California-Pasadena-55 South Lake Avenue Sublease - Acacia Research Corp., Jenkens & Gilchrist and EOP-Pasadena Towers LLC
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 :
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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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$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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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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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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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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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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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
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Its: President
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By:
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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:
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Its:
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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>
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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.
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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. Notwithstanding anything to the
contrary contained herein or in Section XIII.D., Tenant mayassign
its entire interest under this Lease or sublet the Premises to a
wholly owned corporation, partnership or other legal entity or
controlled subsidiary or parent of Tenant or to any successor to
Tenant by purchase, merger, consolidation or reorganization
(hereinafter, collectively, referred to as "Permitted Transfer")
without the consent of Landlord, provided: (i) Tenant is not in
default under this Lease; (ii) if such proposed transferee is a
successor to Tenant by purchase, merger, consolidation or
reorganization, the continuing or surviving entity shall own all
or substantially all of the assets of Tenant and shall have a net
worth which is at least equal to the greater of Tenant's net
worth at the date of this Lease or Tenant's net worth at the date
of the Transfer; (iii) such proposed transferee operates the
business in the Premises for the Permitted Use and no other
purpose; and (iv) in no event shall any Transfer release or
relieve Tenant from any of its obligations under this Lease.
Additionally, Tenant may, without the consent of Landlord and as
a Permitted Transfer, sublet up to five (5) individual offices
within the Premises to subtenant(s) or occupant(s) within the
Premises in which Tenant has a substantial ownership interest
(but not
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necessarily a controlling interest), but in no event shall
the aggregate of area covered by such transactions exceed
1,000 rentable square feet of the Premises, and provided only
that (w) Tenant does not separately demise such space and the
subtenants in each of such individual offices shall utilize,
together with all other such subtenants, one (1) common entry
way to the Premises (as well as possibly utilizing certain
shared central services, such as reception, photocopying and
the like); (x) the proposed transferee operates the business
in the Premises for the Permitted Use, not in violation of
any of the terms and conditions of this Lease or any of the
Rules and Regulations of the Building, and for no other
purpose; (y) in no event shall any such Transfer release or
relieve Tenant from any of its obligations under this Lease;
and (z) the proposed subtenant's business is professional and
suitable for the Building considering the business of other
tenants and the Building's prestige (a transaction
contemplated by this sentence being referred to herein as a
"Permitted Office Transfer"). A violation of any of the
foregoing with respect to any purported Permitted Office
Transfer to any Transfer shall be considered a default by
Tenant hereunder. Tenant shall give Landlord written notice
at least thirty (30) days prior to the effective date of any
Permitted Transfer or Permitted Office Transfer; in the case
of any Permitted Office Transfer, such notice shall specify
in reasonable detail the terms and conditions of such
transfer, which may not include any consideration to Tenant
which would be subject to the provisions of Section XIV.C
below or a term in excess of nine (9) months. In addition,
Tenant hereby agrees that, to the fullest extent permissible
under applicable law, Tenant will indemnify Landlord for the
acts and omissions of any Permitted Office Transfer
subtenant, its agents, employees, contractors, customers and
invitees in accordance with the terms and conditions of
Article XV of this Lease and to cause any insurance to the
maintained by Tenant under this Lease to be extended to cover
the acts and omissions of any Permitted Office Transfer
subtenant, its agents, employees, contractors, customers and
invitees) while in the Building. As used herein: (a)
"parent" shall mean a company which owns a majority of
Tenant's voting equity; (b) "controlled" or "subsidiary"
shall mean a entity wholly owned by Tenant or at least
fifty-one percent (51%) of whose voting equity is owned by
Tenant; and (c) "affiliate" shall mean an entity controlled,
controlling or under common control with Tenant.
Notwithstanding the foregoing, sale of the shares of equity
of any affiliate or subsidiary to which this Lease has been
assigned or transferred other than to another parent,
subsidiary or affiliate of the original Tenant named
hereunder shall be deemed to be an assignment requiring the
consent of Landlord hereunder. Landlord agrees, following
Tenant's written request therefore, to provide directory
strips identifying Permitted Office Transfer occupants in the
Building's lobby directory; provided, however, that the
aggregate number of directory strips identifying Tenant and
Tenant's employees as well Tenant's Permitted Office Transfer
occupants shall not at any time exceed the aggregate number
of lobby directory strips allocable to Tenant and the
Premises pursuant to the terms and provisions of this Lease
and Landlord's then-current policies for determining such
allocation.
B. If Tenant requests Landlord's consent to a Transfer, Tenant,
together with such requests for consent, shall provide Landlord
with the name of the proposed transferee and the nature of the
business of the proposed transferee, the term, use, rental rate
and all other material terms and conditions of the proposed
Transfer, including, without limitation, a copy of the proposed
assignment, sublease or other contractual documents and evidence
satisfactory to Landlord that the proposed transferee is
financially responsible. Notwithstanding Landlord's agreement to
act reasonably under Section XIII.A. above, Landlord may, within
thirty (30) days after its receipt of all information and
documentation required herein, either, (1) consent to or
reasonably refuse to consent to such Transfer in writing; or (2)
if the Transfer is an assignment or a sublease of all or
substantially all the Premises for any portion of the Lease Term
or a sublease of any portion of the Premises for all or
substantially all of the remaining Lease Term, negotiate directly
with the proposed transferee and in the event Landlord is able to
reach an agreement with such proposed transferee, terminate this
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Lease (in part or in whole, as appropriate) upon thirty (30)
days' notice; or (3) if the Transfer is an assignment or a
sublease of all or substantially all the Premises for any portion
of the Lease Term or a sublease of any portion of the Premises
for all or substantially all of the remaining Lease Term, cancel
and terminate this Lease, in whole or in part as appropriate,
upon thirty (30) days' notice. Notwithstanding the foregoing,
Landlord shall not have the right to terminate pursuant to 2 or 3
above if the proposed transferee is a wholly owned corporation or
controlled subsidiary or affiliate of Tenant or a successor to
Tenant by purchase, merger, consolidation or reorganization. In
the event Landlord consents to any such Transfer, the Transfer
and consent thereto shall be in a form approved by Landlord, and
Tenant shall bear all costs and expenses incurred by Landlord in
connection with the review and approval of such documentation,
which costs and expenses shall be deemed to be at least Seven
Hundred Fifty Dollars ($750.00). Notwithstanding the foregoing,
provided that Tenant does not request any changes to this Lease
or Landlord's standard form of consent in connection with the
proposed transfer, such costs and expenses shall not exceed Seven
Hundred Fifty Dollars ($750.00).
C. Fifty percent (50%) of all cash or other proceeds (the "Transfer
Consideration") of any Transfer of Tenant's interest in this
Lease and/or the Premises, whether consented to by Landlord or
not, shall be paid to Landlord and Tenant hereby assigns all
rights it might have or ever acquire in fifty percent (50%) of
any such proceeds to Landlord. In addition to the Rent hereunder,
Tenant hereby covenants and agrees to pay to Landlord fifty
percent (50%) of all rent and other consideration which it
receives which is in excess of the Rent payable hereunder within
ten (10) days following receipt thereof by Tenant. In
determining excess rent in connection with a Transfer, Tenant may
(on an amortized basis, as described below), deduct the following
expenditures resulting from such a Transfer: (i) reasonable
brokerage fees, (ii) reasonable attorneys' fees, and (iii)
construction costs incurred in improving the space that is the
subject of the Transfer (as opposed to any upgrades or
improvements to remainder areas of the Premises in which Tenant
will retain occupancy); such costs shall be amortized on a
straight-line basis over the remainder of the Lease Term (or,
with respect to a sublease for less than the remainder of the
Lease Term, the remainder of the term of the Sublease), and
Tenant shall be entitled to offset against Tenant's monthly
payment of Transfer Consideration to Landlord payable hereunder
an amount equal to the monthly amortization of such costs. In
addition to any other rights Landlord may have, Landlord shall
have the right to contact any transferee and require that all
payments made pursuant to the Transfer shall be made directly to
Landlord.
D. If Tenant is a corporation, limited liability company or similar
entity, and if at any time during the Lease Term the entity or
entities who own the voting shares at the time of the execution
of this Lease cease for any reason (including but not limited to
merger, consolidation or other reorganization involving another
corporation) to own a majority of such shares, or if Tenant is a
partnership and if at any time during the Lease Term the general
partner or partners who own the general partnership interests in
the partnership at the time of the execution of this Lease, cease
for any reason to own a majority of such interests (except as the
result of transfers by gift, bequest or inheritance to or for the
benefit of members of the immediate family of such original
shareholder[s] or partner[s]), such an event shall be deemed to
be a Transfer. The preceding sentence shall not apply whenever
Tenant is a corporation, the outstanding stock of which is listed
on a recognized security exchange, or if at least eighty percent
(80%) of its voting stock is owned by another corporation, the
voting stock of which is so listed.
E. Any Transfer consented to by Landlord in accordance with this
Article XIII shall be only for the Permitted Use and for no other
purpose. In no event shall any Transfer release or relieve Tenant
or any Guarantors from any obligations under this Lease.
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XIV. LIENS.
Tenant will not permit any mechanic's liens or other liens to be
placed upon the Premises or Tenant's leasehold interest therein, the
Building, or the Property. Landlord's title to the Building and Property is
and always shall be paramount to the interest of Tenant, and nothing herein
contained shall empower Tenant to do any act that can, shall or may encumber
Landlord's title. In the event any such lien does attach, Tenant shall,
within ten (10) days of notice of the filing of said lien, either discharge
or bond over such lien to the satisfaction of Landlord and Landlord's
Mortgagee (as hereinafter defined), and in such a manner as to remove the
lien as an encumbrance against the Building and Property. If Tenant shall
fail to so discharge or bond over such lien, then, in addition to any other
right or remedy of Landlord, Landlord may, but shall not be obligated to bond
over or discharge the same. Any amount paid by Landlord for any of the
aforesaid purposes, including reasonable attorneys' fees (if and to the
extent permitted by law) shall be paid by Tenant to Landlord on demand as
Additional Base Rental. Landlord shall have the right to post and keep posted
on the Premises any notices that may be provided by law or which Landlord may
deem to be proper for the protection of Landlord, the Premises and the
Building from such liens.
XV. INDEMNITY AND WAIVER OF CLAIMS.
A. Except to the extent such losses, liabilities, obligations,
damages, penalties, claims, costs, charges, and expenses result
from the negligence of Landlord and/or its agents, employees or
contractors, Tenant shall indemnify, defend and hold Landlord,
its members, principals, beneficiaries, partners, officers,
directors, employees, Mortgagee(s) and agents, and the respective
principals and members of any such agents (collectively the
"Landlord Related Parties") harmless against and from all
liabilities, obligations, damages, penalties, claims, costs,
charges and expenses, including, without limitation, reasonable
attorneys' fees and other professional fees (if and to the extent
permitted by law), which may be imposed upon, incurred by, or
asserted against Landlord or any of the Landlord Related Parties
and arising, directly or indirectly, out of or in connection with
the use, occupancy or maintenance of the Premises by, through or
under Tenant including, without limitation, any of the following:
(1) any work or thing done in, on or about the Premises or any
part thereof by Tenant or any of its transferees, agents,
servants, contractors, employees, customers, licensees or
invitees; (2) any use, non-use, possession, occupation,
condition, operation or maintenance of the Premises or any part
thereof; (3) any act or omission of Tenant or any of its
transferees, agents, servants, contractors, employees, customers,
licensees or invitees, regardless of whether such act or omission
occurred within the Premises; (4) any injury or damage to any
person or property occurring in, on or about the Premises or any
part thereof; or (5) any failure on the part of Tenant to perform
or comply with any of the covenants, agreements, terms or
conditions contained in this Lease with which Tenant must comply
or perform. In case any action or proceeding is brought against
Landlord or any of the Landlord Related Parties by reason of any
of the foregoing, Tenant shall, at Tenant's sole cost and
expense, resist and defend such action or proceeding with counsel
approved by Landlord or, at Landlord's option, reimburse Landlord
for the cost of any counsel retained directly by Landlord to
defend and resist such action or proceeding.
B. Landlord and the Landlord Related Parties shall not be liable
for, and Tenant hereby waives, all claims for loss or damage to
Tenant's business or damage to person or property sustained by
Tenant or any person claiming by, through or under Tenant
[including Tenant's principals, agents and employees
(collectively, the "Tenant Related Parties")] resulting from any
accident or occurrence in, on or about the Premises, the
Building, the Property or the Project, including, without
limitation, claims for loss, theft or damage resulting from: (1)
the Premises, Building, Property or Project, or any equipment or
appurtenances becoming out of repair; (2) wind or weather; (3)
any defect in or failure to operate, for whatever reason, any
sprinkler, heating or air-conditioning equipment, electric
wiring, gas,
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water or steam pipes; (4) broken glass; (5) the backing up of
any sewer pipe or downspout; (6) the bursting, leaking or
running of any tank, water closet, drain or other pipe; (7)
the escape of steam or water; (8) water, snow or ice being
upon or coming through the roof, skylight, stairs, doorways,
windows, walks or any other place upon or near the Building;
(9) the falling of any fixture, plaster, tile or other
material; (10) any act, omission or negligence of other
tenants, licensees or any other persons or occupants of the
Building or of adjoining or contiguous buildings, or owners
of adjacent or contiguous property or the public, or by
construction of any private, public or quasi-public work; or
(11) any other cause of any nature except, as to items 1-9,
where such loss or damage is due to Landlord's willful
failure to make repairs required to be made pursuant to other
provisions of this Lease, after the expiration of a
reasonable time after written notice to Landlord of the need
for such repairs. To the maximum extent permitted by law,
Tenant agrees to use and occupy the Premises, and to use such
other portions of the Building as Tenant is herein given the
right to use, at Tenant's own risk.
C. Except to the extent such losses, liabilities, obligations,
damages, penalties, claims, costs, charges and expenses result
from the negligence of Tenant or any Tenant Related Parties,
Landlord shall indemnify and hold Tenant harmless from and
against all liabilities, obligations, damages (other than
consequential damages), penalties, claims, costs, charges and
expenses, including, without limitation, reasonable attorneys'
fees, which may be imposed upon, incurred by, or asserted against
Tenant by any third parties and arising, directly or indirectly,
out of or in connection with any of the following: (i) any work
or thing done in, on or about the Common Areas or any part
thereof by Landlord or any of its agents, contractors or
employees; (ii) any use, non-use, possession, occupation,
condition, operation, maintenance or management of the Common
Areas or any part thereof by Landlord or any of its agents,
contractors or employees; (iii) any act or omission of Landlord
or any of its agents, contractors or employees; and (iv) any
injury or damage to any person or property occurring in, on or
about the Common Areas or any part thereof; provided, however,
that in each case such liability, obligation, damage, penalty,
claim, cost, charge or expense results from the negligence of
Landlord and/or its agents, employees or contractors. In case any
action or proceeding is brought against Tenant or any of the
Tenant Related Parties by a third party by reason of any of the
foregoing, Landlord shall, at Landlord's sole cost and expense,
resist and defend such action or proceeding with counsel
reasonably approved by Tenant.
XVI. TENANT'S INSURANCE.
A. At all times commencing on and after the earlier of the
Commencement Date and the date Tenant or its agents, employees or
contractors enters the Premises for any purpose, Tenant shall
carry and maintain, at its sole cost and expense:
1. Commercial General Liability Insurance applicable to the
Premises and its appurtenances providing, on an occurrence
basis, a minimum combined single limit of Two Million
Dollars ($2,000,000.00), with a contractual liability
endorsement covering Tenant's indemnity obligations under
this Lease.
2. All Risks of Physical Loss Insurance written at replacement
cost value and with a replacement cost endorsement covering
all of Tenant's Property in the Premises.
3. Workers' Compensation Insurance as required by the state in
which the Premises is located and in amounts as may be
required by applicable statute, and Employers' Liability
Coverage of One Million Dollars ($1,000,000.00) per
occurrence.
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4. If and to the extent commonly required by other landlords of
first class office buildings in the Los Angeles, California
area, Landlord, in the exercise of prudent business
judgment, shall have the right to require Tenant to obtain
additional insurance coverage or different types of
insurance.
B. Except for items for which Landlord is responsible under the Work
Letter agreement, before any repairs, alterations, additions,
improvements, or construction are undertaken by or on behalf of
Tenant, Tenant shall carry and maintain, at its expense, or
Tenant shall require any contractor performing work on the
Premises to carry and maintain, at no expense to Landlord, in
addition to Workers' Compensation Insurance as required by the
jurisdiction in which the Building is located, All Risk Builder's
Risk Insurance in the amount of the replacement cost of any
alterations, additions or improvements (or such other amount
reasonably required by Landlord) and Commercial General Liability
Insurance (including, without limitation, Contractor's Liability
coverage, Contractual Liability coverage and Completed Operations
coverage,) written on an occurrence basis with a minimum combined
single limit of Two Million Dollars ($2,000,000.00) and adding
"the named Landlord hereunder (or any successor thereto), Equity
Office Properties Trust, a Maryland real estate investment trust,
EOP Operating Limited Partnership, a Delaware limited
partnership, and their respective members, principals,
beneficiaries, partners, officers, directors, employees, agents
and any Mortgagee(s)", and other designees of Landlord as the
interest of such designees shall appear, as additional insureds
(collectively referred to as the "Additional Insureds").
C. Any company writing any insurance which Tenant is required to
maintain or cause to be maintained pursuant to the terms of this
Lease (all such insurance as well as any other insurance
pertaining to the Premises or the operation of Tenant's business
therein being referred to as "Tenant's Insurance"), as well as
the form of such insurance, shall at all times be subject to
Landlord's reasonable approval, and each such insurance company
shall have an A.M. Best rating of "A-" or better and shall be
licensed and qualified to do business in the state in which the
Premises is located. All policies evidencing Tenant's Insurance
(except for Workers' Compensation Insurance) shall specify Tenant
as named insured and the Additional Insureds as additional
insureds. Provided that the coverage afforded Landlord and any
designees of Landlord shall not be reduced or otherwise adversely
affected, all of Tenant's Insurance may be carried under a
blanket policy covering the Premises and any other of Tenant's
locations. All policies of Tenant's Insurance shall contain
endorsements that the insurer(s) will give to Landlord and its
designees at least thirty (30) days' advance written notice of
any change, cancellation, termination or lapse of said Tenant's
Insurance. Tenant shall be solely responsible for payment of
premiums for all of Tenant's Insurance. Tenant shall deliver to
Landlord at least fifteen (15) days prior to the time Tenant's
Insurance is first required to be carried by Tenant, and upon
renewals at least fifteen (15) days prior to the expiration of
any such Tenant's Insurance coverage, a certificate of insurance
of all policies procured by Tenant in compliance with its
obligations under this Lease. The limits of Tenant's Insurance
shall in no event limit Tenant's liability under this Lease.
D. Tenant shall not do or fail to do anything in, upon or about the
Premises which will: (1) violate the terms of any of Landlord's
insurance policies; (2) prevent Landlord from obtaining policies
of insurance acceptable to Landlord or any Mortgagees; or (3)
result in an increase in the rate of any insurance on the
Premises, the Building, any other property of Landlord or of
others within the Building. In the event of the occurrence of any
of the events set forth in this Section, Tenant shall pay
Landlord upon demand, as Additional Base Rental, the cost of the
amount of any increase in any such insurance premium, provided
that the acceptance by Landlord of such payment shall not be
construed to be a waiver of any rights by Landlord in connection
with a default by Tenant under the Lease. If Tenant fails to
obtain the insurance coverage required by this Lease,
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Landlord may, at its option, obtain such insurance for
Tenant, and Tenant shall pay, as Additional Base Rental, the
cost of all premiums thereon and all of Landlord's costs
associated therewith.
XVII. SUBROGATION.
Notwithstanding anything set forth in this Lease to the contrary,
Landlord and Tenant do hereby waive any and all right of recovery, claim,
action or cause of action against the other, the other owners of the Project,
their respective principals, beneficiaries, partners, officers, directors,
agents, and employees, and, with respect to Landlord, its Mortgagee(s), for
any loss or damage that may occur to Landlord or Tenant or any party claiming
by, through or under Landlord or Tenant, as the case may be, with respect to
their respective property, the Building, the Property, the Project, or the
Premises or any addition or improvements thereto, or any contents therein, by
reason of fire, the elements or any other cause, regardless of cause or
origin, including the negligence of Landlord or Tenant, or their respective
principals, beneficiaries, partners, officers, directors, agents and
employees and, with respect to Landlord, its Mortgagee(s), which loss or
damage is (or would have been, had the insurance required by this Lease been
carried) covered by insurance. Since this mutual waiver will preclude the
assignment of any such claim by subrogation (or otherwise) to an insurance
company (or any other person), Landlord and Tenant each agree to give each
insurance company which has issued, or in the future may issue, policies of
insurance, with respect to the items covered by this waiver, written notice
of the terms of this mutual waiver, and to have such insurance policies
properly endorsed, if necessary, to prevent the invalidation of any of the
coverage provided by such insurance policies by reason of such mutual waiver.
For the purpose of the foregoing waiver, the amount of any deductible
applicable to any loss or damage shall be deemed covered by, and recoverable
by the insured under the insurance policy to which such deductible relates.
In the event that Tenant is permitted to and self-insures any risk which
would have been covered by the insurance required to be carried by Tenant
pursuant to Article XVI of the Lease, or if Tenant fails to carry any
insurance required to be carried by Tenant pursuant to Article XVI of this
Lease, then all loss or damage to Tenant, its leasehold interest, its
business, its property, the Premises or any additions or improvements thereto
or contents thereof shall be deemed covered by and recoverable by Tenant
under valid and collectible policies of insurance.
XVIII. LANDLORD'S INSURANCE.
Landlord shall maintain property insurance on the Building in such
amounts as Landlord reasonably elects, provided that during the Lease Term
Landlord shall maintain standard so-called "all risk" property insurance
covering the Building in an amount equal to ninety percent (90%) of the
replacement cost thereof (including Leasehold Improvements approved by
Landlord) at the time in question. The cost of such insurance shall be
included as a part of the Basic Costs, and payments for losses and recoveries
thereunder shall be made solely to Landlord or the Mortgagees of Landlord as
their interests shall appear.
XIX. CASUALTY DAMAGE.
A. If the Premises or any part thereof shall be damaged by fire or
other casualty, Tenant shall give prompt written notice thereof
to Landlord. In case the Building shall be so damaged that in
Landlord's reasonable judgment, substantial alteration or
reconstruction of the Building shall be required (whether or not
the Premises has been damaged by such casualty) or in the event
Landlord will not be permitted by applicable law to rebuild the
Building in substantially the same form as existed prior to the
fire or casualty or in the event the Premises has been materially
damaged and there is less than one (1) year of the Lease Term
remaining on the date of such casualty or in the event any
Mortgagee should require that the insurance proceeds payable as a
result of a casualty be applied to the payment of the mortgage
debt or in the event of any material uninsured loss to the
Building, Landlord may, at its option, terminate this Lease by
notifying Tenant in writing of such termination within ninety
(90) days after the date of such casualty. Such termination shall
be effective as of the date of fire or casualty, with respect to
any portion of the Premises that was rendered untenantable, and
the effective date of termination specified in Landlord's notice,
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with respect to any portion of the Premises that remained
tenantable. In addition to Landlord's rights to terminate as
provided herein, Tenant shall have the right to terminate this
Lease if: (1) a substantial portion of the Premises has been
damaged by fire or other casualty and such damage cannot
reasonably be repaired within sixty (60) days after the date of
such fire or other casualty; (2) there is less than one (1) year
of the Lease Term remaining on the date of such casualty; (3) the
casualty was not caused by the negligence or willful misconduct
of Tenant or its agents, employees or contractors; and (4) Tenant
provides Landlord with written notice of its intent to terminate
within thirty (30) days after the date of the fire or other
casualty. If neither Landlord nr Tenant elect to terminate this
Lease, Landlord shall commence and proceed with reasonable
diligence to restore the Building (provided that Landlord shall
not be required to restore any unleased premises in the Building)
and the Leasehold Improvements (but excluding any improvements,
alterations or additions made by Tenant in violation of this
Lease) located within the Premises, if any, which Landlord has
insured to substantially the same condition they were in
immediately prior to the happening of the casualty.
Notwithstanding the foregoing, Landlord's obligation to restore
the Building, and the Leasehold Improvements, if any, shall not
require Landlord to expend for such repair and restoration work
more than the insurance proceeds actually received by the
Landlord as a result of the casualty. When repairs to the
Premises have been completed by Landlord, Tenant shall complete
the restoration or replacement of all Tenant's Property necessary
to permit Tenant's reoccupancy of the Premises, and Tenant shall
present Landlord with evidence satisfactory to Landlord of
Tenant's ability to pay such costs prior to Landlord's
commencement of repair and restoration of the Premises. Landlord
shall not be liable for any inconvenience or annoyance to Tenant
or injury to the business of Tenant resulting in any way from
such damage or the repair thereof, except that, subject to the
provisions of the next sentence, Landlord shall allow Tenant a
fair diminution of Rent on a per diem basis during the time and
to the extent any damage to the Premises causes the Premises to
be rendered untenantable and not used by Tenant. If the Premises
or any other portion of the Building is damaged by fire or other
casualty resulting from the negligence of Tenant or any Tenant
Related Parties, the Rent hereunder shall not be diminished
during any period during which the Premises, or any portion
thereof, is untenantable (except to the extent Landlord is
entitled to be reimbursed by the proceeds of any rental
interruption insurance), and Tenant shll be liable to Landlord
for the cost of the repair and restoration of the Building caused
thereby to the extent such cost and expense is not covered by
insurance proceeds. Landlord and Tenant hereby waive the
provisions of any law from time to time in effect during the
Lease Term relating to the effect upon leases of partial or total
destruction of leased property. Landlord and Tenant agree that
their respective rights in the event of any damage to or
destruction of the Premises shall be those specifically set forth
herein.
B. Notwithstanding anything in this Article XIX to the contrary, if
all or any portion of the Premises shall be made untenantable by
a fire or other casualty, Landlord shall with reasonable
promptness, cause an architect or general contractor selected by
Landlord to estimate the amount of time required to substantially
complete repair and restoration of the Premises and make the
Premises tenantable again, using standard working methods (the
"Completion Estimate"). If the Completion Estimate indicates
that the Premises cannot be made tenantable within nine (9)
months from the date the repair and restoration is started,
either party shall have the right to terminate this Lease by
giving written notice to the other of such election within ten
(10) days after its receipt of the Completion Estimate. Tenant,
however, shall not have the right to terminate this Lease in the
event that the fire or casualty in question was caused by the
negligence or intentional misconduct of Tenant or any Tenant
Related Parties. If the Completion Estimate indicates that the
Premises can be made tenantable within nine (9) months from the
date the repair and restoration is started and Landlord has not
otherwise exercised its right to terminate the Lease pursuant to
the terms hereof, or if the Completion Estimate indicates that
the Premises
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cannot be made tenantable within nine (9) months but neither
party terminates this Lease pursuant to this Article XIX,
Landlord shall proceed with reasonable promptness to repair and
restore the Premises.
XX. DEMOLITION.
Intentionally Omitted.
XXI. CONDEMNATION.
If (a) the whole or any substantial part of the Premises or (b) any
portion of the Building, the Property or the Project which would leave the
remainder of the Building unsuitable for use as an office building comparable
to its use on the Commencement Date, shall be taken or condemned for any
public or quasi-public use under governmental law, ordinance or regulation,
or by right of eminent domain, or by private purchase in lieu thereof, then
Landlord may, at its option, terminate this Lease effective as of the date
the physical taking of said Premises or said portion of the Building,
Property or Project shall occur. In the event this Lease is not terminated,
the Rentable Area of the Building, the Rentable Area of the Premises, the
Building's allocable share, and Tenant's Pro Rata Share shall be
appropriately adjusted. In addition, Rent for any portion of the Premises so
taken or condemned shall be abated during the unexpired term of this Lease
effective when the physical taking of said portion of the Premises shall
occur. All compensation awarded for any such taking or condemnation, or sale
proceeds in lieu thereof, shall be the property of Landlord, and Tenant shall
have no claim thereto, the same being hereby expressly waived by Tenant,
except for any portions of such award or proceeds which are specifically
allocated by the condemning or purchasing party for the taking of or damage
to trade fixtures of Tenant, which Tenant specifically reserves to itself.
In addition, Tenant may file a claim at its sole cost and expense and receive
an award for the Tenant's Property and Tenant's reasonable relocation
expenses, provided the filing of any claim for relocation expenses does not
adversely affect or diminish the award which would otherwise have been
received by Landlord had Tenant not filed such a claim and received such
award.
XXII. EVENTS OF DEFAULT.
The following events shall be deemed to be events of default under
this Lease:
A. Tenant shall fail to pay when due any Base Rental, Additional
Base Rental or other Rent under this Lease and such failure shall
continue for three (3) days after written notice from Landlord
(hereinafter sometimes referred to as a "Monetary Default").
B. Any failure by Tenant (other than a Monetary Default) to comply
with any term, provision or covenant of this Lease, including,
without limitation, the rules and regulations, which failure is
not cured within twenty (20) days after delivery to Tenant of
notice of the occurrence of such failure, provided that if any
such failure creates a hazardous condition, such failure must be
cured immediately.
C. Tenant or any Guarantor shall become insolvent, or shall make a
transfer in fraud of creditors, or shall commit an act of
bankruptcy or shall make an assignment for the benefit of
creditors, or Tenant or any Guarantor shall admit in writing its
inability to pay its debts as they become due.
D. Tenant or any Guarantor shall file a petition under any section
or chapter of the United States Bankruptcy Code, as amended,
pertaining to bankruptcy, or under any similar law or statute of
the United States or any State thereof, or Tenant or any
Guarantor shall be adjudged bankrupt or insolvent in proceedings
filed against Tenant or any Guarantor thereunder; or a petition
or answer proposing the adjudication of Tenant or any Guarantor
as a debtor or its reorganization under any present or future
federal or state bankruptcy or similar law shall be filed in any
court and such petition or answer shall not be discharged or
denied within sixty (60) days after the filing thereof.
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E. A receiver or trustee shall be appointed for all or substantially
all of the assets of Tenant or any Guarantor or of the Premises
or of any of Tenant's Property located thereon in any proceeding
brought by Tenant or any Guarantor, or any such receiver or
trustee shall be appointed in any proceeding brought against
Tenant or any Guarantor and shall not be discharged within sixty
(60) days after such appointment or Tenant or such Guarantor
shall consent to or acquiesce in such appointment.
F. The leasehold estate hereunder shall be taken on execution or
other process of law or equity in any action against Tenant.
G. Intentionally Omitted.
H. Intentionally Omitted.
I. The liquidation, termination, dissolution, forfeiture of right to
do business, or death of Tenant.
J. Intentionally Omitted.
XXIII. REMEDIES.
A. Upon the occurrence of any event or events of default under this
Lease, whether enumerated in Article XXII or not, Landlord shall
have the option to pursue any one or more of the following
remedies without any notice (except as expressly prescribed
herein) or demand whatsoever (and without limiting the generality
of the foregoing, Tenant hereby specifically waives notice and
demand for payment of Rent or other obligations and waives any
and all other notices or demand requirements imposed by
applicable law):
1. Terminate this Lease and Tenant's right to possession of the
Premises and recover from Tenant an award of damages equal
to the sum of the following:
(a) The Worth at the Time of Award of the unpaid Rent which
had been earned at the time of termination;
(b) The Worth at the Time of Award of the amount by which
the unpaid Rent which would have been earned after
termination until the time of award exceeds the amount
of such Rent loss that Tenant affirmatively proves
could have been reasonably avoided;
(c) The Worth at the Time of Award of the amount by which
the unpaid Rent for the balance of the Lease Term after
the time of award exceeds the amount of such Rent loss
that Tenant affirmatively proves could be reasonably
avoided;
(d) Any other amount necessary to compensate Landlord for
all the detriment either proximately caused by Tenant's
failure to perform Tenant's obligations under this
Lease or which in the ordinary course of things would
be likely to result therefrom; and
(e) All such other amounts in addition to or in lieu of the
foregoing as may be permitted from time to time under
applicable law.
The "Worth at the Time of Award" of the amounts
referred to in parts (a) and (b) above, shall be
computed by allowing interest at the rate specified in
Article IV.E., and the "Worth at the Time of Award" of
the amount referred to in part (c), above, shall be
computed by discounting such amount at the discount
rate of the Federal Reserve Bank of San Francisco at
the time of award plus one percent (1%);
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2. Employ the remedy described in California Civil Code Section
1951.4 (Landlord may continue this Lease in effect after
Tenant's breach and abandonment and recover Rent as it
becomes due, if Tenant has the right to sublet or assign,
subject only to reasonable limitations); or
3. Notwithstanding Landlord's exercise of the remedy described
in California Civil Code Section 1951.4 in respect of an
event or events of default, at such time thereafter as
Landlord may elect in writing, to terminate this Lease and
Tenant's right to possession of the Premises and recover an
award of damages as provided above in Paragraph XXIII.A.1.
B. The subsequent acceptance of Rent hereunder by Landlord shall not
be deemed to be a waiver of any preceding breach by Tenant of any
term, covenant or condition of this Lease, other than the failure
of Tenant to pay the particular Rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of
acceptance of such Rent. No waiver by Landlord of any breach
hereof shall be effective unless such waiver is in writing and
signed by Landlord.
C. TENANT HEREBY WAIVES ANY AND ALL RIGHTS CONFERRED BY SECTION 3275
OF THE CIVIL CODE OF CALIFORNIA AND BY SECTIONS 1174 (C) AND 1179
OF THE CODE OF CIVIL PROCEDURE OF CALIFORNIA AND ANY AND ALL
OTHER LAWS AND RULES OF LAW FROM TIME TO TIME IN EFFECT DURING
THE LEASE TERM PROVIDING THAT TENANT SHALL HAVE ANY RIGHT TO
REDEEM, REINSTATE OR RESTORE THIS LEASE FOLLOWING ITS TERMINATION
BY REASON OF TENANT'S BREACH. TENANT ALSO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN
ANY LITIGATION ARISING OUT OF OR RELATING TO THIS LEASE.
D. No right or remedy herein conferred upon or reserved to Landlord
is intended to be exclusive of any other right or remedy, and
each and every right and remedy shall be cumulative and in
addition to any other right or remedy given hereunder or now or
hereafter existing by agreement, applicable law or in equity. In
addition to other remedies provided in this Lease, Landlord shall
be entitled, to the extent permitted by applicable law, to
injunctive relief, or to a decree compelling performance of any
of the covenants, agreements, conditions or provisions of this
Lease, or to any other remedy allowed to Landlord at law or in
equity. Forbearance by Landlord to enforce one or more of the
remedies herein provided upon an event of default shall not be
deemed or construed to constitute a waiver of such default.
E. This Article XXIII shall be enforceable to the maximum extent
such enforcement is not prohibited by applicable law, and the
unenforceability of any portion thereof shall not thereby render
unenforceable any other portion.
XXIV. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE,
THE LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD HEREUNDER) TO TENANT
SHALL BE LIMITED TO THE INTEREST OF LANDLORD IN THE BUILDING, AND TENANT
AGREES TO LOOK SOLELY TO LANDLORD'S INTEREST IN THE BUILDING FOR THE RECOVERY
OF ANY JUDGMENT OR AWARD AGAINST THE LANDLORD, IT BEING INTENDED THAT NEITHER
LANDLORD NOR ANY MEMBER, PRINCIPAL, PARTNER, SHAREHOLDER, OFFICER, DIRECTOR
OR BENEFICIARY OF LANDLORD SHALL BE PERSONALLY LIABLE FOR ANY JUDGMENT OR
DEFICIENCY. TENANT HEREBY COVENANTS THAT, PRIOR TO THE FILING OF ANY SUIT FOR
AN ALLEGED DEFAULT BY LANDLORD HEREUNDER, IT SHALL GIVE LANDLORD AND ALL
MORTGAGEES WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES OR DEED OF TRUST
LIENS ON THE PROPERTY, BUILDING OR PREMISES NOTICE AND REASONABLE TIME TO
CURE SUCH ALLEGED DEFAULT BY LANDLORD. "INTEREST OF LANDLORD IN THE
BUILDING"
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SHALL INCLUDE ANY ASSETS OF LANDLORD IN THE OPERATION OF THE BUILDING (PRIOR
TO THE DISTRIBUTION OF THE SAME TO ANY PARTNER OR SHAREHOLDER OF LANDLORD OR
ANY OTHER THIRD PARTY) SUCH AS ACCOUNTS RECEIVABLE, RENTS DUE FROM TENANTS,
INSURANCE PROCEEDS, FIXTURES, EQUIPMENT, SUPPLIES, CLAIMS OF ANY NATURE, SORT
OR DESCRIPTION AND ANY OTHER ITEMS DEEMED TO BE ASSETS IN CONNECTION WITH THE
OWNERSHIP, MAINTENANCE AND OPERATION OF THE BUILDING.
XXV. NO WAIVER.
Failure of either party to declare any default immediately upon its
occurrence, or delay in taking any action in connection with an event of
default shall not constitute a waiver of such default, nor shall it
constitute an estoppel against the non-defaulting party, but such
non-defaulting party shall have the right to declare the default at any time
during the continuance of the same and take such action as is lawful or
authorized under this Lease. Failure by Landlord or Tenant to enforce its
rights with respect to any one default shall not constitute a waiver of its
rights with respect to any subsequent default. Receipt by Landlord of
Tenant's keys to the Premises shall not constitute an acceptance or surrender
of the Premises.
XXVI. EVENT OF BANKRUPTCY.
In addition to, and in no way limiting the other remedies set forth
herein, Landlord and Tenant agree that if Tenant ever becomes the subject of
a voluntary or involuntary bankruptcy, reorganization, composition, or other
similar type proceeding under the federal bankruptcy laws, as now enacted or
hereinafter amended, then:
A. "Adequate protection" of Landlord's interest in the Premises
pursuant to the provisions of Section 361 and 363 (or their
successor sections) of the Bankruptcy Code, 11 U.S.C. Section 101
et seq., (such Bankruptcy Code as amended from time to time being
herein referred to as the "Bankruptcy Code"), prior to assumption
and/or assignment of the Lease by Tenant shall include, but not
be limited to all (or any part) of the following:
1. the continued payment by Tenant of the Base Rental and all
other Rent due and owing hereunder and the performance of
all other covenants and obligations hereunder by Tenant;
2. the furnishing of an additional/new security deposit by
Tenant in the amount of three (3) times the then current
monthly Base Rental.
B. "Adequate assurance of future performance" by Tenant and/or any
assignee of Tenant pursuant to Bankruptcy Code Section 365 will
include (but not be limited to) payment of an additional/new
Security Deposit in the amount of three (3) times the then
current monthly Base Rental payable hereunder.
C. Any person or entity to which this Lease is assigned pursuant to
the provisions of the Bankruptcy Code, shall be deemed without
further act or deed to have assumed all of the obligations of
Tenant arising under this Lease on and after the effective date
of such assignment. Any such assignee shall, upon demand by
Landlord, execute and deliver to Landlord an instrument
confirming such assumption of liability.
D. Notwithstanding anything in this Lease to the contrary, all
amounts payable by Tenant to or on behalf of the Landlord under
this Lease, whether or not expressly denominated as "Rent," shall
constitute "rent" for the purposes of Section 502(b) (6) of the
Bankruptcy Code.
E. If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, any and all monies or other
considerations payable or otherwise to be delivered to Landlord
(including Base Rental and other Rent hereunder), shall be and
remain the exclusive property of Landlord and shall not
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constitute property of Tenant or of the bankruptcy estate of
Tenant. Any and all monies or other considerations constituting
Landlord's property under the preceding sentence not paid or
delivered to Landlord shall be held in trust by Tenant or
Tenant's bankruptcy estate for the benefit of Landlord and shall
be promptly paid to or turned over to Landlord.
F. If Tenant assumes this Lease and proposes to assign the same
pursuant to the provisions of the Bankruptcy Code to any person
or entity who shall have made a bona fide offer to accept an
assignment of this Lease on terms acceptable to the Tenant, then
notice of such proposed offer/assignment, setting forth: (1) the
name and address of such person or entity, (2) all of the terms
and conditions of such offer, and (3) the adequate assurance to
be provided Landlord to assure such person's or entity's future
performance under the Lease, shall be given to Landlord by Tenant
no later than twenty (20) days after receipt by Tenant, but in
any event no later than ten (10) days prior to the date that
Tenant shall make application to a court of competent
jurisdiction for authority and approval to enter into such
assumption and assignment, and Landlord shall thereupon have the
prior right and option, to be exercised by notice to Tenant given
at any time prior to the effective date of such proposed
assignment, to accept an assignment of this Lease upon the same
terms and conditions and for the same consideration, if any, as
the bona fide offer made by such persons or entity, less any
brokerage commission which may be payable out of the
consideration to be paid by such person for the assignment of
this Lease.
G. To the extent permitted by law, Landlord and Tenant agree that
this Lease is a contract under which applicable law excuses
Landlord from accepting performance from (or rendering
performance to) any person or entity other than Tenant within the
meaning of Sections 365(c) and 365(e) (2) of the Bankruptcy Code.
Notwithstanding anything herein to the contrary, to the extent
that the United States Bankruptcy Code supersedes any of the
provisions of Article XXII, or stays the enforcement of any of
Landlord's remedies under Article XXIII, the United States
Bankruptcy Code shall control.
XXVII. WAIVER OF JURY TRIAL.
Landlord and Tenant hereby waive any right to a trial by jury in
any action or proceeding based upon, or related to, the subject matter of
this Lease. This waiver is knowingly, intentionally, and voluntarily made by
Tenant, and Tenant acknowledges that neither Landlord nor any person acting
on behalf of Landlord has made any representations of fact to induce this
waiver of trial by jury or in any way to modify or nullify its effect. Tenant
further acknowledges that it has been represented (or has had the opportunity
to be represented) in the signing of this Lease and in the making of this
waiver by independent legal counsel, selected of its own free will, and that
it has had the opportunity to discuss this waiver with counsel.
XXVIII. RELOCATION.
Landlord, at its expense at any time before or during the Lease
Term, shall be entitled to cause Tenant to relocate from the Premises to
space containing approximately the same Rentable Area as the Premises (the
"Relocation Space") within the Building or adjacent buildings within the same
Project at any time upon sixty (60) days' prior written notice to Tenant.
Landlord agrees to reimburse Tenant for all reasonable out-of-pocket costs
incurred by Tenant in connection with the relocation and not paid directly by
Landlord, including the cost of reprinting existing stationery and business
cards and similar items of expense. Such a relocation shall not affect this
Lease except that from and after the date of such relocation, "Premises"
shall refer to the Relocation Space into which Tenant has been moved, rather
than the original Premises as herein defined, and the Base Rental shall be
adjusted so that immediately following such relocation the Base Rental for
the Relocation Space per annum on a per square foot of Rentable Area basis
shall be the same as the Base Rental per annum immediately prior to such
relocation for the original Premises on a per square foot of Rentable Area
basis. Tenant's Pro Rata Share shall also be adjusted in accordance with the
formula set forth in this Lease.
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XXIX. HOLDING OVER.
In the event of holding over by Tenant after expiration or other
termination of this Lease or in the event Tenant continues to occupy the
Premises after the termination of Tenant's right of possession pursuant to
Articles XXII and XXIII hereof, occupancy of the Premises subsequent to such
termination or expiration shall be that of a tenancy at sufferance and in no
event for month-to-month or year-to-year. Tenant shall, throughout the
entire holdover period, be subject to all the terms and provisions of this
Lease and shall pay for its use and occupancy an amount (on a per month basis
without reduction for any partial months during any such holdover) equal to
150% of the sum of the Base Rental and Additional Base Rental due for the
period immediately preceding such holding over, provided that in no event
shall Base Rental and Additional Base Rental during the holdover period be
less than the fair market rental for the Premises. Notwithstanding the
foregoing, if such holding over continues for more than fifteen (15) days,
effective as of the sixteenth (16th) day, holdover rent shall increase to
200% of the sum of the Base Rental and Additional Base Rental due for the
period immediately preceding such holding over. No holding over by Tenant or
payments of money by Tenant to Landlord after the expiration of the Lease
Term shall be construed to extend the Lease Term or prevent Landlord from
recovery of immediate possession of the Premises by summary proceedings or
otherwise. In addition to the obligation to pay the amounts set forth above
during any such holdover period, Tenant also shall be liable to Landlord for
all damage, including any consequential damage, which Landlord may suffer by
reason of any holding over by Tenant, and Tenant shall indemnify Landlord
against any and all claims made by any other tenant or prospective tenant
against Landlord for delay by Landlord in delivering possession of the
Premises to such other tenant or prospective tenant. Notwithstanding the
foregoing, Tenant shall not be liable for consequential damages unless the
holdover continues for thirty (30) or more days after the termination of this
Lease or Tenant's right to possession.
XXX. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE.
Tenant accepts this Lease subject and subordinate to any mortgage,
deed of trust, ground lease or other lien presently existing or hereafter
arising upon the Premises, or upon the Building and/or the Property and to
any renewals, modifications, refinancings and extensions thereof (any such
mortgage, deed of trust, lease or other lien being hereinafter referred to as
a "Mortgage", and the person or entity having the benefit of same being
referred to hereinafter as a "Mortgagee"), but Tenant agrees that any such
Mortgagee shall have the right at any time to subordinate such Mortgage to
this Lease on such terms and subject to such conditions as such Mortgagee may
deem appropriate in its discretion. This clause shall be self-operative and
no further instrument of subordination shall be required. However, Landlord
is hereby irrevocably vested with full power and authority to subordinate
this Lease to any Mortgage, and Tenant agrees upon demand to execute such
further instruments subordinating this Lease, acknowledging the subordination
of this Lease or attorning to the holder of any such Mortgage as Landlord may
request. The terms of this Lease are subject to approval by the Landlord's
existing lender(s) and any lender(s) who, at the time of the execution of
this Lease, have committed or are considering committing to Landlord to make
a loan secured by all or any portion of the Property, and such approval is a
condition precedent to Landlord's obligations hereunder. In the event that
Tenant shall fail to execute any subordination or other agreement required by
this Article within ten (10) days after request by Landlord, such failure
shall be considered to be an event of default by Tenant entitling Landlord to
exercise its rights and remedies under Article XXIII of this Lease. If any
person shall succeed to all or part of Landlord's interests in the Premises
whether by purchase, foreclosure, deed in lieu of foreclosure, power of sale,
termination of lease or otherwise, and if and as so requested or required by
such sucessor-in-interest, Tenant shall, without charge, attorn to such
successor-in-interest. Tenant agrees that it will from time to time upon
request by Landlord and, within fifteen (15) days of the date of such
request, execute and deliver to such persons as Landlord shall request an
estoppel certificate or other similar statement in recordable form certifying
that this Lease is unmodified and in full force and effect (or if there have
been modifications, that the same is in full force and effect as so
modified), stating the dates to which Rent and other charges payable under
this Lease have been paid, stating that Landlord is not in default hereunder
(or if Tenant alleges a default stating the nature of such alleged default)
and further stating such other matters as Landlord shall reasonably require.
Landlord, in connection with
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any previously approved Transfer by Tenant, agrees that it will from time to
time, upon request by Tenant, execute and deliver to Tenant, or to any other
person designated by Tenant, a statement certifying: (i) that this Lease is
unmodified and in full force and effect (or if there has been a modification,
that the same is in full force and effect as modified, and stating the
modification); (ii) the dates, if any, to which the Rent and other sums and
payments due under this Lease have been paid; and (iii) whether Tenant has
breached the performance of any covenants, terms, and conditions on Tenant's
part to be performed under this Lease, and the nature of Tenant's breach, if
any.
XXXI. ATTORNEYS' FEES.
In the event that Landlord should retain counsel and/or institute
any suit against Tenant for violation of or to enforce any of the covenants
or conditions of this Lease, or should Tenant institute any suit against
Landlord for violation of any of the covenants or conditions of this Lease,
or should either party intervene in any suit in which the other is a party to
enforce or protect its interest or rights hereunder, the prevailing party in
any such suit shall be entitled to all of its costs, expenses and reasonable
fees of its attorney(s) (if and to the extent permitted by law) in connection
therewith.
XXXII. NOTICE.
Whenever any demand, request, approval, consent or notice
("Notice") shall or may be given to either of the parties by the other, each
such Notice shall be in writing and shall be sent by registered or certified
mail with return receipt requested, or sent by overnight courier service
(such as Federal Express) at the respective addresses of the parties for
notices as set forth in Section I.A.10. of this Lease, provided that if
Tenant has vacated the Premises or is in default of this Lease Landlord may
serve Notice by any manner permitted by law. Any Notice under this Lease
delivered by registered or certified mail shall be deemed to have been given,
delivered, received and effective on the earlier of (A) the third day
following the day on which the same shall have been mailed with sufficient
postage prepaid or (B) the delivery date indicated on the return receipt.
Notice sent by overnight courier service shall be deemed given, delivered,
received and effective upon the day after such Notice is delivered to or
picked up by the overnight courier service. Either party may, at any time,
change its Notice Address by giving the other party Notice stating the change
and setting forth the new Notice Address.
XXXIII. LANDLORD'S LIEN.
Intentionally Omitted, provided that the deletion of this Article
shall not be construed to be a waiver of Landlord's lien rights as provided
by law.
XXXIV. EXCEPTED RIGHTS.
This Lease does not grant any rights to light or air over or about
the Building. Landlord specifically excepts and reserves to itself the use of
any roofs, the exterior portions of the Premises, all rights to the land and
improvements below the improved floor level of the Premises, the improvements
and air rights above the Premises and the improvements and air rights located
outside the demising walls of the Premises, and such areas within the
Premises as are required for installation of utility lines and other
installations required to serve any occupants of the Building and the right
to maintain and repair the same, and no rights with respect thereto are
conferred upon Tenant unless otherwise specifically provided herein. Landlord
further reserves to itself the right from time to time: (A) to change the
Building's name or street address, provided that Landlord shall use
reasonable efforts to provide Tenant with at least thirty (30) days prior
notice with respect to a change in the Building's street address that will
prohibit Tenant from receiving mail at the current address. In the event
Landlord fails to provide Tenant with at least thirty (30) days prior notice,
Landlord shall reimburse Tenant for the cost of replacing all business
stationery on hand (not to exceed a two month's supply) at the effective date
of such change; (B) to install, fix and maintain signs on the exterior and
interior of the Building; (C) to designate and approve window coverings; (D)
to make any decorations, alterations, additions, improvements to the
Building, or any part thereof (including the Premises) which Landlord shall
desire, or deem necessary for the safety, protection, preservation or
improvement of the Building, or as Landlord may be required to do by law; (e)
subject to the
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terms of Article XII hereof, to have access to the Premises to perform its
duties and obligations and to exercise its rights under this Lease; (f) to
retain at all times and to use pass-keys to all locks within and into the
Premises; (G) to approve the weight, size, or location of heavy equipment, or
articles in and about the Premises; (H) to close or restrict access to the
Building at all times other than Normal Business Hours subject to Tenant's
right to admittance at all times under such regulations as Landlord may
prescribe from time to time, or to close (temporarily or permanently) any of
the entrances to the Building; (I) to change the arrangement and/or location
of entrances of passageways, doors and doorways, corridors, elevators,
stairs, toilets and public parts of the Building, provided that Landlord,
subject to a temporary closure pursuant to Article XIX hereof, shall always
provide Tenant with suitable ingress and egress to and from the Premises; (J)
if Tenant has vacated the Premises during the last six (6) months of the
Lease Term, to perform additions, alterations and improvements to the
Premises in connection with a reletting or anticipated reletting thereof
without being responsible or liable for the value or preservation of any then
existing improvements to the Premises; and (K) to grant to anyone the
exclusive right to conduct any business or undertaking in the Building,
provided that the granting of such exclusive rights shall not: (1) restrict
or interfere with Tenant's ability to conduct its business in the Premises;
or (2) require Tenant to do business with any other Building tenant.
Landlord, in accordance with Article XII hereof, shall have the right to
enter the Premises in connection with the exercise of any of the rights set
forth herein and such entry into the Premises and the performance of any work
therein shall not constitute a constructive eviction or entitle Tenant to any
abatement or reduction of Rent by reason thereof.
XXXV. SURRENDER OF PREMISES.
At the expiration or earlier termination of this Lease or Tenant's
right of possession hereunder, Tenant shall remove all Tenant's Property from
the Premises, remove all Required Removables designated by Landlord and quit
and surrender the Premises to Landlord, broom clean, and in good order,
condition and repair, ordinary wear and tear excepted. If Tenant fails to
remove any of Tenant's Property within five (5) days after the termination of
this Lease or Tenant's right to possession hereunder, Landlord, at Tenant's
sole cost and expense, shall be entitled to remove and/or store such Tenant's
Property and Landlord shall in no event be responsible for the value,
preservation or safekeeping thereof. Tenant shall pay Landlord, upon demand,
any and all expenses caused by such removal and all storage charges against
such property so long as the same shall be in the possession of Landlord or
under the control of Landlord. In addition, if Tenant fails to remove any
Tenant's Property from the Premises or storage, as the case may be, within
ten (10) days after written notice from Landlord, Landlord, at its option,
may deem all or any part of such Tenant's Property to have been abandoned by
Tenant and title thereof shall immediately pass to Landlord.
XXXVI. MISCELLANEOUS.
A. If any term or provision of this Lease, or the application
thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, 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 and provision of
this Lease shall be valid and enforced to the fullest extent
permitted by law. This Lease represents the result of
negotiations between Landlord and Tenant, each of which has been
(or has had opportunity to be) represented by counsel of its own
selection, and neither of which has acted under duress or
compulsion, whether legal, economic or otherwise. Consequently,
Landlord and Tenant agree that the language in all parts of the
Lease shall in all cases be construed as a whole according to its
fair meaning and neither strictly for nor against Landlord or
Tenant.
B. Tenant agrees not to record this Lease or any memorandum hereof
without Landlord's prior written consent.
C. This Lease and the rights and obligations of the parties hereto
shall be interpreted, construed, and enforced in accordance with
the laws of the State of California.
35
<PAGE>
D. Events of "Force Majeure" shall include strikes, riots, acts of
God, shortages of labor or materials and war. Whenever a period
of time is herein prescribed for the taking of any action by
Landlord or Tenant, as the case may be, other than the payment of
Rent or any other sums due hereunder, such party shall not be
liable or responsible for, and there shall be excluded from the
computation of such period of time, any delays due to events of
Force Majeure.
E. Landlord shall have the right to transfer and assign, in whole or
in part, all of its rights and obligations hereunder and in the
Building, Property and Project referred to herein, and in such
event and upon such transfer Landlord shall be released from any
further obligations hereunder, and Tenant agrees to look solely
to such successor in interest of Landlord for the performance of
such obligations, provided that, any successor pursuant to a
voluntary, third-party transfer (but not as part of an
involuntary transfer resulting from a foreclosure or deed in lieu
thereof) shall have assumed Landlord's obligations under this
Lease either by contractual obligation, assumption agreement or
by operation of law.
F. Tenant hereby represents to Landlord that it has dealt directly
with and only with the Broker as a broker in connection with this
Lease. Tenant agrees to indemnify and hold Landlord and the
Landlord Related Parties harmless from all claims of any brokers
claiming to have represented Tenant in connection with this
Lease. Landlord agrees to indemnify and hold Tenant and the
Tenant Related Parties harmless from all claims of any brokers
claiming to have represented Landlord in connection with this
Lease.
G. If there is more than one Tenant, or if the Tenant is comprised
of more than one person or entity, the obligations hereunder
imposed upon Tenant shall be joint and several obligations of all
such parties. All notices, payments, and agreements given or made
by, with or to any one of such persons or entities shall be
deemed to have been given or made by, with or to all of them.
H. In the event Tenant is a corporation (including any form of
professional association), partnership (general or limited), or
other form of organization other than an individual (each such
entity is individually referred to herein as an "Organizational
Entity"), then Tenant hereby covenants, warrants and represents:
(1) that such individual is duly authorized to execute or attest
and deliver this Lease on behalf of Tenant in accordance with the
organizational documents of Tenant; (2) that this Lease is
binding upon Tenant; (3) that Tenant is duly organized and
legally existing in the state of its organization, and is
qualified to do business in the State of California; and (4) that
the execution and delivery of this Lease by Tenant will not
result in any breach of, or constitute a default under any
mortgage, deed of trust, lease, loan, credit agreement,
partnership agreement or other contract or instrument to which
Tenant is a party or by which Tenant may be bound. If Tenant is
an Organizational Entity, upon request, Tenant will, prior to the
Commencement Date, deliver to Landlord true and correct copies of
all organizational documents of Tenant, including, without
limitation, copies of an appropriate resolution or consent of
Tenant's board of directors or other appropriate governing body
of Tenant authorizing or ratifying the execution and delivery of
this Lease, which resolution or consent will be duly certified to
Landlord's satisfaction by an appropriate individual with
authority to certify such documents, such as the secretary or
assistant secretary or the managing general partner of Tenant.
I. Tenant acknowledges that the financial capability of Tenant to
perform its obligations hereunder is material to Landlord and
that Landlord would not enter into this Lease but for its belief,
based on its review of Tenant's financial statements, that Tenant
is capable of performing such financial obligations. Tenant
hereby represents, warrants and certifies to Landlord that its
financial statements previously furnished to Landlord were at the
time given true and correct in all material respects and that
there have been no material subsequent changes thereto as of the
date of this Lease. At any time during the Lease Term,
36
<PAGE>
Tenant shall provide Landlord, upon ten (10) days' prior
written notice from Landlord, with a current financial
statement and financial statements of the two (2) years prior
to the current financial statement year and such other
information as Landlord or its Mortgagee may request in order
to create a "business profile" of Tenant and determine
Tenant's ability to fulfill its obligations under this Lease.
Such statement shall be prepared in accordance with generally
accepted accounting principles and, if such is the normal
practice of Tenant, shall be audited by an independent
certified public accountant.
J. Except as expressly otherwise herein provided, with respect to
all required acts of Tenant, time is of the essence of this
Lease. This Lease shall create the relationship of Landlord and
Tenant between the parties hereto.
K. This Lease and the covenants and conditions herein contained
shall inure to the benefit of and be binding upon Landlord and
Tenant and their respective permitted successors and assigns.
L. Notwithstanding anything to the contrary contained in this Lease,
the expiration of the Lease Term, whether by lapse of time or
otherwise, shall not relieve Tenant from Tenant's obligations
accruing prior to the expiration of the Lease Term, and such
obligations shall survive any such expiration or other
termination of the Lease Term.
M. The headings and titles to the paragraphs of this Lease are for
convenience only and shall have no effect upon the construction
or interpretation of any part hereof.
N. LANDLORD HAS DELIVERED A COPY OF THIS LEASE TO TENANT FOR
TENANT'S REVIEW ONLY, AND THE DELIVERY HEREOF DOES NOT CONSTITUTE
AN OFFER TO TENANT OR OPTION. THIS LEASE SHALL NOT BE EFFECTIVE
UNTIL AN ORIGINAL OF THIS LEASE EXECUTED BY BOTH LANDLORD AND
TENANT AND AN ORIGINAL GUARANTY, IF ANY, EXECUTED BY EACH
GUARANTOR IS DELIVERED TO AND ACCEPTED BY LANDLORD.
O. QUIET ENJOYMENT. Tenant shall, and may peacefully have, hold,
and enjoy the Premises, subject to the other terms of this Lease
(including, without limitation, Article XXX hereof), provided
that Tenant pays the Rent herein recited to be paid by Tenant and
performs all of Tenant's covenants and agreements herein
contained. This covenant and any and all other covenants of
Landlord shall be binding upon Landlord and its successors only
during its or their respective periods of ownership of the
Landlord's interest hereunder.
XXXVII. ENTIRE AGREEMENT.
This Lease agreement, including the following Exhibits:
<TABLE>
<S> <C>
EXHIBIT A Outline and Location of Premises
EXHIBIT A-2 Outline and Location of Project
EXHIBIT B Rules and Regulations
EXHIBIT C Commencement Letter
EXHIBIT D Work Letter Agreement
EXHIBIT E Additional Terms
EXHIBIT F Parking Agreement
EXHIBIT G Janitorial Specifications
</TABLE>
constitutes the entire agreement between the parties hereto with respect to the
subject matter of this Lease and supersedes all prior agreements and
understandings between the parties related to the Premises, including all lease
proposals, letters of intent and similar documents. TENANT EXPRESSLY
ACKNOWLEDGES AND AGREES THAT LANDLORD HAS NOT MADE AND IS NOT MAKING, AND
TENANT, IN EXECUTING AND DELIVERING THIS LEASE, IS NOT RELYING UPON, ANY
WARRANTIES, REPRESENTATIONS, PROMISES OR STATEMENTS, EXCEPT TO THE EXTENT THAT
THE SAME ARE EXPRESSLY SET FORTH
37
<PAGE>
IN THIS LEASE. ALL UNDERSTANDINGS AND AGREEMENTS HERETOFORE MADE BETWEEN THE
PARTIES ARE MERGED IN THIS LEASE WHICH ALONE FULLY AND COMPLETELY EXPRESSES
THE AGREEMENT OF THE PARTIES, NEITHER PARTY RELYING UPON ANY STATEMENT OR
REPRESENTATION NOT EMBODIED IN THIS LEASE. THIS LEASE MAY BE MODIFIED ONLY BY
A WRITTEN AGREEMENT SIGNED BY LANDLORD AND TENANT. LANDLORD AND TENANT
EXPRESSLY AGREE THAT THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OF
MERCHANTABILITY, HABITABILITY, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE
OR OF ANY OTHER KIND ARISING OUT OF THIS LEASE, ALL OF WHICH ARE HEREBY
WAIVED BY TENANT, AND THAT THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE
EXPRESSLY SET FORTH IN THIS LEASE.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
day and year first above written.
LANDLORD: EOP-PASADENA TOWERS, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
DOING BUSINESS AS EOP-PASADENA TOWERS,
LLC, A DELAWARE LIMITED LIABILITY
COMPANY
BY: EOP Operating Limited
Partnership, a Delaware
limited partnership, its
managing member
BY: Equity Office
Properties Trust, a
Maryland real estate
investment trust, its
managing general
partner
/s/ PETER H. ADAMS
----------------------------------------
Name: Peter H. Adams
-----------------------------------
Title: Sr. Vice President
----------------------------------
TENANT: ACACIA RESEARCH CORPORATION,
A CALIFORNIA CORPORATION
/s/ KATHRYN KING-VAN WIE
----------------------------------------
Name: Kathryn King-Van Wie
-----------------------------------
Title: Chief Operating Officer
----------------------------------
By: /s/ R. BRUCE STEWART
-------------------------------------
Name: R. Bruce Stewart
-----------------------------------
Title: Chief Financial Officer
----------------------------------
38
<PAGE>
EXHIBIT A
OUTLINE AND LOCATION OF PREMISES
This Exhibit is attached to and made a part of the Lease dated the
day of ____________________, 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") for space in the
Building located at 55 South Lake Avenue, Pasadena, California.
Building: Pasadena Towers II
Suite No.: 650
Rentable Area of the Premises: 5,449 sq. ft.
Target Commencement Date: May 1, 1998
Lease Term: 60 months
A-1
<PAGE>
EXHIBIT A-2
PROJECT
A-2-1
<PAGE>
EXHIBIT B
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to the
Premises, the Building, the parking garage associated therewith (if any), the
Property and the appurtenances thereto:
1. Sidewalks, doorways, vestibules, halls, stairways and other similar
areas shall not be obstructed by Tenant or used by Tenant for any
purpose other than ingress and egress to and from the Premises. No
rubbish, litter, trash, or material of any nature shall be placed,
emptied, or thrown in those areas. At no time shall Tenant permit
Tenant's employees to loiter in common areas or elsewhere in or about
the Building or Property.
2. Plumbing fixtures and appliances shall be used only for the purposes
for which designed, and no sweepings, rubbish, rags or other
unsuitable material shall be thrown or placed therein. Damage
resulting to any such fixtures or appliances from misuse by Tenant or
its agents, employees or invitees, shall be paid for by Tenant, and
Landlord shall not in any case be responsible therefor.
3. No signs, advertisements or notices shall be painted or affixed on or
to any windows, doors or other parts of the Building, except those of
such color, size, style and in such places as shall be first approved
in writing by Landlord. No nails, hooks or screws shall be driven or
inserted into any part of the Premises or Building except by the
Building maintenance personnel, nor shall any part of the Building be
defaced by Tenant.
4. Landlord may provide and maintain in the first floor (main lobby) of
the Building an alphabetical directory board listing all tenants, and
no other directory shall be permitted unless previously consented to
by Landlord in writing.
5. Tenant shall not place any additional lock or locks on any door in the
Premises or Building without Landlord's prior written consent. A
reasonable number of keys to the locks on the doors in the Premises
shall be furnished by Landlord to Tenant at the cost of Tenant, and
Tenant shall not have any duplicate keys made. All keys shall be
returned to Landlord at the expiration or earlier termination of this
Lease.
6. All contractors, contractor's representatives, and installation
technicians performing work in the Building shall be subject to
Landlord's prior approval and shall be required to comply with
Landlord's standard rules, regulations, policies and procedures, as
the same may be revised from time to time. Tenant shall be solely
responsible for complying with all applicable laws, codes and
ordinances pursuant to which said work shall be performed.
7. Movement in or out of the Building of furniture or office equipment,
or dispatch or receipt by Tenant of any merchandise or materials
which require the use of elevators, stairways, lobby areas, or
loading dock areas, shall be restricted to hours designated by
Landlord. Tenant must seek Landlord's prior approval by providing
in writing a detailed listing of any such activity. If approved by
Landlord, such activity shall be under the supervision of Landlord
and performed in the manner stated by Landlord. Landlord may
prohibit any article, equipment or any other item from being
brought into the Building. Tenant is to assume all risk for damage
to articles moved and injury to any persons resulting from such
activity. If any equipment, property, and/or personnel of Landlord
or of any other tenant is damaged or injured as a result of or in
connection with such activity, Tenant shall be solely liable for
any and all damage or loss resulting therefrom.
8. Landlord shall have the power to prescribe the weight and position of
safes and other heavy equipment or items, which in all cases shall not
in the opinion of Landlord exceed acceptable floor loading and weight
distribution requirements.
B-1
<PAGE>
All damage done to the Building by the installation, maintenance,
operation, existence or removal of any property of Tenant shall be
repaired at the expense of Tenant.
9. Corridor doors, when not in use, shall be kept closed.
10. Tenant shall not: (1) make or permit any improper, objectionable or
unpleasant noises or odors in the Building, or otherwise interfere in
any way with other tenants or persons having business with them; (2)
solicit business or distribute, or cause to be distributed, in any
portion of the Building any handbills, promotional materials or other
advertising; or (3) conduct or permit any other activities in the
Building that might constitute a nuisance.
11. No animals, except seeing eye dogs, shall be brought into or kept in,
on or about the Premises.
12. No inflammable, explosive or dangerous fluid or substance shall be
used or kept by Tenant in the Premises or Building. Tenant shall not,
without Landlord's prior written consent, use, store, install, spill,
remove, release or dispose of within or about the Premises or any
other portion of the Property, any asbestos-containing materials or
any solid, liquid or gaseous material now or hereafter considered
toxic or hazardous under the provisions of 42 U.S.C. Section 9601 et
seq. or any other applicable environmental law which may now or
hereafter be in effect. If Landlord does give written consent to
Tenant pursuant to the foregoing sentence, Tenant shall comply with
all applicable laws, rules and regulations pertaining to and governing
such use by Tenant, and shall remain liable for all costs of cleanup
or removal in connection therewith.
13. Tenant shall not use or occupy the Premises in any manner or for any
purpose which would injure the reputation or impair the present or
future value of the Premises or the Building; without limiting the
foregoing, Tenant shall not use or permit the Premises or any portion
thereof to be used for lodging, sleeping or for any illegal purpose.
14. Tenant shall not take any action which would violate Landlord's labor
contracts affecting the Building or which would cause any work
stoppage, picketing, labor disruption or dispute, or any interference
with the business of Landlord or any other tenant or occupant of the
Building or with the rights and privileges of any person lawfully in
the Building. Tenant shall take any actions necessary to resolve any
such work stoppage, picketing, labor disruption, dispute or
interference and shall have pickets removed and, at the request of
Landlord, immediately terminate at any time any construction work
being performed in the Premises giving rise to such labor problems,
until such time as Landlord shall have given its written consent for
such work to resume. Tenant shall have no claim for damages of any
nature against Landlord or any of the Landlord Related Parties in
connection therewith, nor shall the Commencement Date of the Lease
Term be extended as a result thereof.
15. Tenant shall utilize the termite and pest extermination service
designated by Landlord to control termites and pests in the Premises.
Except as included in Basic Costs, Tenant shall bear the cost and
expense of such extermination services.
16. Tenant shall not install, operate or maintain in the Premises or in
any other area of the Building, any electrical equipment which does
not bear the U/L (Underwriters Laboratories) seal of approval, or
which would overload the electrical system or any part thereof beyond
its capacity for proper, efficient and safe operation as determined by
Landlord, taking into consideration the overall electrical system and
the present and future requirements therefor in the Building. Tenant
shall not furnish any cooling or heating to the Premises, including,
without limitation, the use of any electronic or gas heating devices,
without Landlord's prior written consent. Tenant shall not use more
than its proportionate share of telephone lines available to service
the Building.
B-2
<PAGE>
17. Tenant shall not operate or permit to be operated on the Premises any
coin or token operated vending machine or similar device (including,
without limitation, telephones, lockers, toilets, scales, amusement
devices and machines for sale of beverages, foods, candy, cigarettes
or other goods), except for those vending machines or similar devices
which are for the sole and exclusive use of Tenant's employees, and
then only if such operation does not violate the lease of any other
tenant of the Building.
18. Bicycles and other vehicles are not permitted inside or on the
walkways outside the Building, except in those areas specifically
designated by Landlord for such purposes.
19. Landlord may from time to time adopt appropriate systems and
procedures for the security or safety of the Building, its occupants,
entry and use, or its contents. Tenant, Tenant's agents, employees,
contractors, guests and invitees shall comply with Landlord's
reasonable requirements relative thereto.
20. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's opinion
may tend to impair the reputation of the Building or its desirability
for Landlord or other tenants. Upon written notice from Landlord,
Tenant will refrain from and/or discontinue such publicity
immediately.
21. Tenant shall carry out Tenant's permitted repair, maintenance,
alterations, and improvements in the Premises only during times agreed
to in advance by Landlord and in a manner which will not unreasonably
interfere with the rights of other tenants in the Building.
22. Canvassing, soliciting, and peddling in or about the Building is
prohibited. Tenant shall cooperate and use its best efforts to prevent
the same.
23. At no time shall Tenant permit or shall Tenant's agents, employees,
contractors, guests, or invitees smoke in any common area of the
Building, unless such common area has been declared a designated
smoking area by Landlord, or to allow any smoke from the Premises to
emanate into the common areas or any other tenant's premises.
Landlord shall have the right at any time to designate the Building as
a non-smoking building.
24. Tenant shall observe Landlord's rules with respect to maintaining
standard window coverings at all windows in the Premises so that the
Building presents a uniform exterior appearance. Tenant shall ensure
that to the extent reasonably practicable, window coverings are closed
on all windows in the Premises while they are exposed to the direct
rays of the sun.
25. All deliveries to or from the Premises shall be made only at such
times, in the areas and through the entrances and exits designated for
such purposes by Landlord. Tenant shall not permit the process of
receiving deliveries to or from the Premises outside of said areas or
in a manner which may interfere with the use by any other tenant of
its premises or of any common areas, any pedestrian use of such area,
or any use which is inconsistent with good business practice.
26. The work of cleaning personnel shall not be hindered by Tenant after
5:30 P.M., and such cleaning work may be done at any time when the
offices are vacant. Windows, doors and fixtures may be cleaned at any
time. Tenant shall provide adequate waste and rubbish receptacles
necessary to prevent unreasonable hardship to Landlord regarding
cleaning service.
B-3
<PAGE>
EXHIBIT C
COMMENCEMENT LETTER
Date
----------------------
Acacia Research Corporation
55 South Lake
Suite 650
Pasadena, California 91101
Re: Commencement Letter with respect to that certain Lease dated _____________,
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, as Landlord, and ACACIA RESEARCH CORPORATION,
A CALIFORNIA CORPORATION as Tenant, for 5,449 square feet of Rentable Area
on the sixth (6th) floor of the Building located at 55 South Lake Avenue,
Pasadena, California.
Dear :
---------------
In accordance with the terms and conditions of the above referenced Lease,
Tenant hereby accepts possession of the Premises and agrees as follows:
1. The Commencement Date of the Lease is:
---------------------------
2. The Termination Date of the Lease is:
----------------------------
Please acknowledge your acceptance of possession and agreement to the terms
set forth above by signing all three (3) copies of this Commencement Letter
in the space provided and returning two (2) fully executed copies of the same
to my attention.
Sincerely,
--------------------------------
Property Manager
Agreed and Accepted:
Tenant: ACACIA RESEARCH CORPORATION, A CALIFORNIA CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
----------------------------------
Date:
----------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
----------------------------------
Date:
----------------------------------
C-1
<PAGE>
EXHIBIT D
WORK LETTER
This Exhibit is attached to and made a part of the Lease dated
____________________, 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") for space in the Building
located at 55 South Lake Avenue, Pasadena, California.
1. This Work Letter shall set forth the obligations of Landlord and Tenant
with respect to the preparation of the Premises for Tenant's occupancy.
All improvements described in this Work Letter to be constructed in and
upon the Premises by Landlord are hereinafter referred to as the "Landlord
Work." It is agreed that construction of the Landlord Work will be
completed at Tenant's sole cost and expense, subject to the Allowance (as
defined below). Landlord shall bid the Landlord Work to the following
three (3) general contractors on Landlord's approved list of contractors:
Howard Building, Stanhope, and Corporate Contractors, and Landlord shall
allow Tenant to review the bids received. Tenant shall have the right to
select the lowest bid which Landlord deems to be qualified, and Landlord
shall enter into a direct contract for the Landlord Work with the general
contractor so selected by Tenant. In addition, Landlord shall have the
right to select and/or approve of any subcontractors used in connection
with the Landlord Work.
2. Space planning, architectural and engineering (mechanical, electrical and
plumbing) drawings for the Landlord Work shall be prepared by Landlord's
architect at Tenant's sole cost and expense, subject to the Allowance. The
space planning, architectural and mechanical drawings are collectively
referred to herein as the "Plans".
3. Tenant shall furnish any requested information and approve or disapprove
any preliminary or final layout, drawings, or plans within two (2) Business
Days after written request (the "Approval Period"). Any disapproval shall
be in writing and shall specifically set forth the reasons for such
disapproval. Landlord's approval of the Plans and any revisions thereto or
Landlord's supervision or performance of any work for or on behalf of the
Tenant shall not be deemed to be a representation by Landlord that such
Plans or the revisions thereto comply with applicable insurance
requirements, building codes, ordinances, laws or regulations or that the
improvements constructed in accordance with the Plans and any revisions
thereto will be adequate for Tenant's use. Tenant and Tenant's architect,
if any, shall devote such time in consultation with Landlord and Landlord's
architect and/or engineer as may be required to provide all information
Landlord deems necessary in order to enable Landlord's architect and
engineer to complete plans for Tenant's written approval as soon as
reasonably possible. In the event that Tenant fails to approve or
disapprove the Plans within the Approval Period, Tenant shall be
responsible for one (1) day of Delay (as defined in the Lease) for each day
of delay in response beyond the Approval Period.
4. In the event Landlord's estimate and/or the actual cost of construction
shall exceed the Allowance, Landlord, prior to commencing any construction
of Landlord Work, shall submit to Tenant a written estimate setting forth
the anticipated cost of the Landlord Work, including but not limited to
labor and materials, contractor's fees and permit fees. Within three (3)
Business Days thereafter, Tenant shall either notify Landlord in writing of
its approval of the cost estimate, or specify its objections thereto and
any desired changes to the proposed Landlord Work. In the event Tenant
notifies Landlord of such objections and desired changes, Tenant shall work
with Landlord to reach a mutually acceptable alternative cost estimate.
D-1
<PAGE>
5. In the event Landlord's estimate and/or the actual cost of construction
shall exceed the Allowance, if any (such amounts exceeding the Allowance
being herein referred to as the "Excess Costs"), Tenant shall pay to
Landlord such Excess Costs upon demand. The statements of costs submitted
to Landlord by Landlord's contractors shall be conclusive for purposes of
determining the actual cost of the items described therein. The amounts
payable hereunder constitute Rent payable pursuant to the Lease, and the
failure to timely pay same constitutes an event of default under the Lease.
6. If Tenant shall request any change, addition or alteration in any of the
Plans after approval by Landlord, Landlord shall have such revisions to the
drawings prepared, and Tenant shall reimburse Landlord for the cost thereof
upon demand. Promptly upon completion of the revisions, Landlord shall
notify Tenant in writing of the increased cost which will be chargeable to
Tenant by reason of such change, addition or deletion. Tenant, within one
(1) Business Day, shall notify Landlord in writing whether it desires to
proceed with such change, addition or deletion. In the absence of such
written authorization, Landlord shall have the option to continue work on
the Premises disregarding the requested change, addition or alteration, or
Landlord may elect to discontinue work on the Premises until it receives
notice of Tenant's decision, in which event Tenant shall be responsible for
any Delay in completion of the Premises resulting therefrom. In the event
such revisions result in a higher estimate of the cost of construction
and/or higher actual construction costs which exceed the Allowance, such
increased estimate or costs shall be deemed Excess Costs pursuant to
Paragraph 5 hereof and Tenant shall pay such Excess Costs upon demand.
7. Following approval of the Plans and the payment by Tenant of the required
portion of the Excess Costs, if any, Landlord shall cause the Landlord Work
to be constructed substantially in accordance with the approved Plans.
Landlord shall notify Tenant of substantial completion of the Landlord
Work.
8. Landlord, provided Tenant is not in default, agrees to provide Tenant with
an allowance (the "Allowance") in an amount not to exceed Eighty-One
Thousand Seven Hundred Thirty-Five and NO/100 Dollars ($81,735.00) (i.e.,
$15.00 per rentable square foot of the Premises) to be applied toward the
cost of the Landlord Work in the Premises. Provided Tenant is not in
default, Landlord further agrees to contribute the sum of Six Hundred Fifty
Three and 88/100 Dollars ($653.88) (i.e., 12 cents per square foot of
Rentable Area of the Premises) ("Space Plan Allowance") toward the cost of
preparation by Klawitter & Associates of preliminary space plans and other
preliminary consulting costs related to Tenant's potential tenancy in the
Building. The Space Plan Allowance shall be disbursed by Landlord in
accordance with the same procedures set forth in Exhibit D for the
Allowance. In the event the Allowance shall not be sufficient to complete
the Landlord Work which shall include construction of improvements,
including walls, cabinets, shelving and the like and carpet, paint and
other finish work to prepare the Premises for Tenant's occupancy, Tenant
shall pay the Excess Costs as prescribed in Paragraph 5 above. In the
event the Allowance exceeds the cost of Landlord Work, Tenant may apply up
to ten percent (10%) of the remaining Allowance toward moving costs or the
costs of furniture or equipment. Any remaining Allowance (after Tenant's
allowed ten percent [10%]) shall accrue to the sole benefit of Landlord, it
being agreed that Tenant shall not be entitled to any credit, offset,
abatement or payment with respect thereto. Landlord shall be entitled to
deduct from the Allowance a construction management fee for Landlord's
oversight of the Landlord Work in an amount equal to four percent (4%) of
the total cost of the Landlord Work.
9. Items of work not shown in the Plans including, for example, the
installation of telephone service, equipment or furniture (including wiring
and cabling connections or installations) for which Tenant contracts
separately, and at Tenant's sole cost and expense (hereinafter "Tenant's
Work"), shall be subject to Landlord's policies and schedules and shall be
conducted in such a way as not to hinder, cause any disharmony with or
delay the Landlord Work or any work of improvement in the Building.
Tenant's suppliers, contractors, workmen and mechanics shall be subject to
approval by Landlord prior to the commencement of their work and shall be
subject to Landlord's administrative control while performing their work.
Tenant shall cause its suppliers and contractors to engage only labor that
is harmonious and compatible with other labor working in the Building. In
the event of any labor disturbance caused by persons employed by Tenant or
Tenant's contractor, Tenant shall immediately, and at Tenant's sole cost
and expense, take all actions necessary to eliminate such disturbance. If
at any time any supplier, contractor, workman or mechanic performing
Tenant's Work hinders or delays the Landlord Work or any other work of
improvement in the Building or performs any work which may or does impair
the quality, integrity or performance of any portion of the Building,
Tenant shall, at Tenant's sole cost and
D-2
<PAGE>
expense, cause such supplier, contractor, workman or mechanic to leave
the Building and remove all his tools, equipment and materials
immediately upon written notice delivered to Tenant and Tenant shall
reimburse Landlord for any repairs or corrections of the Tenant
Improvements or Tenant's Work or of any portion of the Building caused
by or resulting from the work of any supplier, contractor, workman or
mechanic with whom Tenant contracts. Landlord shall give access to
Tenant's suppliers, contractors, workmen and mechanics so as to achieve
timely completion and occupancy of the Premises.
10. This Exhibit D shall not be deemed applicable to any additional space added
to the original Premises at any time or from time to time, whether by any
options under the Lease or otherwise, or to any portion of the original
Premises or any additions to the Premises in the event of a renewal or
extension of the original Lease Term whether by any options under the Lease
or otherwise, unless expressly so provided in the Lease or any amendment or
supplement to the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Exhibit in
multiple original counterparts as of the day and year first above written.
LANDLORD: EOP-PASADENA TOWERS,
L.L.C., A DELAWARE LIMITED
LIABILITY COMPANY DOING BUSINESS AS
EOP-PASADENA TOWERS, LLC, A
DELAWARE LIMITED LIABILITY COMPANY
BY: EOP Operating Limited
Partnership, a Delaware
limited partnership, its
managing member
BY: Equity Office Properties
Trust, a Maryland real
estate investment trust,
its managing general
partner
/s/ PETER H. ADAMS
----------------------------------------
Name: Peter H. Adams
-----------------------------------
Title: Sr. Vice President
----------------------------------
TENANT: ACACIA RESEARCH
CORPORATION, a California
corporation
/s/ KATHRYN KING-VAN WIE
----------------------------------------
Name: Kathryn King-Van Wie
-----------------------------------
Title: Chief Operating Officer
----------------------------------
By: /s/ R. BRUCE STEWART
-------------------------------------
Name: R. Bruce Stewart
-----------------------------------
Title: Chief Financial Officer
----------------------------------
D-3
<PAGE>
EXHIBIT E
ADDITIONAL TERMS
This Exhibit is attached to and made a part of the Lease dated
____________________, 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") for space in the Building
located at 55 South Lake Avenue, Pasadena, California.
I. RENEWAL OPTION.
A. Tenant shall have the right to extend the Lease Term (the "Renewal
Option") for one additional period of five (5) years commencing on the
day following the Termination Date of the initial Lease Term and
ending on the fifth (5th) anniversary of the Termination Date (the
"Renewal Term"), if:
1. Landlord receives notice of exercise of the Renewal Option
("Initial Renewal Notice") not less than twelve (12) full
calendar months prior to the expiration of the initial Lease Term
and not more than fifteen (15) full calendar months prior to the
expiration of the initial Lease Term; and
2. Tenant is not in default under the Lease beyond any applicable
cure periods at the time that Tenant delivers its Initial Renewal
Notice or at the time Tenant delivers its Binding Notice (as
hereinafter defined); and
3. No part of the Premises is sublet at the time that Tenant
delivers its Initial Renewal Notice or at the time Tenant
delivers its Binding Notice other than in connection with a
Permitted Transfer; and
4. The Lease has not been assigned prior to the date that Tenant
delivers its Initial Renewal Notice or prior to the date Tenant
delivers its Binding Notice other than in connection with a
Permitted Transfer; and
5. Tenant executes and returns the Renewal Amendment (hereinafter
defined) within fifteen (15) days after its submission to Tenant.
B. The initial Base Rental rate per rentable square foot for the Premises
during the Renewal Term shall equal the Prevailing Market (hereinafter
defined) rate per rentable square foot for the Premises.
C. Tenant shall pay Additional Base Rental (i.e. Basic Costs) for the
Premises during the Renewal Term in accordance with Article IV of the
Lease.
D. Within thirty (30) days after receipt of Tenant's Initial Renewal
Notice, Landlord shall advise Tenant of the applicable Base Rental
rate for the Premises for the Renewal Term. Tenant, within fifteen
(15) days after the date on which Landlord advises Tenant of the
applicable Base Rental rate for the Renewal Term, shall either (i)
give Landlord final binding written notice ("Binding Notice") of
Tenant's exercise of its option, or (ii) if Tenant disagrees with
Landlord's determination, provide Landlord with written notice of
rejection (the "Rejection Notice"). If Tenant fails to provide
Landlord with either a Binding Notice or Rejection Notice within such
fifteen (15) day period, Tenant's Renewal Option shall be null and
void and of no further force and effect. If Tenant provides Landlord
with a Binding Notice, Landlord and Tenant shall enter into the
Renewal Amendment
E-1
<PAGE>
upon the terms and conditions set forth herein. If Tenant
provides Landlord with a Rejection Notice, Landlord and
Tenant shall work together in good faith to agree upon the
Prevailing Market Base Rental rate for the Premises during
the Renewal Term. Upon agreement Tenant shall provide
Landlord with Binding Notice and Landlord and Tenant shall
enter into the Renewal Amendment in accordance with the terms
and conditions hereof. Notwithstanding the foregoing, if
Landlord and Tenant are unable to agree upon the Prevailing
Market Base Rental rate for the Premises within thirty (30)
days after the date on which Tenant provides Landlord with a
Rejection Notice, Tenant may elect to either rescind its
intention to renew, or subject the process to binding
arbitration. Tenant's election to cause the disagreement to
be resolved by arbitration shall be deemed to be its Binding
Notice. If Tenant fails to require arbitration by notice
(the "Arbitration Notice") within three (3) days of the
expiration of the thirty (30) day period set forth above,
Tenant's right to extend the Lease shall be null and void and
of no further force and effect. If Tenant provide Landlord
with an Arbitration Notice as set forth above, Landlord and
Tenant, within ten (10) days after the date of the
Arbitration Notice, shall each simultaneously submit to the
other, in a sealed envelope, its good faith estimate of the
Prevailing Market Base Rental rate (collectively referred to
as the "Estimates"). If the higher of such Estimates is not
more than one hundred five percent (105%) of the lower of
such Estimates, then Prevailing Market Base Rental rate shall
be the average of the two (2) Estimates. If the Prevailing
Market Base Rental rate is not resolved by the exchange of
Estimates, Landlord and Tenant, within seven (7) days of the
exchange of Estimates, shall select as an arbitrator a
mutually acceptable licensed real estate broker with
experience in commercial activities, including at least ten
(10) years experience in leasing high-rise office space in
the Pasadena, California area. If the parties cannot agree
on an arbitrator, then within a second period of seven (7)
days, each shall select an independent licensed real estate
broker meeting the aforementioned criteria and within a third
period of seven (7) days, the two appointed licensed real
estate brokers shall select a third licensed real estate
broker meeting the aforementioned criteria, and the third
licensed real estate broker shall determine the Prevailing
Market Base Rental rate. If one party shall fail to make
such an appointment within said second seven (7) day period,
then the licensed real estate broker chosen by the other
party shall be the sole arbitrator. Once the arbitrator has
been selected as provided for above, then, as soon thereafter
as practicable but in any case within fourteen (14) days, the
arbitrator shall select one of the two (2) Estimates of the
Prevailing Market Base Rental rate submitted by the Landlord
and Tenant, which must be the one that is closer to the
Prevailing Market Base Rental rate as determined by the
arbitrator. The selection of the arbitrator shall be
rendered in writing to both Landlord and Tenant and shall be
final and binding upon them. If the arbitrator believes that
expert advice would materially assist him, he may retain one
or more qualified persons to provide such expert advice.
Landlord and Tenant shall each pay one half (1/2) of the
costs of the arbitrator and of any experts retained by the
arbitrator. Any fees of any counsel or experts engaged
directly by Landlord or Tenant, however, shall be borne by
the party retaining such counsel or expert.
E. If Tenant is entitled to and properly exercises its Renewal Option,
Landlord shall prepare an amendment (the "Renewal Amendment") to
reflect changes in the Base Rental, Lease Term, Termination Date and
other appropriate terms. The Renewal Amendment shall be:
1. sent to Tenant within a reasonable time after receipt of the
Binding Notice; and
2. executed by Tenant and returned to Landlord in accordance with
paragraph A.5. above.
An otherwise valid exercise of the Renewal Option shall, at Landlord's option,
be fully effective whether or not the Renewal Amendment is executed.
F. For purpose hereof, "Prevailing Market" shall mean the arms length
fair market annual rental rate per rentable square foot under renewal
leases and amendments entered into on or about the date on which the
Prevailing Market is
E-2
<PAGE>
being determined hereunder for space comparable to the
Premises in the Building. The determination of Prevailing
Market shall take into account any material economic
differences between the terms of this Lease and any
comparison lease, such as rent abatements, construction costs
and other concessions and the manner, if any, in which the
Landlord under any such lease is reimbursed for operating
expenses and taxes. The determination of Prevailing Market
shall also take into consideration any reasonably anticipated
changes in the Prevailing Market rate from the time such
Prevailing Market rate is being determined and the time such
Prevailing Market rate will become effective under this Lease.
II. VIDEO PHONE.
Landlord hereby quitclaims, transfers, and assigns to Tenant any and all
interest Landlord has in the videophone systems in the Premises, which
transfer and quitclaim is made by Landlord in the "as-is" condition and
location of said system on the date of this Lease and without any express
or implied warranties of merchantability, suitability, or fitness for a
particular purpose or any other kind with regard to said videophone system.
IN WITNESS WHEREOF, Landlord and Tenant have entered into this Exhibit
as of the date first written above.
LANDLORD: EOP-PASADENA TOWERS,
L.L.C., A DELAWARE LIMITED LIABILITY
COMPANY DOING BUSINESS AS EOP-
PASADENA TOWERS, LLC, A DELAWARE
LIMITED LIABILITY COMPANY
BY: EOP Operating Limited
Partnership, a Delaware limited
partnership, its managing member
BY: Equity Office Properties
Trust, a Maryland real
estate investment trust,
its managing general
partner
/s/ PETER H. ADAMS
----------------------------------------
Name: Peter H. Adams
-----------------------------------
Title: Sr. Vice President
----------------------------------
TENANT: ACACIA RESEARCH CORPORATION,
a California corporation
/s/ KATHRYN KING-VAN WIE
----------------------------------------
Name: Kathryn King-Van Wie
-----------------------------------
Title: Chief Operating Officer
----------------------------------
By: /s/ R. BRUCE STEWART
-------------------------------------
Name: R. Bruce Stewart
-----------------------------------
Title: Chief Financial Officer
----------------------------------
E-3
<PAGE>
EXHIBIT F
PARKING AGREEMENT
This Exhibit is attached to and made a part of the Lease dated
____________________, 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") for space in the Building
located at 55 South Lake Avenue, Pasadena, California.
1. The parties acknowledge that they are contemporaneously herewith
entering into a certain lease (the "Lease") for the Premises known as Suite
No. 650 located in the Building located at 55 South Lake Avenue, Pasadena,
California. In the event of any conflict between the Lease and this Parking
Agreement, the latter shall control.
2. Landlord hereby grants to Tenant and persons designated by Tenant a
license to use one (1) reserved parking spaces, and fifteen (15)
non-reserved, random parking spaces in the Building parking structure. The
term of such license shall commence on the Commencement Date under the Lease
and shall continue until the earlier to occur of the Termination Date under
the Lease, or termination of the Lease or Tenant's abandonment of the
Premises thereunder. During the term of this license, Tenant shall pay
Landlord the monthly charges established from time to time by Landlord for
parking in the Building parking structure, payable in advance, with Tenant's
payment of monthly Base Rental. The initial charge for such parking space(s)
is $110.00 per reserved parking space, per month, and $65.00 per
non-reserved, random parking space, per month, for all such parking spaces.
No deductions from the monthly charge shall be made for days on which the
Building parking structure is not used by Tenant. However, Tenant may reduce
the number of parking spaces hereunder, at any time, providing at least
thirty (30) days advance written notice to Landlord, accompanied by a
key-card, sticker, or other identification or entrance system provided by
Landlord or its parking contractor. Tenant may, from time to time request
additional parking spaces, and if Landlord shall provide the same, such
parking spaces shall be provided and used on a month-to-month basis, and
otherwise on the foregoing terms and provisions, and at such monthly parking
charges as Landlord shall establish from time to time.
3. Tenant shall at all times comply with all applicable ordinances,
rules, regulations, codes, laws, statutes and requirements of all federal,
state, county and municipal governmental bodies or their subdivisions
respecting the use of the Building parking structure. Landlord reserves the
right to adopt, modify and enforce reasonable rules ("Rules") governing the
use of the Building parking structure from time to time including any
key-card, sticker or other identification or entrance system and hours of
operation. The Rules set forth herein are currently in effect. Landlord may
refuse to permit any person who violates such Rules to park in the Building
parking structure, and any violation of the Rules shall subject the car to
removal from the Building parking structure.
4. Tenant may validate visitor parking by such method or methods as
Landlord may approve, at the validation rate from time to time generally
applicable to visitor parking. Unless specified to the contrary above, the
parking spaces hereunder shall be provided on an unreserved "first-come,
first-served" basis. Tenant acknowledges that Landlord has or may arrange for
the Building parking structure to be operated by an independent contractor,
not affiliated with Landlord. In such event, Tenant acknowledges that
Landlord shall have no liability for claims arising through acts or omissions
of such independent contractor, if such contractor is reputable. Landlord
shall have no liability whatsoever for any damage to building or any other
items located in the Building parking structure, nor for any personal
injuries or death arising out of any matter relating to the Building parking
structure, and in all events, Tenant agrees to look first to its insurance
carrier and to require that Tenant's employees look first to their respective
insurance carriers for payment of any losses sustained in connection
F-1
<PAGE>
with any use of the Building parking structure. Tenant hereby waives on
behalf of its insurance carriers all rights of subrogation against Landlord
or Landlord's agents. Landlord reserves the right to assign specific parking
spaces, and to reserve parking spaces for visitors, small cars, handicapped
persons and for other tenants, guests of tenants or other parties, which
assigned and/or reserved spaces may be relocated by Landlord from time to
time, and Tenant and persons designated by Tenant hereunder shall not park in
any such assigned or reserved parking spaces. Landlord also reserves the
right to close all or any portion of the Building parking structure in order
to make repairs or perform maintenance services, or to alter, modify,
re-stripe or renovate the Building parking structure, or if required by
casualty, strike, condemnation, act of God, governmental law or requirement
or other reason beyond Landlord's reasonable control. In such event,
Landlord shall refund any prepaid parking rent hereunder, prorated on a per
diem basis. If, for any other reason, Tenant or persons properly designated
by Tenant, shall be denied access to the Building parking structure, and
Tenant or such persons shall have complied with this Parking Agreement and
this Parking Agreement shall be in effect, Landlord's liability shall be
limited to such parking charges (excluding tickets for parking violations)
incurred by Tenant or such persons in utilizing alternative parking, which
amount Landlord shall pay upon presentation or documentation supporting
Tenant's claims in connection therewith.
5. If Tenant shall default under this Parking Agreement, Landlord
shall have the right to remove from the Building parking structure any
vehicles hereunder which shall have been involved or shall have been owned or
driven by parties involved in causing such default, without liability
therefore whatsoever. In addition, if Tenant shall default under this
Parking Agreement, Landlord shall have the right to cancel this Parking
Agreement on ten (10) days' written notice, unless within such ten (10) day
period, Tenant cures such default. If Tenant defaults with respect to the
same term or condition under this Parking Agreement more than three (3) times
during any twelve (12) month period, and Landlord notifies Tenant thereof
promptly after each such default, the next default of such term or condition
during the succeeding twelve (12) month period, shall, at Landlord's
election, constitute an incurable default. Such cancellation right shall be
cumulative and in addition to any other rights or remedies available to
Landlord at law or equity, or provided under the Lease (all of which rights
and remedies under the Lease are hereby incorporated herein, as though fully
set forth). Any default by Tenant under the Lease shall be a default under
this Parking Agreement, and any default under this Parking Agreement shall be
a default under the Lease.
RULES
(i) Building parking structure hours shall be 6:00 a.m. to 8:00
p.m., however, Tenant shall have access to the garage or
parking lot on a 24 hour basis, 7 days a week. Tenant shall
not store or permit its employees to store any automobiles in
the garage or on the surface parking areas without the prior
written consent of Landlord. Except for emergency repairs,
Tenant and its employees shall not perform any work on any
automobiles while located in the garage or on the Property.
If it is necessary for Tenant or its employees to leave an
automobile in the garage or on the surface parking areas
overnight, Tenant shall provide Landlord with prior notice
thereof designating the license plate number and model of such
automobile.
(ii) Cars must be parked entirely within the stall lines painted on
the floor, and only small cars may be parked in areas reserved
for small cars.
(iii) All directional signs and arrows must be observed.
(iv) The speed limit shall be 5 miles per hour.
(v) Parking spaces reserved for handicapped parking must be used
only by vehicles properly designated.
F-2
<PAGE>
(vi) Parking is prohibited in all areas not expressly designated
for parking, including without limitation:
(a) Areas not striped for parking
(b) aisles
(c) where "no parking" signs are posted
(d) ramps
(e) loading zones
(vii) Parking stickers, key cards or any other devices or forms of
identification or entry supplied by Landlord shall remain the
property of Landlord. Such devised must be displayed as
requested and may not be mutilated in any manner. The serial
number of the parking identification device may not be
obliterated. Devises are not transferable and an device in
the possession of an unauthorized holder will be void.
(viii) Monthly fees shall be payable in advance prior to the first
day of each month. Failure to do so will automatically cancel
parking privileges and a charge at the prevailing daily
parking rate will be due. No deductions or allowances from
the monthly rate will be made for days on which the Building
parking structure is not used by Tenant or its designees.
(ix) Building parking structure managers or attendants are not
authorized to make or allow any exceptions to these Rules.
(x) Every parker is required to park and lock his/her own car.
(xi) Loss or theft of parking identification, key cards or other
such devices must be reported to Landlord to any garage
manager immediately. Any parking devices reported lost or
stolen found on any authorized car will be confiscated and the
illegal holder will be subject to prosecution. Lost or stolen
devices found by Tenant or its employees must be reported to
the office of the garage immediately.
(xii) Washing, waxing, cleaning or servicing of any vehicle by the
customer and/or his agents is prohibited. Parking spaces may
be used only for parking automobiles.
(xiii) By signing this Parking Agreement, Tenant agrees to acquaint
all persons to whom Tenant assigns parking spaces with these
Rules.
6. NO LIABILITY. TENANT ACKNOWLEDGES AND AGREES THAT, TO THE
FULLEST EXTENT PERMITTED BY LAW, LANDLORD SHALL NOT BE RESPONSIBLE FOR ANY
LOSS OR DAMAGE TO TENANT OR TENANT'S PROPERTY (INCLUDING, WITHOUT
LIMITATIONS, ANY LOSS OR DAMAGE TO TENANT'S AUTOMOBILE OR THE CONTENTS
THEREOF DUE TO THEFT, VANDALISM OR ACCIDENT) ARISING FROM OR RELATED TO
TENANT'S USE OF THE BUILDING PARKING STRUCTURE OR EXERCISE OF ANY RIGHTS
UNDER THIS PARKING AGREEMENT, UNLESS SUCH LOSS OR DAMAGE RESULTS FROM
LANDLORD'S ACTIVE NEGLIGENCE OR NEGLIGENT OMISSION. THE LIMITATION ON
LANDLORD'S LIABILITY UNDER THE PRECEDING SENTENCE SHALL NOT APPLY HOWEVER
TO LOSS OR DAMAGE ARISING DIRECTLY FROM LANDLORD'S WILLFUL MISCONDUCT.
7. Release of Liability. Without limiting the provisions of
Paragraph 6 above, Tenant hereby voluntarily releases, discharges, waives
and relinquishes any and all actions or causes of action for personal
injury or property damage occurring to
F-3
<PAGE>
Tenant arising as a result of parking in the Building parking
structure, or any activities incidental thereto, wherever or however
the same may occur, and further agrees that Tenant will not prosecute
any claim for personal injury or property damage against Landlord or
any of its officers, agents, servants or employees for any said causes
of action. It is not the intention of Tenant by this instrument, to
exempt and relieve Landlord from liability for personal injury or
property damage caused by negligence.
8. The provisions of Article XXIV of the Lease are hereby
incorporated by reference as if fully recited.
Tenant acknowledges that Tenant has read the provisions of this
Parking Agreement, has been fully and completely advised of the potential
dangers incidental to parking in the Building parking structure and is
fully aware of the legal consequences of signing this instrument.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Exhibit in
multiple original counterparts as of the day and year first above written.
LANDLORD: EOP-PASADENA TOWERS,
L.L.C., A DELAWARE LIMITED
LIABILITY COMPANY DOING BUSINESS AS
EOP-PASADENA TOWERS, LLC, A
DELAWARE LIMITED LIABILITY COMPANY
BY: EOP Operating Limited
Partnership, a Delaware
limited partnership, its
managing member
BY: Equity Office Properties
Trust, a Maryland real
estate investment trust,
its managing general
partner
By: /s/ PETER H. ADAMS
----------------------------------------
Name: Peter H. Adams
-----------------------------------
Title: Sr. Vice President
----------------------------------
TENANT: ACACIA RESEARCH
CORPORATION, a California
corporation
/s/ KATHRYN KING-VAN WIE
----------------------------------------
Name: Kathryn King-Van Wie
-----------------------------------
Title: Chief Operating Officer
----------------------------------
By: /s/ R. BRUCE STEWART
-------------------------------------
Name: R. Bruce Stewart
-----------------------------------
Title: Chief Financial Officer
----------------------------------
F-4
<PAGE>
EXHIBIT G
JANITORIAL SPECIFICATIONS
MONDAY - FRIDAY
1. Sweep, dry-mop or vacuum all floors (stairwells and landings included).
2. Clean cigarette urns or cigarette disposal units.
3. Empty and wipe all ashtrays.
4. Dust and wipe clean with a treated cloth, base-boards, window sills, desk
tops, telephones and all horizontal surfaces that can be reached without a
ladder.
5. Clean, polish and sanitize all drinking fountains.
6. Sweep all steps, sidewalks and plazas.
7. Clean elevator cabs and landing doors, including floors.
8. Empty all waste containers.
9. Clean all public restrooms.
a. All cleaning performed with disinfectant-strength germicidal
detergents.
b. Surfaces of toilets and urinals will be cleaned; interiors will be
cleaned with acid bowl cleaner.
c. Wash basins, shelves, dispensers and all other washroom fixtures will
be cleaned.
d. Mirrors will be cleaned and polished.
e. Chrome and other bright work, including exposed plumbing, toilet seat
hinges, etc., will be cleaned and polished.
f. Waste receptacles are to be emptied and cleaned.
g. Lavatory floors will be swept and mopped.
h. Washroom supplies will be replenished.
10. All normal rubbish and office waste paper shall be removed from tenant
floors and carried to a designated location.
11. Sweep clean loading dock areas.
12. In building lobby, dust and wipe clean metal door knobs, kick plates,
directional signs and door saddles.
13. Dust and sanitize all telephones.
14. Low dust moldings, picture frames and convectors.
15. Clean the upper side of all glass furniture tops.
16. Spot clean interior glass in partitions and doors and both sides of
exterior entrance door glass.
G-1
<PAGE>
WEEKLY
1. Spot clean all carpeting, doors, switch plates, wall and glass areas
adjacent to doors.
2. Dust and wipe tops of all counters and file cabinets.
3. Wipe clean interior building metals.
4. Damp mop floors and/or spray buff for heavy scuffs if necessary.
5. Clean building directory glass.
6. Wipe all waste containers.
7. Wash all glass entrance doors and side panels inside and out.
8. Clean all loading dock areas.
MONTHLY
1. Dust electric fixtures and other fittings in public corridors. Replace
building standard fluorescent bulbs when necessary.
2. Shampoo common area and elevator carpeting.
3. Damp-mop building stairwells.
4. Dust corridor and lobby walls.
5. Dust all high areas not reached in nightly cleaning, including pictures
frames, charts, graphs, wall hangings, walls, partitioning, light
fixtures, window frames and overhead pipes and sprinklers.
6. When possible, sweep and hose down outside terrace space, exterior walks,
trucking areas and shipping platforms.
7. Scrub Loading dock areas.
8. Remove hard water deposits from toilet fixtures by using bowl cleaner
after normal cleaning.
9. Wash washroom partitions, tile walls, and enamel surfaces with germicidal
detergent.
EVERY THREE MONTHS
1. Dust vertical surfaces of all furnitures.
2. Scrub all resilient floor areas to maintain a highly polished surface.
3. Spot clean Tenant carpeting as required.
4. Clean all light fixtures.
5. Clean Venetian blinds.
6. Lavatory floors will be machine-scrubbed.
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<PAGE>
MISCELLANEOUS
1. Wash Tenant lobby windows once a month; wash exterior windows twice a
year; and wash interior windows once a year.
2. Sidewalks, entrances (including dock) and grounds to be kept clean of
paper, leaves and debris.
3. Put out in lobby entrances floor mats during inclement weather. Clean
floor mats as necessary.
4. Keep walls and ceilings clean.
5. As needed, but not less than weekly, remove fingerprints from doors,
frames, handles, railings, light switches and push plates.
G-3
<PAGE>
EXHIBIT B
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ALTERNATE FORM FOR LANDLORD'S CONSENT
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Consent of Landlord
The undersigned, being the landlord ("Landlord") under that certain
lease dated April 30, 1998, as amended by a First Amendment dated June 26, 2000
and a Parking Agreement dated April 30, 1998 (collectively, the "Master Lease")
between Landlord and Acacia Research Corporation ("Tenant"), hereby agrees as
follows:
1. Landlord consents to the subletting of the Premises by Tenant to
Jenkens & Gilchrist, a Texas Professional Corporation ("Subtenant") pursuant to
that certain Sublease, a copy of which is attached hereto as Exhibit "A",
subject to the terms and conditions set forth herein.
2. Landlord acknowledges that pursuant to the Sublease, Tenant's
Security Deposit (as described in the Master Lease) has been assigned to
Subtenant and that upon expiration or termination of the Master Lease, to the
extent that Tenant is entitled to a return of all or any portion thereof, it
shall be returned directly to Subtenant at the address set forth herein.
Landlord confirms that the amount of such Security Deposit is $16,876.08, and
that no part thereof has been applied by Landlord towards rent or as a result of
any default of Tenant under the Master Lease.
3. Notwithstanding the fact that no direct contractual relationship
exists between Landlord and Subtenant (except for the agreements set forth in
this Consent of Landlord) Subtenant shall have the right to exercise the
Tenant's right to extend the Term of the Master Lease (as set forth in Exhibit
"E" to the Master Lease), subject to the terms and conditions set forth therein.
If Subtenant timely exercises such right, Landlord and Tenant shall execute a
new lease on substantially the same terms and conditions as the Master Lease,
but with the term and rent as described in the said Exhibit "E". Under no
circumstances will Tenant be obligated to Landlord in any way under said new
lease, nor will Tenant be in any way liable to Landlord for any rent or other
sums resulting from the exercise of the extension option by Subtenant.
4. This Consent does not release Sublandlord of its obligations or
alter the primary liability of Sublandlord to pay the rent and perform and
comply with all of the obligations of Sublandlord to be performed (as Tenant)
under the Master Lease during the original Term of the Master Lease.
5. This Consent shall not constitute a consent to any subsequent
subletting of the Premises.
6. In the event of any default of Sublandlord (as Tenant) under the
Master Lease, Landlord may proceed directly against Sublandlord, or any one else
liable under the Master Lease, without first exhausting Landlord's remedies
against any other person or entity liable thereon to Landlord.
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<PAGE>
7. Landlord will not amend or modify the Master Lease in any respect
which adversely affects the rights of Subtenant under the Sublease, nor will
Landlord terminate the Master Lease (except as a result of a default by
Sublandlord thereunder).
8. In the event that Sublandlord shall default in its obligations under
the Master Lease, then Landlord may, at its option and without being obligated
to do so, require Subtenant to attorn to Landlord, in which event Landlord shall
undertake the obligations of Sublandlord under the Sublease from the time of the
exercise of said option to terminate the Sublease, but Landlord shall not be
liable for any prepaid rent paid by Subtenant nor shall Landlord be liable for
any defaults of the Sublandlord under the Sublease. Whether or not Landlord
requires Subtenant to so attorn, as long as Subtenant is not in default under
the Sublease, Landlord will not disturb the quite enjoyment, use or occupancy of
the Premises by Subtenant pursuant to the terms of the Sublease.
9. Landlord acknowledges that, to the best of its knowledge, no default
presently exists under the Master Lease of obligations to be performed by
Sublandlord or by Landlord, and that the Master Lease is in full force and
effect, and that a full, true and correct copy of the Master Lease is attached
to the Sublease, and that the Master Lease has not been amended or modified
except as set forth therein.
10. In the event that Sublandlord defaults under its obligations to be
performed under the Master Lease, Landlord agrees to deliver to Subtenant a copy
of any such notice of default concurrently with the delivery of any notice of
default to Sublandlord. Subtenant shall have the right to cure any default of
Sublandlord described in any such notice of default within the later of the time
to cure set forth in the Master Lease, or 30 days (10 days for a monetary
default) after service of such notice of default on Subtenant. If such default
is cured by Subtenant, then Subtenant shall have the right of reimbursement
against Sublandlord. Any notices to Subtenant shall be sent to Jenkens &
Gilchrist, 1445 Ross Avenue, Suite 3200, Dallas, Texas 75202-2799, Attn: Roger
L. Hayse.
Landlord acknowledges that Subtenant is relying on the provisions of
this Consent of Landlord in entering into the Sublease and that without such
consent, Subtenant would not enter into the Sublease.
Dated: November ___, 2001
EOP - Pasadena Towers, L.L.C.,
a Delaware limited liability company
By:
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Its:
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