Exhibit 10.16
OFFICE LEASE
by and between
L.A.T. INVESTMENT CORPORATION,
a California corporation
"LANDLORD"
and
Cumetrix Data Systems, a California Corporation and
Online Transaction Technologies, Inc., a California Corporation,
Jointly and Severally,
"TENANT"
Effective Date
March 7, 1999
TABLE OF CONTENTS
PAGE
1. Parties . . . . . . . . . . . . . . . . . . . . . . . 1
2. Summary of Basic Terms . . . . . . . . . . . . . . . . 1
3. DEMISE AND TERM . . . . . . . . . . . . . . . . . . . 2
4. POSSESSION AND COMMENCEMENT . . . . . . . . . . . . . 2
5. MONTHLY. . . . . . . . . . . . . . . . . . . . . . . . 2
6. SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . 3
7. OPERATING EXPENSES . . . . . . . . . . . . . . . . . . 3
8. USE OF PREMISES. . . . . . . . . . . . . . . . . . . . 4
9. ALTERATIONS AND ADDITIONS. . . . . . . . . . . . . . . 5
10. REPAIRS. . . . . . . . . . . . . . . . . . . . . . . . 7
11. SERVICE AND UTILITIES. . . . . . . . . . . . . . . . . 7
TABLE OF CONTENTS
(CONTINUED)
PAGE
12. ENTRY BY LANDLORD. . . . . . . . . . . . . . . . . . . 8
13. TENANT'S INSURANCE . . . . . . . . . . . . . . . . . . 8
14. DAMAGE OR DESTRUCTION; EMINENT DOMAIN. . . . . . . . . 9
15. ASSIGNMENT AND SUBLETTING. . . . . . . . . . . . . . . 11
16. QUIET ENJOYMENT. . . . . . . . . . . . . . . . . . . . 13
17. MORTGAGE PROTECTION. . . . . . . . . . . . . . . . . . 14
18. ESTOPPEL CERTIFICATE . . . . . . . . . . . . . . . . . 14
TABLE OF CONTENTS
(CONTINUED)
PAGE
19. DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . 15
20. REMEDIES FOR DEFAULT . . . . . . . . . . . . . . . . . 15
21. Holding Over . . . . . . . . . . . . . . . . . . . . . 18
22. Indemnification and Exculpation. . . . . . . . . . . . 19
23. Rules and Regulations. . . . . . . . . . . . . . . . . 20
24. OTHER TAXES. . . . . . . . . . . . . . . . . . . . . . 20
25. TENANT'S BROKER. . . . . . . . . . . . . . . . . . . . 20
26. Parking. . . . . . . . . . . . . . . . . . . . . . . . 20
27. AUTHORITY TO ENTER INTO LEASE. . . . . . . . . . . . . 21
28. RELOCATION . . . . . . . . . . . . . . . . . . . . . . 21
29. REMOVAL OF PROPERTY. . . . . . . . . . . . . . . . . . 22
30. OPTION TO EXTEND TERM. . . . . . . . . . . . . . . . . 22
31. RIGHT OF FIRST REFUSAL . . . . . . . . . . . . . . . . 22
32. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . 23
TABLE OF CONTENTS
(CONTINUED)
PAGE
LIST OF EXHIBITS
------------------
Exhibit "A" - Premises Floor Plan
------------
Exhibit "B" - Lease Commencement Date Confirmation
------------
Exhibit "C" - Rules and Regulations of Building
------------
Exhibit "D" - Corporate Resolution
------------
Exhibit "E" - Tenant Improvements
------------
INDEX OF DEFINED TERMS
TERM WHERE DEFINED
Additional Rent Article 5
Alterations Section 9.1(a)
Base Year Article 2
Building Article 2
Building Parking Facility Article 26
Building 7 Article 26
Commencement Date Section 4.3
Comparison Year Section 7.1(a)
Expiration Date Article 2
HVAC Section 9.1(a)
Land Article 2
Landlord Article 1
Landlord's Affiliates Section 22.1(b)
Landlord's Mortgages Section 17.1
Laws Section 8.3
Lease Term Article 2
Liabilities Section 22.1(a)
Liens Section 9.3
Monthly Rent Article 2
Operating Expenses Section 7.1(c)
Option Article 29
Permitted Use Article 2
Premises Article 2
Real Property Taxes Section 7.1(b)
Relocation Notice Article 28
Rentable Area of Building Article 2
Rentable Area of Premises Article 2
Scheduled Commencement Date Article 2
Security Deposit Article 2
Superior Lease and Mortgages Article 16
Tenant Article 1
Tenant's Affiliates Section 22.1(b)
Tenant's Broker Article 2
Tenant's Parking Article 26
Tenant's Property Article 9.2
Tenant's Share Article 2
OFFICE LEASE
1. Parties
-------
This office lease ("Lease"), dated for reference purposes only as February
18, 1999 is entered into by and between L. A. T. INVESTMENT CORPORATION, a
California corporation ("Landlord"), and Cumetrix Data Systems, a California
Corporation ("Landlord"), and Cumetrix Data Systems, a California Corporation
and Online Transaction Technologies, Inc., a California Corporation, Jointly and
Severally, ("Tenant").
2. Summary of Basic Terms
-------------------------
As used in this Lease, the following terms shall have the meanings set
forth below, subject to the qualifications, adjustments and exceptions set forth
elsewhere in this Lease:
(a) Base Year: calendar year 1999.
----------
(b) Building: The office building located at 0000 Xxxx Xxxxxxx
--------
Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx, including all plazas, lobbies, landscaped
areas, office and commercial space and parking garages.
(c) Commencement Date: March 7, 1999.
------------------
(d) Expiration Date: March 6, 2002.
----------------
(e) Land: the Parcel(s) of land upon which the Building is
----
located.
(f) Landlord's Address for Notices: 0000 Xxxx Xxxxxxx Xxxxxxxxx,
-------------------------------
Xxxxx 000, Xxx Xxxxxxx, XX 00000, Attn: Property Manager.
(g) Lease Term: Three (3) years.
-----------
(h) Lease Year: Each twelve (12) month period commencing with the
----------
Commencement Date.
(i) Monthly Rent: $6,144.45 during the first Lease Year with 3%
-------------
annual increase in the ensuing Lease Years.
(j) Permitted Use: General Business and professional office use
--------------
consistent with the character of a first class institutional quality office
building (excluding governmental and medical uses) and for no other purpose.
(k) Premises: That portion of the fourteenth floor of the
--------
Building, more commonly referred to as Suite 1400, as shown hatched in black on
the floor plan attached hereto as Exhibit "A".
-------------
(l) Rentable Area of Building: 472,531 rentable square feet
----------------------------
(which number shall be conclusive for all purposes hereunder).
1
(m) Rentable Area of Premises: 5343 rentable square feet (which
---------------------------
number shall be conclusive for all purposes hereunder).
(n) Security Deposit: $6,518.65
-----------------
(o) Tenant's Address for Notices Prior to the Commencement Date:
-------------------------------------------------------------
000 Xxxxxx Xx., Xxxx xx Xxxxxxxx, XX 00000
(p) Tenant's Broker: None
----------------
(q) Tenant's Share: 1.13%
---------------
3. DEMISE AND TERM
-----------------
Landlord hereby leases the Premises to Tenant and Tenant hereby leases the
Premises from Landlord, subject to all of the terms, covenants and conditions in
this Lease. The Premises are leased for the Lease Term, which, subject to
Article 4 below, shall commence on the Commencement Date and shall
----------
expire on the Expiration Date, unless sooner terminated pursuant to the
provisions of this Lease.
4. POSSESSION AND COMMENCEMENT
-----------------------------
4.1 Delay in Delivery of Possession. If Landlord cannot deliver
---------------------------------
possession of the Premises to Tenant on the Commencement Date for any reason,
this Lease shall not be void or voidable nor shall Landlord be liable to Tenant
for any Liabilities resulting therefrom, and Tenant waives the provisions of any
Laws to the contrary. In this case, the Lease Term and the regular installments
of Monthly Rent and Additional Rent payable by Tenant shall not commence until
Landlord delivers possession of the Premises. If Landlord delivers and Tenant
accepts possession of the Premises prior to the Commencement Date, the Lease
Term shall commence on the date Tenant accepts possession and all of the terms,
covenants and conditions of this Lease, including, without limitation, Tenant's
obligation to pay the Monthly Rent and Additional Rent hereunder, shall commence
as of such date. If Landlord delivers possession of the Premises after the
Commencement Date, the Lease Term shall commence on the date Tenant accepts
possession and the Expiration Date shall be shifted accordingly so that the
Lease Term shall remain as set forth in Section 2(g).
4.2 Delays Caused by Tenant. Notwithstanding anything to the contrary
------------------------
in Section 4.1, if Landlord's failure to deliver possession of the Premises to
Tenant on the Commencement Date results from Tenant's (or its agents' or
employees') acts or omissions, the Monthly Rent and Additional Rent payable by
Tenant shall commence on the date when Landlord would have delivered possession
of the Premises but for such acts or omissions.
4.3 Commencement Date. The term "Commencement Date" means the date set
-----------------
forth in Section 2(c) or the date when the Lease Term commences as described in
Section 4.1 above. Upon Landlord's request, Tenant shall confirm the
------------
Commencement Date if different from the date set forth in Section 2(c) herein,
by executing a confirmation letter (similar in substantial form to the one
attached hereto as Exhibit "B") convenient to memorialize such, but Tenant's
------------
failure to do so shall not affect the commencement of the Lease Term.
2
5. MONTHLY RENT
-------------
5.1 Monthly Rent. Tenant shall pay to Landlord, as rent for the
-------------
Premises, the Monthly Rent stipulated in Article 2. The Monthly Rent shall be
---------
payable in advance on or before the first day of the first full calendar month
of the Lease Term (the "First Month") and on or before the first day of each
successive calendar month thereafter during the Lease Term, except that the
Monthly Rent for the First Month (and for the period {if any} between the
Commencement Date and the First Month) shall be paid upon the execution of this
Lease. The Monthly Rent for any period during the Lease Term which is for less
than one (1) month shall be prorated based on a thirty (30) day month. The
Monthly Rent and all other rent hereunder shall be paid without prior notice or
demand, without deduction or offset, in lawful money of the United States of
America which shall be legal tender at the time of payment, at the office of the
Building or to another person or at another place as Landlord may from time to
time designate in writing. The term "Additional Rent" means all other amounts
payable by Tenant hereunder (whether or not designated as Additional Rent).
6. SECURITY DEPOSIT
-----------------
Upon the execution of this Lease, Tenant shall deposit the Security Deposit
with Landlord. The Security Deposit shall be held by Landlord as security for
the performance of all of Tenant's obligations during the Lease Term. Upon any
default by Tenant under this Lease, Landlord may, but shall not be obligated to
use, apply or retain all or any part of the Security Deposit for the payment of
any rent in default, or any other Liabilities which Landlord may incur as a
result of or in connection with Tenant's default. If any portion of the Security
Deposit is so used or applied Tenant shall, within five (5) days after written
demand therefore, deposit cash with Landlord in an amount sufficient to restore
the Security Deposit to its previous amount. Landlord shall not be required to
keep the Security Deposit separate from its general funds, and Tenant shall not
be entitled to receive interest on the Security Deposit. If Tenant complies with
all of the provisions of this Lease, the unused portion of the Security Deposit
shall be returned to Tenant (or, at Tenant's option, to the last assignee of
Tenant's interest hereunder) within thirty (30) days after the expiration or
sooner termination of the Lease Term and the surrender of possession of the
Premises to Landlord in the conditions required hereby.
7. OPERATING EXPENSES
-------------------
7.1 Definitions. As used in this Lease, the following terms have the
-----------
meanings set forth below:
(a) Comparison Year. Each calendar year after the Base Year, all
----------------
or any portion of which fall within the Lease Term.
3
(b) Real Property Taxes. Any fee, license fee, license tax,
---------------------
business license fee, commercial rental tax, levy, charge, assessment, penalty
or tax imposed by any taxing authority against the Land or the Building; any tax
on Landlord's right to receive, or the receipt of, rent or income from the Land
or the Building; any tax or charge for fire protection, streets, sidewalks, road
maintenance, refuse or other services provided to the Land or the Building; any
tax imposed on this transaction or based on a reassessment of the Land or the
Building due to a change in ownership or transfer of all or part of Landlord's
interest in this Lease, the Land or the Building; and any charge or fee
replacing any tax previously included within this definition. Real Property
Taxes do not include Landlord's federal or state net income, franchise,
inheritance, gift or estate taxes.
(c) Operating Expenses. All costs and expenses of operating,
-------------------
maintaining and repairing the Building and the Land, including, but not limited
to: Real Property Taxes; water and sewer charges; insurance premiums for all
insurance policies deemed necessary by Landlord; deductible amounts under
insurance policies; janitorial services; wages of Landlord's employees engaged
in the operation, maintenance or repair of the Building or the Land, including
all customary employee benefits, Worker's Compensation and payroll taxes;
management fees, or, if no managing agent is retained for the Building, a sum in
lieu thereof which is not in excess of the prevailing rate for the management
services charged by professional management companies for the operation of
similar buildings; legal, accounting and other consulting fees; the cost of air
conditioning, heating, ventilation, electricity, water and other services and
utilities; elevator maintenance; capital improvements and replacements to all or
any portion of the Building and the Land made after completion of the Building,
which shall be appropriately amortized over the useful life of such
improvements; capital improvements and replacements to all or any portion of the
Building and the Land made after completion of the Building as a result of or in
order to comply with any Laws including, but not limited to, Laws pertaining to
energy, natural resources conservation, safety or environmental protection,
which shall be appropriately amortized over the useful life of such
improvements; all costs and expenses incurred by Landlord and interest on any
funds borrowed to pay the cost of any of the foregoing capital improvements;
supplies, materials, equipment and tools; and maintenance and repair of all
parking and common areas. Operating Expenses do not include depreciation on the
existing Building and improvements or equipment therein, loan payments (except
as expressly provided above), executive salaries or real estate broker's
commissions. Tenant shall not be charged for property tax increase due to sales
or refinancing of the Building during the term of the Lease.
7.2 Payment for Increases in Operating Expenses. If the Operating
-------------------------------------------
Expenses paid or incurred by Landlord in any Comparison Year increase over the
Operating Expenses paid or incurred for the Base Year, Tenant shall pay, as
Additional Rent, Tenant's Share of the increase in the manner set forth in this
Article. If, during any period in a Comparison Year or in the Base Year, less
than ninety-five percent (95%) of the rentable area of the Building is occupied,
the Operating Expenses for that year shall be adjusted to what the Operating
Expenses would have been if ninety-five percent (95%) of the rentable area of
the Building had been occupied throughout that year. Tenant's Share of
increases in Operating Expenses shall be prorated for any partial Comparison
Year which falls within the Lease Term.
4
7.3 Manner of Payment. Landlord shall deliver to Tenant a statement
-------------------
showing Landlord's reasonable estimate of the Operating Expenses for each
Comparison Year and the amount of Tenant's share of any increase in Operating
Expenses based on such estimate. Commencing as of the first day of each
Comparison Year, Tenant shall pay to Landlord, at the times and in the manner
provided herein for the payment of Monthly Rent, one-twelfth (1/12) of Tenant's
Share of any increases as shown by Landlord's statement. If Landlord's
statement is furnished after January 1 of a Comparison Year, then on or before
the first day of the first calendar month following Tenant's receipt of
Landlord's statement, in addition to the monthly installment of Tenant's Share
of any increase due on that date, Tenant shall pay the amount of Tenant's Share
of any increases due on that date, Tenant shall pay the amount of Tenant's Share
of any increases for each calendar month or fraction thereof that has already
elapsed in such Comparison Year.
7.4 Final Statement. After the end of each Comparison Year (including
----------------
the Comparison Year in which the Lease Term terminates), Landlord shall deliver
to Tenant a final statement of the actual Operating Expenses for such Comparison
Year. Within ten (10) days of delivery of each final statement, Tenant shall
pay Landlord the amount due for Tenant's Share of any excess of actual Operating
Expenses over amount paid by Tenant to Landlord on account of Landlord's
reasonable estimate of Operating Expenses. Tenant shall have thirty (30) days
after delivery of Landlord's final statement to object in writing to the
accuracy of the statement. If Tenant does not object within such thirty (30)
day period, Landlord's final statement shall be conclusive and binding on
Tenant. Objections by Tenant shall not excuse or xxxxx Tenant's obligation to
make the payments required under this Section 7.4 (or under Section 7.3) pending
----------- -----------
the resolution of Tenant's objection. Any credit due to Tenant for overpayment
of Tenant's Share of any increases in the Operating Expenses shall be credited
against the installments of Monthly Rent next coming due. However, any
overpayment for the Comparison Year in which the Lease Term terminates shall be
retained by Landlord to increase the Security Deposit, and shall be refunded,
used, applied or retained as set forth in Article 6 above.
---------
8. USE OF PREMISES
-----------------
8.1 Permitted Use. Tenant shall use the Premises only for the
--------------
Permitted Use and shall not use or permit the Premises to be used for any other
purpose.
8.2 Restrictions on Use. Tenant shall not do or permit anything to be
--------------------
done in or about the Premises nor bring or keep anything therein which will (a)
increase the existing rate of, cause the cancellation of, or otherwise adversely
affect any casualty or other insurance for the Building or any part thereof or
any of its contents; (b) impair the proper and economic maintenance, operation
and repair of the Building or any portion thereof; (c) obstruct or interfere
with the rights of other tenants or occupants of the Building or injure or annoy
them; or (d) cause any nuisance in or about the Premises or the Building.
Tenant shall not use or allow any part of the Premises to be used for the
storage, manufacturing or sale of food or beverages or for the manufacture,
retail sale or auction of merchandise, goods or property of any kind, or as a
school or classroom, or for any unlawful or objectionable purpose. Tenant shall
not commit or allow to be committed any waste to the Premises of the Building.
5
8.3 Compliance with Laws. Tenant shall not use the Premises or permit
---------------------
anything to be done in or about the Premises, the Building or the Land which
will in any way conflict with any law, statute, ordinance, code, rule,
regulation, requirement, license, permit, certificate, judgment, decree, order
or direction of any governmental or quasi-governmental authority, agency,
department, board, panel or court (singularly and collectively "Laws"). Tenant
shall, at its expense, promptly comply with all Laws and with the requirements
of any board of fire insurance underwriters or other similar bodies now or
hereafter constituted, relating to or affecting the condition, use or occupancy
of the Premises. Tenant shall not be required to make structural changes to the
Premises unless they arise or are required because of or in connection with
Tenant's specific use of the Premises, or the type of business conducted by
Tenant in the Premises, or Tenant's Alterations, or Tenant's acts or omissions.
Tenant shall obtain and maintain in effect during the Lease Term all licenses
and permits required for the proper and lawful conduct of Tenant's business in
the Premises, and shall at all times comply with such licenses and permits. The
judgment of any court of competent jurisdiction or the admission of Tenant in
any action or proceeding (whether Landlord is a party or not) that Tenant has
violated any Laws shall be conclusive of that fact as between Landlord and
Tenant.
9. ALTERATIONS AND ADDITIONS
---------------------------
9.1 Landlord's Consent.
-------------------
(a) Tenant shall not make or permit to be made any alterations,
additions of improvements (singularly and collectively "Alterations") to or of
the Building or the Premises or any part thereof without the prior written
consent of Landlord in each instance. However, Landlord's consent shall not be
required for minor decorations of the Premises such as wall hangings, and
movable partitions, nor the installation of furnishings and, subject to the
provisions of Section 11.2, office equipment.
-------------
(b) Landlord will not unreasonably withhold its consent to any
Alterations provided and upon the condition that all of the following conditions
shall be satisfied: (i) the Alterations do not affect the outside appearance of
the Building; (ii) the Alterations are nonstructural and do not impair the
strength of the Building or any part thereof; (iii) the Alterations are to the
interior of the Premises and do not affect any part of the Building outside of
the Premises; (iv) the Alterations do not affect the proper functioning of the
heating, ventilating and air conditioning ("HVAC"), mechanical, electrical,
sanitary or other utilities, systems and services of the Building, or increase
the usage thereof by Tenant; (v) Landlord shall have approved the final plans
and specifications for the Alterations and all contractors who will perform
them; (vi) Tenant pays to Landlord (A) a fee for Landlord's indirect costs,
field supervision or coordination in connection with the Alterations equal to
ten percent (10%) of the estimated cost of the Alterations, and (B) the actual
and customary costs and expenses incurred by Landlord in reviewing the Tenant's
plans and specifications and inspecting the Alterations to determine whether
they are being performed in accordance with the approved plans and
specifications and in compliance with Laws, including, without limitations the
fees of any architect or engineer employed by Landlord for such purpose; (vii)
before proceeding with any Alteration which will cost more than $10,000
(exclusive of the
6
costs of items constituting Tenant's Property, as defined Section 9.2), Tenant
-----------
obtains and delivers to Landlord, at Landlord's option, either : (C) a
performance bond and a labor and materials payment bond for the benefit of
Landlord, issued by a corporate surety licensed to do business in California,
each in an amount equal to one hundred twenty five percent (125%) of the
estimated cost of the Alterations and in form satisfactory to Landlord, or (D)
such other security as shall be reasonably satisfactory to Landlord. Unless all
of the foregoing conditions are satisfied, Landlord shall have the right to
withhold its consent to the Alterations in Landlord's sole and absolute
discretion.
(c) Not less than fifteen (15) days nor more than twenty (20) days
prior to commencement of any alterations, Tenant shall notify Landlord of the
work so that Landlord may post notices of non-responsibility about the Premises.
All Alterations must comply with all Laws, the other terms of this Lease, and
the final plans and specifications approved by Landlord, and Tenant shall fully
and promptly comply with and observe the rules and regulations of Landlord then
in force with respect to the making of Alterations. Landlord's review and
approval of Tenant's plans and specifications are solely for Landlord's
benefits. Landlord shall have no duty toward Tenant, nor shall Landlord be
deemed to have made any representation of warranty to Tenant, with respect to
the safety, adequacy, correctness, efficiency or compliance with Laws of the
design of the Alterations, the plans and specifications thereof, or any other
matter regarding the Alterations.
9.2 Ownership and Surrender of Alterations. Upon their installation,
----------------------------------------
all Alterations, including, but not limited to, wall covering, paneling and
built-in cabinets, but excluding movable furniture, trade fixtures and office
equipment ("Tenant's Property"), shall become a part of the realty and belong to
Landlord and shall be surrendered with the Premises. However, upon the
expiration or sooner termination of the Lease Term, Tenant shall, upon written
demand by Landlord, at Tenant's expense, immediately remove any Alterations made
by Tenant which are designated by Landlord to be removed and repair any damage
to the Premises caused by such removal.
9.3 Liens. Tenant shall pay when due all claims for labor, materials
-----
and services furnished by or at the request of Tenant or Tenant's Affiliates.
Tenant shall keep the Premises, the Building and the Land free from all liens,
security interests and encumbrances (including, without limitation, all
mechanic's liens and stop notices) created as a result of or arising in
connection with the Alterations or any other labor, services or materials
provided for or at the request of Tenant or Tenant's Affiliates, or any other
act or omission of Tenant or Tenant's Affiliates, or persons claiming through or
under them. (Such liens, security interests and encumbrances singularly and
collectively are herein called "Liens"). Tenant shall not use materials in
connection with the Alterations that are subject to any Liens. Tenant shall
indemnify Landlord and Landlord's Affiliates for, and hold Landlord and Landlord
harmless from and against: (a) all Liens; (b) the removal of all Liens and any
actions or proceedings related thereto; and (c) all Liabilities incurred by
Landlord or Landlord's Affiliates in connection with the foregoing. If Tenant
fails to keep the Premises, the Building and the Land free from Liens, then, in
addition to any other rights and remedies available to Landlord, Landlord may
7
take any action necessary to discharge such Liens, including, but not limited
to, payment to the claimant on whose behalf the Lien was filed. Tenant shall
indemnify Landlord for, and hold Landlord harmless from and against, all
Liabilities so incurred by Landlord, without regard to any defense or offset
that Tenant may have had against the claimant. Neither Landlord's curative
action nor the reimbursement of Landlord by Tenant's default in failing to keep
the Premises, the Building and the Land free from Liens.
9.4 Additional Requirements. Alterations shall comply with all Laws.
------------------------
Tenant, at its expense, shall obtain all necessary permits and certificates for
the commencement and performance of Alterations and for final approval thereof
upon completion, shall deliver copies of such permits and certificates to
Landlord promptly following the issuance thereof and shall cause the Alterations
to be performed in compliance therewith and with all applicable insurance
requirements, and in a good, first-class and workmanlike manner. Tenant, at its
expense, shall diligently cause the cancellation or discharge of all notices of
violation arising from otherwise connected with Alterations, or any other work,
labor, services or materials done for or supplied to Tenant or Tenant's
Affiliates, or by any person claiming through or under Tenant or Tenant's
Affiliates. Alterations shall be performed so as not to interfere with any
other tenant in the Building, cause labor disharmony therein, or delay or impose
any additional expense on Landlord in the construction, maintenance, repair or
operation of the Building. Throughout the performance of the Alterations,
Tenant, at its expense, shall carry, or cause to be carried, in addition to
insurance described in Article 13, Worker's Compensation insurance in statutory
----------
limits and such other insurance as Landlord may reasonable require, with
insurers reasonably satisfactory to Landlord. Tenant shall furnish Landlord
with satisfactory evidence that such insurance is in effect at or before the
commencement of the Alterations and, upon request, at reasonable intervals
thereafter until completion of the Alterations.
10. REPAIRS
-------
10.1 Conditions of Premises. The Premises shall be delivered to Tenant
----------------------
in an "as is" and "all faults" condition and Landlord shall have no obligation
whatsoever to alter, remodel, improve, repair, decorate or paint the Premises or
any part thereof either prior to or during the Lease Term except to the extent
expressly provided in Exhibit "E" attached hereto. By accepting possession of
-----------
the Premises, Tenant shall be deemed to have acknowledged that the Premises is
suitable for its purposes and it is in good condition and repair. Subject to
Section 10.2, Tenant, at its expenses, shall keep the Premises and every part
-------------
thereof in good condition and repair and shall, upon the expiration or sooner
termination of the Lease Term, surrender the Premises to Landlord broom clean
and in good condition and repair, ordinary wear and tear excepted. Tenant
acknowledges and agrees that it has inspected, or prior to the Commencement Date
will inspect, the Premises and, that Tenant is not relying on any
representations or warranties made by Landlord or Landlord's Affiliates
regarding the Premises, the Building or the Land except as may be expressly set
forth herein.
10.2 Landlord's Obligation to Repair. Subject to Article 14, Landlord
-------------------------------- ----------
shall repair and maintain the common areas and the structural portions of the
Building, including, but not limited to, the structural portions of the roof,
the foundations, exterior load-bearing walls, and the basic HVAC, mechanical,
8
electrical and plumbing systems initially installed by Landlord in the Building.
However, if the repair or maintenance is caused in whole or in part by the act,
neglect, fault or omission of Tenant or Tenant's affiliates or by Tenant's
alterations, Tenant immediately shall pay for such repair or maintenance and
shall indemnify Landlord for and defend and hold Landlord harmless from and
against all other Liabilities incurred by Landlord in connection therewith.
Landlord shall have a reasonable time after written notice from Tenant to
perform necessary repairs or maintenance. Tenant waives all rights granted
under Law to make repairs at Landlord's expense.
11. SERVICE AND UTILITIES
-----------------------
11.1 Landlord's Services. Subject to the rules and regulations of the
--------------------
Building and Section 31.8 herein, Landlord shall furnish to the Premises
-------------
electricity for normal office lighting and fractional horsepower office
machines, water, plumbing and HVAC required in Landlord's judgment for the
comfortable use and occupancy of the Premises, and janitorial services, as
hereinafter provided. Landlord shall also maintain and keep lighted the common
stairs, entries and restrooms in the Building.
11.2 Restrictions on Use. Without the prior written consent of
---------------------
Landlord in each instance, Tenant shall not use or install any apparatus, device
or equipment on the Premises, including, but not limited to, electronic data
processing machines, punch card machines and machines which will require a
dedicated circuit or which will in any way increase the amount of water,
electricity or HVAC normally furnished for similar space in the Building.
Landlord may condition its consent on, among other things, the installation of
additional risers, feeders and other appropriate equipment as well as meters in
the Premises to measure the amount of water and electricity consumed. Tenant
shall pay to Landlord on demand the cost of: (a) purchasing, installing,
maintaining and repairing such equipment and/or meters and units; (b) all water
and electricity consumed as shown by said meters, at the rates charged by the
local utility company; and (c) any additional expense incurred in connection
with the foregoing. If a separate meter is not installed, the cost for any
excess water and electricity will be established by an estimate made by a
utility company or electrical engineer selected by Landlord. Tenant shall not
connect any apparatus, device or equipment except through existing electrical
outlets in the Premises.
11.3 Janitorial Services. The janitorial services to be provided by
--------------------
Tenant shall be provided five (5) days a week, Monday through Friday (except for
Building observed holidays). Janitorial services shall be those customarily
furnished for similar buildings in the general vicinity of the Building.
11.4 Hours of Operation. HVAC for the Premises shall be provided five
-------------------
(5) days a week, Monday through Friday, from 8:00 o'clock a.m. to 6:00 o'clock
p.m. (except for Building observed holidays) and Saturdays from 8:00 o'clock
a.m. to 12 noon (except for Building observed holidays).
9
11.5 Extra Hours. If during any other hours or any other days Tenant
------------
desires to have any services or utilities supplied to the Premises, and if
Landlord is unable to provide the same, Tenant shall pay Landlord such charge as
Landlord shall establish from time to time for providing such services or
utilities; provided, however, such charge shall not exceed Landlord's actual
cost or expense for providing such services or utilities. Any such charges
which Tenant is obligated to pay shall be deemed to be Additional Rent
hereunder.
12. ENTRY BY LANDLORD
-------------------
Landlord shall at all times have the right to enter the Premises in order to:
inspect the Premises; post notices of non-responsibility; show the Premises to
prospective purchasers, lenders or tenants; perform its obligations and exercise
its rights hereunder: and make repairs, improvements, alterations or additions
to the Premises for Building or any portion thereof as Landlord deems necessary
or desirable and to do all things necessary in connection therewith, including,
but not limited to, erecting scaffolding and other necessary structures.
Landlord shall retain (or be given by Tenant) keys to unlock all of the doors
within the Premises, including doors to Tenant's vaults and files. Landlord
shall have the right to use any and all means necessary to obtain entry to the
Premises in an emergency. Landlord's entry to the Premises shall not, under any
circumstances, be deemed to be a forceful or unlawful entry into, or a detainer
of, the Premises or an eviction of Tenant from the Premises or any portion
thereof.
13. TENANT'S INSURANCE
-------------------
13.1 Casualty Insurance. At all times during the Lease Term, Tenant,
-------------------
at its expense, shall maintain in effect policies of casualty insurance
covering: (a) all alterations made by Tenant and all leasehold improvements;
and (b) all of Tenant's Property and other personalty from time to time in, on
or about the Premises, in an amount not less than their full replacement cost
(without deduction for depreciation) from time to time during the term of this
Lease. Such policies shall provide for protection against any perils normally
included within the classification of "All Risks", and shall contain
endorsements covering: demolition and increased cost of construction; water
damage, vandalism and malicious mischief; liability for changes in Laws. The
proceeds of such insurance shall be used for the repair or replacement of the
property so insured, except that upon termination of this Lease following a
casualty as set forth herein, the proceeds applicable to the items described in
clause (a) above shall be paid to Landlord, and the proceeds applicable to the
items described in clause (b) above shall be paid to Tenant.
13.2 Public, Liability and Property Damage Insurance. At all times
---------------------------------------------------
during the Lease Term, Tenant, at its expense, shall maintain comprehensive
General Liability Insurance (including property damage) with respect to the
ownership, maintenance, use, operation and condition of the Premises and the
business conducted therein. Such insurance shall at all times have limits of
not less than One Million Dollars ($1,000,000) combined single limit per
occurrence for bodily injury, personal injury and property damage liability. At
Landlord's request, these limits shall be increased from time to time during the
Lease Term (but not more often than once every two years) to such higher limits
as Landlord or its insurance consultant believe are necessary to protect
Landlord. The amount of such insurance shall not limit Tenant's liability nor
relieve Tenant of any obligation hereunder. Each policy shall contain cross
liability endorsements, if applicable, and shall insure Tenant's performance of
the indemnity provisions contained in Section 22.2 and elsewhere in this Lease
------------
and any other obligations of Tenant to Landlord hereunder.
10
13.3 Other Insurance Required by Law. At all times during the Lease
----------------------------------
Term, Tenant, at its expense, shall maintain any and all other insurance as
required by law, including without limitation workers compensation insurance and
state disability insurance.
13.4 Policy Requirements.
--------------------
(a) All insurance required to be carried by Tenant hereunder shall
be issued by responsible insurance companies, qualified to do business in the
State of California, approved by Landlord and, if required, by Landlord's
Mortgagee. Copies of all policies and certificates therefore shall be delivered
to Landlord and the Landlord's Mortgagee at least ten (10) days prior to
Tenant's occupancy of the Premises. Each policy shall provide that it may not
be canceled or modified except after thirty (30) days prior written notice to
Landlord and Landlord's Mortgagee named as an additional insured or loss payee
thereunder. Tenant shall furnish Landlord with renewals or "binders" of each
policy, together with evidence of payment of the premium therefore, at least
thirty (30) days prior to expiration. Tenant shall have the right to provide
insurance coverage pursuant to blanket policies obtained by Tenant if the
blanket policies expressly afford coverage as required by this Lease. Each
policy shall provide that all losses shall be settled in the name of Landlord
(or, if required, Landlord's Mortgagee) only.
(b) Landlord and, if required, Landlord's Mortgagee shall be named
as an additional insured in each insurance policy and, if requested by Landlord,
they also shall be named as loss payees. The Comprehensive General Liability
Insurance shall: apply severally to Landlord, Landlord's Mortgagee and Tenant;
cover each of them as if separate policies had been issued to each of them; not
contain provisions affecting any rights which any of them would have had as
claimants if not named as an insured; be primary insurance and not considered
contributory, with any other valid and collectible insurance available to
Landlord and Landlord's Mortgagee constituting excess insurance; and be endorsed
as necessary to cover the foregoing requirements.
(c) Each policy of All Risk Coverage which Tenant obtains for the
Premises shall include a clause or endorsement denying the insurer any right of
subrogation against the other party hereto to the extent that rights have been
waived by the insured party prior to the occurrence of injury or loss. Landlord
and Tenant each waive any rights of recovery against the other for injury or
loss due to hazards covered by its own insurance, to the extent of the injury or
loss covered thereby.
13.5 Tenant Failure to Deliver Policies. If Tenant fails to deliver
-------------------------------------
copies of the insurance policies and evidence of payment therefore within the
time required pursuant to Section 13.4, Landlord may, but shall not be obligated
to, obtain the required insurance, and the cost thereof, together with an
administrative fee of Five Hundred Dollars ($500), shall be payable by Tenant to
Landlord on demand. Nothing in this Section shall be deemed to be a waiver of
any rights or remedies available to Landlord under this Lease or at law or in
equity if Tenant fails to obtain and deliver the required insurance policies and
evidence of payment.
11
14. DAMAGE OR DESTRUCTION; EMINENT DOMAIN
---------------------------------------
14.1 Landlord's Restoration. If the Building or the Premises are
-----------------------
partially damaged or totally destroyed by fire or other casualty, and if this
Lease is not terminated as provided in this Article, Landlord shall repair the
damage and restore or rebuild the Building or the Premises (except for Tenant's
Property and leasehold improvements which are above the standard of the
Building) after Landlord receives notice of the damage or destruction and
Landlord receives substantially all of the insurance proceeds receivable on
account of the casualty. However, Landlord shall not be required to spend
amounts in excess of the insurance proceeds actually received for such repair,
restoration or rebuilding. Subject to Article 22, Landlord shall attempt to
----------
make any required repairs or restoration promptly and so as not to interfere
unreasonably with Tenant's use and occupancy of the Premises, but Landlord shall
not be obligated to perform such work on an overtime or premium-pay basis.
14.2 Rent Adjustment. Subject to Section 14.3, if in Landlord's sole
---------------- ------------
judgment, all or part of the Premises are rendered completely or partially
untenable on account of fire or other casualty, or if damage by fire or other
casualty to the Building deprives Tenant of access to the Premises for more than
five (5) consecutive days, the Monthly Rent shall be abated in the proportion
that the rentable area of the untenantable portion of the Premises bears to the
total Rentable Area of the Premises. Such abatement shall commence on the date
of the damage or destruction and shall continue until the Premises have been
substantially repaired and Tenant has reasonable access to the Premises.
However, if Tenant reoccupies the damaged portion of the Premises prior to the
date that the Premises are substantially repaired, the Monthly Rent allocable to
the reoccupied portion shall be payable by Tenant from the date of such
occupancy in the proportion that the rentable area of the reoccupied portion of
the Premises bears to the total Rentable Area of the Premises.
14.3 Exception to Abatement. Monthly Rent shall not be abated or
------------------------
reduced if: (a) the Premises or a portion thereof are rendered untenantable
due to damage or loss of access for a period of five (5) consecutive days or
less; or (b) Landlord provides other space in the Building reasonably suited for
the temporary conduct of Tenant's business (but Landlord shall have no
obligation to provide such other space); or (c) because of acts or omissions of
Tenant or Tenant's Affiliates either (i) Landlord (or any Landlord's Mortgagee)
is unable to collect all of the insurance proceeds (including, without
limitation, rent insurance proceeds) for damage or destruction of the Premises
or the Building, or (ii) the Premises or the Building was damaged or destroyed
or rendered completely or partially untenantable. The collection of rent by
Landlord under the circumstances described in clause (c) above shall not
preclude Landlord from seeking damages from Tenant or exercising any other
rights and remedies it may have under this Lease or at law or in equity.
12
14.4 Election to Terminate. Landlord may terminate this Lease upon
-----------------------
written notice to Tenant if: (a) the Building or the Premises are substantially
or totally destroyed or, in Landlord's sole judgment, rendered untenantable by
fire or other casualty or any other cause; or (b) the Building is damaged or
rendered untenantable (whether or not the Premises are damaged or destroyed or
rendered untenantable) so that its repair or restoration requires the
expenditure (as estimated by a reputable contractor or architect designated by
Landlord) of more than twenty percent (20%) of the full insurable value of the
Building immediately prior to the casualty; or (c) less than two (2) years
remain in the Lease Term at the time of the damage or destruction or events
which rendered the Building or the Premises untenantable and the time necessary
to repair or restore the Building or the Premises would exceed ninety (90) days
(as estimated by a reputable contractor or architect designed by Landlord); or
(d) Landlord would be required under Section 14.2 to xxxxx or reduce the Monthly
Rent for a period in excess of sixth (6) month if repairs or restoration were
undertaken. If Landlord elects to terminate this Lease, its notice of
termination shall be given within one hundred and eighty (180) days after the
date of the damage, destruction or events causing untenatability and this Lease
shall terminate on the date specified in such notice.
14.5 Eminent Domain. Landlord may terminate this Lease upon written
---------------
notice to Tenant if twenty-five percent (25%) or more of either the Premises,
the Building or the Land is condemned, taken or appropriated by any public or
quasi-public authority under the power of eminent domain, police power or
otherwise (or in the event of sale in lieu thereof). Whether or not this Lease
is so terminated, Landlord shall be entitled to any and all income, rent, award,
or interest thereon which may be paid or made in connection with the taking or
appropriation, and Tenant shall have no claim against Landlord for the value of
any unexpired term of this Lease. If Landlord elects to terminate this Lease,
its notice of termination shall be given within sixty (60) days after the
taking or appropriation. If such notice is not given or if Landlord notifies
Tenant of Landlord's election not to terminate, this Lease shall continue in
full force and effect, except that the Monthly Rent shall be reduced in the
proportion that the rentable floor area of the Premises which is taken bears to
the total Rentable Area of the Premises. Nothing contained in this Section
shall prevent Tenant from bringing a separate action or proceeding for
compensation for any of Tenant's Property taken and Tenant's moving expenses.
14.6 Business Interpretation. Landlord shall not incur any Liabilities
-----------------------
of any type to Tenant or Tenant's Affiliates arising from or in connection with
any damage or destruction of the Premises, the Building or the Land, or any
taking or appropriation thereof, or any repairs or restoration in connection
therewith, nor shall Tenant have any right to terminate this Lease as a result
thereof. However, in such event, Monthly Rent shall be abated if and to the
extent that abatement is allowed pursuant to this Article 14.
----------
14.7 Waiver. Tenant waives the application of any laws which are
------
contrary to the provisions of this Article in connection with any damage,
destruction, condemnation, taking or appropriation (or sale in lieu thereof) of
all or any portion of the Premises, the Building or the Land.
13
15. ASSIGNMENT AND SUBLETTING
---------------------------
15.1 Landlord's Consent Required. Tenant shall not voluntarily,
-----------------------------
involuntarily or by operation of any Laws sell, convey, mortgage, assign, sublet
or otherwise transfer or encumber all or any part of Tenant's interest in this
Lease or the Premises without Landlord's prior written consent in each instance,
which consent may be withheld in Landlord's sole and absolute discretion except
as otherwise provided in this Article, and any attempt to do so without this
consent shall be null and void.
15.2 Landlord's Right to Terminate Lease. If Tenant desires to assign
------------------------------------
its interest in this Lease or to sublease all or any part of the Premises,
Tenant shall notify Landlord in writing. This notice shall be accompanied by:
(a) a processing fee in the amount of $500.00; (b) a statement setting forth the
name and business assignment or sublease (and any collateral agreements) setting
forth all of the terms and the financial details of the sublease or assignment
which shall not be effective less than ninety (90) days from the date of
Tenant's notice (including, without limitation, the term, the rent and any
security deposit, "key money", and amounts payable for Tenant's Property and the
common use of any personnel or equipment); (d) financial statements certified by
an independent certified public accountant and other information requested by
Landlord relating to the proposed assignee or subtenant; and (e) any other
information concerning the proposed assignment or sublease which Landlord may
reasonably request. If Tenant proposes to assign this Lease or sublet all or
substantially all of the Premises, Landlord shall have the right, in its sole
and absolute discretion, to terminate this Lease on written notice to Tenant
within ninety (90) days after receipt of Tenant's notice and the information
described above or the receipt of any additional information requested by
Landlord. If Landlord elects to terminate this Lease, this Lease shall
terminate as of the effective date of the proposed assignment or commencement of
the term of the proposed sublease as set forth in Tenant's notice, and Landlord
shall have the right (but no obligation) to enter into a direct lease with the
proposed assignee or subtenant, Tenant may withdraw its request for Landlord's
consent at any time prior to, but not after, Landlord delivers a written notice
of termination.
15.3 Consent by Landlord. If Landlord elects not to terminate this
---------------------
Lease pursuant to Section 15.2, or if a proposed sublease is for less than
-------------
substantially all of the Premises, Landlord shall not unreasonably withhold its
consent to any assignment or subletting (for purposes of this Section, an
assignment shall not include an assignment for security purposes, which shall be
governed by Section 15.1). Tenant agrees that the withholding of Landlord's
-------------
consent shall be deemed reasonable if all of the following conditions are not
satisfied:
(a) The proposed assignee or subtenant shall use the Premises only
for the Permitted Use, and the business of the proposed assignee or subtenant is
consistent with the other uses and the standards of the Building, in Landlord's
reasonable judgment.
(b) The proposed assignee or subtenant is reputable and has net
worth not less than seventy-five percent (75%) of the net worth of Tenant on the
execution of this Lease, has a credit rating reasonably acceptable to Landlord,
and otherwise has sufficient financial capabilities to perform all of its
obligations under this Lease or the proposed sublease, in Landlord's reasonable
judgment.
14
(c) Neither the proposed assignee or subtenant nor any person or
entity that directly or indirectly controls, is controlled by, or is under
common control with the proposed assignee or subtenant is an occupant of any
part of the Building or has negotiated for space in the Building within a six
(6) month period prior to the delivery of Tenant's written notice.
(d) Tenant is not in default and has not committed acts or
omissions which with the running of time or the giving of notice or both would
constitute a default under this Lease.
(e) Tenant has complied with all of the other terms of this
Article.
The conditions described above are not exclusive and shall not limit or prevent
Landlord from considering additional factors in determining if it should
reasonably withhold its consent.
15.4 Corporate and Partnership Transactions. If Tenant is a
-----------------------------------------
corporation, a dissolution of the corporation or a transfer (by one or more
transactions) of a majority of the voting stock of Tenant shall be deemed to be
an assignment of this Lease subject to the provisions of this Article. However,
these provisions shall not apply to transactions with a corporation into or with
which Tenant is merged or consolidated or to which substantially all of Tenant's
assets are transferred or which controls, is controlled by, or is under common
control with, Tenant, if a principal purpose of the merger or transfer is not
the assignment of this Lease and Tenant's successors has a net worth not less
than the net worth of Tenant on the execution of this Lease. Tenant shall cause
reasonable satisfactory proof of such net worth to be delivered at least thirty
(30) days prior to the effective date of the transaction. If Tenant is a
partnership, a dissolution of the partnership (including a "technical"
dissolution) or a transfer of the controlling interest in the Partnership
(including the admission of new partners or the withdrawal of existing partners
having a controlling interest) shall be deemed an assignment of this Lease
subject to the provisions of this Article, regardless of whether the transfer is
made by one or more transactions, or whether one or more persons hold the
controlling interest prior or after the transfer.
15.5 No Release of Tenant. Notwithstanding the granting of Landlord's
---------------------
consent, no sale, conveyance, mortgage, pledge, subletting, assignment or other
transfer or encumbrance of this Lease or the Premises shall release or alter
Tenant's primary liability to pay rent and perform all of its other obligations
hereunder. The acceptance of rent by Landlord from any person other than Tenant
shall not be a waiver by Landlord of any provision hereof. Consent to one
assignment or subletting shall not be deemed to be consent to any subsequent
assignment or subletting. If any assignee or successor of Tenant defaults in
the performance of any of the terms hereof, Landlord may proceed directly
against Tenant without proceeding against or exhausting its remedies against the
assignee or successor. After any assignment, sublease or other transfer or
encumbrance, Landlord may consent to subsequent assignments, subleases,
transfers or encumbrances, or amendments to this Lease, without notifying Tenant
or any other person, without obtaining consent thereto, and without relieving
Tenant of liability under this Lease.
15
15.6 Additional Charges. If Landlord consents to any assignment or
-------------------
sublease, Tenant shall pay the following to Landlord as Additional Rent:
(a) In the case of an assignment, all amounts paid or payable to
Tenant by the assignee for or by reason of such assignment (including sums paid
or payable for the purchase or rental of all or part of Tenant's Property).
(b) In the case of a sublease, the amount by which the sublease
rental exceeds the portion of the rent allocable to the sublease rental exceeds
the portion of the rent allocable to the sublease space hereunder throughout the
sublease term. In computing this amount, the sublease rental shall include all
rents, charges and other consideration paid or payable to Tenant under the terms
of the sublease and any collateral agreements, and sums paid or payable by the
subtenant for the purchase or rental of all or part of Tenant's Property. The
rent hereunder allocable to the subleased space for any period shall equal the
total rent accruing during such period, multiplied by a fraction, the numerator
of which is the rentable area of the subleased space and the denominator of
which is the Rentable Area of the Premises. This Additional Rent shall be paid
by Tenant to Landlord as and when received by Tenant or, at Landlord's option,
on written notice to the assignee or subtenant, Landlord may collect all or any
portion of this Additional Rent directly from the assignee or subtenant. Tenant
shall receive a credit against this Additional Rent in an amount equal to the
net unamortized or undepreciated cost of any of Tenant's Property that is sold
to the assignee or sublessee in connection with such assignment or sublease,
determined on the basis of Tenant's federal income tax returns. This credit
shall be prorated over the period during which this Additional Rent is to be
paid, in proportion to the amounts received by Tenant. Landlord's acceptance or
collection of this Additional Rent will be deemed to be a consent to any
assignment or subletting or a cure of any default under this Article or the rest
of the Lease.
15.7 Additional Terms.
-----------------
(a) Tenant shall pay the reasonable attorney's fees and other
costs and expenses of Landlord in connection with any request for Landlord's
consent to any sale, conveyance, mortgage, pledge, assignment, sublease or other
transfer or encumbrance. The $500.00 application fee (see Section 15.2) shall
------------
be applied toward the payment of such costs.
(b) A sublease will be null and void unless it complies with the
rest of this Lease and provides that: (i) it is a conflict or inconsistency
between the sublease and this Lease, this Lease will prevail; (ii) Landlord may
enforce all the provisions of the sublease, including the collection of rent;
(iii) it may not be modified without Landlord's prior written consent and that
any modification without this consent shall be null and void; (iv) if this Lease
is terminated or Landlord re-enters or repossesses the Premises, Landlord may,
at its option, take over all of Tenant's right, title and interest as sublessor
and, at Landlord's option, the subtenant shall attorn to Landlord, but Landlord
shall not be (x) liable for any previous act or omission of Tenant under the
16
sublease, (y) subject to any existing defense or offset against Tenant, or (z)
bound by any previous modification of the sublease made without Landlord's prior
written consent or by any prepayment of more than one month's rent; and (v) it
is ineffective until Landlord gives its written consent thereto.
(c) An assignment will be null and void unless it complies with
the rest of this Lease and provides that: (i) the assignee assumes all of
Tenant's obligations under this Lease and agrees to be bound by all of the terms
of this Lease; and (ii) it is ineffective until Landlord gives its written
consent thereto.
(d) The sublease or assignment otherwise must exactly match the
proposed sublease or assignment initially submitted by Tenant. A sublease or
assignment will not be effective until a fully executed counterpart is delivered
by Landlord and Landlord delivers its written consent thereto.
(e) This Article is binding on and shall apply to any purchase,
mortgagee, pledgee, assignee, subtenant or other transferee or encumbrancer, at
every level.
(f) Notwithstanding anything to the contrary to this Lease, if
Tenant or any proposed transferee of Tenant claims that Landlord has
unreasonably withheld or delayed its consent under Section 15.3 or otherwise has
------------
breached or acted unreasonably under this Article, their sole remedies shall be
a declaratory judgment and an injunction for the relief sought without any
monetary damages, and Tenant waives all other remedies on its own behalf and, to
the extent permitted under all Laws, on behalf of Tenant's proposed transferee.
16. QUIET ENJOYMENT
----------------
Provided that Tenant pays all rent and performs all of its other obligations as
required hereunder, Tenant shall quietly enjoy the Premises without hindrance or
molestation by Landlord, or any person lawfully claiming through or under
Landlord, subject to the terms of this Lease and the terms of any Superior
Leases and Mortgages, and all other agreements or matters of record or to which
this Lease is subordinate. As used in this Lease, the term "Superior Leases and
Mortgages" means all present and future ground leases, underlying leases,
mortgages, deeds of trust or other encumbrances, and all renewals,
modifications, consolidations, replacements or extensions thereof or advances
made thereunder, affecting all or any portion of the Premises, the Building or
the Land.
17. MORTGAGE PROTECTION
--------------------
17.1 Subordination. This Lease is subordinate to all Superior
-------------
Leases and Mortgages. This Section shall be self-operative and no further
instrument of subordination shall be required. However, in confirmation of such
subordination, Tenant shall execute, acknowledge and deliver any instrument that
Landlord or the lessor, mortgagee or beneficiary under any of the Superior Lease
and Mortgages may request, within ten (10) days after request (each of these
lessors, mortgagees or beneficiary is called a "Landlord's Mortgagee").
17
However, if Landlord, Landlord's Mortgagee or any other successor to Landlord
elect in writing, this Lease shall be deemed superior to the Superior Leases and
Mortgages specified, regardless of the date of recording, and Tenant will
execute agreement confirming this election on request. If Landlord's Mortgagee
or its successor or any successor to Landlord succeeds to Landlord's interest
under this Lease, whether voluntarily or involuntarily, Tenant shall attorn to
such person and recognize such person as Landlord under this Lease.
17.2 Mortgagee's Liability. The obligations and liabilities of
----------------------
each Landlord or Landlord's Mortgagees, or their successors under this Lease
shall exist only if and for so long as each of these respective parties owns fee
title to the Land and the Building or is the lessee under a ground lease
therefore. No Monthly Rent or Additional Rent shall be paid more than thirty
(30) days prior to the due date thereof and payments made in violation of this
provision shall (except to the extent that such payments are actually received
by a Landlord's Mortgagee) be a nullity as against Landlord's Mortgagees or
their successors and Tenant shall be liable for the amount of such payments to
Landlord's Mortgagees or their successors.
17.3 Mortgagee's Right to Cure. No act or omission by Landlord
----------------------------
which would entitle Tenant under the terms of this Lease or any laws to be
relieved of Tenant's obligations hereunder, or to terminate this Lease, shall
result in a release or termination of such obligations or this Lease unless:
(a) Tenant first shall have given written notice of Landlord's act or omission
to Landlord and all Landlord's Mortgagees whose names and addresses shall have
been furnished to Tenant; and (b) Landlord's Mortgagees, after receipt of such
notice, fail to correct or cure the act or omission within a reasonable time
thereafter (but in no event less than sixty (60) days). However, nothing
contained in this Section shall impose any obligation on Landlord's Mortgagees
to correct or cure any act or omission.
18. ESTOPPEL CERTIFICATE
---------------------
Tenant shall, from time to time, within ten (10) days after request by Landlord,
execute and deliver to Landlord or any other person designated by Landlord an
estoppel certificate, in a form satisfactory to Landlord, which certifies: (a)
that this Lease is unmodified and in full force and effect (or, if there have
been modifications, describes them); (b) the expiration date of the Lease Term
and that there are no agreements with Landlord to extend or renew the Lease Term
or to permit any holding over (or if there are any such agreements, describes
them and specifies the periods of extension or renewal); (c) the date through
which the Monthly Rent and Additional Rent have been paid; (d) that Landlord is
not in default in the performance of any of its obligations under this Lease
(or, if there are any such defaults, describes them); (e) that Tenant is not
entitled to any credits, offsets defenses or deductions against payment of the
rent hereunder (or, if they exist, describes them); and (f) such other
information concerning this Lease or Tenant as Landlord or any other person
designated by Landlord reasonably shall request. An estoppel certificate issued
by Tenant pursuant to this Article shall be a representation and warranty by
Tenant which may be relied on by Landlord and by others with whom Landlord may
be dealing regardless of independent investigation. If Tenant fails to execute
and deliver an estoppel certificate as required hereunder, Landlord's
representations concerning the factual matters covered by such estoppel
certificate, as described above, shall be conclusively presumed to be correct
and binding on Tenant.
18
19. DEFAULT
-------
The occurrence of any one or more of the following events shall be a default and
breach under this Lease by Tenant:
(a) The vacating or abandonment of the Premises by Tenant.
(b) The failure by Tenant to make any payment of rent or any other
payment required to be made by Tenant hereunder for a period of three (3) days
after such payment is due.
(c) The failure by Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed by
Tenant, other than those described in subparagraphs (b), (d), (e), (f), (g), (h)
and (i) of this Article 19, where such failure shall continue for a period of
----------
fifteen (15) days after the written notice thereof by Landlord to Tenant.
However, if the nature of these defaults is such that more than fifteen (15)
days are reasonably required to cure, then Tenant shall not be deemed to be in
default if Tenant commences such cure within the fifteen-day (15) period and
thereafter diligently completes the cure within sixty (60) days.
(d) The making by Tenant or any guarantor of this Lease of any
general assignment or general arrangement for the benefit of creditors; or the
filing of or against Tenant or any guarantor of this Lease of a petition or
order for relief under any Laws relating to bankruptcy or insolvency (unless, in
the case of a petition filed against Tenant or any guarantor of this Lease, the
petition is dismissed within sixty (60) days; or the appointment of a trustee,
custodian or receiver to take possession of this Lease where possession is not
restored to Tenant within thirty (30) days; or the attachment, execution or
judicial seizure of substantially all of Tenant's assets or of Tenant's interest
in this Lease, unless discharged within thirty (30) days.
(e) The service by Landlord of three-day notice under California
Code of Civil Procedure Section 1161 on three or more occasions if the previous
service of the three-day notices did not result in the termination of this
Lease.
(f) A sale, conveyance, mortgage, pledge, assignment, sublease or
other transfer or encumbrance, or any attempt to do so, in violation of Article
-------
15.
--
(g) Tenant's failure to deliver the estoppel certificate required
under Article 18, or any written instrument required under Article 17 within the
---------- ----------
time required.
(h) A default under or the repudiation of any guaranty of Tenant's
obligation under this Lease.
19
(i) Tenant's failure to maintain the insurance policies required
hereunder.
(j) The death of Tenant or, if Tenant is comprised of more than
one (1) individual, the death of any of the individuals comprising the Tenant.
20. REMEDIES FOR DEFAULT
----------------------
20.1 General. In the event of any default or breach by Tenant,
-------
Landlord may at any time thereafter, with or without notice or demand:
(a) Terminate Tenant's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Premises to Landlord. In such event
Landlord shall be entitled to recover from Tenant all liabilities incurred by
Landlord or Landlord's Affiliates by reason of Tenant's default, including, but
not limited to: (i) the worth at the time of the award of the amount by which
the unpaid Monthly Rent and Additional Rent which should have been earned or
was payable at the time of termination; (ii) the worth at the time of the award
of the amount by which the unpaid Monthly Rent and Additional Rent which would
have been earned or payable after termination until the time of the award
exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided; (iii) the worth at the time of the award of the amount by
which the unpaid Monthly Rent and Additional Rent which would have been paid for
the balance of the term after the time of award exceeds the amount of such
rental loss that Tenant proves could have been reasonably avoided; and (iv) any
other amount necessary to compensate Landlord for all Liabilities proximately
caused by Tenant's failure to perform its obligations under the Lease or which
in the ordinary course of thing would be likely to result therefrom, including,
but not limited to, any costs or expenses incurred by Landlord in maintaining or
preserving the Premises, the Building and the Land after such default, the cost
of recovering possession of the Premises, expenses of reletting, including
necessary renovation or alteration of the Premises, Landlord's attorneys' fees
and costs incurred in connection therewith, and any real estate commissions paid
or payable. As used in subparts (i) and (ii) above, the "worth at the time of
the award" is computed by allowing interest on unpaid amounts at the rate of
eighteen percent (18%) per annum, or such lesser amount as may then be the
maximum lawful rate. As used in subparagraph (iii) above, the "worth at time
of the award" is computed by discounting such amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of the award, plus one (1)
percentage point. If Tenant abandons the Premises, Landlord shall have the
option of (x) taking possession of the Premises and recovering from Tenant the
amount specified in this subparagraph, or (y) proceeding under the provisions of
subparagraph (b) below. Efforts by landlord to mitigate Tenant's breach of this
Lease shall not waive Landlord's right to recover damages as provided in this
Section 20.1(a).
----------------
(b) Maintain Tenant's right to possession, in which case this
Lease shall continue in effect whether or not Tenant shall have abandoned the
Premises. In such event, Landlord shall be entitled to enforce all of
Landlord's rights and remedies under this Lease and at law or in equity,
including the right to recover the rent and other sums and charges as they
become due hereunder.
20
(c) Pursue any other right or remedy now or hereafter available to
Landlord hereunder or at law or in equity.
20.2 Redemption. Tenant waives any and all rights of redemption
----------
granted by or under any laws if Tenant is evicted or dispossessed for any cause,
or if Landlord obtains possession of the Premises by reason of the violation by
Tenant of any of the terms, covenants or conditions of this Lease, or otherwise.
20.3 Performance by Landlord. If Tenant defaults under this Lease,
-------------------------
Landlord, without waiving or curing the default, may, but shall not be obligated
to, perform Tenant's obligations for the account and at the expense of Tenant.
Notwithstanding Section 19(c), in the case of an emergency, Landlord need not
give any notice prior to performing Tenant's obligations. Tenant irrevocably
appoints Landlord and Landlord's successors and assigns with full power of
substitution, as Tenant's attorney-in-fact, coupled with an interest, to
execute, acknowledge and deliver any instruments in connection with Landlord's
performance of Tenant's obligations if Tenant is in default, and to take all
other actions in connection herewith.
20.4 Post-Judgment Interest. The amount of any judgment obtained by
-----------------------
Landlord against Tenant in any legal proceeding arising out of Tenant's default
under this Lease shall bear interest until paid at the maximum rate allowed by
law, or, if no maximum rate prevails, at the rate of eighteen percent (18%) per
annum. Notwithstanding anything to the contrary contained in any Laws, with
respect to any damages that are certain or ascertainable by calculation,
interest shall accrue from the day that the right to the damages vest in
Landlord, and in the case of any unliquidated claim, interest shall accrue from
the day the claim arose.
21. HOLDING OVER
-------------
Tenant shall not hold over in the Premises after the expiration or sooner
termination of the Lease Term without the express prior written consent of
Landlord. Tenant shall indemnify Landlord for, and defend and hold Landlord
harmless from and against, any and all Liabilities arising out of or in
connection with any delay by Tenant in surrendering and vacating the Premises,
including, without limitation, any claims made by and succeeding Tenant based on
any delay and any Liabilities arising out of or in connection with these claims.
If possession of the Premises is not surrendered to Landlord on the expiration
or sooner termination of the Lease Term, in addition to any other rights and
remedies of Landlord hereunder or at law or in equity, Tenant shall pay to
Landlord for each month or portion thereof during which tenant holds over in the
Premises a sum equal to one hundred and fifty percent (150%) times the
then-current Monthly Rent in addition to all other rent payable under this
Lease. If any tenancy is created by Tenant's holding over in the Premises, the
tenancy shall be on all of the terms and conditions of this Lease, except that
rent shall be increased, as set forth above and the tenancy shall be a
month-to-month tenancy. Nothing in this Article 21 shall be deemed to permit
----------
Tenant to retain possession of the Premises after the expiration or sooner
termination of the Lease Term.
21
22. INDEMNIFICATION AND EXCULPATION
---------------------------------
22.1 Definitions. As used in this Lease, the following terms have the
-----------
meanings set forth below:
(a) Liabilities: All losses, costs, damages, expenses, claims,
-----------
injuries, liabilities and judgments, including, but not limited to, attorneys'
fees and costs (whether or not suit is commenced or judgment entered).
(b) Landlord's Affiliates and Tenant's Affiliates: All
-------------------------------------------------
affiliates, directors, officers, shareholders, partners, agents, employees,
invitees, customers, successors, and assigns of Landlord and Tenant,
respectively.
22.2 Indemnification. In addition to any other indemnities required of
---------------
Tenant hereunder, Tenant shall indemnify Landlord and Landlord's Affiliates,
for, defend, protect and hold Landlord and Landlord's Affiliates harmless from,
any and all Liabilities arising from or in connection with: (a) the use and
occupancy of the Premises by Tenant or Tenant's Affiliates; (b) the conduct of
Tenant's business; (c) any breach or default under this Lease; (d) claims by any
assignee, subtenant, broker or other person if Landlord declines to consent to
any assignment, sublease or other transfer or encumbrance or terminates this
Lease pursuant to Article 15; and (e) any other acts or omissions of Tenant or
Tenant's Affiliates or persons claiming through or under them.
22.3 Damage to Person or Property. Tenant assumes the risk of all
----------------------------
Liabilities it may incur, including, but not limited to, damage or injury to
persons, property and the conduct of Tenant's business (and any loss of revenue
therefrom), the loss of use or occupancy of the Premises, and the items
enumerated below in this Section, and waives all claims against Landlord and
Landlord's Affiliates shall not be liable for any Liabilities incurred by Tenant
or Tenant's Affiliates (including, but not limited to, the Liabilities described
above in this Section) arising from or in connection with: (a) acts or omissions
of any tenant of the Building or any other persons (including, but not limited
to, any parking garage operators or their employees); (b) explosion, fire,
steam, electricity, water, gas or rain, pollution or contamination; (c) the
breakage, leakage, obstruction or other defects of plumbing, HVAC, electrical,
sanitary, safety, elevator or other utilities and systems of the Building or the
failure to furnish any of the foregoing; (d) any work, maintenance, repair,
rebuilding or improvement performed by or at the request of Landlord or
Landlord's Affiliates for the Premises, the Building or the Land; (e) any entry
by Landlord or Landlord's Affiliates on the Premises; (f) any defects in the
Premises, the Building, the Land or any portions thereof; (g) any interference
with light or other incorporeal hereditaments; and (h) any other acts, omissions
or causes. Nothing in this Section exempts Landlord for liability caused solely
by its gross negligence or willful misconduct, but Landlord shall not be liable
under any circumstances for consequential or punitive damages (including, but
not limited to, damage or injury to persons, property and the conduct of
Tenant's business ({and any loss of revenue therefrom}). Tenant immediately
shall notify Landlord of any defects in the Premises or the building or any
portion thereof and of any damages or injury thereto or to persons or property
in or about the Premises or the Building.
22
22.4 Satisfaction of Remedies. Landlord and Landlord's Affiliates
------------------------
shall not be personally liable for the performance of Landlord's obligations
under this Lease. If Tenant or Tenant's Affiliates acquire any rights or
remedies against Landlord or Landlord's Affiliates (including, but not limited
to, the right to satisfy a judgment), these rights and remedies shall be
satisfied solely from Landlord's estate and interest in the Land and the
Building (or the proceeds therefrom) and not from any other property or assets
of Landlord or Landlord's Affiliates. This Section shall be enforceable by
Landlord and Landlord's Affiliates.
23. RULES AND REGULATIONS
-----------------------
Tenant shall faithfully observe and comply with the rules and regulations
that Landlord shall from time-to-time promulgate. Landlord reverses the right
from time-to-time in is sole discretion to make all reasonable additions and
modifications to the rules and regulations. Any additions and modifications to
the rules and regulations shall be binding on Tenant when delivered to Tenant.
Landlord shall not incur any Liabilities to Tenant or Tenant's Affiliates
arising from or in connection with the nonperformance of any rules and
regulations by any other tenants or occupants of the Building. Landlord's
current rules and regulations are attached hereto as Exhibit "C".
------------
24. OTHER TAXES
------------
Tenant shall pay or cause to be paid, before delinquency, any and all taxes
levied or assessed against Tenant's Property and any leasehold improvements in
the Premises which were made for Tenant or at its request to the extent they are
above the standard of the Building. If any or all of Tenant's Property or any of
these leasehold improvements are assessed and taxed with the Building, Tenant
shall pay to Landlord its share of such taxes within ten (10) days after
delivery to Tenant by Landlord of a statement in writing setting forth the
amount of such taxes.
25. TENANT'S BROKER
----------------
Tenant represents and warrants to Landlord that Tenant has had no dealings
with any broker, finder, or similar person who is or might be entitled to
commission or other fee in connection with (i) introducing Tenant to either the
Building or the Premises, or (ii) assisting Tenant in the negotiation, execution
and delivery of this Lease, except for dealings with Tenant's Broker as
------
stipulated in Section 2(p). Landlord shall pay the commission due to Tenant's
Broker, if any, pursuant to a separate agreement between Landlord and Tenant's
Broker. Tenant shall indemnify Landlord and Landlord's Affiliates for, protect,
defend and hold Landlord and Landlord's Affiliates harmless from any and all
Liabilities arising from or in connection with any and all claims of any person
(other than those by Tenant's Broker), who claims to have introduced Tenant to
either the Building or the Premises and/or dealt with Tenant in the negotiation,
execution and delivery of this Lease.
23
26. PARKING
-------
Tenant shall be entitled to park up to sixteen (16) automobiles within the
Building's dedicated parking facilities designated by Landlord from time to time
("Tenant's Parking"). As of the Commencement Date, Tenant's Parking shall be
located as follows: (i) Tenant shall be entitled to park up to eight (8)
automobiles in a level designated by Landlord's parking operator in the parking
facility located beneath the Building ("Building Parking Facility") subject to
payment in lawful money of the United States to Landlord parking operator, the
then current parking rates per automobile per calendar month plus any tax
imposed upon Landlord by any municipal, state or federal agency with respect to
Tenant's Parking for the Lease Term and (ii) Tenant shall be entitled to park up
---
to eight (8) automobiles in Landlord's dedicated off-site parking facility
located on 00xx Xxxxxx adjacent to the Building more commonly referred to as
"Building 7" subject to payment to Landlord in lawful money of the United States
or, if Landlord so chooses, Landlord's parking operator, the then current
parking rates per automobile per calendar month plus any tax imposed upon
Landlord by any municipal, state or federal agency with respect to Tenant's
Parking for the Lease Term. Tenant may use Tenant's Parking for the parking of
automobiles used by Tenant, its officers and employees. Landlord and/or
Landlord's parking operator may designate the location of Tenant's Parking,
including any spaces reserved for Tenant's Parking and from time to time may
relocate all or a portion of same to other areas of either the Building Parking
Facility, Building 7 or to other lots or buildings. The use of Tenant's Parking
shall be governed by the rules and regulations adopted from time to time by
Landlord and/or Landlord's parking operator. Tenant's business visitors may
park in the Building Parking Facility on a space-available basis, upon payment
of the prevailing fee for parking charged to visitors to the Building. Neither
Landlord nor Landlord's parking operator shall have any Liability or
responsibility to Tenant or any other party parking in the Building Parking
Facility or in the parking facility in which Tenant's Parking is located or in
any other facility in which Tenant's Parking may be located for any loss or
damage that may be occasioned by or may arise out of such parking, including,
without limitation, loss of property or damage to person or property from any
cause whatsoever; and Tenant in consideration of the parking privileges hereby
conferred on Tenant, waives any and all Liabilities against Landlord, Landlord's
parking operator, Landlord's Affiliates and Landlord's managing agent by reason
of occurrence within the Building Parking Facility, or in the parking facility
in which Tenant's Parking is located or any other facility in which Tenant's
Parking may be located or in the driveway exists and entrances respective
thereto.
27. AUTHORITY TO ENTER INTO LEASE
---------------------------------
If Tenant is a corporation, each individual executing this Lease on behalf of
the corporation represents and warrants that he/she is duly authorized to
execute and deliver this Lease on behalf of the corporation, in accordance with
a duly adopted resolution of the board of directors of said corporation or in
accordance with the by-laws of said corporation, and that this Lease is binding
24
on the corporation in accordance with its terms. Tenant shall, within thirty
(30) days of execution of this Lease, deliver to Landlord (i) a certified copy
of a resolution of the board of directors of the corporation (in substantial
form to the one attached hereto as Exhibit "D") and (ii) other evidence
------------
reasonably satisfactory to Landlord authorizing or ratifying the execution of
this Lease.
28. RELOCATION
----------
Notwithstanding any contrary provision of this Lease, if Landlord requires
the Premises for use in connection with another suite or for other reasons
related to Landlord's occupancy plans for the Building, then at any time during
the Lease Term Landlord shall have the right, upon providing Tenant prior
written notice (the "Relocation Notice"), to provide and furnish Tenant with
space elsewhere in the Building comparable to the Premises and to move and place
Tenant in such new space, at Landlord's sole cost and expense. Such space shall
be approximately the same size as the existing Premises and shall be improved by
Landlord prior to Tenant's relocation with leasehold improvements comparable to
those in the existing Premises. However, if the new space does not meet the
Tenant's reasonable and good-faith approval, Tenant may cancel this Lease upon
written notice to Landlord, which notice must be received by Landlord within ten
(10) days after delivery to Tenant of the Relocation Notice, and unless Landlord
withdraws its request that Tenant relocate, this Lease shall terminate sixty
(60) days thereafter (as if such date were the natural expiration of the Term
hereof) and neither party shall have any further rights or obligations
hereunder. Tenant's failure to timely deliver notice to Landlord of Tenant's
election to cancel this Lease shall be deemed an acceptance by Tenant of the new
space set forth in the Relocation Notice, and Tenant shall vacate the Premises
in accordance with said notice and/or the terms of any subsequent notice from
Landlord to Tenant. If Landlord moves Tenant to such new space, then this Lease
and each and all of the terms, covenants and conditions hereof shall remain in
full force and effect and be deemed applicable to such new space except that a
revised Exhibit "A" showing the location of the new space shall become a part of
-----------
this Lease and Landlord and Tenant shall promptly thereafter execute an
amendment to this Lease containing such revised "Exhibit "A" and with the Basic
-----------
Terms of this Lease, as contained in Article 2, amended, if necessary, to
---------
include and state all correct data as to the new space.
29. REMOVAL OF PROPERTY
---------------------
In the event of the termination of this Lease, Landlord may remove any
property of Tenant from the Premises, the Building and/or the Land and store the
same elsewhere for the account and expense and risk of Tenant, and if Tenant
shall fail to pay the cost of storing such property after it has been stored for
a period of sixty (60) days or more, Landlord may sell any or all of the
property at public or private sale, in such manner and at such times and places
as Landlord, in its sole and absolute discretion, may deem proper, without
notice to or demand upon Tenant, for payment of any part of such charges or the
removal of any such property, and shall apply the proceeds of such sale: first,
to the cost and expense of such sale, including actual and customary attorneys'
fees incurred; second to the payment of the cost of charges for storing any such
property; third, to the payment of any other sums of money which may then or
thereafter be due to Landlord from Tenant under any of the terms thereof; and
fourth, the balance, if any, to Tenant.
25
30. OPTION TO EXTEND TERM
------------------------
Tenant shall have one option ("Option") to extend the Term of this Lease
for an additional term of three (3) years ("Option Term") commencing on the day
after the Expiration Date provided that Tenant:
(a) is not in default under any of the terms, covenants,
conditions or provisions of this Lease either at the time Tenant exercises the
Option or as of the Expiration Date;
(b) shall not have assigned its interest under this Lease;
(c) shall not have sublet any portion of the Premises without
Landlord's express written consent; and
(d) shall have notified Landlord of Tenant's election to exercise
such Option in the manner provided in this Article 30 no later than (90) days
----------
prior to the Expiration Date.
Unless all of the above conditions precedent have been satisfied, Tenant's
exercise of the Option shall be of no force or effect and the Option shall
lapse. If all of the above conditions precedent are satisfied, then the Lease
Term shall automatically be extended for the Option Term and all of the terms,
conditions and provisions of this Lease shall continue in full force and effect
throughout the Option Term, except that the Monthly Rent and other amounts to be
paid by Tenant during the Option Term shall be equal to the then prevailing
rates being paid by other tenants in the building for new leases and renewals of
comparable space, including but not limited to provisions for concessions,
inducements, allowances and periodic adjustments. If Tenant exercises the
Option, Landlord and Tenant shall, on or before the original Expiration Date,
prepare and execute an extension agreement acknowledging that Tenant has elected
to extend and include a schedule setting forth the Base Year and Monthly Rent to
be in effect for the Option Term. The Option shall be personal to Tenant and may
not be assigned or transferred to any third party.
31. RIGHT OF FIRST REFUSAL
-------------------------
Tenant shall have the right of first refusal on the adjacent space on the
fourteenth (14th) floor, commonly known as Suite 1400, when and if such space
becomes available. Tenant shall have five (5) business days from the date of
receipt of Landlord's written notice to exercise the right of first refusal.
Except for rental rate, all terms and conditions for the expansion space shall
be the same as those in the Lease. The rental rate fore the expansion space
shall be the then prevailing rental rate in the Building. Tenant shall not be
entitled to the right of first refusal during the third Lease Year unless the
Lease Term is extended for an additional two (2) years.
32. GENERAL PROVISIONS
-------------------
32.1 Joint Obligations. If Tenant consists of more than one person or
------------------
entity, the obligations of such persons or entities as Tenant shall be joint and
several.
26
32.2 Marginal Headings. The titles to the Articles and Sections of
------------------
this Lease are not a part of this Lease and shall have no effect on the
construction or interpretation.
32.3 Time. Time is of the essence for the performance of each and
----
every provisions of this Lease to be performed by Tenant.
32.4 Successors and Assigns. Subject to the restrictions contained in
-----------------------
Article 15 above, this Lease binds the heirs, executors, administrators,
successors and assigns of the parties hereto.
32.5 Late Charges. Tenant acknowledges that late payment of rent will
-------------
cause Landlord to incur costs not contemplated by this Lease, the exact amount
of which will be extremely difficult to ascertain. These costs include, but are
not limited to, processing and accounting charges, and late charges which may be
imposed on Landlord by the terms of any Superior Leases and Mortgages.
Accordingly, if any installment of Monthly Rent or payment of Additional Rent
due from Tenant is not received by Landlord or Landlord's designee within ten
(10) days after the amount is due, Tenant shall pay to Landlord a late charge
equal to six percent (6%) of the overdue amount. Acceptance of late charges by
Landlord shall not constitute a waiver of Tenant's default with respect to the
overdue amount, nor prevent Landlord from exercising any of the other rights and
remedies granted hereunder or at law or in equity.
32.6 Prior Agreements; Amendment, Waiver. This Lease contains all of
-------------------------------------
the agreements of the parties hereto with respect to any matter covered or
mentioned in this Lease, and no prior agreements or understanding pertaining to
any such matters shall be effective for any purpose. No provision of this Lease
may be amended or added to except by an agreement in writing signed by the
parties hereto or their respective successors in interest. All waivers
hereunder must be in writing and specify the branch, act, omission, term,
covenant or condition waived, and acceptance of rent or other acts or omissions
by Landlord shall not be deemed to be a waiver. The waiver by Landlord of any
breach, act, omission, term, covenant or condition of this Lease shall not be
deemed to be a waiver of any other or subsequent breach, act, omission, term,
covenant or condition.
32.7 Inability to Perform. Landlord shall not be in default hereunder
---------------------
nor shall Landlord be liable to Tenant or Tenant's Affiliates for any
Liabilities if Landlord is unable to fulfill any of its obligations, or is
delayed in doing so, if the inability or delay is caused by reason of accidents,
breakage, strike, labor troubles, war, act of God (including, without
limitation, earthquake), or any other cause, whether similar or dissimilar,
which is beyond the reasonable control of Landlord.
32.8 Legal Proceedings. In any action or proceeding involving or
------------------
relating in any way to this Lease, the court or other person or entity having
jurisdiction in such action or proceeding shall award to the party in whose
favor judgment is entered the actual attorneys' fees and costs incurred. The
party in whose favor judgment is entered may, at its election submit proof of
fees and costs as an element of damages before entry of Judgment or after entry
of judgment in a post judgment cost xxxx. Tenant also shall indemnify Landlord
for, and defend and hold Landlord harmless from and against, all Liabilities
incurred by Landlord if Landlord becomes or is made a party to any proceeding or
27
action: (a) instituted by Tenant, or by any third party against Tenant, of or
against any person holding any interest under or using the Premises by Licenses
of or agreement with Tenant; (b) otherwise arising out of or resulting from any
act or omission of Tenant or such other person or (c) necessary to protect
Landlord's interest under this Lease in a bankruptcy proceeding or other
proceeding under Title 11 of the United States Code, as amended. In any
circumstance where Tenant is obligated to indemnify or hold harmless Landlord or
Landlord's Affiliates under this Lease, Tenant also shall defend Landlord and
Landlord's Affiliates with counsel acceptable to Landlord or, at Landlord's
election, Landlord or Landlord's affiliates may employ their own counsel and
Tenant shall pay when due all attorney's fees and costs therefor.
32.9 Conveyances of Premises. As used herein the term "Landlord" means
-----------------------
only the current owner or owners of the fee title to the Building or the lessee
under a ground lease of the Land. Upon each conveyance (whether voluntary or
involuntary) of the Building, the conveying party shall be relieved of all
liability under any and all of its convenants and obligations contained in or
derived from this Lease or arising out of any act, occurrence or omission
occurring after the date of such conveyance. Landlord may sell, assign, convey,
encumber or otherwise transfer all or any portion of its interest in this Lease,
the Premises, the Building or the Land.
32.10 Name. Tenant shall not use the name of the Building or of the
----
development in which the Building is situation, if any, for any purpose other
than as an address of the business to be conducted by the Premises.
32.11 Severability. Any provision of this Lease which shall be held
------------
invalid, void or illegal shall in no way affect, impair or invalidate any of the
other provisions hereof and such other provisions shall remain in full force and
effect.
32.12 Trial by Jury. Tenant hereby waives trial by jury in any action,
-------------
proceeding or counterclaim brought by either of the parties hereto on any
matters whatsoever arising out of or in any way connected with this Lease.
32.13 Cumulative Remedies. No right, remedy or election hereunder or
--------------------
at law or in equity shall be deemed exclusive but shall, wherever possible, be
cumulative with all other rights, remedies or elections.
32.14 Choice of Law. This Lease shall be governed by the laws of the
---------------
State of California applicable to transactions to be performed wholly therein.
32.15 Signs. Tenant shall not place any sign on the Premises, the
-----
Building or the Land, or which is visible from anywhere outside of the Premises,
without Landlord's prior written consent.
32.16 Landlord's Consent. Whenever Landlord's consent or approval is
-------------------
required hereunder, Landlord shall not unreasonably delay the granting or
withholding or its consent or approval. Except where it is expressly provided,
that Landlord will not unreasonably withhold its consent or approval, Landlord
may withhold its consent or approval arbitrarily and in its sole and absolute
discretion.
28
32.17 Presumptions. This Lease shall be construed without regard to
------------
any presumption or other rule requiring construction against the party drafting
the document. It shall be construed neither for nor against Landlord or Tenant,
but shall be given reasonable interpretation in accordance with the plain
meaning of its terms and the intent of the parties.
32.18 Exhibits. All exhibits and any riders annexed to this Lease,
--------
including, without limitation, Exhibits "A", "B", "C", "D" and "E" are
------------- --- --- --- ---
incorporated herein by this reference.
32.19 Submission of Lease. The submission of this Lease to Tenant or
---------------------
its broker, agent or attorney for review or signature does not constitute an
offer to Tenant to lease the Premises or grant an option to lease the Premises.
This document shall not be binding unless and until it is executed and delivered
by both Landlord and Tenant.
32.20 Meaning of Terms. Whenever required by the context of this
------------------
Lease, the singular shall include the plural and the plural shall include the
singular, and the masculine, feminine and neuter genders shall each include the
others, and the word "person" shall include corporations, partnerships or other
entities.
32.21 Notices. All notices, demands or communications required or
-------
permitted under this Lease (the "Notices") shall be in writing and shall be
personally delivered or sent by certified mail, return receipt requested,
postage prepaid. Notices to Tenant shall be delivered to the address set forth
in Article 2, except that when Tenant takes possession of the Premises, the
----------
address of the Premises always may be used for the purpose of delivering Notices
to Tenant. Notices to Landlord shall be delivered to the address set forth in
Article 2, or such other address as Landlord may specify in writing to Tenant.
----------
Notices shall be effective on the earlier of: delivery; or two (2) days after
they are mailed in accordance with this Section.
IN WITNESS WHEREOF, the parties hereto have executed this Lease on the dates
specified below next to their respective signatures.
"TENANT"
Cumetrix Data Systems, Online Transaction Technologies, Inc., a
a California Corporation and California Corporation
Signature: /s/ Signature: /s/
-------------------- ------------------------------
Print: Mar[sp?] Print: Xxxxx X. Xxxxxx
------------------------ ----------------------------------
Title: CEO Title: CEO
------------------------ ----------------------------------
Date: 02/23/99 Date: 2/23/99
------------------------- -----------------------------------
29
"LANDLORD"
L.A.T. INVESTMENT CORPORATION,
a California Corporation
By: /s/
---------------------------
Xxxxxx X. Kia
Its: Vice President
Date: 3/8/99
-------------------------
30
EXHIBIT "A"
PREMISES FLOOR PLAN
1
EXHIBIT "B"
LEASE COMMENCEMENT DATE CONFIRMATION
[DATE]
[NAME]
[TITLE]
__________________________
RE: Commencement Date Confirmation
--------------------------------
Gentlemen:
Reference is hereby made to that Office Lease dated ______________ (the
"Lease") by and between L.A.T. INVESTMENT CORPORATION, a California corporation,
as Landlord, and _____________ , a ______________ corporation, as Tenant,
covering that portion of ___________________ floor more commonly referred to as
Suite _________ in the office building located at 0000 Xxxx Xxxxxxx Xxxxxxxxx,
Xxx Xxxxxxx, Xxxxxxxxxx.
Pursuant to Section 4.3 of the Lease, this letter shall serve to confirm our
------------
agreement that the Commencement Date of the Lease is (insert date) and that the
Expiration Date of the Lease is (insert date). Furthermore, Tenant acknowledges
and agrees Landlord has fulfilled its obligations under the Lease and the Work
Letter dated concurrently therewith.
Please indicate your confirmation of the foregoing by executing this letter
and the enclosed copies hereof. With best regards,
CONFIRMED AND AGREED TO AS OF THE DATE HEREOF:
"LANDLORD"
L.A.T. INVESTMENT CORPORATION,
a California corporation
By:______________________
"TENANT"
________________________
By:_____________________
Its:____________________
1
EXHIBIT "C"
RULES AND REGULATIONS OF BUILDING
1. The sidewalks, halls, passages, exits, entrances, elevators,
escalators and stairways of the Building shall not be obstructed by any of the
tenants or used by them for any purpose other that for ingress to and egress
from their respective premises. The halls, passages, exits, entrances, shopping
malls, elevators, escalators and stairways are not for the general public and
Landlord shall in all cases retain the right to control and prevent access
thereto of all persons whose presence in the judgment of Landlord would be
prejudicial to the safety, character, reputation and interests of the Building
and its tenants, provided that nothing herein contained shall be construed to
prevent such access to persons with whom any tenant normally deals in the
ordinary course of its business, unless such persons are engaged in the illegal
activities. No tenant and no agent, employee, contractor, invitee or licensee
of any tenant shall go upon the roof of the Building. Landlord shall have the
right at any time, without the same constituting an actual or constructive
eviction and without incurring any liability to any tenant therefor, to change
the arrangement of location of entrances or passageways, doors or doorways,
corridors, elevators, stairs, toilets and other common areas of the Building.
2. No tenant, its employees or invitees shall smoke tobacco or other
smoke products in the common areas of the Building, including without
limitation, corridors, elevators, stairs restroom, lobby, elevator landings and
other common areas of the Building. Any person found smoking in the foregoing
areas shall be subject to fine by the applicable code enforced by the City of
Los Angeles and shall be asked to leave the Building.
3. No sign, placard, picture, name, advertisement of notice visible
from the exterior of any tenant's premises shall be inscribed, painted, affixed
or otherwise displayed by any tenant on any part of the Building without the
prior written consent of Landlord. Landlord will adopt and furnish to tenants
general guidelines relating to signs inside the Building. Tenant shall confirm
to such guidelines. All approved designs or lettering on doors shall be
printed, painted, affixed or inscribed at the expense of any such tenant by a
person approved by Landlord. Material visible from outside the Building will
not be permitted.
4. No tenant's premises shall be used for the storage of merchandise
held for sale to the general public or for lodging. No cooking shall be done or
permitted on the premises except that private use by any tenant or Underwriters'
Laboratory approved equipment for brewing coffee, tea, hot chocolate and similar
beverages, for preparation of meals by employees of any such tenant in a manner
customary for an employee lounge or lunchroom, and for catering to serve food in
connection with meeting or receptions will be permitted, provided that such use
is in accordance with all applicable federal, state and municipal laws, codes,
ordinances, rules and regulations.
5. No tenant shall employ any person or persons other that the janitor
of Landlord for the purpose of cleaning its premises unless otherwise agreed to
by Landlord in writing. Except with the written consent of Landlord, no person
or persons other than those approved by Landlord shall be permitted to enter the
Building for the purpose of cleaning the same. No tenant shall cause any
unnecessary labor by reason of such tenant's carelessness or indifference in the
1
preservation of good order and cleanliness. Landlord shall not be responsible
to any tenant for any loss of property on the premises, however occurring, or
for any damage done to the effects of any tenant by the janitor or any other
employee or any other person. Tenant shall pay to Landlord the cost of removal,
of any of tenant's refuse and rubbish, to the extent that the same exceeds the
refuse and rubbish usually attendant upon the use of tenant's premises as
offices. Janitor service will not be furnished on nights when rooms are
occupied after 6:00 p.m. unless, by agreement in writing, service is extended
to a later hour for specifically designated rooms.
6. Landlord will furnish each tenant without charge with two (2) keys
to each door lock provided in the premises by Landlord. Landlord may make a
reasonable charge for any additional keys. No tenant shall have any such keys
copied of any keys made. No tenant shall alter any lock or install a new or
additional lock or any bolt on any door of its premises. Each tenant, upon the
termination of its lease, shall deliver to Landlord all keys to doors in the
Building.
7. Landlord shall designate appropriate entrances and a freight
elevator for deliveries or other movement to or from the premises of equipment,
materials, supplies, furniture or other property, and tenants shall not use any
other entrances or elevators for such purposes. The freight elevators shall be
available for use by all tenants in the Building subject to such reasonable
scheduling as Landlord in its discretion shall deem appropriate. All persons
employed and means or methods used to move equipment, materials, supplies,
furniture or other property in or out of the Building must be approved by
Landlord prior to any such movement. Landlord shall have the right to prescribe
the maximum weight, size and position of all equipment, materials, furniture or
other property brought into the Building. Heavy objects shall, if considered
necessary by Landlord, stand on a platform of such thickness as is necessary
properly to distribute the weight. Landlord will not be responsible for loss of
or damage to any such property from any cause, and all damage done to the
Building by moving or maintaining such property shall be repaired at the expense
of tenants.
8. No tenant shall use or keep in the premise or the Building any
kerosene, gasoline or inflammable or combustible fluid or material other than
limited quantities thereof reasonably necessary for the operation or maintenance
of office equipment. No tenant shall use any method of heating or air
conditioning other than that supplied by Landlord. No tenant shall use or keep
or permit to be used or kept 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 in the Building, nor shall any animals or birds be
brought or kept in the premises or the Building.
9. Landlord shall the right, exercisable without notice and without
liability to any tenant, to change the name or street address of the Building.
10. The Building's air conditioning system achieves maximum cooling
when the blinds are closed. Landlord shall not be responsible for the room
temperature if tenant does not keep all blinds on the windows exposed to
sunshine closed whenever the system is in operation. Tenant agrees to cooperate
fully at all times with Landlord and to abide to all regulations and
requirements which landlord may prescribe for the proper functioning and
protection of said air conditioning system. Tenant agrees not to connect any
2
apparatus devise, conduit or pipe to the Building chilled and hot water devices,
conduits or pipes to the Building chilled and hot water conditioning supply
lines. Tenant further agrees that neither tenant nor its servants, employees,
agents, visitors, licensees or contractors shall at any time enter mechanical
installations or facilities of the Building or adjust, tamper with, touch or
otherwise in any manner affect said installations or facilities.
11. Electric current is furnished as required by the Building standard
office lighting and fractional horsepower office business machines in the amount
of approximately three (3) xxxxx per square foot. The tenant agrees, should its
electrical installation or electrical consumption be in excess of the aforesaid
quantity or extend beyond normal business hours, to reimburse Landlord monthly
for the measured consumption under the terms, classifications and rates charged
to similar consumers by said public utilities serving in the neighborhood in
which the Building is located. If a separate meter is not installed at tenant's
cost, such excess cost will be established by an estimate agreed upon Landlord
and tenant, and if the parties fail to agree, as established by an independent
licensed engineer. Tenant agrees not to use any apparatus or device in, or
upon, or about the premises which will in any way increase the amount of such
services usually furnished or supplied to said premises and tenant further
agrees not to connect any apparatus or device or wires, conduits or pipes, or
other means by which such services are supplied, for the purpose of using
additional or unusual amounts of such services without written consent of
Landlord. Should tenant use the same to excess, the refusal on the part of
tenant to pay, upon demand of Landlord, the amount established by Landlord for
such excess charge shall constitute a breach of the obligation to pay rent
current under tenant's lease and shall entitle Landlord to the rights therein
granted for such breach. At all times tenant's use of electric current shall
never exceed the capacity of the feeders to the Building or the rises or wiring
installation and tenant shall not install or use or permit the installation or
use of any computer or electronic data processing equipment in the premises
without the prior written consent of Landlord.
12. Water will be available in public areas for drinking and lavatory
purposes only, but if tenant requests, uses or consumes water for any other
purpose in addition to ordinary drinking and lavatory purposes, or which fact
tenant constitutes Landlord to be the sole judge, Landlord may install a water
meter and thereby measure tenant's water consumption for all purposes. Tenant
shall pay Landlord for the cost of the meter and the cost of the installation
thereof and throughout the duration of tenant's occupancy, tenant shall keep
said meter installation equipment in good working order and repair at tenant's
own cost and expense, in default of which Landlord may cause such meter and
equipment to be replaced or repaired and collect the cost thereof from tenant.
Tenant agrees to pay for water consumed, as shown on aid meter, as and when
bills are rendered, and on default in making such payment, Landlord may pay such
charges and collect the same from tenant. Any such costs or expenses incurred,
or payments made by Landlord for any of the reasons or purposes herein above
stated shall be deemed to be Additional Rent, payable by tenant, and collectible
by landlord as such.
13. Landlord reserves the right to stop service of the elevator,
plumbing, ventilating, air conditioning and electric systems, when necessary, by
reason of accident or emergency or for repairs, alterations or improvements, in
the judgment of Landlord desirable or necessary to be made, until said repairs,
alterations or improvements shall have been completed, and shall further have no
3
responsibility or liability for failure to support elevator facilities,
plumbing, ventilating, air conditioning or electric service, when prevented from
doing so by strike or accident or by any cause beyond Landlord's reasonable
control or by laws, rules, orders, ordinances, directions, regulations or
requirements of federal, state, country or municipal authority or failure of
gas, oil or other suitable fuel. It is expressly understood and agreed that any
covenants on Landlord's part to furnish any service pursuant to any of the
terms, covenants, conditions, provisions or agreements of tenant's lease or to
perform any act or thing for the benefit of tenant, shall not be deemed breached
of Landlord is unable to furnish or perform the whatsoever beyond Landlord's
control.
14. Landlord reserves the right to exclude from the Building between
the hours of 6:00 p.m. and 8:00 a.m. Monday through Friday and at all hours on
Saturdays, Sundays and legal holidays all persons who do not present
identification acceptable to Landlord. Each tenant shall provide Landlord with
a list of all persons authorized by such tenant to enter its premises and shall
be liable to landlord for all acts of such person. Landlord shall in no case be
liable for damages for any error with regard to the admission to or exclusion
from the Building of any person. In the case of invasion, mob, riot, public
excitement or other circumstances rendering such action advisable in Landlord's
opinion, Landlord reserves the right to prevent access to the Building during
the continuance of the same by such action as Landlord may deem appropriate,
including closing doors.
15. The directory of the Building will be provided for the display of
the name and location of tenants. Landlord reserves the right to restrict the
amount of directory space utilized by any tenant.
16. No curtains, draperies, blinds, shutters, shades, screens or other
coverings, hangings or decorations shall be attached to, hung or placed in, or
used in connection with any window of the Building without the prior written
consent of Landlord. In any event, with the prior written consent of Landlord,
such items shall be installed on the office side of Landlord's standard window
covering and shall in no way be visible from the exterior of the Building.
Tenants shall keep window coverings closed when the effect of sunlight (or the
lack thereof) would impose unnecessary loads of the Building's heating or air
conditioning system.
17. No tenant shall obtain for use in the premises ice, drinking
water, food, beverage, towel or other similar services, except at such
reasonable hours and under such reasonable regulations as may be established by
Landlord.
18. Each tenant shall ensure that the doors of its premises are closed
and locked and that all water faucets, water apparatus and utilities are shut
off before such tenant or such tenant's employees leave the premises as to
prevent waste or damage, and for any default or carelessness in this regard,
such tenant shall compensate for all injuries sustained by other tenants or
occupants of the Building or Landlord. On multiple-tenancy floors, all tenants
shall keep the doors to the Building corridors closed at all times except for
ingress and egress.
19. 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, no foreign substance of any kind whatsoever shall be thrown
therein, and the expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be paid by the tenant who, or whose agent,
employee, contractor, invitee or licensee, caused it.
4
20. Except with the prior written consent of Landlord, no tenant shall
sell at retail newspapers, magazines, periodicals, theater or travel tickets or
any other goods or merchandise to the general public in or on the premises, nor
shall any tenant carry on or permit or allow any employee or other person to
carry on the business of stenography, typewriting, printing or photocopying or
any similar business in or from the premises for the service or accommodation of
occupant of any other portion of the Building, nor shall the premises of any
tenant be used for manufacturing of any kind, or any business activity other
than that specifically provided for in the tenant's lease.
21. No tenant shall install any radio or television antenna,
loudspeaker, or other device on the roof or exterior walls of the Building. No
television or radio or recorder shall be played in such a manner as to cause a
nuisance to any other tenant.
22. There shall not be used in any space, or in the public halls of the
Building, either by any tenant or others, any hand trucks except those equipped
with rubber tires and side guards or such other material handling equipment as
Landlord approves. No other vehicles of any kind shall be brought by any tenant
into the Building or kept in or about its premises.
23. Each tenant shall store all its trash and garbage within its
premises. No material shall be placed in the trash boxes or receptacles if such
material is of such nature that it may not be disposed of in the ordinary and
customary manner of removing and disposing of office building trash and garbage
in the City of Los Angeles, County of Los Angeles, without being in violation of
any law of ordinance governing such disposal. All garbage and refuse disposal
shall be made only through entryways and elevators provided for such purposes
and at such times as Landlord shall designate.
24. Canvassing, soliciting, distribution of handbills or any other
written material and peddling in the Building are prohibited, and each tenant
shall cooperate to prevent the same.
25. The requirements of tenants will be attended to only upon
application in writing at the office of the Building. employees of Landlord
shall not perform any work or do anything outside of their regular duties unless
under special instructions from Landlord.
26. Landlord may waive any one or more of these Rules and Regulations
for the benefit of any particular tenant or tenants, but no such waiver by
Landlord shall be construed as a waiver of such Rules and Regulations in favor
of any other tenant or tenants, nor prevent Landlord from thereafter enforcing
any such Rules and Regulations against any or all of the tenants of the
Building.
27. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the agreements,
covenants, conditions and provisions of any Lease of premises in the Building.
5
28. Landlord reserves the right to make such other 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.
29. All construction projects and tenant improvement work must conform
to the General Construction and Building Rules.
6
EXHIBIT "D"
CORPORATE RESOLUTION
CERTIFICATE OF SECRETARY OF:
[INSERT LEGAL NAME OF CORPORATION]
The undersigned, [Insert Name], hereby certifies that (he/she) is the duly
elected, qualified and acting Secretary of [Insert Name], a California
corporation (the "Corporation", and as such officer (he/she) is familiar with
the corporate records of the Corporation and is an appropriate officer to make
this certificate.
The undersigned hereby further certifies as follows:
1. The following is a true and correct excerpt of resolutions adopted
by the Board of Directors of the Corporation (the "Board") at a meeting called
and held on (insert date) and said resolutions have not been amended, altered or
repealed and remain in full force and effect on the date hereof:
WHEREAS, there has been submitted to the Board of Directors of the
Corporation a proposal for leasing certain premises ("Premises") known as a
________ rentable square foot portion of the (___________th) floor (more
commonly known as Suite _____) in the office building ("Building" located
at 0000 Xxxx Xxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, for the use
by the Corporation as an office, the covenants, terms and conditions of
which will be substantially similar to the covenants, terms and conditions
contained in the draft of the office lease presented to the Board; and
WHEREAS, the Board deems the execution, delivery and performance of
the lease by the Corporation to be in the best interests of the
Corporation;
NOW THEREFORE, RESOLVED, that the President or any Vice President of
the Corporation be, and each hereby is, authorized to execute for in the
name of the Corporation, that certain lease ("Lease") dated (insert date)
by and between the Corporation and L.A.T. INVESTMENT CORPORATION, a
California corporation ("Landlord"), covering the Premises in the Building
(subject to, however, such modifications in such form and terms as may be
approved by the officer executing the Lease) and the execution thereof by
such officer shall constitute conclusive evidence of (his/her) approval of
any modifications thereto.
FURTHER RESOLVED, that the performance by the Corporation of all of
its obligations under the Lease are hereby authorized and approved.
FURTHER RESOLVED, that each officer of the Corporation be, and hereby
is, authorized and directed to take further action for or on behalf of the
Corporation, as is necessary, desirable or convenient to effectuate the
intent of the foregoing resolutions or to promptly consummate the
transactions contemplated thereby, whether or not such action is
specifically authorized herein.
1
FURTHER RESOLVED, that the authority given by the foregoing
resolutions shall be deemed retroactive, and any and all acts as described
herein performed prior to the adoption of the resolution are hereby
ratified and confirmed. These resolutions shall remain in full force and
effect until the fifth (5th) business day following written notice
(provided in the manner prescribed in Section 31.21 of the Lease) of its
-------------
revocation shall be received by Landlord at its address for service of
notices as specified in Article 2 of the Lease.
----------
2. The persons named below are duly elected and qualified incumbents of
the respective officers of the Corporation set out to the left of their
respective names and the signatures to the right of their respective names are
the genuine signatures of such officers, and such persons are the officers
referred to in the foregoing resolutions as being authorized to execute
documents pursuant to such resolutions.
TITLE NAME SIGNATURE
----- ---- ---------
President [Insert Name} ________________________
Vice-President [Insert Name} ________________________
Secretary [Insert Name} ________________________
Treasurer [Insert Name} ________________________
IN WITNESS WHEREOF, this resolution of the Board has been executed by the
officers of the Corporation as of (insert date).
By:_____________________________
Secretary of [Insert Name],
a California Corporation
2
EXHIBIT "E"
TENANT IMPROVEMENTS
Suite 1400 - Cumetrix/Online Transaction Technologies
A) Landlord, at Landlord's sole expense shall provide the following
Building Standard improvements to the Premises prior to the Commencement Date:
1 - Construct walls and doors as shown;
2 - relocate kitchen sink and cabinet as shown; and
3 - paint all walls (excluding wall paper areas).
B) Landlord shall install Building Standard floor covering throughout
the Premises, the cost of which shall be equally shared by Tenant and Landlord.
However, if Tenant exercises the Renewal Option as stipulated in Section 30 of
the Lease, the Tenant shall receive a rent credit equivalent to Tenant's share
of floor covering cost at the beginning of the renewal term.
1
