HomeMy WebLinkAbout2004-11-09; City Council; 17878; Cygnus Multimedia Communications Inc agmtn w
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17,878
DEPT. ED
CITY OF CARLSBAD - AGENDA BILL
TITLE:
ACCEPTANCE OF LEASE AGREEMENT BETWEEN THE
CITY OF CARLSBAD AND CYGNUS MULTIMEDIA
COMMUNICATIONS INC. FOR 2075 LAS PALMAS DRIVE
AND ALLOCATION OF FUNDS
DEPT. HD.
CITY ATTY. &E
RECOMMENDED ACTION:
ADOPT Resolution No. 2004-358 accepting a four (4) year lease agreement for the term
December 1, 2004 to November 30, 2008, with Cygnus Multimedia Communications Inc.,
authorizing the City Manager to execute the lease and all related documents, and appropriate
$39,699.00 from the Public Facilities Fee Fund available balance for payment of real estate broker
fees to Dubs and Company.
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ITEM EXPLANATION:
The City of Carlsbad is the owner of real property located at 2075 Las Palmas Drive in Carlsbad,
California, formally utilized by the City’s as its Community Development Offices. After City staff
relocated to the Faraday Center, there was no new planned government use of the property. On
March 14, 2000, the City Council authorized staff to offer the 22,627 square foot building for lease to
the public, at a market lease rate. In January 2001, the facility was leased to Modetek Inc. for the
term January 2001 until August 2003. The property was then vacated by Modetek Inc., and again
offered to the public at a market lease rate. On October 5,2004, staff presented the City Council with
an offer to lease the property, from Cygnus Multimedia Communications Inc. (Cygnus). Subsequent
to presentation of the offer, the City Council authorized staff to make a counter offer, and if accepted,
prepare a lease agreement for execution. The counter offer was accepted and the attached lease
agreement was prepared.
The term of the lease with Cygnus is four (4) years, with two (2) additional five (5) year options to
extend. It also includes an option for First Right of Negotiation, should the City decide to sell the
property during the term of the lease with Cygnus. The base lease rate will be $1.27 triple net on
22,627 square feet of R&D and office space ($28,736.00 per month) and will be adjusted upward
annually by 3.5%. The lease provides for abatement of rent for 6000 square feet of laboratory space
in months 1-6, and rent abatement for the entire 22,627 square feet of space in months 25 and 37, in
lieu of a Tenant Improvement Allowance. The total estimated value of the four (4) year lease with
Cygnus is $1,323,321. Per the lease agreement, the tenant’s broker will receive a brokerage fee of
3%. The City represented itself and therefore there are no additional brokerage fees. The lease also
provides that if the tenant’s current broker represents them on the first five (5) year option to extend
the lease, or the purchase of the property, they will receive a 2% fee. No broker fee will be paid if the
tenant elects to exercise its option for a second extension period.
ENVIRONMENTAL IMPACT:
The Planning Director has determined that leasing activities are exempt from the California
Environmental Quality Act, pursuant to Section 15301 of the CEQA Guidelines. Section 15301
exempts projects or activities that consist of leasing of existing public facilities.
FISCAL IMPACT:
PAGE 2 OF AGENDA BILL NO. 47,878
The lease agreement with Cygnus Multimedia Incorporated Inc. will generate an estimated
$1,323,321 in revenues over the four (4) year term. Since the Tenant is a start-up company, they have
agreed to prepay the first 24 months of the lease term as a condition of tenancy. The City has agreed
To "discount" the prepaid rental amount to reflect the Present Value of the lease payments, utilizing
the City's investment pool rate of 3.4%. The Rent Schedule is provided below:
Term Rentable S.F Base Rent Annual Rent
December 1 , 2004 to May 3 1,2005 16,627s.f. $21,116.00* Prepaid
June 1,2005 to November 30,2005 22,627 s.f. $28,736.00* Prepaid
December 1,2005 to November 30,2006 22,627 s.f. $29,7426.00** Prepaid
December 1,2006 to November 30,2007 22,627 s.f. $30,783.00 $338,613.00
December 1,2007 to November 30,2008 22,627 s.f. $31,860.00 $350,464.00
*Prepaid Rent for December 1,2004 through May 3 1,2005 is $294,485 .OO (discounted rate)
**Prepaid Rent for December 1,2005 through November 30,2006 is $339,759 (discounted rate)
Rent Abatement Periods:
Months 1-6, equal to $7620 per month or $45,720, based on $1.27 N"/6,000 square feet
Month 25, equal to $30,783, based on $1.36 NNN/22,627 square feet
Month 37, equal to $31,860., based on $1.41 "22627 square feet
EXH IBlTS :
2004- 1. Resolution No. 358 of the City Council of the City of Carlsbad, California, approving a
four-year lease agreement for the term December 1,2004 to November 30,2008.
2. Lease Agreement between the City of Carlsbad and Cygnus Multimedia Communications
Incorporated.
3. Memorandum of Lease.
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RESOLUTION NO. 2004-358
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, APPROVING A FOUR YEAR
LEASE AGREEMENT BETWEEN THE CITY OF CARLSBAD
AND CYGNUS MULTIMEDIA COMMUNICATIONS INC. FOR
THE PROPERTY LOCATED AT 2075 LAS PALMAS DRIVE,
CARLSBAD, CA.
WHEREAS, the City Council of the City of Carlsbad has determined that it is in the best
interest of the City to lease the 22,626 square foot building it owns, located at 2075 Las Palmas
Drive, Carlsbad, CA 92009; and
WHEREAS, the City Council has Mer determined that it accepts the terms of the four
year lease agreement with Cygnus Multimedia Communications Inc. for lease of the property;
and
WHEREAS, Cygnus Multimedia Communications has provided the City with all
required documentation, deposits and fees under the terms and conditions of the agreement
attached hereto.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
California as follows:
1.
2.
That the above recitations are true and correct.
That the attached lease agreement, Exhibit 2, between the City of Carlsbad
and Cygnus Multimedia Communications Inc. is approved.
That the City Manager is authorized to execute the lease and all related
documents.
3.
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PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council on the
9th dayof November 2004, by the following vote to wit:
AYES: Council Members Lewis, Finnila, Hall and Packard.
NOES: None
ABSENT: Council Member Kulc
Mayor
ATTEST:
City Clerk
-2- Y
CITY OF CARLSBAD
LEASE TO
CYGNUS MULTIMEDIA COM MU N ICATIONS I NC.
OF PROPERTY LOCATED AT 2075 LAS PALMAS DRIVE
CARLSBAD, CALIFORNIA, 92009
FOR FOUR (4) YEARS, ZERO (0) MONTHS
COMMENCING DECEMBER 1,2004
AND ENDING NOVEMBER 30,2008
LEASE
1. Basic Provisions (“Basic Provisions”)
Parties: This Lease (“Lease”), dated for reference purposes only November 2, 2004 is made by and between The City of Carlsbad (“Lessor”) and Cygnus Multimedia
Communications Inc. (“Lessee”), (collectively the “Parties”, or individually a “Party”).
1.1
1.2 Premises: That certain real property, including all improvements therein or to be
provided by Lessor under the terms of this Lease, and commonly known as 2075 Las Palmas
Drive, Carlsbad, CA 92009, located in the County of San Dieao, State of California, and generally
described as “ An industrial buildina consistinq of approximately 22.627 square feet and surrounding real property including 116 adiacent parkina spaces. “ A legal description of the real
property is attached hereto as Exhibit “A. The Building is depicted on Exhibit “B” (“Premises”).
(See also Section 2)
1.3 Term: Four (4) years and 0 months (“Original Term”) commencing
December 1, 2004 (“Commencement Date”) and ending November 30, 2008 (“Expiration
Date”). (See also Section 3)
1.4
I .5
Early Possession: on or before November 1, 2004 (“Early Possession Date”).
(See also Paragraph 3.2)
Base Rent: $1.27 per rentable square foot , triple net for 22,627 square feet,
or $28,736.00 per month (“Base Rent”), payable on the first day of each month
commencing December 1, 2004 , with provisions for annual base rent adjustment (See
also Section 4). Base Rent shall be deemed to mean the basic minimum rental to be paid
by Lessee under the Lease Agreement for the use and occupancy of the Premises, not
including (i) any rent waived during any designated rental abatement period (See also
Paragraph 14.3); (ii) any charges for landscape maintenance that may be imposed upon
Lessee (See also Paragraph 4.4); (iii) any Holdover Rent amount, if Lessee remains in
possession of the Premises after expiration of the term of the Lease after having failed to
exercise an Option (See also Section 27); (iv) any late charge or interest payment (See
also Paragraphs 14.4 and 14.5); and (v) the amounts of any cost and expense incurred or
to be incurred by Lessor in connection with Lessor‘s assumption of, or reimbursement with
respect to Lessee’s obligation under existing Lease.
1.6 Prepaid Base Rent Paid Upon Execution: $634,244.00 in prepaid rent for first
twenty-four (24) months of occupancy, covering the period December 1, 2004 throuqh November
30, 2006, as discounted to Present Value.
1.7 Security Deposit: $ 57,472.00 (“Security Deposit”). (See also Section 5).
1.8 Agreed Use: Research and Development of wireless communication,
assembly of Drototypes and related office uses. (See also Paragraph 6.1 .)
1.9 Insuring Party. Lessor is the “Insuring Party” unless otherwise stated herein.
(See also Section 8)
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Initials eb
1.10
Deanna K. Dubs/ Dubs and ComDanv
Real Estate Brokers: (See also Paragraphs 16, 51 and Section 39.3)
(a) Representation: In this transaction (check applicable boxes):
represents Lessee exclusively as “Lessee’s
Broker”. Lessor is not represented by a Broker.
(b) Payment to Brokers: Upon commencement of this Lease, Lessor shall pay to
Lessee’s Broker the sum of 3% of the total Base Rent of $1,323,306, for the four (4) year term,
which equals $39,699, for brokerage services rendered by said Broker.
Guarantor. The obligations of the Lessee under this Lease are to be guaranteed by
Not ADDlicable (“Guarantor”). (See also
1.12 Addenda and Exhibits. Attached hereto are Exhibits A, and B, both of which
1.11
Section 37)
constitute a part of the Lease.
2. Premises.
2.1 Letting. Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor,
the Premises, for the term, at the rental, and upon all of the terms, covenants and conditions set
forth in this Lease. Unless otherwise provided herein, any statement of size set forth in this Lease,
or that may have been used in calculating rental, is an approximation that the Parties agree is
reasonable and the rental based thereon is not subject to revision whether or not the actual size is
more or less.
Condition. Lessor shall deliver the Premises to Lessee broom clean and free of
debris on the Commencement Date or the Early Possession Date, whichever first occurs (“Start
Date”), and, so long as the required service contracts described in Paragraph 7.l(b) below are
obtained by Lessee within thirty (30) days following the Start Date, warrants that the existing
electrical, plumbing, fire sprinkler, lighting, heating, ventilating and air conditioning systems
(“HVAC”), loading doors, if any, and all other such elements in the Premises, other than those
constructed by Lessee, shall be in good operating condition on said date and that the structural
elements of the roof, bearing walls and foundation of any buildings on the Premises (the
“Building”) shall be free of material defects. If a non-compliance with said warranty exists as of
the Start Date, Lessor shall, as Lessor‘s sole obligation with respect to such matter, except as
otherwise provided in this Lease, promptly after receipt of written notice from Lessee setting forth
with specificity the nature and extent of such non-compliance, rectify same as Lessor‘s expense. If,
after the Start Date, Lessee does not give Lessor written notice of any non-compliance with this
warranty within: (i) one year as to the surface of the roof and the structural portions of the roof,
foundations and bearing walls, (ii) six (6) months as to the HVAC systems, (iii) thirty (30) days as to
the remaining systems and other elements of the Building, correction of such non-compliance shall
be the obligation of Lessee at Lessee’s sole cost and expense.
Compliance. Lessor warrants that the improvements on the Premises comply with
all applicable laws, covenants or restrictions of record, building codes, regulations and ordinances
(“Applicable Requirements”) in effect on the Start Date. Said warranty does not apply to the use
to which Lessee will put the Premises or to any Alterations or Utility Installations (as defined in
Paragraph 7.3(a)) made or to be made by Lessee. NOTE: Lessee is responsible for determining
whether or not the zoning is appropriate for Lessee’s intended use, and acknowledges that past
uses of the Premises may no longer be allowed. If the Premises do not comply with said warranty,
Lessor shall, except as otherwise provided, promptly after receipt of written notice from Lessee
setting forth with specificity the nature and extent of such non-compliance, rectify the same at
Lessor‘s expense. If Lessee does not give Lessor written notice of non-compliance with this
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2.2
2.3
warranty within six (6) months following the Start Date, correction of that non-compliance shall be
the obligation of Lessee at Lessee’s sole cost and expense. If the Applicable Requirements are
hereafter changed (as opposed to being in existence at the Start Date), so as to require during the
term of this Lease the construction of an addition to or an alteration of the Building, the remediation
of any Hazardous Substance, or the reinforcement or other physical modification of the Building
(“Capital Expenditure”), Lessor and Lessee shall allocate the cost of such work as follows:
(a) Subject to Paragraph 2.3(c) below, if such Capital Expenditures are required as a
result of the specific and unique use of the Premises by Lessee as compared with uses by tenants
in general, Lessee shall be fully responsible for the cost thereof, provided, however that if such
Capital Expenditure is required during the last two (2) years of this Lease and the cost thereof
exceeds six (6) months’ Base Rent, Lessee may instead terminate this Lease unless Lessor
notifies Lessee, in writing, within ten (IO) days after receipt of Lessee’s termination notice that
Lessor has elected to pay the difference between the actual cost thereof and the amount equal to
six (6) months’ Base Rent. If Lessee elects termination, Lessee shall immediately cease the use of
the Premises that requires such Capital Expenditure and deliver to Lessor written notice specifying
a termination date at least ninety (90) days thereafter. Such termination date shall, however, in no
event be earlier than the last day that Lessee could legally utilize the Premises without
commencing such Capital Expenditure. In the event Lessee elects early termination, Lessee shall
be responsible to reimburse Lessor for its prorata share of brokerage fees paid by Lessor.
(b) If such Capital Expenditure is not the result of the specific and unique use of the
Premises by Lessee (such as, governmentally mandated seismic modifications), then Lessor and
Lessee shall allocate the obligation to pay for such costs pursuant to the provisions of Paragraph
7.l(c); provided, however, that if such Capital Expenditure is required during the last two years of
this Lease or if Lessor reasonably determines that it is not economically feasible to pay its share
thereof, Lessor shall have the option to terminate this Lease upon ninety (90) days prior written
notice to Lessee unless Lessee notifies Lessor, in writing, within ten (IO) days after receipt of
Lessor‘s termination notice that Lessee will pay for such Capital Expenditure. If Lessor does not
elect to terminate, and fails to tender its share of any such Capital Expenditure, Lessee may
advance such funds and deduct same, with interest, from Rent until Lessor‘s share of such costs
have been fully paid. If Lessee is unable to finance Lessor’s share, or if the balance of the Rent
due and payable for the remainder of this Lease is not sufficient to fully reimburse Lessee on an
offset basis, Lessee shall have the right to terminate this Lease upon thirty (30) days written notice
to Lessor.
(c) Notwithstanding the above, the provisions concerning Capital Expenditure are
intended to apply only to non-voluntary, unexpected, and new Applicable Requirements. If the
Capital Expenditures are instead triggered by Lessee as a result of an actual or proposed change
in use, change in intensity of use, or modification to the Premises then, and in that event, Lessee
shall be fully responsible for the cost thereof, and Lessee shall not have any right to terminate this
Lease.
Acknowledgements. Lessee acknowledges that: (a) it has been advised by Lessor
to satisfy itself with respect to the condition of the Premises (including but not limited to the
electrical, HVAC and fire sprinkler systems, security, environmental aspects, and compliance with
Applicable Requirements), and their suitability for Lessee’s intended use, (b) Lessee has made
such investigation as it deems necessary with reference to such matters and assumes all
responsibility therefore as the same relate to its occupancy of the Premises, and (c) neither Lessor,
has made no oral or written representation or warranties with respect to said matters other than as
set forth in this Lease.
2.4
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3. Term.
Term. The Commencement Date, Expiration Date and Original Term of this Lease
are as specified in Paragraph 1.3.
Early Possession. Early possession by Lessee, as well as commencement of this
lease, is contingent upon receipt by Lessor of twenty-four months of prepaid rent, security deposit
and evidence of insurance (See also Paragraph 8.4). All other terms of this Lease (including but
not limited to the obligations to pay Real Property Taxes and Insurance premiums and to maintain
the Premises) shall, however, be in effect during such period. Any such early possession shall not
affect the Expiration Date.
3.3 Lessee Compliance. Lessor shall not be required to tender possession of the
Premises to Lessee until Lessee complies with its obligation to provide evidence of Insurance
(Paragraph 8.4). Pending delivery of such evidence, Lessee shall be required to perform all of its
obligations under this Lease from and after the Start Date, including the payment of Rent and
landscape maintenance, notwithstanding Lessor‘s election to withhold possession pending receipt
of such evidence of insurance. Further, if Lessee is required to perform any other conditions prior
to or concurrent with the Start Date, the Start Date shall occur but Lessor may elect to withhold
possession until such conditions are satisfied.
4. Rent.
3.1
3.2
4.1
Lease (except for the Security Deposit) are deemed to be rent (“Rent”).
4.2
Rent Defined. All monetary obligations of Lessee to Lessor under the terms of this
Payment. Lessee shall cause payment of Rent to be received by Lessor in lawful
money of the United States, without offset or deduction (except as specifically permitted in this
Lease), on or before the day on which it is due. Rent for any period during the term hereof which
is for less than one (I) full calendar month shall be prorated based upon the actual number of
days of said month. Payment of Rent shall be made to Lessor at its address stated herein or to
such other persons or place as Lessor may from time to time designate in writing. Acceptance of
a payment that is less than the amount then due shall not be a waiver of Lessor‘s rights to the
balance of such Rent, regardless of Lessor‘s endorsement of any check so stating.
4.3 Rental Adjustment. The Base Rent payable pursuant to this Lease shall be
increased by the sum of 3.5% per rentable square foot per year, on each anniversary of the
Commencement Date. Set forth below is a summary of the monthly per square foot rental
rates for the initial term and the total monthly Base Rent for each year of the Initial Term. The total amount of rentable space per year is 22,627 square feet, with a beginning rate of
$1.27 per square foot, triple net.
Term Rentable S.F Base Rent Annual Rent
December 1,2004 to May 31,2005 16,627s.f. @ $1.27 $21 ,I 16.00 Prepaid”
June 1, 2005 to November 30, 2005 22,627 s.f.@ $1.27 $28,736.00 Prepaid*
December 1, 2005 to November 30, 2006 22,627 s.f.@ $1.31 $29742.00 Prepaid**
December 1, 2006 to November 30, 2007 22,627 s.f.@ $1.36 $30,783.00 $338,613.00
December 1, 2007 to November 30, 2008 22,627 s.f.@ $1.41 $31,860.00 $350,464.00
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Rent Abatement Periods:
Months 1-6, equal to $7620 per month or $45,720, based on $1.27 NNN/6,000 square feet
Month 25, equal to $30,783, based on $1.36 NNN/22,627 square feet
Month 37, equal to $31,860, based on $1.41 NNN/22627 square feet
*Prepaid Rent for December 1, 2004 through May 31, 2005 is $294,485.00 (discounted rate -
see Exhibit “C”)
**Prepaid Rent for December 1, 2005 through November 30, 2006 is $339,759 (discounted rate - see Exhibit “C)
In addition to Rent, Lessee shall be required to
pay $390.00 per month for Landscape Maintenance Fee. Monthly Landscape Fee is due on the
first day of each month without offset or deduction. Landscape Maintenance Fees for any period
during the term hereof which is for less than one (1) full calendar month shall be prorated based
upon the actual number of days of said month. Payment of Landscape Maintenance Fee shall be
made to Lessor at its address stated herein or to such other persons or place as Lessor may from
time to time designate in writing. Acceptance of a payment that is less than the amount then due
shall not be a waiver of Lessor’s rights to the balance of such Landscape Maintenance Fee,
regardless of Lessor’s endorsement of any check so stating. Landscape Maintenance Fees will be
adjusted annually on the anniversary of the commencement date, to reflect Lessor‘s cost of
providing landscape maintenance services to the premises, but in no event shall the increase
exceed five percent (5%) per year.
5. Security Deposit. Lessee shall deposit with Lessor upon execution hereof the Security
Deposit as security for Lessee’s faithful performance of its obligations under this Lease. If Lessee
fails to pay Rent, or otherwise Defaults under this Lease, Lessor may use, apply or retain all or any
portion of said Security Deposit for the payment of any amount due Lessor or to reimburse or
compensate Lessor for any liability, expense, loss or damage which Lessor may suffer or incur by
reason thereof. If Lessor uses or applies all or any portion of said Security Deposit, Lessee shall
within ten (10) days after written request therefore deposit monies with Lessor sufficient to restore
said Security Deposit to the full amount required by this Lease. If the Base Rent increases during
the term of this Lease, Lessee shall, upon written request from Lessor, deposit additional moneys
with Lessor so that the total amount of the Security Deposit shall at all times bear the same
proportion to the increased Base Rent as the initial Security Deposit bore to the initial Base Rent.
Should the Agreed Use be amended to accommodate a material change in the business of Lessee
or to accommodate a sublease or assignee, Lessor shall have the right to increase the Security
Deposit to the extent necessary, in Lessor’s reasonable judgment, to account for any increased
wear and tear that the Premises may suffer as a result thereof. If a change in control of Lessee
occurs during this Lease or if a comprehensive annual financial report to be provided to Lessor by
Lessee reveals a change in the financial condition of Lessee, and following such change the
financial condition of Lessee is, in Lessor’s reasonable judgment, significantly reduced, Lessee
shall deposit such additional monies with Lessor as shall be sufficient to cause the Security Deposit
to be at a commercially reasonable level based on said change in financial condition. Lessor shall
not be required to keep the Security Deposit separate from its general accounts. Within fourteen
(14) days after the expiration or termination of this Lease, if Lessor elects to apply the Security
Deposit only to unpaid Rent, and otherwise within thirty (30) days after the Premises have been
vacated pursuant to Paragraph 7.4(c) below, Lessor shall return that portion of the Security Deposit
not used or applied by Lessor. No part of the Security Deposit shall be considered to be held in
trust, to bear interest or to be prepayment for any monies to be paid by Lessee under this Lease.
4.4 Landscape Maintenance Fee.
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6. Use.
6.1 Agreed Use. Lessee shall use and occupy the Premises only for the Agreed
Use, or any other legal use that is reasonably comparable thereto, and for no other purpose.
Lessee shall not use or permit the use of the Premises in a manner that is unlawful, creates
damage, waste or a nuisance, or that disturbs owners and/or occupants of, or causes damage to
neighboring properties. Lessor shall not unreasonably withhold or delay its consent to any written
request for a modification of the Agreed Use, so long as the same will not impair the structural
integrity of the improvements on the Premises or the mechanical or electrical systems therein, is
not significantly more burdensome to the Premises. If Lessor elects to withhold consent, Lessor
shall within five (5) business days after such request give written notification of same which notice
shall include an explanation of Lessor‘s objections to the change in use.
6.2 Hazardous Substances.
(a) Reportable Uses Require Consent. The term “Hazardous Substance” as
used in this Lease shall mean any product substance, or waste whose presence, use, manufacture,
disposal, transportation, or release, either by itself or in combination with other materials expected
to be on the Premises, is either: (i) potentially injurious to the public health, safety or welfare, the
environment or the Premises, (ii) regulated or monitored by any governmental authority, or (iii) a
basis for potential liability of Lessor to any governmental agency or third party under any applicable
statute or common law theory. .Hazardous Substances shall include, but not be limited to,
hydrocarbons, petroleum, gasoline, and/or crude oil or any products, by-products or fractions
thereof. Lessee shall not engage in any activity in or on the Premises that constitutes a Reportable
Use of Hazardous Substances without the express prior written consent of Lessor and timely
compliance (at Lessee’s expense) with all Applicable Requirements. “Reportable Use” shall mean
(i) the installation or use of any above or below ground storage tank, (ii) the generation,
possession, storage, use, transportation, or disposal of a Hazardous Substance that requires a
permit from, or with respect to which a report, notice, registration or business plan is required to be
filed with, any governmental authority, and/or (iii) the presence at the Premises of a Hazardous
Substance with respect to which any Applicable Requirements require that a notice be given to
persons entering or occupying the Premises or neighboring properties. Notwithstanding the
foregoing, Lessee may use any ordinary and customary materials reasonably required to be used
in the normal course of the Agreed Use, so long as such use is in compliance with all Applicable
Requirements, is not a Reportable Use, and does not expose the Premises or neighboring property
to any meaningful risk of contamination or damage or expose Lessor to any liability therefore. In
addition, Lessor may condition its consent to any Reportable Use upon receiving such additional
assurances as Lessor reasonably deems necessary to protect itself, the public, the Premises
and/or the environment against damage, contamination, injury and/or liability, including, but not
limited to, the installation (and removal on or before Lease expiration or termination) of protective
modifications (such as concrete encasements) and/or increasing the Security Deposit.
(b) Duty to inform Lessor. If Lessee knows, or has reasonable cause to believe,
that a Hazardous Substance has come to be located in, on, under, or about the Premises, other
than as previously consented to by Lessor, Lessee shall immediately give written notice of such
fact to Lessor, and provide Lessor with a copy of any report, notice, claim or other documentation
which it has concerning the presence of such Hazardous Substance.
(c) Lessee Remediation. Lessee shall not cause or permit any Hazardous
Substance to be spilled or released in, on, under, or about the Premises (including through the
plumbing or sanitary sewer system) and shall promptly, at Lessee’s expense, take all investigatory
and/or remedial action reasonably recommended, whether or not formally ordered or required, for
the cleanup of any contamination of, and for the maintenance, security and/or monitoring of the
Premises or neighboring properties, that was caused or materially contributed to by Lessee, or
pertaining to or involving any Hazardous Substance brought on the Premises during the term of this
Lease, by or for Lessee, or any third party.
(d) Lessee Indemnification. Lessee shall indemnify, defend and hold Lessor, its
officers, officials, employees and agents, harmless from and against any and all loss of rents
and/or damages, liabilities, judgments, claims, expenses, penalties, and attorneys’ and consultants’
fees arising out of or involving any Hazardous Substance brought onto the Premises by or for
Lessee, or any third party (provided, however, that Lessee shall have no liability under this Lease
with respect to underground migration of any Hazardous Substance under the Premises from
adjacent properties). Lessee’s obligations shall include, but not be limited to, the effects of any
contamination or injury to person, property or the environment created or suffered by Lessee, and
the cost of investigation, removal, remediation, restoration and/or abatement, and shall survive the
expiration or termination of this Lease. No termination, cancellation or release agreement entered
into by Lessor and Lessee shall release Lessee from its obligations under this Lease with respect
to Hazardous Substances, unless specifically so agreed by Lessor in writing at the time of such
agreement.
(e) Lessor Indemnification. Lessor and its successors and assigns shall
indemnify, defend, reimburse and hold Lessee, its employees and lenders, harmless from and
against any and all environmental damages, including the cost of remediation, which existed as a
result of Hazardous Substances on the Premises prior to the Start Date or such damages which
are caused by the negligence or willful misconduct of Lessor, its agents or employees. Lessor’s
obligations, as and when required by the Applicable Requirements, shall include, but not be limited
to, the cost of investigation, removal, remediation, restoration and/or abatement, and shall survive
the expiration or termination of this Lease.
(f) Investigations and Remediation. Lessor shall retain the responsibility and pay
for any Investigations or remediation measures required by governmental entities having
jurisdiction with respect to the existence of Hazardous Substances on the Premises prior to the
Start Date, unless such remediation measure is required as a result of Lessee’s use (including
“Alterations”, as defined in Paragraph 7.3(a) below) of the Premises, in which event Lessee shall
be responsible for such payment. Lessee shall cooperate fully in any such activities at the request
of Lessor, including allowing Lessor and Lessor’s agents to have reasonable access to the
Premises at reasonable times in order to carry out Lessor’s investigative and remedial
responsibilities.
(9) Lessor Termination Option. If a Hazardous Substance Condition occurs during
the term of this Lease, unless Lessee is legally responsible therefore (in which case Lessee shall
make the investigation and remediation thereof required by the Applicable Requirements and this
Lease shall continue in full force and effect, but subject to Lessor’s rights under Paragraph 6.2(d)
and Section 14), Lessor may, at Lessor‘s option, either (i) investigate and remediate such
Hazardous Substance Condition, if required, as soon as reasonably possible at Lessor‘s expense,
in which event this Lease shall continue in full force and effect, or (ii) if the estimated cost to
remediate such condition exceeds twelve (12) times the then monthly Base Rent or $100,000,
whichever is greater, give written notice to Lessee, within thirty (30) days after receipt by Lessor of
knowledge of the occurrence of such Hazardous Substance Condition, of Lessor‘s desire to
terminate this Lease as of the date sixty (60) days following the date of such notice. In the event
Lessor elects to give a termination notice, Lessee may, within ten (IO) days thereafter, give written
notice to Lessor of Lessee’s commitment to pay the amount by which the cost of the remediation of
such Hazardous Substance Condition exceeds an amount equal to twelve (12) times the then
monthly Base Rent or $100,000, whichever is greater. Lessee shall provide Lessor with said funds
8
or satisfactory assurance thereof within thirty (30) days following such commitment. In such event,
this Lease shall continue in full force and effect, and Lessor shall proceed to make such
remediation as soon as reasonably possible after the required funds are available. If Lessee does
not give such notice and provide the required funds or assurance thereof within the time provided,
this Lease shall terminate as of the date specified in Lessor’s notice of termination.
6.3 Lessee’s Compliance with Applicable Requirements. Except as otherwise
provided in this Lease, Lessee shall, at Lessee’s sole expense, fully, diligently and in a timely
manner, materially comply with all Applicable Requirements, the requirements of any applicable fire
insurance underwriter or rating bureau, and the recommendations of Lessor‘s engineers and/or
consultants which relate in any manner to the Premises, without regard to whether said
requirements are now in effect or become effective after the Start Date. Lessee shall, within ten
(IO) days after receipt of Lessor‘s written request, provide Lessor with copies of all permits and
other documents, and other information evidencing Lessee’s compliance with any Applicable
Requirements specified by Lessor, and shall immediately upon receipt, notify Lessor in writing (with
copies of any documents involved) of any threatened or actual claim, notice, citation, warning,
complaint or report pertaining to or involving the failure of Lessee or the Premises to comply with
any Applicable Requirements.
Inspection; Compliance. Lessor and Lessor’s consultants shall have the right to
enter into Premises at any time, in the case of an emergency, and otherwise at reasonable times
and upon reasonable notice, for the purpose of inspecting the condition of the Premises and for
verifying compliance by Lessee with this Lease. The cost of any such inspections shall be paid by
the Lessor, unless a violation of Applicable Requirements, or a contamination is found to exist or be
imminent, or the inspection is requested or ordered by a governmental authority. In such case,
Lessee shall upon request reimburse Lessor for the cost of such inspections, so long as such
inspection is reasonably related to the violation or contamination.
7. Maintenance; Repairs, Utility Installations; Trade Fixtures and Alterations.
6.4
7.1 Lessee’s Obligations.
(a) In General. Subject to the provisions of Paragraph 2.2 (Condition), 2.3
(Compliance), 6.3 (Lessee’s Compliance with Applicable Requirements), 7.2 (Lessor‘s Obligations),
9 (Damage or Destruction), and 15 (Condemnation), Lessee shall, at Lessee’s sole expense, keep
the Premises, Utility Installations, and Alterations in good order, condition and repair (whether or
not the portion of the Premises requiring repairs, or the means of repairing the same, are
reasonably or readily accessible to Lessee, and whether or not the need for such repairs occurs as
a result of Lessee’s use, any prior use, the elements or the age of such portion of the Premises),
including, but not limited to, all equipment or facilities, walls (interior and exterior), foundations,
ceilings, roofs, floors, windows, doors, plate glass, skylights, landscaping, driveways, parking lots,
fences, retaining walls, signs, sidewalks and parkways located in, on, or adjacent to the Premises.
Lessee, in keeping the Premises in good order, condition and repair, shall exercise and perform
good maintenance practices, specifically including the procurement and maintenance of the service
contracts required by Paragraph 7.1 (b) below. Lessee’s obligations shall include restorations,
replacements, or renewals when necessary to keep the Premises and all improvements thereon or
a part thereof in good order, condition and state of repair. Lessee shall, during the term of this
Lease, keep the exterior appearance of the Building in a first-class condition consistent with the
exterior appearance of other similar facilities of comparable age and size in the vicinity, including, when necessary, the exterior repainting of the Building.
(b) Service Contracts. Lessee shall, at Lessee’s sole expense, procure and
maintain contracts, with copies to Lessor, in customary form and substance for, and with
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contractors specializing and experienced in the maintenance of the following equipment and
improvements, if any, when installed on the Premises: (i) HVAC equipment, (ii) boiler, and
pressure vessels, (iii) fire extinguishing systems, including fire alarm andlor smoke detection, (iv)
landscaping and irrigation systems, (v) roof covering and drains, (vi) driveways and parking lots,
(vii) clarifiers, (viii) basic utility feed to the perimeter of the Building, and (ix) any other equipment, if
reasonably required by Lessor.
(c) Replacement. Subject to Lessee’s indemnification of Lessor as set forth in
Paragraph 8.7 below, and without relieving Lessee of liability resulting from Lessee’s failure to
exercise and perform good maintenance practices, if the Basic Elements described in Paragraph
7.l(b) cannot be repaired other than at a cost which is in excess of 33% of the cost of replacing
such Basic Elements, then such Basic Elements shall be replaced by Lessor, and the cost thereof
shall be prorated between the Parties and Lessee shall only be obligated to pay, each month during
the remainder of the term of this Lease, on the date on which Base Rent is due, an amount equal
to the product of multiplying the cost of such replacement by a fraction, the numerator of which is
one, and the denominator of which is the number of months of the useful life of such replacement
as such useful life is specified pursuant to Federal Income tax regulations or guidelines for
depreciation thereof (including interest on the un-amortized balance as is then commercially
reasonable in the judgment of Lessor‘s accountants), with Lessee reserving the right to prepay its
obligation at any time.
Lessor’s Obligations. Subject to the provisions of Paragraphs 2.2 (Condition),
2.3 (Compliance), Sections 9 (Damage or Destruction) and 15 (Condemnation), it is intended by
the Parties hereto that Lessor have no obligation, in any manner whatsoever, to repair and maintain
the Premises, or the equipment therein, all of which obligations are intended to be that of the
Lessee. It is the intention of the Parties that the terms of this Lease govern the respective
obligations of the Parties as to maintenance and repair of the Premises, and they expressly waive
the benefit of any statute now or hereafter in effect to the extent it is inconsistent with the terms of
this Lease.
7.3
7.2
Utility Installation; Trade Fixtures; Alterations.
(a) Definitions; Consent Required. The term “Utility Installations” refers to all
floor and window coverings, air lines, power panels, electrical distribution, security and fire
protection systems, communication systems, lighting fixtures, HVAC equipment, plumbing, and
fencing in or on the Premises. The term “Trade Fixtures” shall mean Lessee’s machinery and
equipment that can be removed without doing material damage to the Premises. The term
“Alterations” shall mean any modification of the improvements, other than Utility installations or
Trade Fixtures, whether by addition or deletion. ”Lessee Owned Alteration and/or Utility
Installations” are defined as Alterations and/or Utility Installations made by Lessee that are not yet
owned by Lessor pursuant to Paragraph 7.4(a). Lessee shall not make any Alterations or Utility
Installations to the Premises without Lessor‘s prior written consent, which shall not be unreasonably
withheld or delayed. Lessee may, however, make non-structural Utility Installations to the interior
of the Premises (excluding the roof) without such consent but upon notice to Lessor, as long as
they are not visible from the outside, do not involve puncturing, relocating or removing the roof,
floor, foundation or any existing walls.
(b) Consent. Any Alterations or Utility Installations that Lessee shall desire to make
and which require the consent of the Lessor shall be presented to Lessor in written form with
detailed plans. Consent shall be deemed conditioned upon Lessee’s: (i) acquiring all applicable
governmental permits, (ii) furnishing Lessor with copies of both the permits and the plans and
specifications prior to commencement of the work, and (iii) compliance with all conditions of said
permits and other Applicable Requirements in a prompt and expeditious manner. Any Alterations
10
or Utility Installations shall be performed in a workmanlike manner with good and sufficient
materials. Lessee shall promptly upon completion furnish Lessor with as-built plans and
specifications. For work which costs an amount equal to the greater of one month’s Base Rent, or
$10,000. Lessor may condition its consent upon Lessee providing a lien and completion bond in an
amount equal to one and one-half times the estimated cost of such Alteration or Utility Installation
andlor upon Lessee’s posting an additional Security Deposit with Lessor.
(c) Indemnification. Lessee shall indemnify and hold harmless, and pay when due,
all claims for labor or materials furnished or alleged to have been furnished to or for Lessee at or
for use on the Premises, which claims are or may be secured by any mechanic’s or material men’s
lien against the Premises or any interest therein. Lessee shall give Lessor not less than ten (IO)
days’ notice prior to the commencement of any work in, on or about the Premises, and Lessor shall
have the right to post notices of non-responsibility. If Lessee shall contest the validity of any such
lien, claim or demand, then Lessee shall, at its sole expense defend and protect itself, Lessor and
the Premises against the same and shall pay and satisfy any such adverse judgment that may be
rendered thereon before the enforcement thereof. If Lessor shall require, Lessee shall furnish a
surety bond in an amount equal to one and one-half times the amount of such contested lien, claim
or demand, indemnifying Lessor against liability for the same. If Lessor elects to participate in any
such action, Lessee shall pay Lessor’s attorney’s fees and costs.
7.4 Ownership; Removal; Surrender; and Restoration.
(a) Ownership. Subject to Lessor‘s right to require removal or elect ownership as
hereinafter provided, all Alterations and Utility Installations made by Lessee shall be the property of
Lessee, but considered a part of the Premises. Lessor may, at any time elect in writing to be the
owner of all or any specified part of the Lessee Owned Alterations and Utility Installations. Unless
otherwise instructed per Paragraph 7.4( b) hereof, all Lessee Owned Alterations and Utility
Installations shall, at the expiration or termination of this Lease, become the property of Lessor and
be surrendered by Lessee with the Premises.
(b) Removal. Lessor may require the removal at any time of all or any part of
any Lessee Owned Alterations or Utility Installations made without the required consent.
(c) Surrender/Restoration. Lessee shall surrender the Premises by the Expiration
Date or any earlier termination date, with all of the improvements, parts and surfaces thereof broom
clean and free of debris, and in good operating order, condition and state of repair, ordinary wear
and tear excepted. “Ordinary wear and tear“ shall not include any damage or deterioration that
would have been prevented by good maintenance practice. Lessee shall repair any damage
occasioned by the installation, maintenance or removal of Trade Fixtures, Lessee Owned
Alterations and/or Utility Installations, furnishings, and equipment as well as the removal of any
storage tank installed by or for Lessee, and the removal, replacement, or remediation of any soil,
material or groundwater contaminated by Lessee. Trade Fixtures shall remain the property of
Lessee and shall be removed by Lessee. The failure by Lessee to timely vacate the Premises
pursuant to this Paragraph 7.4(c) without the express consent of Lessor shall constitute a holdover
under the provisions of Section 27 below.
8. Insurance; Indemnity.
8.1 Liability Insurance.
(a) Carried by Lessee. Lessee shall obtain and keep in force a Commercial
General Liability Policy of Insurance protecting Lessee and Lessor against claims for bodily injury,
personal injury and property damage based upon or arising out of the ownership, use, occupancy
or maintenance of the Premises and all areas appurtenant thereto. Such insurance shall be on an
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Initials SQ l5
occurrence basis providing single limit coverage in an amount not less than $2,000,000 per
occurrence with an “Additional Insured-Managers or Lessors or Premises Endorsement” and
contain the “Amendment of the Pollution Exclusion Endorsement” for damage caused by heat,
smoke or fumes from a hostile fire. The Policy shall not contain any intra-insured exclusions as
between insured persons or organizations, but shall include coverage for liability assumed under
this Lease as an “insured contract” for the performance of Lessee’s indemnity obligations under
this Lease. The limits of said insurance shall not, however, limit the liability of Lessee nor relieve
Lessee of any obligation hereunder. All insurance carried by Lessee shall be primary to and not
contributory with any similar insurance carried by Lessor, whose insurance shall be considered
excess insurance only. Lessor shall be named as additional insured and copies of the insurance
polices shall be sent to the City of Carlsbad, Economic Development/Real Estate Manager, 1635
Faraday Avenue, Carlsbad, CA 92008, before commencement of occupancy.
(b) Carried by Lessor. Lessor may maintain liability, in addition to, and not in lieu
of, the insurance required to be maintained by Lessee. Lessee shall not be named as an additional
insured therein.
Property Insurance - Building, Improvements and Rental Value.
(a) Building and Improvements. Lessee shall obtain and keep in force a policy or
policies in the name of Lessor, with loss payable to Lessor, insuring loss or damage to the
Premises. The amount of such insurance shall be equal to the full replacement cost of the
Premises, as the same shall exist from time to time. If the coverage is available and commercially
appropriate, such policy or policies shall insure against all risks of direct physical loss or damage
(except the perils of flood and/or earthquake), including coverage for debris removal and the
enforcement of any Applicable Requirements requiring the upgrading, demolition, reconstruction or
replacement of any portion of the Premises as the result of a covered loss. Said policy or policies
shall also contain an agreed valuation provision in lieu of any coinsurance clause, waiver of
subrogation, and inflation guard protection causing an increase in the annual property insurance
coverage amount by a factor of not less than the adjusted U.S. Department of Labor Consumer
Price Index for All Urban Consumers for the city nearest to where the Premises are located. If
such insurance coverage has a deductible clause, the deductible amount shall not exceed $1,000
per occurrence, and Lessee shall be liable for such deductible amount in the event of an insured
Loss.
(b) Rental Value. The Lessee shall obtain and keep in force a policy or policies in
the name of Lessor with loss payable to Lessor, insuring the loss of the full Rent for one (1) year.
Said insurance shall provide that in the event the Lease is terminated by reason of an insured loss,
the period of indemnity for such coverage shall be extended beyond the date of the completion of
repairs or replacement of the Premises, to provide for one full year’s loss of rent from the date of
any such loss. Said insurance shall contain an agreed valuation provision In lieu of any
coinsurance clause, and the amount of coverage shall be adjusted annually to reflect the projected
Rent otherwise payable by Lessee, for the next twelve (12) month period. Lessee shall be liable for
any deductible amount in the event of such loss.
8.2
8.3 Lessee’s Property/Business Interruption Insurance.
(a) Property Damage. Lessee shall obtain and maintain insurance coverage on all
of Lessee’s personal property, Trade Fixtures, and Lessee Owned Alterations and Utility Installations. Such insurance shall be full replacement cost coverage with a deductible of not to
exceed $25,000 per occurrence. The proceeds from any such insurance shall be used by Lessee
for the replacement of personal property, Trade Fixtures and Lessee Owned Alterations and Utility
Installations. Lessee shall provide Lessor with written evidence that such insurance is in force.
12
Initials MW
(b) Business Interruption. Lessee shall obtain and maintain loss of income and
extra expense insurance in amounts as will reimburse Lessee for direct or indirect loss of earnings
attributable to all perils commonly insured against by prudent lessees in the business of Lessee or
attributable to prevention of access to the Premises as a result of such perils.
(c) No Representation of Adequate Coverage. Lessor makes no representation
that the limits or forms of coverage of insurance specified herein are adequate to cover Lessee’s
property, business operations or obligations under this Lease.
Insurance Policies. Insurance required herein shall be by companies duly licensed
or admitted to transact business in the State of California, and maintaining during the policy term a
“General Policyholders Rating” of at least A-: V, as set forth in the most current issue of “Best’s
Insurance Guide”, or such other rating as shall be required by the Carlsbad City Council Policy
existing at the time. Lessee shall not do or permit to be done, anything that invalidates the required
insurance policies. Lessee shall, prior to the Start Date, deliver to Lessor original endorsements
and certificates evidencing the existence and amounts of the required insurance. No such policy
shall be cancelable or subject to modification except after thirty (30) days prior written notice to
Lessor, Lessee shall, at least thirty (30) days prior to the expiration of such policies, furnish Lessor
with evidence of renewals or “insurance binders” evidencing renewal thereof, or Lessor may order
such insurance and charge the cost thereof to Lessee, which amount shall be payable by Lessee to
Lessor upon demand. Such policies shall be for a term of at least one year, or the length of the
remaining term of this Lease, whichever is less. If Lessee shall fail to procure and maintain the
insurance required to be carried by it, the Lessor may, but shall not be required to, procure and
maintain the same.
Waiver of Subrogation. Without affecting any other rights or remedies, Lessee
hereby releases and relieves Lessor, and waives any right to recover damages against Lessor, for
loss of or damage to its property arising out of or incident to the perils required to be insured
against herein. The effect of such release and waiver is not limited by the amount of insurance
carried or required, or by any deductibles applicable hereto. Lessee agrees to have its respective
property damage insurance carrier waive any right to subrogation that such company may have
against Lessor.
8.6 Indemnity. Except for the sole negligence of Lessor, its agents, employees, and
contractors, or willful misconduct, Lessee shall indemnify, protect, defend and hold harmless the
Premises, Lessor its officers, officials employees and agents, from and against any and all claims,
loss of rents and/or damages, liens, judgments, penalties, attorneys’ and consultants’ fees,
expenses and/or liabilities arising out of, involving, or in connection with, the use and/or occupancy
of the Premises by Lessee. If any action or proceeding is brought against Lessor by reason of any
of the foregoing matters, Lessee shall upon notice defend the same at Lessee’s expense by
counsel reasonably satisfactory to Lessor and Lessor shall cooperate with Lessee in such defense.
Lessor need not have first paid any such claim in order to be defended or indemnified.
Exemption of Lessor from Liability. Lessor shall not be liable for injury or damage
to the person or goods, wares, merchandise or other property of Lessee, Lessee’s employees,
contractors, invitees, customers, or any other person in or about the Premises, whether such
damage or injury is caused by or results from fire, steam, electricity, gas, water or rain, or from the
breakage, leakage, obstruction or other defects of pipes, fire sprinklers, wires, appliances,
plumbing, or lighting fixtures, or from any other cause, whether the said injury or damage results
from conditions arising upon the Premises or upon other portions of the parcel of which the
Premises are a part, or from other sources or places. Lessor shall not be liable for any damages
arising from any act or neglect of any other tenant of Lessor. Notwithstanding Lessor‘s negligence
8.4
8.5
8.7
13
or breach of this Lease, Lessor shall under no circumstances be liable for injury to Lessee’s
business or for any loss of income or profit there from.
Payment For Insurance. Lessee shall pay for all insurance required under Section
8 except to the extent of the cost attributable to liability insurance carried by Lessor under
Paragraph 8.2(b) in excess of $2,000,000 per occurrence. Premiums for policy periods
commencing prior to or extending beyond the Lease term shall be prorated to correspond to the
Lease term. Payment shall be made by Lessee to Lessor within ten (IO) days following receipt of
an invoice.
9. Damage or Destruction.
9.1 Definitions.
8.8
(a) “Premises Partial Damage” shall mean damage or destruction to the
improvements on the Premises, other than Lessee Owned Alterations and Utility Installations,
which can reasonably be repaired in six (6) months or less from the date of the damage or
destruction. Lessor shall notify Lessee in writing within thirty (30) days from the date of the
damage or destruction as to whether or not the damage is Partial or Total.
(b) “Premises Total Destruction” shall mean damage or destruction to the
Premises, other than Lessee Owned Alterations and Utility Installations and Trade Fixtures, which
cannot reasonably be repaired in six (6) months or less from the date of the damage or destruction.
Lessor shall notify Lessee in writing within thirty (30) days from the date of the damage or
destruction as to whether or not the damage is Partial or Total.
(c) “Insured Loss” shall mean damage or destruction to improvements on the
Premises, other than Lessee Owned Alterations and Utility Installations and Trade Fixtures, which
was caused by an event required to be covered by the insurance described in Paragraph 8.3(a),
irrespective of any deductible amounts or coverage limits involved.
(d) “Replacement Cost” shall mean the cost to repair or rebuild the improvements owned by Lessor at the time of the occurrence to their condition existing immediately prior thereto,
including demolition, debris removal and upgrading required by the operation of Applicable
Requirements, and without deduction for depreciation.
(e) “Hazardous Substance Condition” shall mean the occurrence or discovery of
a condition involving the presence of, or a contamination by, a Hazardous Substance as defined in
Paragraph 6.2(a), in, on, or under the Premises.
Partial Damage - Insured Loss. If a Premises Partial Damage that is an insured
Loss occurs, then Lessor shall, at Lessor‘s expense, repair such damage (but not Lessee’s Trade
Fixtures or Lessee Owned Alterations and Utility Installations) as soon as reasonably possible and
this Lease shall continue in full force and effect; provided, however, that Lessee shall, at Lessor‘s
election, make the repair of any damage or destruction the total cost to repair of which is $10,000
or less, and, in such event, Lessor shall make any applicable insurance proceeds available to
Lessee on a reasonable basis for that purpose. Notwithstanding the foregoing, if the required
insurance was not in force or the insurance proceeds are not sufficient to effect such repair, the
Insuring Party shall promptly contribute the shortage in proceeds (except as to the deductible which
is Lessee’s responsibility) as and when required to complete said repairs. In the event, however,
such shortage was due to the fact that, by reason of the unique nature of the improvements, full
replacement cost insurance coverage was not commercially reasonable and available, Lessor shall
have no obligation to pay for the shortage in insurance proceeds or to fully restore the unique
aspects of the Premises unless Lessee provides Lessor with the funds to cover same, or adequate
assurance thereof, within ten (IO) days following receipt of written notice as such shortage and
9.2
14
Initials G-$&? I 8
request therefore. If Lessor receives said funds or adequate assurance thereof within said ten (IO)
day period, the party responsible for making the repairs shall complete them as soon as reasonably
possible and this Lease shall remain in full force and effect. If such funds or assurance are not
received, Lessor may nevertheless elect by written notice to Lessee within ten (IO) days thereafter
to: (i) make such restoration and repair as is commercially reasonable with Lessor paying any
shortage in proceeds, in which case this Lease shall remain in full force and effect, or have this
Lease terminate thirty (30) days thereafter. Lessee shall not be entitled to reimbursement of any
funds contributed by Lessee to repair any such damage or destruction. Premises Partial Damage
due to flood or earthquake shall be subject to Paragraph 9.3, notwithstanding that there may be
some insurance coverage, but the net proceeds of any such insurance shall be made available for
the repairs if made by either Party.
Partial Damage - Uninsured Loss. If a Premises Partial Damage that is not an
insured Loss occurs, unless caused by a negligent or willful act of Lessee (in which event Lessee
shall make the repairs at Lessee's expense), Lessor may either: (i) repair such damage as soon as
reasonably possible at Lessor's expense, in which event this Lease shall continue in full force and
effect, or (ii) terminate this Lease by giving written notice to Lessee within thirty (30) days after
receipt by Lessor of knowledge of the occurrence of such damage. Such termination shall be
effective sixty (60) days following the date of such notice. In the event Lessor elects to terminate
this Lease, Lessee shall have the right within ten (IO) days after receipt of the termination notice to
give written notice to Lessor of Lessee's commitment to pay for the repair of such damage without
reimbursement from Lessor. Lessee shall provide Lessor with said funds or satisfactory assurance
thereof within thirty (30) days after making such commitment. In such event this Lease shall
continue in full force and effect, and Lessor shall proceed to make such repairs as soon as
reasonably possible after the required funds are available. If Lessee does not make the required
commitment, this Lease shall terminate as of the date specified in the termination notice.
Total Destruction. Notwithstanding any other provision hereof, if Total Destruction
of a Premises occurs, this Lease shall terminate sixty (60) days following such Destruction. If the
damage or destruction was caused by the negligence or willful misconduct of Lessee, Lessor shall
have the right to recover Lessor's damages from Lessee, except as provided in Paragraph 8.6.
Damage Near End of Term. If at any time during the last six (6) months of this
Lease there is damage for which the cost to repair exceeds one (1) month's Base Rent, whether or
not an Insured Loss, Lessor may terminate this Lease effective sixty (60) days following the date of
occurrence of such damage by giving a written termination notice to Lessee within thirty (30) days
after the date of occurrence of such damage. Notwithstanding the foregoing, if Lessee at that time
has an exercisable option to extend this Lease or to purchase the Premises, then Lessee may
preserve this Lease by, (a) exercising such option and (b) providing Lessor with any shortage in
insurance proceeds (or adequate assurance thereof) needed to make the repairs on or before the
earlier of (i) the date which is ten days after Lessee's receipt of Lessor's written notice purporting to
terminate this Lease, or (ii) the day prior to the date upon which such option expires. If Lessee duly
exercises such option during such period and provides Lessor with funds (or adequate assurance
thereof) to cover any shortage in insurance proceeds, Lessor shall, at Lessor's commercially
reasonable expense, repair such damage as soon as reasonably possible and this Lease shall
continue in full force and effect. If Lessee fails to exercise such option and provide such funds or
assurance during such period, then this Lease shall terminate on the date specified in the
termination notice and Lessee's option shall be extinguished.
9.3
9.4
9.5
9.6 Abatement of Rent; Lessee's Remedies.
(a) Abatement. In the event of Premises Partial Damage or Premises Total
Destruction or a Hazardous Substance Condition for which Lessee is not responsible under this
15
Lease, the Rent payable by Lessee for the period required for the repair, remediation or restoration
of such damage shall be abated in proportion to the degree to which Lessee’s use of the Premises
is impaired, but not to exceed the proceeds received from the Rental Value insurance. All other
obligations of Lessee hereunder shall be performed by Lessee, and Lessor shall have no liability for
any such damage, destruction, remediation, repair or restoration except as provided herein.
(b) Remedies. If Lessor shall be obligated to repair or restore the Premises and
does not commence, in a substantial and meaningful way, such repair or restoration within sixty
(60) days after such obligation shall accrue, Lessee may, at any time prior to the commencement
of such repair or restoration, give written notice to Lessor and to any Lenders of which Lessee has
actual notice, of Lessee’s election to terminate this Lease on a date not less than sixty (60) days
following the giving of such notice. If Lessee gives such notice and such repair or restoration is not
commenced within thirty (30) days thereafter, this Lease shall terminate as of the date specified in
said notice. If the repair or restoration is commenced within said thirty (30) days, this Lease shall
continue in full force and effect. “Commence” shall mean either the unconditional authorization of
the preparation of the required plans, or the beginning of the actual work on the Premises,
whichever first occurs.
(c) Termination-Advance Payments. Upon termination of this Lease pursuant to
Paragraph 6.2(g) or Section 9, an equitable adjustment shall be made concerning advance Base
Rent and any other advance payments made by Lessee to Lessor. Lessor shall, in addition, return
to Lessee so much of Lessee’s Security Deposit as has not been, or is not then required to be,
used by Lessor.
(d) Waive Statutes. Lessor and Lessee agree that the terms of this Lease shall
govern the effect of any damage to or destruction of the Premises with respect to the termination of
this Lease and hereby waive the provisions of any present or future statute to the extent
inconsistent herewith.
IO. Quit Claim of Lessee’s Interest Upon Termination. Upon termination of this Lease for
any reason, including but not limited to termination because of default by Lessee, Lessee shall
execute, acknowledge and deliver to Lessor within thirty (30) days after receipt of written demand
therefore a good and sufficient deed whereby all right, title and interest of Lessee in the demised
premises is quitclaimed to Lessor. Should Lessee fail or refuse to deliver the required deed to
Lessor, Lessor may prepare and record a notice reciting the failure of Lessee to execute,
acknowledge and deliver such deed and said notice shall be conclusive evidence of the termination
of this Lease and of all right of Lessee or those claiming under Lessee in and to the demised
premises.
11. Real Property Taxes.
Definition of “Real Property Taxes.” As used herein, the term “Real Property
Taxes” shall include any form of assessment; real estate, general, special, ordinary or
extraordinary, or rental levy or tax (other than inheritance, personal income or estate taxes):
improvement bond; and/or license fee imposed upon or levied against any legal or equitable
interest of Lessor in the Premises, Lessor‘s right to other income therefrom, and /or Lessor’s
business of leasing, by any authority having the direct or indirect power to tax and where the funds
are generated with reference to the Building address and where the proceeds so generated are to
be applied by the city, county or other local taxing authority of the jurisdiction within which the
Premises are located. This Lease may result in a taxable possessory interest subject to the
payment of Real Property Taxes. The term “Real Property Taxes” shall also include any tax, fee,
levy, assessment or charge, or any increase therein, imposed by reason of events occurring during
the term of this Lease, including but not limited to, a change in the ownership of the Premises.
11.1
16
11.2 Taxes.
(a) Payment of Taxes. Lessor shall not be liable for any real property taxes and
Lessee shall pay the Real Property Taxes and any possessory interest tax applicable to the
Premises during the term of this Lease. Subject to Paragraph 11.2(b), all such payments shall be
made at least ten (IO) days prior to any delinquency date. Lessee shall promptly furnish Lessor
with satisfactory evidence that such taxes have been paid. If any such taxes shall cover any period
of time prior to or after the expiration or termination of this Lease, Lessee’s share of such taxes
shall be prorated to cover only that portion of the tax bill applicable to the period that this Lease is
in effect, and Lessor shall reimburse Lessee for any overpayment. Lessee shall pay before
delinquency all taxes and assessments of any kind assessed or levied upon Lessee or the Leased
Premises by reason of this Lease or of any buildings, machines, or other improvements of any
nature whatsoever erected, installed or maintained by the Lessee or by reason of the business or
other activities of Lessee upon or in connection with the Leased Premises. Lessee shall also pay
any fees imposed by law for licenses or permits for any business or activities of Lessee upon the
Leased Premises or under this Lease. If Lessee shall fail to pay any required Real Property Taxes,
Lessor shall have the right to pay the same, and Lessee shall reimburse Lessor therefore upon
demand.
(b) Advance Payment. In the event Lessee incurs a late charge on any Rent
payment, Lessor may, at Lessor’s option, estimate the current Real Property Taxes, and require
that such taxes be paid in advance to Lessor by Lessee, either: (i) in a lump sum amount equal to
the installment due, at least twenty (20) days prior to the applicable delinquency date, or (ii)
monthly in advance with the payment of the Base Rent. If Lessor elects to require payment
monthly in advance, the monthly payment shall be an amount equal to the amount of the estimated
installment of taxes divided by the number of months remaining before the month in which said
installment becomes delinquent. When the actual amount of the applicable tax bill is known, the
amount of such equal monthly advance payments shall be adjusted as required to provide the
funds needed to pay the applicable taxes. If the amount collected by Lessor is insufficient to pay
such Real Property Taxes when due, Lessee shall pay Lessor, upon demand, such additional sums
as are necessary to pay such obligations. All moneys paid to Lessor under this Section may be
intermingled with other moneys of Lessor and shall not bear interest. In the event of a Breach by
Lessee in the performance of its obligations under this Lease, then any balance of funds paid to
Lessor under the provisions of this Section may at the option of Lessor, be treated as an additional
Security Deposit.
(c) Personal Property Taxes. Lessee shall pay, prior to delinquency, all taxes
assessed against and levied upon Lessee Owned Alterations, Utility Installations, Trade Fixtures,
furnishings, equipment and all personal property of Lessee. When possible, Lessee shall cause
such property to be assessed and billed separately from the real property of Lessor. If any of
Lessee’s said personal property shall be assessed with Lessor‘s real property, Lessee shall pay
Lessor the taxes attributable to Lessee’s property within ten (IO) days after receipt of a written
statement.
12. Utilities. Lessee shall pay for all water, gas, heat, light, power, telephone, trash disposal and
other utilities and services supplied to the Premises, together with any taxes thereon. If any such
services are not separately metered to Lessee, Lessee shall pay a reasonable proportion, to be
determined by Lessor, of all charges jointly metered. Lessee shall pay before delinquency any and
all charges for utilities at or on the Leased Premises.
13. Assignment and Subletting.
13.1 Lessor’s Consent Required.
17
(a) Except for an assignment or sublease to a company with which Lessee merges,
or which Lessee controls, is controlling, or is under common control with, for which Lessor’s
consent shall not required, Lessee shall not voluntarily or by operation of law assign, transfer,
mortgage or encumber (collectively, “assign or assignment”) or sublet all or any part of Lessee’s
interest in this Lease or in the Premises without Lessor‘s prior written consent, which shall not be
unreasonably withheld or delayed.
(b) A change in the control of Lessee shall constitute an assignment requiring
ensent. The transfer, on a cumulative basis, of fifty percent (50%) or more of the voting control of
Lessee shall constitute a change in control for this purpose.
(c) The involvement of Lessee or its assets in any transaction, or series of
transactions (by way of merger, sale, acquisition, financing, transfer, leveraged buy-out or
otherwise), whether or not a formal assignment or hypothecation of this Lease or Lessee’s assets
occurs, which results or will result in a reduction of the Net Worth of Lessee by an amount greater
than twenty-five percent (25%) of such Net Worth as it was represented at the time of the execution
of this Lease or at the time of the most recent assignment to which Lessor has consented, or as it
exists immediately prior to said transaction or transactions constituting such reduction, whichever
was or is greater, shall be considered an assignment of this Lease to which Lessor may withhold its
consent, notwithstanding Paragraph 13.1 (a) above. “Net Worth of Lessee” shall mean the net
worth of Lessee (excluding any guarantors) established under generally accepted accounting
principles.
(d) An assignment or subletting without consent shall, at Lessor‘s option, be a
Default curable after notice per Paragraph 14.1(c), or a non-curable Breach without the necessity
of any notice and grace period. If Lessor elects to treat such unapproved assignment or subletting
as a non-curable Breach, Lessor may either: (i) terminate this Lease, or (ii) upon thirty (30) days
written notice, increase the monthly Base Rent to one hundred ten percent (1 loo/,) of the Base
Rent then in effect. Further, in the event of such Breach and rental adjustment, (i) the purchase
price of any option to purchase the Premises held by Lessee shall be subject to similar adjustment
to one hundred ten percent (110%) of the price previously in effect, and (ii) all fixed and non-fixed
rental adjustments scheduled during the remainder of the Lease term shall be increased to One
Hundred Ten Percent (I 10%) of the scheduled adjusted rent.
(e) Lessee’s remedy for any breach of Paragraph 13.1 by Lessor shall be limited to
compensatory damages and/or injunctive relief.
Terms and Conditions Applicable to Assignment and Subletting.
(a) Regardless of Lessor’s consent, any assignment or subletting shall not: (i) be effective without the express written assumption by such assignee or sublessee of the obligations
of Lessee under this Lease, (ii) release Lessee of any obligations hereunder, or (iii) alter the
primary liability of Lessee for the payment of Rent or for the performance of any other obligations to
be performed by Lessee.
Neither a delay in the
approval or disapproval of such assignment nor the acceptance of Rent or performance shall
constitute a waiver or estoppel of Lessor‘s right to exercise its remedies for Lessee’s Default or
Breach.
(c) Lessor’s consent to any assignment or subletting shall not constitute a consent to
any subsequent assignment or subletting.
(d) In the event of any Default or Breach by Lessee, Lessor may proceed directly
against Lessee, any Guarantors or anyone else responsible for the performance of Lessee’s
13.2
(b Pending approval or disapproval of an assignment.
18
obligations under this Lease, including any assignee or sublessee, without first exhausting Lessor’s
remedies against any other person or entity responsible therefore to Lessor, or any security held by
Lessor.
(e) Each request for consent to an assignment or subletting shall be in writing,
accompanied by information relevant to Lessor’s determination as to the financial and operational
responsibility and appropriateness of the proposed assignee or sublessee, including but not limited
to the intended use and/or required modification of the Premises, together with reasonable
attorney’s fees incurred by Lessor in the review of said application, as consideration for Lessor’s
considering and processing said request. Lessee agrees to provide Lessor with such other or
additional information and/or documentation as may be reasonably requested.
(f) Any assignee of, or sublessee under, this Lease shall, by reason of accepting
such assignment or entering into such sublease, be deemed to have assumed and agreed to
conform and comply with each and every term, covenant, condition and obligation herein to be
observed or performed by Lessee during the term of said assignment or sublease, other than such
obligations as are contrary to or inconsistent with provisions of an assignment or sublease to which
Lessor has specifically consented to in writing.
Additional Terms and Conditions Applicable to Subletting. The following terms
and conditions shall apply to any subletting by Lessee of all or any part of the Premises and shall
be deemed included in all subleases under this Lease whether or not expressly incorporated
therein:
(a) Lessee hereby assigns and transfers to Lessor all of Lessee’s interest in all Rent
payable on any sublease, and Lessor may collect such Rent and apply same toward Lessee’s
obligations under this Lease; provided, however, that until a Breach shall occur in the performance
of Lessee’s obligations, Lessee may collect said Rent. Lessor shall not, by reason of the foregoing
or any assignment of such sublease, nor by reason of the collection of Rent, be deemed liable to
the sublessee for any failure of Lessee to perform and comply with any of Lessee’s obligations to
such sublessee. Lessee hereby irrevocably authorizes and directs any such sublessee, upon
receipt of a written notice from Lessor stating that a Breach exists in the performance of Lessee’s
obligations under this Lease, to pay to Lessor all Rent due and to become due under the sublease.
Sublessee shall rely upon any such notice from Lessor and shall pay all Rents to Lessor without
any obligation or right to inquire as to whether such Breach exists, notwithstanding any claim from
Lessee to the contrary.
(b) In the event of a Breach by Lessee, Lessor may, at its option, require sublessee to attorn to Lessor, in which event Lessor shall undertake the obligations of the sublessor under
such sublease from the time of the exercise of said option to the expiration of such sublease:
provided, however, Lessor shall not be liable for any prepaid rents or security deposit paid by such
sublessee to such sublessor or for any prior Defaults or Breaches of such sublessor.
(c) Any matter requiring the consent of the sublessor under a sublease shall also
require the consent of Lessor and a written representation of the net worth of sublessee at the time
of lease execution.
(d) No sublessee shall further assign or sublet all or any part of the Premises without
Lessor‘s prior written consent.
(e) Lessor shall deliver a copy of any notice of Default or Breach by Lessee to the
sublessee, who shall have the right to cure the Default of Lessee within the grace period, if any,
specified in such notice. The sublessee shall have a right of reimbursement and offset from and
against Lessee for any such Defaults cured by the sublessee.
13.3
19
14. Default; Breach; Remedies.
Default; Breach. A “Default” is defined as a failure by the Lessee to comply with
or perform any of the terms, covenants, conditions or rules under this Lease. A “Breach” is
defined as the occurrence of one or more of the following Defaults, and the failure of Lessee to
cure such Default within any applicable grace period:
(a) The abandonment of the Premises; or the vacating of the Premises without
providing a commercially reasonable level of security, or where the coverage of the properly
insurance described in Paragraph 8.3 is jeopardized as a result thereof, or without providing
reasonable assurances to minimize potential vandalism.
(b) The failure of Lessee to make any payment of Rent or any Security Deposit
required to be made by Lessee hereunder, whether to Lessor or to a third party, when due, to
provide reasonable evidence of insurance or surety bond, or to fulfill any obligation under this
Lease which endangers or threatens life or property, where such failure continues for a period of
three (3) business days following written notice to Lessee.
(c) The failure by Lessee to provide (i) reasonable written evidence of compliance
with Applicable Requirements, (ii) the service contracts, (iii) the rescission of an unauthorized
assignment or subletting, (iv) a Tenancy Statement, (v) a requested subordination, (vi) evidence
concerning any guaranty and/or Guarantor, or (vii) any other documentation or information which
Lessor may reasonably require of Lessee under the terms of this Lease, where any such failure
continues for a period of ten (1 0) days following written notice to Lessee.
(d) A Default by Lessee as to the terms, covenants, conditions or provisions of this
Lease other than those described in subparagraphs 14.1(a), (b) or (c), above, where such Default
continues for a period of thirty (30) days after written notice; provided, however, that if the nature of
Lessee’s Default is such that more than thirty (30) days are reasonably required for its cure, then it
shall not be deemed to be a Breach if Lessee commences such cure within said thirty (30) day
period and thereafter diligently prosecutes such cure to completion.
(e) The occurrence of any of the following events: (i) the making of any general
arrangement or assignment for the benefit of creditors; (ii) becoming a “debtor” as defined in 11
U.S.C. !j 101 or any successor statute thereto (unless, in the case of a petition filed against
Lessee, the same is dismissed within sixty (60) days; (iii) the appointment of a trustee or receiver to
take possession of substantially all of Lessee’s assets located at the Premises or of Lessee’s
interest in this Lease, where possession is not restored to Lessee within thirty (30) days; or (iv) the
attachment, execution or other judicial seizure of substantially all of Lessee’s assets located at the
Premises or of Lessee’s interest in this Lease, where such seizure is not discharged within thirty
(30) days; provided, however, in the event that any provision of this subparagraph (e) is contrary to
any applicable law, such provision shall be of no force or effect, and not affect the validity of the
remaining provisions.
(f) The discovery that any financial statement of Lessee or of any Guarantor given to
Lessor was materially false.
(9) If the performance of Lessee’s obligations under this Lease is guaranteed: (i) the
death of a Guarantor, (ii) the termination of a Guarantor’s liability with respect to this Lease other
than in accordance with the terms of such guaranty, (iii) a Guarantor‘s becoming insolvent or the
subject of a bankruptcy filing, (iv) a Guarantor’s refusal to honor the guaranty, or (v) a Guarantor‘s
breach of its guaranty obligation on an anticipatory basis, and Lessee’s failure, within sixty (60)
days following written notice of any such event, to provide written alternative assurance or security,
which, when coupled with the then existing resources of Lessee, equals or exceeds the combined
14.1
20
financial resources of Lessee and the Guarantors that existed at the time of execution of this
Lease.
Remedies. If Lessee fails to perform any of its affirmative duties or obligations,
within thirty (30) days after written notice (or in case of an emergency, without notice), Lessor may,
at its option, perform such duty or obligation on Lessee’s behalf, including but not limited to the
obtaining of reasonably required bonds, insurance policies, or governmental licenses, permits or
approvals. The costs and expenses of any such performance by Lessor shall be due and payable
by Lessee upon receipt of invoice therefore. If any check given to Lessor by Lessee shall not be
honored by the bank upon which it is drawn, Lessor, at its option, may require all future payments
to be made by Lessee to be by cashier’s check. In the event of a Breach, Lessor may, with or
without further notice or demand, and without limiting Lessor in the exercise of any right or remedy
which Lessor may have by reason of such Breach:
(a) Terminate Lessee’s right to possession of the Premises by any lawful means, in
which case this Lease shall terminate and Lessee shall immediately surrender possession to
Lessor. In such event Lessor shall be entitled to recover from Lessee: (i) the unpaid Rent which
had been earned at the time of termination; (ii) the worth at the time of award of the amount by
which the unpaid rent which would have been earned after termination until the time of award
exceeds the amount of such rental loss that the Lessee proves could have been reasonably
avoided; (iii) the worth at the time of award of the amount by which the unpaid rent for the balance
of the term after the time of award exceeds the amount of such rental loss that the Lessee proves
could be reasonably avoided; and (iv) any other amount necessary to compensate Lessor for all the
detriment proximately caused by the Lessee’s failure to perform its obligations under this Lease or
which in the ordinary course of things would be likely to result there from, including but not limited
to the cost of recovering possession of the Premises, expenses of re-letting, including necessary
renovation and alteration of the Premises, reasonable attorneys’ fees, and that portion of any
leasing commission paid by Lessor in connection with this Lease applicable to the unexpired term
of this Lease. The worth at the time of award of the amount referred to in provision (iii) of the
immediately preceding sentence shall be computed by discounting such amount at the discount
rate of the Federal Reserve Bank of the District within which the Premises are located at the time of
award plus one percent (1%). Efforts by Lessor to mitigate damages caused by Lessee’s Breach
of this Lease shall not waive Lessor’s right to recover damages under Section 13. If termination of
this Lease is obtained through the provisional remedy of unlawful detainer, Lessor shall have the
right to recover in such proceeding any unpaid Rent and damages as are recoverable therein, or
Lessor may reserve the right to recover all or any part thereof in a separate suit. If a notice and
grace period required under Paragraph 14.1 was not previously given, a notice to pay rent or quit,
or to perform or quit given to Lessee under the unlawful detainer statute shall also constitute the
notice required by Paragraph 14.1. In such case, the applicable grace period required by
Paragraph 14.1 and the unlawful detainer statute shall run concurrently, and the failure of Lessee
to cure the Default within the greater of the two such grace periods shall constitute both an unlawful
detainer and a Breach of this Lease entitling Lessor to the remedies provided for in this Lease
and/or by said statute.
(b) Continue the Lease and Lessee’s right to possession and recover the Rent as it
becomes due, in which event Lessee may sublet or assign, subject only to reasonable limitations.
Acts of maintenance, efforts to relet, and/or the appointment of a receiver to protect the Lessor‘s
interests, shall not constitute a termination of the Lessee’s right to possession.
(c) Pursue any other remedy now or hereafter available under the laws or judicial
decisions of the state wherein the Premises are located. The expiration or termination of this
Lease and/or the termination of Lessee’s right to possession shall not relieve Lessee from liability
14.2
21
under any indemnity provisions of this Lease as to matters occurring or accruing during the term
hereof or by reason of Lessee’s occupancy of the Premises.
Inducement Recapture. Any agreement for free or abated rent or other charges, or
for the giving or paying by Lessor to or for Lessee of any cash or other bonus, inducement or
consideration for Lessee’s entering into this Lease, all of which concessions are hereinafter
referred to as “Inducement Provisions,” shall be deemed conditioned upon Lessee’s full and
faithful performance of all of the terms, covenants and conditions of this Lease. Upon Breach of
this Lease by Lessee, any such Inducement Provision shall automatically be deemed deleted from
this Lease and of no further force or effect, and any rent, other charge, bonus, inducement or
consideration theretofore abated, given or paid by Lessor under such an Inducement Provision
shall be immediately due and payable by Lessee to Lessor, notwithstanding any subsequent cure
of said Breach by Lessee. The acceptance by Lessor of rent or the cure of the Breach which
initiated the operation of this Section shall not be deemed a waiver by Lessor of the provisions of
this Section unless specifically so stated in writing by Lessor at the time of such acceptance.
Late Charges. Lessee hereby acknowledges that late payment by Lessee of Rent
will cause Lessor to incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to, processing and
accounting charges, and late charges that may be imposed upon Lessor by any Lender.
Accordingly, if any Rent shall not be received by Lessor within five (5) days after such amount shall
be due, then, without any requirement for notice to Lessee, Lessee shall pay to Lessor a one-time
late charge equal to ten percent (loo/,) of each such overdue amount. The parties hereby agree
that such late charge represents a fair and reasonable estimate of the costs Lessor will incur by
reason of such late payment. Acceptance of such late charge by Lessor shall in no event
constitute a waiver of Lessee’s Default or Breach with respect to such overdue amount, nor prevent
the exercise of any consecutive installments of Base Rent, then notwithstanding any provision of
this Lease to the contrary, Base Rent shall, at Lessor’s option, become due and payable quarterly
in advance.
14.5 Interest. Any monetary payment due Lessor hereunder, other than late charges,
not received by Lessor, when due as to scheduled payments (such as Base Rent) or within thirty
(30) days following the date on which it was due for non-scheduled payment, shall bear interest
from the date when due, as to scheduled payments, or the thirty-first (3Is‘) day after it was due as
to non-scheduled payments. The interest (“Interest”) charged shall be equal to the prime rate
reported in the Wall Street Journal as published closest prior to the date when due plus four
percent (4%), but shall not exceed the maximum rate allowed by law. Interest is payable in addition
to the potential late charge provided for in Paragraph 14.4.
14.3
14.4
14.6 Breach by Lessor.
(a) Notice of Breach. Lessor shall not be deemed in breach of this Lease unless
Lessor fails within a reasonable time to perform an obligation required to be performed by Lessor.
For purposes of this Section, a reasonable time shall in no event be less than thirty (30) days after
receipt by Lessor, and any Lender whose name and address shall have been furnished Lessee in
writing for such purpose, of written notice specifying wherein such obligation of Lessor has not
been performed; provided, however, that if the nature of Lessor’s obligation is such that more than
thirty (30) days are reasonably required for its performance, then Lessor shall not be in breach if
performance is commenced within such thirty (30) day period and thereafter diligently pursued to
completion.
(b) Performance by Lessee on Behalf of Lessor. In the event that Lessor does
not cure said breach within thirty (30) days after receipt of said notice, or if having commenced said
22
cure Lessee does not diligently pursue it to completion, then Lessee may elect to cure said breach
at Lessee’s expense and offset from Rent an amount equal to the greater of one month’s Base
Rent or the Security Deposit, and to pay an excess of such expense under protest, reserving
Lessee’s right to reimbursement from Lessor. Lessee shall document the cost of said cure and
supply said documentation to Lessor.
15. If the Premises or any portion thereof are taken under the power of
eminent domain or sold under the threat of the exercise of said power (collectively
“Condemnation”), this Lease shall terminate as to the part taken as of the date the condemning
authority takes title or possession, whichever first occurs. If more than ten percent (10%) of any
building portion of the premises, or more than twenty-five percent (25%) of the land area portion of
the premises not occupied by any building, is taken by Condemnation, Lessee may, at Lessee’s
option, to be exercised in writing within ten (IO) days after Lessor shall have given Lessee written
notice of such taking (or in the absence of such notice, within ten (IO) days after the condemning
authority shall have taken possession) terminate this Lease as of the date the condemning
authority takes such possession. If Lessee does not terminate this Lease in accordance with the
foregoing, this Lease shall remain in full force and effect as to the portion of the Premises
remaining, except that the Base Rent shall be reduced in proportion to the reduction in utility of the
Premises caused by such Condemnation. Condemnation awards and/or payments shall be the
property of Lessor, whether such award shall be made as compensation for diminution in value of
the leasehold, the value of the part taken, or for severance damages; provided, however, that
Lessee shall be entitled to any compensation for Lessee’s relocation expenses, loss of business
goodwill and/or Trade Fixtures, without regard to whether or not this Lease is terminated pursuant
to the provisions of this Section. All Alterations and Utility Installations made to the Premises by
Lessee, for purposes of Condemnation only, shall be considered the property of the Lessee and
Lessee shall be entitled to any and all compensation which is payable therefore, in the event that
this Lease is not terminated by reason of the Condemnation, Lessor shall repair any damage to the
Premises caused by such Condemnation.
16. Lessee and Lessor each
represent and warrant to the other that it has had no dealings with any person, firm, broker or finder
(other than Dubs and Company) in connection with this Lease, and that no one other than Dubs
and Company is entitled to any commission or finder‘s fee in connection herewith. Lessee and
Lessor do each hereby agree to indemnify, protect, defend and hold the other harmless from and
against liability for compensation or charges which may be claimed by any such unnamed broker,
finder or other similar party by reason of any dealings or actions of the indemnifying Party, including
any costs, expenses, or attorneys’ fees reasonably incurred with respect thereto.
17. Estoppel Certificates.
(a) Each Party (as “Responding Party”) shall within ten (IO) days after written
notice from the other Party (the “Requesting Party”) execute, acknowledge and deliver to the
Requesting Party a statement in writing in form similar to the then most current “Estoppel
Certificate” form published by the American Industrial Real Estate Association, plus such
additional information, confirmation and/or statements as may be reasonably requested by the
Requesting Party.
(b) If the Responding Party shall fail to execute or deliver the Estoppel Certificate
within such ten day period, the Requesting Party may execute an Estoppel Certificate stating that:
(i) the Lease is in full force and effect without modification except as may be represented by the
Requesting Party, (ii) there are no uncured defaults in the Requesting Party’s performance, and (iii)
if Lessor is the Requesting Party, not more than one month’s rent has been paid in advance.
Prospective purchasers and encumbrances may rely upon the Requesting Party’s Estoppel
23
Condemnation.
Representations and Indemnities of Broker Relationships.
Certificate, and the Responding Party shall be estopped from denying the truth of the facts
contained in said Certificate.
(c) If Lessor desires to finance, refinance, or sell the Premises, or any part thereof,
Lessee and all Guarantors shall deliver to any potential lender or purchaser designated by Lessor
such financial statements as may be reasonably required by such lender or purchaser, including
but not limited to Lessee’s financial statements for the past three (3) years. All such financial
statements shall be received by Lessor and such lender or purchaser in confidence and shall be
used only for the purposes herein set forth.
18. Definition of Lessor. The term “Lessor” as used herein shall mean the owner or owners
at the time in question of the fee title to the Premises, or, if this is a sublease, of the Lessee’s
interest in the prior lease. In the event of a transfer of Lessor’s title or interest in the Premises or
this Lease, Lessor shall deliver to the transferee or assignee (in cash or by credit) any unused
Security Deposit held by Lessor. Upon such transfer or assignment and delivery of the Security
Deposit, as aforesaid, the prior Lessor shall be relieved of all liability with respect to the obligations
and/or covenants under this Lease thereafter to be performed by the Lessor. Subject to the
foregoing, the obligations and/or covenants in this Lease to be performed by the Lessor shall be
binding only upon the Lessor as hereinabove defined. Notwithstanding the above, and subject to
the provisions of Section 21 below, the original Lessor under this Lease, and all subsequent
holders of the Lessor’s interest in this Lease shall remain liable and responsible with regard to the
potential duties and liabilities of Lessor pertaining to Hazardous Substances as outlined in Section
6 above.
19. Severability. The invalidity of any provision of this Lease, as determined by a court of
competent jurisdiction, shall in no way affect the validity of any other provision thereof.
20. Days. Unless otherwise specifically indicated to the contrary, the word “days” as used in
this Lease shall mean and refer to calendar days.
21. Limitation on Liability. Subject to the provisions of Section 18 above, the obligations of
Lessor under this Lease shall not constitute personal obligations of Lessor, its elected officials,
officers or employees, and Lessee shall look to the Premises, and to no other assets of Lessor, for
the satisfaction of any liability of Lessor with respect to this Lease, and shall be required to comply
with the Government Claims Act, California Government Code section 905 et seq. prior to the
commencement of an legal action under this lease.
22. Time of Essence. Time is of the essence with respect to the performance of all obligations
to be performed or observed by the Parties under this Lease.
23. No Prior or Other Agreements; Broker Disclaimer. This Lease contains all agreements
between the Parties with respect to any matter mentioned herein, and no other prior or
contemporaneous agreement or understanding shall be effective.
24. Notices.
Notice Requirements. All notices required or permitted by this Lease shall be in
writing and may be delivered in person (by hand or by courier) or may be sent by regular, certified
or registered mail or U.S. Postal Service Express Mail, with postage prepaid, or by facsimile
transmission, and shall be deemed sufficiently given if served in a manner specified in this Section
24. The addresses noted adjacent to a Party’s signature on this Lease shall be that Party’s address for delivery or mailing of notices. Either Party may by written notice to the other specify a
different address for notice, except that upon Lessee’s taking possession of the Premises, the
Premises shall constitute Lessee’s address for notice. A copy of all notices to Lessor shall be
24.1
24
concurrently transmitted to such party or parties at such addresses as Lessor may from time to
time hereafter designate in writing.
Date of Notice. Any notice sent by registered or certified mail, return receipt
requested, shall be deemed given on the date of delivery shown on the receipt card. If sent by
regular mail the notice shall be deemed given three (3) business days after the same is addressed
as required herein and mailed with postage prepaid. Notices delivered by United States Express
Mail or overnight courier that guarantee next day delivery shall be deemed given twenty-four (24)
hours after delivery of the same to the Postal Service or courier. Notices transmitted by facsimile
transmission or similar means shall be deemed delivered upon telephone confirmation of receipt,
provided a copy is also delivered via delivery or mail. If notice is received on a Saturday, Sunday or
legal holiday, it shall be deemed received on the next business day.
25. Waivers. No waiver by Lessor of the Default or Breach of any term, covenant or condition
hereof by Lessee, shall be deemed a waiver of any other term, covenant or condition hereof, or of
any subsequent Default or Breach by Lessee of the same or of any other term, covenant or
condition thereof, Lessor's consent to, or approval of, any act shall not be deemed to render
unnecessary the obtaining of Lessor's consent to, or approval of, any subsequent or similar act by
Lessee, or be construed as the basis of an Estoppel to enforce the provision or provisions of this
Lease requiring such consent. The acceptance of Rent by Lessor shall not be a waiver of any
Default or Breach by Lessee. Any payment by Lessee may be accepted by Lessor on account of
moneys or damages due Lessor, notwithstanding any qualifying statements or conditions made by
Lessee in connection therewith, which such statements and/or conditions shall be of no force or
effect whatsoever unless specifically agreed to in writing by Lessor at or before the time of deposit
of such payment.
26. Recording. Either Lessor or Lessee shall, upon request of the other, execute,
acknowledge and deliver to the other a short form memorandum of this Lease for recording
purposes. The Party requesting recordation shall be responsible for payment of any fees
applicable thereto.
27. No Right To Holdover. Lessee has no right to retain possession of the Premises or any
part thereof beyond the expiration or termination of this Lease. In the event that Lessee holds over,
then the Holdover Rent shall be increased to one hundred fifty percent (I 50%) of the Base Rent
applicable during the month immediately preceding the expiration or termination. Nothing
contained herein shall be construed as consent by Lessor to any holding over by Lessee.
28. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but
shall, wherever possible, be cumulative with all other remedies at law or in equity.
29. Covenants and Conditions; Construction of Agreement. All provisions of this Lease to
be observed or performed by Lessee are both covenants and conditions. In construing this Lease,
all headings and titles are for the convenience of the parties only and shall not be considered a part
of this Lease. Whenever required by the context, the singular shall include the plural and vice
versa. This Lease shall not be construed as if prepared by one of the parties, but rather according
to its fair meaning as a whole, as if both parties had prepared it.
30. Binding Effect; Choice of Law. This Lease shall be binding upon the parties, their
personal representatives, successors and assigns and be governed by the laws of California. Any
litigation between the Parties hereto concerning this Lease shall be initiated in North San Diego
County.
24.2
31. Subordination; Attornment; Non-Disturbance.
25
31.1 Subordination. This Lease and any Option granted hereby shall be subject and
subordinate to any ground lease, mortgage, deed of trust, or other hypothecation or security device
(collectively, “Security Device”), now or hereafter placed upon the Premises, to any and all
advances made on the security thereof, and to all renewals, modifications, and extensions thereof.
Lessee agrees that the holders of any such Security Devices (in this Lease together referred to as
“Lessor‘s Lender”) shall have no liability or obligation to perform any of the obligations of Lessor
under this Lease. Any Lender may elect to have this Lease and/or any Option granted hereby
superior to the lien of its Security Device by giving written notice thereof to Lessee, whereupon this
Lease and such Options shall be deemed prior to such Security Device, notwithstanding the
relative dates of the documentations or recordation thereof.
Attornment. Subject to the non-disturbance provisions of Paragraph 31.3, Lessee
agrees to attorn to a Lender or any other party who acquires ownership of the Premises by reason
of a foreclosure of a Security Device, and that in the event of such foreclosure, such new owner
shall not: (i) be liable for any act or omission of any prior Lessor or with respect to events occurring
prior to acquisition of ownership; (ii) be subject to any offsets or defenses which Lessee might have
against any prior Lessor, or (iii) be bound by prepayment of more than one (1) month’s rent.
Non-Disturbance. With respect to Security Devices entered into by Lessor after the
execution of this Lease, Lessee’s subordination of this Lease shall be subject to receiving a
commercially reasonable non-disturbance agreement (a “Non-Disturbance Agreement”) from the
Lender which Non-Disturbance Agreement provides that Lessee’s possession of the Premises, and
this Lease, including any options to extend the term hereof, will not be disturbed so long as Lessee
is not in Breach hereof and attorns to the record owner of the Premises. Further, within sixty (60)
days after the execution of this Lease, Lessor shall use its commercially reasonable efforts to
obtain a Non-Disturbance Agreement from the holder of any pre-existing Security Device which is
secured by the Premises. In the event that Lessor is unable to provide the Non-Disturbance
Agreement within said sixty (60) days, then Lessee may, at Lessee’s option, directly contact
Lessor‘s lender and attempt to negotiate for the execution and delivery of a Non-Disturbance
Agreement.
31.4 Self-Executing. The agreements contained in this Section 31 shall be effective
without the execution of any further documents; provided, however, that, upon written request from
Lessor or a Lender in connection with a sale, financing or refinancing of the Premises, Lessee and
Lessor shall execute such further writings as may be reasonably required to separately document
any subordination, attornment and/or Non-Disturbance Agreement provided for herein.
32. Lessor’s Access; Showing Premises; Repairs. Lessor and Lessor’s agents shall have
the right to enter the Premises at any time, in the case of an emergency, and otherwise at
reasonable times and upon reasonable notice, for the purpose of showing the same to prospective
purchasers, lenders, or lessees, and making such alterations, repairs, improvements or additions to
the Premises as Lessor may deem necessary. All such activities shall be without abatement of rent
or liability to Lessee. Lessor may at any time place on the Premises “For Sale” signs and Lessor
may during the last six (6) months of the term hereof place on the Premises “For Lease” signs.
Lessee may at any time place on or about the Premises “For Sublease” sign that is in compliance
with the provisions of the Carlsbad Municipal Code Title 21.41.
33. Auctions. Lessee shall not conduct, nor permit to be conducted, any auction upon the
Premises without Lessor’s prior written consent. Lessor shall not be obligated to exercise any
standard of reasonableness in determining whether to permit an auction.
31.2
31.3
26
34. Signs. Except for Carlsbad Municipal Code compliant “For Sublease” signs, Lessee shall
not place any sign upon the Premises without Lessor‘s prior written consent. All signs must comply
with all Applicable Requirements.
35. Termination; Merger. Unless specifically stated otherwise in writing by Lessor, the
voluntary or other surrender of this Lease by Lessee, the mutual termination, or cancellation hereof,
or a termination hereof by Lessor for Breach by Lessee, shall automatically terminate any sublease
or lesser estate in the Premises; provided, however, that Lessor may elect to continue any one or
all existing subtenancies. Lessor‘s failure within ten (IO) days following any such event to elect to
the contrary by written notice to the holder of any such lesser interest, shall constitute Lessor‘s
election to have such event constitute the termination of such interest.
36. Consents. Except as otherwise provided herein, wherever in this Lease the consent of a
Party is required to an act by or for the other Party, such consent shall not be unreasonably
withheld or delayed. Lessor’s actual reasonable costs and expenses (including but not limited to
architects’, attorneys’, engineers’ and other consultants’ fees) incurred in the consideration of, or
response to, a request by Lessee for any Lessor consent, including but not limited to consents to
an assignment, a subletting or the presence or use of a Hazardous Substance, shall be paid by
Lessee upon receipt of an invoice and supporting documentation therefore. Lessor‘s consent to
any act, assignment or subletting shall not constitute an acknowledgement that no Default or
Breach by Lessee of this Lease exists, nor shall such consent be deemed a waiver of any then
existing Default or Breach, except as may be otherwise specifically stated in writing by Lessor at
the time of such consent. The failure to specify herein any particular condition to Lessor’s consent
shall not preclude the imposition by Lessor at the time of such consent of such further or other
conditions as are then reasonable with reference to the particular matter for which consent is being
given. In the event that either Party disagrees with any determination made by the other hereunder
and reasonably requests the reasons for such determination, the determining party shall furnish its
reasons in writing and in reasonable detail within ten (IO) business days following such request.
37. Guarantor.
37.1 Execution. The Guarantors, if any, shall each execute a guaranty in the form most
recently published by the American Industrial Real Estate Association, and each such Guarantor
shall have the same obligations as Lessee under this Lease.
Default. It shall constitute a Default of the Lessee if any Guarantor fails or refuses,
upon request to provide: (a) evidence of the execution of the guaranty, including the authority of
the party signing on Guarantor‘s behalf to obligate Guarantor, and in the case of a corporate
Guarantor, a certified copy of a resolution of its board of directors authorizing the making of such
guaranty, (b) current financial statements, (c) a Tenancy Statement, or (d) written confirmation that
the guaranty is still in effect.
38. Quiet Possession. Subject to payment by Lessee of the Rent and performance of all of
the covenants, conditions, and provisions on Lessee’s part to be observed and performed under
this Lease, Lessee shall have quiet possession and quiet enjoyment of the Premises during the
term hereof.
39. Option to Extend.
Lessee and Lessor, if mutually agreed, may extend the original term of this lease for two (2)
additional periods of five (5) years, subject to all provisions of this lease, including the provisions for
adjustments to and variations in rent. Failure to exercise the option for any period shall nullify the
option for all subsequent periods. Lessee shall be required to give Lessor written notice of its intent
to extend the lease at not less than 180 days prior to the Expiration Date of the Term. After the
exercise of any option to extend, all references in this lease shall be considered to mean the term
37.2
27
as extended, and all references to termination or to the end of the term shall be considered to
mean the termination or end of the term as extended. Lessee's right to the option is subject to:
1. The following conditions precedent:
a. The lease shall be in effect at the time notice of exercise is given and on the
last day of the term.
b. Lessee shall not be in default under any provision of this lease at the time
notice of exercise is given or on the last day of the term or at anytime during
the term.
Compliance with the following procedure for exercising the option:
a. At least 180 days before the last day of the term, Lessee shall give Lessor
written notice of irrevocably exercising the option.
b. At least 90 days before the last day of the term, after receiving a notice from
Lessee to exercise the option, Lessor shall approve or disapprove exercising
of the option in writing to Lessee.
c. In lieu of executing a new lease, each party shall, at the request of the other,
execute a memorandum, in recordable form, acknowledging the fact that the
option has been exercised and otherwise complying with the requirements
law for an effective memorandum or abstract of lease.
Calculation of Rent at Beginning of Extension Period. The initial monthly Base
Rent for the Extension Term shall be an amount which has been mutually agreed upon; however
the Base Monthly Rent shall not be less than the Rent paid during the last month of the prior Lease
Term. The Base Rent shall be increased annually in accordance with Paragraph 4.3 (Rental
Adjustment).
39.2
2.
39.1
Effect of Default on Options.
(a) Lessee shall have no right to exercise an Option: (i) during the period
commencing with the giving of any notice of Default and continuing until said Default is cured, (ii)
during the period of time any Rent is unpaid (without regard to whether notice thereof is given
Lessee), (iii) during the time Lessee is in Breach of this Lease, or (iv) in the event that Lessee has
been given three (3) or more notices of separate Default, whether or not the Defaults are cured,
during the twelve (12) month period immediately preceding the exercise of the Option to Extend.
(b) The period of time within which the Option to Extend may be exercised shall not
be extended or enlarged by reason of Lessee's inability to exercise an Option to Extend because of
the provisions of Section 39.
(c) An Option to Extend shall terminate and be of no further force or effect,
notwithstanding Lessee's due and timely exercise of the option, if, after such exercise and prior to
the commencement of the extended term, (i) Lessee fails to pay Rent for a period of thirty (30)
days after such Rent becomes due (without any necessity or Lessor to give notice thereof), (ii)
Lessor gives to Lessee three (3) or more notices of separate Default during any twelve (12) month
period, whether or not the Defaults are cured, or (iii) if Lessee commits a Breach of this Lease.
Broker Fees on Option to Extend. In the event Lessee exercises its option to
extend the initial term of this lease for an additional five (5) year term, and Dubs and Company is
the authorized Broker representing Lessee with regard to exercise of the option to extend, and is in
fact active in negotiations with respect to such Option, Lessor will pay a commission to Dubs and
Company of two percent (2%) of the Base Rent during the first five (5) year term of the extension
period. Payment of commission will be paid to Dubs and Company on an annual basis at the end
39.3
28
of each year and will be calculated based on the Base Rent collected during the previous twelve
(12) month lease period. Lessor shall have no obligation nor be responsible for payment of any
brokerage fees, whatsoever ,beyond the first extension period.
40. Lessee hereby acknowledges that the rental payable to Lessor
hereunder does not include the cost of guard service or other security measures, and that Lessor
shall have no obligation whatsoever to provide same. Lessee assumes all responsibility for the
protection of the Premises, Lessee, its agents and invitees and their property from the acts of third
parties.
41. Reservations. Lessor reserves to itself the right, from time to time, to grant, without the
consent or joinder of Lessee, such easements, rights and dedications that Lessor deems
necessary, and to cause the recordation of parcel maps and restrictions, so long as such
easements, rights, dedications, maps and restrictions do not unreasonably interfere with the use of
the Premises by Lessee. Lessee agrees to sign any documents reasonably requested by Lessor to
effectuate any such easement rights, dedication, map or restrictions.
42. Performance Under Protest. If at any time a dispute shall arise as to any amount or sum
of money to be paid by one Party to the other under the provisions hereof, the Party against whom
the obligation to pay the money is asserted shall have the right to make payment “under protest”
and such payment shall not be regarded as a voluntary payment and there shall survive the right on
the part of said Party to institute suit for recovery of such sum. If it shall be adjudged that there
was no legal obligation on the part of said Party to pay such sum or any part thereof, said Party
shall be entitled to recover such sum or so much thereof as it was not legally required to pay.
43. Authority. If either Party hereto is a corporation, trust, limited liability company,
partnership, or similar entity, each individual executing this Lease on behalf of such entity
represents and warrants that he or she is duly authorized to execute and deliver this Lease on its
behalf. Each party shall upon request, deliver to the other party satisfactory evidence of such
authority.
44. Conflict. Any conflict between the printed provisions of this Lease and the typewritten or
handwritten provisions shall be controlled by the typewritten or handwritten provisions.
45. Offer. Preparation of this Lease by either Party or their agent and submission of same to
the other Party shall not be deemed an offer to lease to the other Party. This Lease is not intended
to be binding until executed and delivered by all Parties hereto.
46. Amendments. This Lease may be modified only in writing, signed by the Parties in interest
at the time of the modification. As long as they do not materially change Lessee’s obligations
hereunder, Lessee agrees to make such reasonable nonmonetary modifications to this Lease as
may be reasonably required by a Lender in connection with the obtaining of normal financing or
refinancing of the Premises.
47. Multiple Parties. If more than one person or entity is named herein as either Lessor or
Lessee, such multiple Parties shall have joint and several responsibility to comply with the terms of
this Lease.
48. Tenant Improvements.
Lessor Approval. Lessor shall have the right to review and approve the plans and
specifications for tenant improvements prior to the commencement of any construction at the
Premises. Lessor’s approval pursuant to this Section shall not be unreasonable withheld.
Security Measures.
48.1
29
48.2 Construction. All tenant improvements shall be constructed by a duly licensed
contractor or contractors and shall be completed in an expeditious and workmanlike manner, with
good and sufficient materials.
49. Special Equipment and Appliances. Any computer, video, security, appliance or any
other special equipment that is not considered a structural utility installation or improvement owned
by Lessor, that remains at the premises after occupancy by Lessee, are intended for the exclusive
use of Lessee. However, Lessor shall not be responsible for removal of any such computer, video,
security, appliance or other special equipment from the premises, nor shall Lessor shall have any current or future obligation for the repair, replacement or maintenance of such appliance or
equipment. All removals, repairs and/or replacement and maintenance of special equipment or
appliances will be the sole responsibility of Lessee.
50. Right of First Negotiation. If during the term of the lease, Lessor intends to sell the
Premises, Lessee shall be notified in writing of Lessor's desire to sell. Lessee and Lessor will have
thirty (30) days to negotiate, on an exclusive basis, a mutually acceptable purchase price and terms
for the Premises. If the parties fail, for any reason to enter into a mutually acceptable purchase
agreement within thirty (30) days, then Lessor shall be free to enter into negotiations with a third
Party *
51. Broker Fees on Sale of Premises. If during the term of the Lease Lessor desires to sell
the Premises, and Lessor and Lessee negotiate a mutually acceptable purchase price and terms,
and Dubs and Company is the authorized broker for Lessee, then Lessor will pay a commission to
Dubs and Company equal to two percent (2%) of the purchase price. No commission will be paid
to Dubs and Company, if the Premises are sold to a third party.
52. Entire Agreement. This Agreement, together with any other written document referred to
or contemplated by it, and its provisions, embody the entire Agreement and understanding between
the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement
supersede the purchase order. Neither this Agreement nor any of its provisions may be amended,
modified, waived or discharged except in a writing signed by both parties.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH
TERM AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE
SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY
AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE
COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR
AND LESSEE WITH RESPECT TO THE PREMISES.
The individuals executing this Agreement and the instruments referenced in it on behalf of Lessee
each represent and warrant that they have the legal power, right and actual authority to bind
Lessee to the terms and conditions of this Agreement.
30
nus Multimedia Communications Inc. this a 5 day of
,2004.
The parties hereto have executed this Lease at the place and on the dates specified above their
respective signatures.
Executed at: \O\a@-S4& &&&<A Executed at: Carlsbad, California
on: 35 Ocd- on: November 12, 2004
By LESSEE: By LESSOR:
Title: Citv Manaser, Citv of Carlsbad
Address: 1200 Carlsbad Villaue Drive
Carlsbad, CA 92008 1 Name Printed: s?L\cL - VDn A#bb Telephone: /760 1434-2821
Facsimile: J760) 720-9461
Facsimile: 44s / 4 $?q
Federal ID No. 167 195 /
(Proper notarial acknowledgment of execution by Lessee must be attached. If a corporation,
document must be signed by one from each column:
Column A Column B
Chairman, president or vice-president Secretary, assistant secretary, CFO or
Assistant treasurer
31
Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary
under corporate seal empowering the officer(s) signing to bind the corporation.)
CITY OF CARLSBAD, a municipal corporation of the State of California
APPROVED AS TO FORM:
RONALD R. BALL, City Attorney
BY:
32
STATE OF CALIFORNIA)
COUNTY OF SAN DIEGO)
Notary Public - CaHomia
hn Diego County
Cornm. Exdres Mar 17.2006
On ok+o\ou/ 34 3~~q before me, LE% mw+ Wo :No.taril h '0 bL 3 personally appeared Krnnt+L\ h Sk r\WbCJd' , pcnnnllv- (or proved
to me on the basis of satisfactory evidence) to be the person@) whose name@) is/= subscribed to
the within instrument and acknowledged to me that he/dx&bey executed the same in his/he&kir
authorized capacity(ies), and that by hisltxdtheir signature@) on the instrument the person(+), or
the entity upon behalf of which the person@) acted, executed the instrument.
WITNESS my hand and official seal.
Signature &e %&e
3
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Carlsbad City Clerks Ofice
1200 Carlsbad Village Drive
Carlsbad, CA 92008
MEMORANDUM OF LEASE
This Memorandum of Lease, hereinafter "Memorandum," dated November 2,2004, between CITY
OF CARLSBAD, Lessor, and Cygnus Multimedia Communications Inc., Lessee, concerning the
Leased Premises described in Exhibits "A" and "B," attached hereto and by this reference made a
part hereof.
For good and adequate consideration, Lessor leases the Leased Premises to Lessee, and Lessee
hires them from Lessor, for the term and on the provisions contained in the Lease dated November
2, 2004, including without limitation provisions prohibiting assignment, subleasing, and
encumbering said leasehold without the express written consent of Lessor in each instance, all as more specifically set forth in said Lease, which said Lease is incorporated in this Memorandum by
this reference.
The term of the Lease is four (4) years, beginning December 1, 2004, and ending November 30,
2008, with two (2) five (5) year options to extend to November 30,2013 and November 30,2018.
This Memorandum is not a complete summary of the Lease. Provisions in this Memorandum shall
not be used in interpreting the Lease provisions. In the event of conflict between this Memorandum
and other parts of the Lease, the other parts shall control. Execution hereof constitutes execution
of the Lease itself.
Dated: 2% O& ,2004
City Attorney
CITY OF CARLSBAD. CALIFORNIA
B
Cygnus Multimedia Communications Incorporated
Four (4) Year Lease Term
Commencing December 1,2004
Terminating November 30,2008
.. ........... ..... .. ...... ..... .. .... ..... .. . ... , . .......... ....... . ..... , ......... .............. .. ......... ...,. ,................. ........................... , . ..... .......
30
, . , , .. . . . . . . ... ..... . . . . . . . . . ..... . , , .. ...... . ... . ....... , , . . .. .... . .. . . . . , . . . . ,. .. . . . . . . . ., . , , . .. . . . , .. . . . .. ... ... . . , . , , . . . . . .... ... .. . . . . . . . .. . . , , . , , . , . . . . , .... . . . . . .. ....... . . , . . . . .. ,. . . .. , , . . .. ... ... . . . . . . . . .. . . . . . . , STATE OF CALIFORNIA)
COUNTY OF SAN DIEGO)
On o~+&cL/ 39 ,ad before me,
Abc; maV\b2Y\a 'EsOhVQ P ub\iL a personally appeared hulnc+h L Sb nwd' ,-e (or proved to me on the basis of satisfactory evidence) to be the person(+ whose name@) is/' subscribed to
the within instrument and acknowledged to me that he/sheCtkey executed the same in his/mir
authorized capacity(&), and that by his/mir signature(*) on the instrument the person@), or
the entity upon behalf of which the person(.s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature
2
OFFICIAL CALIFORNIA NOTARIAL CERTIFICATE
Countyof %LDk$q0 Title of Document CAJW&J' Le& ~t,s w State of California
personally
&roved
to me on the basis of satisfactory evidence to be the personm whose nmeM is/qxwsubscribed to the within
instrument and acknowledged to me thatMshe/'y executed the same inj&s/her/hir authorized capacitym
and that by Wer/Mr signature@ on the
personwacted, executed the instrument.
JUDITH ANN WHITE
Commission t 1323746
Sa17 Diego County
Notary Public - Celitomia sj - < z i
instrument the person@, or the entity upon behalf of which the
WITNESS my hand and seal.
SIGNATURE <J&L& OF NOTARY
EXHIBIT A
mmmTT ADJUSTMENT PLAT-CITY W CARLSBAD
A DDliCan t: PreDared BK ADDfO#?d RU;
1635 Faraday A venue
Carkbad CA 92008 FuL Explrsd 06/30/2002 Oats
Bob Ww Deputy City Enghea
City of Carkbad lrlumm
Emrm-m* 5- RE 53698 nn acmmu~ QUEIL CI -
LlKzmD UWL-
INDICATES OLD PROPERTY LINE
INDICA ES NEW PROPERV UNE
- - - LOTS 4 AND 5 OF CARLSBAD TRACT NO. BO-= PALOMAR AIRPORT BUSINESS PARK IN THE CIN W CARLSBAD,
CALIFORNIA, ACCORDING TO MAP WEREOF NO. 10061, RE. IN THE
COUNN OF SAN DIEGO, STAE OF INDICA ES RECORDED EASEMENTS 0
CmwW omcE OF mE COUNTY RECORDER OF SAN DIEGO COUNN APRIL 15, 1981. LOT 4: JAMES 7: AND DOROTHY L HAWIHORNE
TRUSTEES OF THE HAWWORNE FAMILY TRUST
APN 213-061-20
NO. ADJ-00-009
.A. P. N. :
2 13- 061- 19
2 13- 061 -20
LOT 5: CITY OF CARLSBAD
APN 213-061-19
MUNICIPAL CORPORA~ON
Aumims
LOT 4: 2065 CAMINO MA ROBLE
LOT 5:
CARLSBAD, CAUFmNIA 92009- 1576
2075 LAS PAUIAS DRIE
CARLSBAD, CAUFORNIA 92009- 7576
JMSBoIF-
THE BASTS W BEARINGS FM THIS PLAT IS TH€ EASTERLY LINE OF LOT 4 OF CARLSBAD TRACT 80-33 ACCORDING lV MA? NO. looSl, 1.E N 3672'50" E
szmmmw-:
FRASER ENGNEERINNC, INC. 2191 EL CAMINO REAL
OCEANSIDE, CA 92054
PHONE (760) 722-3495
HtmmrAW NOT To SCALE
-~ ~~
PnaP W. W8SW" LS 5286
WIRES 12/31/03
Ill\ I
USWENT PLAT-WTY ff CARLSBAD NO. ADJ-00-009 EEmTlr
ADDlkOn t: l?cwmu& I roved t3~ A.P.EJ.:
213-061- 19
213- 06 1-20 E~WAWEBIHU. --= Bob WkIk huty City Engh I E~pimd ~/3O/ZWZ Date
m98
p”arsmp
21*tL-uLoewetCC- I City of Carisbod
1635 Faraday Avenue
Carlsbad CA 92008
. ..
ADD~~CO~ t;
1635 Faraday Avenue
Carlsbad CA 92008
City of Cadsbad
LOT 4 APN 213-061-20
ADeWSTMENT PLAT-CITY CkF CARLSBAD NO. ADJ-00-009
&Dared RL: fbwaSL& j4.P.N.: Fwm 213-061-19
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TI rm Mn2-YO0 Expiad 06/30/&22 Date
LOT 5 APN 213-061-19
EASEMENT To SDGdd
REC 2-16-20 BK. 798 PG. 243 OF DaDs
fo~ PUEUC ununa INGRESS AND EGRESS
200' EASEMENT TO SOW REC. 4-15-54 BK. 5205 PG. 416 OF O.R. TOGETHER WTH RIGHT TO TRlM OR TOP ANY 'IREES WHIN 20' STWP EACH SIDE PRESENT R.O.W. UMITS
EASEMENT To BUPlA SANlTAllON MSTRICT REC. 01-05-65 AS FILE NO. 1288 AND 09-21-65 AS FIE NO.. 171355 0.R FOR SEWR PlPE UNES AND/OR MAINS, MANHOLES SOMR UTERAL PlPE UNES AND INCIDENTAL PURPOSES
EASEUENT To SDGdd REC. 02-11-62 AS FILE N0.82-0383l2 O.R. FOR PUBLIC UTIuM$ INGRESS AND EGRESS, AND lNClMNTAL PURPOSES
~~mawOF~ REC Ol--87 AS FILE NO. 87-Wl53 O.R. FOR PARKlNG PURPOSES AND INCIDENTAL PURPOSES
EASEMENT TO aw OF CARLSBAD EC.0&03-89 AS INSIRUMENT NO. 89-412383 O.R. FOR WATER AND FIRE HYDRANT EASEMENT AND INCIDENTAL PURPOSES
0
0
0
EASEMENT To SOGdcE FOR WBUC ununEs. INGRESS AND EGRESS REC. 2-16-20 BK. 798 PG 243 OF DEEDS
200' EASEMENT To SOOM REC. 4-15-54 BK. 5205 PO, 416 OF O.R. foGEMER WlH RJWT TO 'TWM OR TOP ANY TFEES WHIN 20' SlRlP EACH SIDE PRESP(T R0.W. UMlTS
USEMEN1 To BUENA SANITATlffl OlsTwCT REC. 01-05-85 AS FILE NO. 1288 AND 09-21-85 AS FIE NO. 171355 O.R. FOR SEUlER PIPE UNES AND/OR MAINS, MANHOLES SElMR LATERAL PIPE UNES AND INCIDENTAL PURPOSES
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1/11 la' I \ \-\
APN 2l3-06-20 I\ i I
Ul\l2O\JS\XREFS\PL-DVG 9-5-00 933360 an EST
EXHIBIT B
EXHIBIT C