TeleNav 2011 Annual Report Download - page 124

(collectively, “ Rent ”). As used herein, “ Additional Rent ”
means all amounts, other than Base Rent, that Tenant is required to pay Landlord
hereunder. Monthly payments of Base Rent and monthly estimated payments of “Direct Expenses” (defined in Section 4.1
below) shall be paid
in advance on or before the first day of each calendar month during the Lease Term; provided, however, that the installment of Base Rent for the
first full calendar month for which Base Rent is payable hereunder and the installment of Direct Expenses for the first full calendar month for
which such Additional Rent is payable hereunder shall be paid upon Tenant’
s execution and delivery of this Lease. Except as otherwise provided
herein, all other items of Additional Rent shall be paid within 30 days after Landlord’
s written request for payment. Rent for any partial calendar
month shall be prorated based on the actual number of days in the month.
3.2 Additional Rent Upon Default by Tenant
. Landlord and Tenant acknowledge that to induce Tenant to enter into this Lease,
and in consideration of Tenant’
s agreement to perform all of the terms, covenants and conditions to be performed by Tenant under this Lease, as
and when performance is due during the Lease Term, Landlord has incurred (or will incur) significant costs, including, without limitation, the
following: (i) payment of the Allowance (as described in the Tenant Work Letter), (ii) commissions to Landlord’s and/or Tenant’
s real estate
broker, (iii) attorneys’
fees and related costs incurred and/or paid by Landlord in connection with the negotiation and preparation of this Lease
and/or (iv) the Base Rent Abatement granted to Tenant as set forth in Item 4 of the Summary (collectively, the “ Inducements ”).
Landlord and
Tenant further acknowledge that Landlord would not have granted the Inducements to Tenant but for Tenant’
s agreement to perform all of the
terms, covenants, conditions and agreements to be performed by it under this Lease for the entire initial Lease Term, and that Landlord’
s
agreement to incur such expenditures and grant such concessions is, and shall remain, conditioned upon Tenant’
s faithful performance of all of
the terms, covenants, conditions and agreements to be performed by Tenant under this Lease for the entire Lease Term. Accordingly, if this
Lease is terminated prior to the expiration of the initial Lease Term because a Default by Tenant shall occur hereunder, Landlord shall be
relieved of any unfulfilled obligation to grant Inducements hereunder, or to incur further expenses in connection therewith, and Tenant shall pay,
as liquidated damages for Landlord’
s granting the Inducements and not as a penalty, within ten (10) days after the occurrence of such
termination because of the Default, as Additional Rent, the unamortized amount of those Inducements (as defined below) incurred or granted
prior to the date of the Default (the “ Pre-Default Inducements ”). Landlord may or, at Tenant’
s request, shall, after the occurrence of a Default
that may lead to a termination, forward a statement to Tenant setting forth the amount of the unamortized Pre-
Default Inducements, but the
failure to deliver such a statement shall not be or be deemed to be a waiver of the right to collect the Pre-
Default Inducements or to extend the
date upon which such amount shall be due and payable. For purposes of this Section 3.2 , the unamortized amount of the Pre-
Default
Inducements shall equal the remaining principal component, measured on the date of the Default, of a straight-
line amortization commencing on
the first day of the twentieth (20
) full calendar month of the Lease Term and continuing over the Initial Lease Term of a principal amount
equal to the Pre-Default Inducements. Notwithstanding the foregoing, Landlord shall not be entitled to recover Pre-
Default Inducements if, and
to the extent that, Tenant proves that such recovery would be duplicative of amounts that Landlord is otherwise entitled to recover pursuant to
California Civil Code Sections 1951.2 or 1951.4, as applicable.
ARTICLE 4
EXPENSES AND TAXES
4.1 General Terms . In addition to paying the Base Rent, Tenant shall pay, in accordance with Section 4.4
below, for each
Expense Year (defined in Section 4.2.1 below), an amount equal to the sum of the following (collectively, the “ Direct Expenses ”): (a) Tenant’
s
Share of Expenses for such Expense Year, plus (b) Tenant’
s Share of Taxes for such Expense Year, plus (c) a management fee equal to three
percent (3%) of the Base Rent, Tenant’s Share of Expenses and Tenant’
s Share of Taxes payable by Tenant for the applicable Expense Year
(without regard to the Base Rent Abatement described in Item 4 of the Summary) (the “ Permitted Management Fee ”).
The obligations of
Tenant to pay the Additional Rent provided for in this Article 4
shall survive the expiration or earlier termination of this Lease. If this Lease
commences on a day other than the first day of an Expense Year or expires or terminates on a day other than the last day of an Expense Year,
Tenant’
s payment of Direct Expenses for the Expense Year in which such commencement, expiration or termination occurs shall be prorated
based on the ratio between (x) the number of days in such Expense Year that fall within the Lease Term, and (y) the number of days in such
Expense Year. Notwithstanding the foregoing, Tenant shall have no obligation to pay Direct Expenses allocable to the 930 DeGuigne Building
until the earlier to occur of (i) December 1, 2013 or (ii) the date that Tenant or a subtenant occupies the 930 DeGuigne Building or any portion
thereof for the conduct of business.
4.2 Definitions of Key Terms Relating to Additional Rent
. As used in this Lease, the following terms shall have the meanings
hereinafter set forth:
4.2.1 “ Expense Year ”
shall mean each calendar year in which any portion of the Lease Term falls, the parties
acknowledging that, subject to Section 4.1 , Tenant’s payment of Direct Expenses
7
th