, Landlord, at its option, may extend the Lease
Term by the number of days necessary to cause the
Termination Date to occur on the last day of the last
calendar month of the Lease Term. Tenant shall pay Base
Rental and Additional Base Rental for such additional
days at the same rate payable for the portion of the
last calendar month immediately preceding such
extension.
Further, Landlord and Tenant acknowledge that the schedule
of Base Rental described in Section I.A.2. above is based on
the assumption that the Lease Term will commence on the
Target Commencement Date. If the Lease Term does not
commence on the Target Commencement Date, the beginning date
set forth in the above schedule with respect to the payment
of any installment(s) of Base Rental shall be appropriately
adjusted on a per diem basis and set forth in the
Commencement Letter to be prepared by Landlord.
5. "Premises" shall mean the area located on the sixth (6th)
floor of the Building, as outlined on Exhibit A attached
hereto and incorporated herein and known as Suite #650.
Landlord and Tenant hereby stipulate and agree that the
"Rentable Area of the Premises" shall mean 5,449 square feet
and the "Rentable Area of the Building" shall mean 208,244
square feet. Notwithstanding the foregoing, unless
specifically provided herein to the contrary, the Premises
shall not include any telephone closets, electrical closets,
janitorial closets, equipment rooms or similar areas on any
full or partial floor that are used by Landlord for the
operation of the Building.
6. "Permitted Use" shall mean general office use, provided
however, no space in the parking structure, nor any ground
floor space in Tower I or Tower II shall be used as or
occupied by a retail bank, savings bank, savings and loan,
thrift bank, credit union or other retail banking business
(collectively, a "Retail Banking Business") or any use or
occupancy which is in competition with a Retail Banking
Business.
7. "Security Deposit" shall mean the sum of Thirteen Thousand
One Hundred Eighty-Six and 58/100 Dollars ($13,186.58).
8. "Tenant's Pro Rata Share" shall mean two and six thousand
one hundred sixty-six ten-thousandths percent (2.6166%),
which is the quotient (expressed as a percentage), derived
by dividing the Rentable Area of the Premises by the
Rentable Area of the Building.
9. "Guarantor(s)" shall mean any party that agrees in writing
to guarantee this Lease.
10. "Notice Addresses" shall mean the following addresses for
Tenant and Landlord, respectively:
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Tenant:
On and after the Commencement Date, notices shall be sent
to Tenant at the Premises.
Prior to the Commencement Date, notices shall be sent to
Tenant at the following address:
Acacia Research Corporation
12 South Raymond Avenue
Pasadena, California 91105
Attention: Paul Ryan
Landlord:
EOP-Pasadena Towers L.L.C., a
Delaware limited liability company
doing business as EOP-Pasadena
Towers, LLC, a Delaware limited
liability company
c/o Equity Office Properties Trust
Office of the Building
Pasadena Towers
800 East Colorado Boulevard
Suite 100
Pasadena, California 91101
Attention: Building Manager
With a copy to:
EOP-Pasadena Towers L.L.C., a
Delaware limited liability company
doing business as EOP-Pasadena
Towers, LLC, a Delaware limited
liability company
c/o Equity Office Properties Trust
Two North Riverside Plaza
Chicago, Illinois 60606
Attention: General Counsel for Property Operations
Payments of Rent only shall be made payable to the order of:
EQUITY OFFICE PROPERTIES
at the following address:
EOP-Pasadena Towers L.L.C., a
Delaware limited liability company
doing business as EOP-Pasadena
Towers, LLC, a Delaware limited
liability company
c/o Equity Office Properties Trust
Office of the Building
Pasadena Towers
800 East Colorado Boulevard
Suite 100
Pasadena, California 91101
Attention: Building Manager
B. The following are additional definitions of some of the defined
terms used in the Lease.
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1. "Base Year" shall mean 1998.
2. "Basic Costs" shall mean all costs and expenses paid or
incurred in connection with operating, maintaining,
repairing, managing and owning the Building and the
Property, as further described in Article IV hereof and
subject to the limitations set forth therein.
3. "Broker" means Cushman & Wakefield of California, Inc. and
Sauve Riegel, Inc.
4. "Building Standard" shall mean the type, grade, brand,
quality and/or quantity of materials Landlord designates
from time to time to be the minimum quality and/or quantity
to be used in the Building.
5. "Business Day(s)" shall mean Mondays through Fridays
exclusive of the normal business holidays ("Holidays") of
New Year's Day, Martin Luther King Day, Presidents' Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day
and Christmas Day. Landlord, from time to time during the
Lease Term, shall have the right to designate additional
Holidays, provided that such additional Holidays are
commonly recognized by other office buildings in the area
where the Building is located.
6. "Common Areas" shall mean those areas provided for the
common use or benefit of all tenants generally and/or the
public, such as corridors, elevator foyers, common mail
rooms, restrooms, vending areas, lobby areas (whether at
ground level or otherwise) and other similar facilities.
7. "Exterior Common Areas" shall mean those areas of the
Project and/or the Property which are not located within the
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, fountains, walkways, escalators, elevators,
stairways, plaza, roads, driveways, sidewalks, and
landscapes.
8. "Landlord Work" shall mean the work, if any, that Landlord
is obligated to perform in the Premises pursuant to the Work
Letter agreement, if any, attached hereto as Exhibit D.
9. "Maximum Rate" shall mean the greatest per annum rate of
interest permitted from time to time under applicable law.
10. "Normal Business Hours" for the Building shall mean 8:00
A.M. to 6:00 P.M. Mondays through Fridays, and 9:00 A.M. to
1:00 P.M. on Saturdays, exclusive of Holidays.
11. "Prime Rate" shall mean the per annum interest rate publicly
announced by The First National Bank of Chicago or any
successor thereof from time to time (whether or not charged
in each instance) as its prime or base rate in Chicago,
Illinois.
12. "Property" shall mean the nine (9) story office tower, the
address of which is 800 East Colorado Boulevard ("Tower I"),
the nine (9) story office tower, the address of which is 55
South Lake Avenue ("Tower II"), the parking structure and
ancillary commercial space, and the parcel(s) of land on
which it is located and, at Landlord's discretion, and all
other improvements owned by Landlord and serving the
Building and the tenants thereof, the parcel(s) of land on
which they are located, and some portions of the Exterior
Common Areas.
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13. "Project" shall mean the nine (9) story office tower, the
address of which is 800 East Colorado Boulevard ("Tower I"),
the nine (9) story office tower, the address of which is 55
South Lake Avenue ("Tower II"), the parking structure and
ancillary commercial space, the Exterior Common Areas, and
the two (2) story office building commonly known as the Home
Savings of America Building. Landlord does not own the Home
Savings of America Building.
II. LEASE GRANT.
Subject to and upon the terms herein set forth, Landlord leases to
Tenant and Tenant leases from Landlord the Premises, together with the right,
in common with others, to use the Common Areas, exterior Common Areas and
parking.
III. ADJUSTMENT OF COMMENCEMENT DATE/POSSESSION.
A. The Lease Term shall not commence until the later to occur of the
Target Commencement Date and the date that Landlord has
substantially completed the Landlord Work; provided, however,
that if Landlord shall be delayed in substantially completing the
Landlord Work as a result of the occurrence of any of the
following (a "Delay"):
1. Tenant's failure to furnish information in accordance with
the Work Letter agreement or to respond to any request by
Landlord for any approval or information within any time
period prescribed, or if no time period is prescribed, then
within two (2) Business Days of a written request; or
2. Tenant's insistence on materials, finishes or installations
that have long lead times after having first been informed
by Landlord that such materials, finishes or installations
will cause a Delay; or
3. Changes in any plans and specifications requested by Tenant;
or
4. The performance or nonperformance by a person or entity
employed by Tenant in the completion of any work in the
Premises (all such work and such persons or entities being
subject to the prior approval of Landlord); or
5. Any request by Tenant that Landlord delay the completion of
any of the Landlord Work; or
6. Any breach or default by Tenant in the performance of
Tenant's obligations under this Lease (after notice and the
expiration of any applicable cure period under this Lease);
or
7. Any delay resulting from Tenant's having taken possession of
the Premises for any reason prior to substantial completion
of the Landlord Work; or
8. Any other delay actually chargeable to Tenant, its agents,
employees or independent contractors;
then, for purposes of determining the Commencement Date, the date of
substantial completion shall be deemed to be the day that said
Landlord Work would have been substantially completed absent any such
Delay(s). Landlord shall use reasonable efforts to notify Tenant of
any circumstances of which Landlord is aware that have caused or may
cause a Delay, so that Tenant may take whatever action is appropriate
to minimize or prevent such Delay. Notwithstanding the foregoing,
Tenant shall only be responsible for Delays to the extent that they
actually prevent Landlord from substantially completing the Landlord
Work by the Target Commencement Date. Accordingly, the number of
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days of Delay shall in no event exceed the actual number of days
between the Target Commencement Date and the date of substantial
completion of Landlord Work. The Landlord Work shall be deemed to
be substantially completed on the date that Landlord's architect
reasonably determines that all Landlord's Work has been performed
(or would have been performed absent any Delays), other than any
details of construction, mechanical adjustment or any other
matter, the noncompletion of which does not materially interfere
with Tenant's use of the Premises. The adjustment of the
Commencement Date and, accordingly, the postponement of Tenant's
obligation to pay Rent shall be Tenant's sole remedy and shall
constitute full settlement of all claims that Tenant might
otherwise have against Landlord by reason of the Premises not
being ready for occupancy by Tenant on the Target Commencement
Date. Promptly after the determination of the Commencement Date,
Landlord and Tenant shall enter into a letter agreement (the
"Commencement Letter") on the form attached hereto as Exhibit C
setting forth the Commencement Date, the Termination Date and any
other dates that are affected by the adjustment of the
Commencement Date. Tenant, within five (5) days after receipt
thereof from Landlord, shall execute the Commencement Letter and
return the same to Landlord. Notwithstandingthe foregoing, if
there have been no Delays and the Commencement Date does not occur
within six (6) months of the projected substantial completion of
Landlord Work (the "Outside Completion Date"), 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) five (5)
Business Days after the Outside Completion Date; and (ii) the
Commencement Date. In such event, this Lease shall be deemed null
and void and of no further force and effect and Landlord shall
promptly refund any Prepaid Rental and Security Deposit previously
advanced by Tenant under this Lease and, so long as Tenant has not
previously defaulted under any of its obligations under the Work
Letter, the parties hereto shall have no further responsibilities
or obligations to each other with respect to this Lease. Landlord
and Tenant acknowledge and agree that: (i) the determination of
the Commencement Date shall take into consideration the affect of
any Delays by Tenant; and (ii) the Outside Completion Date shall
be postponed by the number of days the Commencement Date is
delayed due to events of Force Majeure. Notwithstanding anything
herein to the contrary, if Landlord determines that it will be
unable to cause the Commencement Date to occur by the Outside
Completion Date, Landlord shall have the right to immediately
cease its performance of the Landlord Work and provide Tenant with
written notice (the "Outside Extension Notice") of such inability,
which Outside Extension Notice shall set forth the date on which
Landlord reasonably believes that the Commencement Date will
occur. Upon receipt of the Outside Extension Notice, Tenant shall
have the right to terminate this Lease by providing written notice
of termination to Landlord within five (5) Business Days after the
date of the Outside Extension Notice. In the event that Tenant
does not terminate this Lease within such five (5) Business Day
period, the Outside Completion Date shall automatically be amended
to be the dte set forth in Landlord's Outside Extension Notice.
B. By taking possession of the Premises, Tenant is deemed to have
accepted the Premises and agreed that the Premises is in good
order and satisfactory condition, with no representation or
warranty by Landlord as to the condition of the Premises or the
Building or suitability thereof for Tenant's use. Tenant's
acceptance of the Premises shall be subject to Landlord's
obligation to correct portions of the Landlord Work as set forth
on a construction punch list prepared by Landlord and Tenant in
accordance with the terms hereof. Within fifteen (15) days after
the substantial completion of the Landlord Work, Landlord and
Tenant shall together conduct an inspection of the Premises and
prepare a "punch list" setting forth any portions of the Landlord
Work that are not in conformity with the Landlord Work as
required by the terms of this Lease. Notwithstanding the
foregoing, at the request of Landlord, such construction punch
list shall be mutually prepared by Landlord and Tenant prior to
the date on which Tenant first begins to move its furniture,
equipment or other personal property into the Premises.
Landlord, as part of the Landlord Work, shall use good faith
efforts to correct all such items within a reasonable time
following the completion of the punch list.
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C. [INTENTIONALLY OMITTED]
D. If Tenant takes possession of the Premises prior to the
Commencement Date for the conduct of business in the normal
course, such possession shall be subject to all the terms and
conditions of the Lease and Tenant shall pay Base Rental and
Additional Base Rental to Landlord for each day of occupancy
prior to the Commencement Date. Notwithstanding the foregoing,
Tenant may, so long as Tenant notifies the appropriate Building
personnel, take possession of the Premises on the weekend
(Saturday and Sunday) prior to the Commencement Date for the sole
purpose of installing furniture, equipment or other personal
property of Tenant. Such possession shall be subject to all of
the terms and conditions of the Lease, except that Tenant shall
not be required to pay Base Rental or Additional Base Rental with
respect to the aforesaid weekend during which Tenant performs
such move-in. Tenant shall, however, be liable for the cost of
any services (e.g. electricity, HVAC, freight elevators) that are
provided to Tenant or the Premises during the period of Tenant's
possession prior to the Commencement Date. Nothing herein shall
be construed as granting Tenant the right to take possession of
the Premises prior to the Commencement Date, whether for
construction, fixturing or any other purpose, without the prior
consent of Landlord.
E. Notwithstanding the foregoing, if there have been no Delays and
the Commencement Date does not occur by the date that is nine (9)
months following the completion of the Plans (defined in the Work
Letter) and the procurement of all permits necessary for the
commencement of Landlord's Work (the "Outside Completion Date"),
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) five (5) Business Days after the Outside
Completion Date and (ii) the "Commencement Date". In such event,
this Lease shall be deemed null and void and of no further force
and effect and Landlord shall promptly refund any Prepaid Rental
and Security Deposit previously advanced by Tenant under this
Lease and, so long as Tenant has not previously defaulted under
any of its obligations under the Work Letter, the parties hereto
shall have no further responsibilities or obligations to each
other with respect to this Lease. Landlord and Tenant
acknowledge and agree that (i) the determination of the
Commencement Date shall take into consideration the effect of any
Delays by Tenant; and (ii) the Outside Completion Date shall be
postponed by the number of days the Commencement Date is delayed
due to events of Force Majeure. Notwithstanding anything herein
to the contrary, if Landlord determines that it will be unable to
cause the Commencement Date to occur by the Outside Completion
Date, the Landlord shall have the right to immediately cease its
performance of the Landlord Work and provide Tenant with written
notice (the "Outside Extension Notice") of such inability, which
Outside Extension Notice shall set forth the date on which
Landlord reasonably believes that the Commencement Date will
occur. Upon receipt of the Outside Extension Notice, Tenant
shall have the right to terminate this Lease by providing written
notice of termination to Landlord within five (5) Business Days
after the date of the Outside Extension Notice. In the event
that Tenant does not terinate this Lease within such five (5)
Business Day period, the Outside Completion Date shall
automatically be amended to be the date set forth in Landlord's
Outside Extension Notice.
IV. RENT.
A. During each calendar year, or portion thereof, falling within the
Lease Term, Tenant shall pay to Landlord as Additional Base
Rental hereunder the sum of (1) Tenant's Pro Rata Share of the
amount, if any, by which Taxes (hereinafter defined) for the
applicable calendar year exceed Taxes for the Base Year plus (2)
Tenant's Pro Rata Share of the amount, if any, by which Expenses
(hereinafter defined) for the applicable calendar year exceed
Expenses for the Base Year. For purposes hereof, "Expenses" shall
mean all Basic Costs with the
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exception of Taxes. Tenant's Pro Rata Share of increases in
Taxes and Tenant's Pro Rata Share of increases in Expenses
shall be computed separate and independent of each other
prior to being added together to determine the "Excess." In
the event that Taxes and/or Expenses, as the case may be, in
any calendar year decrease below the amount of Taxes or
Expenses for the Base Year, Tenant's Pro Rata Share of Taxes
and/or Expenses, as the case may be, for such calendar year
shall be deemed to be $0, it being understood that Tenant
shall not be entitled to any credit or offset if Taxes and/or
Expenses decrease below the corresponding amount for the Base
Year. Prior to the Commencement Date and prior to January 1
of each calendar year during the Lease Term, or as soon
thereafter as practical, Landlord shall make a good faith
estimate of the Excess for the applicable calendar year and
Tenant's Pro Rata Share thereof. On or before the first day
of each month during such calendar year, Tenant shall pay to
Landlord, as Additional Base Rental, a monthly installment
equal to one-twelfth of Tenant's Pro Rata Share of Landlord's
estimate of the Excess. Landlord shall have the right from
time to time during any such calendar year to revise the
estimate of Basic Costs and the Excess for such year and
provide Tenant with a revised statement therefor, and
thereafter the amount Tenant shall pay each month shall be
based upon such revised estimate. If Landlord does not
provide Tenant with an estimate of the Basic Costs and the
Excess by January 1 of any calendar year, Tenant shall
continue to pay a monthly installment based on the previous
year's estimate until such time as Landlord provides Tenant
with an estimate of Basic Costs and the Excess for the
current year. Upon receipt of such current year's estimate,
an adjustment shall be made for any month during the current
year with respect to which Tenant paid monthly installments
of Additional Base Rental based on the previous year's
estimate. Tenant shall pay Landlord for any underpayment
within ten (10) days after demand. Any overpayment equal to
or less than one (1) month's installment of Base Rental plus
Additional Base Rental shall, at Landlord's option, be
refunded to Tenant or credited against the installments of
Base Rental and Additional Base Rental due for the month(s)
immediately following the furnishing of such estimate. In
the event of any overpayment in excess of the equivalent of
one (1) month's installment of Base Rental plus Additional
Base Rental, the excess shall, at Tenant's option, be
refunded to Tenant or credited against the installment(s) of
Base Rental and Additional Base Rental due for the months
immediately following the furnishing of such estimate. Any
amounts paid by Tenant based on any estimate shall be subject
to adjustment pursuant to the immediately following paragraph
when actual Basic Costs are determined for such calendar year.
As soon as is practical following the end of each calendar year during
the Lease Term, Landlord shall furnish to Tenant a statement of
Landlord's actual Basic Costs and the actual Excess for the previous
calendar year. Landlord shall use reasonable efforts to furnish the
statement of actual Basic Costs on or before June 1 of the calendar
year immediately following the calendar year to which the statement
applies. If the estimated Excess actually paid by Tenant for the prior
year is in excess of Tenant's actual Pro Rata Share of the Excess for
such prior year, then Landlord shall refund to Tenant any overpayment
in excess of the equivalent of one (1) month's installment of Base
Rental plus Additional Base Rental and apply the one (1) month's
equivalent against Base Rental and Additional Base Rental due or to
become due hereunder (or, at Tenant's option, Landlord shall apply the
entirety of such overpayment against Base Rental and Additional Base
Rental due or to become due hereunder); provided if the Lease Term
expires prior to the determination of such overpayment, Landlord shall
refund such overpayment to Tenant after first deducting the amount of
any Rent due hereunder. Likewise, Tenant shall pay to Landlord, within
ten (10) days after demand, any underpayment with respect to the prior
year, whether or not the Lease has terminated prior to receipt by
Tenant of a statement for such underpayment, it being understood that
this clause shall survive the expiration of the Lease.
B. Basic Costs shall mean the sum of (y) all direct and indirect
costs and expenses paid or incurred in each calendar year in
connection with operating, maintaining, repairing, managing and
owning the Premises, the Building and the Property,
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inclusive of the Building Common Areas, and (z) the Building's
allocable share of direct and indirect costs of operating and
maintaining the Exterior Common Areas of the Project, and all
costs, fees or other amounts payable by Landlord which are the
responsibility of Landlord and other owners of the Project
pursuant to the Declaration of Operating and Reciprocal Easement
Agreement, including, but not limited to, the following:
1. All labor costs for all persons performing services required
or utilized in connection with the operation, repair,
replacement and maintenance of and control of access to the
Building, the Property and the Project, including but not
limited to amounts incurred for wages, salaries and other
compensation for services, payroll, social security,
unemployment and other similar taxes, workers' compensation
insurance, uniforms, training, disability benefits,
pensions, hospitalization, retirement plans, group insurance
or any other similar or like expenses or benefits.
2. All management fees, the cost of equipping and maintaining a
management office at the Property, accounting services,
legal fees not attributable to leasing and collection
activity, and all other administrative costs relating to the
Building, the Property and the Project. If management
services are not provided by a third party, Landlord shall
be entitled to a management fee comparable to that due and
payable to third parties provided Landlord or management
companies owned by, or management divisions of, Landlord
perform actual management services of a comparable nature
and type as normally would be performed by third parties.
3. All rental and/or purchase costs of materials, supplies,
tools and equipment used in the operation, repair,
replacement and maintenance and the control of access to the
Building, the Property and the Project.
4. All amounts charged to Landlord by contractors and/or
suppliers for services, replacement parts, components,
materials, equipment and supplies furnished in connection
with the operation, repair, maintenance, replacement of and
control of access to any part of the Building, the Property,
or the Project generally, including the heating, air
conditioning, ventilating, plumbing, electrical, elevator
and other systems and equipment. At Landlord's option,
major repair items may be amortized over a period of up to
five (5) years. Notwithstanding the foregoing, except to the
extent set forth in Subsection IV.B.11. below, it is hereby
agreed that any costs in connection with replacements that
would properly be considered to be capital improvements
under generally accepted accounting principles shall be
excluded from Basic Costs.
5. All premiums and deductibles paid by Landlord for fire and
extended coverage insurance, earthquake and extended
coverage insurance, liability and extended coverage
insurance, rental loss insurance, elevator insurance, boiler
insurance and other insurance customarily carried from time
to time by landlords of comparable office buildings or
required to be carried by Landlord's Mortgagee.
6. Charges for water, gas, steam and sewer, but excluding those
charges for which Landlord is otherwise reimbursed by
tenants, and charges for Electrical Costs. For purposes
hereof, the term "Electrical Costs" shall mean: (i) all
charges paid by Landlord for electricity supplied to the
Building, Property and Premises, regardless of whether such
charges are characterized as distribution charges,
transmission charges, generation charges, public good
charges, disconnection charges, competitive transaction
charges, stranded cost recoveries or otherwise; (ii) except
to the extent otherwise included in Basic Costs, any costs
incurred in connection with the energy management program
for the Building, Property and Premises, including any costs
incurred for the replacement
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of lights and ballasts and the purchase and installation
of sensors and other energy saving equipment amortized
over a reasonably estimated payback period; and (iii) if
and to the extent permitted by law, a reasonable fee for
the services provided by Landlord in connection with the
selection of utility companies and the negotiation and
administration of contracts for the generation of
electricity. Notwithstanding the foregoing, Electrical
Costs shall be adjusted as follows: (a) any amounts
received by Landlord as reimbursement for above standard
electrical consumption shall be deducted from Electrical
Costs, (b) the cost of electricity incurred in providing
overtime HVAC to specific tenants shall be deducted from
Electrical Costs, it being agreed that the electrical
component of overtime HVAC costs shall be calculated as
a reasonable percentage of the total HVAC costs charged
to such tenants, and (c) if Tenant is billed directly
for the cost of electricity to the Premises as a
separate charge in addition to Base Rental and Basic
Costs, the cost of electricity to individual tenant
spaces in the Building shall be deducted from Electrical
Costs and the electricity component of Tenant's Basic
Costs shall not be subject to gross-up provisions (if
any) stated elsewhere in this Lease.
7. "Taxes," which for purposes hereof, shall mean: (a) all real
estate taxes and assessments on the Property, the Building
or the Premises, and taxes and assessments levied in
substitution or supplementation in whole or in part of such
taxes, (b) all personal property taxes for the Building's
personal property, including license expenses, (c) all taxes
imposed on services of Landlord's agents and employees, (d)
all other taxes, fees or assessments now or hereafter levied
by any governmental authority on the Project, the Property,
the Building or its contents or on the operation and use
thereof (except as they relate to specific tenants), and (e)
all costs and fees incurred in connection with seeking
reductions in or refunds in Taxes including, without
limitation, any costs incurred by Landlord to challenge the
tax valuation of the Building, the Property, or the Project,
but excluding income taxes. For the purpose of determining
real estate taxes and assessments for any given calendar
year, the amount to be included in Taxes for such year shall
be as follows: (1) with respect to any special assessment
that is payable in installments, Taxes for such year shall
include the amount of the installment (and any interest) due
and payable during such year in the greatest number of
installments available for such special assessment; and (2)
with respect to all other real estate taxes, Taxes for such
year shall, at Landlord's election, include either the
amount accrued, assessed or otherwise imposed for such year
or the amount due and payable for such year, provided that
Landlord's election shall be applied consistently throughout
the Lease Term. If a reduction in Taxes is obtained for any
year of the Lease Term during which Tenant paid its Pro Rata
Share of Basic Costs, then Basic Costs for such year will be
retroactively adjusted and Landlord shall provide Tenant
with a credit, if any, based on such adjustment. Likewise,
if a reduction is subsequently obtained for Taxes for the
Base Year (if Tenant's Pro Rata Share is based upon
increases in Basic Costs over a Base Year), Basic Costs for
the Base Year shall be restated and the Excess for all
subsequent years recomputed. Tenant shall pay to Landlord
Tenant's Pro Rata Share of any such increase in the Excess
within thirty (30) days after Tenant's receipt of a
statement therefor from Landlord.
8. All landscape expenses of the Property and/or the Project,
if any.
9. Cost of all maintenance service agreements, including those
for equipment, alarm service, window cleaning, drapery or
venetian blind cleaning, janitorial services, pest control,
uniform supply, plant maintenance and landscaping.
10. Cost of all other repairs, replacements and general
maintenance of the Project, the Property and the Building
neither specified above nor directly billed to tenants.
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11. The amortized cost of capital improvements made to the
Project, the Building or the Property which are: (a)
primarily for the purpose of reducing operating expense
costs or otherwise improving the operating efficiency of the
Project, the Property or the Building; or (b) required to
comply with any newly enacted laws, rules or regulations of
any governmental authority or any changes in the existing
laws, rules or regulations of any governmental authority or
a requirement of Landlord's insurance carrier. The cost of
such capital improvements shall be amortized over a period
of five (5) years and shall, at Landlord's option, include
interest at a rate that is reasonably equivalent to the
interest rate that Landlord would be required to pay to
finance the cost of the capital improvement in question as
of the date such capital improvement is performed, provided
if the payback period for any capital improvement is less
than five (5) years, Landlord may amortize the cost of such
capital improvement over the payback period. Notwithstanding
the foregoing, Basic Costs shall not include the cost of any
capital improvements that are required to correct work that,
when initially performed by Landlord, was performed in
violation of the then existing laws, rules or regulations
governing the performance of such work.
12. Any other expense or charge of any nature whatsoever which,
in accordance with general industry practice with respect to
the operation of a first-class office building, would be
construed as an operating expense.
Basic Costs shall not include the cost of capital improvements
(except as set forth above and as distinguished from replacement
parts or components purchased and installed in the ordinary
course), depreciation, interest (except as provided above with
respect to the amortization of capital improvements), lease
commissions, and principal payments on mortgage and other
non-operating debts of Landlord. Basic Costs shall also exclude:
1) Repairs or other work occasioned by: (i) fire,
windstorm, or other casualty of the type which Landlord
has insured (to the extent that Landlord has received
insurance proceeds and provided that the amount of any
deductible paid by Landlord shall be included in Basic
Costs); or (ii) the exercise of the right of eminent
domain (to the extent that such repairs or other work
are covered by the proceeds of the award, if any,
received by Landlord);
2) Leasing commissions, brochures, marketing supplies,
attorney's fees, costs, and disbursements and other
expenses incurred in connection with negotiation of
leases with prospective tenants;
3) Rental concessions granted to specific tenants and
expenses incurred in renovating or otherwise improving
or decorating, painting, or redecorating space for
specific tenants, other than ordinary repairs and
maintenance provided or available to tenants in
general;
4) Landlord's costs of electricity and other services sold
or provided to tenants in the Building and for which
Landlord is entitled to be reimbursed by such tenants
as a separate additional charge or rental over and
above the base rental or additional base rental payable
under the lease with such tenant;
5) Overhead and profit increment paid to subsidiaries or
other affiliates of Landlord for services on or to the
Property, Building and/or Premises to the extent only
that the costs of such services exceed the competitive
cost for such services rendered by persons or entities
of similar skill, competence and experience.
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6) The cost of services that are not available to Tenant
under this Lease or for which Tenant reimburses
Landlord as a separate charge (other than through Basic
Costs);
7) Advertising and promotional expenditures;
8) Costs incurred in connection with the sale, financing,
refinancing, mortgaging or sale of the Building or
Property, including brokerage commissions, attorneys'
and accountants' fees, closing costs, title insurance
premiums, transfer taxes and interest charges;
9) Costs, fines, interest, penalties, legal fees or costs
of litigation incurred due to the late payments of
taxes, utility bills and other costs incurred by
Landlord's failure to make such payments when due
unless such failure is due to Landlord's good faith and
reasonable efforts in contesting the amount of such
payments;
10) Costs incurred by Landlord for trustee's fees,
partnership organizational expenses and accounting fees
to the extent relating to Landlord's general corporate
overhead and general administrative expenses;
11) Any penalties or liquidated damages that Landlord pays
to Tenant under this Lease or to any other tenants in
the Building under their respective leases;
12) Attorney's fees, costs and disbursements and other
expenses incurred in connection with negotiations or
disputes with tenants or other occupants of the
Building or with prospective tenants (other than
attorney's fees, costs and disbursements and other
expenses incurred by Landlord in seeking to enforce
Building rules and regulations).
If the Building is not at least ninety-five percent (95%) occupied
during any calendar year of the Lease Term or if Landlord is not
supplying services to at least ninety-five percent (95%) of the
total Rentable Area of the Building at any time during any
calendar year of the Lease Term, actual Basic Costs for purposes
hereof shall, at Landlord's option, be determined as if the
Building had been ninety-five percent (95%) occupied and Landlord
had been supplying services to ninety-five percent (95%) of the
Rentable Area of the Building during such year. If Tenant pays for
its Pro Rata Share of Basic Costs based on increases over a "Base
Year" and Basic Costs for any calendar year during the Lease Term
are determined as provided in the foregoing sentence, Basic Costs
for such Base Year shall also be determined as if the Building had
been ninety-five percent (95%) occupied and Landlord had been
supplying services to ninety-five percent (95%) of the Rentable
Area of the Building. Any necessary extrapolation of Basic Costs
under this Article shall be performed by adjusting the cost of
those components of Basic Costs that are impacted by changes in
the occupancy of the Building (including, at Landlord's option,
Taxes) to the cost that would have been incurred if the Building
had been ninety-five percent (95%) occupied and Landlord had been
supplying services to ninety-five percent (95%) of the Rentable
Area of the Building. In addition, if Tenant's Pro Rata Share of
Basic Costs is determined based upon increases over a Base Year
and Basic Costs for the Base Year include exit and disconnection
fees, stranded cost charges and/or competitive transaction
charges, such fees and charges may, at Landlord's option, be
imputed as a Basic Cost for subsequent years in which such fees
and charges are not incurred. In no event, however, shall the
amount of such imputed fees and charges exceed the actual amount
of exit and disconnection fees, stranded cost charges and/or
competitive transaction charges that were actually included in
Basic Costs for the Base Year.
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C. If Basic Costs for any calendar year increase by more than five
percent (5%) over Basic Costs for the immediately preceding
calendar year, Tenant, within one hundred twenty (120) days after
receiving Landlord's statement of actual Basic Costs for a
particular calendar year, shall have the right to provide
Landlord with written notice (the "Review Notice") of its intent
to review Landlord's books and records relating to the Basic
Costs for such calendar year. Within a reasonable time after
receipt of a timely Review Notice, Landlord shall make such books
and records available to Tenant or Tenant's agent for its review
at either Landlord's home office or at the office of the
Building, provided that if Tenant retains an agent to review
Landlord's books and records for any calendar year, such agent
must be a CPA firm licensed to do business in the state in which
the Building is located. Tenant shall be solely responsible for
any and all costs, expenses and fees incurred by Tenant or
Tenant's agent in connection with such review. If Tenant elects
to review Landlord's books and records, within sixty (60) days
after such books and records are made available to Tenant, Tenant
shall have the right to give Landlord written notice stating in
reasonable detail any objection to Landlord's statement of actual
Basic Costs for such calendar year. If Tenant fails to give
Landlord written notice of objection within such sixty (60) day
period or fails to provide Landlord with a Review Notice within
the one hundred twenty (120) day period provided above, Tenant
shall be deemed to have approved Landlord's statement of Basic
Costs in all respects and shall thereafter be barred from raising
any claims with respect thereto. Upon Landlord's receipt of a
timely objection notice from Tenant, Landlord and Tenant shall
work together in good faith to resolve the discrepancy between
Landlord's statement and Tenant's review. If Landlord and Tenant
determine that Basic Costs for the calendar year in question are
less than reported, Landlord shal provide Tenant with a credit
against future Additional Base Rental in the amount of any
overpayment by Tenant. In addition, if Landlord and Tenant
determine that Basic Costs for the Building were less than stated
by more than five percent (5%), Landlord, within thirty (30) days
after its receipt of paid invoices therefor from Tenant, shall
reimburse Tenant for any reasonable amounts paid by Tenant to
third parties in connection with such review by Tenant. Likewise,
if Landlord and Tenant determine that Basic Costs for the
calendar year in question are greater than reported, Tenant shall
forthwith pay to Landlord the amount of underpayment by Tenant.
Any information obtained by Tenant pursuant to the provisions of
this Section shall be treated as confidential. Notwithstanding
anything herein to the contrary, Tenant shall not be permitted to
examine Landlord's books and records or to dispute any statement
of Basic Costs unless Tenant has paid to Landlord the amount due
as shown on Landlord's statement of actual Basic Costs, said
payment being a condition precedent to Tenant's right to examine
Landlord's books and records; provided, however, that such
payment may be deemed to be a "payment under protest."
D. Tenant covenants and agrees to pay to Landlord during the Lease
Term, without any setoff or deduction whatsoever, the full amount
of all Base Rental and Additional Base Rental due hereunder. In
addition, Tenant shall pay and be liable for, as additional rent,
all rental, sales and use taxes or other similar taxes, if any,
levied or imposed by any city, state, county or other
governmental body having authority, such payments to be in
addition to all other payments required to be paid to Landlord by
Tenant under the terms and conditions of this Lease. Any such
payments shall be paid concurrently with the payments of the Rent
on which the tax is based. The Base Rental, Tenant's Pro Rata
Share of Basic Costs and any recurring monthly charges due
hereunder shall be due and payable in advance on the first day of
each calendar month during the Lease Term without demand,
provided that the installment of Base Rental for the first full
calendar month of the Lease Term shall be payable upon the
execution of this Lease by Tenant. All other items of Rent shall
be due and payable by Tenant on or before ten (10) days after
billing by Landlord. If the Lease Term commences on a day other
than the first day of a calendar month or terminates on a day
other than the last day of a calendar month, then the monthly
Base Rental and Tenant's Pro Rata Share of Basic Costs for such
month shall be
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prorated for the number of days in such month
occurring within the Lease Term based on a fraction, the
numerator of which is the number of days of the Lease Term that
fell within such calendar month and the denominator of which is
thirty (30). All such payments shall be by a good and sufficient
check. No payment by Tenant or receipt or acceptance by Landlord
of a lesser amount than the correct amount of Rent due under this
Lease shall be deemed to be other than a payment on account of
the earliest Rent due hereunder, nor shall any endorsement or
statement on any check or any letter accompanying any check or
payment be deemed an accord and satisfacion, and Landlord may
accept such check or payment without prejudice to Landlord's
right to recover the balance or pursue any other available
remedy. The acceptance by Landlord of any Rent on a date after
the due date of such payment shall not be construed to be a
waiver of Landlord's right to declare a default for any other
late payment. Tenant's covenant to pay Rent shall be independent
of every other covenant set forth in this Lease.
E. All Rent not paid within three (3) days after when due and
payable shall bear interest from the date due until paid at the
lesser of: (1) eighteen percent (18%) per annum; or (2) the
Maximum Rate. In addition, if Tenant fails to pay any installment
of Rent when due and payable hereunder more than two (2) times in
any twelve (12) month period during the Lease Term, a service fee
equal to five percent (5%) of such unpaid amount will be due and
payable immediately by Tenant to Landlord.
F. In lieu of requiring Tenant to pay Rent by good and sufficient
check in the manner described in Section IV.D. above, Landlord
shall have the right to require Tenant to pay Rent by means of an
automated debit system (the "Automatic Debit System") whereby any
or all payments of Rent shall be debited from Tenant's account in
a bank or financial institution designated by Tenant and credited
to Landlord's account in a bank or financial institution
designated by Landlord. In the event Landlord elects to have
Tenant pay all or any portion of Rent by means of the Automatic
Debit System, Tenant, within thirty (30) days after written
request by Landlord, shall execute and deliver to Landlord any
authorizations, certificates or other documentation as may be
required to establish and give effect to the Automatic Debit
System. If Landlord elects to have less than all items of Rent
paid by the Automatic Debit System, Landlord shall advise Tenant
in writing as to those items of Rent that will be paid by the
Automatic Debit System (e.g. Base Rental only or Base Rental and
Tenant's Pro Rata Share of Basic Costs only). Either party shall
have the right to change its bank or financial institution from
time to time, provided that Tenant, no less than thirty (30) days
prior to the effective date of any such change, shall provide
Landlord with written notice of such change and any and all
authorizations, certificates or other documentation as may be
required to establish and give effect to the Automatic Debit
System at Tenant's new bank or financial institution. Tenant
shall promptly pay all service fees and other charges imposed
upon Landlord or Tenant in connection with the Automatic Debit
System, including, without limitation, any charges resulting from
insufficient funds in Tenant's bank account. In the event that
any Rent is not paid on time as a result of insufficient funds in
Tenant's account, Tenant shall be liable for any interest and/or
service fee in accordance with Section IV.E. above. Tenant
shall remain liable to Lndlord for all payments of Rent due
hereunder regardless of whether Tenant's account is incorrectly
debited in any given month, it being agreed that a debit of less
than the full amount of Rent due shall not be construed as a
waiver by Landlord of its right to receive any unpaid balance of
Rent. Notwithstanding the foregoing, Landlord shall not be
entitled to require Tenant to pay Rent through the Automatic
Debit System unless Tenant, on more than two (2) occasions during
the Lease Term, has failed to pay any installment of Rent on or
before the date required herein.
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V. USE.
The Premises shall be used for the Permitted Use and for no other
purpose. Tenant agrees not to use or permit the use of the Premises for any
purpose which is illegal, dangerous to life, limb or property or which, in
Landlord's reasonable opinion, creates a nuisance or which would increase the
cost of insurance coverage with respect to the Building. Tenant shall conduct
its business and control its agents, servants, contractors, employees,
customers, licensees, and invitees in such a manner as not to interfere with,
annoy or disturb other tenants, or in any way interfere with Landlord in the
management and operation of the Building. Tenant will maintain the Premises
in a clean and healthful condition, and comply with all laws, ordinances,
orders, rules and regulations of any governmental entity with reference to
the operation of Tenant's business and to the use, condition, configuration
or occupancy of the Premises, including without limitation, the Americans
with Disabilities Act (collectively referred to as "Laws"). Tenant, within
ten (10) days after receipt thereof, shall provide Landlord with copies of
any notices it receives with respect to a violation or alleged violation of
any Laws. Tenant will comply with the rules and regulations of the Building
attached hereto as Exhibit B and such other rules and regulations adopted and
altered by Landlord from time to time and will cause all of its agents,
servants, contractors, employees, customers, licensees and invitees to do so.
All changes to such rules and regulations will be reasonable and shall be
sent by Landlord to Tenant in writing.
VI. SECURITY DEPOSIT.
The Security Deposit shall be delivered to Landlord upon the
execution of this Lease by Tenant and shall be held by Landlord without
liability for interest (except as required by law) and as security for the
performance of Tenant's obligations under this Lease. The Security Deposit
shall not be considered an advance payment of Rent or a measure of Tenant's
liability for damages. Landlord may, from time to time, without prejudice to
any other remedy, use all or a portion of the Security Deposit to make good
any arrearage of Rent, to repair damages to the Premises, to clean the
Premises upon termination of this Lease or otherwise to satisfy any other
covenant or obligation of Tenant hereunder. Following any such application of
the Security Deposit, Tenant shall pay to Landlord on demand the amount so
applied in order to restore the Security Deposit to its original amount. If
Tenant is not in default at the termination of this Lease, after Tenant
surrenders the Premises to Landlord in accordance with this Lease and all
amounts due Landlord from Tenant are finally determined and paid by Tenant or
through application of the Security Deposit, the balance of the Security
Deposit remaining after any such application shall be returned to Tenant. If
Landlord transfers its interest in the Premises during the Lease Term,
Landlord may assign the Security Deposit to the transferee and thereafter
shall have no further liability for the return of such Security Deposit.
Tenant agrees to look solely to such transferee or assignee for the return of
the Security Deposit. Landlord and its successors and assigns shall not be
bound by any actual or attempted assignment or encumbrance of the Security
Deposit by Tenant, provided, however, if Tenant's interest in this Lease has
been assigned, Landlord shall, provided that Landlord has been furnished with
a fully executed copy of the agreement assigning such Security Deposit,
return the Security Deposit to such assignee in accordance with the terms and
conditions hereof. If Landlord return the Security Deposit to Tenant's
assignee as aforesaid, Landlord will have no further obligation to any party
with respect thereto. Landlord shall not be required to keep the Security
Deposit separate from its other accounts.
VII. SERVICES TO BE FURNISHED BY LANDLORD.
A. Landlord, as part of Basic Costs (except as otherwise provided),
agrees to furnish Tenant the following services:
1. Water for use in the lavatories on the floor(s) on which the
Premises is located. If Tenant desires water in the Premises
for any approved reason, including a private lavatory or
kitchen, cold water shall be supplied, at Tenant's sole cost
and expense, from the Building water main through a line and
fixtures installed at Tenant's sole cost and expense with
the prior reasonable consent of Landlord. If Tenant desires
hot water in the
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Premises, Tenant, at its sole cost and expense and subject
to the prior reasonable consent of Landlord, may install a
hot water heater in the Premises. Tenant shall be solely
responsible for maintenance and repair of any such hot water
heater.
2. Central heat and air conditioning in season during Normal
Business Hours, at such temperatures and in such amounts as
are considered by Landlord, in its reasonable judgment, to
be standard for buildings of similar class, size, age and
location, or as required by governmental authority. In the
event that Tenant requires central heat, ventilation or air
conditioning at hours other than Normal Business Hours, such
central heat, ventilation or air conditioning may be
provided by telephonic activation of the Building's HVAC
system and/or shall be furnished upon the written request of
Tenant delivered to Landlord at the office of the Building
prior to 3:00 P.M. at least one Business Day in advance of
the date for which such usage is requested. Tenant shall pay
Landlord, as Additional Base Rental, the entire cost of
additional service as such costs are determined by Landlord
from time to time (as of the date of this Lease, Landlord's
cost for such service is $60.00 per hour (or fractional
hour), which charge may be subject to change from time to
time to reflect changes in Landlord's direct or indirect
costs of providing such service).
3. Maintenance and repair of all Common Areas in the manner and
to the extent reasonably deemed by Landlord to be standard
for buildings of similar class, size, age and location.
4. Janitor service on Business Days in accordance with the
cleaning specifications attached hereto as Exhibit G, or
such other reasonably comparable specifications designated,
from time to time, by Landlord; provided, however, if
Tenant's use, floor covering or other improvements require
special services, Tenant shall pay the additional cost
reasonably attributable thereto as Additional Base Rental.
5. Passenger elevator service in common with other tenants of
the Building.
6. Electricity to the Premises for general office use, in
accordance with and subject to the terms and conditions set
forth in Article XI of this Lease.
7. The failure by Landlord to any extent to furnish, or the
interruption or termination of, any services in whole or in
part, resulting from adherence to laws, regulations and
administrative orders, wear, use, repairs, improvements,
alterations or any causes beyond the reasonable control of
Landlord shall not render Landlord liable in any respect nor
be construed as a constructive eviction of Tenant, nor give
rise to an abatement of Rent, nor relieve Tenant from the
obligation to fulfill any covenant or agreement hereof.
Should any of the equipment or machinery used in the
provision of such services for any cause cease to function
properly, Landlord shall use reasonable diligence to repair
such equipment or machinery.
B. Tenant expressly acknowledges that if Landlord, from time to
time, elects to provide security services, Landlord shall not be
deemed to have warranted the efficiency of any security
personnel, service, procedures or equipment and Landlord shall
not be liable in any manner for the failure of any such security
personnel, services, procedures or equipment to prevent or
control, or apprehend anyone suspected of personal injury,
property damage or any criminal conduct in, on or around the
Property.
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VIII. LEASEHOLD IMPROVEMENTS.
Any trade fixtures, unattached and movable equipment or furniture,
or other personalty brought into the Premises by Tenant ("Tenant's Property")
shall be owned and insured by Tenant. Tenant shall remove all such Tenant's
Property from the Premises in accordance with the terms of Article XXXV
hereof. Any and all alterations, additions and improvements to the Premises,
including any built-in furniture (collectively, "Leasehold Improvements")
shall be owned and insured by Landlord and shall remain upon the Premises,
all without compensation, allowance or credit to Tenant. Landlord may,
nonetheless, at any time prior to, or within six (6) months after, the
expiration or earlier termination of this Lease or Tenant's right to
possession, require Tenant to remove any Leasehold Improvements performed by
or for the benefit of Tenant and all electronic, phone and data cabling as
are designated by Landlord (the "Required Removables") at Tenant's sole cost.
In the event that Landlord so elects, Tenant shall remove such Required
Removables within ten (10) days after written notice from Landlord, provided
that in no event shall Tenant be required to remove such Required Removables
prior to the expiration or earlier termination of this Lease or Tenant's
right to possession. In addition to Tenant's obligation to remove the
Required Removables, Tenant shall repair any damage caused by such removal
and perform such other work as is reasonably necessary to restore the
Premises to a "move in" condition, ordinary wear, tear and casualty excepted.
If Tenant fails to remove any specified Required Removables or to perform any
required repairs and restoration within the time period specified above,
Landlord, at Tenant's sole cost and expense, may remove, store, sell and/or
dispose of the Required Removables and perform such required repairs and
restoration work. Tenant, within five (5) days after demand from Landlord,
shall reimburse Landlord for any and all reasonable costs incurred by
Landlord in connection with the Required Removables. Notwithstanding the
foregoing, Tenant may request in writing at the time it submits its plans and
specifications for an alteration, addition or improvement, that Landlord
advise Tenant whether Landlord will require Tenant to remove, at the
termination of this Lease or Tenant's right to possession hereunder, such
alteration, addition or improvement, or any particular portion thereof
andLandlord shall advise Tenant within twenty (20) days after receipt of
Tenant's request as to whether Landlord will require removal; provided,
however, Landlord shall have the right to require Tenant to remove any vault,
stairway, raised floor or structural alterations installed in the Premises,
regardless of whether Landlord timely notified Tenant that it would require
such removal.
IX. GRAPHICS.
Landlord shall provide and install, at Tenant's cost, any suite
numbers and Tenant identification on the exterior of the Premises using the
standard graphics for the Building. Tenant shall not be permitted to install
any signs or other identification without Landlord's prior written consent.
Landlord shall not permit signage identifying any Retail Banking Business or
competitor of a Retail Banking Business to be located above the ground floor
level of the improvements on or about, or visible from, the exterior of the
Building, the Property or the Project.
X. REPAIRS AND ALTERATIONS.
A. Except to the extent such obligations are imposed upon Landlord
hereunder, Tenant, at its sole cost and expense, shall perform
all maintenance and repairs to the Premises as are necessary to
keep the same in good condition and repair throughout the entire
Lease Term, reasonable wear and tear excepted. Tenant's repair
and maintenance obligations with respect to the Premises shall
include, without limitation, any necessary repairs with respect
to: (1) any carpet or other floor covering, (2) any interior
partitions, (3) any doors, (4) the interior side of any demising
walls, (5) any telephone and computer cabling that serves
Tenant's equipment exclusively, (6) any supplemental air
conditioning units, private showers and kitchens, including any
plumbing in connection therewith, and similar facilities serving
Tenant exclusively, and (7) any alterations, additions or
improvements performed by contractors retained by Tenant. All
such work shall be performed in accordance with Section X.B.
below and the rules, policies and procedures reasonably enacted
by Landlord from time to time for the performance of work in the
Building. If Tenant fails to make any necessary
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repairs to the Premises within ten (10) days after notice
from Landlord (provided that no prior notice shall be
required in the event of an emergency), Landlord may, at its
option, make such repairs, and Tenant shall pay the cost
thereof to the Landlord on demand as Additional Base Rental,
together with an administrative charge in an amount equal to
ten percent (10%) of the cost of such repairs. Landlord
shall, at its expense (except as included in Basic Costs),
keep and maintain in good repair and working order and make
all repairs to and perform necessary maintenance upon: (a)
all structural elements of the Building; and (b) all
mechanical, electrical and plumbing systems that serve the
Building in general; and (c) the Building facilities common
to all tenants including, but not limited to, the ceilings,
walls and floors in the Common Areas.
B. Tenant shall not make or allow to be made any alterations,
additions or improvements to the Premises without first obtaining
the written consent of Landlord in each such instance.
Notwithstanding the foregoing, Landlord's consent shall not be
required for any alteration, addition or improvement that
satisfies all of the following criteria: 1) costs less than Ten
Thousand and No/100 Dollars ($10,000.00); 2) is of a cosmetic
nature such as painting, wallpapering, hanging pictures and
installing carpeting; 3) is not visible from the exterior of the
Premises or Building; and 4) will not affect the systems or
structure of the Building and does not require work to be
performed inside the walls or above the ceiling of the Premises;
provided that even if consent is not required, Tenant shall still
comply with all the other provisions of this Section X.B. Prior
to commencing any such work and as a condition to obtaining
Landlord's consent, Tenant must furnish Landlord with plans and
specifications reasonably acceptable to Landlord; names and
addresses of contractors reasonably acceptable to Landlord;
copies of contracts; necessary permits and approvals; evidence of
contractor's and subcontractor's insurance in accordance with
Article XVI Section B. hereof; and payment bond or other
security, all in form and amount satisfactory to Landlord. All
such improvements, alterations or additions shall be constructed
in a good and workmanlike manner using Building Standard
materials or other new materials of equal or greater quality.
Landlord, to the extent reasonably necessary to avoid any
disruption to the tenants and occupants of the Building, shall
have the right to designate the time when any such alterations,
additions and improvements may be performed and to otherwise
designate reasonable rules, regulations and procedures for the
performance of work in the Building. Upon completion, Tenant
shall furnish "as-built" plans, contractor's affidavits and
partial, or full and final waivers of lien, as applicable, in
recordable form, and receipted bills covering all labor and
materials. All improvements, alterations and additions shall
comply with all insurance requirements, codes, ordinances, laws
and regulations, including without limitation, the Americans with
Disabilities Act. Tenant shall reimburse Landlord upon demand as
Additional Base Rental for all sums, if any, expended by Landlord
for third party examination of the architectural, mechanical,
electric and plumbing plans for any alterations, additions or
improvements. In addition, if Landlord so requests, Landlord
shall be entitled to oversee the construction of any alterations,
additions or improvements that may affect the structure of the
Building or any of the mechanical, electrical, plumbing or life
safety systems of the Building. In the event Landlord elects to
oversee such work, Landlord shall be entitled to receive a fee
for such oversight in an amount equal to ten percent (10%) of the
cost of such alterations, additions or improvements. Landlord's
approval of Tenant's plans and specifications for any work
performed for or on behalf of Tenant shall not be deemed to be a
representation by Landlord that such plans and specifications
comply with applicable insurance requirements, building codes,
ordinances, laws or regulations or that the alterations,
additions and improvements constructed in accordance with such
plans and specifications will be adequate for Tenant's use.
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XI. USE OF ELECTRICAL SERVICES BY TENANT.
A. All electricity used by Tenant in the Premises shall be paid for
by Tenant through inclusion in Basic Costs (except as provided in
Section XI.B. below with respect to excess usage). It is
understood that electrical service to the Premises may be
furnished by one or more companies providing electrical
generation, transmission and/or distribution services and that
the cost of electricity may be billed as a single charge or
divided into and billed in a variety of categories such as
distribution charges, transmission charges, generation charges,
public good charges or other similar categories. Landlord shall
have the exclusive right to select the company(ies) providing
electrical service to the Building, Premises and Property, to
aggregate the electrical service for the Building, Premises and
Property with other buildings, to purchase electricity for the
Building, Premises and Property through a broker and/or buyers
group and to change the providers and/or manner of purchasing
electricity from time to time. Landlord shall be entitled to
receive a reasonable fee (if permitted by law) for the services
provided by Landlord in connection with the selection of utility
companies and the negotiation and administration of contracts for
the generation of electricity. In addition, if Landlord bills
Tenant directly for the cost of electricity as Additional Base
Rental, the cost of electricity may include (if permitted by law)
an administrative fee to reimburse Landlord for the cost of
reading meters, preparing invoices and related costs.
B. Tenant's use of electrical service in the Premises shall not
exceed, either in voltage, rated capacity, use beyond Normal
Business Hours or overall load, that which Landlord deems to be
standard for the Building. In the event Tenant shall consume (or
request that it be allowed to consume) electrical service in
excess of that deemed by Landlord to be standard for the
Building, Landlord may refuse to consent to such excess usage or
may condition its consent to such excess usage upon such
conditions as Landlord reasonably elects (including the
installation of utility service upgrades, submeters, air handlers
or cooling units), and all such additional usage (to the extent
permitted by law), installation and maintenance thereof shall be
paid for by Tenant as Additional Base Rental. Use of electricity
after Normal Business Hours is charged to Tenant, as of the date
of this Lease, at $10.00 per hour (or fractional hour) of use;
such charge is subject to change from time to time to reflect
changes in Landlord's direct or indirect costs of providing such
service. Landlord, at any time during the Lease Term, shall have
the right to separately meter electrical usage for the Premises
or to measure electrical usage by survey or any other method that
Landlord, in its reasonable judgment, deems to be appropriate.
C. Notwithstanding Section A. above to the contrary, if Landlord
permits Tenant to purchase electrical power for the Premises from
a provider other than Landlord's designated company(ies), such
provider shall be considered to be a contractor of Tenant and
Tenant shall indemnify and hold Landlord harmless from such
provider's acts and omissions while in, or in connection with
their services to, the Building or Premises in accordance with
the terms and conditions of Article XV. In addition, at the
request of Landlord, Tenant shall allow Landlord to purchase
electricity from Tenant's provider at Tenant's rate or at such
lower rate as can be negotiated by the aggregation of Landlord's
and Tenant's requirements for electricity power.
XII. ENTRY BY LANDLORD.
Landlord and its agents or representatives shall have the right to
enter the Premises to inspect the same, or to show the Premises to
prospective purchasers, mortgagees, tenants (during the last twelve months of
the Lease Term or earlier in connection with a potential relocation) or
insurers, or to clean or make repairs, alterations or additions thereto,
including any work that Landlord deems necessary for the safety, protection
or preservation of the Building or any occupants thereof, or to facilitate
repairs, alterations or additions to the Building or any other tenants'
premises. Except for any entry by Landlord in an emergency situation or to
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provide normal cleaning and janitorial service, Landlord shall provide Tenant
with reasonable prior notice of any entry into the Premises, which notice may
be given verbally. If reasonably necessary for the protection and safety of
Tenant and its employees, Landlord shall have the right to temporarily close
the Premises to perform repairs, alterations or additions in the Premises,
provided that Landlord shall use reasonable efforts to perform all such work
on weekends and after Normal Business Hours. Entry by Landlord hereunder
shall not constitute a constructive eviction or entitle Tenant to any
abatement or reduction of Rent by reason thereof. Notwithstanding the
foregoing, except in emergency situations as determined by Landlord, Landlord
shall exercise reasonable efforts: (1) not to unreasonably interfere with the
conduct of the business of Tenant on the Premises; and (2) if entry during
Normal Business Hours would unreasonably interfere with Tenant's business, to
affect such entry during hours other than Normal Business Hours. Landlord,
however, shall not be required to perform such entry after Normal Business
Hours if Landlord's entry is necessitated by the acts or omissions of Tenant
or the performance of Landlord's obligations hereunder and, by performing
work during non-business hours, Landlord would be required to have building
personnel remain in the Building after normal working hours or to pay its
contractors overtime.
XIII. ASSIGNMENT AND SUBLETTING.
A. Tenant shall not assign, sublease, transfer or encumber this
Lease or any interest therein or grant any license, concession or
other right of occupancy of the Premises or any portion thereof
or otherwise permit the use of the Premises or any portion
thereof by any party other than Tenant (any of which events is
hereinafter called a "Transfer") without the prior written
consent of Landlord, which consent shall not be unreasonably
withheld with respect to any proposed assignment or subletting.
Landlord's consent shall not be considered unreasonably withheld
if: (1) the proposed transferee's financial responsibility does
not meet the same criteria Landlord uses to select Building
tenants; (2) the proposed transferee's business is not suitable
for the Building considering the business of the other tenants
and the Building's prestige or would result in a violation of an
exclusive right granted to another tenant in the Building; (3)
the proposed use is different than the Permitted Use; (4) the
proposed transferee is a government agency or occupant of the
Building or Property; (5) Tenant is in default (after notice and
the expiration of any applicable cure period under this Lease);
or (6) any portion of the Building or Premises would become
subject to additional or different governmental laws or
regulations as a consequence of the proposed Transfer and/or the
proposed transferee's use and occupancy of the Premises. Tenant
acknowledges that the foregoing is not intended to be an
exclusive list of the reasons for which Landlord may reasonably
withhold its consent to a proposed Transfer. Any attempted
Transfer in violation of the terms of this Article shall, at
Landlord's option, be void. Consent by Landlord to one or more
Transfers shall not operate as a waiver of Landlord's rights as
to any subsequent Transfers. In addition, Tenant shall not,
without Landlord's consent, publicly advertise the proposed
rental rate for any Transfer. Notwi |
