\n34. QUITCLAIM…………………………………………………………………………………..27<\/p>\n35. MODIFICATIONS FOR LENDER……………………………………………………………………..27<\/p>\n
36. WARRANTIES OF TENANT…………………………………………………………………………27<\/p>\n
37. COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT…………………………………………………27<\/p>\n
38. BROKERAGE COMMISSION…………………………………………………………………………28<\/p>\n
39. QUIET ENJOYMENT……………………………………………………………………………..28<\/p>\n
40. LANDLORD’S ABILITY TO PERFORM TENANT’S UNPERFORMED OBLIGATIONS……………………………………28<\/p>\n
41. SECURITY DEPOSIT…………………………………………………………………………….28<\/p>\n
42. SATELLITE DISH………………………………………………………………………………29<\/p>\n
<\/c><\/s><\/table>\n
4<\/p>\n
LEASE AGREEMENT<\/p>\n
DATE: This Lease is made and entered into as of the Lease Date set forth on
\n Page 1. The Basic Lease Information set forth on Page 1 and this Lease
\n are and shall be construed as a single instrument.<\/p>\n
1. PREMISES<\/p>\n
Landlord hereby leases the Premises to Tenant upon the terms and
\nconditions contained herein. Landlord hereby grants to Tenant a license for the
\nright to use, on a nonexclusive basis, parking areas and ancillary facilities
\nlocated within the Common Areas of the Park, subject to the terms of this Lease.
\nLandlord and Tenant hereby agree that for purposes of this Lease, as of the
\nLease Date, the rentable square footage area of the Premises, the Building, the
\nLot and the Park shall be deemed to be the number of rentable square feet as set
\nforth in the Basic Lease Information on Page 1. Tenant hereby acknowledges that
\nthe rentable square footage of the Premises may include a proportionate share of
\ncertain areas used in common by all occupants of the Building and\/or the Park
\n(for example an electrical room or telephone room). Tenant further agrees that
\nthe number of rentable square feet of the Building, the Lot and the Park may
\nsubsequently change after the Lease Date commensurate with any physical
\nmodifications to any of the foregoing by Landlord resulting from condemnation,
\ncasualty, or rehabilitation of the Building, the Lot, or the Park, and Tenant’s
\nShare shall accordingly change.<\/p>\n
2. ADJUSTMENT OF COMMENCEMENT DATE; CONDITION OF THE PREMISES<\/p>\n
2.1 If Landlord cannot deliver possession of the Premises on the
\nCommencement Date, Landlord shall not be subject to any liability nor shall the
\nvalidity of the Lease be affected; provided, the Lease Term and the obligation
\nto pay Rent shall commence on the date possession is tendered and the Expiration
\nDate and the dates for the adjustments to Base Rent shall be extended
\ncommensurately. In the event the commencement date and\/or the expiration date of
\nthis Lease is other than the Commencement Date and\/or Expiration Date specified
\nin the Basic Lease Information, as the case may be, Landlord and Tenant shall
\nexecute a written amendment to this Lease, substantially in the form of EXHIBIT
\nF hereto, wherein the parties shall specify the actual commencement date,
\nexpiration date, the date on which Tenant is to commence paying Rent, and the
\ndates for the adjustments to Base Rent. The word “Term” whenever used herein
\nrefers to the initial term of this Lease and any extension thereof. By taking
\npossession of the Premises, Tenant shall be deemed to have accepted the Premises
\nin good condition and state of repair; however, Landlord shall deliver the
\nPremises with the existing building operating systems including electrical,
\nmechanical and plumbing systems in good working condition as of the Commencement
\nDate of the Lease and Tenant shall have a review period of thirty (30) days to
\nconfirm such condition. Tenant hereby acknowledges and agrees that neither
\nLandlord nor Landlord’s agents or representatives has made any representations
\nor warranties as to the suitability, safety or fitness of the Premises for the
\nconduct of Tenant’s business, Tenant’s intended use of the Premises or for any
\nother purpose.<\/p>\n
2.2 Landlord shall permit Tenant to access the Premises for the
\nsole purposes of installing telephone and computer wiring and systems, and
\ninstalling cubicles on thirty (30) days prior to Substantial Completion of the
\nTenant Improvements (prior to the Commencement Date) and such access shall be at
\nTenant’s sole risk and subject to all the provisions of this Lease, including,
\nbut not limited to, the requirement to pay the Security Deposit and deliver to
\nLandlord the Letter of Credit, and to obtain the insurance required pursuant to
\nthis Lease and to deliver insurance certificates as required herein. In addition
\nto the foregoing, Landlord shall have the right to impose such additional
\nreasonable conditions on Tenant’s early entry as Landlord shall deem
\nappropriate. Tenant shall not be responsible for paying Base Rent or Tenant’s
\nShare of Operating Expenses, Tax Expenses, Common Area Utility Costs, or Utility
\nExpenses during such early access period. However, if; at any time, Tenant is in
\ndefault of any term, condition or provision of this Lease, any such waiver by
\nLandlord of Tenant’s requirement to pay rental payments shall be null and void
\nand Tenant shall immediately pay to Landlord all rental payments so waived by
\nLandlord.<\/p>\n
3. RENT<\/p>\n
On the date that Tenant executes this Lease, Tenant shall deliver to
\nLandlord the original executed Lease, the Base Rent (which shall be applied
\nagainst the Rent payable for the first month Tenant is required to pay Base
\nRent), the Security Deposit, and all insurance certificates evidencing the
\ninsurance required to be obtained by Tenant under Section 12 of this Lease.
\nTenant agrees to pay Landlord, without prior notice or demand, or abatement,
\noffset, deduction or claim, the Base Rent specified in the Basic Lease
\nInformation, payable in advance at Landlord’s address specified in the Basic
\nLease Information on the Commencement Date and thereafter on the first (1st) day
\nof each month<\/p>\n
5<\/p>\n
throughout the balance of the Term of the Lease. In addition to the Base Rent
\nset forth in the Basic Lease Information, Tenant shall pay Landlord in advance
\non the Commencement Date and thereafter on the first (1st) day of each month
\nthroughout the balance of the Term of this Lease, as Additional Rent, Tenant’s
\nShare of Operating Expenses, Tax Expenses, Common Area Utility Costs, and
\nUtility Expenses. Tenant shall also pay to Landlord as Additional Rent
\nhereunder, within ten (10) days after receipt of Landlord’s written demand
\ntherefor, any and all costs and expenses incurred by Landlord to enforce the
\nprovisions of this Lease, including, but not limited to, costs associated with
\nthe delivery of notices, delivery and recordation of notice(s) of default,
\nattorneys’ fees, expert fees, court costs and filing fees (collectively, the
\n“Enforcement Expenses”). The term “Rent” whenever used herein refers to the
\naggregate of all these amounts. If Landlord permits Tenant to occupy the
\nPremises without requiring Tenant to pay rental payments for a period of time,
\nthe waiver of the requirement to pay rental payments shall only apply to waiver
\nof the Base Rent and Tenant shall otherwise perform all other obligations of
\nTenant required hereunder, except Tenant shall not be responsible for paying
\nTenant’s Share of Operating Expenses, Tax Expenses, Common Area Utility Costs,
\nor Utility Expenses during the early access period described in Section 2.2
\nabove. The Rent for any fractional part of a calendar month at the commencement
\nor termination of the Lease term shall be a prorated amount of the Rent for a
\nfull calendar month based upon a thirty (30) day month. The prorated Rent shall
\nbe paid on the Commencement Date and the first day of the calendar month in
\nwhich the date of termination occurs, as the case may be.<\/p>\n
4. COLLATERAL FOR PERFORMANCE OF LEASE OBLIGATIONS<\/p>\n
Prior to Tenant’s early access under Section 2.2, Tenant shall deliver
\nto Landlord, as collateral for the full and faithful performance by Tenant of
\nall of its obligations under this Lease and for all losses and damages Landlord
\nmay suffer as a result of any default by Tenant under this Lease, an irrevocable
\nand unconditional negotiable letter of credit, in the form and containing the
\nterms required herein, payable in the City of San Diego, California running in
\nfavor of Landlord issued by a solvent bank under the supervision of the
\nSuperintendent of Banks of the State of California, or a National Banking
\nAssociation, in the original amount of Forty-nine Thousand Three Hundred Dollars
\n($49,300.00) (the “Letter of Credit”); provided, however, the amount of the
\nLetter of Credit shall be increased by Tenant within fifteen (15) days following
\nLandlord’s written demand therefore by an amount equal to the portion of Excess
\nTenant Improvement Costs which are amortized over the initial term of the Lease
\npursuant to Section 10 of Exhibit B to this Lease (and, thereafter, the term
\n“Letter of Credit” as used in this Lease shall mean and refer to the Letter of
\nCredit as increased by such principal amount). The Letter of Credit shall be (a)
\nat sight and irrevocable, (1)) except as set forth in this Section 4, maintained
\nin effect, whether through replacement, renewal or extension, for the entire
\nLease Term (the “Letter of Credit Expiration Date”) and Tenant shall deliver a
\nnew Letter of Credit or certificate of renewal or extension to Landlord at least
\nthirty (30) days prior to the expiration of the Letter of Credit, without any
\naction whatsoever on the part of Landlord, (c) subject to the Uniform Customs
\nand Practices for Documentary Credits (1993-Rev) International Chamber of
\nCommerce Publication #500, (d) acceptable to Landlord in its sole discretion,
\n(e) fully assignable by Landlord by amendment thereto in accordance with
\ncustomary letter of credit practice, and (f) permit partial draws. In addition
\nto the foregoing, the form and terms of the Letter of Credit (and the bank
\nissuing the same) shall be acceptable to Landlord, in Landlord’s reasonable
\ndiscretion, and shall provide, among other things, in effect that: (1) Landlord,
\nor its then managing agent, shall have the right to draw down an amount up to
\nthe face amount of the Letter of Credit upon the presentation to the issuing
\nbank of Landlord’s (or Landlord’s then managing agent’s) statement that such (A)
\namount is due to Landlord under the terms and conditions of this Lease, it being
\nunderstood that if Landlord or its managing agent be a corporation, partnership
\nor other entity, then such statement shall be signed by an officer (if a
\ncorporation), a general partner (if a partnership), or any authorized party (if
\nanother entity), and (B) an event of default has occurred under this Lease and
\nall applicable notice and cure periods have elapsed; (2) the Letter of Credit
\nwill be honored by the issuing bank without inquiry as to the accuracy thereof
\nand regardless of whether the Tenant disputes the content of such statement; and
\n(3) in the event of a transfer of Landlord’s interest in the Building, Landlord
\nshall transfer the Letter of Credit, in whole or in part (or cause a substitute
\nletter of credit to be delivered, as applicable), to the transferee and
\nthereupon the Landlord shall, without any further agreement between the parties,
\nbe released by Tenant from all liability therefor, and it is agreed that the
\nprovisions hereof shall apply to every transfer or assignment of the whole or
\nany portion of said Letter of Credit to a new Landlord. If, as a result of any
\nsuch application of all or any part of the Letter of Credit, the amount of the
\nLetter of Credit shall be less than Forty-nine Thousand Three Hundred Dollars
\n($49,300.00), Tenant shall within five (5) days thereafter provide Landlord with
\nadditional letter(s) of credit in an amount equal to the deficiency (or a
\nreplacement letter of credit in the total amount of Forty-nine Thousand Three
\nHundred Dollars ($49,300.00) and each such additional (or replacement) letter of
\ncredit shall comply with all of the provisions of this Section 4, and if Tenant
\nfails to do so, the same shall constitute an incurable default by Tenant. Tenant
\nfurther covenants and warrants that it will neither assign nor encumber the
\nLetter of Credit or any part thereof and that neither Landlord nor its
\nsuccessors or assigns will be b any such assignment, encumbrance, attempted
\nassignment or attempted encumbrance. Without limiting the generality of the
\nforegoing, if the Letter of Credit expires earlier than the Letter of Credit
\nExpiration Date Landlord will accept a renewal thereof or substitute letter of
\ncredit (such renewal or substitute letter of credit to be in effect not later
\nthan twenty (20) days prior to the expiration thereof), which shall be
\nirrevocable and automatically renewable as above provided through the Letter of
\nCredit Expiration Date upon the same terms as the expiring letter of credit or
\nsuch other terms as may be acceptable to Landlord<\/p>\n
6<\/p>\n
in its reasonable discretion. However, if the Letter of Credit is not timely
\nrenewed or a substitute letter of credit is not timely received, or if Tenant
\nfails to maintain the Letter of Credit in the amount and terms set forth in this
\nSection 4, Landlord shall have the right to present such Letter of Credit to the
\nbank in accordance with the terms of this Section 4, and the entire sum
\nevidenced thereby shall be paid to and held by Landlord as collateral for
\nperformance of all of Tenant’s obligations under this Lease and for all losses
\nand damages Landlord may suffer as a result of any default by Tenant under this
\nLease. If there shall occur a default under this Lease as set forth in Section
\n20 6f this Lease, Landlord may, but without obligation to do so, draw upon the
\nLetter of Credit, in part or in whole, to cure any default of Tenant and\/or to
\ncompensate Landlord for any and all damages of any kind or nature sustained or
\nwhich may be sustained by Landlord resulting from Tenant’s default. Tenant
\nagrees not to interfere in any way with payment to Landlord of the proceeds of
\nthe Letter of Credit, either prior to or following a “draw” by Landlord of any
\nportion of the Letter of Credit, regardless of whether any dispute exists
\nbetween Tenant and Landlord as to Landlord’s right to draw from the Letter of
\nCredit. No condition or term of this Lease shall be deemed to render the Letter
\nof Credit conditional to justify the issuer of the Letter of Credit in failing
\nto honor a drawing upon such Letter of Credit in a timely manner. Landlord and
\nTenant acknowledge and agree that in no event or circumstance shall the Letter
\nof Credit or any renewal thereof or substitute therefor be (i) deemed to be or
\ntreated as a “security deposit” within the meaning of California Civil Code
\nSection 1950.7, (ii) subject to the terms of such Section 1950.7, or (iii)
\nintended to serve as a “security deposit” within the meaning of such Section
\n1950.7. The parties hereto (x) recite that the Letter of Credit is not intended
\nto serve as a security deposit and such Section 1950.7 and any and all other
\nlaws, rules and regulations applicable to security deposits in the commercial
\ncontext (“Security Deposit Laws”) shall have no applicability or relevancy to
\nthe Letter of Credit and (y) waive any and all rights, duties and obligations
\neither party may now or, in the future, will have relating to or arising from
\nthe Security Deposit Laws. After the expiration of six (6) months following the
\nCommencement Date and after the expiration of each six (6) month period
\nthereafter, provided Tenant is not then in default under this Lease, Tenant
\nshall have the right to reduce the amount of the Letter of Credit by an amount
\nequal to Nine Thousand Eight Hundred Sixty Dollars ($9,860.00), if and when
\nTenant provides to Landlord financial statements in the form required by Section
\n30 of this Lease which demonstrate, over the previous three (3) calendar
\nquarters, that the quotient of the following, on a percentage basis, equals or
\nexceeds eight percent (8%): Tenant’s EBITDA (Earnings Before Interest, Taxes and
\nDepreciation), divided by Tenant’s gross revenues.<\/p>\n
5. TENANT IMPROVEMENTS<\/p>\n
Tenant hereby accepts the Premises as suitable for Tenant’s intended
\nuse and as being in good operating order, condition and repair, “AS IS”, except
\nas specified in Exhibit B attached hereto. Landlord or Tenant, as the case may
\nbe, shall install and construct the Tenant Improvements (as such term is defined
\nin Exhibit B hereto) in accordance with the terms, conditions, criteria and
\nprovisions set forth in Exhibit B. Landlord and Tenant hereby agree to and shall
\nbe bound by the terms, conditions and provisions of Exhibit B. Tenant
\nacknowledges and agrees that neither Landlord nor any of Landlord’s agents,
\nrepresentatives or employees has made any representations as to the suitability,
\nfitness or condition of the Premises for the conduct of Tenant’s business or for
\nany other purpose, including without limitation, any storage incidental thereto.
\nAny exception to the foregoing provisions must be made by express written
\nagreement by both parties.<\/p>\n
6. ADDITIONAL RENT<\/p>\n
It is intended by Landlord and Tenant that this Lease be a “triple net
\nlease.” The costs and expenses described in this Section 6 and all other sums,
\ncharges, costs and expenses specified in this Lease other than Base Rent are to
\nbe paid by Tenant to Landlord as additional rent (collectively, “Additional
\nRent”).<\/p>\n
6.1 OPERATING EXPENSES: In addition to the Base Rent set forth in
\nSection 3, Tenant shall pay Tenant’s Share, which is specified in the Basic
\nLease Information, of all Operating Expenses as Additional Rent. The term
\n“Operating Expenses” as used herein shall mean the total amounts paid or payable
\nby Landlord in connection with the ownership, maintenance, repair and operation
\nof the Premises, the Building and the Lot, and where applicable, of the Park
\nreferred to in the Basic Lease Information. The amount of Tenant’s Share of
\nOperating Expenses shall be reviewed from time to time by Landlord and shall be
\nsubject to modification by Landlord if there is a change in the rentable square
\nfootage of the Premises, the Building and\/or the Park. These Operating Expenses
\nmay include, but are not limited to:<\/p>\n
6.1.1 Landlord’s cost of repairs to, and maintenance of;
\nthe roof; the roof membrane and the exterior walls of the Building;<\/p>\n
6.1.2 Landlord’s cost of maintaining the outside paved
\narea, landscaping and other common areas for the Park. The term “Common Areas”
\nshall mean all areas and facilities within the Park exclusive of the Premises
\nand the other portions of the Park leasable exclusively to other tenants. The<\/p>\n
7<\/p>\n
Common Areas include, but are not limited to, interior lobbies, mezzanines,
\nparking areas, access and perimeter roads, sidewalks, landscaped areas and
\nsimilar areas and facilities;<\/p>\n
6.1.3 Landlord’s annual cost of insurance insuring against
\nfire and extended coverage (including, if Landlord elects, “all risk” or
\n“special purpose” coverage) and all other insurance, including, but not limited
\nto, earthquake, flood and\/or surface water endorsements for the Building, the
\nLot and the Park (including the Common Areas), rental value insurance against
\nloss of Rent in an amount equal to the amount of Rent for a period of at least
\nsix (6) months commencing on the date of loss, and subject to the provisions of
\nSection 27 below, any deductible;<\/p>\n
6.1.4 Landlord’s cost of: (i) modifications and\/or new
\nimprovements to the Building, the Common Areas and\/or the Park occasioned by any
\nrules, laws or regulations effective subsequent to the date on which the
\nBuilding was originally constructed, but excluding Landlord’s cost of
\nmodifications and\/or new improvements to the Building, the Common Areas and\/or
\nthe Park required by the Americans with Disabilities Act as in effect as of the
\ndate of the Lease; (ii) reasonably necessary replacement improvements to the
\nBuilding, the Common Areas and the Park after the Commencement Date; and (iii)
\nnew improvements to the Building, the Common Areas and\/or the Park that reduce
\noperating costs or improve life\/safety conditions, all as reasonably determined
\nby Landlord, in its sole discretion; provided, however, if any of the foregoing
\nare in the nature of capital improvements, then the cost of such capital
\nimprovements shall be amortized on a straight-line basis over a reasonable
\nperiod, which shall not be less than the lesser of fifteen (15) years or the
\nreasonable estimated useful life of such modifications, new improvements or
\nreplacement improvements in question (at an interest rate as reasonable
\ndetermined by Landlord), and Tenant shall pay Tenant’s Share of the monthly
\namortized portion of such costs (including interest charges) as part of the
\nOperating Expenses herein;<\/p>\n
6.1.5 If Landlord reasonably elects to so procure,
\nLandlord’s cost of preventative maintenance, and repair contracts including, but
\nnot limited to, contracts for elevator systems and heating, ventilation and air
\nconditioning systems, lifts for disabled persons as required by law, and trash
\nor refuse collection;<\/p>\n
6.1.6 Landlord’s cost of security and fire protection
\nservices for the Building and\/or the Park, as the case may be, if in Landlord’s
\nsole discretion such services are provided;<\/p>\n
6.1.7 Intentionally Omitted;<\/p>\n
6.1.8 Intentionally Omitted;<\/p>\n
6.1.9 Landlord’s cost of supplies, equipment, rental
\nequipment and other similar items used in the operation and\/or maintenance of
\nthe Park;<\/p>\n
6.1.10 Landlord’s cost for the repairs and maintenance items
\nset forth in Section 11.2 below;<\/p>\n
6.1.11 Landlord’s cost for the management and administration
\nof the Premises, the Building and\/or Park or any part thereof, including,
\nwithout limitation, a property management fee, accounting, auditing, billing,
\npostage, salaries and benefits for clerical and supervisory employees, whether
\nlocated on the Park or off-site, payroll taxes and legal and accounting costs
\nand all fees, licenses and permits related to the ownership, operation and
\nmanagement of the Park. Landlord covenants that said costs shall be allocated
\nuniformly throughout the Park, and shall not be in excess of those costs charged
\nby unaffiliated third-party management companies in the San Diego area;<\/p>\n
6.1.12 In the event Landlord elects, at Landlord’s sole
\ndiscretion, to employ (or contract with a vendor for) a concierge for the
\nBuilding (which concierge shall perform such services for the Building as
\nLandlord shall reasonably request of such concierge), Landlord’s cost of
\nproviding such concierge, including without limitation, vendor charges, salary
\ncosts, employment taxes, health insurance costs and other costs typically
\nincurred in the employment of personnel; and<\/p>\n
6.1.13 Despite anything to the contrary in this Lease, the
\nfollowing items shall be excluded from the calculation of Operating Expenses,
\nand Tenant shall not have a responsibility for any portion of the cost thereof:<\/p>\n
8<\/p>\n
(a) Cost of repairs or other work occasioned by
\nthe exercise eminent domain;<\/p>\n
(b) Leasing commissions, attorneys’ fees, costs
\nand disbursements and other expenses which are incurred in connection with
\nnegotiations or disputes with tenants, other occupants or prospective tenants;<\/p>\n
(c) Cost of renovating or otherwise improving or
\ndecorating, painting or redecorating leased space for tenants or other occupants
\nor vacant tenant space, other than ordinary maintenance provided to all tenants,
\nexcept in all Common Areas;<\/p>\n
(d) If applicable, Landlord’s costs of
\nelectricity and other services sold separately to tenants for which Landlord is
\nentitled to be reimbursed by such tenants as an additional charge over and above
\nthe Base Rent and Operating Expenses or other rental adjustments payable under
\nthe Lease with such tenant, and domestic water submetered and separately billed
\nto tenants;<\/p>\n
(e) Depreciation;<\/p>\n
(f) Costs incurred due to violation by Landlord
\nor any tenant of the terms and conditions of any lease;<\/p>\n
(g) Overhead and profit paid to subsidiaries or
\naffiliates of Landlord for services on or to the Building and\/or Premises, to
\nthe extent only that the costs of such services exceed competitive costs for
\nsuch services were they not so rendered by a subsidiary or affiliate;<\/p>\n
(h) Ground rents, principal payments, or any
\ninterest expense on any loans secured by mortgages placed upon the Building and
\nLot (or a leasehold interest therein);<\/p>\n
(i) Any compensation paid to clerks, attendants
\nor other persons in commercial concessions operated by Landlord, except to the
\nextent that such compensation exceeds the revenue earned from such commercial
\nconcession. In such event, the revenue earned from such commercial concession
\nshall first be applied to the cost of such compensation;<\/p>\n
(j) Any particular items and services for which
\nTenant otherwise reimburses Landlord by direct payment over and above Base Rent
\nand Operating Expenses;<\/p>\n
(k) Advertising and promotional expenditures;<\/p>\n
(l) Any fines or penalties incurred due to
\nviolations by Landlord of any governmental law, ordinance, rule or authority;<\/p>\n
(m) Any expense for which Landlord is
\ncompensated through proceeds of insurance; and<\/p>\n
(n) Expenses in connection with services or
\nother benefits of a type which Tenant is not entitled to receive under the Lease
\nbut which are provided to another tenant or occupant<\/p>\n
6.2 TAX EXPENSES: In addition to the Base Rent set forth in
\nSection 3, Tenant shall pay its share, which is specified in the Basic Lease
\nInformation, of all real property taxes applicable to the land and improvements
\nincluded within the Lot on which the Premises are situated and one hundred
\npercent (100%) of all personal property taxes now or hereafter assessed or
\nlevied against the Premises or Tenant’s personal property. The amount of
\nTenant’s Share of Tax Expenses shall be reviewed from time to time by Landlord
\nand shall be subject to modification by Landlord if there is a change in the
\nrentable square footage of the Premises, the Building and\/or the Park. Tenant
\nshall also pay one hundred percent (100%) of any increase in real property taxes
\nattributable, in Landlord’s reasonable discretion, to any and all alterations,
\nTenant Improvements or other improvements of any kind, which are above standard
\nimprovements customarily installed for similar buildings located within the
\nBuilding or the Park (as applicable), whatsoever placed in, on or about the
\nPremises for the benefit of; at the request of; or by Tenant. The term “Tax
\nExpenses” shall mean and include, without limitation, any form of tax and
\nassessment (general, special, supplemental, ordinary or extraordinary),
\ncommercial rental tax, payments under any improvement bond or bonds, license
\nfees, license tax, business license fee, rental tax, transaction tax, levy, or
\npenalty imposed by authority having the direct or indirect power of tax
\n(including any city, county, state or federal government, or any school,
\nagricultural, lighting, drainage or other improvement district thereof) as
\nagainst any legal or equitable interest of Landlord in the Premises, the
\nBuilding, the Lot or the Park, as against Landlord’s right to rent, or as
\nagainst Landlord’s business of leasing the Premises or the occupancy of Tenant
\nor any other tax, fee, or excise, however described, including, but not limited
\nto, any value added tax, or any tax imposed in substitution (partially or
\ntotally) of any tax previously included within the definition of real property
\ntaxes, or any additional tax the nature of which was previously included within
\nthe definition of real property taxes. The term “Tax Expenses”<\/p>\n
9<\/p>\n
shall not include any franchise, estate, inheritance, net income, or excess
\nprofits tax imposed upon Landlord.<\/p>\n
6.3 PAYMENT OF EXPENSES: Landlord shall reasonably estimate
\nTenant’s Share of the Operating Expenses and Tax Expenses for the calendar year
\nin which the Lease commences. Commencing on the Commencement Date, one-twelfth
\n(1\/12th) of this estimated amount shall be paid by Tenant to Landlord, as
\nAdditional Rent, and thereafter on the first (1st) day of each month throughout
\nthe remaining months of such calendar year. Thereafter, Landlord may estimate
\nsuch expenses as of the beginning of each calendar year during the Term of this
\nLease and Tenant shall pay one-twelfth (1\/12th) of such estimated amount as
\nAdditional Rent hereunder on the first (1st) day of each month during such
\ncalendar year and for each ensuing calendar year throughout the Term of this
\nLease. Tenant’s obligation to pay Tenant’s Share of Operating Expenses and Tax
\nExpenses shall survive the expiration or earlier termination of this Lease.<\/p>\n
6.4 ANNUAL RECONCILIATION: By June 30th of each calendar year, or
\nas soon thereafter as reasonably possible, Landlord shall furnish Tenant with an
\naccounting of actual Operating Expenses and Tax Expenses. Within thirty (30)
\ndays of Landlord’s delivery of such accounting, Tenant shall pay to Landlord the
\namount of any underpayment. Notwithstanding the foregoing, failure by Landlord
\nto give such accounting by such date shall not constitute a waiver by Landlord
\nof its right to collect any of Tenant’s underpayment at any time. Landlord shall
\ncredit the amount of any overpayment by Tenant toward the next estimated monthly
\ninstallment(s) falling due, or where the Term of the Lease has expired, refund
\nthe amount of overpayment to Tenant together with such accounting. If the Term
\nof the Lease expires prior to the annual reconciliation of expenses Landlord
\nshall have the right to reasonably estimate Tenant’s Share of such expenses, and
\nif Landlord determines that an underpayment is due, Tenant hereby agrees that
\nLandlord shall be entitled to deduct such underpayment from Tenant’s Security
\nDeposit, provided Landlord delivers such accounting described herein. If
\nLandlord reasonably determines that an overpayment has been made by Tenant,
\nLandlord shall refund said overpayment to Tenant as soon as practicable
\nthereafter. Notwithstanding the foregoing, failure of Landlord to accurately
\nestimate Tenant’s Share of such expenses or to otherwise perform such
\nreconciliation of expenses, including without limitation, Landlord’s failure to
\ndeduct any portion of any underpayment from Tenant’s Security Deposit, shall not
\nconstitute a waiver of Landlord’s right to collect any of Tenant’s underpayment
\nat any time during the Term of the Lease or at any time after the expiration or
\nearlier termination of this Lease.<\/p>\n
6.5 AUDIT: After delivery to Landlord of at least twenty (20) days
\nprior written notice, Tenant, at its sole cost and expense through any
\naccountant designated by it, shall have the right to examine and\/or audit the
\nbooks and records evidencing such costs and expenses for the previous one (1)
\ncalendar year, during Landlord’s reasonable business hours but not more
\nfrequently than once during any calendar year. Any such accounting firm
\ndesignated by Tenant may not be compensated on a contingency fee basis. The
\nresults of any such audit (and any negotiations between the parties related
\nthereto) shall be maintained strictly confidential by Tenant and its accounting
\nfirm and shall not be disclosed, published or otherwise disseminated to any
\nother party other than to Landlord and its authorized agents. Landlord and
\nTenant shall use their best efforts to cooperate in such negotiations and to
\npromptly resolve any discrepancies between Landlord and Tenant in the accounting
\nof such costs and expenses.<\/p>\n
6.6 AFTER-HOURS HVAC: Landlord shall install at its expense
\nequipment to enable Tenant to activate and control heating, air conditioning
\nand\/or ventilation to the Premises during all hours which are non-building
\nstandard hours for operation (“After-Hours HVAC”). Heating, air conditioning
\nand\/or ventilation utilized at anytime outside of the hours of 7:00 a.m. to 6:00
\np.m. on Monday through Friday and 8:00 a.m. to 1:00 p.m. on Saturday (including
\nlegal holidays) shall be considered After-Hours HVAC use. Tenant shall pay to
\nLandlord within ten (10) days of Landlord’s written demand therefor, as
\nadditional rent, (i) Landlord’s actual cost of supplying such After-Hours HVAC,
\nplus (ii) an amount reasonably determined by Landlord to be the depreciation and
\nordinary wear-and-tear of the HVAC system attributable to Tenant’s additional
\nusage of such system, plus an amount equal to fifteen percent (15%) of (i) and
\n(ii) above as Landlord’s administrative fee. As of the date of this Lease, the
\ncost for After-Hours HVAC use is estimated to be $15.18 per hour, but is subject
\nto change as reasonably determined by Landlord.<\/p>\n
7. UTILITIES<\/p>\n
Utility Expenses, Common Area Utility Costs and all other sums or
\ncharges set forth in this Section 7 are considered part of Additional Rent. In
\naddition to the Base Rent set forth in Section 3 hereof, Tenant shall pay the
\ncost of all water, sewer use, sewer discharge fees and sewer connection fees,
\ngas, heat, electricity, refuse pickup, janitorial service, telephone and other
\nutilities billed or metered separately to the Premises and\/or Tenant. Tenant
\nshall also pay Tenant’s Share (as set forth in the Basic Lease Information) of
\nany assessments or charges for utility or similar purposes included within any
\ntax bill for the Lot on which the Premises are situated, including, without
\nlimitation, entitlement fees, allocation unit fees, and\/or any similar fees or
\ncharges, and any penalties related thereto. For any such<\/p>\n
10<\/p>\n
utility fees or use charges that are not billed or metered separately to Tenant,
\nincluding without limitation, electricity serving the Premises and water and
\nrefuse pick up charges, Tenant shall pay to Landlord, as Additional Rent,
\nwithout prior notice or demand, on the Commencement Date and thereafter on the
\nfirst (1st) day of each month throughout the balance of the Term of this Lease
\nthe amount which is attributable to Tenant’s use of the utilities or similar
\nservices, as reasonably estimated and determined by Landlord based upon factors
\nsuch as size of the Premises in relation to the size of the Building and\/or Park
\nand intensity of use of such utilities by Tenant such that Tenant shall pay the
\nportion of such charges reasonably consistent with Tenant’s use of such
\nutilities and similar services (“Utility Expenses”). If Tenant disputes any such
\nestimate or determination, then Tenant shall either pay the estimated amount or
\ncause the Premises to be separately metered at Tenant’s sole expense. In
\naddition, Tenant shall pay to Landlord Tenant’s Share of any Common Area utility
\ncosts, fees, charges or expenses (“Common Area Utility Costs”). Tenant shall pay
\nto Landlord one-twelfth (1\/12th) of the estimated amount of Tenant’s Share of
\nthe Common Area Utility Costs on the Commencement Date and thereafter on the
\nfirst (1st) day of each month throughout the balance of the Term of this Lease
\nand any reconciliation thereof shall be substantially in the same manner as
\nspecified in Section 6.4 above. The amount of Tenant’s Share of Common Area
\nUtility Costs shall be reviewed from time to time by Landlord and shall be
\nsubject to modification by Landlord if there is a change in the rentable square
\nfootage of the Premises, the Building and\/or the Park. Tenant acknowledges that
\nthe Premises may become subject to the rationing of utility services or
\nrestrictions on utility use as required by a public utility company,
\ngovernmental agency or other similar entity having jurisdiction thereof.
\nNotwithstanding any such rationing or restrictions on use of any such utility
\nservices, Tenant acknowledges and agrees that its tenancy and occupancy
\nhereunder shall be subject to such rationing restrictions as may be imposed
\nupon. Landlord, Tenant, the Premises, the Building or the Park, and Tenant shall
\nin no event be excused or relieved from any covenant or obligation to be kept or
\nperformed by Tenant by reason of any such rationing or restrictions. Tenant
\nfurther agrees to timely and faithfully pay, prior to delinquency, any amount,
\ntax, charge, surcharge, assessment or imposition levied, assessed or imposed
\nupon the Premises, or Tenant’s use and occupancy thereof. Notwithstanding
\nanything to the contrary contained herein, if permitted by applicable Laws,
\nLandlord shall have the right at any time and from time to time during the Term
\nof this Lease to either contract for service from a different company or
\ncompanies (each such company shall be referred to herein as an “Alternate
\nService Provider”) other than the company or companies presently providing
\nelectricity service for the Building or the Park (the “Electric Service
\nProvider”) or continue to contract for service from the Electric Service
\nProvider, at Landlord’s sole discretion. Tenant hereby agrees to cooperate with
\nLandlord, the Electric Service Provider, and any Alternate Service Provider at
\nall times and, as reasonably necessary, shall allow Landlord, the Electric
\nService Provider, and any Alternate Service Provider reasonable access to the
\nBuilding’s electric lines, feeders, risers, wiring, and any other machinery
\nwithin the Premises. In the event any of the utility services essential to the
\nuse and occupancy of the Premises shall be interrupted (such that any of such
\nservices shall not be available for Tenant’s use and occupancy of the Premises)
\nfor a period in excess of thirty (30) days, such interruption shall not have
\nbeen caused in whole or in part by the acts or omissions of Tenant or Tenant’s
\nRepresentatives, such interruption shall not have been the result of or arise
\nout of a Casualty or Condemnation contained within the terms of Sections 27 or
\n28, such interruption shall have had a material and adverse effect on Tenant’s
\nuse and occupancy of the Premises and the business interruption insurance
\nrequired to be carried by Tenant hereunder shall have been exhausted by such
\ninterruption or such business interruption insurance shall not cover such
\nutility interruption, Tenant shall receive an abatement of one (1) day of Base
\nRent for each day subsequent to the expiration of such thirty (30) day period
\nthat such utility interruption continues and the Term of this Lease shall be
\nextended by one (1) day for each day of such abatement. Tenant shall not be
\nentitled to any abatement or to exercise any termination rights based on such
\ninterruption in the event Tenant is in default of this Lease.<\/p>\n
8. LATE CHARGES<\/p>\n
Any and all sums or charges set forth in this Section 8 are considered
\npart of Additional Rent. Tenant acknowledges that late payment (the fifth day of
\neach month or any time thereafter) by Tenant to Landlord of Base Rent, Tenant’s
\nShare of Operating Expenses, Tax Expenses, Common Area Utility Costs, and
\nUtility Expenses or other sums due hereunder, will cause Landlord to incur costs
\nnot contemplated by this Lease, the exact amount of such costs being extremely
\ndifficult and impracticable to fix. Such costs include, without limitation,
\nprocessing and accounting charges, and late charges that may be imposed on
\nLandlord by the terms of any note secured by any encumbrance against the
\nPremises, and late charges and penalties due to the late payment of real
\nproperty taxes on the Premises. Therefore, if any installment of Rent or any
\nother sum due from Tenant is not received by Landlord within five (5) days of
\nwhen due, Tenant shall promptly pay to Landlord all of the following, as
\napplicable: (a) an additional sum equal to five percent (5%) of such delinquent
\namount plus interest on such delinquent amount at the rate equal to the prime
\nrate plus three percent (3%) for the time period such payments are delinquent as
\na late charge for every month or portion thereof that such sums remain unpaid,
\n(b) the amount of seventy-five dollars ($75) for each three-day notice prepared
\nfor, or served on, Tenant, (c) the amount of fifty dollars ($50) relating to
\nchecks for which there are not sufficient funds. If Tenant delivers to Landlord
\na check for which not sufficient funds, Landlord may, at its sole option,
\nrequire Tenant to replace such check with a cashier’s check for the amount of
\nsuch check and all other charges payable<\/p>\n
11<\/p>\n
hereunder. The parties agree that this late charge and the other charges
\nreferenced above represent a fair and reasonable estimate of the costs that
\nLandlord will incur by reason of late payment by Tenant. Acceptance of any late
\ncharge or other charges shall not constitute a waiver by Landlord of Tenant’s
\ndefault with respect to the delinquent amount, nor prevent Landlord from
\nexercising any of the other rights and remedies available to Landlord for any
\nother breach of Tenant under this Lease. If a late charge or other charge
\nbecomes payable for any three (3) installments of Rent within any twelve (12)
\nmonth period, then Landlord, at Landlord’s sole option, can either require the
\nRent be paid quarterly in advance, or be paid monthly in advance by cashier’s
\ncheck or electronic funds transfer.<\/p>\n
9. USE OF PREMISES<\/p>\n
9.1 COMPLIANCE WITH LAWS, RECORDED MATTERS, AND RULES AND
\nREGULATIONS: The Premises are to be used solely for the purposes and uses
\nspecified in the Basic Lease Information and for no other uses or purposes
\nwithout Landlord’s prior written consent, which consent shall not be
\nunreasonably withheld, conditioned or delayed so long as the proposed use (i)
\ndoes not involve the use of Hazardous Materials other than as expressly
\npermitted under the provisions of Section 29 below, (ii) does not require any
\nadditional parking in excess of the parking spaces already licensed to Tenant
\npursuant to the provisions of Section 24 of this Lease, and (iii) is compatible
\nand consistent with the other uses then being made in the Park and in other
\nsimilar types of buildings in the vicinity of the Park, as reasonably determined
\nby Landlord. The use of the Premises by Tenant and its employees,
\nrepresentatives, agents, invitees, licensees, subtenants, customers or
\ncontractors (collectively, “Tenant’s Representatives”) shall be subject to, and
\nat all times in compliance with, (a) any and all applicable laws, ordinances,
\nstatutes, orders and regulations as same exist from time to time (collectively,
\nthe “Laws”), (b) any and all documents, matters or instruments, including
\nwithout limitation, any declarations of covenants, conditions and restrictions,
\nand any supplements thereto, each of which has been or hereafter is recorded in
\nany official or public records with respect to the Premises, the Building, the
\nLot and\/or the Park, or any portion thereof (collectively, the “Recorded
\nMatters”), and (c) any and all rules and regulations set forth in EXHIBIT C,
\nattached to and made a part of this Lease, and any other reasonable rules and
\nregulations promulgated by Landlord now or hereafter enacted relating to parking
\nand the operation of the Premises, the Building and the Park (collectively, the
\n“Rules and Regulations”). Tenant agrees to, and does hereby, assume full and
\ncomplete responsibility to ensure that the Premises are adequate to fully meet
\nthe needs and requirements of Tenant’s intended operations of its business
\nwithin the Premises, and Tenant’s use of the Premises and that same are in
\ncompliance with all applicable Laws throughout the Term of this Lease.
\nAdditionally, Tenant shall be solely responsible for the payment of all costs,
\nfees and expenses associated with any modifications, improvements or alterations
\nto the Premises, Building, the Common Areas and\/or the Park occasioned by the
\nenactment of, or changes to, any Laws arising from Tenant’s particular use of
\nthe Premises or alterations, improvements or additions made to the Premises
\nregardless of when such Laws became effective.<\/p>\n
9.2 PROHIBITION ON USE: Tenant shall not use the Premises or
\npermit anything to be done in or about the Premises nor keep or bring anything
\ntherein which will in any way conflict with any of the requirements of the Board
\nof Fire Underwriters or similar body now or hereafter constituted or in any way
\nincrease the existing rate of or affect any policy of fire or other insurance
\nupon the Building or any of its contents, or cause a cancellation of any
\ninsurance policy. No auctions may be held or otherwise conducted in, on or about
\nthe Premises, the Building, the Lot or the Park without Landlord’s written
\nconsent thereto, which consent may be given or withheld in Landlord’s sole
\ndiscretion. Tenant shall not do or permit anything to be done in or about the
\nPremises which will in any way obstruct or interfere with the rights of
\nLandlord, other tenants or occupants of the Building, other buildings in the
\nPark, or other persons or businesses in the area, or injure or annoy other
\ntenants or use or allow the Premises to be used for any unlawful or
\nobjectionable purpose, as determined by Landlord, in its reasonable discretion,
\nfor the benefit, quiet enjoyment and use by Landlord and all other tenants or
\noccupants of the Building or other buildings in the Park; nor shall Tenant
\ncause, maintain or permit any private or public nuisance in, on or about the
\nPremises, Building, Park and\/or the Common Areas, including, but not limited to,
\nany offensive odors, noises, fumes or vibrations. Tenant shall not damage or
\ndeface or otherwise commit or suffer to be committed any waste in, upon or about
\nthe Premises. Tenant shall not place or store, nor permit any other person or
\nentity to place or store, any property, equipment, materials, supplies, personal
\nproperty or any other items or goods outside of the Premises for any period of
\ntime. Tenant shall not permit any non-service animals, including, but not
\nlimited to, any household pets, to be brought or kept in or about the Premises.
\nTenant shall place no loads upon the floors, walk, or ceilings in excess of the
\nmaximum designed load permitted by the applicable Uniform Building Code or which
\nmay damage the Building or outside areas; nor place any harmful liquids in the
\ndrainage systems; nor dump or store waste materials, refuse or other such
\nmaterials, or allow such to remain outside the Building area, except for any
\nnon-hazardous or non-harmful materials which may be stored in refuse dumpsters
\nor in any enclosed trash provided. Tenant shall honor the terms of all Recorded
\nMatters relating to the Premises, the Building, the Lot and\/or the Park. Tenant
\nshall honor the Rules and Regulations. If Tenant fails to comply with such Laws,
\nRecorded Matters, Rules and Regulations or the provisions of this Lease,
\nLandlord shall have the right to collect from Tenant a reasonable sum as a
\npenalty, in addition to all rights and remedies of Landlord hereunder including,
\nbut not limited to, the payment by Tenant to Landlord of all Enforcement<\/p>\n
12<\/p>\n
Expenses and Landlord’s costs and expenses, if any, to cure any of such failures
\nof Tenant, if Landlord, at its sole option, elects to undertake such cure.<\/p>\n
10. ALTERATIONS AND ADDITIONS; AND SURRENDER OF PREMISES<\/p>\n
10.1 ALTERATIONS AND ADDITIONS: Tenant shall not install any signs,
\nfixtures, improvements, nor make or permit any other alterations or additions to
\nthe Premises without the prior written consent of Landlord, which consent shall
\nnot be unreasonably withheld, conditioned, or delayed. If any such alteration or
\naddition is expressly permitted by Landlord, Tenant shall deliver at least
\nfifteen (15) days prior notice to Landlord, from the date Tenant intends to
\ncommence construction, sufficient to enable Landlord to post a Notice of
\nNon-Responsibility. In all events, Tenant shall obtain all permits or other
\ngovernmental approvals prior to commencing any of such work and deliver a copy
\nof same to Landlord. Ml alterations and additions shall be installed by a
\nlicensed contractor approved by Landlord, at Tenant’s sole expense in compliance
\nwith all applicable Laws (including, but not limited to, the ADA as defined
\nherein), Recorded Matters, and Rules and Regulations. Tenant shall keep the
\nPremises and the property on which the Premises are situated free from any liens
\narising out of any work performed, materials furnished or obligations incurred
\nby or on behalf of Tenant.<\/p>\n
10.2 SURRENDER OF PREMISES: Upon the termination of this Lease,
\nwhether by forfeiture, lapse of time or otherwise, or upon the termination of
\nTenant’s right to possession of the Premises, Tenant will at once surrender and
\ndeliver up the Premises, together with the fixtures (other than trade fixtures),
\nadditions and improvements which Landlord has notified Tenant, in writing, that
\nLandlord will require Tenant not to remove, to Landlord in good condition and
\nrepair (including, but not limited to, replacing all light bulbs and ballasts
\nnot in good working condition) and in the condition in which the Premises
\nexisted as of the Commencement Date, except for casualty under Section 27 or
\nreasonable wear and tear. Reasonable wear and tear shall not include any damage
\nor deterioration to the floors of the Premises arising from the use of forklifts
\nin, on or about the Premises (including, without limitation, any marks or stains
\nof any portion of the floors), and any damage or deterioration that would have
\nbeen prevented by proper maintenance by Tenant or Tenant otherwise performing
\nall of its obligations under this Lease. Upon such termination of this Lease,
\nTenant shall remove all tenant signage, trade fixtures, furniture, furnishings,
\npersonal property, additions, and other improvements unless Landlord requests,
\nin writing, that Tenant not remove some or all of such fixtures (other than
\ntrade fixtures), additions or improvements installed by, or on behalf of Tenant
\nor situated in or about the Premises. By the date which is twenty (20) days
\nprior to such termination of this Lease, Landlord shall notify Tenant in writing
\nof those fixtures (other than trade fixtures), alterations, additions and other
\nimprovements which Landlord shall require Tenant not to remove from the
\nPremises. Tenant shall repair any damage caused by the installation or removal
\nof such signs, trade fixtures, furniture, furnishings, fixtures, additions and
\nimprovements which are to be removed from the Premises by Tenant hereunder. If
\nLandlord fails to so notify Tenant at least twenty (20) days prior to such
\ntermination of this Lease, then Tenant shall remove all tenant signage,
\nalterations, furniture, furnishings, trade fixtures, additions and other
\nimprovements (other than the Tenant Improvements) installed in or about the
\nPremises by, or on behalf of Tenant. Tenant shall ensure that the removal of
\nsuch items and the repair of the Premises will be completed prior to such
\ntermination of this Lease.<\/p>\n
11. REPAIRS AND MAINTENANCE<\/p>\n
11.1 TENANT’S REPAIRS AND MAINTENANCE OBLIGATIONS: Except for those
\nportions of the Building to be maintained by Landlord, as provided in Sections
\n11.2 and 11.3 below, Tenant shall, at Tenant’s sole cost and expense, keep and
\nmaintain the Premises in good, clean and safe condition and repair to the
\nreasonable satisfaction of Landlord including, but not limited to, repairing any
\ndamage caused by Tenant or Tenant’s Representatives and replacing any property
\nso damaged by Tenant or Tenant’s Representatives. Without limiting the
\ngenerality of the foregoing, Tenant shall be solely responsible for maintaining,
\nrepairing and replacing (a) all plumbing, electrical wiring and equipment
\nexclusively serving the Premises, (b) all interior lighting (including, without
\nlimitation, light bulbs and\/or ballasts) serving the Premises, (c) all glass,
\nwindows, window frames, window casements, skylights, interior and exterior
\ndoors, door frames and door closers, (d) all tenant signage, (e) security
\nsystems, (f) all partitions, fixtures, equipment, interior painting, and
\ninterior walls and floors of the Premises and every part thereof (including,
\nwithout limitation, any demising walls contiguous to any portion of the
\nPremises). Tenant shall be responsible for providing janitorial service for the
\nPremises at its sole cost.<\/p>\n
11.2 REIMBURSABLE REPAIRS AND MAINTENANCE OBLIGATIONS: Subject to
\nthe provisions of Sections 6 and 9 of this Lease and except for (i) the
\nobligations of Tenant set forth in Section 11.1 above, (ii) the obligations of
\nLandlord set forth in Section 11.3 below, and (iii) the repairs rendered
\nnecessary the intentional or negligent acts or omissions of Tenant or any of
\nTenant’s Representatives, Landlord agrees, at Landlord’s expense, subject to
\nreimbursement pursuant to Section 6 above, to keep in good repair all mechanical
\nsystems, heating, ventilation and air conditioning Systems exclusively serving
\nthe Premises, sprinkler Systems and fire protection Systems, the plumbing and
\nmechanical Systems exterior to the Premises, the roof, roof membranes, exterior
\nwalls of the Building, signage (exclusive of tenant signage),<\/p>\n
13<\/p>\n
and exterior electrical wiring and equipment, exterior lighting, exterior glass,
\nexterior doors\/entrances and door closers, exterior window casements, exterior
\npainting of the Building (exclusive of the Premises), and underground utility
\nand sewer pipes outside the exterior walls of the Building. For purposes of this
\nSection 11.2, the term “exterior” shall mean outside of and not exclusively
\nserving the Premises. Landlord shall procure and maintain (a) the heating,
\nventilation and air conditioning systems preventative maintenance and repair
\ncontract(s), and (b) the fire and sprinkler protection services and preventative
\nmaintenance and repair contract(s) (including, without limitation, monitoring
\nservices). Tenant will reimburse Landlord for the cost thereof in accordance
\nwith the provisions of Section 6 above.<\/p>\n
11.3 LANDLORD’S REPAIRS AND MAINTENANCE OBLIGATIONS: Except for
\nrepairs rendered necessary by the intentional or negligent acts or omissions of
\nTenant or any of Tenant’s Representatives, Landlord agrees, at Landlord’s sole
\ncost and expense, to (a) keep in good repair the structural portions of the
\nfloors, foundations and exterior perimeter walls of the Building (exclusive of
\nglass and exterior doors), and (b) replace the structural portions of the roof
\nof the Building (excluding the roof membrane) as, and when, Landlord determines
\nsuch replacement to be necessary in Landlord’s reasonable discretion.<\/p>\n
11.4 TENANT’S FAILURE TO PERFORM REPAIRS AND MAINTENANCE
\nOBLIGATIONS: Except for normal maintenance and repair of the items described
\nabove and subject to Section 42 below, Tenant shall have no right of access to
\nor right to install any device on the roof of the Building nor make any
\npenetrations of the roof of the Building without the express prior written
\nconsent of Landlord. If Tenant refuses or neglects to repair and maintain the
\nPremises and the adjacent areas properly as required herein and to the
\nreasonable satisfaction of Landlord, Landlord may, but without obligation to do
\nso, at any time after providing ten (10) days prior written notice of its intent
\nto do so (except in the event of an emergency, in which case such notice is not
\nrequired), make such repairs and\/or maintenance without Landlord having any
\nliability to Tenant for any loss or damage that may accrue to Tenant’s
\nmerchandise, fixtures or other property, or to Tenant’s business by reason
\nthereof, except to the extent any damage is caused by the willful misconduct or
\ngross negligence of Landlord or its authorized agents and representatives. In
\nthe event Landlord makes such repairs and\/or maintenance, upon completion
\nthereof Tenant shall pay to Landlord, as additional rent, the Landlord’s costs
\nfor making such repairs and\/or maintenance, plus twenty percent (20%) for
\noverhead, upon presentation of a bill therefor, plus any Enforcement Expenses.
\nThe obligations of Tenant hereunder shall survive the expiration of the Term of
\nthis Lease or the earlier termination thereof. Tenant hereby waives any right to
\nrepair at the expense of Landlord under any applicable Laws now or hereafter in
\neffect respecting the Premises.<\/p>\n
12. INSURANCE<\/p>\n
12.1 TYPES OF INSURANCE: Tenant shall maintain in full force and
\neffect at all times during the Term of this Lease, at Tenant’s sole cost and
\nexpense, for the protection of Tenant and Landlord, as their interests may
\nappear, policies of insurance which afford the following coverages: (i) worker’s
\ncompensation: statutory limits; (ii) employer’s liability, as required by law,
\nwith a minimum limit of $100,000 per employee and $500,000 per occurrence; (iii)
\ncommercial general liability insurance (occurrence form) providing coverage
\nagainst any and all claims for bodily injury and property damage, occurring in,
\non or about the Premises arising out of Tenant’s and Tenant’s Representatives’
\nuse and\/or occupancy of the Premises. Such insurance shall include coverage for
\nblanket contractual liability, fire damage, premises, personal injury, completed
\noperations, products liability, personal and advertising, and a plate-glass
\nrider to provide coverage for all glass in, on or about the Premises including,
\nwithout limitation, skylights. Such insurance shall have a combined single limit
\nof not less than One Million Dollars ($1,000,000) per occurrence with a Two
\nMillion Dollar ($2,000,000) aggregate limit and excess\/umbrella insurance in the
\namount of Two Million Dollars ($2,000,000). If Tenant has other locations which
\nit owns or leases, the policy shall include an aggregate limit per location
\nendorsement. If necessary, as reasonably determined by Landlord, Tenant shall
\nprovide for restoration of the aggregate limit; (iv) comprehensive automobile
\nliability insurance: a combined single limit of not less than $2,000,000 per
\noccurrence and insuring Tenant against liability for claims arising out of the
\nownership, maintenance, or use of any owned, hired or non-owned automobiles; (v)
\n“all risk” or “special purpose” property insurance, including without
\nlimitation, sprinkler leakage, boiler and machinery comprehensive form, if
\napplicable, covering damage to or loss of any personal property, trade fixtures,
\ninventory, fixtures and equipment located in, on or about the Premises, and in
\naddition, business interruption of Tenant. Such insurance shall be written on a
\nreplacement cost basis (without deduction for depreciation) in an amount equal
\nto one hundred percent (100%) of the full replacement value of the aggregate of
\nthe items referred to in this subparagraph (v); and (vi) such other insurance as
\nLandlord deems necessary and prudent or as may otherwise be reasonably required
\nby any of Landlord’s lenders or joint venture partners.<\/p>\n
12.2 INSURANCE POLICIES: Insurance required to be maintained by
\nTenant shall be written by companies (i) licensed to do business in the State of
\nCalifornia, (ii) domiciled in the United States of America, and (iii) having a
\n“General Policyholders Rating” of at least A:X (or such higher rating as may be
\nrequired by a lender having a lien on the Premises) as set forth in the most
\ncurrent issue of “A.M. Best’s Rating Guides.” Any deductible amounts under any
\nof the insurance policies required hereunder<\/p>\n
14<\/p>\n
shall not exceed Five Thousand Dollars ($5,000). Tenant shall deliver to
\nLandlord certificates of insurance and true and complete copies of any and all
\nendorsements required herein for all insurance required to be maintained by
\nTenant hereunder prior to Tenant’s early access in accordance with Section 2.2.
\nTenant shall, at least thirty (30) days prior to expiration of each policy,
\nfurnish Landlord with certificates of renewal or “binders” thereof. Each
\ncertificate shall expressly provide that such policies shall not be cancelable
\nor otherwise subject to modification except after thirty (30) days prior written
\nnotice to the parties named as additional insureds as required in this Lease
\n(except for cancellation for nonpayment of premium, in which event cancellation
\nshall not take effect until at least ten (10) days’ notice has been given to
\nLandlord). Tenant shall have the right to provide insurance coverage which it is
\nobligated to carry pursuant to the terms of this Lease under a blanket insurance
\npolicy, provided such blanket policy expressly affords coverage for the Premises
\nand for Landlord as required by this Lease.<\/p>\n
12.3 ADDITIONAL INSUREDS AND COVERAGE: Landlord, any property
\nmanagement company and\/or agent of Landlord for the Premises, the Building, the
\nLot or the Park, and any lender(s) of Landlord having a lien against the
\nPremises, the Building, the Lot or the Park shall be named as additional
\ninsureds under all of the policies required in Section 12.1 (iii) above, but
\nonly if Landlord provides notice expressly requesting such entities to be named
\nas additional insureds. Additionally, such policies shall provide for
\nseverability of interest. All insurance to be maintained by Tenant shall, except
\nfor workers’ compensation and employer’s liability insurance, be primary,
\nwithout right of contribution from insurance maintained by Landlord. Any
\numbrella\/excess liability policy (which shall be in “following form”) shall
\nprovide that if the underlying aggregate is exhausted, the excess coverage will
\ndrop down as primary insurance. The limits of insurance maintained by Tenant
\nshall not limit Tenant’s liability under this Lease. It is the parties’
\nintention that the insurance to be procured and maintained by Tenant as required
\nherein shall provide coverage for any and all damage or injury arising from or
\nrelated to Tenant’s operations of its business and\/or Tenant’s or Tenant’s
\nRepresentatives’ use of the Premises and\/or any of the areas within the Park,
\nwhether such events occur within the Premises (as described in EXHIBIT A hereto)
\nor in any other areas of the Park. It is not contemplated or anticipated by the
\nparties that the aforementioned risks of loss be borne by Landlord’s insurance
\ncarriers, rather it is contemplated and anticipated by Landlord and Tenant that
\nsuch risks of loss be borne by Tenant’s insurance earners pursuant to the
\ninsurance policies procured and maintained by Tenant as required herein.<\/p>\n
12.4 FAILURE OF TENANT TO PURCHASE AND MAINTAIN INSURANCE: In the
\nevent Tenant does not purchase the insurance required in this Lease or keep the
\nsame in full force and effect throughout the Term of this Lease (including any
\nrenewals or extensions), Landlord may, but without obligation to do so, purchase
\nthe necessary insurance and -pay the premiums therefor. If Landlord so elects to
\npurchase such insurance, Tenant shall promptly pay to Landlord as Additional
\nRent, the amount so paid by Landlord, upon Landlord’s demand therefor. In
\naddition, Landlord may recover from Tenant and Tenant agrees to pay, as
\nAdditional Rent, any and all Enforcement Expenses and damages which Landlord may
\nsustain by reason of Tenant’s failure to obtain and maintain such insurance. If
\nTenant fails to maintain any insurance required in this Lease, Tenant shall be
\nliable for all losses, damages and costs resulting from such failure.<\/p>\n
13. WAIVER OF SUBROGATION<\/p>\n
Landlord and Tenant hereby mutually waive their respective rights of
\nrecovery against each other for any loss of, or damage to, either parties’
\nproperty to the extent that such loss or damage is insured by an insurance
\npolicy required to be in effect at the time of such loss or damage. Each party
\nshall obtain any special endorsements, if required by its insurer whereby the
\ninsurer waives its rights of subrogation against the other party. This provision
\nis intended to waive fully, and for the benefit of the parties hereto, any
\nrights and\/or claims which might give rise to a right of subrogation in favor of
\nany insurance carrier. The coverage obtained by Tenant pursuant to Section 12 of
\nthis Lease shall include, without limitation, a waiver of subrogation
\nendorsement attached to the certificate of insurance. The provisions of this
\nSection 13 shall not apply in those instances in which such waiver of
\nsubrogation would invalidate such insurance coverage or would cause either
\nparty’s insurance coverage to be voided or otherwise uncollectible.<\/p>\n
14. LIMITATION OF LIABILITY AND INDEMNITY<\/p>\n
Except to the extent of damage resulting from the gross negligence or
\nwillful misconduct of Landlord or its authorized representatives, Tenant agrees
\nto protect, defend (with counsel acceptable to Landlord) and hold Landlord and
\nLandlord’s lenders, partners, members, property management com (if other than
\nLandlord), agents, directors, officers, employees, representatives, contractors,
\nsuccessors and assigns and each of their respective partners, members, directors
\nrepresentatives, agents, contractors, shareholders, successors and assigns
\n(collectively, the “Indemnitees”) harmless and indemnify the Indemnitees from
\nand against all liabilities, damages, claims, losses, judgments, charges and
\nexpenses (including reasonable attorneys’ fees, costs of court and expenses
\nnecessary in the prosecution or defense of any litigation including the
\nenforcement of this provision) arising from or in any way related to, directly
\nor indirectly, (i) Tenant’s or Tenant’s Representatives’ use of the Premises,
\nBuilding and\/or the Park, (ii) the conduct of Tenant’s business, (iii) from any
\nactivity, work or thing done, permitted or<\/p>\n
15<\/p>\n
suffered by Tenant in or about the Premises, (iv) in any way connected with the
\nPremises or with the improvements or personal property therein, including, but
\nnot limited to, any liability for injury to person or property of Tenant,
\nTenant’s Representatives, or third party persons, and\/or (v) Tenant’s failure to
\nperform any covenant or obligation of Tenant under this Lease. Tenant agrees
\nthat the obligations of Tenant herein shall survive the expiration or earlier
\ntermination of this Lease.<\/p>\n
Except to the extent of damage resulting from the gross negligence or
\nwillful misconduct of Landlord or its authorized representatives, to the fullest
\nextent permitted by law, Tenant agrees that neither Landlord nor any of
\nLandlord’s lender(s), partners, members, employees, representatives, legal
\nrepresentatives, successors or assigns shall at any time or to any extent
\nwhatsoever be liable, responsible or in any way accountable for any loss,
\nliability, injury, death or damage to persons or property which at any time may
\nbe suffered or sustained by Tenant or by any person(s) whomsoever who may at any
\ntime be using, occupying or visiting the Premises, the Building or the Park,
\nincluding, but not limited to, any acts, errors or omissions by or on behalf of
\nany other tenants or occupants of the Building and\/or the Park. Tenant shall
\nnot, in any event or circumstance, be permitted to offset or otherwise credit
\nagainst any payments of Rent required herein for matters for which Landlord may
\nbe liable hereunder. Landlord and its authorized representatives shall not be
\nliable for any interference with light or air, or for any latent defect in the
\nPremises or the Building.<\/p>\n
15. ASSIGNMENT AND SUBLEASING<\/p>\n
15.1 PROHIBITION: Tenant shall not assign, mortgage, hypothecate,
\nencumber, grant any license or concession, pledge or otherwise transfer this
\nLease (collectively, “assignment”), in whole or in part, whether voluntarily or
\ninvoluntarily or by operation of law, nor sublet or permit occupancy by any
\nperson other than Tenant of all or any portion of the Premises without first
\nobtaining the prior written consent of Landlord, which consent shall not be
\nunreasonably withheld, conditioned or delayed. Tenant hereby agrees that
\nLandlord may withhold its consent to any proposed sublease or assignment if the
\nproposed sublessee or assignee or its business is subject to compliance with
\nadditional requirements of the ADA (defined below) and\/or Environmental Laws
\n(defined below) beyond those requirements which are applicable to Tenant, unless
\nthe proposed sublessee or assignee shall (a) first deliver plans and
\nspecifications for complying with such additional requirements and obtain
\nLandlord’s written consent thereto, and (b) comply with all Landlord’s
\nconditions for or contained in such consent, including without limitation,
\nrequirements for security to assure the lien-free completion of such
\nimprovements. If Tenant seeks to sublet or assign all or any portion of the
\nPremises, Tenant shall deliver to Landlord at least thirty (30) days prior to
\nthe proposed commencement of the sublease or assignment (the “Proposed Effective
\nDate”) the following: (i) the name of the proposed assignee or sublessee; (ii)
\nsuch information as to such assignee’s or sublessee’s financial responsibility
\nand standing as Landlord may reasonably require; and (iii) the aforementioned
\nplans and specifications, if any. Within ten (10) days after Landlord’s receipt
\nof a written request from Tenant that Tenant seeks to sublet or assign all or
\nany portion of the Premises, Landlord shall deliver to Tenant a copy of
\nLandlord’s standard form of sublease or assignment agreement (as applicable),
\nwhich instrument shall be utilized for each proposed sublease or assignment (as
\napplicable), and such instrument shall include a provision whereby the assignee
\nor sublessee assumes all of Tenant’s obligations hereunder and agrees to be
\nbound by the terms hereof. As Additional Rent hereunder, Tenant shall pay to
\nLandlord a fee in the amount of five hundred dollars ($500) plus Tenant shall
\nreimburse Landlord for actual reasonable legal and other expenses incurred by
\nLandlord in connection with any actual or proposed assignment or subletting. In
\nthe event the sublease or assignment (1) by itself or taken together with prior
\nsublease(s) or partial assignment(s) covers or totals, as the case may be, more
\nthan twenty-five percent (25%) of the rentable square feet of the Premises or
\n(2) is for a term which by itself or taken together with prior or other
\nsubleases or partial assignments is greater than fifty percent (50%) of the
\nperiod remaining in the Term of this Lease as of the time of the Proposed
\nEffective Date, then Landlord shall have the right, to be exercised by giving
\nwritten notice to Tenant within thirty (30) days following receipt of Tenant’s
\nnotice of proposed assignment or sublease, to recapture the space described in
\nthe sublease or assignment. If such recapture notice is given, it shall serve to
\nterminate this Lease with respect to the proposed sublease or assignment space,
\nor, if the proposed sublease or assignment space covers all the Premises, it
\nshall serve to terminate the entire term of this Lease in either case, as of the
\nProposed Effective Date. Notwithstanding anything to the contrary within this
\nSection 15.1, in the event Landlord delivers the recapture notice described
\nabove, Tenant shall have the right to rescind Tenant’s proposed assignment or
\nsubletting so long as Tenant delivers such recission notice to Landlord within
\nten (10) days of Tenant’s receipt of Landlord’s recapture notice. However, no
\ntermination of this Lease with respect to part or all of the Premises shall
\nbecome effective without the prior written consent, where necessary, of the
\nholder of each deed of trust encumbering the Premises or any part thereof. If
\nthis Lease is terminated pursuant to the foregoing with respect to less than the
\nentire Premises, the Rent shall be adjusted on the basis of the proportion of
\nsquare feet retained by Tenant to the square feet originally demised and this
\nLease as so amended shall continue thereafter in full force and effect. Each
\npermitted assignee or sublessee shall assume and be deemed to assume this Lease
\nand shall be and remain liable jointly and severally with Tenant for payment of
\nRent and for the due performance of, and compliance with all the terms,
\ncovenants, conditions and agreements herein contained on Tenant’s part to be
\nperformed or complied with, for the term of this Lease. No assignment<\/p>\n
16<\/p>\n
or subletting shall affect the continuing primary liability of Tenant (which,
\nfollowing assignment, shall be joint and several with the assignee), and Tenant
\nshall not be released from performing any of the terms, covenants and conditions
\nof this Lease. Tenant hereby acknowledges and agrees that it understands that
\nLandlord’s accounting department may process and accept Rent payments without
\nverifying that such payments are being made by Tenant, a permitted sublessee or
\na permitted assignee in accordance with the provisions of this Lease. Although
\nsuch payments may be processed and accepted by such accounting department
\npersonnel, any and all actions or omissions by the personnel of Landlord’s
\naccounting department shall not be considered as acceptance by Landlord of any
\nproposed’ assignee or sublessee nor shall such actions or omissions be deemed to
\nbe a substitute for the requirement that Tenant obtain Landlord’s prior written
\nconsent to any such subletting or assignment, and any such actions or omissions
\nby the personnel of Landlord’s accounting department shall not be considered as
\na voluntary relinquishment by Landlord of any of its rights hereunder nor shall
\nany voluntary relinquishment of such rights be inferred therefrom. For purposes
\nhereof, in the event Tenant is a corporation, partnership, joint venture, trust
\nor other entity other than a natural person, any change in the direct or
\nindirect ownership of Tenant (whether pursuant to one or more transfers) which
\nresults in a change of more than fifty percent (50%) in the direct or indirect
\nownership of Tenant shall be deemed to be an assignment within the meaning of
\nthis Section 15 and shall be subject to all the provisions hereof. Except with
\nrespect to any Related Entity (as defined below), any and all options (except
\nfor the Option to Extend the Lease described in Addendum One of this Lease),
\nfirst rights of refusal, tenant improvement allowances and other similar rights
\ngranted to Tenant in this Lease, if any, shall not be assignable by Tenant
\nunless expressly authorized in writing by Landlord.<\/p>\n
15.2 EXCESS SUBLEASE RENTAL OR ASSIGNMENT CONSIDERATION: In the
\nevent of any sublease or assignment of all or any portion of the Premises where
\nthe rent or other consideration provided for in the sublease or assignment
\neither initially or over the term of the sublease or assignment exceeds the Rent
\nor pro rata portion of the Rent, as the case may be, for such space reserved in
\nthe Lease, Tenant shall pay the Landlord monthly, as Additional Rent, at the
\nsame time as the monthly installments of Rent are payable hereunder, after
\ndeduction for reasonable attorneys’ fees (in an amount not to exceed $2,500) and
\nbrokerage commissions (but without deduction for any Tenant Improvement Costs
\nincurred by Tenant) fifty percent (50%) of the excess of each such payment of
\nrent or other consideration in excess of the Rent called for hereunder.<\/p>\n
15.3 WAIVER: Notwithstanding any assignment or sublease, or any
\nindulgences, waivers or extensions of time granted by Landlord to any assignee
\nor sublessee, or failure by Landlord to take action against any assignee or
\nsublessee, Tenant waives notice of any default of any assignee or sublessee and
\nagrees that Landlord may, at its option, proceed against Tenant without having
\ntaken action against or joined such assignee or sublessee, except that Tenant
\nshall have the benefit of any indulgences, waivers and extensions of time
\ngranted to any such assignee or sublessee.<\/p>\n
15.4 RELATED ENTITIES: Notwithstanding anything to the contrary
\ncontained in this Section 15, so long as Tenant delivers to Landlord (1) at
\nleast fifteen (15) business days prior written notice of its intention to assign
\nor sublease the Premises to any Related Entity, which notice shall set forth the
\nname of the Related Entity, (2) a copy of the proposed agreement pursuant to
\nwhich such assignment or sublease shall be effectuated, and (3) such other
\ninformation concerning the Related Entity as Landlord may reasonably require,
\nincluding without limitation, information regarding any change in the proposed
\nuse of any portion of the Premises and any financial information with respect to
\nsuch Related Entity, and so long as any change in the proposed use of the
\nsubject portion of the Premises is in conformance with the uses permitted to be
\nmade under this Lease and do not involve the use or storage of any Hazardous
\nMaterials (other than nominal amounts of ordinary household cleaners, office
\nsupplies and janitorial supplies which’ are not regulated by any Environmental
\nLaws), then Tenant may assign this Lease or sublease any portion of the Premises
\nto any Related Entity, or in connection with any merger, consolidation or sale
\nof substantially all of the assets of Tenant, without having to obtain the prior
\nwritten consent of Landlord thereto. For purposes of this Lease the term
\n“Related Entity” shall mean and refer to any corporation or entity which
\ncontrols, is controlled by or is under common control with Tenant, as all of
\nsuch terms are customarily used in the industry.<\/p>\n
16. AD VALOREM TAXES<\/p>\n
Prior to delinquency, Tenant shall pay all taxes and assessments levied
\nupon trade fixtures, alterations, additions, improvements, inventories and
\npersonal property located and\/or installed on or in the Premises by, or on
\nbehalf of; Tenant; and if requested by Landlord, Tenant shall promptly deliver
\nto Landlord copies of receipts for payment of all such taxes and assessments. To
\nthe extent any such taxes are not separately assessed or billed to Tenant,
\nTenant shall pay the amount thereof as invoiced by Landlord.<\/p>\n
17. SUBORDINATION<\/p>\n
17<\/p>\n
Without the necessity of any additional document being executed by
\nTenant for the purpose of effecting a subordination, and at the election of
\nLandlord or any bona fide mortgagee or deed of trust beneficiary with a lien on
\nall or any portion of the Premises or any ground lessor with respect to the land
\nof which the Premises are a part, the rights of Tenant under this Lease and this
\nLease shall be subject and subordinate at all times to: (i) all ground leases or
\nunderlying leases which may now exist or hereafter be executed affecting the
\nBuilding or the land upon which the Building is situated or both, and (ii) the
\nlien of any mortgage or deed of trust which may now exist or hereafter be
\nexecuted in any amount for which the Building, the Lot, ground leases or
\nunderlying leases, or Landlord’s interest or estate in any of said items is
\nspecified as security. Notwithstanding the foregoing, Landlord or any such
\nground lessor, mortgagee, or any beneficiary shall have the right to subordinate
\nor cause to be subordinated any such ground leases or underlying leases or any
\nsuch liens to this Lease. If any ground lease or underlying lease terminates for
\nany reason or any mortgage or deed of trust is foreclosed or a conveyance in
\nlieu of foreclosure is made for any reason, Tenant shall, notwithstanding any
\nsubordination and upon the request of such successor to Landlord, attorn to and
\nbecome the Tenant of the successor in interest to Landlord, provided such
\nsuccessor in interest will not disturb Tenant’s use, occupancy or quiet
\nenjoyment of the Premises so long as Tenant is not in default of the terms and
\nprovisions of this Lease. The successor in interest to Landlord following
\nforeclosure, sale or deed in lieu thereof shall not be (a) liable for any act or
\nomission of any prior lessor or with respect to events occurring prior to
\nacquisition of ownership; (b) subject to any offsets or defenses which Tenant
\nmight have against any prior lessor; (c) bound by prepayment of more than one
\n(1) month’s Rent, except in those instances when Tenant pays Rent quarterly in
\nadvance pursuant to Section 8 hereof; then not more than three months’ Rent; or
\n(d) liable to Tenant for any Security Deposit not actually received by such
\nsuccessor in interest to the extent any portion or all of such Security Deposit
\nhas not already been forfeited by, or refunded to, Tenant. Landlord shall be
\nliable to Tenant for all or any portion of the Security Deposit not forfeited
\nby, or refunded to Tenant, until and unless Landlord transfers such Security
\nDeposit to the successor in interest. Tenant covenants and agrees to execute
\n(and acknowledge if required by Landlord, any lender or ground lessor) and
\ndeliver, within ten (10) days of a demand or request by Landlord and in the
\ncommercially reasonable form requested by Landlord, ground lessor, mortgagee or
\nbeneficiary, any additional documents-evidencing the priority or subordination
\nof this Lease with respect to any such ground leases or underlying leases or the
\nlien of any such mortgage or deed of trust. Tenant’s failure to timely execute
\nand deliver such additional documents shall, at Landlord’s option, constitute a
\nmaterial default hereunder. It is further agreed that Tenant shall be liable to
\nLandlord, and shall indemnify Landlord from and against any loss, cost, damage
\nor expense, incidental, consequential, or otherwise, arising or accruing
\ndirectly or indirectly, from any failure of Tenant to execute or deliver to
\nLandlord any such additional documents, together with any and all Enforcement
\nExpenses.<\/p>\n
Tenant’s agreement to subordinate this Lease to any future ground or
\nunderlying lease or any future deed of trust or mortgage pursuant to the
\nforegoing provisions of this Section 17 is conditioned upon Landlord delivering
\nto Tenant from the Lessor under such future ground or underlying lease or the
\nholder of any such deed of trust, a non-disturbance agreement in a commercially
\nreasonable form agreeing, among other things, that Tenant’s right to possession
\nof the Premises pursuant to the terms and conditions of this Lease shall not be
\ndisturbed provided Tenant is not in default under this Lease beyond the
\napplicable notice and cure periods hereunder.<\/p>\n
18. RIGHT OF ENTRY<\/p>\n
Tenant grants Landlord or its agents the right to enter the Premises at
\nall reasonable times upon one (1) business day notice (except in the event of an
\nemergency, in which ease such notice is not required) for purposes of
\ninspection, exhibition, posting of notices, repair or alteration. At Landlord’s
\noption, Landlord shall at all times have and retain a key with which to unlock
\nall the doors in, upon and about the Premises, excluding Tenant’s vaults and
\nsafes. It is further agreed that Landlord shall have the right to use any and
\nall means Landlord deems necessary to enter the Premises in an emergency.
\nLandlord shall have the right to place “for rent” or “for lease” signs on the
\noutside of the Premises, the Building and m the Common Areas. Landlord shall
\nalso have the right to place “for sale” signs on the outside of ~ and in the
\nCommon Areas. Tenant hereby waives any claim from damages or for inconvenience
\nto or interference with Tenant’s business, or any other loss occasioned thereby
\nexcept for any claim for any of the foregoing arising out of the sole active
\ngross negligence or willful misconduct of Landlord or its authorized
\nrepresentatives.<\/p>\n
19. ESTOPPEL CERTIFICATE<\/p>\n
Tenant shall execute (and acknowledge if required by any lender or
\nground lessor) and deliver to Landlord, within ten (10) days after Landlord
\nprovides such to Tenant, a statement in writing certifying that this Lease is
\nunmodified and in full force and effect (or, if modified, stating the nature of
\nsuch modification), the date to which the Rent and other charges are paid in
\nadvance, if any, acknowledging that there are not, to Tenant’s knowledge, any
\nuncured defaults on the part of Landlord hereunder or specifying such defaults
\nas are claimed, and such other matters as Landlord may reasonably require. Any
\nsuch statement may be conclusively relied upon by Landlord and any prospective
\npurchaser or<\/p>\n
18<\/p>\n
encumbrancer of the Premises. Tenant’s failure to deliver such statement within
\nsuch time shall be conclusive upon the Tenant that (a) this Lease is in full
\nforce and effect, without modification except as may be represented by Landlord;
\n(b) there are no uncured defaults in Landlord’s performance; and (c) not more
\nthan one month’s Rent has been paid in advance, except in those instances when
\nTenant pays Rent quarterly in advance pursuant to Section 8 hereof, then not
\nmore than three month’s Rent has been paid in advance. Failure by Tenant to so
\ndeliver such certified estoppel certificate shall be a material default of the
\nprovisions of this Lease. Tenant shall be liable to Landlord, and shall
\nindemnify Landlord from and against any loss, cost, damage or expense,
\nincidental, consequential, or otherwise, arising or accruing directly or
\nindirectly, from any failure of Tenant to execute or deliver to Landlord any
\nsuch certified estoppel certificate, together with any and all Enforcement
\nExpenses.<\/p>\n
20. TENANT’S DEFAULT.<\/p>\n
The occurrence of any one or more of the following events shall, at
\nLandlord’s option, constitute a material default by Tenant of the provisions of
\nthis Lease:<\/p>\n
20.1 The abandonment of the Premises by Tenant or, after five (5)
\nbusiness days written notice to Tenant, the vacation of the Premises by Tenant
\nwhich would cause any insurance policy to be invalidated or otherwise lapse.
\nTenant agrees to notice and service of notice as provided for in this Lease and
\nwaives any right to any other or further notice or service of notice which
\nTenant may have under any statute or law now or hereafter in effect;<\/p>\n
20.2 The failure by Tenant to make any payment of Rent, Additional
\nRent or any other payment required hereunder within three (3) business days
\nafter Landlord’s delivery of written notice to Tenant that said payment is past
\ndue. Tenant agrees that any such written notice delivered by Landlord shall, to
\nthe fullest extent permitted by law, serve as the statutorily required notice
\nunder applicable law. In addition to the foregoing, Tenant agrees to notice and
\nservice of notice as provided for in this Lease;<\/p>\n
20.3 The failure by Tenant to observe, perform or comply with any
\nof the conditions, covenants or provisions of this Lease (except failure to make
\nany payment of Rent and\/or Additional Rent) and such failure is not cured within
\nfifteen (15) days after notice from Landlord. If such failure is susceptible of
\ncure but cannot reasonably be cured within the aforementioned time period (if
\nany), as reasonably determined by Landlord, Tenant shall promptly commence the
\ncure of such failure and thereafter diligently prosecute such cure to completion
\nwithin the time period specified by Landlord in any written notice regarding
\nsuch failure as may be delivered to Tenant by Landlord. In no event or
\ncircumstance shall Tenant have more than thirty (30) days to complete any such
\ncure, unless otherwise expressly agreed to in writing by Landlord (in Landlord’s
\nsole discretion); notwithstanding the foregoing, the failure of Tenant to
\ndeliver the Letter of Credit to Landlord as and when set forth in Section 4 of
\nthis Lease shall constitute a material default hereunder;<\/p>\n
20.4 The making of a general assignment by Tenant for the benefit
\nof creditors, the filing of a voluntary petition by Tenant or the filing of an
\ninvoluntary petition by any of Tenant’s creditors seeking the rehabilitation,
\nliquidation, or reorganization of Tenant under any law relating to bankruptcy,
\ninsolvency or other relief of debtors and, in the case of an involuntary action,
\nthe failure to remove or discharge the same within sixty (60) days of such
\nfiling, the appointment of a receiver or other custodian to take possession of
\nsubstantially all of Tenant’s assets or this leasehold, Tenant’s insolvency or
\ninability to pay Tenant’s debts or failure generally to pay Tenant’s debts when
\ndue, any court entering a decree or order directing the winding up or
\nliquidation of Tenant or of substantially all of Tenant’s assets, Tenant taking
\nany action toward the dissolution or winding up of Tenant’s affairs, the
\ncessation or suspension of Tenant’s use of the Premises, or the attachment,
\nexecution or other judicial seizure of substantially all of Tenant’s assets or
\nthis leasehold;<\/p>\n
20.5 Tenant’s use or storage of Hazardous Materials in, on or about
\nthe Premises, the Building, the Lot and\/or the Park other than as expressly
\npermitted by the provisions of Section 29 below which is not cured within five
\n(5) business days’ notice from Landlord; or<\/p>\n
20.6 The making of any material misrepresentation or omission by
\nTenant in any materials delivered by or on behalf of Tenant to Landlord pursuant
\nto this Lease.<\/p>\n
20.7 The occurrence of any one or more of the defaults set forth in
\nSection 20 of that certain Lease Agreement dated June 21, 1999 by and between
\nLandlord, as Landlord, and WebSENSE, Inc. (formerly know as NetPartners Internet
\nSolutions, Inc.).<\/p>\n
21. REMEDIES FOR TENANT’S DEFAULT<\/p>\n
21.1 LANDLORD’S RIGHTS: In the event of Tenant’s material default
\nunder this Lease, Landlord may terminate Tenant’s right to possession of the
\nPremises by any lawful means in which case upon delivery of written notice by
\nLandlord this Lease shall terminate on the date specified by Landlord in such<\/p>\n
19<\/p>\n
notice and Tenant shall immediately surrender possession of the Premises to
\nLandlord. In addition, the Landlord shall have the immediate right of reentry
\nwhether or not this Lease is terminated, and if this right of re-entry is
\nexercised following abandonment of the Premises by Tenant, Landlord may consider
\nany personal property belonging to Tenant and left on the Premises to also have
\nbeen abandoned. No re-entry or taking possession of the Premises by Landlord
\npursuant to this Section 21 shall be construed as an election to terminate this
\nLease unless a written notice of such intention is given to Tenant. If Landlord
\nrelets the Premises or any portion thereof; (i) Tenant shall be liable
\nimmediately to Landlord for all reasonable costs Landlord incurs in reletting
\nthe Premises or any part thereof; including, without limitation, broker’s
\ncommissions, expenses of cleaning, redecorating, and further improving the
\nPremises and other similar costs (collectively, the “Reletting Costs”), and (ii)
\nthe rent received by Landlord from such reletting shall be applied to the
\npayment of; first, any indebtedness from Tenant to Landlord other than Base
\nRent, Operating Expenses, Tax Expenses, Common Area Utility Costs, and Utility
\nExpenses; second, all costs including maintenance, incurred by Landlord in
\nreletting; and, third, Base Rent, Operating Expenses, Tax Expenses, Common Area
\nUtility Costs, Utility Expenses, and all other sums due under this Lease. Any
\nand all of the Reletting Costs shall be fully chargeable to Tenant and shall not
\nbe prorated or otherwise amortized in relation to any new lease for the Premises
\nor any portion thereof. After deducting the payments referred to above, any sum
\nremaining from the rental Landlord receives from reletting shall be held by
\nLandlord and applied in payment of future Rent as Rent becomes due under this
\nLease. In no event shall Tenant be entitled to any excess rent received by
\nLandlord. Reletting may be for a period shorter or longer than the remaining
\nterm of this Lease. No act by Landlord other than giving written notice to
\nTenant shall terminate this Lease. Acts of maintenance, efforts to relet the
\nPremises or the appointment of a receiver on Landlord’s initiative to protect
\nLandlord’s interest under this Lease shall not constitute a termination of
\nTenant’s right to possession. So long as this Lease is not terminated, Landlord
\nshall have the right to remedy any default of Tenant, to maintain or improve the
\nPremises, to cause a receiver to be appointed to administer the Premises and new
\nor existing subleases and to add to the Rent payable hereunder all of Landlord’s
\nreasonable costs in so doing, with interest at the maximum rate permitted by law
\nfrom the date of such expenditure.<\/p>\n
21.2 DAMAGES RECOVERABLE: If Tenant breaches this Lease and
\nabandons the Premises before the end of the Term, or if Tenant’s right to
\npossession is terminated by Landlord because of a breach or default under this
\nLease, then in either such case, Landlord may recover from Tenant all damages
\nsuffered by Landlord as a result of Tenant’s failure to perform its obligations
\nhereunder, including, but not limited to, the cost of any Tenant Improvements
\nconstructed by or on behalf of Tenant pursuant to EXHIBIT B hereto, the portion
\nof any broker’s or leasing agent’s commission incurred with respect to the
\nleasing of the Premises to Tenant for the balance of the Term of the Lease
\nremaining after the date on which Tenant is in default of its obligations
\nhereunder, and all Reletting Costs, and the worth at the time of the award
\n(computed in accordance with paragraph (3) of Subdivision (a) of Section 1951.2
\nof the California Civil Code) of the amount by which the Rent then unpaid
\nhereunder for the balance of the Lease Term exceeds the amount of such loss of
\nRent for the same period which Tenant proves could be reasonably avoided by
\nLandlord and in such case, Landlord prior to the award, may relet the Premises
\nfor the purpose of mitigating damages suffered by Landlord because of Tenant’s
\nfailure to perform its obligations hereunder; provided, however, that even
\nthough Tenant has abandoned the Premises following such breach, this Lease shall
\nnevertheless continue in full force and effect for as long as Landlord does not
\nterminate Tenant’s right of possession, and until such termination, Landlord
\nshall have the remedy described in Section 1951.4 of the California Civil Code
\n(Landlord may continue this Lease in effect after Tenant’s breach and
\nabandonment and recover Rent as it becomes due, if Tenant has the right to
\nsublet or assign, subject only to reasonable limitations) and may enforce all
\nits rights and remedies under this Lease, including the right to recover the
\nRent from Tenant as it becomes due hereunder. The “worth at the time of the
\naward” within the meaning of Subparagraphs (a)(1) and (a)(2) of Section 1951.2
\nof the California Civil Code 5 be computed by allowing interest at the rate of
\nten percent (10%) per annum. Tenant waives redemption or relief from forfeiture
\nunder California Code of Civil Procedure Sections 1174 and 1179, or under any
\nother present or future law, in the event Tenant is evicted or Landlord takes
\npossession of the Premises by reason of any default of Tenant hereunder.<\/p>\n
21.3 RIGHTS AND REMEDIES CUMULATIVE: The foregoing rights and
\nremedies of Landlord are not exclusive; they are cumulative in addition to any
\nrights and remedies now or hereafter existing at law, in equity by statute or
\notherwise, or to any equitable remedies Landlord may have, and to any remedies
\nLandlord may have under bankruptcy laws or laws affecting creditor’s rights
\ngenerally. In addition to all remedies set forth above, if Tenant materially
\ndefaults under this Lease, any and all Base Rent waived by Landlord under
\nSection 3 above shall be immediately due and payable to Landlord and all options
\ngranted to Tenant hereunder shall automatically terminate, unless otherwise
\nexpressly agreed to in writing by Landlord.<\/p>\n
21.4 WAIVER OF A DEFAULT: The waiver by Landlord of any default of
\nany provision of this Lease shall not be deemed or construed a waiver of any
\nother default by Tenant hereunder or of any subsequent default of this Lease,
\nexcept for the default specified in the waiver.<\/p>\n
20<\/p>\n
22. HOLDING OVER<\/p>\n
If Tenant holds possession of the Premises after the expiration of the
\nTerm of this Lease with Landlord’s consent, Tenant shall become a tenant from
\nmonth-to-month upon the terms and provisions of this Lease, provided the monthly
\nBase Rent during such hold over period shall be 125% of the Base Rent due on the
\nlast month of the Lease Term, payable in advance on or before the first day of
\neach month. Acceptance by Landlord of the monthly Base Rent without the
\nadditional twenty-five percent (25%) increase of Base Rent shall not be deemed
\nor construed as a waiver by Landlord of any of its rights to collect the
\nincreased amount of the Base Rent as provided herein at any time. Such
\nmonth-to-month tenancy shall not constitute a renewal or extension for any
\nfurther term. All options, if any, granted wider the terms of this Lease shall
\nbe deemed automatically terminated and be of no force or effect during said
\nmonth-to-month tenancy. Tenant shall continue in possession until such tenancy
\nshall be terminated by either Landlord or Tenant giving written notice of
\ntermination to the other party at least thirty (30) days prior to the effective
\ndate of termination. This paragraph shall not be construed as Landlord’s
\npermission for Tenant to hold over. Acceptance of Base Rent by Landlord
\nfollowing expiration or termination of this Lease shall not constitute a renewal
\nof this Lease.<\/p>\n
23. LANDLORD’S DEFAULT<\/p>\n
Landlord shall not be deemed in breach or default of this Lease unless
\nLandlord fails within a reasonable time to perform an obligation required to be
\nperformed by Landlord hereunder. For purposes of this provision, a reasonable
\ntime shall not be less than thirty (30) days after receipt by Landlord of
\nwritten notice specifying the nature of the obligation Landlord has not
\nperformed; provided, however, that if the nature of Landlord’s obligation is
\nsuch that more than thirty (30) days, after receipt of written notice, is
\nreasonably necessary for its performance, then Landlord shall not be in breach
\nor default of this Lease if performance of such obligation is commenced within
\nsuch thirty (30) day period and thereafter diligently pursued to completion. In
\nproviding notice to Landlord hereunder, Tenant shall also comply with any notice
\nrequirements under Section 33 below.<\/p>\n
24. PARKING<\/p>\n
Tenant shall have a license to use the number of parking spaces
\nspecified in the Basic Lease Information. Landlord shall exercise reasonable
\nefforts to insure that such spaces are available to Tenant for its use, but
\nLandlord shall not be required to enforce Tenant’s right to use the same.<\/p>\n
25. SALE OF PREMISES<\/p>\n
In the event of any sale of the Premises by Landlord or the cessation
\notherwise of Landlord’s interest therein, Landlord shall be and is hereby
\nentirely released from any and all of its obligations to perform or further
\nperform under this Lease and from all liability hereunder accruing from or after
\nthe date of such sale; and the purchaser, at such sale or any subsequent sale of
\nthe Premises shall be deemed, without any further agreement between the parties
\nor their successors in interest or between the parties and any such purchaser,
\nto have assumed and agreed to carry out any and all of the covenants and
\nobligations of the Landlord under this Lease. For purposes of this Section 25,
\nthe term “Landlord” means only the owner and\/or agent of the owner as such
\nparties exist as of the date on which Tenant executes this Lease. A ground lease
\nor similar long term lease by Landlord of the entire Building, of which the
\nPremises are a part, shall be deemed a sale within the meaning of this. Section
\n25. Tenant agrees to attorn to such new owner provided such new owner does not
\ndisturb Tenant’s use, occupancy or quiet enjoyment of the Premises so long as
\nTenant is not in default of any of the provisions of this Lease.<\/p>\n
26. WAIVER<\/p>\n
No delay or omission in the exercise of any right or remedy of Landlord
\non any default by Tenant shall impair such a right or remedy or be construed as
\na waiver. No delay or omission in the exercise of any right or remedy of Tenant
\non any default by Landlord shall impair such a right or remedy or be construed
\nas a waiver. The subsequent acceptance of Rent by Landlord after default by
\nTenant of any covenant or term of this Lease shall not be deemed a waiver of
\nsuch default, other than a waiver of timely payment for the particular Rent
\npayment involved, and shall not prevent Landlord from maintaining an unlawful
\ndetainer or other action based on such breach. No payment by Tenant or receipt
\nby Landlord of a lesser amount than the monthly Rent and other sums due
\nhereunder shall be deemed to be other than on account of the earliest Rent or
\nother sums due, nor shall any endorsement or statement on any check or
\naccompanying any check or payment be deemed an accord and satisfaction; and
\nLandlord may accept such check or payment without prejudice to Landlord’s right
\nto recover the balance of such Rent or other sum or pursue any other remedy
\nprovided in this Lease. No failure, partial exercise or delay on the part of the
\nLandlord in exercising any right, power or privilege hereunder shall operate as
\na waiver thereof.<\/p>\n
27. CASUALTY DAMAGE<\/p>\n
If the Premises or any part thereof shall be damaged by fire or other
\ncasualty, Tenant shall give prompt written notice thereof to Landlord. In case
\nthe Building shall be so damaged by fire or other<\/p>\n
21<\/p>\n
casualty that substantial alteration or reconstruction of the Building shall, in
\nLandlord’s reasonable opinion, be required (whether or not the Premises shall
\nhave been damaged by such fire or other casualty), Landlord may, at its option,
\nterminate this Lease by noticing Tenant in writing of such termination within
\nninety (90) days after the date of such damage, in which event the Rent shall be
\nabated as of the date of such damage. If Landlord does not elect to terminate
\nthis Lease, and provided insurance proceeds and any contributions from Tenant,
\nif necessary, are available to fully repair the damage, Landlord shall within
\none hundred twenty (120) days after the date of such damage commence to repair
\nand restore the Building and shall proceed with reasonable diligence to restore
\nthe Building (except that Landlord shall not be responsible for delays outside
\nits control) to substantially the same condition in which it was immediately
\nprior to the happening of the casualty; provided, Landlord shall not be required
\nto rebuild, repair, or replace any part of Tenant’s furniture, furnishings,
\nfixtures and\/or equipment removable by Tenant or any improvements, alterations
\nor additions installed by or for the benefit of Tenant under the provisions of
\nthis Lease. Landlord shall not in any event be required to spend for such work
\nan amount in excess of the insurance proceeds (excluding any deductible) and any
\ncontributions from Tenant, if necessary, actually received by Landlord as a
\nresult of the fire or other casualty. Landlord shall not be liable for any
\ninconvenience or annoyance to Tenant, injury to the business of Tenant, loss of
\nuse of any part of the Premises by the Tenant or loss of Tenant’s personal
\nproperty resulting in any way from such damage or the repair thereof, except to
\nthe extent caused by Landlord’s gross negligence or willful misconduct, and
\nexcept that, subject to the provisions of the next sentence, Landlord shall
\nallow Tenant a fair diminution of Rent during the time and to the extent the
\nPremises are unfit for occupancy. Notwithstanding anything to the contrary
\ncontained herein, if the Premises or any other portion of the Building be
\ndamaged by fire or other casualty resulting from the intentional or negligent
\nacts or omissions of Tenant or any of Tenant’s Representatives, (i) the Rent
\nshall not be diminished during the repair of such damage, (ii) Tenant shall not
\nhave any right to terminate this Lease due to the occurrence of such casualty or
\ndamage, and (iii) Tenant shall be liable to Landlord for the cost and expense of
\nthe repair and restoration of all or any portion of the Building caused thereby
\n(including, without limitation, any deductible) to the extent such cost and
\nexpense is not covered by insurance proceeds. In the event the holder of any
\nindebtedness secured by the Premises requires that the insurance proceeds be
\napplied to such indebtedness, then Landlord shall have the right to terminate
\nthis Lease by delivering written notice of termination to Tenant within thirty
\n(30) days after the date of notice to Tenant of any such event, whereupon all
\nrights and obligations shall cease and terminate hereunder except for those
\nobligations expressly intended to survive any such termination of this Lease.
\nExcept as otherwise provided in this Section 27, Tenant hereby waives the
\nprovisions of Sections 1932(2.), 1933(4.), 1941 and 1942 of the California Civil
\nCode.<\/p>\n
28. CONDEMNATION<\/p>\n
If twenty-five percent (25%) or more of the Premises is condemned by
\neminent domain, inversely condemned or sold in lieu of condemnation for any
\npublic or quasi-public use or purpose (“Condemned”), then Tenant or Landlord may
\nterminate this Lease as of the date when physical possession of the Premises is
\ntaken and title vests in such condemning authority, and Rent shall be adjusted
\nto the date of termination. Tenant shall not because of such condemnation assert
\nany claim against Landlord or the condemning authority for any compensation
\nbecause of such condemnation, and Landlord shall be entitled to receive the
\nentire amount of any award without deduction for any estate of interest or other
\ninterest of Tenant; provided, however, the foregoing provisions shall not
\npreclude Tenant, at Tenant’s sole cost and expense, from obtaining any separate
\naward to Tenant for loss of or damage to Tenant’s trade fixtures and removable
\npersonal property or for damages for cessation or interruption of Tenant’s
\nbusiness provide such award is separate from Landlord’s award and provided
\nfurther such separate award neither diminishes nor impairs the award otherwise
\npayable to Landlord. In addition to the foregoing, Tenant shall be entitled to
\nseek compensation for the relocation costs recoverable by Tenant pursuant to the
\nprovisions of California Government Code Section 7262. If neither party elects
\nto terminate this Lease, Landlord shall, if necessary, promptly proceed to
\nrestore the Premises or the Building to substantially its same condition prior
\nto such partial condemnation, allowing for the reasonable effects of such
\npartial condemnation, and a proportionate allowance shall be made to Tenant, as
\nreasonably determined by Landlord, for the Rent corresponding to the time during
\nwhich, and to the part of the Premises of which, Tenant is deprived on account
\nof such partial condemnation and restoration. Landlord shall not be required to
\nspend fluids for restoration in excess of the amount received by Landlord as
\ncompensation awarded.<\/p>\n
29. ENVIRONMENTAL MATTERS\/HAZARDOUS MATERIALS<\/p>\n
29.1 HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE: Prior to executing
\nthis Lease, Tenant has completed, executed and delivered to Landlord Tenant’s
\ninitial Hazardous Materials Disclosure Certificate (the “Initial HazMat
\nCertificate”), a copy of which is attached hereto as EXHIBIT G and incorporated
\nherein by this reference. Tenant covenants, represents and warrants to Landlord
\nthat the information on the Initial HazMat Certificate is true and correct and
\naccurately describes the use(s) of Hazardous Materials which will be made and\/or
\nused on the Premises by Tenant. Tenant shall commencing with the date which is
\none year from the Commencement Date and continuing every year<\/p>\n
22<\/p>\n
thereafter, complete, execute, and deliver to Landlord, a Hazardous Materials
\nDisclosure Certificate (“the “HazMat Certificate”) describing Tenant’s present
\nuse of Hazardous Materials on the Premises, and any other reasonably necessary
\ndocuments as requested by Landlord. The HazMat Certificate required hereunder
\nshall be in substantially the form as that which is attached hereto as EXHIBIT
\nE.<\/p>\n
29.2 DEFINITION OF HAZARDOUS MATERIALS: As used in this Lease, the
\nterm Hazardous Materials shall mean and include (a) any hazardous or toxic
\nwastes, materials or substances, and other pollutants or contaminants, which are
\nor become regulated by any Environmental Laws; (b) petroleum, petroleum by
\nproducts, gasoline, diesel fuel, crude oil or any fraction thereof; (c) asbestos
\nand asbestos containing material, in any form, whether friable or non-friable;
\n(d) polychlorinated biphenyls; (e) radioactive materials; (f) lead and
\nlead-containing materials; (g) any other material, waste or substance displaying
\ntoxic, reactive, ignitable or corrosive characteristics, as all such terms are
\nused in their broadest sense, and are defined or become defined by any
\nEnvironmental Law (defined below); or (h) any materials which cause or threatens
\nto cause a nuisance upon or waste to any portion of the Premises, the Building,
\nthe Lot, the Park or any surrounding property; or poses or threatens to pose a
\nhazard to the health and safety of persons on the Premises or any surrounding
\nproperty.<\/p>\n
29.3 PROHIBITION; ENVIRONMENTAL LAWS: Tenant shall not be entitled
\nto use nor store any Hazardous Materials on, in, or about the Premises, the
\nBuilding, the Lot and the Park, or any portion of the foregoing, without, in
\neach instance, obtaining Landlord’s prior written consent thereto. If Landlord
\nconsents to any such usage or storage, then Tenant shall be permitted to use
\nand\/or store only those Hazardous Materials that are necessary for Tenant’s
\nbusiness and to the extent disclosed in the HazMat Certificate (and any updates
\nthereof) and as expressly approved by Landlord in writing, provided that such
\nusage and storage is only to the extent of the quantities of Hazardous Materials
\nas specified in the then applicable HazMat Certificate as expressly approved by
\nLandlord and provided further that such usage and storage is in full compliance
\nwith any and all local, state and federal environmental, health and\/or
\nsafety-related laws, statutes, orders, standards, courts’ decisions, ordinances,
\nrules and regulations (as interpreted by judicial and administrative decisions),
\ndecrees, directives, guidelines, permits or permit conditions, currently
\nexisting and as amended, enacted, issued or adopted in the future which are or
\nbecome applicable to Tenant or all or any portion of the Premises (collectively,
\nthe “Environmental Laws”). Tenant agrees that any changes to the type and\/or
\nquantities of Hazardous Materials specified in the most recent HazMat
\nCertificate may be implemented only with the prior written consent of Landlord,
\nwhich consent may be given or withheld in Landlord’s sole discretion. Tenant
\nshall not be entitled nor permitted to install any tanks under, on or about the
\nPremises for the storage of Hazardous Materials without the express written
\nconsent of Landlord, which may be given or withheld in Landlord’s sole
\ndiscretion. Landlord shall have the right during ordinary business hours during
\nthe Term of this Lease, upon one business day’s advance written notice to (i)
\ninspect the Premises, (ii) conduct tests and investigations to determine whether
\nTenant is in compliance with the provisions of this Section 29, and (iii)
\nrequest lists of all Hazardous Materials used, stored or otherwise located on,
\nunder or about any portion of the Premises and\/or the Common Areas. The cost of
\nall such inspections, tests and investigations shall be borne solely by Tenant,
\nif Landlord reasonably determines that Tenant or any of Tenant’s Representatives
\nare directly or indirectly responsible in any manner for any contamination
\nrevealed by such inspections, tests and investigations. The aforementioned
\nrights granted herein to Landlord and its representatives shall not create (a) a
\nduty on Landlord’s part to inspect, test, investigate, monitor or otherwise
\nobserve the Premises or the activities of Tenant and Tenant’s Representatives
\nwith respect to Hazardous Materials, including without limitation, Tenant’s
\noperation, use and any remediation related thereto, or (b) liability on the part
\nof Landlord and its representatives for Tenant’s use, storage, disposal or
\nremediation of Hazardous Materials, it being understood that Tenant shall be
\nsolely responsible for all liability in connection therewith.<\/p>\n
29.4 TENANT’S ENVIRONMENTAL OBLIGATIONS: Tenant shall give to
\nLandlord immediate verbal and follow-up written notice of any spills, releases,
\ndischarges, disposals, emissions, migrations, removals or transportation of
\nHazardous Materials on, under or about any portion of the Premises or in any
\nCommon Areas. Tenant, at its sole cost and expense, covenants and warrants to
\npromptly investigate, clean up, remove, restore and otherwise remediate
\n(including, without limitation, preparation of any feasibility studies or
\nreports and the performance of any and all closures) any spill, release,
\ndischarge, disposal, emission, migration or transportation of Hazardous
\nMaterials arising from or related to the intentional or negligent acts or
\nomissions of Tenant or Tenant’s Representatives such that the affected portions
\nof the Park and any adjacent property are returned to the condition existing
\nprior to the appearance of such Hazardous Materials. Any such investigation,
\nclean up, removal, restoration and other remediation shall only be performed
\nafter Tenant has obtained Landlord’s prior written consent, which consent shall
\nnot be unreasonably withheld, conditioned or delayed so long as such actions
\nwould not potentially have a material adverse long-term or short-term effect on
\nany portion of the Premises, the Building, the Lot or the Park. Notwithstanding
\nthe foregoing, Tenant shall be entitled to respond immediately to an emergency
\nwithout first obtaining Landlord’s prior written consent. Tenant, at its sole
\ncost and expense, shall conduct and perform, or cause to be conducted and
\nperformed, all closures as required by any Environmental Laws or any agencies or
\nother governmental authorities having jurisdiction thereof. If Tenant fails to
\nso promptly investigate, clean up, remove, restore, provide closure<\/p>\n
23<\/p>\n
or otherwise so remediate, Landlord may, but without obligation to do so, take
\nany and all steps necessary to rectify the same and Tenant shall promptly
\nreimburse Landlord, upon demand, for all costs and expenses to Landlord of
\nperforming investigation, clean up, removal, restoration, closure and
\nremediation work. All such work undertaken by Tenant, as required herein, shall
\nbe performed in such a manner so as to enable Landlord to make full economic use
\nof the Premises, the Building, the Lot and the Park after the satisfactory
\ncompletion of such work.<\/p>\n
29.5 ENVIRONMENTAL INDEMNITY: In addition to Tenant’s obligations
\nas set forth hereinabove, Tenant and Tenant’s officers and directors agree to,
\nand shall, protect, indemnify, defend (with counsel acceptable to Landlord) and
\nhold Landlord and the other Indemnitees harmless from and against any and all
\nclaims, judgments, damages, penalties, fines, liabilities, losses (including,
\nwithout limitation, diminution in value of any portion of the Premises, the
\nBuilding, the Lot or the Park, damages for the loss of or restriction on the use
\nof rentable or usable space, and from any adverse impact of Landlord’s marketing
\nof any space within the Building and\/or Park), suits, administrative proceedings
\nand costs (including, but not limited to, attorneys’ and consultant fees and
\ncourt costs) arising at any time during or after the Term of this Lease in
\nconnection with or related to, directly or indirectly, the use, presence,
\ntransportation, storage, disposal, migration, removal, spill, release or
\ndischarge of Hazardous Materials on, in or about any portion of the Premises,
\nthe Common Areas, the Building, the Lot or the Park as a result (directly or
\nindirectly) of the intentional or negligent acts or omissions of Tenant or any
\nof Tenant’s Representatives. Neither the written consent of Landlord to the
\npresence, use or storage of Hazardous Materials in, on, under or about any
\nportion of the Premises, the Building, the Lot and\/or the Park, nor the strict
\ncompliance by Tenant with all Environmental Laws shall excuse Tenant and
\nTenant’s officers and directors from its obligations of indemnification pursuant
\nhereto. Tenant shall not be relieved of its indemnification obligations under
\nthe provisions of this Section 29.5 due to Landlord’s status as either an
\n“owner” or “operator” under any Environmental Laws.<\/p>\n
29.6 SURVIVAL: Tenant’s obligations and liabilities pursuant to the
\nprovisions of this Section 29 shall survive the expiration or earlier
\ntermination of this Lease. If it is determined by Landlord that the condition of
\nall or any portion of the Premises, the Building, the Lot and\/or the Park is not
\nin compliance with the provisions of this Lease with respect to Hazardous
\nMaterials, including without limitation all Environmental Laws at the expiration
\nor earlier termination of this Lease, then in Landlord’s reasonable discretion,
\nLandlord may require Tenant to hold over possession of the Premises until Tenant
\ncan surrender the Premises to Landlord in the condition in which the Premises
\nexisted as of the Commencement Date and prior to the appearance of such
\nHazardous Materials except for reasonable wear and tear, including without
\nlimitation, the conduct or performance of any closures as required by any
\nEnvironmental Laws. The burden of proof hereunder shall be upon Tenant. For
\npurposes hereof, the term “reasonable wear and tear” shall not include any
\ndeterioration in the condition or diminution of the value of any portion of the
\nPremises, the Building, the Lot and\/or the Park in any manner whatsoever related
\nto directly, or indirectly, Hazardous Materials. Any such holdover by Tenant
\nwill be with Landlord’s consent, will not be terminable by Tenant in any event
\nor circumstance and will otherwise be subject to the provisions of Section 22 of
\nthis Lease.<\/p>\n
EXCULPATION OF TENANT: Tenant shall not be liable to Landlord (either
\ndirectly or as an Operating Expense) for nor otherwise obligated to Landlord
\nunder any provision of the Lease with respect to the following: (i) any claim,
\nremediation, obligation, investigation, obligation, liability, cause of action,
\nattorney’s fees, consultants’ cost, expense or damage resulting from any
\nHazardous Materials present in, on or about the Premises or the Buildings to the
\nextent not caused or otherwise permitted, directly or indirectly, by Tenant or
\nTenant’s Representatives; or (ii) the removal, investigation, monitoring or
\nremediation of any Hazardous Material present in, on or about the Premises or
\nthe Building caused by any source, including third parties, other than Tenant or
\nTenant’s Representatives; provided, however, Tenant shall be fully liable for
\nand otherwise obligated to Landlord under the provisions of this Lease for all
\nliabilities, costs, damages, penalties, claims, judgments, expenses (including
\nwithout limitation, attorneys’ and experts’ fees and costs) and losses to the
\nextent (a) Tenant or any of Tenant’s Representatives contributes to the presence
\nof such Hazardous Materials, or Tenant and\/or any of Tenant’s Representatives
\nexacerbates the conditions caused by such Hazardous Materials, or (b) Tenant
\nand\/or Tenant’s Representatives allows or permits persons over which Tenant or
\nany of Tenant’s Representatives has control, and\/or for which Tenant or any of
\nTenant’s Representatives are legally responsible for, to cause such Hazardous
\nMaterials to be present in, on, under, through or about any portion of the
\nPremises, the Common Areas, the Building or the Park, or (c) Tenant and\/or any
\nof Tenant’s Representatives does not take all reasonably appropriate actions to
\nprevent such persons over which Tenant or any of Tenant’s Representatives has
\ncontrol and\/or for which Tenant or any of Tenant’s Representatives are legally
\nresponsible from causing the presence of Hazardous Materials in, on, under,
\nthrough or about any portion of the Premises, the Common Areas, the Building or
\nthe Park.<\/p>\n
30. FINANCIAL STATEMENTS<\/p>\n
Tenant, for the reliance of Landlord, any lender holding or anticipated
\nto acquire a lien upon the Premises, the Building or the Park or any portion
\nthereof, or any prospective purchaser of the Building or<\/p>\n
24<\/p>\n
the Park or any portion thereof, within ten (10) days after Landlord’s request
\ntherefor, but not more often than once annually so long as Tenant is not in
\ndefault of this Lease, shall deliver to Landlord the then current audited
\nfinancial statements of Tenant (including interim periods following the end of
\nthe last fiscal year for which annual statements are available) which statements
\nshall be prepared or compiled by a certified public accountant and shall present
\nfairly the financial condition of Tenant at such dates and the result of its
\noperations and changes in its financial positions for the periods ended on such
\ndates. If an audited financial statement has not been prepared, Tenant shall
\nprovide Landlord with an unaudited financial statement and\/or such other
\ninformation, the type and form of which are acceptable to Landlord in Landlord’s
\nreasonable discretion, which reflects the financial condition of Tenant. If
\nLandlord so requests, Tenant shall deliver to Landlord an opinion of a certified
\npublic accountant, including a balance sheet and profit and loss statement for
\nthe most recent prior year, all prepared in accordance with generally accepted
\naccounting principles consistently applied. Any and all options granted to
\nTenant hereunder shall be subject to and conditioned upon Landlord’s reasonable
\napproval of Tenant’s financial condition at the time of Tenant’s exercise of any
\nsuch option. In the event Tenant shall remain a privately held company, Landlord
\nshall not disclose any of Tenant’s financial statements without Tenant’s
\nconsent, which consent shall not be unreasonably withheld, conditioned or
\ndelayed, except Landlord may disclose such financial statements to its joint
\nventure partners, lenders, attorneys, accountants, prospective buyers and
\nlenders, agents, employees, and property manager without Tenant’s consent.<\/p>\n
31. GENERAL PROVISIONS<\/p>\n
31.1 TIME. Time is of the essence in this Lease and with respect to
\neach and all of its provisions in which performance is a factor.<\/p>\n
31.2 SUCCESSORS AND ASSIGNS. The covenants and conditions herein
\ncontained, subject to the provisions as to assignment, apply to and bind the
\nheirs, successors, executors, administrators and assigns of the parties hereto.<\/p>\n
31.3 RECORDATION. Tenant shall not record this Lease or a short
\nform memorandum hereof without the prior written consent of the Landlord.<\/p>\n
31.4 LANDLORD’S PERSONAL LIABILITY. The liability of Landlord
\n(which, for purposes of this Lease, shall include Landlord and the owner of the
\nBuilding if other than Landlord) to Tenant for any default by Landlord under the
\nterms of this Lease shall be limited to the actual interest of Landlord and its
\npresent or future partners or members in the Premises or the Building and the
\nproceeds therefrom, and Tenant agrees to look solely to the Premises for
\nsatisfaction of any liability and shall not look to other assets of Landlord nor
\nseek any recourse against the assets of the individual partners, members,
\ndirectors, officers, shareholders, agents or employees of Landlord (including
\nwithout limitation, any property management company of Landlord); it being
\nintended that Landlord and the individual partners, members, directors,
\nofficers, shareholders, agents and employees of Landlord (including without
\nlimitation any property management company of Landlord) shall not be personally
\nliable in any manner whatsoever for any judgment or deficiency. The liability of
\nLandlord under this Lease is limited to its actual ownership of title to the
\nBuilding, and Landlord shall be automatically released from further performance
\nunder this Lease upon transfer of Landlord’s interest in the Premises or the
\nBuilding.<\/p>\n
31.5 SEPARABILITY. Any provisions of this Lease which shall prove
\nto be invalid, void or illegal shall in no way affect, impair or invalidate any
\nother provisions hereof and such other provision shall remain in full force and
\neffect.<\/p>\n
31.6 CHOICE OF LAW. This Lease shall be governed by, and construed
\nin accordance with, the laws of the State of California.<\/p>\n
31.7 ATTORNEYS’ FEES. In the event any dispute between the parties
\nresults in litigation or other proceeding, the prevailing party shall be
\nreimbursed by the party not prevailing for all reasonable costs and expenses,
\nincluding, without limitation, reasonable attorneys’ and experts’ fees and costs
\nincurred by the prevailing party in connection with such litigation or other
\nproceeding, and any appeal thereof. Such costs, expenses and fees shall be
\nincluded in and made a part of the judgment recovered by the prevailing party,
\nif any.<\/p>\n
31.8 ENTIRE AGREEMENT. This Lease supersedes any prior agreements,
\nrepresentations, negotiations or correspondence between the parties, and
\ncontains the entire agreement of the parties on matters covered. No other
\nagreement, statement or promise made by any party, that is not in writing and
\nsigned by all parties to this Lease, shall be binding.<\/p>\n
31.9 WARRANTY OF AUTHORITY. On the date that each party executes
\nthis Lease, each party shall deliver to the other an original certificate of
\nstatus for itself issued by the California Secretary of State or statement of
\npartnership for itself recorded in the county in which the Premises &e located,
\nas applicable. Each person executing this Lease on behalf of a party represents
\nand warrants that (1) such<\/p>\n
25<\/p>\n
person is duly and validly authorized to do so on behalf of the entity it
\npurports to so bind, and (2) if such party is a partnership, corporation or
\ntrustee, that such partnership, corporation or trustee has full right and
\nauthority to enter into this Lease and perform all of its obligations hereunder.
\nTenant hereby warrants that this Lease is valid and binding upon Tenant and
\nenforceable against Tenant in accordance with its terms.<\/p>\n
31.10 NOTICES. Any and all notices and demands required or permitted
\nto be given hereunder to Landlord shall be in writing and shall be sent: (a) by
\nUnited States mail, certified and postage prepaid; or (1,)by personal delivery;
\nor (c) by overnight courier, addressed to Landlord at 101 Lincoln Centre Drive,
\nFourth Floor, Foster City, California 94404-1167. Any and all notices and
\ndemands required or permitted to be given hereunder to Tenant shall be in
\nwriting and shall be sent: (i) by United States mail, certified and postage
\nprepaid; or (ii) by personal delivery to any employee or agent of Tenant over
\nthe age of eighteen (18) years of age; or (iii) by overnight courier, all of
\nwhich shall be addressed to Tenant at the Premises. Notice and\/or demand shall
\nbe deemed given upon the earlier of actual receipt or the third day following
\ndeposit in the United States mail. Any notice or requirement of service required
\nby any statute or law now or hereafter in effect, including, but not limited to,
\nCalifornia Code of Civil Procedure Sections 1161, 1161.1, and 1162 (including
\nany amendments, supplements or substitutions thereof), is hereby waived by
\nTenant.<\/p>\n
31.11 JOINT AND SEVERAL. If Tenant consists of more than one person
\nor entity, the obligations of all such persons or entities shall be joint and
\nseveral.<\/p>\n
31.12 COVENANTS AND CONDITIONS. Each provision to be performed by
\nTenant hereunder shall be deemed to be both a covenant and a condition.<\/p>\n
31.13 WAIVER OF JURY TRIAL. The parties hereto shall and they hereby
\ndo waive trial by jury in any action, proceeding or counterclaim brought by
\neither of the parties hereto against the other on any matters whatsoever arising
\nout of or in any way related to this Lease, the relationship of Landlord and
\nTenant, Tenant’s use or occupancy of the Premises, the Building or the Park,
\nand\/or any claim of injury, loss or damage.<\/p>\n
31.14 INTENTIONALLY OMITTED.<\/p>\n
31.15 UNDERLINING. The use of underlining within the Lease is for
\nLandlord’s reference purposes only and no other meaning or emphasis is intended
\nby this use, nor should any be inferred.<\/p>\n
MERGER. The voluntary or other surrender of this Lease by Tenant, the
\nmutual termination or cancellation hereof by Landlord and Tenant, or a
\ntermination of this Lease by Landlord for a material default by Tenant
\nhereunder, shall not work a merger, and, at the sole option of Landlord, (i)
\nshall terminate all or any existing subleases or subtenancies, or (ii) may
\noperate as an assignment to Landlord of any or all of such subleases or
\nsubtenancies. Landlord’s election of either or both of the foregoing options
\nshall be exercised by delivery by Landlord of written notice thereof to Tenant
\nand all known subtenants under any sublease.<\/p>\n
32. SIGNS<\/p>\n
All signs and graphics of every kind visible in or from public view or
\ncorridors or the exterior of the Premises shall be subject to Landlord’s prior
\nwritten approval and shall be subject to any applicable governmental laws,
\nordinances, and regulations and in compliance with Landlord’s sign criteria as
\nsame may exist from time to time or as set forth in Exhibit H hereto and made a
\npart hereof. Tenant shall remove all such signs and graphics prior to the
\ntermination of this Lease. Such installations and removals shall be made in a
\nmanner as to avoid damage or defacement of the Premises; and Tenant shall repair
\nany damage or defacement, including without limitation, discoloration caused by
\nsuch installation or removal. Landlord shall have the right, at its option, to
\ndeduct from the Security Deposit such sums as are reasonably necessary to remove
\nsuch signs, including, but not limited to, the costs and expenses associated
\nwith any repairs necessitated by such removal. Notwithstanding the foregoing, in
\nno event shall any: (a) neon, flashing or moving sign(s) or (b) sign(s) which
\nshall interfere with the visibility of any sign, awning, canopy, advertising
\nmatter, or decoration of any kind of any other business or occupant of the
\nBuilding or the Park be permitted hereunder. Tenant further agrees to maintain
\nany such sign, awning, canopy, advertising matter, lettering, decoration or
\nother thing as may be approved in good condition and repair at all times.<\/p>\n
33. MORTGAGEE PROTECTION<\/p>\n
Upon any default on the part of Landlord, Tenant will give written
\nnotice by registered or certified mail to any beneficiary of a deed of trust or
\nmortgagee of a mortgage covering the Premises who has requested such notice and
\nprovided Tenant with notice of their interest together with an address for
\nreceiving notice, and shall offer such beneficiary or mortgagee a reasonable
\nopportunity to cure the default (which, in no event shall be less than ninety
\n(90) days nor more than one hundred twenty (120)<\/p>\n
26<\/p>\n
days), including time to obtain possession of the Premises by power of sale or a
\njudicial foreclosure, if such should prove necessary to effect a cure. If such
\ndefault cannot be cured within such time period, then such additional time as
\nmay be necessary will be given to such beneficiary or mortgagee to effect such
\ncure so long as such beneficiary or mortgagee has commenced the cure within the
\noriginal time period and thereafter diligently pursues such cure to completion,
\nin which event this Lease shall not be terminated while such cure is being
\ndiligently pursued. Tenant agrees that each lender to whom this Lease has been
\nassigned by Landlord is an express third party beneficiary hereof. Tenant shall
\nnot make any prepayment of Rent more than one (1) month in advance without the
\nprior written consent of each such lender, except if Tenant is required to make
\nquarterly payments of Rent in advance pursuant to the provisions of Section 8
\nabove. Tenant waives the collection of any deposit from such lender(s) or any
\npurchaser at a foreclosure sale of such lender(s)’ deed of trust unless the
\nlender(s) or such purchaser shall have actually received and not refunded the
\ndeposit. Tenant agrees to make all payments under this Lease to the lender with
\nthe most senior encumbrance upon receiving a direction, in writing, to pay said
\namounts to such lender. Tenant shall comply with such written direction to pay
\nwithout determining whether an event of default exists under such lender’s loan
\nto Landlord.<\/p>\n
34. QUITCLAIM<\/p>\n
Upon any termination of this Lease, Tenant shall, at Landlord’s
\nrequest, execute, have acknowledged and deliver to Landlord a quitclaim deed of
\nTenant’s interest in and to the Premises. If Tenant fails to so deliver to
\nLandlord such a quitclaim deed, Tenant hereby agrees that Landlord shall have
\nthe full authority and right to record such a quitclaim deed signed only by
\nLandlord and such quitclaim deed shall be deemed conclusive and binding upon
\nTenant.<\/p>\n
35. MODIFICATIONS FOR LENDER<\/p>\n
If; in connection with obtaining financing for the Premises or any
\nportion thereof; Landlord’s lender shall request reasonable modification(s) to
\nthis Lease as a condition to such financing, Tenant shall not unreasonably
\nwithhold, delay or defer its consent thereto, provided such modifications do not
\nmaterially adversely affect Tenant’s rights hereunder or the use, occupancy or
\nquiet enjoyment of Tenant hereunder.<\/p>\n
36. WARRANTIES OF TENANT<\/p>\n
Tenant hereby warrants and represents to Landlord, for the express
\nbenefit of Landlord, that Tenant has undertaken a complete and independent
\nevaluation of the risks inherent in the execution of this Lease and the
\noperation of the Premises for the use permitted hereby, and that, based upon
\nsaid independent evaluation, Tenant has elected to enter into this Lease and
\nhereby assumes all risks with respect thereto. Tenant hereby further warrants
\nand represents to Landlord, for the express benefit of Landlord, that in
\nentering into this Lease, Tenant has not relied upon any statement, fact,
\npromise or representation whether express or implied, written or oral) not
\nspecifically set forth herein in writing and that any statement, fact, promise
\nor representation (whether express or implied, written or oral) made at any time
\nto Tenant, which is not expressly incorporated herein in writing, is hereby
\nwaived by Tenant.<\/p>\n
37. COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT<\/p>\n
Landlord and Tenant hereby agree and acknowledge that the Premises, the
\nBuilding and\/or the Park may be subject to the requirements of the Americans
\nwith Disabilities Act, a federal law codified at 42 U.S.C. 12101 et seq.,
\nincluding, but not limited to Title III thereof, all regulations and guidelines
\nrelated thereto, together with any and all laws, rules, regulations, ordinances,
\ncodes and statutes now or hereafter enacted by local or state agencies having
\njurisdiction thereof, including all requirements of Title 24 of the State of
\nCalifornia, as the same may be in effect on the date of this Lease and may be
\nhereafter modified, amended or supplemented (collectively, the “ADA”). Any
\nTenant Improvements to be constructed hereunder shall be in compliance with the
\nrequirements of the ADA, and all costs incurred for purposes of compliance
\ntherewith shall be a part of and included in the costs of the Tenant
\nImprovements. Tenant shall be solely responsible for conducting its own
\nindependent investigation of this matter and for ensuring that the design of all
\nTenant Improvements strictly comply with all requirements of the ADA. Subject to
\nreimbursement pursuant to Section 6 of the Lease, if any barrier removal work or
\nother work is required to the Building, the Common Areas or the Park under the
\nADA, then such work shall be the responsibility of Landlord; provided, if such
\nwork is required under the ADA as a result of Tenant’s use of the Premises or
\nany work or alteration made to the Premises by or on behalf of Tenant, then such
\nwork shall be performed by Landlord at the sole cost and expense of Tenant.
\nExcept as otherwise expressly provided in this provision, Tenant shall be
\nresponsible at its sole cost and expense for fully and faithfully complying with
\nall applicable requirements of the ADA, including without limitation, not
\ndiscriminating against any disabled persons in the operation of Tenant’s
\nbusiness in or about the Premises, and offering or otherwise providing auxiliary
\naids and services as, and when, required by the ADA. Within ten (10) days after
\nreceipt, Landlord and Tenant shall advise the other party in writing, and
\nprovide the other with copies of (as applicable), any notices alleging violation
\nof the ADA relating to any portion of the<\/p>\n
27<\/p>\n
Premises or the Building; any claims made or threatened in writing regarding
\nnoncompliance with the ADA and relating to any portion of the Premises or the
\nBuilding; or any governmental or regulatory actions or investigations instituted
\nor threatened regarding noncompliance with the ADA and relating to any portion
\nof the Premises or the Building. Tenant shall and hereby agrees to protect,
\ndefend (with counsel acceptable to Landlord) and hold Landlord and the other
\nindemnitees harmless and indemnify the indemnitees from and against all
\nliabilities, damages, claims, losses, penalties, judgments, charges and expenses
\n(including reasonable attorneys’ fees, costs of court and expenses necessary m
\nthe prosecution or defense of any litigation including the enforcement of this
\nprovision) arising from or in any way related to, directly or indirectly,
\nTenant’s or Tenant’s Representatives’ violation or alleged violation of the ADA.
\nTenant agrees that the obligations of Tenant herein shall survive the expiration
\nor earlier termination of this Lease.<\/p>\n
38. BROKERAGE COMMISSION<\/p>\n
Landlord and Tenant each represents and warrants for the benefit of the
\nother that it has had no dealings with any real estate broker, agent or finder
\nin connection with the Premises and\/or the negotiation of this Lease, except for
\nthe Broker(s) (as set forth on Page 1), and that it knows of no other real
\nestate broker, agent or finder who is or might be entitled to a real estate
\nbrokerage commission or finder’s fee in connection with this Lease or otherwise
\nbased upon contacts between the claimant and Tenant. Each party shall indemnify
\nand hold harmless the other from and against any and all liabilities or expenses
\narising out of claims made for a fee or commission by any real estate broker,
\nagent or finder in connection with the Premises and this Lease other than
\nBroker(s), if any, resulting from the actions of the indemnifying party. Any
\nreal estate brokerage commission or finder’s fee payable to the Broker(s) in
\nconnection with this Lease shall by paid by Landlord and only be payable and
\napplicable to the extent of the initial Term of the Lease and to the extent of
\nthe Premises as same exist as of the date on which Tenant executes this Lease.
\nUnless expressly agreed to in writing by Landlord and Broker(s), no real estate
\nbrokerage commission or finder’s fee shall be owed to, or otherwise payable to,
\nthe Broker(s) for any renewals or other extensions of the initial Term of this
\nLease or for any additional space leased by Tenant other than the Premises as
\nsame exists as of the date on which Tenant executes this Lease. Tenant further
\nrepresents and warrants to Landlord that Tenant will not receive (i) any portion
\nof any brokerage commission or finder’s fee payable to the Broker(s) in
\nconnection with this Lease or (ii) any other form of compensation or incentive
\nfrom the Broker(s) with respect to this Lease.<\/p>\n
39. QUIET ENJOYMENT<\/p>\n
Landlord covenants with Tenant, upon the paying of Rent and observing
\nand keeping the covenants, agreements and conditions of this Lease on its part
\nto be kept, and during the periods that Tenant is not otherwise in default of
\nany of the terms or provisions of this Lease, and subject to the rights of any
\nof Landlord’s lenders, (i) that Tenant shall and may peaceably and quietly hold,
\noccupy and enjoy the Premises and the Common Areas during the Term of this
\nLease, and (ii) neither Landlord, nor any successor or assign of Landlord, shall
\ndisturb Tenant’s occupancy or enjoyment of the Premises and the Common Areas.<\/p>\n
40. LANDLORD’S ABILITY TO PERFORM TENANT’S UNPERFORMED OBLIGATIONS<\/p>\n
Notwithstanding anything to the contrary contained in this Lease, if
\nTenant shall fail to perform any of the terms, provisions, covenants or
\nconditions to be performed or complied with by Tenant pursuant to this Lease,
\nand\/or if the failure of Tenant relates to a matter which in Landlord’s judgment
\nreasonably exercised is of an emergency nature and such failure shall remain
\nuncured for a period of time commensurate with such emergency, then Landlord
\nmay, at Landlord’s option without any obligation to do so, and in its sole
\ndiscretion as to the necessity therefor, perform any such term, provision,
\ncovenant, or condition, or make any such payment and Landlord by reason of so
\ndoing shall not be liable or responsible for any loss or damage thereby
\nsustained by Tenant or anyone holding under or through Tenant. If Landlord so
\nperforms any of Tenant’s obligations hereunder, the full amount of the cost and
\nexpense entailed or the payment so made or the amount of the loss so sustained
\nshall immediately be owing by Tenant to Landlord, and Tenant shall promptly pay
\nto Landlord upon demand, as Additional Rent, the full amount thereof with
\ninterest thereon from the date of payment at the greater of (i) ten percent
\n(10%) per annum, or (ii) the highest rate permitted by applicable law and
\nEnforcement Expenses.<\/p>\n
41. SECURITY DEPOSIT<\/p>\n
Upon Tenant’s execution of this Lease, Tenant shall deliver to
\nLandlord, as a Security Deposit for the performance by Tenant of its obligations
\nunder this Lease, the amount specified in the Basic Lease Information. If Tenant
\nis in default, Landlord may, but without obligation to do so, use the Security
\nDeposit, or any portion thereof, to cure the default or to compensate Landlord
\nfor all damages sustained by Landlord resulting from Tenant’s default,
\nincluding, but not limited to the Enforcement Expenses. Tenant shall,
\nimmediately on demand, pay to Landlord a sum equal to the portion of the
\nSecurity Deposit so applied or used so as to replenish the amount of the
\nSecurity Deposit held to increase such deposit to<\/p>\n
28<\/p>\n
the amount initially deposited with Landlord. As soon as practicable but no
\nlater than thirty (30) days after the termination of this Lease, Landlord shall
\nreturn the Security Deposit to Tenant, less such amounts as are reasonably
\nnecessary, as determined solely by Landlord, to remedy Tenant’s default(s)
\nhereunder or to otherwise restore the Premises to a clean and safe condition,
\nreasonable wear and tear excepted. If the cost to restore the Premises exceeds
\nthe amount of the Security Deposit, Tenant shall promptly deliver to Landlord
\nany and all of such excess sums as reasonably determined by Landlord. Landlord
\nshall not be required to keep the Security Deposit separate from other fluids,
\nand, unless otherwise required by law, Tenant shall not be entitled to interest
\non the Security Deposit. In no event or circumstance shall Tenant have the right
\nto any use of the Security Deposit and, specifically, Tenant may not use the
\nSecurity Deposit as a credit or to otherwise offset any payments required
\nhereunder, including, but not limited to, Rent or any portion thereof.<\/p>\n
42. SATELLITE DISH<\/p>\n
Tenant shall have the right (but only to the extent permitted by the
\nCity of San Diego and all agencies and governmental authorities having
\njurisdiction thereof), at Tenant’s sole cost and expense, to install and operate
\na satellite or microwave dish or dishes and related equipment (“Satellite
\nDishes”) along with any necessary cables (“Cables”) on a portion of the roof of
\nthe Building to be designated by Landlord (“Roof Space”) for the Term of the
\nLease (the Satellite Dishes and Cables are hereinafter collectively referred to
\nas the “Equipment”). The location and size of the Equipment shall be subject to
\nLandlord’s approval, not to be unreasonably withheld and which best promotes the
\nsafety, aesthetics and efficiency of the Equipment; provided, all of the
\nEquipment and any modifications thereto or placement thereof shall (i) be at
\nTenant’s sole cost and expense, (ii) be contained visually within a roof screen
\nto be at Tenant’s sole cost and expense, (iii) be installed and operated to
\nLandlord’s reasonable specifications, (iv) installed, maintained, operated and
\nremoved in accordance with all Recorded Matters, applicable Laws, and the
\nprovisions of Section 10 of this Lease, and (v) not affect any of the structural
\ncomponents or any of the systems of the Building. For purposes hereof, the
\nEquipment shall be construed as part of the Tenant’s Property and shall be
\nremoved by Tenant at the expiration or earlier termination of this Lease.
\nLandlord shall cooperate reasonably with Tenant to modify the roof screen
\nplacement (subject to all applicable Laws and Recorded Matters) if required for
\nsignal quality, reconfiguration due to the installation of any HVAC systems and
\nother reasonable considerations; provided, the cost of all such modifications
\nshall be solely the responsibility of Tenant. All modifications to the Building,
\nincluding the Roof Space, if any, shall be approved by Landlord prior to
\ncommencement of any work with respect to the Equipment. No additional rent shall
\nbe paid by Tenant for use of the Roof Space and operation of the Equipment. The
\nEquipment shall remain the property of Tenant and Tenant shall remove the
\nEquipment upon the expiration or earlier termination of the Lease in accordance
\nwith the provisions of Section 10 of this Lease. Tenant shall restore the Roof
\nSpace and any other portion of the Building affected by the Equipment to its
\noriginal condition, excepting ordinary wear and tear and\/or damage or
\ndestruction due to fire or other casualty not caused directly or indirectly by
\nTenant, its agents, employees, contractors or the Equipment or any part thereof.
\nNotwithstanding anything to the contrary contained herein, Tenant may not
\nassign, lease, rent, sublet or otherwise transfer any of its interest in the
\nRoof Space or the Equipment. Each of the other provisions of this Lease shall be
\napplicable to the Equipment and the use of the Roof Space by Tenant, including
\nwithout limitation, Sections 12 and 14 of this Lease. The Equipment shall comply
\nwith all rules and regulations of the Federal Communications Commission and all
\nother agencies having jurisdiction thereof if applicable, Tenant shall provide
\nto Landlord a copy of (i) the Federal Communications Commission (or other
\nagency) grant which has awarded frequencies to Tenant and (ii) a list of
\nTenant’s frequencies. Anything to the contrary contained herein notwithstanding,
\nif; during the Lease Term, as such Term may be extended, Landlord, in its
\nreasonable judgment, believes that the Equipment poses a threat to human health
\nor otherwise may be an environmental hazard that cannot be remediated or has not
\nbeen remediated within ten (10) days after Tenant has been notified thereof,
\nthen Tenant shall immediately cease all operations of the Equipment and Tenant
\nshall remove all of the Equipment within thirty (30) days thereafter. To the
\nbest of Tenant’s knowledge, Tenant represents to Landlord that the Equipment
\nshall not emit or project any electro-magnetic fields which pose a threat to
\nhuman health or otherwise may be an environmental hazard. In addition, Tenant
\nshall be solely responsible for insuring the Equipment and Landlord shall have
\nno responsibility therefor. Tenant shall indemnify, defend (by counsel
\nreasonably acceptable to Landlord) and hold harmless Landlord and the other
\nIndemnitees from and against any and all claims, demands, liabilities, damages,
\njudgments, losses, penalties, costs and expenses (including reasonable
\nattorneys’ fees) Landlord may suffer or incur arising out of or related to the
\ninstallation, use, operation, maintenance, replacement and\/or removal of the
\nEquipment or any portion thereof, including without limitation the cost of
\nrepairs and replacements to the roof of the Building occasioned by the
\ninstallation, maintenance, repairs and removal of the Equipment.<\/p>\n
29<\/p>\n
IN WITNESS WHEREOF, this Lease is executed by the parties as of the
\nLease Date referenced on Page 1 of this Lease.<\/p>\n
TENANT:<\/p>\n
WEBSENSE, INC.,
\nA DELAWARE CORPORATION<\/p>\n
By:
\n —————————————<\/p>\n
Its:
\n —————————————<\/p>\n
Date:
\n —————————————<\/p>\n
By:
\n —————————————<\/p>\n
Its:
\n —————————————<\/p>\n
Date:
\n —————————————<\/p>\n
LANDLORD:<\/p>\n
LEGACY-RECP SORRENTO OPCO, LLC
\nA DELAWARE LIMITED LIABILITY COMPANY<\/p>\n
By:
\n —————————————<\/p>\n
Its:
\n —————————————<\/p>\n
Date:
\n —————————————<\/p>\n
30<\/p>\n
EXHIBIT A – PREMISES<\/p>\n
This exhibit, entitled “Premises”, is and shall constitute EXHIBIT A to that
\ncertain Lease Agreement dated February 12, 2000 (the “Lease”), by and between
\nLegacy-RECP Sorrento OPCO, LLC, a Delaware limited liability company
\n(“Landlord”) and WEBSENSE, Inc., a Delaware corporation (“Tenant”) for the
\nleasing of certain premises at 10240 Sorrento Valley Road, Suite 150, San Diego,
\nCalifornia (the “Premises”).<\/p>\n
The Premises consist of the rentable square footage of space specified in the
\nBase Lease Information and has the address specified in the Base Lease
\nInformation. The Premises are a part of and are contained in the Building
\nspecified in the Base Lease Information. The cross-hatched area depicts the
\nPremises within the Building:<\/p>\n
[PICTURE]<\/p>\n
EXHIBIT B TO LEASE AGREEMENT
\n TENANT IMPROVEMENTS<\/p>\n
This exhibit, entitled “Tenant Improvements”, is and shall constitute EXHIBIT B
\nto that certain Lease Agreement dated February 12, 2000 (the “Lease”), by and
\nbetween Lincoln-RECP Sorrento OPCO, LLC, a Delaware limited liability company
\n(“Landlord”), and WEBSENSE, INC., a Delaware corporation (“Tenant”), for the
\nleasing of certain premises located at 10240 Sorrento Valley Road, Suite 150,
\nSan Diego, California (the “Premises”). The terms, conditions and provisions of
\nthis EXHIBIT B are hereby incorporated into and are made a part of the Lease.
\nAny capitalized terms used herein and not otherwise defined herein shall have
\nthe meaning ascribed to such terms as set forth in the Lease:<\/p>\n
1. TENANT TO CONSTRUCT TENANT IMPROVEMENTS. Subject to the provisions
\nbelow, Tenant shall be solely responsible for the planning, construction and
\ncompletion of the interior tenant improvements (“Tenant Improvements”) to the
\nPremises in accordance with the terms and conditions of this EXHIBIT B. The
\nTenant Improvements shall not include any of Tenant’s personal property, trade
\nfixtures, furnishings, equipment or similar items.<\/p>\n
2. TENANT IMPROVEMENT PLANS.<\/p>\n
A. PRELIMINARY PLANS AND SPECIFICATIONS. Promptly after execution
\nof the Lease, Tenant shall retain a licensed and insured architect (“Architect”)
\nto prepare preliminary working architectural and engineering plans and
\nspecifications (“Preliminary Plans and Specifications”) for the Tenant
\nImprovements. Tenant shall deliver the Preliminary Plans and Specifications to
\nLandlord. The Preliminary Plans and Specifications shall be in sufficient detail
\nto show locations, types and requirements for all heat loads, people loads,
\nfloor loads, power and plumbing, regular and special HVAC needs, telephone
\ncommunications, telephone and electrical outlets, lighting, lighting fixtures
\nand related power, and electrical and telephone switches. Landlord shall
\nreasonably approve or disapprove the Preliminary Plans and Specifications within
\nfive (5) days after Landlord receives the Preliminary Plans and Specifications
\nand, if disapproved, Landlord shall return the Preliminary Plans and
\nSpecifications to Tenant, who shall make all necessary revisions within ten (10)
\ndays after Tenant’s receipt thereof. This procedure shall be repeated until
\nLandlord approves the Preliminary Plans and Specifications. The approved
\nPreliminary Plans and Specifications, as modified, shall be deemed the “Final
\nPreliminary Plans and Specifications”.<\/p>\n
B. FINAL PLANS AND SPECIFICATIONS. After the Final Preliminary
\nPlans and Specifications are approved by Landlord and are deemed to be the Final
\nPreliminary Plans and Specifications, Tenant shall cause the Architect to
\nprepare in twenty (20) days following Landlord’s approval of the Final
\nPreliminary Plans and Specifications the final working architectural and
\nengineering plans, specifications and drawings, (“Final Plans and
\nSpecifications”) for the Tenant Improvements. Tenant shall then deliver the
\nFinal Plans and Specifications to Landlord. Landlord shall reasonably approve or
\ndisapprove the Final Plans and Specifications within five (5) days after
\nLandlord receives the Final Plans and Specifications and, if disapproved,
\nLandlord shall return the Final Plans and Specifications to Tenant who shall
\nmake all necessary revisions within ten (10) days after Tenant’s receipt
\nthereof. This procedure shall be repeated until Landlord approves, in writing,
\nthe Final Plans and Specifications. The approved Final Plans and Specifications,
\nas modified, shall be deemed the “Construction Documents”.<\/p>\n
C. MISCELLANEOUS. All deliveries of the Preliminary Plans and
\nSpecifications, the Final Preliminary Plans and Specifications, the Final Plans
\nand Specifications, and the Construction Documents shall be delivered by
\nmessenger service, by personal hand delivery or by overnight parcel service.
\nWhile Landlord has the right to approve the Preliminary Plans and
\nSpecifications, the Final Preliminary Plans and Specifications, the Final Plans
\nand Specifications, and the Construction Documents, Landlord’s interest in doing
\nso is to protect the Premises, the Building and Landlord’s interest.
\nAccordingly, Tenant shall not rely upon Landlord’s approvals and Landlord shall
\nnot be the guarantor of; nor responsible for, the adequacy and correctness or
\naccuracy of the Preliminary Plans and Specifications, the Final Preliminary
\nPlans and Specifications, the Final Plans and Specifications, and the
\nConstruction Documents, or the compliance thereof with applicable laws, and
\nLandlord shall incur no liability of any kind by reason of granting such
\napprovals.<\/p>\n
D. BUILDING STANDARD WORK. The Construction Documents shall
\nprovide that the Tenant Improvements to be constructed in accordance therewith
\nmust be at least equal, in quality, to Landlord’s building standard materials,
\nquantities and procedures then in use by Landlord (“Building Standards”) at the
\nBuilding, and shall consist of improvements which are generic in nature.<\/p>\n
E. CONSTRUCTION AGREEMENTS. Tenant hereby covenants and agrees
\nthat a provision shall be included in each and every agreement made with the
\nArchitect and the Contractor with respect to the Tenant Improvements specifying
\nthat Landlord shall be a third party beneficiary thereof; including without
\nlimitation, a third party beneficiary of all covenants, representations,
\nindemnities and warranties made by the Architect and\/or Contractor.<\/p>\n
1<\/p>\n
3. PERMITS. Tenant at its sole cost and expense (subject to the provisions
\nof Paragraph 5 below) shall obtain all governmental approvals of the
\nConstruction Documents to the full extent necessary for the issuance of a
\nbuilding permit for the Tenant Improvements based upon such Construction
\nDocuments. Tenant at its sole cost and expense shall also cause to be obtained
\nall other necessary approvals and permits from all governmental agencies having
\njurisdiction or authority for the construction and installation of the Tenant
\nImprovements in accordance with the approved Construction Documents. Tenant at
\nits sole cost and expense (subject to the provisions of Paragraph 5 below) shall
\nundertake all steps necessary to insure that the construction of the Tenant
\nImprovements is accomplished in strict compliance with all statutes, laws,
\nordinances, codes, rules, and regulations applicable to the construction of the
\nTenant Improvements and the requirements and standards of any insurance
\nunderwriting board, inspection bureau or insurance carrier insuring the Premises
\nand\/or the Building.<\/p>\n
4. CONSTRUCTION.<\/p>\n
A. Tenant shall be solely responsible for the construction,
\ninstallation and completion of the Tenant Improvements in accordance with the
\nConstruction Documents approved by Landlord and is solely responsible for the
\npayment of all amounts when payable in connection therewith without any cost or
\nexpense to Landlord, except for Landlord’s obligation to contribute the Tenant
\nImprovement Allowance in accordance with the provisions of Paragraph 5 below.
\nTenant shall diligently proceed with the construction, installation and
\ncompletion of the Tenant Improvements in accordance with the Construction
\nDocuments and the completion schedule reasonably approved by Landlord. No
\nmaterial changes shall be made to the Construction Documents and the completion
\nschedule approved by Landlord without Landlord’s prior written consent, which
\nconsent shall not be unreasonably withheld or delayed.<\/p>\n
B. Tenant at its sole cost and expense (subject to the provisions
\nof Paragraph 5 below) shall employ a licensed, insured and bonded general
\ncontractor (“Contractor”.) to construct the Tenant Improvements in accordance
\nwith the Construction Documents. The construction contracts between Tenant and
\nthe Contractor and between the Contractor and subcontractors shall be subject to
\nLandlord’s prior written approval, which approval shall not be unreasonably
\nwithheld or delayed. Proof that the Contractor is licensed in California, is
\nbonded as required under California law, and has the insurance specified in
\nEXHIBIT B-1, attached hereto and incorporated herein by this reference, shall be
\nprovided to Landlord at the time that Tenant requests approval of the Contractor
\nfrom Landlord. Tenant shall comply with or cause the Contractor to comply with
\nall other terms and provisions of EXHIBIT B-1.<\/p>\n
C. Prior to the commencement of the construction and installation
\nof the Tenant Improvements, Tenant shall provide the following to Landlord, all
\nof which shall be to Landlord’s reasonable satisfaction:<\/p>\n
(i) An estimated budget and cost breakdown for the Tenant
\nImprovements.<\/p>\n
(ii) Estimated completion schedule for the Tenant
\nImprovements.<\/p>\n
(iii) Copies of all required approvals and permits from
\ngovernmental agencies having jurisdiction or authority for the construction and
\ninstallation of the Tenant Improvements; provided, however, if prior to
\ncommencement of the construction and installation of Tenant Improvements Tenant
\nhas not received the electrical, plumbing or mechanical permits, Tenant shall
\nonly be required to provide Landlord with evidence that Tenant has made
\napplication therefor, and, upon receipt by Tenant of such permits, Tenant shall
\npromptly provide Landlord with copies thereof.<\/p>\n
(iv) Evidence of Tenant’s procurement of insurance
\nrequired to be obtained pursuant to the provisions of Paragraphs 4.B and 4.G.<\/p>\n
D. Landlord shall at all reasonable times have a right to inspect
\nthe Tenant Improvements (provided Landlord does not materially interfere with
\nthe work being performed by the Contractor or its subcontractors) and Tenant
\nshall immediately cease work upon written notice from Landlord if the Tenant
\nImprovements are not in compliance with the Construction Documents approved by
\nLandlord. If Landlord shall give notice of faulty construction or any other
\ndeviation from the Construction Documents, Tenant shall cause the Contractor to
\nmake corrections promptly. However, neither the privilege herein granted to
\nLandlord to make such inspections, nor the making of such inspections by
\nLandlord, shall operate as a waiver of any rights of Landlord to require good
\nand workmanlike construction and improvements constructed in accordance with the
\nConstruction Documents.<\/p>\n
E. Subject to Landlord complying with its obligations in
\nParagraph 5 below, Tenant shall pay and discharge promptly and fully all claims
\nfor labor done and materials and services furnished in connection with the
\nTenant, Improvements. The Tenant Improvements shall not be commenced until five
\n(5) business days after Landlord has received notice from Tenant stating the
\ndate the construction of the Tenant Improvements is to commence so that Landlord
\ncan post and record any appropriate Notice of Non-responsibility.<\/p>\n
2<\/p>\n
F. Tenant acknowledges and agrees that the agreements and
\ncovenants of Tenant in Sections 10 and 9 of the Lease shall be fully applicable
\nto Tenant’s construction of the Tenant Improvements.<\/p>\n
G. Tenant shall maintain, and cause to be maintained, during the
\nconstruction of the Tenant Improvements, at its sole cost and expense, insurance
\nof the types and in the amounts specified in EXHIBIT B-1 and in Section 12 of
\nthe Lease, together with builders’ risk insurance for the amount of the
\ncompleted value of the Tenant Improvements on an all-risk non-reporting form
\ncovering all improvements under construction, including building materials, and
\nother insurance in amounts and against such risks as the Landlord shall
\nreasonably require in connection with the Tenant Improvements.<\/p>\n
H. No materials, equipment or fixtures shall be delivered to or
\ninstalled upon the Premises pursuant to any agreement by which another party has
\na security interest or rights to remove or repossess such items, without the
\nprior written consent of Landlord, which consent shall not be unreasonably
\nwithheld.<\/p>\n
I. Landlord reserves the right to establish reasonable rules and
\nregulations for the use of the Building during the course of construction of the
\nTenant Improvements, including, but not limited to, construction parking,
\nstorage of materials, hours of work, use of elevators, and clean-up of
\nconstruction related debris.<\/p>\n
J. Upon completion of the Tenant Improvements, Tenant shall
\ndeliver to Landlord the following, all of which shall be to Landlord’s
\nreasonable satisfaction:<\/p>\n
(i) Any certificates required for occupancy, including a
\npermanent and complete Certificate of Occupancy issued by the City of San Diego.<\/p>\n
(ii) A Certificate of Completion signed by the Architect
\nwho prepared the Construction Documents, reasonably approved by Landlord.<\/p>\n
(iii) A cost breakdown itemizing all expenses for the
\nTenant Improvements, together with invoices and receipts for the same or other
\nevidence of payment.<\/p>\n
(iv) Final and unconditional mechanic’s lien waivers for
\nall the Tenant Improvements.<\/p>\n
(v) A Notice of Completion for execution by Landlord,
\nwhich certificate once executed by Landlord shall be recorded by Tenant in the
\nofficial records of the County of San Diego, and Tenant shall then deliver to
\nLandlord a true and correct copy of the recorded Notice of Completion.<\/p>\n
(vi) A true and complete copy of all as-built plans and
\ndrawings for the Tenant Improvements.<\/p>\n
5. TENANT IMPROVEMENT ALLOWANCE.<\/p>\n
A. Subject to Tenant’s compliance with the provisions of this
\nEXHIBIT H, Landlord shall provide to Tenant an allowance in the amount of
\nFifty-nine Thousand Nine Hundred Forty-four dollars ($59,944.00) (the “Tenant
\nImprovement Allowance”) to construct and install only the Tenant Improvements.
\nThe Tenant Improvement Allowance shall be used to design, prepare, plan, obtain
\nthe approval of, construct and install the Tenant Improvements and for no other
\npurpose. Except as otherwise expressly provided herein, Landlord shall have no
\nobligation to contribute the Tenant Improvement Allowance unless and until the
\nConstruction Documents have been approved by Landlord and Tenant has complied
\nwith all requirements set forth in Paragraph 4.C. of this EXHIBIT R. In addition
\nto the foregoing, Landlord shall have no obligation to disburse all or any
\nportion of the Tenant Improvement Allowance to Tenant unless Tenant makes a
\nprogress payment request pursuant to the terms and conditions of Section 5.B.
\nbelow prior to that date which is six (6) months after the Lease Commencement
\nDate (as such term is defined in the Basic Lease Information and Section 2 of
\nthe Lease). The costs to be paid out of the Tenant Improvement Allowance shall
\ninclude all reasonable costs and expenses associated with the design,
\npreparation, approval, planning, construction and installation of the Tenant
\nImprovements (the “Tenant Improvement Costs”), including all of the following:<\/p>\n
(i) All costs of the Preliminary Plans and
\nSpecifications, the Final Plans and Specifications, and the Construction
\nDocuments, and engineering costs associated with completion of the State of
\nCalifornia energy utilization calculations under Title 24 legislation:<\/p>\n
(ii) All costs of obtaining building permits and other
\nnecessary authorizations from local governmental authorities;<\/p>\n
(iii) All costs of interior design and finish schedule
\nplans and specifications including as-built drawings, if applicable;<\/p>\n
3<\/p>\n
(iv) All direct and indirect costs of procuring,
\nconstructing and installing the Tenant Improvements in the Premises, including,
\nbut not limited to, the construction fee for overhead and profit and the cost of
\nall on-site supervisory and administrative staff; office, equipment and
\ntemporary services rendered by the Contractor in connection with the
\nconstruction of the Tenant Improvements; provided, however, that the
\nconstruction fee for overhead and profit, the cost of all on-site supervisory
\nand administrative staff, office, equipment and temporary services shall not
\nexceed amounts which are reasonable and customary for such items in the local
\nconstruction industry;<\/p>\n
(v) All fees payable to the Architect and any engineer if
\nthey are required to redesign any portion of the Tenant Improvements following
\nTenant’s and Landlord’s approval of the Construction Documents;<\/p>\n
(vi) Utility connection fees;<\/p>\n
(vii) Inspection fees and filing fees payable to local
\ngovernmental authorities, if any;<\/p>\n
(viii) All costs of all permanently affixed equipment and
\nnon-trade fixtures provided for in the Construction Documents, including the
\ncost of installation; and<\/p>\n
(ix) A construction management fee payable to Landlord in
\nthe amount of percent (5%) [THREE (3%)] [HAND WRITTEN CHANGE] of the aggregate
\nof the principal amount of the Amortized Excess TI Costs (defined below) and e
\nTenant Improvement Allowance (the “CM Fee”).<\/p>\n
The Tenant Improvement Allowance shall be the maximum contribution by Landlord
\nfor the Tenant Improvement Costs, and the disbursement of the Tenant Improvement
\nAllowance is subject to the terms contained hereinbelow.<\/p>\n
B. Except for payment of the CM Fee, and subject to Section 5.A.
\nabove, Landlord will make payments to Tenant from the Tenant Improvement
\nAllowance to reimburse Tenant for Tenant Improvement Costs paid or incurred by
\nTenant. Payment of the CM Fee shall be the first payment from the Tenant
\nImprovement Allowance and shall be made by means of a deduction or credit
\nagainst the Tenant Improvement Allowance. All other payments of the Tenant
\nImprovement Allowance shall be by progress payments not more frequently than
\nonce per month and only after satisfaction of the following conditions
\nprecedent: (a) receipt by Landlord of conditional mechanics’ lien releases for
\nthe work completed and to be paid by said progress payment, conditioned only on
\nthe payment of the sums set forth in the mechanics’ lien release, executed by
\nthe Contractor and all subcontractors, labor suppliers and materialmen; (b)
\nreceipt by Landlord of unconditional mechanics’ lien releases from the
\nContractor and all subcontractors, labor suppliers and materialmen for all work
\nother than that being paid by the current progress payment previously completed
\nby the Contractor, subcontractors, labor suppliers and materialmen and for which
\nTenant has received fluids from the Tenant Improvement Allowance to pay for such
\nwork; (c) receipt by Landlord of any and all documentation reasonably required
\nby Landlord detailing the work that has been completed and the materials and
\nsupplies used as of the date of Tenant’s request for the progress payment,
\nincluding, without limitation, invoices, bills, or statements for the work
\ncompleted and the materials and supplies used; and (d) completion by Landlord or
\nLandlord’s agents of any inspections of the work completed and materials and
\nsupplies used as deemed reasonably necessary by Landlord. Except for the CM Fee
\npayment (credit), Tenant Improvement Allowance progress payments shall be paid
\nto Tenant within fourteen (14) days from the satisfaction of the conditions set
\nforth in the immediately preceding sentence. The preceding notwithstanding, all
\nTenant Improvement Costs paid or incurred by Tenant prior to Landlord’s approval
\nof the Construction Documents in connection with the design and planning of the
\nTenant Improvements by Architect shall be paid from the Tenant Improvement
\nAllowance, without any retention, within fourteen (14) days following Landlord’s
\nreceipt of invoices, bills or statements from Architect evidencing such costs.
\nNotwithstanding the foregoing to the contrary, Landlord shall be entitled to
\nwithhold and retain five percent (5%) of the Tenant Improvement Allowance or of
\nany Tenant Improvement Allowance progress payment until the lien-free expiration
\nof the time for filing of any mechanics’ liens claimed or which might be filed
\non account of any work ordered by Tenant or the Contractor or any subcontractor
\nin connection with the construction and installation of the Tenant Improvements.<\/p>\n
C. Landlord shall not be obligated to pay any Tenant Improvement
\nAllowance progress payment or the Tenant Improvement Allowance retention if on
\nthe date Tenant is entitled to receive the Tenant Improvement Allowance progress
\npayment or the Tenant Improvement Allowance retention Tenant is in default of
\nthis Lease. Such payments shall resume upon Tenant curing any such default
\nwithin the time periods which may be provided for in the Lease.<\/p>\n
D. Should the total cost of constructing the Tenant Improvements
\nbe less than the Tenant Improvement Allowance, the Tenant Improvement Allowance
\nshall be automatically reduced to the amount equal to said actual cost.<\/p>\n
4<\/p>\n
E. The term “Excess Tenant Improvement Costs” as used herein
\nshall mean and refer to the aggregate of the amount by which the actual Tenant
\nImprovement Costs exceed the Tenant Improvement Allowance. A portion of the
\nExcess Tenant Improvement Costs up to a maximum amount of Twenty-two Thousand
\nFour Hundred Seventy-nine dollars ($22,479.00) shall be paid by Landlord in the
\nsame manner as the Tenant Improvement Allowance and such Excess Tenant
\nImprovement Costs will then be amortized over the initial term of the Lease at
\nthe rate of eleven percent (11%) per annum and such amortized amount (including
\ninterest charges) shall be paid by Tenant to Landlord with, and as part of, the
\nBase Rent for the Premises in accordance with the provisions and requirements of
\nSection 3 of the Lease (the “Amortized Excess TI Costs”). Notwithstanding any
\nprovision to the contrary, however, Tenant shall pay to Landlord such amortized
\namount during the entire initial term of the Lease, regardless if Base Rent is
\nor is not abated. Within two (2) weeks after the Tenant Improvements have been
\nsubstantially completed and the actual Tenant Improvement Costs are known, the
\nparties shall execute and deliver a written amendment to the Lease, in the form
\nacceptable to the parties, wherein there shall be specified, INTER ALIA, the
\namount of the Base Rent payable by Tenant during the initial term of the Lease
\nafter taking into account the amount of the Amortized Excess TI Costs. Tenant
\nshall promptly pay any and all Excess Tenant Improvement Costs in excess of the
\nprincipal amount of the Amortized Excess TI Costs.<\/p>\n
6. TERMINATION. If the Lease is terminated prior to the date on which the
\nTenant Improvements are completed, for any reason due to the default of Tenant
\nhereunder, in addition to any other remedies available to Landlord under the
\nLease, Tenant shall pay to Landlord as Additional Rent under the Lease, within
\nfive (5) days of receipt of a statement therefor, any and all costs incurred by
\nLandlord and not reimbursed or otherwise paid by Tenant through the date of
\ntermination in connection with the Tenant Improvements to the extent planned,
\ninstalled and\/or constructed as of such date of termination, including, but not
\nlimited to, any costs related to the removal of all or any portion of the Tenant
\nImprovements and restoration costs related thereto. Subject to the provisions of
\nSection 10.2 of the Lease, upon the expiration or earlier termination of the
\nLease, Tenant shall not be required to remove the Tenant Improvements it being
\nthe intention of the parties that the Tenant Improvements are to be considered
\nincorporated into the Building.<\/p>\n
7. LEASE PROVISIONS; CONFLICT. The terms and provisions of the Lease,
\ninsofar as they are applicable, in whole or in part, to this EXHIBIT B, are
\nhereby incorporated herein by reference, and specifically including all of the
\nprovisions of Section 29 of the Lease. In the event of any conflict between the
\nterms of the Lease and this EXHIBIT B, the terms of this EXHIBIT B shall
\nprevail. Any amounts payable by Tenant to Landlord hereunder shall be deemed to
\nbe Additional Rent under the Lease and, upon any default in the payment of same,
\nLandlord shall have remedies available to it as provided for in the Lease.<\/p>\n
5<\/p>\n
EXHIBIT B-1
\n CONSTRUCTION INSURANCE REQUIREMENTS<\/p>\n
Before commencing work, the contractor shall procure and maintain at its sole
\ncost and expense until completion and final acceptance of the work, at least the
\nfollowing minimum levels of insurance.<\/p>\n
A. Workers’ Compensation in statutory amounts and Employers Liability
\nInsurance in the minimum amounts of $100,000 each accident for bodily injury by
\naccident and $100,000 each employee for bodily injury by disease with a $500,000
\npolicy limit, covering each and every worker used in connection with the
\ncontract work.<\/p>\n
B. Comprehensive General Liability Insurance on an occurrence basis
\nincluding, but not limited to, protection for Premises\/Operations Liability,
\nBroad Form Contractual Liability, Owner’s and Contractor’s Protective, and
\nProducts\/Completed Operations Liability*, in the following minimum limits of
\nliability.<\/p>\n
Bodily Injury, Property Damage, and
\n Personal Injury Liability $2,000,000\/each occurrence
\n $3,000,000\/aggregate<\/p>\n
* Products\/Completed Operations Liability Insurance is to be
\nprovided for a period of at least one (1) year after completion of work.<\/p>\n
Coverage should include protection for Explosion, Collapse and
\nUnderground Damage.<\/p>\n
C. Comprehensive Automobile Liability Insurance with the following minimum
\nlimits of liability.<\/p>\n
Bodily Injury and Property $1,000,000\/each occurrence
\n Damage Liability $2,000,000\/aggregate<\/p>\n
This insurance will apply to all owned, non-owned or hired automobiles
\nto be used by the Contractor in the completion of the work.<\/p>\n
D. Umbrella Liability Insurance in a minimum amount of five million
\ndollars ($5,000,000), providing excess coverage on a following-form basis over
\nthe Employer’s Liability limit in Paragraph A and the liability coverages
\noutlined in Paragraphs B and C.<\/p>\n
E. Equipment and Installation coverages in the broadest form available
\ncovering Contractor’s tools and equipment and material not accepted by Tenant.
\nTenant will provide Builders Risk Insurance on all accepted and installed
\nmaterials.<\/p>\n
All policies of insurance, duplicates thereof or certificates evidencing
\ncoverage shall be delivered to Landlord prior to commencement of any work and
\nshall name Landlord, and its partners and lenders as additional insureds as
\ntheir interests may appear. All insurance policies shall (1) be issued by a
\ncompany or companies licensed to be business in the state of California, (2)
\nprovide that no cancellation, non-renewal or material modification shall be
\neffective without thirty (30) days prior written notice provided to Landlord,
\n(3) provide no deductible greater than $15,000 per occurrence, (4) contain a
\nwaiver to subrogation clause in favor of Landlord, and its partners and lenders,
\nand (5) comply with the requirements of Sections 12.2, 12.3 and 12.4 of the
\nLease to the extent such requirements are applicable.<\/p>\n
EXHIBIT C TO LEASE AGREEMENT
\n RULES & REGULATIONS<\/p>\n
This exhibit, entitled “Rules & Regulations”, is and shall constitute EXHIBIT C
\nto that certain Lease Agreement dated February 12, 2000 (the “Lease”), by and
\nbetween Legacy-RECP Sorrento OPCO, LLC, a Delaware limited liability company
\n(“Landlord”) and WEBSENSE, Inc., a Delaware corporation (“Tenant”) for the
\nleasing of certain premises located at 10240 Sorrento Valley Road, Suite 150,
\nSan Diego, California (the “Premises”). The terms, conditions and provisions of
\nthis EXHIBIT C are hereby incorporated into and are made a part of the Lease.
\nAny capitalized terms used herein and not otherwise defined herein shall have
\nthe meaning ascribed to such terms as set forth in the Lease:<\/p>\n
1. No advertisement, picture or sign of any sort shall be displayed on or
\noutside the Premises or the Building without the prior written consent of
\nLandlord. Landlord shall have the right to remove any such unapproved item
\nwithout notice and at Tenant’s expense.<\/p>\n
2. Tenant shall not regularly park motor vehicles in designated parking
\nareas after the conclusion of normal daily business activity.<\/p>\n
3. Tenant shall not use any method of heating or air conditioning other
\nthan that supplied by Landlord without the prior written consent of Landlord.<\/p>\n
4. All window coverings installed by Tenant and visible from the outside
\nof the Building require the prior written approval of Landlord.<\/p>\n
5. Tenant shall not use, keep or permit to be used or kept any foul or
\nnoxious gas or substance or any flammable or combustible materials on or around
\nthe Premises, the Building or the Park.<\/p>\n
6. Tenant shall not alter any lock or install any new locks or bolts on
\nany door at the Premises without the prior consent of Landlord, unless said door
\nis part of a private office, in which case Landlord’s prior consent is not
\nrequired.<\/p>\n
7. Tenant agrees not to make any duplicate keys without the prior consent
\nof Landlord, unless said key operates a lock installed on a private office door,
\nin which ease Landlord’s prior consent is not required.<\/p>\n
8. Tenant shall park motor vehicles in those general parking areas as
\ndesignated by Landlord except for loading and unloading. During those periods of
\nloading and unloading, Tenant shall not unreasonably interfere with traffic flow
\nwithin the Park and loading and unloading areas of other Tenants.<\/p>\n
9. Tenant shall not disturb, solicit or canvas any occupant of the
\nBuilding or Park and shall cooperate to prevent same.<\/p>\n
10. No person shall go on the roof without Landlord’s permission.<\/p>\n
11. Business machines and mechanical equipment belonging to Tenant which
\ncause noise or vibration that may be transmitted to the structure of the
\nBuilding, to such a degree as to be objectionable to Landlord or other Tenants,
\nshall be placed and maintained by Tenant, at Tenant’s expense, on vibration
\neliminators or other devices sufficient to eliminate noise or vibration.<\/p>\n
12. All goods, including material used to store goods, delivered to the
\nPremises of Tenant shall be immediately moved into the Premises and shall not be
\nleft in parking or receiving areas overnight.<\/p>\n
13. Tractor trailers which must be unhooked or parked with dolly wheels
\nbeyond the concrete loading areas must use steel plates or wood blocks under the
\ndolly wheels to prevent damage to the asphalt paving surfaces. No parking or
\nstoring of such trailers will be permitted in the auto parking areas of the Park
\nor on streets adjacent thereto.<\/p>\n
14. Forklifts which operate on asphalt paving areas shall not have solid
\nrubber tires and shall only use tires that do not damage the asphalt.<\/p>\n
15. Tenant is responsible for the storage and removal of all trash and
\nrefuse. All such trash and refuse shall be contained in suitable receptacles
\nstored behind screened enclosures at locations approved by Landlord.<\/p>\n
16. Tenant shall not store or permit the storage or placement of goods, or
\nmerchandise or pallets or equipment of any sort in or around the Premises, the
\nBuilding, the Park or any of the Common Areas of the foregoing. No displays or
\nsales of merchandise shall be allowed in the parking lots or other Common Areas.<\/p>\n
1<\/p>\n
17. Tenant shall not permit any animals, including, but not limited to, any
\nhousehold pets, to be brought or kept in or about the Premises, the Building,
\nthe Park or any of the Common Areas of the foregoing.<\/p>\n
18. Tenant may permit motor vehicles to be washed, but only in an exact
\nlocation approved in writing by Landlord, within the Common Areas of the Park.
\nTenant shall not permit mechanical work or maintenance (other than washing) of
\nmotor vehicles to be performed on any portion of the Premises or in the Common
\nAreas of the Park.<\/p>\n
19. Tenant shall not waste electricity, water or air conditioning and
\nagrees to cooperate fully with Landlord to assure the most effective operation
\nof the Building’s heating, ventilation and air conditioning and to comply with
\nany governmental energy-saving rules, laws or regulations of which Tenant has
\nnotice, and shall refrain from attempting to adjust controls other than room
\nthermostats installed for Tenant’s use. Tenant shall keep corridor doors closed,
\nand shall close window coverings at the end of each business day. Heat and air
\nconditioning shall be provided during ordinary business hours of generally
\nrecognized business days, but not less than the hours of 7:00 a.m. to 6:00 p.m.
\non Monday through Friday and 3:00 a.m. to 1:00 p.m. on Saturday (excluding in
\nany event Sundays and legal holidays).<\/p>\n
20. Tenant shall have access to the Premises at all times. However,
\nLandlord reserves the right to exclude from the Building (unless Tenant leases
\nthe entire Building) between the hours of 6:00 p.m. and 7:00 a.m. the following
\nday, or such other hours as may be established from time to time by Landlord,
\nand on Saturdays, Sundays and legal holidays, any person unless that person is
\nknown to the person or employee in charge of the Building, has a pass, is
\nproperly identified, or has been authorized by Tenant (as long as Tenant has
\nnotified Landlord in advance). Tenant shall be responsible for all persons for
\nwhom it requests passes and shall be liable to Landlord for all acts or
\nomissions of such persons. Landlord shall not be liable for damages for any
\nerror with regard to the admission to or exclusion from the Building of any
\nperson. Landlord reserves the right to prevent access to the Building in case of
\ninvasion, mob, riot, public excitement or other commotion by closing the doors
\nor by other appropriate action. Should Landlord install a security card key
\naccess system, Tenant shall pay Landlord Landlord’s actual cost for each
\nsecurity card issued to Tenant (including new and replacement cards).<\/p>\n
21. Tenant shall close and lock the doors of its Premises and entirely shut
\noff all water faucets or other water apparatus, and, except with regard to
\nTenant’s computers and other equipment which requires utilities on a twenty-four
\nhour basis, all electricity, gas or air outlets before Tenant and its employees
\nleave the Premises. Tenant shall be responsible for any damage or injuries
\nsustained by other tenants or occupants of the Building or by Landlord for
\nnoncompliance with this rule.<\/p>\n
22. The toilet rooms, toilets, urinals, wash bowls and other apparatus
\nshall not be used for any purpose other than that for which they were
\nconstructed and no foreign substance of any kind whatsoever shall be thrown
\ntherein. The expense of any breakage, stoppage or damage resulting from the
\nviolation of this rule shall be borne by the tenant who, or whose employees or
\ninvitees, shall have caused it.<\/p>\n
23. Landlord reserves the right to exclude or expel from the Building any
\nperson who, in Landlord’s judgment, is intoxicated or under the influence of
\nliquor or drugs or who is in violation of any of the Rules and Regulations of
\nthe Building.<\/p>\n
24. Tenant shall not use in any space or in the public halls of the
\nBuilding any mail carts or hand trucks except those equipped with rubber tires
\nand side guards or such other material handling equipment as Landlord may
\napprove. Tenant shall not bring any other vehicles of any kind into the Building
\nexcept as provided in the Parking Rules and Regulations.<\/p>\n
25. Tenant shall comply with all safety, fire protection and evacuation
\nprocedures and regulations established by Landlord or any governmental agency.<\/p>\n
26. Tenant assumes any and all responsibility for protecting its Premises
\nfrom theft, robbery and pilferage, which includes keeping doors locked and other
\nmeans of entry to the Premises dos<\/p>\n
27. Landlord reserves the right to make such other and reasonable Rules and
\nRegulations (including Parking Rules and Regulations) as, in its judgment, may
\nfrom time to time be needed for safety and security, for care and cleanliness of
\nthe Building and for the preservation of good order therein. Tenant agrees to
\nabide by all such Rules and Regulations hereinabove stated and any additional
\nrules and regulations which are adopted.<\/p>\n
28. Tenant shall be responsible for the observance of all of the foregoing
\nrules by Tenant’s employees, agents, representatives, contractors, consultants,
\nclients) customers, invitees, guests, subtenants and assignees.<\/p>\n
2<\/p>\n
EXHIBIT E
\n HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE<\/p>\n
Your cooperation in this matter is appreciated. Initially, the information
\nprovided by you in this Hazardous Materials Disclosure Certificate is necessary
\nfor the Lessor (identified below) to evaluate and finalize a lease agreement
\nwith you as lessee. After a lease agreement is signed by you and the Lessor (the
\n“Lease Agreement”), on an annual basis in accordance with the provisions of the
\nsigned Lease Agreement, you are to provide an update to the information
\ninitially provided by you in this certificate. The information contained in the
\ninitial Hazardous Materials Disclosure Certificate and each annual certificate
\nprovided by you thereafter will be maintained in confidentiality by Lessor
\nsubject to release and disclosure as required by (i) any lenders and owners and
\ntheir respective environmental consultants, (ii) any prospective purchaser(s) of
\nall or any portion of the property on which the Premises are located, (iii)
\nLessor to defend itself or its lenders, partners or representatives against any
\nclaim or demand, and (iv) any laws, rules regulations, orders, decrees, or
\nordinances, including, without limitation, court orders or subpoenas. Any and
\nall capitalized terms used herein, which are not otherwise defined herein, shall
\nhave the same meaning ascribed to such term in the signed Lease Agreement. Any
\nquestions regarding this certificate should be directed to, and when completed,
\nthe certificate should be delivered to:<\/p>\n
Lessor’s Agent: Legacy Partners Commercial, Inc.
\n 6480 Weathers Place, Suite 245
\n San Diego, California 92121
\n Phone: (619) 4534800<\/p>\n
Name of (Prospective) Lessee:
\n —————————————————<\/p>\n
Mailing Address:
\n —————————————————————-<\/p>\n
Contact Person, Title and Telephone Number(s):
\n ———————————-<\/p>\n
Contact Person for Hazardous Waste Materials Management and Manifests and
\nTelephone Number(s):
\n ————————————————————<\/p>\n
Address of (Prospective) Premises:
\n ———————————————-<\/p>\n
Length of (Prospective) initial Term:
\n ——————————————-<\/p>\n
1. GENERAL INFORMATION:<\/p>\n
Describe the initial proposed operations to take place in, on, or about
\n the Premises, including, without limitation, principal products
\n processed, manufactured or assembled services and activities to be
\n provided or otherwise conducted. Existing lessees should describe any
\n proposed changes to on-going operations.<\/p>\n
2. USE, STORAGE AND DISPOSAL OF HAZARDOUS MATERIALS<\/p>\n
2.1 Will any Hazardous Materials be used, generated, stored or
\n disposed of in, on or about the Premises? Existing lessees
\n should describe any Hazardous Materials which continue to be
\n used, generated, stored or disposed of in, on or about the
\n Premises.<\/p>\n
Wastes Yes |_| No |_|
\n Chemical Products Yes |_| No |_|
\n Other Yes |_| No |_|<\/p>\n
If Yes is marked, please explain:
\n —————————–<\/p>\n
———————————————————————–<\/p>\n
———————————————————————–<\/p>\n
If Yes is marked in Section 2.1, attach a list of any Hazardous
\n Materials to be used, generated, stored or disposed of in, on or about
\n the Premises, including the applicable hazard class and an estimate of
\n the quantities of such Hazardous Materials at any given time; estimated
\n annual throughput; the proposed location(s) and method of storage
\n (excluding nominal amounts of ordinary household cleaners and
\n janitorial supplies which are not regulated by any Environmental Laws);
\n and the proposed location(s) and method of disposal for each Hazardous
\n Material, including, the estimated frequency, and the proposed
\n contractors or subcontractors. Existing lessees should attach a list
\n setting forth the information requested above and such list should<\/p>\n
1<\/p>\n
include actual data from on-going operations and the identification of
\n any variations in such information from the prior year’s certificate.<\/p>\n
3. STORAGE TANKS AND SUMPS<\/p>\n
3.1 Is any above or below ground storage of gasoline, diesel,
\n petroleum, or other Hazardous Materials in tanks or sumps
\n proposed in, on or about the Premises? Existing lessees should
\n describe any such actual or proposed activities.<\/p>\n
Yes |_| No |_|<\/p>\n
If yes, please explain:
\n —————————————<\/p>\n
————————————————————–<\/p>\n
————————————————————–<\/p>\n
4. WASTE MANAGEMENT<\/p>\n
4.1 Has your company been issued an EPA Hazardous Waste Generator
\n I.D. Number? Existing lessees should describe any additional
\n identification numbers issued since the previous certificate.<\/p>\n
Yes |_| No |_|<\/p>\n
4.2 Has your company filed a biennial or quarterly reports as a
\n hazardous waste generator? Existing lessees should describe
\n any new reports filed.<\/p>\n
Yes |_| No |_|<\/p>\n
If yes, attach a copy of the most recent report filed.<\/p>\n
5. WASTEWATER TREATMENT AND DISCHARGE<\/p>\n
5.1 Will your company discharge wastewater or other wastes to:<\/p>\n
storm drain’? sewer?
\n ——– ——–
\n surface water? no wastewater or other
\n ——– ——– wastes discharged.<\/p>\n
Existing lessees should indicate any actual discharges. If so,
\n describe the nature of any proposed or actual discharge(s).<\/p>\n
————————————————————–<\/p>\n
————————————————————–<\/p>\n
5.2 Will any such wastewater or waste be treated before discharge?<\/p>\n
Yes |_| No |_|<\/p>\n
If yes, describe the type of treatment proposed to he
\n conducted. Existing lessees should describe the actual
\n treatment conducted.<\/p>\n
————————————————————–<\/p>\n
————————————————————–<\/p>\n
6. AIR DISCHARGES<\/p>\n
6.1 Do you plan for any air filtration systems or stacks to be
\n used in your company S operations in, on or about the Premises
\n that will discharge into the air; and will such air emissions
\n be monitored? Existing lessees should indicate whether or not
\n there are any such air filtration systems or stacks in use in,
\n on or about the Premises which discharge into the air and
\n whether such air emissions are being monitored.<\/p>\n
Yes |_| No |_|<\/p>\n
If yes, please describe:
\n ————————————-<\/p>\n
————————————————————–<\/p>\n
————————————————————–<\/p>\n
2<\/p>\n
6.2 Do you propose to operate any of the following types of
\n equipment, or any other equipment requiring an air emissions
\n permit? Existing lessees should specify any such equipment
\n being operated in, on or about the Premises.<\/p>\n
Spray booth(s) Incinerator(s)
\n ——– ———
\n Dip tank(s) Other (Please describe)
\n ——– ———
\n Drying oven(s) No Equipment Requiring Air
\n ——– ——— Permits<\/p>\n
If yes, please describe:
\n ————————————-<\/p>\n
————————————————————–<\/p>\n
————————————————————–<\/p>\n
7. HAZARDOUS MATERIALS DISCLOSURES<\/p>\n
7.1 Has your company prepared or will it be required to prepare a
\n Hazardous Materials management plan (“Management Plan”)
\n pursuant to Fire Department or other governmental or
\n regulatory agencies’ requirements? Existing lessees should
\n indicate whether or not a Management Plan is required and has
\n been prepared.<\/p>\n
Yes |_| No |_|<\/p>\n
If yes, attach a copy of the Management Plan. Existing lessees
\n should attach a copy of any required updates to the Management
\n Plan.<\/p>\n
7.2 Are any of the Hazardous Materials, and in particular
\n chemicals, proposed to be used in your operations in, on or
\n about the Premises regulated under Proposition 65? Existing
\n lessees should indicate whether or not there are any new
\n Hazardous Materials being so used which are regulated under
\n Proposition 65.<\/p>\n
Yes |_| No |_|<\/p>\n
If yes, please explain:
\n ————————————-<\/p>\n
————————————————————–<\/p>\n
————————————————————–<\/p>\n
8. ENFORCEMENT ACTIONS AND COMPLAINTS<\/p>\n
8.1 With respect to Hazardous Materials or Environmental Laws, has
\n your company ever been subject to any agency enforcement
\n actions, administrative orders, or consent decrees or has your
\n company received requests for information, notice or demand
\n letters, or any other inquiries regarding its operations?
\n Existing lessees should indicate whether or not any such
\n actions, orders or decrees have been, or are in the process of
\n being, undertaken or if any such requests have been received.<\/p>\n
Yes |_| No |_|<\/p>\n
If yes, describe the actions, orders or decrees and any
\n continuing compliance obligations imposed as a result of these
\n actions, orders or decrees and also describe any requests,
\n notices or demands, and attach a copy of all such documents.
\n Existing lessees should describe and attach a copy of any new
\n actions, orders, decrees, requests, notices or demands not
\n already delivered to Lessor pursuant to the provisions of
\n Section 29 of the signed Lease Agreement.<\/p>\n
————————————————————–<\/p>\n
————————————————————–<\/p>\n
————————————————————–<\/p>\n
8.2 Have there ever been, or are there now pending, any lawsuits
\n against your company regarding any environmental or health and
\n safety concerns?<\/p>\n
Yes |_| No |_|<\/p>\n
if yes, describe any such lawsuits and attach copies of the
\n complaint(s), cross-complaint(s), pleadings and all other
\n documents related thereto as requested by Lessor. Existing
\n lessees should describe and attach a copy of any new
\n complaint(s), cross-complaint(s), pleadings and other related
\n documents not already delivered to Lessor pursuant to the
\n provisions of Section 29 of the signed Lease Agreement.<\/p>\n
————————————————————–<\/p>\n
————————————————————–<\/p>\n
————————————————————–<\/p>\n
3<\/p>\n
8.3 Have there been any problems or complaints from adjacent
\n tenants, owners or other neighbors at your company’s current
\n facility with regard to environmental or health and safety
\n concerns? Existing lessees should indicate whether or not
\n there have been any such problems or complaints from adjacent
\n tenants, owners or other neighbors at, about or near the
\n Premises.<\/p>\n
Yes |_| No |_|<\/p>\n
If yes, please describe. Existing lessees should describe any
\n such problems or complaints not already disclosed to Lessor
\n under the provisions of the signed Lease Agreement.<\/p>\n
————————————————————–<\/p>\n
————————————————————–<\/p>\n
————————————————————–<\/p>\n
9. PERMITS AND LICENSES<\/p>\n
9.1 Attach copies of all Hazardous Materials permits and licenses
\n including a Transporter Permit number issued to your company
\n with respect to its proposed operations in, on or about the
\n Premises, including, without limitation, any wastewater
\n discharge permits, air emissions permits, and use permits or
\n approvals. Existing lessees should attach copies of any new
\n permits and licenses as well as any renewals of permits or
\n licenses previously issued.<\/p>\n
The undersigned hereby acknowledges and agrees that (A) this Hazardous Materials
\nDisclosure Certificate is being delivered in connection with, and as required
\nby, Lessor in connection with the evaluation and finalization of a Lease
\nAgreement and will be attached thereto as an exhibit; (B) that this Hazardous
\nMaterials Disclosure Certificate is being delivered in accordance with, and as
\nrequired by, the provisions of Section 29 of the Lease Agreement; and (C) that
\nLessee shall have and retain full and complete responsibility and liability with
\nrespect to any of the Hazardous Materials disclosed in the HazMat Certificate
\nnotwithstanding Lessor’s receipt and\/or approval of such certificate. Lessee
\nfurther agrees that none of the following described acts or events shall be
\nconstrued or otherwise interpreted as either (a) excusing, diminishing or
\notherwise limiting Lessee from the requirement to fully and faithfully perform
\nits obligations under the Lease with respect to Hazardous Materials, including,
\nwithout limitation, Lessee’s indemnification of the Indemnitees and compliance
\nwith all Environmental Laws, or (b) imposing upon Lessor, directly or
\nindirectly, any duty or liability with respect to any such Hazardous Materials,
\nincluding, without limitation, any duty on Lessor to investigate or otherwise
\nverify the accuracy of the representations and statements made therein or to
\nensure that Lessee is in compliance with all Environmental Laws; (i) the
\ndelivery of such certificate to Lessor and\/or Lessor’s acceptance of such
\ncertificate, (ii) Lessor’s review and approval of such certificate, (iii)
\nLessor’s failure to obtain such certificate from Lessee at any time, or (iv)
\nLessor’s actual or constructive knowledge of the types and quantities of
\nHazardous Materials being used, stored, generated, disposed of or transported on
\nor about the Premises by Lessee or Lessee’s Representatives. Notwithstanding the
\nforegoing or anything to the contrary contained herein, the undersigned
\nacknowledges and agrees that Lessor and its partners, lenders and
\nrepresentatives may, and will, rely upon the statements, representations,
\nwarranties, and certifications made herein and the truthfulness thereof in
\nentering into the Lease Agreement and the continuance thereof throughout the
\nterm, and any renewals thereof, of the Lease Agreement.<\/p>\n
I (print name) __________________________________ acting with full authority to
\nbind the (proposed) Lessee and on behalf of the (proposed) Lessee, certify,
\nrepresent and warrant that the information contained in this certificate is true
\nand correct.<\/p>\n
TENANT<\/p>\n
By:
\n —————————————–<\/p>\n
Title:
\n ————————————–<\/p>\n
Date:
\n —————————————<\/p>\n
4<\/p>\n
EXHIBIT F
\n FIRST AMENDMENT TO LEASE AGREEMENT
\n CHANGE OF COMMENCEMENT DATE<\/p>\n
This First Amendment to Lease Agreement (the “Amendment”) is made and entered
\ninto to be effective as of ___________________ by and between
\n____________________________ (“LANDLORD”), and ___________________________
\n(“TENANT”), with reference to the following facts:<\/p>\n
RECITALS<\/p>\n
A. Landlord and Tenant have entered into that certain Lease Agreement
\n dated ___________ (the “Lease”), for the leasing of certain premises
\n containing approximately __________ rentable square feet of space
\n located at ____________________________ California (the “Premises”) as
\n such Premises are more fully described in the Lease.<\/p>\n
B. Landlord and Tenant wish to amend the Commencement Date of the Lease.<\/p>\n
NOW, THEREFORE, in consideration of the foregoing and for other good and
\nvaluable consideration, the receipt and adequacy of which are hereby
\nacknowledged, Landlord and Tenant hereby agree as follows:<\/p>\n
1. Recitals: Landlord and Tenant agree that the above recitals
\n are true and correct.<\/p>\n
2. The Commencement Date of the Lease shall be __________________<\/p>\n
3. The last day of the Term of the Lease (the “Expiration Date”)
\n shall be ______________<\/p>\n
4. The dates on which the Base Rent will be adjusted are:<\/p>\n
for the period _________ to ________ the monthly Base Rent
\n shall be $_____________ for the period _________ to ________
\n the monthly Base Rent shall be $__________; and for the period
\n _________ to ________ the monthly Base Rent shall be
\n $_____________.<\/p>\n
5. EFFECT OF AMENDMENT: Except as modified herein, the terms and
\n conditions of the Lease shall remain unmodified and continue
\n in full force and effect. In the event of any conflict between
\n the terms and conditions of the Lease and this Amendment, the
\n terms and conditions of this Amendment shall prevail.<\/p>\n
6. DEFINITIONS: Unless otherwise defined in this Amendment, all
\n terms not defined in this Amendment shall have the meaning set
\n forth in the Lease.<\/p>\n
7. AUTHORITY: Subject to the provisions of the Lease, this
\n Amendment shall be binding upon and inure to the benefit of
\n the parties hereto, their respective heirs, legal
\n representatives, successors and assigns. Each party hereto and
\n the persons signing below warrant that the person signing
\n below on such party’s behalf is authorized to do so and to
\n bind such party to the terms of this Amendment.<\/p>\n
8. The terms and provisions of the Lease are hereby incorporated
\n in this Amendment.<\/p>\n
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and
\nyear first above written.<\/p>\n
TENANT:<\/p>\n
By:
\n —————————————–<\/p>\n
For:
\n ————————————–<\/p>\n
Date:
\n ————————————-<\/p>\n
LANDLORD:
\nLEGACY PARTNERS COMMERCIAL, INC.<\/p>\n
By:
\n —————————————
\n Terry Thompson, Vice President<\/p>\n
Date:
\n ——————–<\/p>\n
1<\/p>\n
EXHIBIT G (TENANT\/LANDLORD)
\n TENANT’S INITIAL HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE<\/p>\n
Your cooperation in this matter is appreciated. Initially, the information
\nprovided by you in this Hazardous Materials Disclosure Certificate is necessary
\nfor the Landlord (identified below) to evaluate and finalize a lease agreement
\nwith you as tenant. After a lease agreement is signed by you and the Landlord
\n(the “Lease Agreement”), on an annual basis in accordance with the signed Lease
\nAgreement, you are to provide an update to the information initially provided by
\nyou in this certificate. The information contained in the initial Hazardous
\nMaterials Disclosure Certificate and each annual certificate provided by you
\nthereafter will be maintained in confidentiality by Landlord subject to release
\nand disclosure as required by (i) any lenders and owners and their respective
\nenvironmental consultants, (ii) any prospective purchaser(s) of all or any
\nportion of the property on which the Premises are located, (iii) Landlord to
\ndefend itself or its lenders, partners or representatives against any claim or
\ndemand, and (iv) any laws, rules, regulations, orders, decrees, or ordinances,
\nincluding, without limitation, court orders or subpoenas. Any and all
\ncapitalized terms used herein, which are not otherwise defined herein, shall
\nhave the same meaning ascribed to such term in the signed Lease Agreement. Any
\nquestions regarding this certificate should be directed to, and when completed,
\nthe certificate should be delivered to:<\/p>\n
Lessor: Legacy-RECP Sorrento OPCO, LLC
\n c\/o Legacy Partners Commercial, Inc.
\n 6480 Weathers Place, Suite 245
\n San Diego, California 92121
\n Phone: (619) 4534800<\/p>\n
Name of (Prospective) Lessee: WEBSENSE, Inc.<\/p>\n
Mailing Address:
\n —————————————————————-<\/p>\n
——————————————————————————–<\/p>\n
Contact Person, Tide and Telephone Number(s):
\n ———————————–<\/p>\n
Contact Person for Hazardous Waste Materials Management and Manifests and
\nTelephone Number(s):<\/p>\n
——————————————————————————–<\/p>\n
Address of (Prospective) Premises: 10240 Sorrento Valley Road, 2 and 3 Floors,
\nSan Diego, CA<\/p>\n
Length of (Prospective) initial Term: Three (3) years<\/p>\n
1. GENERAL INFORMATION:<\/p>\n
Describe the initial proposed operations to take place in, on, or about
\n the Premises, including, without limitation, principal products
\n processed, manufactured or assembled services and activities to be
\n provided or otherwise conducted. Existing tenants should describe any
\n proposed changes to on-going operations.<\/p>\n
———————————————————————–<\/p>\n
———————————————————————–<\/p>\n
2. USE, STORAGE AND DISPOSAL OF HAZARDOUS MATERIALS<\/p>\n
2.1 Will any Hazardous Materials be used, generated, stored or
\n disposed of in, on or about the Premises? Existing tenants
\n should describe any Hazardous Materials which continue to be
\n used, generated, stored or disposed of in, on or about the
\n Premises.<\/p>\n
Wastes Yes |_| No |_|
\n Chemical Products Yes |_| No |_|
\n Other Yes |_| No |_|<\/p>\n
If Yes is marked, please explain:
\n —————————–<\/p>\n
————————————————————–<\/p>\n
————————————————————–<\/p>\n
2.2 If Yes is marked in Section 2.1, attach a list of any
\n Hazardous Materials to be used, generated, stored or disposed
\n of in, on or about the Premises, including the applicable
\n hazard class and an estimate of the quantities of such
\n Hazardous Materials at any given time; estimated annual
\n throughput; the proposed location(s) and method of storage
\n (excluding nominal amounts of ordinary household cleaners and
\n janitorial supplies which are not regulated by any
\n Environmental Laws); and the proposed location(s) and method
\n of disposal for each Hazardous Material, including, the
\n estimated frequency, and the proposed contractors or
\n subcontractors. Existing tenants should attach a list setting
\n forth<\/p>\n
1<\/p>\n
the information requested above and such list should include
\n actual data from on-going operations and the identification of
\n any variations in such information from the prior year’s
\n certificate.<\/p>\n
3. STORAGE TANKS AND SUMPS<\/p>\n
3.1 Is any above or below ground storage of gasoline, diesel,
\n petroleum, or other Hazardous Materials in tanks or sumps
\n proposed in, on or about the Premises? Existing tenants should
\n describe any such actual or proposed activities.<\/p>\n
Yes |_| No |_|<\/p>\n
If yes, please explain:
\n —————————————<\/p>\n
————————————————————–<\/p>\n
————————————————————–<\/p>\n
4. WASTE MANAGEMENT<\/p>\n
4.1 Has your company been issued an EPA Hazardous Waste Generator
\n I.D. Number? Existing tenants should describe any additional
\n identification numbers issued since the previous certificate.<\/p>\n
Yes |_| No |_|<\/p>\n
4.2 Has your company filed a biennial or quarterly reports as a
\n hazardous waste generator? Existing tenants should describe
\n any new reports filed.<\/p>\n
Yes |_| No |_|<\/p>\n
If yes, attach a copy of the most recent report filed.<\/p>\n
5. WASTEWATER TREATMENT AND DISCHARGE<\/p>\n
5.1 Will your company discharge wastewater or other wastes to:<\/p>\n
storm drain’? sewer?
\n ——– ——–
\n surface water? no wastewater or other
\n ——– ——– wastes discharged.<\/p>\n
Existing tenants should indicate any actual discharges. If so,
\n describe the nature of any proposed or actual discharge(s).<\/p>\n
————————————————————–<\/p>\n
————————————————————–<\/p>\n
5.2 Will any such wastewater or waste be treated before discharge?<\/p>\n
Yes |_| No |_|<\/p>\n
If yes, describe the type of treatment proposed to be
\n conducted. Existing tenants should describe the actual
\n treatment conducted.<\/p>\n
————————————————————–<\/p>\n
————————————————————–<\/p>\n
6. AIR DISCHARGES<\/p>\n
6.1 Do you plan for any air filtration systems or stacks to be
\n used in your company’s operations in, on or about the Premises
\n that will discharge into the air; and will such air emissions
\n be monitored? Existing tenants should indicate whether or not
\n there are any such air filtration systems or stacks in use in,
\n on or about the Premises which discharge into the air and
\n whether such air emissions are being monitored.<\/p>\n
Yes |_| No |_|<\/p>\n
If yes, please describe:
\n ————————————–<\/p>\n
————————————————————–<\/p>\n
————————————————————–<\/p>\n
2<\/p>\n
6.2 Do you propose to operate any of the following types of
\n equipment, or any other equipment requiring an air emissions
\n permit? Existing tenants should specify any such equipment
\n being operated in, on or about the Premises.<\/p>\n
Spray booth(s) Incinerator(s)
\n ——– ———
\n Dip tank(s) Other (Please describe)
\n ——– ———
\n Drying oven(s) No Equipment Requiring Air
\n ——– ——— Permits<\/p>\n
If yes, please describe:
\n ————————————-<\/p>\n
————————————————————–<\/p>\n
————————————————————–<\/p>\n
7. HAZARDOUS MATERIAL DISCLOSURES<\/p>\n
7.1 Has your company prepared or will it be required to prepare a
\n Hazardous Materials management plan (“Management Plan”)
\n pursuant to Fire Department or other governmental or
\n regulatory agencies’ requirements? Existing tenants should
\n indicate whether or not a Management Plan is required and has
\n been prepared.<\/p>\n
Yes |_| No |_|<\/p>\n
If yes, attach a copy of the Management Plan. Existing tenants
\n should attach a copy of any required updates to the Management
\n Plan.<\/p>\n
7.2 Are any of the Hazardous Materials, and in particular
\n chemicals, proposed to be used in your operations in, on or
\n about the Premises regulated under Proposition 65? Existing
\n tenants should indicate whether or not there are any new
\n Hazardous Materials being so used which are regulated under
\n Proposition 65.<\/p>\n
Yes |_| No |_|<\/p>\n
If yes, please explain:
\n —————————————<\/p>\n
————————————————————–<\/p>\n
————————————————————–<\/p>\n
8. ENFORCEMENT ACTIONS AND COMPLAINTS<\/p>\n
8.1 With respect to Hazardous Materials or Environmental Laws, has
\n your company ever been subject to any agency enforcement
\n actions, administrative orders, or consent decrees or has your
\n company received requests for information, notice or demand
\n letters, or any other inquiries regarding its operations?
\n Existing tenants should indicate whether or not any such
\n actions, orders or decrees have been, or are m the process of
\n being, undertaken or if any such requests have been received.<\/p>\n
Yes |_| No |_|<\/p>\n
If yes, describe the actions, orders or decrees and any
\n continuing compliance obligations imposed as a result of these
\n actions, orders or decrees and also describe any requests,
\n notices or demands, and attach a copy of all such documents.
\n Existing tenants should describe and attach a copy of any new
\n actions, orders, decrees, requests, notices or demands not
\n already delivered to Landlord pursuant to the provisions of
\n Section 29 of the signed Lease Agreement.<\/p>\n
————————————————————–<\/p>\n
————————————————————–<\/p>\n
————————————————————–<\/p>\n
8.2 Have there ever been, or are there now pending, any lawsuits
\n against your company regarding any environmental or health and
\n safety concerns?<\/p>\n
Yes |_| No |_|<\/p>\n
If yes, describe any such lawsuits and attach copies of the
\n complaint(s), cross-complaint(s), pleadings and all other
\n documents related thereto as requested by Landlord. Existing
\n tenants should describe and attach a copy of any new
\n complaint(s), cross-complaint(s), pleadings and other related
\n documents not already delivered to Landlord pursuant to the
\n provisions of Section 29 of the signed Lease Agreement.<\/p>\n
————————————————————–<\/p>\n
————————————————————–<\/p>\n
————————————————————–<\/p>\n
3<\/p>\n
8.3 Have there been any problems or complaints from adjacent
\n tenants, owners or other neighbors at your company’s current
\n facility with regard to environmental or health and safety
\n concerns? Existing tenants should indicate whether or not
\n there have been any such problems or complaints from adjacent
\n tenants, owners or other neighbors at, about or near the
\n Premises.<\/p>\n
Yes |_| No |_|<\/p>\n
If yes, please describe. Existing tenants should describe any
\n such problems or complaints not already disclosed to Landlord
\n under the provisions of the signed Lease Agreement.<\/p>\n
————————————————————–<\/p>\n
————————————————————–<\/p>\n
9. PERMITS AND LICENSES<\/p>\n
9.1 Attach copies of all Hazardous Materials permits and licenses
\n including a Transporter Permit number issued to your company
\n with respect to its proposed operations in, on or about the
\n Premises, including, without limitation, any wastewater
\n discharge permits, air emissions permits, and use permits or
\n approvals. Existing tenants should attach copies of any new
\n permits and licenses as well as any renewals of permits or
\n licenses previously issued.<\/p>\n
The undersigned hereby acknowledges and agrees that (A) this Hazardous Materials
\nDisclosure Certificate is being delivered in connection with, and as required
\nby, Landlord in connection with the evaluation and finalization of a Lease
\nAgreement and will be attached thereto as an exhibit; (B) that this Hazardous
\nMaterials Disclosure Certificate is being delivered in accordance with, and as
\nrequired by, the provisions of Section 29 of the Lease Agreement; and (C) that
\nTenant shall have and retain full and complete responsibility and liability with
\nrespect to any of the Hazardous Materials disclosed in the HazMat Certificate
\nnotwithstanding Landlord’s\/Tenant’s receipt and\/or approval of such certificate.
\nTenant further agrees that none of the following described acts or events shall
\nbe construed or otherwise interpreted as either (a) excusing, diminishing or
\notherwise limiting Tenant from the requirement to fully and faithfully perform
\nits obligations under the Lease with respect to Hazardous Materials, including,
\nwithout limitation, Tenant’s indemnification of the Indemnitees and compliance
\nwith all Environmental Laws, or (b) imposing upon Landlord, directly or
\nindirectly, any duty or liability with respect to any such Hazardous Materials,
\nincluding, without limitation, any duty on Landlord to investigate or otherwise
\nverify the accuracy of the representations and statements made therein or to
\nensure that Tenant is in compliance with all Environmental Laws; (i) the
\ndelivery of such certificate to Landlord and\/or Landlord’s acceptance of such
\ncertificate, (ii) Landlord’s review and approval of such certificate, (i~)
\nLandlord’s failure to obtain such certificate from Tenant at any time, or (iv)
\nLandlord’s actual or constructive knowledge of the types and quantities of
\nHazardous Materials being used, stored, generated, disposed of or transported on
\nor about the Premises by Tenant or Tenant’s Representatives. Notwithstanding the
\nforegoing or anything to the contrary contained herein, the undersigned
\nacknowledges and agrees that Landlord and its partners, lenders and
\nrepresentatives may, and will, rely upon the statements, representations,
\nwarranties, and certifications made herein and the truthfulness thereof in
\nentering into the Lease Agreement and the continuance thereof throughout the
\nterm, and any renewals thereof, of the Lease Agreement.<\/p>\n
I (print name) _____________________________________________ acting with full
\nauthority to bind the (proposed) Tenant and on behalf of the (proposed) Tenant,
\ncertify, represent and warrant that the information contained in this
\ncertificate is true and correct.<\/p>\n
TENANT:<\/p>\n
WEBSENSE, Inc.<\/p>\n
Signature:
\n ——————————————-<\/p>\n
Title:
\n ———————————————<\/p>\n
Date:
\n ———————————————-<\/p>\n
4<\/p>\n
EXHIBIT H
\n SIGN CRITERIA<\/p>\n
Tenant shall be entitled to display its business name on a sign to be mounted in
\nthe following locations, provided such exact locations shall be subject to
\nLandlord’s reasonable approval:<\/p>\n
(A) Tenant’s name and logo adjacent to Tenant’s Premises entry doors on the
\nfirst floors.<\/p>\n
Notwithstanding the above, all aspects of said signage (including, but not
\nlimited to, size, font, color, location, etc.) shall be subject to Landlord’s
\nreasonable approval, and must meet governmental and quasi-governmental
\nregulations. Furthermore, all signage shall be non-exclusive and may be shared
\nby other tenants.<\/p>\n
The fabrication and installation of all Tenant signage shall be at Tenant’s sole
\nexpense. The removal of said signage and repair of any damage caused by such
\nremoval at the end of the Term shall also be at Tenant’s sole expense.<\/p>\n
ADDENDUM ONE
\n OPTION TO EXTEND THE LEASE<\/p>\n
This ADDENDUM ONE (“Addendum”) is incorporated as a part of that certain Lease
\nAgreement dated FEBRUARY 12, 2000 (the “Lease”), by and between LEGACY-RECP
\nSORRENTO OPCO, LLC, A DELAWARE LIMITED LIABILITY COMPANY (“Landlord”) and
\nWEBSENSE, INC., A DELAWARE CORPORATION (“Tenant”) for the leasing of certain
\npremises located at 10240 SORRENTO VALLEY ROAD, SUITE 150, SAN DIEGO, California
\nas more particularly described in EXHIBIT A to the Lease (the “Premises”). Any
\ncapitalized terms used herein and not otherwise defined herein shall have the
\nmeaning ascribed to such terms as set forth in the Lease.<\/p>\n
1. GRANT OF EXTENSION OPTION. Subject to the provisions of this Addendum,
\nif Tenant has not at any time been in default of its obligations beyond
\napplicable cure periods more than three (3) times during any twelve (12) month
\nperiod of the initial term of this Lease (a “Chronic Default”), or is not in
\ndefault in the performance of any of its obligations under this Lease beyond
\napplicable cure periods at the time of Tenant’s exercise of this option to
\nextend the initial term of this Lease, Tenant shall have the right, at its
\noption (the “Option”), to extend the initial term of the Lease for one (1)
\nadditional Three (3) year period (the “Extended Term”).<\/p>\n
2. TENANT’S OPTION NOTICE. If Landlord does not receive written notice
\nfrom Tenant of its exercise of this Option on a date which is not more than two
\nhundred seventy (270) days nor less than one hundred eighty (180) days prior to
\nthe end of the initial term of the Lease (“Option Notice”), all rights under
\nthis Option shall automatically lapse and terminate and shall be of no further
\nforce or effect. Time is of the essence herein.<\/p>\n
3. ESTABLISHING THE MONTHLY BASE RENT FOR THE EXTENDED TERM. The monthly
\nBase Rent for the Extended Term shall be the then current market rent for
\nsimilar space within the competitive market area of the Premises (the “Fair
\nRental Value”) agreed upon by and between Landlord and Tenant and their agents
\nappointed for this purpose. The “Fair Rental Value” of the Premises shall be
\ndefined to mean the current market rental value of the Premises as of the
\ncommencement of the Extended Term, taking into consideration all relevant
\nfactors, including length of term, the uses permitted under the Lease, the
\nquality, size, design and location of the Premises, including the condition and
\nvalue of existing tenant improvements, and the monthly base rent paid by tenants
\nfor premises comparable to the Premises, and located within the competitive
\nmarket area of the Premises.<\/p>\n
If Landlord and Tenant are unable to agree on the Fair Rental Value for the
\nExtended Term within ten (10) days of receipt by Landlord of the Option Notice,
\nLandlord and Tenant each, at its cost and by giving notice to the other party,
\nshall appoint a competent and disinterested commercial real estate MM appraiser
\n(hereinafter “appraiser”) with at least ten (10) years’ full-time commercial
\nreal estate appraisal experience in the geographical area of the Premises to set
\nthe Fair Rental Value for the Extended Term. If either Landlord or Tenant does
\nnot appoint an appraiser within ten (10) days after the other party has given
\nnotice of the name of its appraiser, the single appraiser appointed shall be the
\nsole appraiser and shall set the Fair Rental Value for the Extended Term. If two
\n(2) appraisers are appointed by Landlord and Tenant as stated in this paragraph,
\nthey shall meet promptly and attempt to set the Fair Rental Value. If the two
\n(2) appraisers are unable to agree within ten (10) days after the second
\nappraiser has been appointed, they shall attempt to select a third appraiser,
\nmeeting the qualifications stated in this paragraph within ten (10) days after
\nthe last day the two (2) appraisers are given to set the Fair Rental Value. If
\nthey are unable to agree on the third appraiser, either Landlord or Tenant by
\ngiving ten (10) days’ notice to the other party, can apply to the Presiding
\nJudge of the Superior Court of the county in which the Premises is located for
\nthe selection of a third appraiser who meets the qualifications stated in this
\nparagraph. Landlord and Tenant each shall bear one-half (14) of the cost of
\nappointing the third appraiser and of paying the third appraiser’s fee. The
\nthird appraiser, however selected, shall be a person who has not previously
\nacted in any capacity for either Landlord or Tenant. Within fifteen (15) days
\nafter the selection of the third appraiser, the third appraiser shall determine
\nthe Fair Rental Value for the Extended Term, which Fair Rental Value shall not
\nbe higher than the highest Fair Rental Value nor lower than the lowest Fair
\nRental Value submitted by the first two appraisers as the Fair Rental Value for
\nthe Extended Term. If either of the first two appraisers fails to submit their
\nopinion of the Fair Rental Value, then the single Fair Rental Value submitted
\nshall automatically be the monthly Base Rent for the Extended Term.<\/p>\n
Upon determination of the initial monthly Base Rent for the Extended Term,
\npursuant to the terms outlined above, Landlord and Tenant shall immediately
\nexecute an amendment to the Lease. Such amendment, shall set forth among other
\nthings, the initial monthly Base Rent for the Extended Term, and the actual
\ncommencement date and expiration date of the Extended Term, and shall otherwise
\nbe on the same terms and provisions of the Lease to the extent then applicable
\n(by way of example only, the provisions of Exhibit B to the Lease may not be
\napplicable during the Extended Term). Tenant shall have no other right to
\nfurther extend the term of the Lease under this Addendum unless Landlord and
\nTenant otherwise expressly agree in writing.<\/p>\n
4. CONDITION OF PREMISES AND BROKERAGE COMMISSIONS FOR THE EXTENDED TERM.
\nIf Tenant timely and properly exercises this Option, in accordance with the
\nterms contained herein: (1) Tenant shall accept the Premises in its then “As-Is”
\ncondition and, accordingly, Landlord shall not be required to perform any
\nadditional improvements to the Premises; and (2) Tenant hereby agrees that it
\nwill solely be responsible for any and all brokerage commissions and finder’s
\nfees payable to any broker now or hereafter procured or hired by Tenant or who
\notherwise claims a commission based on any act or statement of Tenant (“Tenant’s
\nBroker”) in connection with this Option; and Tenant hereby further agrees that
\nLandlord shall in no event or circumstance be responsible for the payment of any
\nsuch commissions and fees to Tenant’s Broker.<\/p>\n
5. LIMITATIONS ON, AND CONDITIONS TO, EXTENSION OPTION. At Landlord’s
\noption, all rights of Tenant. under this Option shall terminate and be of no
\nforce or effect if any of the following individual events occur or any
\ncombination thereof occur: (1) Tenant has been in Chronic Default at any time
\nduring the initial term of the Lease, or is in default in the performance of any
\nof its obligations under this Lease beyond any applicable cure periods at the
\ntime of Tenant’s exercise of this Option; and\/or (2> Tenant’s financial
\ncondition is unacceptable to Landlord at the time of Tenant’s delivery to
\nLandlord of the Option Notice (provided, however, if there is not any
\nsubstantial adverse change in Tenant’s net profits during the prior three (3)
\nfiscal quarters of Tenant’s operations then Tenant’s then existing financial
\ncondition shall be acceptable to Landlord); and\/or (3) Tenant has failed to
\nexercise properly the Option described in this Addendum in a timely manner in
\nstrict accordance with the provisions of this Addendum; and\/or (4) Tenant no
\nlonger has lawful possession of the Premises under the Lease, or if the Lease
\nhas been terminated earlier, pursuant to the terms of the Lease.<\/p>\n
6. TIME IS OF THE ESSENCE. Time is of the essence with respect to each and
\nevery time period set forth in this Addendum.<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9305],"corporate_contracts_industries":[],"corporate_contracts_types":[9583,9579],"class_list":["post-41840","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-websense-inc","corporate_contracts_types-land__ca","corporate_contracts_types-land"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41840","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41840"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41840"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41840"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41840"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}