Exhibit 10.10
LEASE AGREEMENT
between
PARK PLAZA ASSOCIATES, LLC
as Landlord
and
IRONPLANET.COM
as Tenant
TABLE OF CONTENTS
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SECTION |
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PAGE |
1. |
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PREMISES |
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4 |
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2. |
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TERM; POSSESSION |
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4 |
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3. |
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RENT |
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5 |
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4. |
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SECURITY DEPOSIT |
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10 |
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5. |
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USE AND COMPLIANCE WITH LAWS |
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10 |
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6. |
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TENANT IMPROVEMENTS & ALTERATIONS |
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13 |
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7. |
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MAINTENANCE AND REPAIRS |
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14 |
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8. |
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TENANTS TAXES |
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15 |
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9. |
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UTILITIES AND SERVICES |
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16 |
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10. |
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EXCULPATION AND INDEMNIFICATION |
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18 |
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11. |
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INSURANCE |
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19 |
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12. |
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DAMAGE OR DESTRUCTION |
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21 |
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13. |
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CONDEMNATION |
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22 |
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14. |
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ASSIGNMENT AND SUBLETTING |
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24 |
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15. |
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DEFAULT AND REMEDIES |
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27 |
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16. |
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LATE CHARGE AND INTEREST |
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29 |
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17. |
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WAIVER |
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29 |
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18. |
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ENTRY, INSPECTION AND CLOSURE |
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30 |
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19. |
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SURRENDER AND HOLDING OVER |
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30 |
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20. |
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ENCUMBRANCES |
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31 |
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21. |
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ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS |
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32 |
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22. |
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NOTICES |
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33 |
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23. |
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ATTORNEYS FEES |
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33 |
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24. |
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QUIET POSSESSION |
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33 |
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25. |
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SECURITY MEASURES |
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34 |
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26. |
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FORCE MAJEURE |
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34 |
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27. |
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RULES AND REGULATIONS |
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34 |
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28. |
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LANDLORDS LIABILITY |
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34 |
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29. |
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CONSENTS AND APPROVALS |
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35 |
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30. |
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WAIVER OF RIGHT TO JURY TRIAL |
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35 |
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31. |
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BROKERS |
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35 |
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32. |
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RELOCATION |
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35 |
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33. |
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ENTIRE AGREEMENT |
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36 |
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34. |
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MISCELLANEOUS |
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36 |
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35. |
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AUTHORITY |
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36 |
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INDEX OF DEFINED TERMS
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Additional Rent |
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8 |
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Alterations |
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13 |
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Award |
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22 |
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Base Operating Costs |
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6 |
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Base Taxes |
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6 |
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Broker |
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35 |
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Building |
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4 |
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Building Rules |
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34 |
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Building Systems |
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11 |
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Business Days |
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16 |
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Business Hours |
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16 |
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Claims |
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18 |
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Commencement Date |
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4 |
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Condemnation |
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22 |
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Condemnor |
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22 |
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Construction Rider |
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4 |
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Controls |
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15 |
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Date of Condemnation |
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22 |
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Encumbrance |
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31 |
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Environmental Losses |
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11 |
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Environmental Requirements |
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11 |
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Event of Default |
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27 |
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Expiration Date |
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4 |
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Fees |
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33 |
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Handled by Tenant |
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11 |
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Handling by Tenant |
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11 |
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Hazardous Materials |
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11 |
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HVAC |
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11 |
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Interest Rate |
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29 |
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Landlord |
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4 |
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Laws |
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6 |
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Mortgagee |
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32 |
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Operating Costs |
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6 |
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Parking Facility |
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4 |
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Permitted Hazardous Materials |
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12 |
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Permitted Transfer |
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26 |
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Permitted Transferee |
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26 |
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Premises |
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4 |
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Project |
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4 |
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Property |
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4 |
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Property Manager |
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19 |
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Proposed Transferee |
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24 |
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Rent |
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10 |
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Rental Tax |
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16 |
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Representatives |
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11 |
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Scheduled Suite 101 Space Rent Commencement Date |
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5 |
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Scheduled Suite 102 Space Rent Commencement Date |
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4 |
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Scheduled Suite 202 Space Rent Commencement Date |
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5 |
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Security Deposit |
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10 |
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Service Failure |
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17 |
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Substantially Completed |
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4 |
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Suite 101 Space Rent Commencement Date |
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5 |
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Suite 102 Space Rent Commencement Date |
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4 |
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Suite 202 Space Rent Commencement Date |
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4 |
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Taxes |
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7 |
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Tenant |
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4 |
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Tenant Delay |
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4 |
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Tenant Improvements |
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13 |
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Tenants Share |
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7 |
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Tenants Taxes |
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15 |
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Term |
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4 |
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Trade Fixtures |
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14 |
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Transfer |
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24 |
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Transferee |
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25 |
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Visitors |
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11 |
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-ii-
BASIC LEASE INFORMATION
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Lease Date: |
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For identification purposes only, the date of this Lease is April 28, 2000 |
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Landlord: |
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PARK PLAZA ASSOCIATES, LLC, a California limited liability company |
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Tenant: |
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IRONPLANET.COM, a Delaware corporation |
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Project: |
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Park Plaza |
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Building Address: |
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4695 Chabot Drive
Pleasanton, California |
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Rentable Area of
Building: |
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Approximately 87,040 rentable square feet |
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Premises: |
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The Premises consist of the Suite 102 Space, the Suite 202 Space
and the Suite 101 Space (all as defined below), containing a total
of approximately 27,594 rentable square feet |
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Suite 102 Space:
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Floor:
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1st |
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Suite Number:
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102 |
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Rentable Area:
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Approximately 6,813 rentable square feet |
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Suite 202 Space:
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Floor:
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2nd |
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Suite Number:
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202 |
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Rentable Area:
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Approximately 18,789 rentable square feet |
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Suite 101 Space:
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Floor:
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1st |
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Suite Number:
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101 |
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Rentable Area:
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Approximately 1,992 rentable square feet |
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Term: |
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60 full calendar months following the Suite 202 Rent
Commencement Date (plus any first partial month) |
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Scheduled Suite 102 Space Rent Commencement Date: |
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June 1, 2000 |
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Scheduled Suite 202 Space Rent Commencement Date: |
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July 1, 2000 |
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Scheduled Suite 101
Space Rent
Commencement Date: |
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September 1, 2000 |
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Expiration Date: |
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The last day of the 60th full calendar month following the Suite
202 Rent Commencement Date |
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Base Rent:
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Months 01 Expiration Date:
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$3.10 per rentable square foot per month |
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Base Year: |
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The calendar year 2000 |
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Tenants Share: |
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31.70% |
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Security Deposit: |
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The Security Deposit shall be a total of $979,366.20, consisting of: |
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(a) Cash of $79,366.20, plus |
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(b) a Letter of Credit in the amount of $900,000.00, subject to, and
in accordance with, the provisions of Sections and 4 and 36 of this Lease. |
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Landlords Address
for Payment of Rent: |
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Park Plaza Associates, LLC
File 73781
PO Box 60000
San Francisco, CA 94160-3781 |
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Business Hours: |
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7:00 a.m. to 6:00 p.m., Monday Friday (Excluding Holidays) |
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Landlords Address
for Notices: |
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PARK PLAZA ASSOCIATES, LLC
4305 Hacienda Drive, Suite 180
Pleasanton, CA 94588
Attn: Property Management |
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with a copy to: |
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PARK PLAZA ASSOCIATES, LLC
2929 Campus Drive, Suite 450
San Mateo, CA 94403
Attention: General Counsel |
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Tenants Address
for Notices: |
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The Premises |
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Access Card Deposit: |
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$25.00 per card |
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Broker(s): |
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Colliers International |
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Guarantor(s): |
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(none) |
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Property Manager: |
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Cornerstone Properties Limited Partnership
dba Wilson Cornerstone Properties Limited Partnership |
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Additional Provisions:
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36.
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Letter of Credit |
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37.
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Parking |
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38.
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Signage |
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39.
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Right of First Offer |
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40.
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Extension Option |
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Exhibits: |
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Exhibit A-I:
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The Suite 102 Space Portion of the Premises |
Exhibit A-2:
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The Suite 202 Space Portion of the Premises |
Exhibit A-3:
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The Suite 101 Space Portion of the Premises |
Exhibit B:
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Construction Rider |
Exhibit C:
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Building Rules |
Exhibit D:
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Additional Provisions |
Exhibit E:
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Approved Letter of Credit Form |
Exhibit F:
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Location and Configuration of Building Sign |
The Basic Lease Information set forth above is part of the Lease. In the event of any conflict
between any provision in the Basic Lease Information and the Lease, the Lease shall
control.
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THIS LEASE is made as of the Lease Date set forth in the Basic Lease Information, by and
between the Landlord identified in the Basic Lease Information
(Landlord), and the Tenant
identified in the Basic Lease Information (Tenant). Landlord and Tenant hereby agree as follows:
1. PREMISES. Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, upon
the terms and subject to the conditions of this Lease, the office space identified in the Basic
Lease Information as the Premises (the Premises), in the Building located at the address
specified in the Basic Lease Information (the Building). The approximate configuration and
location of the Premises is shown on Exhibit A. Landlord and Tenant agree that the
rentable area of the Premises for all purposes under this Lease shall be the Rentable Area
specified in the Basic Lease Information. The Building, together with the parking facilities
serving the Building (the Parking Facility), and the parcel(s) of land on which the Building and
the Parking Facility are situated (collectively, the Property), is part of the Project identified
in the Basic Lease Information (the Project).
2. TERM; POSSESSION.
2.1 Term. The term of this Lease (the Term) shall commence on the Commencement Date as
described below and, unless sooner terminated, shall expire on the Expiration Date set forth in the
Basic Lease Information (the Expiration Date). The Commencement Date shall be the date Landlord
delivers to Tenant a fully executed copy of this Lease.
2.2 Rent Commencement Dates.
(a) The
Suite 102 Space Rent Commencement Date shall be the earlier of (a) June 1, 2000, (b)
the date on which Landlord tenders possession of the Suite 102 Space to Tenant, with all of
Landlords construction obligations, if any, Substantially Completed as provided in the
Construction Rider attached as Exhibit B (the Construction Rider) or, in the event of any Tenant
Delay, as defined in the Construction Rider, the date on which Landlord could have done so had
there been no such Tenant Delay; or (c) the date upon which Tenant, with Landlords written
permission, actually occupies and conducts business in any portion of the Suite 102 Space. The
parties anticipate that the Suite 102 Space Rent Commencement Date will occur on or about the
Scheduled Suite 102 Space Rent Commencement Date set forth in the Basic Lease Information (the
Scheduled Suite 102 Space Rent Commencement Date); provided, however, that Landlord shall not be
liable for any claims, damages or liabilities if the Suite 102 Space is not ready for occupancy by
the Scheduled Suite 102 Rent Commencement Date. When the Suite 102 Space Rent Commencement Date has
been established, Landlord and Tenant shall at the request of either party confirm the Suite 102
Space Rent Commencement Date in writing.
(b) The
Suite 202 Space Rent Commencement Date shall be the earlier of (a) July 1, 2000, (b)
the date on which Landlord tenders possession of the Suite 202 Space to Tenant, with all of
Landlords construction obligations, if any, Substantially Completed or, in the event of any
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Tenant Delay, the date on which Landlord could have done so had there been no such Tenant
Delay; or (c) the date upon which Tenant, with Landlords written permission, actually occupies and
conducts business in any portion of the Suite 202 Space. The parties anticipate that the Suite 202
Space Rent Commencement Date will occur on or about the Scheduled Suite 202 Space Rent Commencement
Date set forth in the Basic Lease Information (the Scheduled Suite 202 Space Rent Commencement
Date); provided, however, that Landlord shall not be liable for any claims, damages or liabilities
if the Suite 102 Space is not ready for occupancy by the Scheduled Suite 202 Rent Commencement
Date. When the Suite 202 Space Rent Commencement Date has been established, Landlord and Tenant
shall at the request of either party confirm the Suite 202 Space Rent Commencement Date and
Expiration Date in writing.
(c) The Suite 101 Space Rent Commencement Date shall be the date on which Landlord tenders
possession of the Suite 101 Space to Tenant, with all of Landlords construction obligations, if
any, Substantially Completed or, in the event of any Tenant
Delay, the date on which Landlord could
have done so had there been no such Tenant Delay; or the date upon which Tenant, with Landlords
written permission, actually occupies and conducts business in any portion of the Suite 101 Space.
The parties anticipate that the Suite 101 Space Rent Commencement Date will occur on or about the
Scheduled Suite 101 Space Rent Commencement Date set forth in the Basic Lease Information (the
Scheduled Suite 101 Space Rent Commencement Date); provided, however, that Landlord shall not be
liable for any claims, damages or liabilities if the Suite 101 Space is not ready for occupancy by
the Scheduled Suite 101 Rent Commencement Date. When the Suite 101 Space Rent Commencement Date has
been established, Landlord and Tenant shall at the request of either party confirm the Suite 101
Space Rent Commencement Date in writing.
Tenant understands and agrees that the Suite 101 Space is currently leased by another tenant
(the Existing Tenant). Landlord agrees to use its good faith efforts to regain possession of the
Suite 101 Space from the Existing Tenant and deliver possession thereof to Tenant on or before the
Scheduled Suite 101 Space Rent Commencement Date.
3.1 Base Rent. Tenant agrees to pay to Landlord the Base Rent set forth in the Basic
Lease Information, without prior notice or demand, on the first day of each and every calendar
month during the Term, except that (a) Base Rent for the first full calendar month in which Base
Rent is payable shall be paid upon Tenants execution of this Lease, (b) Base Rent for the Suite
102 Space for any partial month following the Suite 102 Space Rent Commencement Date shall be paid
on the Suite 102 Space Rent Commencement Date (c) Base Rent for the Suite 202 Space for any partial
month following the Suite 202 Space Rent Commencement Date shall be paid on the Suite 202 Space
Rent Commencement Date, and (d) Base Rent for the Suite 101 Space for any partial month following
the Suite 101 Space Rent Commencement Date shall be paid on the Suite 101 Space Rent Commencement
Date. Base Rent for any partial month following the Suite 102 Space Rent Commencement Date, the
Suite 202 Rent Commencement Date and the Suite 101 Space Rent
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Commencement Date at the beginning or for any partial month at the end of the Term shall
be prorated based on the actual number of days in the month.
3.2 Additional Rent: Increases in Operating Costs and Taxes.
(a) Definitions.
(1) Base Operating Costs means Operating Costs for the calendar year
specified as the Base Year in the Basic Lease Information (excluding therefrom, however, any
Operating Costs of a nature that would not ordinarily be incurred on an annual, recurring basis).
(2) Base Taxes means Taxes for the calendar year specified as the Base Year in the Basic
Lease Information.
(3) Operating Costs means all costs of managing, operating, maintaining and
repairing the Property, including all costs, expenditures, fees and charges for: (A) operation,
maintenance and repair of the Property (including maintenance, repair and replacement of glass, the
roof covering or membrane, and landscaping); (B) utilities and services (including
telecommunications facilities and equipment, recycling programs and trash removal), and associated
supplies and materials; (C) compensation (including employment taxes and fringe
benefits) for persons who perform duties in connection with the operation, management, maintenance
and repair of the Building, such compensation to be appropriately allocated for persons who also
perform duties unrelated to the Building; (D) property (including coverage for earthquake and flood
if carried by Landlord), liability, rental income and other insurance relating to the Property, and
expenditures for deductible amounts paid under such insurance, which deductible amounts shall be
amortized over the remaining Term of the Lease; (E) licenses, permits and inspections; (F)
complying with the requirements of any law, statute, ordinance or governmental rule
or regulation or any orders pursuant thereto (collectively Laws); (G) amortization of
capital improvements required to comply with Laws, or which are intended to reduce Operating Costs
or improve the utility, efficiency or capacity of any Building System, with interest on the
unamortized balance at the rate paid by Landlord on funds borrowed to finance such capital
improvements (or, if Landlord finances such improvements out of Landlords funds without borrowing,
the rate that Landlord would have paid to borrow such funds, as reasonably determined by Landlord),
over such useful life as Landlord shall reasonably determine; (H) an office in the Project for the
management of the Property, including expenses of furnishing and equipping such office and the
rental value of any space occupied for such purposes; (I) property management fees not
to exceed the the rate of property management fees charged by owners of similar type and quality
properties in Alameda County; (J) accounting, legal and other professional services
incurred in connection with the operation of the Property and the calculation of Operating Costs
and Taxes; (K) a reasonable allowance for depreciation on machinery and equipment used to maintain
the Property and on other personal property owned by Landlord in the Property (including window
coverings and carpeting in common areas); (L) contesting the validity or applicability of any Laws
that may affect the Property; (M) the Buildings share of any shared or common area
maintenance fees and expenses (including costs and expenses of operating, managing, owning and
maintaining the Parking Facility
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and the common areas of the Project and any fitness center or conference center in the Project);
and (N) any other cost, expenditure, fee or charge, whether or not hereinbefore described, which in
accordance with generally accepted property management practices would be considered an expense of
managing, operating, maintaining and repairing the Property. Operating Costs for any calendar year
during which average occupancy of the Building is less than one hundred percent (100%) shall be
calculated based upon the Operating Costs that would have been incurred if the Building had an
average occupancy of one hundred percent (100%) during the entire calendar year.
Operating Costs shall not include (i) capital improvements (except as otherwise provided
above); (ii) costs of special services rendered to individual tenants (including Tenant) for which
a special charge is made; (iii) interest and principal payments on loans or indebtedness secured by
the Building; (iv) costs of improvements for Tenant or other tenants of the Building; (v) costs of
services or other benefits of a type which are not available to Tenant but which are available to
other tenants or occupants, and costs for which Landlord is reimbursed by other tenants of the
Building other than through payment of tenants shares of increases in Operating Costs and Taxes;
(vi) leasing commissions, attorneys fees and other expenses incurred in connection with leasing
space in the Building or enforcing such leases; (vii) depreciation or amortization, other than as
specifically enumerated in the definition of Operating Costs above; and (viii) costs, fines or
penalties incurred due to Landlords violation of any Law.
(4) Taxes means: all real property taxes and general, special or district assessments or
other governmental impositions, of whatever kind, nature or origin, imposed on or by reason of the
ownership or use of the Property; governmental charges, fees or assessments for transit or traffic
mitigation (including area-wide traffic improvement assessments and transportation system
management fees), housing, police, fire or other governmental service or purported benefits to the
Property; personal property taxes assessed on the personal property of Landlord used in the
operation of the Property; service payments in lieu of taxes and taxes and assessments of every
kind and nature whatsoever levied or assessed in addition to, in lieu of or in substitution for
existing or additional real or personal property taxes on the Property or the personal property
described above; any increases in the foregoing caused by changes in assessed valuation, tax rate
or other factors or circumstances; and the reasonable cost of contesting by appropriate proceedings
the amount or validity of any taxes, assessments or charges described above. To the extent paid by
Tenant or other tenants as Tenants Taxes (as defined in Section 8 Tenants Taxes),
Tenants Taxes shall be excluded from Taxes.
(5) Tenants Share means the Rentable Area of the Premises divided by the total Rentable
Area of the Building, as set forth in the Basic Lease Information. If the Rentable Area of the
Building is changed or the Rentable Area of the Premises is changed by Tenants leasing of
additional space hereunder or for any other reason, Tenants Share shall be adjusted accordingly.
-7-
(b) Additional Rent.
(1) Tenant shall pay Landlord as Additional Rent for each calendar year or portion thereof
during the Term Tenants Share of the sum of (x) the amount (if any) by which Operating Costs for
such period exceed Base Operating Costs, and (y) the amount (if any) by which Taxes for such period
exceed Base Taxes.
(2) Prior to the end of the Base Year and each calendar year thereafter, Landlord shall notify
Tenant of Landlords estimate of Operating Costs, Taxes and Tenants Additional Rent for the
following calendar year. Commencing on the first day of January of each calendar year and
continuing on the first day of every month thereafter in such year, Tenant shall pay to Landlord
one-twelfth (1/12th) of the estimated Additional Rent. If Landlord thereafter estimates that
Operating Costs or Taxes for such year will vary from Landlords prior estimate, Landlord may, by
notice to Tenant, revise the estimate for such year (and Additional Rent shall thereafter be
payable based on the revised estimate).
(3) As soon as reasonably practicable after the end of the Base Year and each calendar year
thereafter, Landlord shall furnish Tenant a statement with respect to such year, showing Operating
Costs, Taxes and Additional Rent for the year, and the total payments made by Tenant with respect
thereto. Unless Tenant raises any objections to Landlords statement within ninety (90) days after
receipt of the same, such statement shall conclusively be deemed correct and Tenant shall have no
right thereafter to dispute such statement or any item therein or the computation of Additional
Rent based thereon. If Tenant does object to such statement, then Landlord shall provide Tenant
with reasonable verification of the figures shown on the statement and the parties shall negotiate
in good faith to resolve any disputes. Any objection of Tenant to Landlords statement and
resolution of any dispute shall not postpone the time for payment of any amounts due Tenant or
Landlord based on Landlords statement, nor shall any failure of Landlord to deliver Landlords
statement in a timely manner relieve Tenant of Tenants obligation to pay any amounts due Landlord
based on Landlords statement.
(4) If Tenants Additional Rent as finally determined for any calendar year exceeds the total
payments made by Tenant on account thereof, Tenant shall pay Landlord the deficiency within twenty
(20) days of Tenants receipt of Landlords statement. If the total payments made by Tenant on
account thereof exceed Tenants Additional Rent as finally determined for such year, Tenants
excess payment shall be credited toward the rent next due from Tenant under this Lease. For any
partial calendar year at the beginning or end of the Term, Additional Rent shall be prorated on the
basis of a 365-day year by computing Tenants Share of the increases in Operating Costs and Taxes
for the entire year and then prorating such amount for the number of days during such year included
in the Tenn. Notwithstanding the termination of this Lease, Landlord shall pay to Tenant or Tenant
shall pay to Landlord, as the case may be, within twenty (20) days after Tenants receipt of
Landlords final statement for the calendar year in which this Lease terminates, the difference
between Tenants Additional Rent for that year, as finally determined by Landlord, and the total
amount previously paid by Tenant on account thereof.
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If for any reason Base Taxes or Taxes for any year during the Term are reduced,
refunded or otherwise changed, Tenants Additional Rent shall be adjusted accordingly. If Taxes are
temporarily reduced as a result of space in the Building being leased to a tenant that is entitled
to an exemption from property taxes or other taxes, then for purposes of determining Additional
Rent for each year in which Taxes are reduced by any such exemption, Taxes for such year shall be
calculated on the basis of the amount the Taxes for the year would have been in the absence of the
exemption. The obligations of Landlord to refund any overpayment of Additional Rent and of Tenant
to pay any Additional Rent not previously paid shall survive the expiration of the Term.
Notwithstanding anything to the contrary in this Lease, if there is at any time a decrease in Taxes
below the amount of the Taxes for the Base Year, then for purposes of calculating Additional Rent
for the year in which such decrease occurs and all subsequent periods, Base Taxes shall be reduced
to equal the Taxes for the year in which the decrease occurs.
(c) Tenants Audit Rights.
Tenant, at its expense, shall have the right upon fifteen (15) days prior written notice to
Landlord (Tenants Audit Notice) to be given only within ninety (90) days after Tenant receives
the annual statement of Additional Rent to audit Landlords books and records relating to such
statement for such immediately preceding calendar year, subject to the following terms and
conditions: (a) No audit shall be conducted at any time that Tenant is in default of any of the
terms of this Lease; (b) any audit shall be conducted only by independent certified public
accountants practicing for an accounting firm of national prominence, employed by Tenant on an
hourly or fixed fee basis, and not on a contingency fee basis; and (c) Tenant shall not audit
Landlords books and records more than one (1) time for any calendar year. Tenant acknowledges that
Tenants right to inspect Landlords books and records with respect to Additional Rent for the
preceding calendar year is for the exclusive purpose of determining whether Landlord has complied
with the terms of the Lease with respect to Additional Rent. Tenant shall have ninety (90) days
after Tenants Audit Notice to complete Tenants inspection of Landlords books and records
concerning Additional Rent at Landlords accounting office. During its inspection Tenant agrees to
request, in writing, all pertinent documents relating to the inspection. If in Landlords
possession, Landlord will provide such documents to Tenant within ten (10) days from Landlords
receipt of the request and Tenant shall not remove such records from Landlords accounting office,
but Tenant shall have the right to make copies of the relevant documents at Tenants expense.
Tenant shall deliver to Landlord a copy of the results of such audit within fifteen (15) days of
its receipt by Tenant. The nature and content of any audit are
strictly confidential. Tenant, on
behalf of its accountant, employees and agents shall not disclose the information obtained from the
audit to any other person or entity, including, without limitation, any other tenant in the
Building, or any agent, employee, officer, shareholder, partner, accountant or attorney of such
tenant in the Building. A breach of this confidentiality agreement shall constitute an Event of
Default under this Lease. No assignee shall conduct an audit for any period during which such
assignee was not in possession of the Premises. If Tenants audit shows that Operating Costs are
overstated by more than five percent (5%), then Landlord agrees to pay the reasonable costs of such
audit, not to exceed Two Thousand and 00/100 Dollars ($2,000.00) per audit.
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3.3 Payment of Rent. All amounts payable or
reimbursable by Tenant under this Lease, including late charges
and interest (collectively, Rent), shall constitute
rent and shall be payable and recoverable as rent in the manner
provided in this Lease. All sums payable to Landlord on demand
under the terms of this Lease shall be payable within thirty
(30) days after notice from Landlord of the amounts due.
All rent shall be paid without offset, recoupment or deduction
in lawful money of the United States of America to Landlord at
Landlords Address for Payment of Rent as set forth in the
Basic Lease Information, or to such other person or at such
other place as Landlord may from time to time designate.
4. SECURITY DEPOSIT. On execution of this Lease,
Tenant shall deposit with Landlord the amount specified in the
Basic Lease Information and the letter of credit identified in
Section 36 below as the Security Deposit (collectively, the
Security Deposit, which term shall include
amounts drawn on the letter of credit), as security for the
performance of Tenants obligations under this Lease.
Landlord may (but shall have no obligation to) use the Security
Deposit or any portion thereof to cure any breach or default by
Tenant under this Lease, to fulfill any of Tenants
obligations under the Lease, or to compensate Landlord for any
damage it incurs as a result of Tenants failure to perform
any of Tenants obligations hereunder. In such event,
Tenant shall pay to Landlord on demand an amount sufficient to
replenish the Security Deposit to the full amount of the cash
specified in the Basic Lease Information and the applicable Face
Amount (defined in Section 36 below) of the letter of
credit. If at the expiration or termination of this Lease,
Tenant is not in default, has otherwise fully performed all of
Tenants obligations under this Lease, and there are no
outstanding Claims (defined in Section 10.1 below, and
including all existing and potential Claims) for which Tenant is
responsible, then within thirty (30) days following the
expiration or termination of this Lease Landlord shall return to
Tenant the Security Deposit or the balance thereof then held by
Landlord and not applied as provided above. Landlord may
commingle the Security Deposit with Landlords general and
other funds. Landlord shall not be required to pay interest on
the Security Deposit to Tenant. Tenant acknowledges that
Landlord has agreed to accept a letter of credit in lieu of an
additional cash deposit as an accommodation to Tenant and Tenant
agrees that the letter of credit and all amounts drawn
thereunder shall be treated for all purposes under this Lease as
if a cash deposit had been tendered to Landlord upon the
execution of this Lease.
5. USE AND COMPLIANCE WITH LAWS.
5.1
Use. The Premises shall be used and
occupied for general business office purposes and for no other
use or purpose. Tenant shall comply with all present and future
Laws relating to Tenants use or occupancy of the Premises
(and make any repairs, alterations or improvements as required
to comply with all such Laws), and shall observe the
Building Rules (as defined in
Section 27
Rules and Regulations).
Tenant shall not do, bring, keep or sell anything in or about
the Premises that is prohibited by, or that will cause a
cancellation of or an increase in the existing premium for, any
insurance policy covering the Property or any part thereof.
Tenant shall not permit the Premises to be occupied or used in
any manner that will constitute waste or a nuisance, or disturb
the quiet enjoyment of or otherwise annoy other tenants in the
Building. Without limiting the foregoing, the Premises shall not
be used for educational activities, practice of
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medicine or any
of the healing arts, providing social services, for any
governmental use (including embassy or consulate use), or for
personnel agency, customer service office, studios for radio,
television or other media, travel agency or reservation center
operations or uses. Tenant shall not, without the prior consent
of Landlord, (i) bring into the Building or the Premises
anything that may cause substantial noise, odor or vibration,
overload the floors in the Premises or the Building or any of
the heating, ventilating and air-conditioning
(HVAC), mechanical, elevator, plumbing,
electrical, fire protection, life safety, security or other
systems in the Building (Building Systems),
or jeopardize the structural integrity of the Building or any
part thereof; (ii) connect to the utility systems of the
Building any apparatus, machinery or other equipment other than
typical office equipment; or (iii) connect to any
electrical circuit in the Premises any equipment or other load
with aggregate electrical power requirements in excess of 80% of
the rated capacity of the circuit.
5.2 Hazardous Materials.
(a) Definitions.
(1) Hazardous Materials shall mean any
substance: (A) that now or in the future is regulated or
governed by, requires investigation or remediation under, or is
defined as a hazardous waste, hazardous substance, pollutant or
contaminant under any governmental statute, code, ordinance,
regulation, rule or order, and any amendment thereto, including
the Comprehensive Environmental Response Compensation
and Liability Act, 42 U.S.C. §9601 et
seq., and the Resource Conservation and Recovery Act,
42 U.S.C. §6901 et seq., or
(B) that is toxic, explosive, corrosive, flammable,
radioactive, carcinogenic, dangerous or otherwise hazardous,
including gasoline, diesel fuel, petroleum hydrocarbons,
polychlorinated biphenyls (PCBs), asbestos, radon and urea
formaldehyde foam insulation.
(2) Environmental Requirements shall
mean all present and future Laws, orders, permits, licenses,
approvals, authorizations and other requirements of any kind
applicable to Hazardous Materials.
(3) Handled by Tenant and
Handling by Tenant shall mean and refer to
any installation, handling, generation, storage, use, disposal,
discharge, release, abatement, removal, transportation, or any
other activity of any type by Tenant or its agents, employees,
contractors, licensees, assignees, sublessees, transferees or
representatives (collectively, Representatives) or
its guests, customers, invitees, or visitors (collectively,
Visitors), at or about the Premises in
connection with or involving Hazardous Materials.
(4) Environmental Losses shall mean all
costs and expenses of any kind, damages, including foreseeable
and unforeseeable consequential damages, fines and penalties
incurred in connection with any violation of and compliance with
Environmental Requirements and all losses of any kind
attributable to the diminution of value, loss of use or adverse
effects on marketability or use of any portion of the Premises
or Property.
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(b) Tenants Covenants. No Hazardous Materials
shall be Handled by Tenant at or about the Premises or Property
without Landlords prior written consent, which consent may
be granted, denied, or conditioned upon compliance with
Landlords requirements, all in Landlords absolute
discretion. Notwithstanding the foregoing, normal quantities and
use of those Hazardous Materials customarily used in the conduct
of general office activities, such as copier fluids and cleaning
supplies (Permitted Hazardous Materials), may
be used and stored at the Premises without Landlords prior
written consent, provided that Tenants activities at or
about the Premises and Property and the Handling by Tenant of
all Hazardous Materials shall comply at all times with all
Environmental Requirements. At the expiration or termination of
the Lease, Tenant shall promptly remove from the Premises and
Property all Hazardous Materials Handled by Tenant at the
Premises or the Property. Tenant shall keep Landlord fully and
promptly informed of all Handling by Tenant of Hazardous
Materials other than Permitted Hazardous Materials. Tenant shall
be responsible and liable for the. compliance with all of the
provisions of this Section by all of Tenants
Representatives and Visitors, and all of Tenants
obligations under this Section (including its indemnification
obligations under paragraph (e) below) shall survive the
expiration or termination of this Lease.
(c) Compliance. Tenant shall at Tenants
expense promptly take all actions required by any governmental
agency or entity in connection with or as a result of the
Handling by Tenant of Hazardous Materials at or about the
Premises or Property, including inspection and testing,
performing all cleanup, removal and remediation work required
with respect to those Hazardous Materials, complying with all
closure requirements and post-closure monitoring, and filing all
required reports or plans. All of the foregoing work and all
Handling by Tenant of all Hazardous Materials shall be performed
in a good, safe and workmanlike manner by consultants qualified
and licensed to undertake such work and in a manner that will
not interfere with any other tenants quiet enjoyment of
the Property or Landlords use, operation, leasing and sale
of the Property. Tenant shall deliver to Landlord prior to
delivery to any governmental agency, or promptly after receipt
from any such agency, copies of all permits, manifests, closure
or remedial action plans, notices, and all other documents
relating to the Handling by Tenant of Hazardous Materials at or
about the Premises or Property. If any lien attaches to the
Premises or the Property in connection with or as a result of
the Handling by Tenant of Hazardous Materials, and Tenant does
not cause the same to be released, by payment, bonding or
otherwise, within ten (10) days after the attachment thereof,
Landlord shall have the right but not the obligation to cause
the same to be released and any sums expended by Landlord (plus
Landlords administrative costs) in connection therewith
shall be payable by Tenant on demand.
(d) Landlords Rights. Landlord shall have the
right, but not the obligation, to enter the Premises at any
reasonable time (i) to confirm Tenants compliance
with the provisions of this Section 5.2, and (ii) to
perform Tenants obligations under this Section if Tenant
has failed to do so after reasonable notice to Tenant. Landlord
shall also have the right to engage qualified Hazardous
Materials consultants to inspect the Premises and review the
Handling by Tenant of Hazardous Materials, including review of
all permits, reports, plans, and
other documents regarding same. Tenant shall pay to Landlord on
demand the costs of Landlords consultants fees and
all costs incurred by Landlord in performing Tenants
obligations under this Section. Landlord shall
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use reasonable
efforts to minimize any interference with Tenants business
caused by Landlords entry into the Premises, but Landlord
shall not be responsible for any interference caused thereby.
(e) Tenants Indemnification. Tenant agrees to
indemnify, defend, protect and hold harmless Landlord and its
partners or members and its or their partners, members,
directors, officers, shareholders, employees and agents from all
Environmental Losses and all other claims, actions, losses,
damages, liabilities, costs and expenses of every kind,
including reasonable attorneys, experts and
consultants fees and costs, incurred at any time and
arising from or in connection with the Handling by Tenant of
Hazardous Materials at or about the Property or Tenants
failure to comply in full with all Environmental Requirements
with respect to the Premises.
6. TENANT IMPROVEMENTS & ALTERATIONS.
6.1 Landlord and Tenant shall perform their
respective obligations with respect to design and construction
of any improvements to be constructed and installed in the
Premises (the Tenant Improvements), as
provided in the Construction Rider. Except for any Tenant
Improvements to be constructed by Tenant as provided in the
Construction Rider, Tenant shall not make any alterations,
improvements or changes to the Premises, including installation
of any security system or telephone or data communication
wiring, (Alterations), without
Landlords prior written consent, which consent shall not
be unreasonably withheld or delayed. Any such Alterations shall
be completed by Tenant at Tenants sole cost and expense:
(i) with due diligence, in a good and workmanlike manner,
using new materials; (ii) in compliance with plans and
specifications approved by Landlord; (iii) in compliance
with the construction rules and regulations promulgated by
Landlord from time to time; (iv) in accordance with all
applicable Laws (including all work, whether structural or
non-structural, inside or outside the Premises, required to
comply fully with all applicable Laws and necessitated by
Tenants work); and (v) subject to all conditions
which Landlord may in Landlords discretion impose. Such
conditions may include requirements for Tenant to:
(i) provide payment or performance bonds or additional
insurance (from Tenant or Tenants contractors,
subcontractors or design professionals); (ii) use
contractors or subcontractors approved by Landlord, which
approval shall not be unreasonably withheld, except that
Landlord shall have the right to designate contractors and
subcontractors for Alterations affecting either the structure of
the Building, or the Building Systems; and (iii) remove all
or part of the Alterations prior to or upon expiration or
termination of the Term, as designated by Landlord at the time
Landlord approves any such Alterations. If any work outside the
Premises, or any work on or adjustment to any of the Building
Systems, is required in connection with or as a result of
Tenants work, such work shall be performed at
Tenants expense by contractors designated by Landlord.
Landlords right to review and approve (or withhold
approval of) Tenants plans, drawings, specifications,
contractor(s) and other aspects of construction work proposed by
Tenant is intended solely to protect Landlord, the Property and
Landlords interests. No approval or consent by Landlord
shall be deemed or construed to be a representation or warranty
by Landlord as to the adequacy, sufficiency, fitness or
suitability thereof or compliance thereof with applicable Laws
or other requirements. Except as otherwise provided in
Landlords consent, all Alterations shall upon installation
become part of the realty and be the property of Landlord.
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6.2 Before making any Alterations, Tenant shall submit to Landlord for Landlords
prior approval reasonably detailed final plans and specifications prepared by a licensed
architect or engineer, a copy of the construction contract, including the name of the
contractor and all subcontractors proposed by Tenant to make the Alterations and a copy of
the contractors license. Tenant shall reimburse Landlord upon demand for any expenses
incurred by Landlord in connection with any Alterations made by Tenant, including
reasonable fees charged by Landlords contractors or consultants to review plans and
specifications prepared by Tenant and to update the existing as-built plans and
specifications of the Building to reflect the Alterations. Tenant shall obtain all
applicable permits, authorizations and governmental approvals and deliver copies of the
same to Landlord before commencement of any Alterations.
6.3 Tenant shall keep the Premises and the Property free and clear of all liens
arising out of any work performed, materials furnished or obligations incurred by Tenant.
If any such lien attaches to the Premises or the Property, and Tenant does not cause the
same to be released by payment, bonding or otherwise within ten (10) days after the
attachment thereof, Landlord shall have the right but not the obligation to cause the same
to be released, and any sums expended by Landlord (plus Landlords administrative costs) in
connection therewith shall be payable by Tenant on demand with interest thereon from the
date of expenditure by Landlord at the Interest Rate (as defined in Section 16.2 -
Interest). Tenant shall give Landlord at least ten (10) days notice prior to the
commencement of any Alterations and cooperate with Landlord in posting and maintaining
notices of non-responsibility in connection therewith.
6.4 Subject to the provisions of Section 5 Use and Compliance with Laws and the
foregoing provisions of this Section, Tenant may install and maintain furnishings,
equipment, movable partitions, business equipment and other trade fixtures (Trade
Fixtures) in the Premises, provided that the Trade Fixtures do not become an integral part
of the Premises or the Building. Tenant shall promptly repair any damage to the Premises or
the Building caused by any installation or removal of such Trade Fixtures.
7. MAINTENANCE AND REPAIRS.
7.1 By taking possession of the Premises Tenant agrees that the Premises are then in a
good and tenantable condition. During the Term, Tenant at Tenants expense but under the
direction of Landlord, shall repair and maintain the Premises, including the interior
walls, floor coverings, ceiling (ceiling tiles and grid), Tenant Improvements, Alterations,
fire extinguishers, outlets and fixtures, and any appliances (including dishwashers, hot
water heaters and garbage disposers) in the Premises, in a first class condition, and keep
the Premises in a clean, safe and orderly condition.
7.2 Landlord shall maintain or cause to be maintained in reasonably good order,
condition and repair, the structural portions of the roof, foundations, floors and
exterior walls of the Building, the Building Systems, and the public and common areas of
the Property, such as elevators, stairs, corridors and restrooms; provided, however, that
Tenant shall pay the cost of
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repairs for any damage occasioned by Tenants use of the Premises or the Property or any act or
omission of Tenant or Tenants Representatives or Visitors, to the extent (if any) not covered by
Landlords property insurance. Landlord shall be under no obligation to inspect the Premises.
Tenant shall promptly report in writing to Landlord any defective condition known to Tenant which
Landlord is required to repair. As a material part of the consideration for this Lease, Tenant
hereby waives any benefits of any applicable existing or future Law, including the provisions of
California Civil Code Sections 1932(1), 1941 and 1942, that allows a tenant to make repairs at its
landlords expense.
7.3 Landlord hereby reserves the right, at any time and from time to time, without
liability to Tenant, and without constituting an eviction, constructive or otherwise, or
entitling Tenant to any abatement of rent or to terminate this Lease or otherwise releasing
Tenant from any of Tenants obligations under this Lease:
(a) To make alterations, additions, repairs, improvements to or in or to
decrease the size of area of, all or any part of the Building, the fixtures and
equipment therein, and the Building Systems (except that Landlord shall not have
any right under this provision to materially reduce the size of the Premises, or to
permanently, materially and adversely affect Tenants access to and use of the
Premises, except only as may be required to comply with Laws or as a result of any
fire or other casualty or Condemnation);
(b) To change the Buildings name or street address;
(c) To install and maintain any and all signs on the exterior and interior of
the Building;
(d) To reduce, increase, enclose or otherwise change at any time and from
time to time the size, number, location, lay-out and nature of the common areas
(including the Parking Facility) and other tenancies and premises in the Property
and to create additional rentable areas through use or enclosure of common areas;
and
(e) If any governmental authority promulgates or revises any Law or imposes
mandatory or voluntary controls or guidelines on Landlord or the Property relating
to the use or conservation of energy or utilities or the reduction of automobile
or other emissions or reduction or management of traffic or parking on the
Property (collectively Controls), to comply with such Controls, whether
mandatory or voluntary, or make any alterations to the Property related thereto.
8. TENANTS TAXES. Tenants Taxes shall mean (a) all taxes, assessments, license fees and
other governmental charges or impositions levied or assessed against or with respect to Tenants
personal property or Trade Fixtures in the Premises, whether any such imposition is levied directly
against Tenant or levied against Landlord or the Property, (b) all rental, excise, sales or
transaction privilege taxes arising out of this Lease (excluding, however, state and federal
personal or corporate income taxes measured by the income of Landlord from all sources) imposed by
any taxing authority upon Landlord or upon Landlords receipt of any rent payable by Tenant
pursuant
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to the terms of this Lease (Rental Tax), and (c) any increase in Taxes attributable to inclusion
of a value placed on Tenants personal property, Trade Fixtures or Alterations. Tenant shall pay
any Rental Tax to Landlord in addition to and at the same time as Base Rent is payable under this
Lease, and shall pay all other Tenants Taxes before delinquency (and, at Landlords request, shall
furnish Landlord satisfactory evidence thereof). If Landlord pays Tenants Taxes or any portion
thereof, Tenant shall reimburse Landlord upon demand for the amount of such payment, together with
interest at the Interest Rate from the date of Landlords payment to the date of Tenants
reimbursement.
9. UTILITIES AND SERVICES.
9.1 Description of Services. Landlord shall furnish to the Premises:
reasonable amounts of heat. ventilation and air-conditioning during the Business Hours
specified in the Basic Lease Information (Business Hours) on weekdays except public
holidays (Business Days); reasonable amounts of electricity; and janitorial services five
days a week (except public holidays). Landlord shall also provide the Building with normal
fluorescent tube replacement, window washing, elevator service, and common area toilet room
supplies. Any additional utilities or services that Landlord may agree to provide
(including lamp or tube replacement for other than Building Standard lighting fixtures)
shall be at Tenants sole expense.
9.2 Payment for Additional Utilities and Services.
(a) Upon request by Tenant in accordance with the procedures established by
Landlord from time to time for furnishing HVAC service at times other than
Business Hours on Business Days, Landlord shall furnish such service to Tenant and
Tenant shall pay for such services on an hourly basis at the then prevailing rate
established for the Building by Landlord. As of the date of this Lease, the
prevailing rate for furnishing HVAC Service at times other than Business Hours on
Business Days is $25.00 per hour per floor which may be changed from time to time
in Landlords sole discretion.
(b) If the temperature otherwise maintained in any portion of the Premises by
the HVAC systems of the Building is affected as a result of (i) any lights,
machines or equipment used by Tenant in the Premises, or (ii) the occupancy of the
Premises by more than one person per 150 square feet of rentable area, then
Landlord shall have the right to install any machinery or equipment reasonably
necessary to restore the temperature, including modifications to the standard
air-conditioning equipment. The cost of any such equipment and modifications,
including the cost of installation and any additional cost of operation and
maintenance of the same, shall be paid by Tenant to Landlord upon demand.
(c) If Tenants usage of electricity, water or any other utility service
exceeds the use of such utility Landlord determines to be typical, normal and
customary for the Building, Landlord may determine the amount of such excess use
by any reasonable means (including the installation at Landlords request but at
Tenants expense of a separate meter or other measuring device) and charge Tenant
for the cost of such excess usage. In addition, Landlord may impose a
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reasonable charge for the use of any additional or unusual janitorial services required by
Tenant because of any unusual Tenant Improvements or Alterations, the carelessness of Tenant or the
nature of Tenants business (including hours of operation).
9.3 Interruption of Services. In the event of an interruption in, or failure
or inability to provide any services or utilities to the Premises or Building for any
reason (a Service Failure), such Service Failure shall not, regardless of its duration,
constitute an eviction of Tenant, constructive or otherwise, or impose upon Landlord any
liability whatsoever, including, but not limited to, liability for consequential damages or
loss of business by Tenant or, except as provided herein, entitle Tenant to an abatement of
rent or to terminate this Lease.
(a) If any Service Failure not caused by Tenant or its Representatives
prevents Tenant from reasonably using a material portion of the Premises and
Tenant in fact ceases to use such portion of the Premises, Tenant shall be
entitled to an abatement of Base Rent and Additional Rent with respect to the
portion of the Premises that Tenant is prevented from using by reason of such
Service Failure in the following circumstances: (i) if Landlord fails to commence
reasonable efforts to remedy the Service Failure within ten (10) Business Days
following the occurrence of the Service Failure, and such failure has persisted
and continuously prevented Tenant from using a material portion of the Premises
during that period, the abatement of rent shall commence on the eleventh (11th)
Business Day following the Service Failure and continue until Tenant is no longer
so prevented from using such portion of the Premises; and (ii) if the Service
Failure in all events is not remedied within thirty (30) days following the
occurrence of the Service Failure and Tenant in fact does not use such portion of
the Premises for an uninterrupted period of thirty (30) days or more by reason of
such Service Failure, the abatement of rent shall commence no later than the
thirty-first (31st) day following the occurrence of the Service Failure and
continue until Tenant is no longer so prevented from using such portion of the
Premises.
(b) If a Service Failure is caused by Tenant or its Representatives, Landlord
shall nonetheless remedy the Service Failure, at the expense of Tenant, pursuant
to Landlords maintenance and repair obligations under Section 7 Maintenance
and Repair or Section 12.1 Landlords Duty to Repair, as the case may be, but
Tenant shall not be entitled to an abatement of rent or to terminate this Lease as
a result of any such Service Failure.
(c) Notwithstanding Tenants entitlement to rent abatement under the
preceding provisions, Tenant shall continue to pay Tenants then current rent
until such time as Landlord and Tenant agree on the amount of the rent abatement.
If Landlord and Tenant are unable to agree on the amount of such abatement within
ten (10) Business Days of the date they commence negotiations regarding the
abatement, then either party may submit the matter to binding arbitration pursuant
to Sections 1280 et seq. of the California Code of Civil Procedure.
(d) In addition to the foregoing provisions, if there is a Service Failure
not caused by Tenant or its Representatives and such Service Failure prevents
Tenant from conducting its business in the Premises in the manner in which Tenant
intends to conduct such business, and (i) Landlord fails to commence reasonable
efforts to remedy the Service Failure within ninety (90)
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days following the occurrence of the Service Failure, or (ii) the Service Failure in all
events is not remedied within one (1) year following its occurrence and Tenant in fact does not
conduct any business in the Premises for an uninterrupted period of one (1) year or more, Tenant
shall have the right to terminate this Lease by written notice delivered to Landlord within ten
(10) Business Days following the event described in clauses (i) or (ii) above giving rise to the
right to terminate.
(e) Where the cause of a Service Failure is within the control of a public
utility or other public or quasi-public entity outside Landlords control,
notification to such utility or entity of the Service Failure and request to remedy
the failure shall constitute reasonable efforts by Landlord to remedy the Service
Failure.
(f) Tenant hereby waives the provisions of California Civil Code Section
1932(1) or any other applicable existing or future law, ordinance or governmental
regulation permitting the termination of this Lease due to such interruption,
failure or inability.
10. EXCULPATION AND INDEMNIFICATION.
10.1 Landlords Indemnification of Tenant. Landlord shall indemnify, protect,
defend and hold Tenant harmless from and against any claims, actions, liabilities, damages,
costs or expenses, including reasonable attorneys fees and costs incurred in defending
against the same (Claims) asserted by any third party against Tenant for loss, injury or
damage, to the extent such loss, injury or damage is caused by the willful misconduct or
negligent acts or omissions of Landlord or its authorized representatives.
10.2 Tenants Indemnification of Landlord. Tenant shall indemnify, protect,
defend and hold Landlord and Landlords authorized representatives harmless from and
against Claims arising from (a) the acts or omissions of Tenant or Tenants Representatives
or Visitors in or about the Property, or (b) any construction or other work undertaken by
Tenant on the Premises (including any design defects), or (c) any breach or default under
this Lease by Tenant, or (d) any loss, injury or damage, howsoever and by whomsoever
caused, to any person or property, occurring in or about the Premises during the Term,
excepting only Claims described in this clause (d) to the extent they are caused by the
willful misconduct or negligent acts or omissions of Landlord or its authorized
representatives.
10.3 Damage to Tenant and Tenants Property. Landlord shall not be liable to
Tenant for any loss, injury or other damage to Tenant or to Tenants property in or about
the Premises or the Property from any cause (including defects in the Property or in any
equipment in the Property; fire, explosion or other casualty; bursting, rupture, leakage
or overflow of any plumbing or other pipes or lines, sprinklers, tanks, drains, drinking
fountains or washstands in, above, or about the Premises or the Property; or acts of other
tenants in the Property). Tenant hereby waives all claims against Landlord for any such
loss, injury or damage and the cost and expense of defending against claims relating
thereto, including any loss, injury or damage caused by Landlords negligence (active or
passive) or willful misconduct. Notwithstanding any other provision of this Lease to the
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contrary, in no event shall Landlord be liable to Tenant for any punitive or consequential
damages or damages for loss of business by Tenant.
10.4 Survival. The obligations of the parties under this Section 10 shall
survive the expiration or termination of this Lease.
11. INSURANCE.
11.1 Tenants Insurance.
(a) Liability Insurance. Tenant shall maintain in full force
throughout the Term, commercial general liability insurance providing coverage on
an occurrence form basis with limits of not less than Two Million Dollars
($2,000,000.00) each occurrence for bodily injury and property damage combined, Two
Million Dollars ($2,000,000.00) annual general aggregate, and Two Million Dollars
($2,000,000.00) products and completed operations annual aggregate. Tenants
liability insurance policy or policies shall: (i) include premises and operations
liability coverage, products and completed operations liability coverage, broad
form property damage coverage including completed operations, blanket contractual
liability coverage including, to the maximum extent possible, coverage for the
indemnification obligations of Tenant under this Lease, and personal and
advertising injury coverage; (ii) provide that the insurance company has the duty
to defend all insureds under the policy; (iii) provide that defense costs are paid
in addition to and do not deplete any of the policy limits; (iv) cover liabilities
arising out of or incurred in connection with Tenants use or occupancy of the
Premises or the Property; (v) extend coverage to cover liability for the actions of
Tenants Representatives and Visitors; and (vi) designate separate limits for the
Property. Each policy of liability insurance required by this Section shall: (i)
contain a cross liability endorsement or separation of insureds clause; (ii)
provide that any waiver of subrogation rights or release prior to a loss does not
void coverage; (iii) provide that it is primary to and not contributing with, any
policy of insurance carried by Landlord covering the same loss; (iv) provide that
any failure to comply with the reporting provisions shall not affect coverage
provided to Landlord, its partners, property managers and Mortgagees; and (v) name
Landlord, its partners, the Property Manager identified in the Basic Lease
Information (the Property Manager), and such other parties in interest as
Landlord may from time to time reasonably designate to Tenant in writing, as
additional insureds. Such additional insureds shall be provided at least the same
extent of coverage as is provided to Tenant under such policies. All endorsements
effecting such additional insured status shall be at least as broad as additional
insured endorsement form number CG 20 11 01 96 promulgated by the Insurance
Services Office.
(b) Property Insurance. Tenant shall at all times maintain in effect
with respect to any Alterations and Tenants Trade Fixtures and personal property,
commercial property insurance providing coverage, on an all risk or special
form basis, in an amount equal to at least 90% of the full replacement cost of
the covered property. Tenant may carry such insurance under a blanket policy,
provided that such policy provides coverage equivalent to a separate policy.
During the Term, the proceeds from any such policies of insurance shall be used
for the repair or replacement of the Alterations, Trade Fixtures and personal
property so insured. Landlord shall be
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provided coverage under such insurance to the extent of its insurable interest and, if requested by
Landlord, both Landlord and Tenant shall sign all documents reasonably necessary or proper in
connection with the settlement of any claim or loss under such insurance. Landlord will have no
obligation to carry insurance on any Alterations or on Tenants Trade Fixtures or personal
property.
(c) Requirements For All Policies. Each policy of insurance required
under this Section 11.1 shall: (i) be in a form, and written by an insurer,
reasonably acceptable to Landlord, (ii) be maintained at Tenants sole cost and
expense, and (iii) require at least thirty (30) days written notice to Landlord
prior to any cancellation, nonrenewal or modification of insurance coverage.
Insurance companies issuing such policies shall have rating classifications of A-
or better and financial size category ratings of VII or better according to the
latest edition of the A.M. Best Key Rating Guide. All insurance companies issuing
such policies shall be admitted carriers licensed to do business in the state where
the Property is located. Any deductible amount under such insurance shall not
exceed $5,000. Tenant shall provide to Landlord, upon request, evidence that the
insurance required to be carried by Tenant pursuant to this Section, including any
endorsement effecting the additional insured status, is in full force and effect
and that premiums therefor have been paid.
(d) Updating Coverage. Tenant shall increase the amounts of insurance
as required by any Mortgagee, and, not more frequently than once every three (3)
years, as recommended by Landlords insurance broker, if, in the opinion of either
of them, the amount of insurance then required under this Lease is not adequate.
Any limits set forth in this Lease on the amount or type of coverage required by
Tenants insurance shall not limit the liability of Tenant under this Lease.
(e) Certificates of Insurance. Prior to occupancy of the Premises by
Tenant, and not less than thirty (30) days prior to expiration of any policy
thereafter, Tenant shall furnish to Landlord a certificate of insurance reflecting
that the insurance required by this Section is in force, accompanied by an
endorsement showing the required additional insureds satisfactory to Landlord in
substance and form. Notwithstanding the requirements of this paragraph, Tenant
shall at Landlords request provide to Landlord a certified copy of each insurance
policy required to be in force at any time pursuant to the requirements of this
Lease or its Exhibits after the commencement of each policy year.
11.2 Landlords Insurance. During the Term, to the extent such cover ages are
available at a commercially reasonable cost, Landlord shall maintain in effect insurance
on the Building with responsible insurers, on an all risk or special form basis,
insuring the Building and the Tenant Improvements in an amount equal to at least 90% of
the replacement cost thereof, excluding land, foundations, footings and underground
installations. Landlord may, but shall not be obligated to, carry insurance against
additional perils and/or in greater amounts.
11.3 Mutual Waiver of Right of Recovery & Waiver of Subrogation. Landlord and
Tenant each hereby waive any right of recovery against each other and the partners,
managers, members, shareholders, officers, directors and authorized representatives of
each other for any loss
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|
|
or damage that is covered by any policy of property insurance maintained by either party
(or required by this Lease to be maintained) with respect to the Premises or the Property or any
operation therein, regardless of cause, including negligence (active or passive) of the party
benefiting from the waiver. If any such policy of insurance relating to this Lease or to the
Premises or the Property does not permit the foregoing waiver or if the coverage under any such
policy would be invalidated as a result of such waiver, the party maintaining such policy shall
obtain from the insurer under such policy a waiver of all right of recovery by way of subrogation
against either party in connection with any claim, loss or damage covered by such policy. |
12. DAMAGE OR DESTRUCTION.
12.1 Landlords Duty to Repair.
(a) If all or a substantial part of the Premises are rendered untenantable or
inaccessible by damage to all or any part of the Property from fire or other
casualty then, unless either party is entitled to and elects to terminate this
Lease pursuant to Sections 12.2 Landlords Right to Terminate and 12.3
Tenants Right to Terminate, Landlord shall, at its expense, use reasonable
efforts to repair and restore the Premises and/or the Property, as the case may
be, to substantially their former condition to the extent permitted by then
applicable Laws; provided, however, that in no event shall Landlord have any
obligation for repair or restoration beyond the extent of insurance proceeds
received by Landlord for such repair or restoration, or for any of Tenants
personal property, Trade Fixtures or Alterations.
(b) If Landlord is required or elects to repair damage to the Premises and/or
the Property, this Lease shall continue in effect, but Tenants Base Rent and
Additional Rent shall be abated with regard to any portion of the Premises that
Tenant is prevented from using by reason of such damage or its repair from the
date of the casualty until substantial completion of Landlords repair of the
affected portion of the Premises as required under this Lease. In no event shall
Landlord be liable to Tenant by reason of any injury to or interference with
Tenants business or property arising from fire or other casualty or by reason of
any repairs to any part of the Property necessitated by such casualty.
12.2 Landlords Right to Terminate. Landlord may elect to terminate this
Lease following damage by fire or other casualty under the following circumstances:
(a) If, in the reasonable judgment of Landlord, the Premises and the Property
cannot be substantially repaired and restored under applicable Laws within one (1)
year from the date of the casualty;
(b) If, in the reasonable judgment of Landlord, adequate proceeds are not,
for any reason, made available to Landlord from Landlords insurance policies
(and/or from Landlords funds made available for such purpose, at Landlords sole
option) to make the required repairs;
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(c) If the Building is damaged or destroyed to the extent that, in the
reasonable judgment of Landlord, the cost to repair and restore the Building would
exceed twenty-five percent (25%) of the full replacement cost of the Building,
whether or not the Premises are at all damaged or destroyed; or
(d) If the fire or other casualty occurs during the last year of the Term.
If any of the circumstances described in subparagraphs (a), (b), (c) or (d) of this Section 12.2
occur or arise, Landlord shall give Tenant notice within one hundred and twenty (120) days after
the date of the casualty, specifying whether Landlord elects to terminate this Lease as provided
above and, if not, Landlords estimate of the time required to complete Landlords repair
obligations under this Lease.
12.3 Tenants Right to Terminate. If all or a substantial part of the Premises
are rendered untenantable or inaccessible by damage to all or any part of the Property from
fire or other casualty, and Landlord does not elect to terminate as provided above, then
Tenant may elect to terminate this Lease if Landlords estimate of the time required to
complete Landlords repair obligations under this Lease is greater than one (1) year, in
which event Tenant may elect to terminate this Lease by giving Landlord notice of such
election to terminate within thirty (30) days after Landlords notice to Tenant pursuant to
Section 12.2 Landlords Right to Terminate.
12.4 Waiver. Landlord and Tenant each hereby waive the provisions of
California Civil Code Sections 1932(2), 1933(4) and any other applicable existing or
future Law permitting the termination of a lease agreement in the event of damage or
destruction under any circumstances other than as provided in Sections 12.2 Landlords
Right to Terminate and 12.3 Tenants Right to Terminate.
13. CONDEMNATION.
13.1 Definitions.
(a) Award shall mean all compensation, sums, or anything of value awarded,
paid or received on a total or partial Condemnation.
(b) Condemnation shall mean (i) a permanent taking (or a temporary taking
for a period extending beyond the end of the Term) pursuant to the exercise of the
power of condemnation or eminent domain by any public or quasi-public authority,
private corporation or individual having such power (Condemnor), whether by
legal proceedings or otherwise, or (ii) a voluntary sale or transfer by Landlord
to any such authority, either under threat of condemnation or while legal
proceedings for condemnation are pending.
(c) Date of Condemnation shall mean the earlier of the date that title to
the property taken is vested in the Condemnor or the date the Condemnor has the
right to possession of the property being condemned.
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13.2 Effect on Lease.
(a) If the Premises are totally taken by Condemnation, this Lease shall
terminate as of the Date of Condemnation. If a portion but not all of the Premises
is taken by Condemnation, this Lease shall remain in effect; provided, however,
that if the portion of the Premises remaining after the Condemnation will be
unsuitable for Tenants continued use, then upon notice to Landlord within thirty
(30) days after Landlord notifies Tenant of the Condemnation, Tenant may terminate
this Lease effective as of the Date of Condemnation.
(b) If twenty-five percent (25%) or more of the Project or of the parcel(s) of
land on which the Building is situated or of the Parking Facility or of the floor
area in the Building is taken by Condemnation, or if as a result of any
Condemnation the Building is no longer reasonably suitable for use as an office
building, whether or not any portion of the Premises is taken, Landlord may elect
to terminate this Lease, effective as of the Date of Condemnation, by notice to
Tenant within thirty (30) days after the Date of Condemnation.
(c) If all or a portion of the Premises is temporarily taken by a Condemnor
for a period not extending beyond the end of the Term, this Lease shall remain in
full force and effect.
13.3 Restoration. If this Lease is not terminated as provided in Section 13.2
Effect on Lease, Landlord, at its expense, shall diligently proceed to repair and restore
the Premises to substantially its former condition (to the extent permitted by then
applicable Laws) and/or repair and restore the Building to an architecturally complete
office building; provided, however, that Landlords obligations to so repair and restore
shall be limited to the amount of any Award received by Landlord and not required to be
paid to any Mortgagee (as defined in Section 20.2 below). In no event shall Landlord have
any obligation to repair or replace any improvements in the Premises beyond the amount of
any Award received by Landlord for such repair or to repair or replace any of Tenants
personal property, Trade Fixtures, or Alterations.
13.4 Abatement and Reduction of Rent. If any portion of the Premises is taken
in a Condemnation or is rendered permanently untenantable by repairs necessitated by the
Condemnation, and this Lease is not terminated, the Base Rent and Additional Rent payable
under this Lease shall be proportionally reduced as of the Date of Condemnation based upon
the percentage of rentable square feet in the Premises so taken or rendered permanently
untenantable. In addition, if this Lease remains in effect following a Condemnation and
Landlord proceeds to repair and restore the Premises, the Base Rent and Additional Rent
payable under this Lease shall be abated during the period of such repair or restoration
to the extent such repairs prevent Tenants use of the Premises.
13.5 Awards. Any Award made shall be paid to Landlord, and Tenant hereby
assigns to Landlord, and waives all interest in or claim to, any such Award, including any
claim for the value of the unexpired Term; provided, however, that Tenant shall be
entitled to receive, or to prosecute a separate claim for, an Award for a temporary taking
of the Premises or a portion thereof by a
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Condemnor where this Lease is not terminated (to the extent such Award relates to the unexpired
Term), or an Award or portion thereof separately designated for relocation expenses or the
interruption of or damage to Tenants business or as compensation for Tenants personal property,
Trade Fixtures or Alterations.
13.6 Waiver. Landlord and Tenant each hereby waive the provisions of
California Code of Civil Procedure Section 1265.130 and any other applicable existing or
future Law allowing either party to petition for a termination of this Lease upon a partial
taking of the Premises and/or the Property.
14. ASSIGNMENT AND SUBLETTING.
14.1 Landlords Consent Required. Tenant shall not assign this Lease or any
interest therein, or sublet or license or permit the use or occupancy of the Premises or
any part thereof by or for the benefit of anyone other than Tenant, or in any other manner
transfer all or any part of Tenants interest under this Lease (each and all a Transfer),
without the prior written consent of Landlord, which consent (subject to the other
provisions of this Section 14) shall not be unreasonably withheld. If Tenant is a business
entity, any direct or indirect transfer of fifty percent (50%) or more of the ownership
interest of the entity (whether in a single transaction or in the aggregate through more
than one transaction) shall be deemed a Transfer. Notwithstanding any provision in this
Lease to the contrary, Tenant shall not mortgage, pledge, hypothecate or otherwise encumber
this Lease or all or any part of Tenants interest under this Lease.
14.2 Reasonable Consent.
(a) Prior to any proposed Transfer, Tenant shall submit in writing to
Landlord (i) the name and legal composition of the proposed assignee, subtenant,
user or other transferee (each a Proposed Transferee); (ii) the nature of the
business proposed to be carried on in the Premises; (iii) a current balance
sheet, income statements for the last two years, if such financial statements have
been previously prepared, and such other reasonable financial and other
information concerning the Proposed Transferee as Landlord may request; and (iv) a
copy of the proposed assignment, sublease or other agreement governing the
proposed Transfer. Within ten (10) Business Days after Landlord receives all such
information it shall notify Tenant whether it approves or disapproves such
Transfer or if it elects to proceed under Section 14.7 Landlords Right to
Space.
(b) Tenant acknowledges and agrees that, among other circumstances for which
Landlord could reasonably withhold consent to a proposed Transfer, it shall be
reasonable for Landlord to withhold consent where (i) the Proposed Transferee does
not intend itself to occupy the entire portion of the Premises assigned or sublet,
(ii) Landlord reasonably disapproves of the Proposed Transferees business
operating ability or history, reputation or creditworthiness or the character of
the business to be conducted by the Proposed Transferee at the Premises, (iii) the
Proposed Transferee is a governmental agency or unit or an existing tenant in the
Project, (iv) the proposed Transfer would violate any exclusive rights of any
tenants in the Project, (v) Landlord
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or Landlords agent has shown space in the Building to the Proposed Transferee or
submitted a written proposal in response to any inquiries from the Proposed Transferee or the
Proposed Transferees agent concerning availability of space in the Building, at any time within
the preceding four months, unless Landlord does not have space available in the Building to meet
the needs of the Proposed Transferee, or (vi) Landlord otherwise determines that the proposed
Transfer would have the effect of decreasing the value of the Building or increasing the expenses
associated with operating, maintaining and repairing the Property. In no event may Tenant publicly
offer or advertise all or any portion of the Premises for assignment or sublease at a rental less
than that then sought by Landlord for a direct lease (non-sublease) of comparable space in the
Project.
14.3 Excess Consideration. If Landlord consents to the Transfer, Landlord
shall be entitled to receive as Additional Rent hereunder, seventy-five percent (75%) of
all Sublease Profits (as defined below). Sublease Profits shall mean any consideration
paid by the Transferee for the assignment or sublease and, in the case of a sublease, the
excess of the rent and other consideration payable by the subtenant over the amount of Base
Rent and Additional Rent payable hereunder applicable to the subleased space, less any and
all direct, out-of-pocket expenses and cash concessions, including costs for necessary
Alterations and brokerage commission, paid by Tenant to procure the assignee or subtenant.
Tenant shall pay to Landlord as additional rent, within ten (10) days after receipt by
Tenant, any such excess consideration paid by any transferee (the Transferee) for the
Transfer provided any capital expenditures and brokerage commissions in connection with any
sublease shall be amortized over the term of the sublease.
14.4 No Release Of Tenant. No consent by Landlord to any Transfer shall
relieve Tenant of any obligation to be performed by Tenant under this Lease, whether
occurring before or after such consent, assignment, subletting or other Transfer. Each
Transferee shall be jointly and severally liable with Tenant (and Tenant shall be jointly
and severally liable with each Transferee) for the payment of rent (or, in the case of a
sublease, rent in the amount set forth in the sublease) and for the performance of all
other terms and provisions of this Lease. The consent by Landlord to any Transfer shall not
relieve Tenant or any such Transferee from the obligation to obtain Landlords express
prior written consent to any subsequent Transfer by Tenant or any Transferee. The
acceptance of rent by Landlord from any other person (whether or not such person is an
occupant of the Premises) shall not be deemed to be a waiver by Landlord of any provision
of this Lease or to be a consent to any Transfer.
14.5 Expenses and Attorneys Fees. Tenant shall pay to Landlord on demand all
costs and expenses (including reasonable attorneys fees) incurred by Landlord in
connection with reviewing or consenting to any proposed Transfer (including any request
for consent to, or any waiver of Landlords rights in connection with, any security
interest in any of Tenants property at the Premises).
14.6 Effectiveness of Transfer. Prior to the date on which any permitted
Transfer (whether or not requiring Landlords consent) becomes effective, Tenant shall
deliver to Landlord a counterpart of the fully executed Transfer document and Landlords
standard form of Consent to Assignment or Consent to Sublease executed by Tenant and the
Transferee in which each of Tenant
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and the Transferee confirms its obligations pursuant to this Lease. Failure or refusal of
a Transferee to execute any such instrument shall not release or discharge the Transferee from
liability as provided herein. The voluntary, involuntary or other surrender of this Lease by
Tenant, or a mutual cancellation by Landlord and Tenant, shall not work a merger, and any such
surrender or cancellation shall, at the option of Landlord, either terminate all or any existing
subleases or operate as an assignment to Landlord of any or all of such subleases.
14.7 Landlords Right to Space. Notwithstanding any of the above provisions of
this Section to the contrary, if Tenant notifies Landlord that it desires to enter into a
Transfer, Landlord, in lieu of consenting to such Transfer, may elect (x) in the case of an
assignment or a sublease of the entire Premises, to terminate this Lease, or (y) in the
case of a sublease which cumulatively results in the Tenant subleasing (whether to one or
more entities) contiguous square footage equaling more than thirty percent (30%) of the
entire Premises for a term of more than twenty-four (24) months and which expires less than
twelve (12) months prior to the scheduled Expiration Date of this Lease, to terminate this
Lease as it relates to the space proposed to be subleased by Tenant. In such event, this
Lease will terminate (or the space proposed to be subleased will be removed from the
Premises subject to this Lease and the Base Rent and Tenants Share under this Lease shall
be proportionately reduced) on the earlier of sixty (60) days after the date of Landlords
notice to Tenant making the election set forth in this Section 14.7 or the date the
Transfer was proposed to be effective, and Landlord may lease such space to any party,
including the prospective Transferee identified by Tenant.
14.8 Assignment of Sublease Rents. Tenant hereby absolutely and irrevocably
assigns to Landlord any and all rights to receive rent and other consideration from any
sublease and agrees that Landlord, as assignee or as attorney-in-fact for Tenant for
purposes hereof, or a receiver for Tenant appointed on Landlords application may (but
shall not be obligated to) collect such rents and other consideration and apply the same
toward Tenants obligations to Landlord under this Lease; provided, however, that Landlord
grants to Tenant at all times prior to occurrence of any breach or default by Tenant a
revocable license to collect such rents (which license shall automatically and without
notice be and be deemed to have been revoked and terminated immediately upon any Event of
Default).
14.9 Permitted Transfers. Notwithstanding any provision contained in the
Section 14 to the contrary, Tenant shall have the right, without the consent of Landlord,
upon ten (10) days prior written notice to Landlord, to engage in any of the following
transactions (each a Permitted Transfer) and to Transfer the Lease to any of the
following entities (each, a Permitted Transferee): (i) a successor corporation related
to Tenant by merger, consolidation, or non-bankruptcy reorganization, (ii) a purchaser of
at least ninety percent (90%) of Tenants assets as an ongoing concern, or (iii) an
Affiliate of Tenant. The provisions of Sections 14.2, 14.3 and 14.7 shall not apply with respect to a Permitted Transfer, but any transfer pursuant to the
provisions of this Section 14.9 shall be subject to all other terms and conditions of this Lease,
including the provisions of this Section 14.9. Tenant shall remain liable under this Lease after
any such transfer. For the purposes of this Article 14, the term Affiliate of Tenant shall mean
and refer to any entity controlling, controlled by or under common control with Tenant or Tenants
parent, as the
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case may be. Control as used herein shall mean the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of such controlled entity;
and the ownership, or possession of the right to vote, in the ordinary direction of its affairs, of
at least fifty percent (50%) of the voting interest in any entity. Notwithstanding Tenants right
to make a Permitted Transfer pursuant to the provisions of this Section 14.9, Tenant may not,
through use of its rights under this Article 14 in two or more transactions (whether separate
transactions or steps or phases of a single transaction), at one time or over time, whether by
first assigning this Lease to a subsidiary and then merging the subsidiary into another entity or
selling the stock of the subsidiary or by other means, assign or sublease the Premises, or transfer
control of Tenant, to any person or entity which is not a subsidiary, affiliate or controlling
corporation of the original Tenant, as then constituted, existing prior to the commencement of such
transactions, without first obtaining Landlords prior written consent pursuant to the provisions
of Section 14.2. For purposes of this Lease, a sale of Tenants capital stock through any public
exchange, or through any public offering shall not be deemed an assignment, subletting or other
transfer of this Lease or the Premises requiring Landlords consent.
15. DEFAULT AND REMEDIES.
15.1 Events of Default. The occurrence of any of the following shall constitute
an Event of Default by Tenant:
(a) Tenant fails to make any payment of rent when due, or any amount required
to replenish the security deposit as provided in Section 4 above, if payment in
full is not received by Landlord within three (3) days after written notice that
it is due.
(b) Tenant abandons the Premises.
(c) Tenant fails timely to deliver any subordination document, estoppel
certificate or financial statement requested by Landlord within the applicable
time period specified in Sections 20 Encumbrances and 21 Estoppel
Certificates and Financial Statements below.
(d) Tenant violates the restrictions on Transfer set forth in Section 14 Assignment and Subletting.
(e) Tenant ceases doing business as a going concern; makes an assignment for
the benefit of creditors; is adjudicated an insolvent, files a petition (or files
an answer admitting the material allegations of a petition) seeking relief under
any state or federal bankruptcy or other statute, law or regulation affecting
creditors rights; all or substantially all of Tenants assets are subject to
judicial seizure or attachment and are not released within 30 days, or Tenant
consents to or acquiesces in the appointment of a trustee, receiver or liquidator
for Tenant or for all or any substantial part of Tenants assets.
(f) Tenant fails, within ninety (90) days after the commencement of any
proceedings against Tenant seeking relief under any state or federal bankruptcy or
other statute, law
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or regulation affecting creditors rights, to have such proceedings dismissed, or Tenant fails,
within ninety (90) days after an appointment, without Tenants consent or acquiescence, of any
trustee, receiver or liquidator for Tenant or for all or any substantial part of Tenants assets,
to have such appointment vacated.
(g) Tenant fails to perform or comply with any provision of this Lease other
than those described in (a) through (f) above, and does not fully cure such failure
within fifteen (15) days after notice to Tenant or, if such failure cannot be cured
within such fifteen (15)-day period, Tenant fails within such fifteen (15)-day
period to commence, and thereafter diligently proceed with, all actions necessary
to cure such failure as soon as reasonably possible but in all events within ninety
(90) days of such notice; provided, however, that if Landlord in Landlords
reasonable judgment determines that such failure cannot or will not be cured by
Tenant within such ninety (90) days, then such failure shall constitute an Event of
Default immediately upon such notice to Tenant.
15.2 Remedies. Upon the occurrence of an Event of Default, Landlord shall have
the following remedies, which shall not be exclusive but shall be cumulative and shall be
in addition to any other remedies now or hereafter allowed by law:
(a) Landlord may terminate Tenants right to possession of the Premises at any
time by written notice to Tenant. Tenant expressly acknowledges that in the absence
of such written notice from Landlord, no other act of Landlord, including re-entry
into the Premises, efforts to relet the Premises, reletting of the Premises for
Tenants account, storage of Tenants personal property and Trade Fixtures,
acceptance of keys to the Premises from Tenant or exercise of any other rights and
remedies under this Section, shall constitute an acceptance of Tenants surrender
of the Premises or constitute a termination of this Lease or of Tenants right to
possession of the Premises. Upon such termination in writing of Tenants right to
possession of the Premises, as herein provided, this Lease shall terminate and
Landlord shall be entitled to recover damages from Tenant as provided in California
Civil Code Section 1951.2 and any other applicable existing or future Law
providing for recovery of damages for such breach, including the worth at the time
of award of the amount by which the rent which would be payable by Tenant hereunder
for the remainder of the Term after the date of the award of damages, including
Additional Rent as reasonably estimated by Landlord, exceeds the amount of such
rental loss as Tenant proves could have been reasonably avoided, discounted at the
discount rate published by the Federal Reserve Bank of San Francisco for member
banks at the time of the award plus one percent (1%).
(b) Landlord shall have the remedy described in California Civil Code Section
1951.4 (Landlord may continue this Lease in effect after Tenants breach and
abandonment and recover rent as it becomes due, if Tenant has the right to sublet
or assign, subject only to reasonable limitations).
(c) Landlord may cure the Event of Default at Tenants expense. If Landlord
pays any sum or incurs any expense in curing the Event of
Default, Tenant shall
reimburse
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Landlord upon demand for the amount of such payment or expense with interest at the Interest Rate
from the date the sum is paid or the expense is incurred until Landlord is reimbursed by Tenant.
(d) Landlord may remove all Tenants property from the Premises, and such
property may be stored by Landlord in a public warehouse or elsewhere at the sole
cost and for the account of Tenant. If Landlord does not elect to store any or all
of Tenants property left in the Premises, Landlord may consider such property to
be abandoned by Tenant, and Landlord may thereupon dispose of such property in any
manner deemed appropriate by Landlord. Any proceeds realized by Landlord on the
disposal of any such property shall be applied first to offset all expenses of
storage and sale, then credited against Tenants outstanding obligations to
Landlord under this Lease, and any balance remaining after satisfaction of all
obligations of Tenant under this Lease shall be delivered to Tenant.
16. LATE CHARGE AND INTEREST.
16.1 Late Charge. If any payment of rent is not received by Landlord when due,
Tenant shall pay to Landlord on demand as a late charge an additional amount equal to four
percent (4%) of the overdue payment. A late charge shall not be imposed more than once on
any particular installment not paid when due, but imposition of a late charge on any
payment not made when due does not eliminate or supersede late charges imposed on other
(prior) payments not made when due or preclude imposition of a late charge on other
installments or payments not made when due.
16.2 Interest. In addition to the late charges referred to above, which are
intended to defray Landlords costs resulting from late payments, any payment from Tenant
to Landlord not paid when due shall at Landlords option bear interest from the date due
until paid to Landlord by Tenant at the rate of fifteen percent (15%) per annum or the
maximum lawful rate that Landlord may charge to Tenant under applicable laws, whichever is
less (the Interest Rate). Acceptance of any late charge and/or interest shall not
constitute a waiver of Tenants default with respect to the overdue sum or prevent
Landlord from exercising any of its other rights and remedies under this Lease.
17. WAIVER. No provisions of this Lease shall be deemed waived by Landlord unless such waiver
is in a writing signed by Landlord. The waiver by Landlord of any breach of any provision of this
Lease shall not be deemed a waiver of such provision or of any subsequent breach of the same or any
other provision of this Lease. No delay or omission in the exercise of any right or remedy of
Landlord upon any default by Tenant shall impair such right or remedy or be construed as a waiver.
Landlords acceptance of any payments of rent due under this Lease shall not be deemed a waiver of
any default by Tenant under this Lease (including Tenants recurrent failure to timely pay rent)
other than Tenants nonpayment of the accepted sums, and no endorsement or statement on any check
or payment or in any letter or document accompanying any check or payment shall be deemed an accord
and satisfaction. Landlords consent to or approval of any act by Tenant requiring Landlords
consent or approval shall not be deemed to waive or render unnecessary Landlords consent to or
approval of any subsequent act by Tenant.
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18. ENTRY, INSPECTION AND CLOSURE. Except (x) when requested by Tenant, (y) for ongoing
services supplied by Landlord (such as janitorial services) where Landlord is not required to give
any notice, and (z) in the event of an emergency, Landlord and its authorized representatives may
enter the Premises at all reasonable times upon twenty-four (24) hours prior notice to Tenant,
which notice may be oral or written, to: (a) determine whether the Premises are in good condition,
(b) determine whether Tenant is complying with its obligations under this Lease, (c) perform any
maintenance or repair of the Premises or the Building that Landlord has the right or obligation to
perform, (d) install or repair improvements for other tenants where access to the Premises is
required for such installation or repair, (e) serve, post or keep posted any notices required or
allowed under the provisions of this Lease, (f) show the Premises to prospective brokers, agents,
buyers, transferees, or Mortgagees, or (g) do any other act or thing necessary for the safety or
preservation of the Premises or the Building. In addition, Landlord shall have the right, without
notice to Tenant, to show to prospective tenants (x) at any time during the Term, that portion of
the Premises from which Tenant may be relocated pursuant to the provisions of Section 32 below, and
(2) the Premises during the last twelve (12) months of the Term. When reasonably necessary Landlord
may temporarily close entrances, doors, corridors, elevators or other facilities in the Building
without liability to Tenant by reason of such closure. Landlord shall conduct its activities under
this Section in a manner that will minimize inconvenience to Tenant without incurring additional
expense to Landlord. In no event shall Tenant be entitled to an abatement of rent on account of any
entry by Landlord, and Landlord shall not be liable in any manner for any inconvenience, loss of
business or other damage to Tenant or other persons arising out of Landlords entry on the Premises
in accordance with this Section. No action by Landlord pursuant to this paragraph shall constitute
an eviction of Tenant, constructive or otherwise, entitle Tenant to an abatement of rent or to
terminate this Lease or otherwise release Tenant from any of Tenants obligations under this Lease.
19. SURRENDER AND HOLDING OVER.
19.1 Surrender. Upon the expiration or termination of this Lease, Tenant
shall surrender the Premises and all Tenant Improvements and Alterations to Landlord
broom-clean and in their original condition, except for reasonable wear and tear, damage
from casualty or condemnation and any changes resulting from approved Alterations;
provided, however, that prior to the expiration or termination of this Lease Tenant shall
remove all telephone and other cabling installed in the Building by Tenant and remove from
the Premises all Tenants personal property and any Trade Fixtures and all Alterations
that Landlord has elected to require Tenant to remove as provided in Section 6.1 Tenant
Improvements & Alterations, and repair any damage caused by such removal. If such removal
is not completed before the expiration or termination of the Term, Landlord shall have the
right (but no obligation) to remove the same, and Tenant shall pay Landlord on demand for
all costs of removal and storage thereof and for the rental value of the Premises for the
period from the end of the Term through the end of the time reasonably required for such
removal. Landlord shall also have the right to retain or dispose of all or any portion of
such property if Tenant does not pay all such costs and retrieve the property within ten
(10) days after notice from Landlord (in which event title to all such property described
in Landlords notice shall be transferred to and vest in Landlord). Tenant waives all
Claims against Landlord for any damage or
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loss to Tenant resulting from Landlords removal, storage, retention, or disposition of any
such property. Upon expiration or termination of this Lease or of Tenants possession, whichever is
earliest, Tenant shall surrender all keys to the Premises or any other part of the Building and
shall deliver to Landlord all keys for or make known to Landlord the combination of locks on all
safes, cabinets and vaults that may be located in the Premises. Tenants obligations under this
Section shall survive the expiration or termination of this Lease.
19.2 Holding Over. If Tenant (directly or through any Transferee or other
successor-in-interest of Tenant) remains in possession of the Premises after the expiration
or termination of this Lease, Tenants continued possession shall be on the basis of a
tenancy at the sufferance of Landlord. No act or omission by Landlord, other than its
specific written consent, shall constitute permission for Tenant to continue in possession
of the Premises, and if such consent is given or declared to have been given by a court
judgment, Landlord may terminate Tenants holdover tenancy at any time upon seven (7) days
written notice. In such event, Tenant shall continue to comply with or perform all the
terms and obligations of Tenant under this Lease, except that the monthly Base Rent during
Tenants holding over shall be twice the Base Rent payable in the last full month prior to
the termination hereof. Acceptance by Landlord of rent after such termination shall not
constitute a renewal or extension of this Lease; and nothing contained in this provision
shall be deemed to waive Landlords right of re-entry or any other right hereunder or at
law. Tenant shall indemnify, defend and hold Landlord harmless from and against all Claims
(the Holdover Claims) arising or resulting directly or indirectly from Tenants failure
to timely surrender the Premises, including (i) any rent payable by or any loss, cost, or
damages claimed by any prospective tenant of the Premises, and (ii) Landlords damages as a
result of such prospective tenant rescinding or refusing to enter into the prospective
lease of the Premises by reason of such failure to timely surrender the Premises; provided,
however, if at least thirty (30) days prior to the expiration of the Term, Tenant gives
Landlord written notice that Tenant anticipates it will hold over in the Premises after the
expiration of the Term, then Tenant shall have the right to hold over in the Premises for
up to thirty (30) days at the holdover rate contained above in this paragraph without
indemnifying Landlord against the Holdover Claims, unless Landlord gives Tenant written
notice at least fifteen (15) days prior to the expiration of the Term that Landlord has
leased the Premises to a third party (and Landlord has in fact entered into a written
agreement with a third party leasing the Premises to such third party), in which event
Tenant shall indemnify defend and hold Landlord harmless from and against the Holdover
Claims, as first provided in this sentence.
20. ENCUMBRANCES.
20.1 Subordination. This Lease is expressly made subject and subordinate to
any mortgage, deed of trust, ground lease, underlying lease or like encumbrance affecting
any part of the Property or any interest of Landlord therein which is now existing or
hereafter executed or recorded (Encumbrance); provided, however, that such subordination
shall only be effective, as to future Encumbrances, if the holder of the Encumbrance agrees
that this Lease shall survive the termination of the Encumbrance by lapse of time,
foreclosure or otherwise so long as Tenant is not in default under this Lease. Provided the
conditions of the preceding sentence are satisfied, Tenant shall execute and deliver to
Landlord, within ten (10) Business Days after written request therefor
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by Landlord and in a form reasonably requested by Landlord, any additional documents
evidencing the subordination of this Lease with respect to any such Encumbrance and the
nondisturbance agreement of the holder of any such Encumbrance. If the interest of Landlord in the
Property is transferred pursuant to or in lieu of proceedings for enforcement of any Encumbrance
(including, without limitation, any judicial foreclosure or foreclosure by a power of sale in a
deed of trust), Tenant shall, at the request of the new owner, immediately attorn to, and become
the tenant of, the new owner, and this Lease shall continue in full force and effect as a direct
lease between the transferee and Tenant on the terms and conditions set forth in this Lease and, at
such new owners request, shall execute a new lease confirming the lease terms of this Lease. In
furtherance of the foregoing, any such successor to the Landlord shall not be liable for any
offsets, defenses, claims, counterclaims, liabilities or obligations of the landlord under the
Lease accruing prior to the date that such new owner exercises its rights pursuant to the preceding
sentence.
20.2 Mortgagee Protection. Tenant agrees to give any holder of any Encumbrance
covering any part of the Property (Mortgagee), by registered mail, a copy of any notice
of default served upon Landlord, provided that prior to such notice Tenant has been
notified in writing (by way of notice of assignment of rents and leases, or otherwise) of
the address of such Mortgagee. If Landlord shall have failed to cure such default within
thirty (30) days from the effective date of such notice of default, then the Mortgagee
shall have an additional thirty (30) days within which to cure such default or if such
default cannot be cured within that time, then such additional time as may be necessary to
cure such default (including the time necessary to foreclose or otherwise terminate its
Encumbrance, if necessary to effect such cure), and this Lease shall not be terminated so
long as such remedies are being diligently pursued.
21. ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS.
21.1 Estoppel Certificates. Within ten (10) Business Days after written
request therefor, Tenant shall execute and deliver to Landlord, in a form provided by or
satisfactory to Landlord, a certificate stating that this Lease is in full force and
effect, describing any amendments or modifications hereto, acknowledging that this Lease is
subordinate or prior, as the case may be, to any Encumbrance and stating any other
information Landlord may reasonably request, including the Term, the monthly Base Rent, the
date to which Rent has been paid, the amount of any security deposit or prepaid rent,
whether either party hereto is in default under the terms of the Lease, and whether
Landlord has completed its construction obligations hereunder (if any). Tenant irrevocably
constitutes, appoints and authorizes Landlord as Tenants special attorney-in-fact for such
purpose to complete, execute and deliver such certificate if Tenant fails timely to execute
and deliver such certificate as provided above. Any person or entity purchasing, acquiring
an interest in or extending financing with respect to the Property shall be entitled to
rely upon any such certificate. If Tenant fails to deliver such certificate within ten (10)
days after Landlords second written request therefor, Tenant shall be liable to Landlord
for any damages incurred by Landlord including any profits or other benefits from any
financing of the Property or any interest therein which are lost or made unavailable as a
result, directly or indirectly, of Tenants failure or refusal to timely execute or deliver
such estoppel certificate.
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21.2 Financial Statements. Within ten (10) Business Days after written request
therefor, but not more than once a year, Tenant shall deliver to Landlord a copy of the
financial statements (including at least a year end balance sheet and a statement of profit
and loss) of Tenant (and of each guarantor of Tenants obligations under this Lease) for
each of the three most recently completed years, prepared in accordance with generally
accepted accounting principles (and, if such is Tenants normal practice, audited by an
independent certified public accountant), all then, available subsequent interim statements,
and such other financial information as may reasonably be requested by Landlord or required
by any Mortgagee.
22. NOTICES. Any notice, demand, request, consent or approval that either party desires or is
required to give to the other party under this Lease shall be in writing and shall be served
personally, delivered by messenger or courier service, or sent by U.S. certified mail, return
receipt requested, postage prepaid, addressed to the other party at the partys address for notices
set forth in the Basic Lease Information. Any notice required pursuant to any Laws may be
incorporated into, given concurrently with or given separately from any notice required under this
Lease. Notices shall be deemed to have been given and be effective on the earlier of (a) receipt
(or refusal of delivery or receipt); or (b) one (1) day after acceptance by the independent service
for delivery, if sent by independent messenger or courier service, or three (3) days after mailing
if sent by mail in accordance with this Section. Either party may change its address for notices
hereunder, effective fifteen (15) days after notice to the other party complying with this Section.
If Tenant sublets the Premises, notices from Landlord shall be effective on the subtenant when
given to Tenant pursuant to this Section.
23. ATTORNEYS FEES. In the event of any dispute between Landlord and Tenant in any way
related to this Lease, and whether involving contract and/or tort claims, the non-prevailing party
shall pay to the prevailing party all reasonable attorneys fees and costs and expenses of any
type, without restriction by statute, court rule or otherwise, incurred by the prevailing party in
connection with any action or proceeding (including any appeal and the enforcement of any judgment
or award), whether or not the dispute is litigated or prosecuted to final judgment (collectively,
Fees). The prevailing party shall be determined based upon an assessment of which partys major
arguments or positions taken in the action or proceeding could fairly be said to have prevailed
(whether by compromise, settlement, abandonment by the other party of its claim or defense, final
decision, after any appeals, or otherwise) over the other partys major arguments or positions on
major disputed issues. Any Fees incurred in enforcing a judgment shall be recoverable separately
from any other amount included in the judgment and shall survive and not be merged in the judgment.
The Fees shall be deemed an actual pecuniary loss within the meaning of Bankruptcy Code Section
365(b)(l)(B), and notwithstanding the foregoing, all Fees incurred by either party in any
bankruptcy case filed by or against the other party, from and after the order for relief until this
Lease is rejected or assumed in such bankruptcy case, will be obligations of the debtor as that
phrase is used in Bankruptcy Code Section 365(d)(3).
24. QUIET POSSESSION. Subject to Tenants full and timely performance of all of Tenants
obligations under this Lease and subject to the terms of this Lease, including Section 20 -
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Encumbrances, Tenant shall have the quiet possession of the Premises throughout the Term as against
any persons or entities lawfully claiming by, through or under Landlord.
25. SECURITY MEASURES. Landlord may, but shall be under no obligation to, implement security
measures for the Property, such as the registration or search of all persons entering or
leaving the Building, requiring identification for access to the Building, evacuation of the
Building for cause, suspected cause, or for drill purposes, the issuance of magnetic pass
cards or keys for Building or elevator access and other actions that Landlord deems necessary
or appropriate to prevent any threat of property loss or damage, bodily injury or business
interruption; provided, however, that such measures shall be implemented in a way as not to
inconvenience tenants of the Building unreasonably. If Landlord uses an access card system,
Landlord may require Tenant to pay Landlord a deposit for each after-hours Building access
card issued to Tenant, in the amount specified in the Basic Lease Information. Tenant shall be
responsible for any loss, theft or breakage of any such cards, which must be returned by
Tenant to Landlord upon expiration or earlier termination of the Lease. Landlord may retain
the deposit for any card not so retuned. Landlord shall at all times have the right to change,
alter or reduce any such security services or measures. Tenant shall cooperate and comply
with, and cause Tenants Representatives and Visitors to cooperate and comply with, such
security measures. Landlord, its agents and employees shall have no liability to Tenant for
the implementation or exercise of, or the failure to implement or exercise, any such security
measures or for any resulting disturbance of Tenants use or enjoyment of the Premises.
26. FORCE MAJEURE. If Landlord is delayed, interrupted or prevented from performing any of its
obligations under this Lease, including its obligations under the Construction Rider (if any),
and such delay, interruption or prevention is due to fire, act of God, governmental act or
failure to act, labor dispute, unavailability of materials or any cause outside the reasonable
control of Landlord, then the time for performance of the affected obligations of Landlord
shall be extended for a period equivalent to the period of such delay, interruption or
prevention.
27. RULES AND REGULATIONS. Tenant shall be bound by and shall comply with the rules and
regulations attached to and made a part of this Lease as Exhibit C to the extent those
rules and regulations are not in conflict with the terms of this Lease, as well as any
reasonable rules and regulations hereafter adopted by Landlord for all tenants of the
Building, upon notice to Tenant thereof (collectively, the Building Rules). Landlord shall
not be responsible to Tenant or to any other person for any violation of, or failure to
observe, the Building Rules by any other tenant or other person.
28. LANDLORDS LIABILITY. The term Landlord, as used in this Lease, shall mean only the
owner or owners of the Building at the time in question. In the event of any conveyance of title to
the Building, then from and after the date of such conveyance, the transferor Landlord shall be
relieved of all liability with respect to Landlords obligations to be performed under this Lease
after the date of such conveyance. Notwithstanding any other term or provision of this Lease, the
liability of Landlord for its obligations under this Lease is limited solely to Landlords interest
in the Building as the same may from time to time be encumbered, and no personal liability shall at
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any time be asserted or enforceable against any other assets of Landlord or against Landlords
partners or members or its or their respective partners, shareholders, members, directors, officers
or managers on account of any of Landlords obligations or actions under this Lease.
29. CONSENTS AND APPROVALS.
29.1 Determination in Good Faith. Wherever the consent, approval, judgment or
determination of Landlord is required or permitted under this Lease, Landlord may
exercise its good faith business judgment in granting or withholding such consent or
approval or in making such judgment or determination without reference to any extrinsic
standard of reasonableness, unless the specific provision contained in this Lease providing
for such consent, approval, judgment or determination specifies that Landlords consent or
approval is not to be unreasonably withheld, or that such judgment or determination is to
be reasonable, or otherwise specifies the standards under which Landlord may withhold its
consent. If it is determined that Landlord failed to give its consent where it was required
to do so under this Lease, Tenant shall be entitled to injunctive relief but shall not to
be entitled to monetary damages or to terminate this Lease for such failure.
29.2 No Liability Imposed on Landlord. The review and/or approval by Landlord
of any item or matter to be reviewed or approved by Landlord under the terms of this Lease
or any Exhibits or Addenda hereto shall not impose upon Landlord any liability for the
accuracy or sufficiency of any such item or matter or the quality or suitability of such
item for its intended use. Any such review or approval is for the sole purpose of
protecting Landlords interest in the Property, and no third parties, including Tenant or
the Representatives and Visitors of Tenant or any person or entity claiming by, through or
under Tenant, shall have any rights as a consequence thereof.
30. WAIVER OF RIGHT TO JURY TRIAL. Landlord and Tenant waive their respective rights to trial
by jury of any contract or tort claim, counterclaim, cross-complaint, or cause of action in any
action, proceeding, or hearing brought by either party against the other on any matter arising out
of or in any way connected with this Lease, the relationship of Landlord and Tenant, or Tenants
use or occupancy of the Premises, including any claim of injury or damage or the enforcement of any
remedy under any current or future law, statute, regulation, code, or ordinance.
31. BROKERS. Landlord shall pay the fee or commission of the broker or brokers identified in the
Basic Lease Information (the Broker) in accordance with Landlords separate written agreement
with the Broker, if any. Tenant warrants and represents to Landlord that in the negotiating or
making of this Lease neither Tenant nor anyone acting on Tenants behalf has dealt with any broker
or finder who might be entitled to a fee or commission for this Lease other than the Broker. Tenant
shall indemnify and hold Landlord harmless from any claim or claims, including costs, expenses and
attorneys fees incurred by Landlord asserted by any other broker or finder for a fee or commission
based upon any dealings with or statements made by Tenant or Tenants Representatives.
32. RELOCATION . [Intentionally deleted].
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33. ENTIRE AGREEMENT. This Lease, including the Exhibits and any Addenda attached hereto, and the
documents referred to herein, if any, constitute the entire agreement between Landlord and Tenant
with respect to the leasing of space by Tenant in the Building, and supersede all prior or
contemporaneous agreements, understandings, proposals and other representations by or between
Landlord and Tenant, whether written or oral, all of which are merged herein. Neither Landlord nor
Landlords agents have made any representations or warranties with respect to the Premises, the
Building, the Project or this Lease except as expressly set forth herein, and no rights, easements
or licenses shall be acquired by Tenant by implication or otherwise unless expressly set forth
herein. The submission of this Lease for examination does not constitute an option for the Premises
and this Lease shall become effective as a binding agreement only upon execution and delivery
thereof by Landlord to Tenant.
34. MISCELLANEOUS. This Lease may not be amended or modified except by a writing signed by
Landlord and Tenant. Subject to Section 14 Assignment and Subletting and Section 28
Landlords Liability, this Lease shall be binding on and shall inure to the benefit of the
parties and their respective successors, assigns and legal representatives. The determination that
any provisions hereof may be void, invalid, illegal or unenforceable shall not impair any other
provisions hereof and all such other provisions of this Lease shall remain in full force and
effect. The unenforceability, invalidity or illegality of any provision of this Lease under
particular circumstances shall not render unenforceable, invalid or illegal other provisions of
this Lease, or the same provisions under other circumstances. This Lease shall be construed and
interpreted in accordance with the laws (excluding conflict of laws principles) of the State in
which the Building is located. The provisions of this Lease shall be construed in accordance with
the fair meaning of the language used and shall not be strictly construed against either party,
even if such party drafted the provision in question. When required by the context of this Lease,
the singular includes the plural. Wherever the term including is used in this Lease, it shall be
interpreted as meaning including, but not limited to the matter or matters thereafter enumerated.
The captions contained in this Lease are for purposes of convenience only and are not to be used to
interpret or construe this Lease. If more than one person or entity is identified as Tenant
hereunder, the obligations of each and all of them under this Lease shall be joint and several.
Time is of the essence with respect to this Lease, except as to the conditions relating to the
delivery of possession of the Premises to Tenant. Neither Landlord nor Tenant shall record this
Lease.
35. AUTHORITY. If Tenant is a corporation, partnership, limited liability company or other form of
business entity, each of the persons executing this Lease on behalf of Tenant warrants and
represents that Tenant is a duly organized and validly existing entity, that Tenant has full right
and authority to enter into this Lease and that the persons signing on behalf of Tenant are
authorized to do so and have the power to bind Tenant to this Lease. Tenant shall provide Landlord
upon request with evidence reasonably satisfactory to Landlord confirming the foregoing
representations.
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IN WITNESS WHEREOF, Landlord and Tenant have entered into this Lease as of the date
first above written.
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TENANT: |
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LANDLORD: |
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IRONPLANET.COM,
a Delaware corporation |
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PARK PLAZA ASSOCIATES, LLC
a California limited liability company |
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By: |
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/s/ Jeff von Gillern |
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By: |
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CORNERSTONE HOLDINGS, LLC, a Delaware limited liability company, Its manager |
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Name:
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Jeff von Gillern |
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Title:
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VP |
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By: |
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/s/ Paul Schott |
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By: |
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/s/ Steve Elliott |
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Name:
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Paul Schott
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Name:
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Steve Elliott |
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Title:
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CFO (Acting)
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Title:
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Authorized Signatory |
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(For corporate entities, signature by TWO corporate officers is required: one by (x) the chairman
of the board, the president, or any vice president; and the other by (y) the
secretary, any assistant secretary, the chief financial officer, or any assistant treasurer.)
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EXHIBIT A-1
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT DATED AS OF APRIL 28, 2000
BETWEEN
PARK PLAZA ASSOCIATES, LLC, AS LANDLORD,
AND
IRONPLANET.COM, AS TENANT (LEASE)
THE SUITE 102 SPACE PORTION OF THE PREMISES
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4695 CHABOT DRIVE
First Floor |
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INITIALS: |
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Landlord
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/s/ |
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Tenant
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/s/ |
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Exhibit A-1, Page 1
EXHIBIT A-2
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF APRIL 28, 2000
BETWEEN
PARK PLAZA ASSOCIATES, LLC, AS LANDLORD,
AND
IRONPLANET.COM, AS TENANT (LEASE)
THE SUITE 202 SPACE PORTION OF THE PREMISES
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INITIALS: |
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Landlord
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/s/ |
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Tenant
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/s/ |
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Exhibit A-2, Page 1
EXHIBIT A-3
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF APRIL 28, 2000
BETWEEN
PARK PLAZA ASSOCIATES, LLC, AS LANDLORD,
AND
IRONPLANET.COM, AS TENANT (LEASE)
THE SUITE 101 SPACE PORTION OF THE PREMISES
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4695 CHABOT DRIVE
First Floor |
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INITIALS: |
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Landlord
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/s/ |
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Tenant
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Exhibit A-3, Page 1
EXHIBIT B
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF APRIL 28, 2000
BETWEEN
PARK PLAZA ASSOCIATES, LLC, AS LANDLORD,
AND
IRONPLANET.COM, AS TENANT (LEASE)
CONSTRUCTION RIDER
1. Tenant Improvements. Landlord shall with reasonable diligence through WCP
Properties, Inc., dba Commercial Interior Contractors (CIC) construct and install in the Premises
the improvements and fixtures provided for in this Construction Rider (Tenant Improvements).
Tenant recognizes and agrees that CIC is an affiliate of Landlord. CIC will complete the
construction on an open book basis and will competitively bid the major subcontracts to at least
three (3) subcontractors (except that for each of the following design/build systems Landlord may
select one [1] subcontractor to bid the subcontracts; heating, ventilating and air-conditioning;
electrical; plumbing; and life safety). With respect to each of the three (3) Suites, completion of
the Tenant Improvements may occur either prior to or subsequent to the applicable Rent Commencement
Date. Upon request by Landlord, Tenant shall designate in writing an individual authorized to act
as Tenants Representative with respect to all approvals, directions and authorizations pursuant to
this Construction Rider.
1.1. Plans. The Tenant
Improvements shall be constructed substantially as shown on the
conceptual space plan (Space Plan) for the
Premises prepared by J. Stavi who has been retained by Landlord as the space
planner for the Premises (Space Planner). Within
five (5) Business Days after execution and delivery of this Lease, Tenant shall meet with the Space Planner
to develop a Space Plan which is acceptable to Tenant. As soon as may be reasonably practicable
after Tenant meets with the Space Planner, the Space Planner will prepare and deliver a proposed
Space Plan to Landlord and Tenant. The Space Plan is subject to Landlords prior approval. Any
Space Plan approved by Landlord and Tenant is herein called the Approved Space Plan.
As soon as may be reasonably practicable after Landlord and Tenant have approved the Approved
Space Plan, the Space Planner will prepare and deliver to Tenant detailed plans and specifications
(Construction Documents) consistent with the Approved Space Plan, which Construction Documents
shall be sufficient to permit the construction of the Tenant Improvements by CIC. Landlord will
provide Tenant with a cost estimate for the work shown in the Construction Documents. Tenant shall
respond to the Construction Documents and cost
Exhibit B, Page 1
estimate within three (3) days after receipt thereof, specifying any changes or modifications
Tenant desires in the Construction Documents. The Space Planner will then revise the Construction
Documents and resubmit them to Tenant for its approval and Landlord will provide Tenant with a
revised cost estimate. Tenant shall approve or disapprove the same within three (3) days after
receipt. The revised Construction Documents and cost estimate, as approved by Tenant and Landlord,
are hereinafter referred to as the Final Construction Documents and Final Cost Estimate,
respectively.
Additional interior decorating services and advice on the furnishing and decoration of the
Premises, such as the selection of fixtures, furnishings or design of mill work, shall be provided
by Tenant at its expense, but shall be subject to the reasonable approval of Landlord.
1.2. Construction. Upon approval by Landlord and Tenant of the Final
Construction Documents and the Final Cost Estimate, Landlord shall proceed with
reasonable diligence to cause the Tenant Improvements to be Substantially
Completed on or about the Scheduled Rent Commencement Date for the respective Suite.
The Tenant Improvements shall be deemed to be Substantially Completed when they have
been completed in accordance with the Final Construction Documents except for finishing
details, minor omissions, decorations and mechanical adjustments of the type normally
found on an architectural punch list. (The definition of Substantially Completed
shall also define the terms Substantial Completion and Substantially Complete.)
Following Substantial Completion of the Tenant Improvements and before Tenant takes possession
of the applicable Suite (or as soon thereafter as may be reasonably practicable and in any event
within 30 days after Substantial Completion), Landlord and Tenant shall inspect the applicable
Suite and jointly prepare a punch list of agreed items of construction remaining to be completed.
Landlord shall complete the items set forth in the punch list as soon as reasonably possible.
Tenant shall cooperate with and accommodate Landlord and Landlords contractor in completing the
items on the punch list.
1.3. Cost of Tenant Improvements. Landlord shall contribute up to
$5.00 per rentable square foot in the Premises toward the cost of the design
(including preparation of space plans and Construction Documents), construction
and installation of the Tenant Improvements. The balance, if any, of the cost of
the Tenant Improvements (Additional Cost), including, but not limited to, usual
markups for overhead, supervision and profit, shall be paid by Tenant.
Tenant shall pay Landlord 50% of the Additional Cost based upon the Final Cost Estimate prior
to the commencement of construction of the Tenant Improvements. Other than fees charged by
CIC, Landlord shall not charge a separate supervision fee to supervise construction of Tenant
Improvements. The balance of the actual Additional Cost shall be paid to Landlord upon
Substantial Completion of the Tenant Improvements, within ten (10) days after receipt of
Landlords invoice therefor. Landlord will use reasonable care in preparing the cost
estimates, but they are estimates only and do not limit Tenants obligation to pay for the actual
Additional Cost of the Tenant Improvements, whether or not it exceeds the estimated amounts.
Exhibit B, Page 2
1.4. Changes. If Tenant requests any change, addition or alteration in or to any
Final Construction Documents (Changes), Landlord shall cause the Space Planner to prepare
additional Plans implementing such Change. Tenant shall pay the cost of preparing additional
Plans within ten (10) days after receipt of Landlords invoice therefor. As soon as practicable
after the completion of such additional Construction Documents, Landlord shall notify Tenant of
the estimated cost of the Changes. Within three (3) working days after receipt of such cost
estimate, Tenant shall notify Landlord in writing whether Tenant approves the Change. If Tenant
approves the Change, Landlord shall proceed with the Change and Tenant shall be liable for any
Additional Cost resulting from the Change. If Tenant fails to approve the Change within such
three (3) day period, construction of the Tenant Improvements shall proceed as provided in
accordance with the original Construction Documents.
1.5. Delays. Tenant shall be responsible for, and shall pay to Landlord, any
and all costs and expenses incurred by Landlord in connection with any delay in the
commencement or completion of any Tenant Improvements and any increase in the cost of
Tenant Improvements caused by (i) Tenants failure to submit information to the Space Planner
or approve any Space Plan, Construction Documents or cost estimates within the time periods
required herein, (ii) any delays in obtaining any items or materials constituting part of the
Tenant Improvements requested by Tenant, (iii) any Changes, or (iv) any other delay requested
or caused by Tenant (collectively, Tenant Delays).
2. Delivery of Premises. Upon Substantial
Completion of the Tenant Improvements for any Suite, Landlord shall deliver possession of the such Suite to Tenant. If Landlord has not
Substantially Completed the Tenant Improvements and tendered
possession of the applicable Suite to Tenant on or before the
Scheduled Rent Commencement Date specified in Section 2
-Term; Possession of the Lease for such Suite, or if Landlord is unable for any other reason to deliver possession of
the applicable Suite to Tenant on or before such date, neither Landlord nor its representatives
shall be liable to Tenant for any damage resulting from the delay in completing such construction
obligations and/or delivering possession to Tenant and the Lease shall remain in full force and
effect unless and until it is terminated under the express provisions of this Paragraph. If any
delays in Substantially Completing the Tenant Improvements are attributable to Tenant Delays, then
the Premises shall be deemed to have been Substantially Completed and delivered to Tenant on the
date on which Landlord could have Substantially Completed the Premises and tendered the Premises to
Tenant but for such Tenant Delays.
Notwithstanding the foregoing, if the Suite 202 Space Rent Commencement Date has not occurred
or been deemed to have occurred within one hundred twenty (120) days after the Scheduled Suite 202
Space Rent Commencement Date, either party, by written notice to the other party given within ten
(10) days after the expiration of such one hundred twenty day (120) day period, may terminate this
Lease without any liability to the other party; provided, however, that if the delay in the Suite
202 Space Commencement Date is caused by delays of the type described in Section 26 Force Majeure
of the Lease, and if Tenant elects to terminate as provided above, then Tenant shall reimburse
Landlord, within thirty (30) days after receipt of notification from Landlord of the amounts due,
for any amounts expended or incurred by
Exhibit B, Page 3
Landlord for the design, construction and installation of the Tenant Improvements and for
brokerage commissions and legal fees in connection with the preparation and negotiation of the
Lease. If Tenant fails to perform any of Tenants obligations under this Construction Rider within
the time periods specified herein, Landlord may, in lieu of terminating the Lease under the
foregoing provisions, treat such failure of performance as an Event of Default under the Lease.
3. Access to Premises. Landlord shall allow Tenant and Tenants Representatives to
enter the applicable Suites prior to the applicable Rent Commencement Date (except that with
respect to Suite 101, such access shall be only after Landlord has regained possession of
Suite 101 from the Existing Tenant) to permit Tenant to make the such Suite ready for its use and
occupancy; provided, however, that prior to such entry of the applicable Suite, Tenant shall
provide evidence reasonably satisfactory to Landlord that Tenants insurance, as described in
Section 11.1 Tenants Insurance of the Lease, shall be in effect as of the time of such entry.
Such permission may be revoked at any time upon twenty-four (24) hours notice, and Tenant
and its Representatives shall not interfere with Landlord or Landlords contractor in completing
the Building or the Tenant Improvements.
Tenant agrees that Landlord shall not be liable in any way for any injury, loss or damage
which may occur to any of Tenants property placed upon or installed in the Premises prior to the
Commencement Date, the same being at Tenants sole risk, and Tenant shall be liable for all injury,
loss or damage to persons or property arising as a result of such entry into the Premises by Tenant
or its Representatives.
4. Ownership of Tenant Improvements. All Tenant Improvements, whether installed
by Landlord or Tenant, shall become a part of the Premises, shall be the property of Landlord
and, subject to the provisions of the Lease, shall be surrendered by Tenant with the Premises,
without any compensation to Tenant, at the expiration or termination of the Lease in
accordance with the provisions of the Lease.
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Exhibit B, Page 4
EXHIBIT C
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF APRIL 28, 2000
BETWEEN
PARK PLAZA ASSOCIATES, LLC, AS LANDLORD,
AND
IRONPLANET.COM, AS TENANT (LEASE)
BUILDING
RULES
The following Building Rules are additional provisions of the foregoing Lease to which
they are attached. The capitalized terms used herein have the same meanings as these terms are
given in the Lease.
1. Use of Common Areas. Tenant will not obstruct the sidewalks, halls, passages,
exits, entrances, elevators or stairways of the Building (Common Areas), and Tenant will not
use the Common Areas for any purpose other than ingress and egress to
and from the Premises. The Common Areas, except for the sidewalks, are not open to the general public and Landlord
reserves the right to control and prevent access to the Common Areas of any person whose
presence, in Landlords opinion, would be prejudicial to the safety, reputation and interests
of the Building and its tenants.
2. No Access to Roof. Tenant has no right of access to the roof of the Building and
will not install, repair or replace any antenna, aerial, aerial wires, fan, air-conditioner or
other device on the roof of fee Building, without the prior written consent of Landlord. Any such
device installed without such written consent is subject to removal at Tenants expense without
notice at any time. In any event Tenant will be liable for any damages or repairs incurred or
required as a result of its installation, use, repair, maintenance or removal of such devices on
the roof and agrees to indemnify and hold harmless Landlord from any liability, loss, damage, cost
or expense, including reasonable attorneys fees, arising from any activities of Tenant or of
Tenants Representatives on the roof of the Building.
3. Signage. No sign, placard, picture, name, advertisement or notice visible from the
exterior of the Premises will be inscribed, painted, affixed or otherwise displayed by Tenant
on or in any part of the Building without the prior written consent of Landlord, Landlord reserves the
right to adopt and furnish Tenant with general guidelines relating to signs in or on the Building.
All approved signage will be inscribed, painted or affixed at Tenants expense by a person approved
by Landlord, which approval will not be unreasonably withheld.
Exhibit C, Page 1
4. Prohibited Uses. The Premises will not be used for manufacturing, for the storage
of merchandise held for sale to the general public, for lodging or for the sale of goods to the
general public. Tenant will not permit any food preparation on the Premises except that Tenant
may use Underwriters Laboratory approved equipment for brewing coffee, tea, hot chocolate
and similar beverages so long as such use is in accordance with all applicable federal, state and
city laws, codes, ordinances, rules and regulations.
5. Janitorial Services. Tenant will not employ any person for the purpose of cleaning
the Premises of permit any person to enter the Building for such purpose other than Landlords
janitorial service, except with Landlords prior written consent. Tenant will not
necessitate, and will be liable for the cost of, any undue amount of janitorial labor by reason of
Tenants carelessness in or indifference to the preservation of good order and cleanliness in the
Premises. Janitorial service will not be furnished to areas in the Premises on nights when such
areas are occupied after 9:30 p.m., unless such service is extended by written agreement to a later
hour in specifically designated areas of the Premises.
6. Keys and Locks. Landlord will furnish Tenant, free of charge, two keys to each
door or lock in the Premises. Landlord may make a reasonable charge for any additional or
replacement keys. Tenant will not duplicate any keys, alter any locks or install any new or
additional lock or bolt on any door of its Premises or on any other part of the Building without
the prior written consent of Landlord and, in any event, Tenant will provide Landlord with a key
for any such lock. On the termination of the Lease, Tenant will deliver to Landlord all keys to
any locks or doors in the Building which have been obtained by Tenant.
7. Freight. Upon not less than twenty-four hours prior notice to Landlord, which
notice may be oral, an elevator will be made available for Tenants use for transportation of
freight, subject to such scheduling as Landlord in its discretion deems appropriate. Tenant shall
not transport freight in loads exceeding the weight limitations of such elevator. Landlord
reserves the right to prescribe the weight, size and position of all equipment, materials, furniture
or other property brought into the Building, and no property will be received in the Building or
carried up or down the freight elevator or stairs except during such hours and along such routes and
by such persons as may be designated by Landlord. Landlord reserves the right to require that heavy
objects will stand on wood strips of such length and thickness as is necessary to properly distribute
the weight. Landlord will not be responsible for loss of or damage to any such property from any cause,
and Tenant will be liable for all damage or injuries caused by moving or maintaining such property.
8. Nuisances and Dangerous Substances. Tenant will not conduct itself or permit
Tenants Representatives or Visitors to conduct themselves, in the Premises or anywhere on or in
the Property in a manner which is offensive or unduly annoying to any other Tenant or
Landlords property managers. Tenant will not install or operate any phonograph, radio receiver,
musical instrument, or television or other similar device in any part of the Common Areas and
shall not operate any such device installed in the Premises in such manner as to disturb or annoy
other tenants of the Building. Tenant will not use or keep in the Premises or the Property any
Exhibit C, Page 2
kerosene, gasoline or other combustible fluid or material other than limited quantities
thereof reasonably necessary for the maintenance of office equipment, or, without Landlords prior
written approval, use any method of heating or air conditioning other than that supplied by
Landlord. Tenant will not use or keep any foul or noxious gas or substance in the Premises or
permit or suffer the Premises to be occupied or used in a manner offensive or objectionable to
Landlord or other occupants of the Building by reason of noise, odors or vibrations, or interfere
in any way with other tenants or those having business therein. Tenant will not bring or keep any
animals in or about the Premises or the Property.
9. Building Name and Address. Without Landlords prior written consent, Tenant will not
use the name of the Building in connection with or in promoting or advertising Tenants business
except as Tenants address.
10. Building Directory. A directory for the Building will be provided for the display of
the name and location of tenants. Landlord reserves the right to approve any additional
names Tenant desires to place in the directory and, if so approved, Landlord may assess a
reasonable charge for adding such additional names.
11. Window Coverings. No curtains, draperies, blinds, shutters, shades, awnings,
screens or other coverings, window ventilators, hangings, decorations or similar equipment shall
be attached to, hung or placed in, or used in or with any window of the Building without the prior
written consent of Landlord, and Landlord shall have the right to control all lighting within the
Premises that may be visible from the exterior of the Building.
12. Floor Coverings. Tenant will not lay or otherwise affix linoleum,
tile, carpet or any other floor covering to the floor of the Premises in any manner
except as approved in writing by Landlord. Tenant will be liable for the cost of
repair of any damage resulting from the violation of this rule or the removal of
any floor covering by Tenant or its contractors, employees or invitees.
13. Wiring and Cabling Installations. Landlord will direct Tenants electricians and
other vendors as to where and how data, telephone, and electrical wires and cables are to be installed.
No boring or cutting for wires or cables will be allowed without the prior written consent of Landlord.
The location of burglar alarms, smoke detectors, telephones, call boxes and other office equipment affixed
to the Premises shall be subject to the written approval of Landlord.
14. Office Closing Procedures. Tenant will see that the doors of the Premises are
closed and locked and that all water faucets, water apparatus and utilities are shut off before
Tenant or its employees leave the Premises, so as to prevent waste or damage. Tenant will be liable
for all damage or injuries sustained by other tenants or occupants of the Building or Landlord resulting
from Tenants carelessness in this regard or violation of this rule. Tenant will keep the doors
to the Building corridors closed at all times except for ingress and egress.
Exhibit C, Page 3
15. Plumbing Facilities. The toilet rooms, toilets, urinals, wash bowls and other
apparatus shall not be used for any purpose other than that for which they were constructed and
no foreign substance of any kind whatsoever shall be disposed of
therein. Tenant will be liable
for any breakage, stoppage or damage resulting from the violation of this rale by Tenant, its
employees or invitees.
16. Use of Hand Trucks. Tenant will not use or permit to be used in the Premises or
in the Common Areas any hand trucks, carts or dollies except those equipped with rubber tires
and side guards or such other equipment as Landlord may approve.
17. Refuse. Tenant shall store all Tenants trash and garbage within the Premises or
in other facilities designated By Landlord for such purpose. Tenant shall not place in any trash
box or receptacle any material which cannot be disposed of in the ordinary and customary
manner of removing and disposing of trash and garbage in the city in which the Building is located
without being in violation of any law or ordinance governing such disposal. All trash and garbage
removal shall be made in accordance with directions issued from time to time by Landlord, only
through such Common Areas provided for such purposes and at such times as Landlord may designate.
Tenant shall comply with the requirements of any recycling program adopted by Landlord for the Building.
18. Soliciting. Canvassing, peddling, soliciting and distribution of handbills or any
other written materials in the Building are prohibited, and Tenant will cooperate to prevent the same.
19. Parking. Tenant will use, and cause Tenants Representatives and Visitors to use, any parking
spaces to which Tenant is entitled under the Lease in a manner consistent with Landlords directional signs
and markings in the Parking Facility. Specifically, but without limitation, Tenant will not park,
or permit Tenants Representatives or Visitors to park, in a manner that impedes access to and from
the Building or the Parking Facility or that violates space reservations for handicapped drivers
registered as such with the California Department of Motor Vehicles. Landlord may use such
reasonable means as may be necessary to enforce the directional signs and markings in the
Parking Facility, including but not limited to towing services, and Landlord will not be liable
for any damage to vehicles towed as a result of non-compliance with such parking regulations.
20. Fire, Security and Safety Regulations. Tenant will comply with all safety,
security, fire protection and evacuation measures and procedures established by Landlord or any governmental agency.
21. Responsibility for Theft. Tenant assumes any and all responsibility for
protecting the Premises from theft, robbery and pilferage, which includes keeping doors
locked and other means of entry to the Premises closed.
Exhibit C, Page 4
22. Sales and Auctions. Tenant will not conduct or permit to be conducted any
sale by auction in, upon or from the Premises or elsewhere in the Property, whether said auction be voluntary,
involuntary, pursuant to any assignment for the payment of creditors or pursuant to
any bankruptcy or other insolvency proceeding.
23. Waiver of Rules. Landlord may waive any one or more of these Building Rules
for the benefit of any particular tenant or tenants, but no such waiver by Landlord will be
construed as a waiver of such Building Rules in favor of any other tenant or tenants nor prevent
Landlord from thereafter enforcing these Building Rules against any or all of the tenants of the Building.
24. Effect on Lease. These Building Rules are in addition to, and shall not be construed to
in any way modify or amend, in whole or in part, the terms, covenants, agreements and conditions of the
Lease. Violation of these Building Rules constitutes a failure to fully perform the provisions of the
Lease, as referred to in Section 15.1- Events of Default.
25. Non-Discriminatory Enforcement. Subject to the provisions of the Lease (and the provisions of
other leases with respect to other tenants), Landlord shall use reasonable efforts to enforce these Building
Rules in a non-discriminatory manner, but in no event shall Landlord have any liability for any failure or
refusal to do so (and Tenants sole and exclusive remedy for any such failure or refusal shall be injunctive
relief preventing Landlord from enforcing any of the Building Rules against Tenant in a manner that
discriminates against Tenant).
26. Additional and Amended Rules. Landlord reserves the right to rescind or amend
these Building Rules and/or adopt any other and reasonable rules and regulations as in its
judgment may from time to time be needed for the safety, care and cleanliness of the Building
and for the preservation of good order therein.
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Exhibit C, Page 5
EXHIBIT D
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF APRIL 28, 2000
BETWEEN
PARK PLAZA ASSOCIATES, LLC, AS LANDLORD,
AND
IRONPLANET.COM, AS TENANT (LEASE)
ADDITIONAL PROVISIONS RIDER
36. LETTER OF CREDIT.
(a) Upon execution of this Lease, Tenant shall deliver to Landlord an unconditional,
irrevocable, transferable and negotiable standby letter of credit (the L/C) in an amount equal to
$900,000.00 (Face Amount), issued by a bank or trust company (Issuer) and in form and content
acceptable to Landlord, in its sole and absolute discretion, as additional security for the
performance of Tenants obligations under this Lease. An L/C in
the form attached hereto as Exhibit E is hereby approved by Landlord. The L/C shall name Landlord as beneficiary thereunder and
provide that draws, including partial draws, at Landlords election, will be honored upon the
delivery to the Issuer of a certificate signed by Landlord, or its authorized agent, that Tenant
has failed to perform its obligations under the Lease. The L/C shall also provide that it will be
automatically extended upon each renewal date unless the Issuer thereof delivers to Landlord, no
later than forty-five (45) days prior to the stated expiration date of the L/C, written notice of
Issuers intent not to extend or renew the L/C. During any period that Tenant is required to
maintain the L/C, Tenant shall, at least thirty (30) days prior to any expiration or termination of
the L/C, provide Landlord either with written confirmation that the existing L/C will be
automatically extended and renewed or with a new L/C that satisfies all of the requirements for the
L/C in this Section 36. In addition, upon a proposed sale or other transfer of any interest in the
Building, the Land, this Lease or Landlord (including consolidations, mergers, or other entity
changes), Tenant, at its sole cost and expense and upon ten (10) Business Days notice, shall,
concurrent with Landlords delivery to Tenant of the then outstanding L/C, deliver to any such
transferees, successors, or assigns a replacement L/C on identical terms (except for the stated
beneficiary) from the same Issuer or another bank or trust company acceptable to Landlord, in
Landlords sole discretion, naming the new landlord as the beneficiary thereof. Tenants failure to
perform or observe any of the covenants set forth in this Section 36 for any reason shall entitle
Landlord to draw on the full amount of the L/C and shall constitute an Event of Default under this
Lease without the requirement of any notice from Landlord. Any
amount(s) drawn under the L/C shall be held or used by Landlord in accordance with the terms of Section 4 of the Lease.
Exhibit D, Page 1
(b) If as of the 1st, 2nd, 3rd and 4th anniversary dates following the Commencement
Date, no prior or current Event of Default has occurred, and no event or condition exists or has
occurred which with the passage of time or delivery of notice by Landlord, or both, would
constitute an Event of Default, then the Face Amount of the L/C may be immediately reduced to (i)
$750,000.00 on the 1st anniversary date following the Commencement Date; (ii) $600,000.00 on the
2nd anniversary date following the Commencement Date; (iii) $450,000.00 on the 3rd anniversary date
following the Commencement Date; and (iv) $300,000.00 on the 4th anniversary date following the
Commencement Date, as applicable (the L/C Burnoff).
37. PARKING.
(a) Tenants Parking Rights. Landlord shall provide Tenant, on an unassigned and
non-exclusive basis, for use by Tenant and Tenants Representatives and Visitors, at the users
sole risk, one hundred ten (110) parking spaces in the Parking Facility. If Tenant leases additional
office space pursuant to this Lease, Landlord shall provide Tenant, also on an unassigned, non-exclusive
and unlabelled basis, one (1) additional parking space in the Parking Facility for each two hundred fifty
(250) rentable square feet of additional office space leased to
Tenant. The parking spaces to be made
available to Tenant hereunder may contain a reasonable mix of spaces for compact cars and up to ten
percent (10%) of the unassigned spaces may also be designated by Landlord as Building visitors parking.
(b) Availability of Parking Spaces. Landlord shall take reasonable actions to ensure
the availability of the parking spaces leased by Tenant, but Landlord does not guarantee the
availability of those spaces at all times against the actions of other tenants of the Building and
users of the Parking Facility. Access to the Parking Facility may, at Landlords option, be regulated
by card, pass, bumper sticker, decal or other appropriate identification issued by Landlord. Landlord
retains the right to revoke the parking privileges of any user of the Parking Facility who violates
the rules and regulations governing use of the Parking Facility (and Tenant shall be responsible for
causing any employee of Tenant or other person using parking spaces allocated to Tenant to comply
with all parking rules and regulations).
(c) Assignment and Subletting. Notwithstanding any other provision of the Lease to the contrary, Tenant
shall not assign its rights to the parking spaces or any interest therein, or sublease or otherwise allow the use
of all or any part of the parking spaces to or by any other person, except (i) to a Transferee, or (ii) with
Landlords prior written consent, which may be granted or withheld by Landlord in its sole discretion. In the
event of any separate assignment or sublease of parking space rights that is approved by Landlord, Landlord
shall be entitled to receive, as additional Rent hereunder, one hundred percent (100%) of any profit
received by Tenant in connection with such assignment or sublease.
(d) Condemnation, Damage or Destruction. In the event the Parking Facility is the subject of
a Condemnation, or is damaged or destroyed, and this Lease is not terminated, and if
Exhibit D, Page 2
in such event the available number of parking spaces in the Parking Facility is permanently
reduced, then Tenants rights to use parking spaces hereunder may, at the election of Landlord,
thereafter be reduced in proportion to the reduction of the total number of parking spaces in the
Parking Facility. In such event, Landlord reserves the right to reduce the number of parking spaces
to which Tenant is entitled or to relocate some or all of the parking spaces to which Tenant is
entitled to other areas in the Parking Facility.
38. SIGNAGE.
Exhibit D, Page 3
Provided that (i) Ironplanet.com has not assigned this Lease or sublet more than 7,594
rentable square feet of the Premises to any person or entity other than a Permitted Transferee (it
being intended that all rights pursuant to this provision are and shall be personal to the original
Tenant under this Lease and its Permitted Transferees and shall not be transferable or exercisable
for the benefit of any Transferee other than a Permitted Transferee), (ii) Ironplanet.com, or its
Permitted Transferee occupies at least 20,000 rentable square feet in the Building, and (iii)
Tenant is not in default under the terms and conditions of this Lease beyond any applicable notice
and cure period, then subject to the conditions below, Tenant may elect to install and have (x) one
(1) unlighted monument sign (the Monument Sign) on the existing monument, and (y) one (1)
unlighted sign (the Building Sign) showing only the name and logo of Tenant. The Building Sign
shall be installed on the side of the Building in the location shown on Exhibit F attached
hereto. The Monument Sign and the Building Sign are together sometimes referred to herein as
Tenants Signs. Tenants right to install Tenants Signs shall be subject to the following terms
and conditions:
(a) Landlord shall work with Tenant and with the City of Pleasanton for Tenant to obtain
the right to install Tenants Signs, provided, however, such covenant shall not require
Landlord to expend any money, incur any debt, or accept any material restriction, condition or
exaction upon the Project or Landlords rights of ownership, use and enjoyment or the income
therefor. Tenants rights to have installed and display Tenants Signs shall be subject to
complying with all Laws, with all specific approvals therefor required by applicable
governmental agencies, and shall otherwise be subject to Tenants compliance with all
applicable provisions of the Lease, including, without limitation,
Article 6. Tenant shall provide Landlord with a photo montage depicting the proposed design and such other information
that Landlord shall reasonably require in connection with Landlords review of the proposed
Tenants Signs. Landlords approval rights under said Article 6 shall include, but not be
limited to, the right to approve the location, size, dimension, content (other than the
identification of Tenants trade name), materials, and support of Tenants Signs. Tenant shall
pay all costs arising out of or in any way connected with the Tenants Signs, including,
without limitation, costs for design, approval by Landlord, approval by the City of Pleasanton
and all other necessary governmental agencies, preparation of construction drawings and
documents, installation, maintenance, repair, operation, utilities, modification, replacement
and removal thereof and all maintenance, repair and restoration of the Property in connection
therewith. The actual installation of Tenants Signs shall be performed by a sign construction
company to be approved by Landlord and Tenant. Tenant shall contract directly with such
approved sign company to install Tenants Signs. The method of attachment of the Building Sign
is subject to Landlords prior written approval.
Exhibit D, Page 4
(b) During the Term, Tenant shall not make any change or changes to Tenants Signs
without the prior written consent of Landlord. Landlord shall perform all maintenance
reasonably required of the Monument Sign. Tenant shall be responsible for all maintenance to
the Building Sign, at Tenants sole cost and expense, using a contractor subject to Landlords
prior approval. Notwithstanding the provisions of Section 11.3 of this Lease, Tenant shall be
responsible for all damage to the Building and the Property arising from the installation,
maintenance and removal of the Building Sign. Tenant shall pay to Landlord on demand the costs
of repairing any such damage. Tenants obligations hereunder shall be specifically included
within Tenants indemnification obligations set forth in Section 10.2 of the Lease.
(c) Upon termination of this Lease for any reason, or the assignment of the Lease, or
Ironplanet.com being in occupancy of less than 20,000 rentable square feet of the Premises,
Landlord may remove the Monument Sign and restore the Property to its condition prior to
installation of such Monument Sign, all at Tenants expense. Once removed, all of Tenants
rights under this Section 38 shall be automatically terminated and Landlord shall be free to
grant to other persons signage or other rights covering all or a portion of the location
previously occupied by Tenants Monument Sign.
39. RIGHT OF FIRST OFFER.
(a) Provided that Ironplanet.com has not assigned this Lease or sublet any or all of the
Premises other than to a Permitted Transferee (it being intended that all rights pursuant to this
provision are and shall be personal to the original Tenant under this Lease and its Permitted
Transferees and shall not be transferable or exercisable for the benefit of any Transferee other
than a Permitted Transferee), and provided Tenant is not in default under this Lease at the time of
the exercise of any such right or at any time thereafter until delivery of possession of the space
to Tenant, subject to any and all rights granted by Landlord or asserted by others with respect to
such space (including renewal and extension rights and rights of first offer, first negotiation,
first refusal or other expansion rights), and subject to Landlords right to extend or renew any
then existing lease of the space or otherwise to lease the space to any tenant, subtenant or other
occupant of the space, Tenant shall have a one-time right of first offer to lease the following
space in the Building: Any space in the Building.
(b) Such right of first offer (i) may only be exercised with respect to space which has been
previously leased and becomes vacant during the Term following expiration or other termination of
the previous lease, and (ii) may only be exercised with respect to all of the space being offered
by Landlord. If any space qualifying for such right of first offer becomes available, Landlord
shall offer to lease such space to Tenant at the same rent and on the same terms that Landlord
intends to offer to other prospective tenants. Tenant shall have five (5) Business Days following
receipt of Landlords offer with respect to any such space within which to notify Landlord in
writing of its intention to lease such space, and such notice, if given by Tenant, shall constitute
an acceptance of Landlords terms for the lease of such space. If Tenant
Exhibit D, Page 5
exercises such right of first offer, the space to be leased by Tenant shall be leased on the
same terms and conditions as are contained in this Lease except for the economic and other terms
specifically set forth in Landlords notice, and the parties shall execute an amendment to this
Lease to include such space in the Premises and otherwise to provide for the leasing of such space
on such terms. If Tenant fails so to exercise Tenants right of first offer within such five (5)
Business Day period, Landlord may thereafter lease such space to other prospective tenants.
(c) If Tenant does not lease the right of first offer space from Landlord when it is
first offered to Tenant by Landlord, then this right of first offer shall terminate and Tenant
shall have no further rights to lease any of the right of first offer space.
40. EXTENSION OPTION.
Provided
that Ironplanet.com has not assigned this Lease or sublet other then to a Permitted Transferee any or all of the
Premises (it being intended that all rights pursuant to this provision are and shall be personal
to
the original Tenant under this Lease or a Permitted Transferee and shall not be transferable or exercisable for the benefit
of
any Transferee except a Permitted Transferee), and provided Tenant is not in default under this Lease at the time of exercise or
at any time thereafter until the beginning of any such extension of the Term, Tenant shall have
the option (the Extension Option) to extend the Term for one (1) additional consecutive period of
five (5) years (Extension Period), by giving written notice to Landlord of the exercise of any
such Extension Option at least nine (9) months, but not more than twelve (12) months, prior to the
expiration of the initial Term. The exercise of the Extension Option by Tenant shall be irrevocable
and shall cover the entire Premises leased by Tenant pursuant to this Lease. Upon such exercise,
the term of the Lease shall automatically be extended for the Extension Period without the
execution of any further instrument by the parties; provided that Landlord and Tenant shall, if
requested by either party, execute and acknowledge an instrument confirming the exercise of the
Extension Option. The Extension Option shall terminate if not exercised precisely in the manner
provided herein. Any extension of the Term shall be upon all the terms and conditions set forth in
this Lease and all Exhibits thereto, except that: (i) Tenant shall have no further option to extend
the Term of the Lease; (ii) Landlord shall not be obligated to contribute funds toward the cost of
any remodeling, renovation, alteration or improvement work in the Premises; and (iii) Base Rent for
any such Extension Period shall be the then Fair Market Base Rental (as defined below) for the
Premises for the space and term involved, which shall be determined as set forth below.
(a) Fair Market Base Rental shall mean the fair market Base Rent at the time or
times in question for the applicable space, based on the prevailing rentals then being charged to
tenants in the Building and tenants in other office buildings in the general vicinity of the
Building of comparable size, location, quality and age as the Building for leases with terms equal
to the Extension Period, taking into account the creditworthiness and financial strength of the
tenant, the financial guaranties provided by the tenant (if any), and the desirability, location
in the building, size and quality of the space, tenant finish allowance and/or tenant
improvements, included services, operating expenses and tax and expense stops or other
Exhibit D, Page 6
escalation clauses, for the space in the Building for which Fair Market Base Rental is being
determined and for comparable space in the buildings which are being used for comparison. Fair
Market Base Rental shall also reflect the then prevailing rental structure for comparable office
buildings in the general vicinity of the Property, so that if, for example, at the time Fair Market
Base Rental is being determined the prevailing rental structure for comparable space and for
comparable lease terms includes periodic rental adjustments or escalations, Fair Market Base Rental
shall reflect such rental structure.
(b) Landlord and Tenant shall endeavor to agree upon the Fair Market Base Rental. If they are
unable to so agree within thirty (30) days after receipt by Landlord of Tenants notice of exercise
of the Extension Option, Landlord and Tenant shall mutually select a licensed real estate broker
who is active in the leasing of office space in the general vicinity of the Property. Landlord
shall submit Landlords determination of Fair Market Base Rental and Tenant shall submit Tenants
determination of Fair Market Base Rental to such broker, at such time or times and in such manner
as Landlord and Tenant shall agree (or as directed by the broker if Landlord and Tenant do not
promptly agree). The broker shall select either Landlords or Tenants determination as the Fair
Market Base Rental, and such determination shall be binding on Landlord and Tenant. If Tenants
determination is selected as the Fair Market Base Rental, then Landlord shall bear all of the
brokers cost and fees. If Landlords determination is selected as the Fair Market Base Rental,
then Tenant shall bear all of the brokers cost and fees.
(c) In the event the Fair Market Base Rental for any Extension Period has not been determined
at such time as Tenant is obligated to pay Base Rent for such Extension Period, Tenant shall pay as
Base Rent pending such determination, the Base Rent in effect for such space immediately prior to
the Extension Period; provided, that upon the determination of the applicable Fair Market Base
Rental, any shortage of Base Rent paid, together with interest at the rate specified in the Lease,
shall be paid to Landlord by Tenant.
(d) In no event shall the Base Rent during any Extension Period be less than the Base Rent in
effect immediately prior to such Extension Period.
(e) The term of this Lease, whether consisting of the Initial Term alone or the Initial Term
as extended by any Extension Period (if any Extension Option is exercised), is referred to in this
Lease as the Term.
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INITIALS: |
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Exhibit D, Page 7
EXHIBIT E
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF APRIL 28, 2000
BETWEEN
PARK PLAZA ASSOCIATES, LLC, AS LANDLORD,
AND
IRONPLANET.COM, AS TENANT (LEASE)
APPROVED LETTER OF CREDIT FORM
[Letterhead of Issuing Bank]
[must be a Bank whose location, credit and practices Landlord has approved]
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RE: |
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IRREVOCABLE COMMERCIAL LETTER OF CREDIT
NO.____________________ |
TO: [Name of project owner] (Landlord),
[Landlords address]
Gentlemen:
We hereby issue our Irrevocable Commercial Letter of Credit in your favor, for the
account of
[name of tenant and type of entity (e.g. ABC
Corporation, a California corporation)] (Tenant), in the amount of
Dollars ($ ). This amount is available to you
on presentation of your sight draft drawn upon us referring to the above letter of credit number,
date and amount being drawn hereunder, accompanied by the signed statement of you or your
authorized agent, Cornerstone Properties Limited Partnership dba Wilson Cornerstone Properties
Limited Partnership, that the amount drawn hereunder is being drawn pursuant to the terms of the
[title of lease document (e.g. Office Lease, Lease Agreement, etc.)] dated
as of , between Tenant, as tenant, and Landlord, as landlord, for certain premises
located at
(the Lease).
Any draft
presented for payment must be presented on or before
[term
should be at least one year], the date this Letter of Credit expires. Partial drawings are
permitted.
Exhibit E, Page 8
If you sell or otherwise transfer any interest in the Building (as defined in the Lease)
[be sure to use the defined terms used in the Lease (e.g. if the building is called the Property
in the Lease, then use that term here)], in the land upon which the same is located, in the Lease,
or in Landlord (including consolidations, mergers or other entity changes), you shall have the
right to transfer this Letter of Credit to your transferee(s), successors or assigns.
We hereby certify that this is an unconditional and irrevocable Letter of Credit and agree that a
draft drawn under and in compliance with the terms hereof will be honored upon presentation at
our office at
[it must be a location easily accessible to
us (e.g. no country banks located in some tiny town in the Southeastern corner of Texas].
This Letter of Credit shall automatically be extended and renewed for successive one year periods
at the end of the stated expiration date and each anniversary thereof unless we notify you in
writing, no later than forty-five (45) days prior to the then applicable expiration date, that we
will not extend and renew the Letter of Credit for another one year term.
Except to the extent inconsistent with the express provisions hereof, this Letter of Credit
is subject to and governed by Uniform Customs and Practice for Documentary Credits (1993
Revision) International Chamber of Commerce publication number 500.
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[Name of Bank] |
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Authorized Signature
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INITIALS: |
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Exhibit E, Page 9
EXHIBIT F
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF APRIL 28, 2000
BETWEEN
PARK PLAZA ASSOCIATES, LLC, AS LANDLORD,
AND
IRONPLANET.COM, AS TENANT (LEASE)
LOCATION AND CONFIGURATION OF THE BUILDING SIGN
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INITIALS: |
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Landlord
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Exhibit F, Page 1
FIRST AMENDMENT TO LEASE
By and between
CENTRAL BUILDING LLC, as Landlord and
IRONPLANET.COM, INC. as Tenant
Property Address: 4695 Chabot Drive, Pleasanton, CA
This First Amendment to Lease (this Amendment), dated for reference purposes only November 6,
2000, amends and is made a part of that certain lease dated for reference purposes April 28, 2000,
as described above. In the event of any conflict between the terms of the Lease and the terms of
this Amendment, the terms of this Amendment shall prevail. Except to the extent expressly modified
by this Amendment, all terms and conditions of the Lease shall remain unchanged.
RECITALS
Whereas Tenant desires to relinquish a portion of the Premises, consisting of the entire second
floor with the exception of the PBX room consisting of approximately 80 square feet (the
Surrendered Premises), to Landlord, and to reduce its rental obligations thereby; and
Whereas Landlord is willing to accept the Surrendered Premises on the terms and conditions set
forth herein; and
Whereas, Network Robots (New Tenant) desires to lease the Premises, and is willing to facilitate
the relinquishment of the Surrendered Premises by contribution to a cancellation fee payable to
Tenant;
Now, therefore, the Parties hereto agree as follows:
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1. |
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CENTRAL BUILDING LLC is the successor in interest to Park Plaza Associates, LLC, and
all references in the Lease to Landlord shall hereafter mean and refer to CENTRAL
BUILDING, LLC. |
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2. |
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All defined terms in the Lease shall have the same meanings herein as ascribed thereto
in the Lease, with the exception of the modifications expressly set forth herein. |
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3. |
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Tenant shall surrender possession of the Surrendered Premises to Landlord on November
6, 2000 so that Landlord may immediately relet the Surrendered Premises. |
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4. |
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Tenant shall forthwith undertake to relocate its server room, including the dedicated
HVAC unit and all related peripheral equipment, from the second floor to the first floor,
all at its sole cost and expense, and shall diligently accomplish such relocation so
as to deliver possession of that room as soon as possible to New Tenant. |
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5. |
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For and in consideration of Tenants relinquishment of the Surrendered Premises as
aforesaid, Landlord shall deliver to Tenant the sum of Fifty-Two Thousand Dollars
($52,000.00) on the Effective Date. |
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For and in consideration of Tenants relinquishment, New Tenant shall deliver to Tenant
the sum of Twenty-Two Thousand Dollars ($22,000.00) on the Effective Date. |
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7. |
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On the Effective Date, as hereinafter defined, the Lease shall be amended by the
following terms: |
Addendum to
Lease
Rev. 11/07/00
Page 1 of 3
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a. |
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Thereafter, the term Premises in the Lease shall mean and refer only to
the first floor premises and the PBX room on the second floor, consisting of
approximately 8,885 rentable square feet. |
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b. |
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Thereafter, the Tenants Share of the Building shall be 10.21% |
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Thereafter, the monthly Base Rent payable by Tenant to Landlord for the
Premises shall be $27,543.50 per month. |
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Tenants Parking Rights (paragraph 37(a)) shall be reduced to 36 parking spaces. |
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Paragraph 39 of the Lease is hereby amended to provide that Tenant shall have a right
of first offer only on space on the first floor of the Building as it becomes
available. |
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At any time after the Effective Date, Tenant shall have the right, at its sole option,
either (i) to provide Landlord with an amendment to the letter of credit reducing the
amount thereof to $287,182.00, or (ii) to provide Landlord with a replacement letter of
credit in the amount of $287,182.00 (but otherwise containing all of the terms and
conditions of the original letter of credit). Landlord shall return the original letter of
credit to Tenant promptly upon receipt of either an amendment to the letter of credit or a
replacement letter of credit, but in no event later than ten (10) business days after
Landlords receipt from Tenant of one of the foregoing. |
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This Amendment is expressly contingent upon the successful consummation of a new lease
with New Tenant for the Surrendered Premises. It shall therefore be effective on the date
(the Effective Date) that Landlord has secured a fully executed lease for the entire
Surrendered Premises from New Tenant and all conditions to the effectiveness of such lease
have been met. Conditioned upon the performance of the parties of the provisions of this
Amendment, from and after the Effective Date, Landlord and Tenant shall be fully and
unconditionally released and discharged from their respective obligations arising from or
connected with the provisions of the Lease with respect to the Surrendered Premises, only.
This Amendment shall fully and finally settle all demands, charges, claims, accounts or
causes of action of any nature, including, without limitation, both known and unknown
claims and causes of action that arose out of or in connection with the Lease relating
exclusively to the Surrendered Premises, and it constitutes a mutual release with respect
thereto, except to the extent of (a) any rent or other charges due or coming due prior to
the Effective Date, and (b) those provisions of the Lease which expressly survive its
expiration or termination. With respect to the Surrendered Premises only, and
subject to the foregoing exceptions, Landlord and Tenant expressly waive the provisions of
California Civil Code. §1542, which provides: |
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A general release does not extent to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor. |
Addendum to
Lease
Rev. 11/07/00
Page 2 of 3
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LANDLORD: |
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TENANT: |
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CENTRAL BUILDING LLC |
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IRONPLANET.COM, INC. |
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By:
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By:
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/s/ R.B. Alleger
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Neal Smither |
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Name Printed: |
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R.B. ALLEGER |
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Dated:
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Its:
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Dated:
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7 NOV 00 |
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NEW TENANT: |
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NETWORK ROBOTS, INC. |
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Name Printed: |
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Its:
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Addendum to
Lease
Rev. 11/07/00
Page 3 of 3
SECOND AMENDMENT TO LEASE
By and between
CENTRAL BUILDING LLC, as Landlord and
IRONPLANET.COM, INC., as Tenant
Property Address: 4695 Chabot Drive, Pleasanton, CA
This Second Amendment to Lease (Second Amendment), dated for reference purposes only as
March 9, 2001, amends and is made a part of that certain lease dated April 28, 2000, as
described above, and amended by the First Amendment to Lease dated November 6, 2000 (collectively
the Lease). In the event of any conflict between the terms of the Lease and the terms of this
Second Amendment, the terms of this Second Amendment shall prevail. Except to the extent expressly
modified by this Second Amendment, all terms and conditions of the Lease shall remain unchanged.
RECITALS
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Tenant desires to relinquish and surrender a portion of the Premises, consisting
of the Suite 101 Space, as defined in the Lease, consisting of approximately 1,992
square feet (the Surrendered Premises), to Landlord; and |
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Landlord is willing to accept the Surrendered Premises on the terms and
conditions set forth herein. |
WHEREFORE, Landlord and Tenant agree as follows:
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CENTRAL BUILDING LLC is the successor in interest to Park Plaza Associates, LLC, and
all references in the Lease to Landlord shall hereafter mean and refer to CENTRAL
BUILDING, LLC. |
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2. |
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All defined terms in the Lease shall have the same meanings herein as ascribed thereto
in the Lease, with the exception of the modifications expressly set forth herein. |
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3. |
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Tenant shall surrender possession of the Surrendered Premises to Landlord on April 1,
2001 (Effective Date). |
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On the Effective Date, the Lease shall be amended by the following terms: |
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The term Premises in the Lease shall mean and refer only to the Suite
102 Space, as defined in the Lease, and the PBX room on the second floor, as
defined in the First Amendment to Lease, collectively consisting of approximately
6,893 rentable square feet. |
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Tenants Share of the Building shall be 7.9%. |
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The monthly Base Rent payable by Tenant to Landlord for the Premises
shall be $21,368.30 per month. |
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Tenants Parking Rights (paragraph 37(a)) shall be reduced to 28
parking spaces. |
Second Amendment to Lease
March 9, 2001
Page 1 of 2
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Tenant shall have the option to lease the Surrendered Premises for fifteen
(15) months, with a lease term commencing on April 1,
2004, and ending June 30, 2005, on the same terms and
conditions as set forth in the Lease. Tenant shall exercise its option, if at all,
by providing written notice to Landlord not later than 90 days in advance of the
above-stated commencement date. If Tenant fails to give timely notice as
provided herein, said option shall be null and void and have no further force or
effect. |
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If Tenant exercises their right of option to lease the Surrendered_Premises
for an additional fifteen months this rentable space will be at $3.10 per rentable sq.
ft. per month consistent with the Tenants original lease term. At the time of option
exercise, the Surrendered Space would be returned to the Tenant in approximately the
same condition as it was originally surrendered on the date of this agreement. |
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During the period of this agreement the Tenant retains no
liability whatsoever
for occupancy costs, taxes, tenant improvements, utilities, services or general
liability insurance related to the Surrendered Premises. |
IN WITNESS WHEREOF, the parties have executed this Second Amendment on the dates
hereafter written.
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LANDLORD: |
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TENANT: |
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CENTRAL BUILDING LLC |
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IRONPLANET.COM, INC. |
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By:
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/s/ Neal Smither
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By:
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/s/ Carol Parrella
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Neal Smither |
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Name Printed: |
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Carol Parrella |
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Dated:
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3/19/01
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Its:
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Ironplanet |
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Dated:
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3/26/01 |
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Second Amendment to Lease
March 9, 2001
Page 2 of 2
THIRD AMENDMENT TO LEASE
By and between
CENTRAL BUILDING, LLC as Landlord and
IRONPLANET.COM, INC., as Tenant
Property address: 4695 Chabot Drive, Pleasanton, CA 94588
This Third Amendment to Lease (Third Amendment), dated for reference purposes only as July 18,
2001, amends and is made a part of that certain lease dated April 28, 2000, as described above, and
amended by the First Amendment to Lease dated November 6, 2000, and Second Amendment to Lease dated
March 9, 2000 (collectively the Lease). In the event of any conflict between the terms of the
Lease and the terms of this Third Amendment, the terms of this Third Amendment shall prevail.
Except to the extent expressly modified by this Third Amendment, all terms and conditions of the
Lease shall remain unchanged.
WHEREFORE, Landlord and Tenant agree as follows:
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1. |
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CENTRAL BUILDING LLC is the successor in interest to Park Plaza Associates, LLC, and
all references in the Lease to Landlord shall hereafter mean and refer to CENTRAL
BUILDING, LLC. |
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2. |
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All defined terms in the Lease shall have the same meanings herein as ascribed
thereto in the Lease, with the exception of the modifications expressly set forth
herein. |
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Tenant agrees to release the right to occupy Suite 101 for an additional four months. |
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Tenant shall have the option to lease Suite 101 for eleven (11) months, with a lease
term commencing on August 1, 2004 and ending June 30, 2005, on the same terms and
conditions as set forth in the Lease. Tenant shall exercise its option, if at all, by
providing written notice to Landlord not later than 90 days in advance of the above- stated
commencement date. If Tenant fails to give timely notice as provided herein, said option
shall be null and void and have no further force of effect. |
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5. |
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If Tenant exercises their right of option to lease the Premises for an additional
eleven months this rentable space will be at $3.10 per rentable sq. ft. per month
consistent with the Tenants original lease term. At the time of option exercise, the
premises would be returned to the Tenant in approximately the same condition as it was
originally surrendered on the date of this agreement. |
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6. |
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From the time that Tenant relinquishes Suite 101, Tenant shall no further liability
whatsoever for occupancy costs, taxes, tenant improvements, utilities, services or general
liability insurance related to the premises. |
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Tenant |
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Landlord |
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IronPlanet.com |
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Central Building LLC |
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/s/
Carol Parella |
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/s/ Neal Smither |
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Date:
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8/27/01
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Date:
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7/18/01 |
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THIRD AMENDMENT TO LEASE
By and between
CENTRAL BUILDING LLC, as Landlord and
IRONPLANET.COM, INC., as Tenant
Property Address: 4695 Chabot Drive, Pleasanton, CA
This Third
Amendment to Lease (Third Amendment), dated for reference purposes only as
June 4, 2003, amends and is made a part of that certain lease dated April 28, 2000, as described
above, and amended by the First Amendment to Lease dated November 6, 2000 and the Second Amendment
dated March 6, 2001 (collectively the Lease). In the event of any conflict between the terms of
the Lease and the terms of this Third Amendment, the terms of this Third Amendment shall prevail.
Except to the extent expressly modified by this Third Amendment, all terms and conditions of the
Lease shall remain unchanged.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties agree as follows:
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1. |
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All defined terms in the Lease shall have the same meanings herein as ascribed
thereto in the Lease, with the exception of the modifications expressly set forth herein. |
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2. |
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The Face Amount of the Letter of Credit is hereby amended to be One Hundred Fifty
Thousand ($150,000.00) Dollars, which Tenant shall maintain in accordance with the terms
of the Lease. |
IN WITNESS WHEREOF, Landlord and Tenant have executed this Third Amendment on the dates set forth
below.
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TENANT: |
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LANDLORD: |
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IRONPLANET.COM, |
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CENTRAL BUILDING LLC |
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a Delaware corporation |
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a California limited liability company |
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By: |
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/s/ Carol Parrella |
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By: |
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/s/ Neal Smither |
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Name: |
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Carol Parrella |
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Neal Smither, Member |
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Title: |
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CFO |
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Date: |
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June 4, 2003
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Date: |
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June 4, 2003 |
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FOURTH AMENDMENT TO LEASE
By and between
CENTRAL BUILDING, LLC as Landlord and
IRONPLANET.COM as Tenant Property
Address: 4695 Chabot Drive, Pleasanton, CA
This Fourth Amendment to Lease (this Amendment) is entered into by and between Landlord
and Tenant this 12th day of January, 2005, and amends and is made a part of that
certain Real Estate Lease (Lease) dated for reference purposes April 28, 2000, as previously
amended by the First Amendment to Lease dated November 6, 2000, the Second Amendment to Lease
dated March 6, 2001, and the Third Amendment to Lease, dated June 4,2003, as described above.
In the event of any conflict between the terms of the Lease and the terms of this Amendment, the
terms of this Amendment shall prevail.
RECITALS
WHEREAS, Tenants existing Lease shall expire on or May 30, 2005, and
WHEREAS, Tenant is desirous of remaining in the Premises, subject to modification of certain terms
and conditions of the Lease;
NOW, THEREFORE, the parties hereby modify and amend the Lease, as follows:
AMENDMENT
1. Basic Lease Information: The Basic Lease Information section of the Lease is hereby
deleted, and replaced with the following.
BASIC LEASE INFORMATION
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Landlord:
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CENTRAL BUILDING, LLC, a California limited liability company |
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Tenant:
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IRONPLANET.COM,. a Delaware corporation |
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Project:
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Park Plaza |
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Building Address:
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4695 Chabot Drive |
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Pleasanton, California |
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Rentable Area of Building:
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Approximately 87,040 rentable square feet |
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Premises:
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The Premises consist of Suite 102 and the PBX room on the second floor,
as reflected on Exhibit A attached hereto, with a combined rentable area of
approximately 6,893 rentable square feet |
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Term:
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Five ( 5 ) years, with option to terminate as set forth below. |
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Lease Commencement
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April 1,2005 |
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Date: |
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Rent Commencement Date:
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April 1, 2005 |
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Operating Expense
Commencement Date
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April 1, 2005 |
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Expiration Date:
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March 30, 2010 |
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Base Rent:
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Months 1-12: $1.85 per square foot per month, fully serviced |
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Months 13-24: $1.90 per square foot per month, fully serviced |
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Months 25-36: $1.95 per square foot per month, fully serviced |
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Months 37-48: $2.00 per square foot per month, fully serviced |
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Months 49-60: $2.05 per square foot per month, fully serviced |
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Base Rent Paid Upon
Execution
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$12,752.05, as Base Rent for the month of April, 2005 |
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Base Year:
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From the Commencement Date until December 31, 2005, the Base Year will
remain Calendar Year 2000, in accordance with the prior lease between the parties.
On January 1, 2006, the Base Year will convert to Calendar Year 2005, and Tenant
shall pay increases over the new Base Year commencing on January 1, 2006 and
throughout the remainder of the Lease Term. |
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Tenants Share:
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7.9% |
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Security Deposit:
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The Security Deposit shall be a total of $100,000.00, consisting of: |
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(a) A Letter of Credit in the face amount of $100,000, in accordance with
the provisions of Sections 4 and 37 of this Lease. |
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(b) The Letter of Credit shall be reduced to $50,000 in December 2005, in
accordance with the provisions of Section 4 and 37 of this Lease. |
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(c) Letter of Credit shall be increased from $50,000 to $100,000 if option
to leave is not exercised by December 31, 2006, in accordance with the provisions
of Section 4 and 37 of this Lease. |
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Landlords Address for
Payment of Rent and
Notices:
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Central Building, LLC
4695 Chabot Drive
Pleasanton, CA 94588 |
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With a copy of all notices to: |
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Rentschler / Tursi LLP |
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160 Bovet Road, Suite 200 |
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San Mateo, CA 94402 |
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Attention: Judith J. Rentschler |
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Business Hours:
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6:00 a.m. to 6:00 p.m., Monday Friday (Excluding Holidays) |
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Tenants Address for
Notices:
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The Premises |
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Access Card Deposit:
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$25 .00 per card |
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Broker(s):
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None |
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Guarantor(s):
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None |
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Additional Provisions:
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As set forth below |
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Parking Density
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4:1000; Tenant shall be entitled to the nonexclusive use of
28 parking spaces. |
2. Section 2.2 of the Lease, Rent Commencement Dates, is hereby deleted. The Commencement
Date, Rent Commencement Date, and Expiration Date shall be as set forth in the Basic Lease
Information herein.
3. Section 3.1 of the Lease, Base Rent: Base Rent for the Entire Premises shall commence on
the Rent Commencement Date set out above.
4. Exhibit B to the Lease, Construction Rider, is hereby deleted. Prior to the Commencement
Date set forth above, Landlord shall clean all carpets throughout the Premises and shall paint the
interior of the Premises, and shall have no obligation or liability for any other alterations or
improvements to the Premises. Landlord shall use commercially reasonable measures to minimize any
disruption to Tenant in the performance of such work, and Tenant shall not be entitled to any
abatement of Rent or other relief or compensation during the performance thereof.
5. Section 39 in Exhibit D of the Lease is hereby deleted in its entirety.
6. Section 40 in Exhibit D of the Lease is hereby deleted in its entirety.
7. Early Termination Right: Tenant shall have a one-time option to terminate this Lease,
effective on March 30, 2007 (the Early Termination Date) by delivery of written notice of its
election to Landlord not later than 90 days prior to the Early Termination Date. If Tenant timely
exercises its option as set forth herein, Tenant shall surrender the Premises to Landlord on the
Early Termination Date in the condition required hereunder, and the Lease shall expire as if the
Early Termination Date were the Expiration Date for all purposes.
8. Capitalized Terms: All terms capitalized herein shall have the same meanings ascribed to
them in the Lease, unless otherwise expressly modified hereby.
9. Effective Date of Amendment: This Amendment to Lease shall be effective as of March
30,2005 (the Effective Date).
10. Affirmation: Except to the extent expressly amended hereby, each and every provision set
forth in the Lease is hereby affirmed and shall remain unchanged.
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LANDLORD: CENTRAL BUILDING, LLC |
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TENANT: IRONPLANET.COM |
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By:
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/s/ Neal Smither
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By:
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/s/ Robert Alleger
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Name Printed:
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Neal Smither
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Name Printed:
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Robert Alleger |
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Title:
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Member
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Title:
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President & CEO |
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Date:
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13 JAN 2005
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Date:
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12 JAN 05 |
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SIXTH AMENDMENT TO LEASE AGREEMENT
This SIXTH AMENDMENT TO LEASE AGREEMENT (Amendment) is made and entered into as of
August 5, 2008, by and between THE ROBISON FAMILY TRUST DATED OCTOBER 30, 1989
(Landlord) and IRONPLANET.COM, INC., a Delaware corporation (Tenant).
RECITALS:
A. WHEREAS, Landlords predecessor-in-interest and Tenant entered into that certain
Lease Agreement dated as of April 28, 2000 (Original Lease), pursuant to which Landlord
leased to Tenant and Tenant leased from Landlord space located at 4695 Chabot Drive,
Pleasanton, California (Building) which consisted of approximately 27,594 rentable
square feet of space commonly known as Suite 101, Suite 102 and Suite 202 (Original
Premises);
B. WHEREAS, the Original Lease was amended by that certain First Amendment to Lease
dated as of November 6, 2000 (First Amendment), pursuant to which Tenant
surrendered approximately 18,709 rentable square feet of the Original Premises to Landlord
and retained approximately 8,805 rentable square feet of space;
C. WHEREAS, the Original Lease was further amended by that certain Second Amendment
to Lease dated as of March 9, 2001 (Second Amendment), pursuant to which Tenant
surrendered approximately 1,992 rentable square feet of space of the Original Premises
commonly known as Suite 101 to Landlord and retained approximately 6,994 rentable square
feet of space consisting of Suite 102 and approximately 80 rentable square feet of space
of Suite 202 and referred to in the First Amendment and Second Amendment as the PBX room
(collectively, Suite 102 Premises);
D. WHEREAS, the Original Lease was further amended by that certain Third Amendment to
Lease dated as of July 18, 2001 (Third Amendment);
E. WHEREAS, the Original Lease was further amended by that certain Fourth Amendment
to Lease dated as of June 4, 2003 (erroneously titled Third Amendment and referred to
herein as the Fourth Amendment);
F. WHEREAS,
the Original Lease was further amended by that certain First
Amendment to Lease dated as of January 12, 2005 (erroneously titled Fourth Amendment and
referred to herein as the Fifth Amendment and the Original Lease as amended by the First
Amendment, Second Amendment, Third Amendment, Fourth Amendment and Fifth Amendment shall
be referred to herein as the Lease);
G. WHEREAS, the Lease Term expires on March 30, 2010; and
H. WHEREAS, Landlord and Tenant now desire to further amend the Lease in accordance
with the terms hereof whereby, among other things: (i) the correct square footage of the
Suite 102 Premises shall be confirmed; (ii) the Lease Term shall be extended by the
Second
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ROBISON FAMILY TRUST |
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ORIGINAL AUTHORIZED DOCUMENTS |
1
Extension Term (as hereinafter defined); and (iii) Landlord shall lease to Tenant
and Tenant shall lease from Landlord Suite 114 consisting of approximately 1,436 of
rentable square feet of space on the first floor of the Building (Suite 114 Premises)
as of the Second Extension Term Commencement Date (as hereinafter defined), all upon the
terms and conditions set forth in the Lease, as amended hereby.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Recitals. The foregoing recitals are incorporated herein by this reference.
2. Defined Terms. Capitalized terms not otherwise defined herein shall have
the meaning given such terms in the Lease.
3. Effective Date. The effective date of this Amendment shall be upon the
mutual execution and delivery of this Amendment by Landlord and Tenant (Effective Date).
4. Readjustment of Suite 102 Premises. After the execution of the Fifth
Amendment, Landlord remeasured the Suite 102 Premises. Pursuant to said remeasurement, the
Suite 102 Premises consists of 6,994 rentable square feet and from and after the Second
Extension Term Commencement Date, such figure shall be used for the rentable square feet
of the Suite 102 Premises. No adjustment shall be made as between Landlord and Tenant with
respect to any rent or other amounts paid by Tenant to Landlord in connection with the
period prior to the Second Extension Term, as a result of the prior square footage
calculation.
5. Extension of Lease Term. Pursuant to the Fifth Amendment, the Lease Term
expires on March 30, 2010. As of the Effective Date, the Lease Term shall be extended for
an additional sixty (60) months (Second Extension Term), commencing on September 1, 2008
(Second Extension Term Commencement Date) and expiring on August 31, 2013 (Lease
Expiration Date). During the Second Extension Term, all of the terms and provisions of
the Lease, as amended by this Amendment, shall be in full force and effect and shall be
applied in the same manner as such terms and provisions were applied during the original
term of the Lease.
6. Suite 102 Premises Base Rent. As of the Second
Extension Term Commencement Date, the monthly Base Rent for the Suite 102 Premises shall
be as follows:
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Rental Rate Per |
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Monthly Base Rent |
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Rentable Square |
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for the Suite 102 |
Period |
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Foot |
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Premises |
September 1, 2008 August 31, 2009 |
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$ |
2.00 |
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$ |
13,988.00 |
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September 1, 2009 August 31, 2010 |
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$ |
2.05 |
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$ |
14,337.70 |
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ROBISON FAMILY TRUST |
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ORIGINAL AUTHORIZED DOCUMENTS |
2
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Rental Rate Per |
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Monthly Base Rent |
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Rentable Square |
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for the Suite 102 |
Period |
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Foot |
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Premises |
September 1, 2010 August 31, 2011 |
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$ |
2.10 |
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$ |
14,687.40 |
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September 1, 2011 August 31, 2012 |
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$ |
2.15 |
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$ |
15,037.10 |
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September 1, 2012 August 31, 2013 |
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$ |
2.20 |
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$ |
15,386.80 |
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7. As-Is. Tenant agrees and acknowledges that the Suite 102 Premises
remain acceptable for Tenants use and Tenant acknowledges that neither Landlord nor any
broker or agent has made any representations or warranties in connection with the physical
condition of the Suite 102 Premises or its fitness for Tenants use upon which Tenant has
relied directly or indirectly for any purpose. Tenant accepts the Suite 102 Premises in
an AS IS condition. Except as expressly provided to the contrary in the Lease, as
amended hereby, Landlord shall not be required to make any expenditure, incur any
obligation, or incur any liability of any kind whatsoever in connection with the Lease as
amended hereby or the ownership, construction, maintenance, operation or repair of the
Suite 102 Premises.
8. Suite 114 Premises; Suite 114 Premises Term.
(a) In consideration of the rents, terms, provisions and covenants of this Amendment
and the Lease, Landlord hereby leases unto Tenant and Tenant hereby rents and accepts from
Landlord the Suite 114 Premises. The Suite 114 Premises is more particularly described
on Exhibit A attached hereto.
(b) The term for the Suite 114 Premises (Suite 114 Term) shall be for sixty (60)
months and shall commence on the Second Extension Term Commencement Date and expire on the
Lease Expiration Date, as set forth in Section 5 herein.
(c) Landlord shall provide Tenant with limited access to the Suite 114 Premises
commencing on August 15, 2008 for the sole purpose of permitting Tenant to prepare the
Suite 114 Premises for Tenants occupancy. Tenants early access shall be at such times as
are reasonably specified by Landlord so that Tenants access does not interfere with the
performance of the Suite 114 Tenant Improvements (as defined in Exhibit B attached
hereto). Tenants access to the Suite 114 Premises during the period of time prior to the
Second Extension Term Commencement Date shall be subject to all the provisions of the
Lease (including the Building Rules and such other rules and regulations as Landlord may
reasonably impose), other than the payment of Base Rent and the Lease Termination Date
shall not be advanced by such access by Tenant. Tenant shall not interfere with Landlords
performance of the Suite 114 Tenant Improvements.
9. Suite 114 Premises Base Rent. As of the Second Extension Term Commencement
Date, the monthly Base Rent for the Suite 114 Premises shall be as follows:
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ROBISON FAMILY TRUST |
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ORIGINAL AUTHORIZED DOCUMENTS |
3
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Rental Rate Per |
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Monthly Base Rent |
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Rentable Square |
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for the Suite 114 |
Period |
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Foot |
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Premises |
September 1, 2008 August 31, 2009 |
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$ |
0.00 |
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$ |
0.00 |
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September 1, 2009 August 31, 2010 |
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$ |
2.05 |
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$ |
2,943.80 |
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September 1, 2010 August 31, 2011 |
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$ |
2.10 |
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$ |
3,015.60 |
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September 1, 2011 August 31, 2012 |
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$ |
2.15 |
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$ |
3,087.40 |
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September 1, 2012 August 31, 2013 |
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$ |
2.20 |
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$ |
3,159.20 |
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10. Suite 114 Tenant Improvements. Landlord shall cause the Suite 114
Tenant Improvements to be performed prior to the Second Extension Term Commencement Date.
11. Suite 114 Base Year. The Base Year for the Suite 114 Premises during the
Second Extension Term shall be 2008.
12. Tenants Proportionate Share. As of the Second Extension Term
Commencement Date, Tenants Share, set forth in the Basic Lease Information of the Lease
shall be adjusted to 9.4%.
13. Premises.
(a) As of the Second Extension Term Commencement Date, the term Premises shall be
and mean the Suite 102 Premises and the Suite 114 Premises.
(b) As of the Second Extension Term Commencement Date, Exhibit A-1, Exhibit A-
2, and Exhibit A-3 attached to the Original Lease shall be deemed to have been
deleted in their entirety and replaced with Exhibit A attached hereto.
14. Lease Term. As of the Second Extension Term Commencement Date, the
term Lease Term shall be and mean the Second Extension Term and the Suite 114 Term.
15. Parking. As of the Second Extension Term Commencement Date, the number of
parking spaces Tenant is entitled to shall be adjusted to thirty-three (33) parking
spaces, to take into account the leasing of the Suite 114 Premises to Tenant.
16. Option to Renew.
(a) Subject to the terms of this Section 16 and provided that no default is
occurring, Tenant shall have one (1) option to extend the Lease Term for sixty (60)
months (Second Renewal Option) commencing upon the expiration of the Second Extension
Term (such extended term herein referred to as the Third Extension Term). In the event
Tenant elects to exercise its option to extend the Lease Term by the Third Extension
Term, as provided hereunder, Tenant shall provide Landlord irrevocable written notice of
such election, no earlier than two hundred seventy (270) days and no later than one
hundred eighty (180) days prior to the Lease Expiration Date. Except for Base Rent, the
terms and conditions of the Lease during the
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ROBISON FAMILY TRUST |
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ORIGINAL AUTHORIZED DOCUMENTS |
4
Third Extension Term shall be identical to the terms and conditions of the Lease.
Base Rent for the Third Extension Term shall be adjusted to be equal to the higher of (a)
one hundred percent (100%) of the fair market rental value (FMV) for comparable
properties in Pleasanton, California, as of the commencement of the Third Extension Term,
as such FMV is reasonably determined by Landlord, or (b) the Base Rent Tenant is scheduled
to pay during the last month of the Second Extension Term.
(b) Notwithstanding anything to the contrary set forth herein, Tenant shall have no right
to exercise the Second Renewal Option (or if the Second Renewal Option is exercised, but the
following conditions are not satisfied, then the exercise of the Second Renewal Option shall
be void) if: (i) there has been any materially adverse change in the financial condition of
the Tenant as of the Commencement Date, or (ii) if the net worth (determined in accordance
with generally accepted accounting principles consistently applied) of the Tenant at the time
it desires to exercise the Second Renewal Option or as of the commencement date of the Third
Extension Term is less than the net worth (as so determined) of Tenant: (1) at the
Commencement Date or (2) mutual execution and delivery of the Lease, whichever is greater.
Tenant shall be required, as a condition precedent to the Second Renewal Option being validly
exercised, to provide evidence (which shall be reasonably acceptable to Landlord) that the
foregoing conditions have been satisfied. Additionally, it shall be a condition precedent to
the exercise of the Second Renewal Option that Landlord and Tenant execute and deliver an
amendment to the Lease not later than thirty (30) days after the exercise by Tenant of the
Second Renewal Option.
(c) Notwithstanding anything to the contrary contained herein, the Second Renewal Option
in this Section 16 is personal to IronPlanet.com, Inc, shall be exercisable only by
IronPlanet.com, Inc and may not be assigned or exercised by any assignee, sublessee or
transferee of IronPlanet.com, Incs interest in the Lease, or any successor in interest to
IronPlanet.com, Inc, nor may it be exercised if any portion of the Premises is sublet, or if
IronPlanet.com, Inc is not occupying 100% of the Premises or if any default shall have
occurred, unless Landlord, in its sole and absolute discretion, elects to waive the same.
17.
18. Tenants Representations and Warranties. Tenant hereby represents and
warrants to Landlord that the Lease as amended hereby constitutes a valid and binding
obligation of Tenant, enforceable against Tenant in accordance with their terms, and
Tenant has no defenses, offsets or counterclaims with respect to its obligations
thereunder. Tenant also represents and warrants that there is no existing default on the
part of the Landlord or the Tenant in any of the terms and conditions of the Lease and no
event has occurred which, with the passing of time or giving of notice or both, would
constitute an event of default under the Lease by Landlord or Tenant.
19. Express Changes Only. Except as set forth in this Amendment, all of the
terms and provisions of the Lease shall remain unmodified and in full force and effect and
shall be incorporated herein.
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ROBISON FAMILY TRUST |
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ORIGINAL AUTHORIZED DOCUMENTS |
5
20. Brokers. Tenant warrants that it has had no dealings with any real estate
broker or agent other than Colliers International, on behalf of Landlord, whose commission shall be
payable by Landlord pursuant to a separate written agreement. If Tenant has dealt with any other
person or real estate broker with respect to leasing or renting space in the Building, Tenant shall
be solely responsible for the payment of any fee due said person or firm and Tenant shall hold
Landlord free and harmless against any liability in respect thereto, including attorneys fees and
costs.
21. Counterparts. This Amendment may be executed in any number of counterparts, each
of which when executed and delivered shall be deemed to be an original and all such counterparts
together, shall constitute one and the same instrument. The execution of facsimiles of this
Amendment shall be binding on the parties hereto.
22. Entire Agreement. There are and were no oral or written representations,
warranties, understandings, stipulations, agreements, or promises made by either party, or by any
agent, employee, or other representative of either party, pertaining to the subject matter of this
Amendment which have not been incorporated into this Amendment. This Amendment shall not be
modified, changed, terminated, amended, superseded, waived, or extended except by a written
instrument executed by the parties hereto.
23. Governing Law. The validity and effect of this Amendment shall be governed by and
construed in accordance with the laws of the State of California.
24. WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AMENDMENT HEREBY EXPRESSLY
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
ARISING HEREUNDER WHETHER SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION IS NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE;
AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AMENDMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF
THE PARTIES HERETO TO THE WAIVER OF ANY RIGHT THEY MIGHT OTHERWISE HAVE TO TRIAL
BY JURY. NOTWITHSTANDING THE FOREGOING TO THE CONTRARY, IN THE EVENT THAT THE JURY TRIAL WAIVER
CONTAINED HEREIN SHALL BE HELD OR DEEMED TO BE UNENFORCEABLE, EACH PARTY HERETO
HEREBY EXPRESSLY AGREES TO SUBMIT TO JUDICIAL REFERENCE PURSUANT TO CALIFORNIA CODE OF CIVIL
PROCEDURE SECTIONS 638 THROUGH 645.1 ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING HEREUNDER
FOR WHICH A JURY TRIAL WOULD OTHERWISE BE APPLICABLE OR AVAILABLE. PURSUANT TO SUCH JUDICIAL
REFERENCE, THE PARTIES AGREE TO THE APPOINTMENT OF A SINGLE REFEREE AND SHALL USE THEIR BEST
EFFORTS TO AGREE ON THE SELECTION OF A REFEREE. IF THE PARTIES ARE UNABLE TO AGREE ON A SINGLE A
REFEREE, A REFEREE SHALL BE APPOINTED BY THE COURT UNDER CALIFORNIA CODE OF CIVIL PROCEDURE
SECTIONS 638
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6
AND 640 TO HEAR ANY DISPUTES HEREUNDER IN LIEU OF ANY SUCH JURY TRIAL. THE PARTIES
ACKNOWLEDGE AND AGREE THAT THE APPOINTED REFEREE SHALL HAVE THE POWER TO DECIDE ALL ISSUES IN THE
APPLICABLE ACTION OR PROCEEDING, WHETHER OF FACT OR LAW, AND SHALL REPORT A STATEMENT OF DECISION
THEREON; PROVIDED, HOWEVER, THAT ANY MATTERS WHICH WOULD NOT OTHERWISE BE THE SUBJECT OF A JURY
TRIAL WILL BE UNAFFECTED BY THIS WAIVER AND THE AGREEMENTS CONTAINED HEREIN. THE PARTIES HERETO
HEREBY AGREE THAT THE PROVISIONS CONTAINED HEREIN HAVE BEEN FAIRLY NEGOTIATED ON AN ARMS-LENGTH
BASIS, WITH BOTH SIDES AGREEING TO THE SAME KNOWINGLY AND BEING AFFORDED THE OPPORTUNITY TO HAVE
THEIR RESPECTIVE LEGAL COUNSEL CONSENT TO THE MATTERS CONTAINED HEREIN. ANY PARTY TO THIS AMENDMENT
MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY AND THE AGREEMENTS
CONTAINED HEREIN REGARDING THE APPLICATION OF JUDICIAL REFERENCE IN THE EVENT OF THE INVALIDITY OF
SUCH JURY TRIAL WAIVER.
[SIGNATURE PAGE ATTACHED]
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LANDLORD: |
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ROBISON FAMILY TRUST DATED OCTOBER 30, 1989 |
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By:
Name:
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/s/ Clair Robison
Clair Robison
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Its:
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Trustee |
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TENANT: |
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IRONPLANET.COM, INC., |
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a Delaware corporation |
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By:
Name:
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/s/ Carol Parrella
Carol Parrella
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Its:
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8-7-2008 |
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EXHIBIT A
SUITE 102 PREMISES FLOOR PLAN AND SUITE 114 PREMISES FLOOR PLAN
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EXHIBIT
B
WORK LETTER
This work letter shall set forth the terms and conditions relating to the construction of the
tenant improvements by Landlord or Landlords contractor in the Suite 114 Premises.
A. Tenant Improvements. Landlord shall, at its cost, using building standard
materials and colors, perform the following improvements to the Suite 114 Premises (Suite 114
Tenant Improvements): Landlord shall (a) paint and install carpet per Building standard finishes
to be selected by Tenant, (b) reduce the size of the storage room, remove existing cabinetry and
replace existing VCT flooring per the Space Plan, attached hereto as Schedule 1, and (c)
remove private offices to create more open office per the Space Plan. All Suite 114
Tenant Improvements shall be deemed Landlords property under the terms of the Lease and shall
revert to Landlord upon termination of the Lease for any reason, it being understood and agreed
that Tenant shall have no ownership interest whatsoever in the Suite 114 Tenant Improvements.
B. Contractors. Landlord shall select such general and subcontractors as Landlord
determines are appropriate in Landlords sole and absolute discretion for the construction of the
Suite 114 Tenant Improvements.
C. Cooperation of Tenant. Tenant shall reasonably cooperate with Landlord in the
construction and supervision of the Suite 114 Tenant Improvements and shall not interfere with
same.
D. No Representations or Warranties. Landlord makes no representations or
warranties of any kind with respect to the construction of the Suite 114 Tenant Improvements.
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Schedule 1
Suite 114 Premises Space Plan
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