Exhibit 10.11
OFFICE LEASE
This lease is made as of this 21st day of March 1997 by and between
LAKE XXXXXXX PLAZA, a California general partnership ("Landlord") and PANGEA
SYSTEMS, INC., a California corporation ("Tenant").
In consideration of the rents and covenants hereinafter set forth,
Landlord hereby leases to Tenant and Tenant hereby rents from Landlord the
following described Premises, upon the following terms and conditions:
1. FUNDAMENTAL LEASE PROVISIONS
1.1 Premises: Project: Lake Xxxxxxx Plaza (Article 2)
Building: 0000 Xxxxxxxx Xxxxxx [TOWER]
Suite: 1150 Floor: 11th
City: Oakland County: Alameda
State: California
1.2 Floor Area: Rentable Area: 6,924 square feet. (Article 2)
Usable Area: 6,074 square feet.
1.3 Term: 42 months. (Article 3)
Commencement Date: (SEE Section 3.1)
1.4 : Basic Rent: DOLLARS PER DOLLARS PER (Article 4)
MONTHS RENTABLE SQUARE FOOT MONTH
------ -------------------- -----
1-42 $2.00 $13,848.00
1.5 : Expenses: Tenant shall pay Tenant's Share of all Expenses that exceed (Article 6)
Landlord's Base Year Costs together with other items of
Expense as set forth in Article 6. Tenant's Share is
1.52%. The Base Year shall be the calendar year 1997.
1.6 After-Hours Charges: After-Hours Charges payable by Tenant as of the Commencement (Article 12)
Date shall be as follows:
Air Conditioning $27.50 per hour, per
suite Ventilation only $4.50 per
hour, per suite Lighting only $1.50
per hour, per suite
1.7 Prepaid Rent: Tenant shall pay the Basic Rent for the first month of the (Article 4)
term upon execution of this Lease.
1.8 S Security Deposit: $13,848.00 (Article 9)
1.9 Landlord's Address For c/o TRANSPACIFIC DEVELOPMENT COMPANY (Article 37)
Notices: 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000-0000
1.10 Tenant's Address for 0000 Xxxxxxxx Xxxxxx (Article 37)
Notices: Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxxxx
Vice President, Legal Counsel
1.11 Broker: Xxxxxxx & Xxxxxxxxx and Transpacific Development Company. (Section 39.3)
2. PREMISES
2.1 The approximate location of the premises (the "Premises") leased
hereunder is shown on the drawing attached hereto as EXHIBIT A. The Premises
consist of that certain space situated in the building (the "Building")
described in Section 1.1 hereof. The area of the Premises for all purposes
hereunder is stipulated to be the square feet of usable area and square feet of
rentable area specified at Section 1.2. As used in this Lease, the following
terms have the meanings indicated:
2.1.1 The term "gross area" or "gross square footage" means
the entire area being measured, including vertical elevator and ventilation
shafts, maintenance, telephone, mechanical and electrical rooms and closets, and
all other public areas measured from the exterior of exterior walls and from the
center Fine of interior demising walls;
2.1.2 The term "usable area" or "usable square footage" means
the entire floor area of tenant space being measured, excluding vertical shaft
and all public areas, measured from the exterior walls and the exterior of
interior corridor walls, and the center line of interior demising walls; and
2.1.3 The term "rentable area" or "rentable square footage"
means the entire area measured in the same way within exterior Building walls
including all common or public areas of the Building allocated proportionately
to each floor of the Building but excluding public stairwells and such vertical
shafts. As to the area leased by
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Tenant, the rentable area is stipulated to be the usable area of the Premises
increased by 14%.
2.2 If the Premises are being newly constructed, then within thirty
(30) days after the Commencement Date either party may, by written notice to the
other given within such period, require that the area of the Premises be
remeasured by Landlord's space planner in accordance with the foregoing, at the
expense of the requesting party. If such remeasurement indicates a variance from
the square footage areas specified above, this Lease shall be amended
accordingly.
2.3 The Premises are (or when constructed will be) a part of a business
commercial complex consisting of the Building and other buildings, landscaping,
parking facilities and other improvements described as the "Project" in Section
1.1 hereof. The Project is generally shown on the drawing attached hereto as
EXHIBIT A-1. Landlord may, in its sole discretion, change the size, shape,
location, number and extent of any or all of the Improvements in the Project
without any liability to or consent of Tenant, except that no material change in
the size or location of the Premises shall be made without Tenant's consent.
Tenant does not rely on the fact nor does Landlord represent that any specific
tenant or number of tenants shall occupy any space in the Project.
2.4 Landlord reserves the right to use the roof and exterior walls of
the Premises, and the area beneath, adjacent to and above the Premises. Together
with the right to install, use, maintain and replace equipment machinery, pipes,
conduits and wiring through the Premises, which serve other parts of the Project
in a manner and in locations which do not unreasonably interfere with Tenant's
use of the Premises. No light, air or view easement is created by this Lease.
2.5 Tenant hereby acknowledges that the Project is being, or may be,
constructed or reconstructed in phases, and that by reason of construction or
reconstruction activities there may be temporary incidents thereof such as dust
dirt, barricades, detours, equipment or material in the Building or Common
Areas. Tenant hereby agrees that so long as Landlord conducts such activities in
a reasonable manner Landlord shall not be liable for any such incidents of
construction or reconstruction.
2.6 Except as specifically provided in the "Construction Provisions"
describing the construction of leasehold improvements (if any), attached hereto
as EXHIBIT C, Tenant shall lease the Premises in an "As Is" condition and
Landlord shall be under no obligation to improve, remodel, alter or otherwise
modify the Premises for Tenant's occupancy thereof.
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3. TERM
3.1 COMMENCEMENT DATE. The term of this Lease shall be for the duration
set forth in Section 1.3 hereof and shall commence on the earlier to occur of
(i) the date Tenant (or any subtenant) takes possession of, occupies or
commences using any part of the Premises, or (ii) April 1, 1997 (the
"Commencement Date"). Following the Commencement Date, Landlord shall prepare
and deliver to Tenant an instrument substantially in the form set forth in
EXHIBIT B attached hereto and Tenant shall promptly execute and deliver the same
to Landlord. Failure of Tenant to execute the said instrument within ten (10)
days after written request from Landlord shall be a material default hereunder.
This Lease shall be a binding contractual agreement effective upon the date of
execution hereof by both Landlord and Tenant, notwithstanding the later
commencement of the term of this Lease.
3.2 SUBSTANTIAL COMPLETION. For purposes hereof, the phrase
"substantial completion" means the completion (as determined, in the event of a
dispute. by Landlord's architect or space planner in accordance with AIA
standards) of the construction work to be performed by Tenant pursuant to the
"Plans" (as defined in EXHIBIT C, "Construction Provisions," attached hereto),
except for such items that constitute minor defects or adjustments which can be
completed after occupancy by Tenant without causing material interference with
Tenant's use of the Premises (so-called "punch list" items). On or about the
date when Tenant has substantially completed all work to be performed by Tenant
in the Premises, Landlord and Tenant shall inspect the Premises and all punch
list items shall be noted in writing on Landlord's punch list form. As soon
thereafter as conditions permit, Tenant shall complete all such punch list
items. Upon Tenant's completion of such punch list items, Landlord and Tenant
shall reinspect the Premises with regard to all punch list items previously
noted and shall Indicate on Landlord's punch list form if such items have been
satisfactorily completed. The preceding procedure shall be repeated until all
such items have been satisfactorily completed by Tenant.
3.3 INTENTIONALLY OMITTED.
3.4 OCCUPANCY. Tenant acknowledges that as of the date hereof, the
Premises are occupied by another tenant or occupant. Therefore, Tenant agrees
that if for any reason Landlord is unable to obtain possession of the Premises
from the said tenant or occupant and to deliver the some to Tenant on or before
April 1, 1997, this Lease shall not be void or voidable nor shall Landlord or
its agents, employees or contractors be liable therefor, monetarily or
otherwise, but the Commencement Date shall be the date Landlord delivers
possession of the Premises to Tenant. If, Landlord is unable to obtain
possession of the Premises and deliver possession thereof to Tenant on or before
July 1, 1997, either Landlord or Tenant may elect to terminate this Lease by
written notice to the
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other, which notice must be given before Tenant receives notice from Landlord
that Landlord has received possession of the Premises whereupon this Lease shall
terminate and the parties hereto shall be discharged from any and all further
obligations or liability hereunder.
4. RENT AND EXPENSE PAYMENTS
4.1 GENERAL. The "Rent" or "Rental" hereunder is composed of "Basic
Rent" as set forth in Section 1.4 hereof and adjustments thereto as hereinafter
provided. The term "Expenses" hereunder means all costs, expenses, fees, charges
or other amounts described in Article 6. Tenant agrees to pay to Landlord all
Rent and Expenses required under this Lease, which shall be payable monthly to
Landlord (unless expressly provided otherwise), without deduction or off set, in
lawful money of the United States of America at the office maintained by
Landlord in the Project or at such other place as Landlord may from time to time
designate in writing. Notwithstanding any contrary provisions of this Lease, all
Expenses, late payment fees, interest, "After-Hours Charges," parking fees
payable under the "Parking License Agreement" attached hereto, and all other
sums of money or charges required to be paid pursuant to this Lease shall be
deemed "Additional Rent" for the Premises; and in any notice to pay rent or quit
the Premises, Landlord may include and designate same as rent then past due and
owing, if such is the case. Any Rent or Expenses increases which are called for
hereunder, the payment of which is delayed or prevented by reason of any wage
and price control low, rent control law, or other governmental rule, law or
restriction, shall accrue and be payable together with interest thereon at the
"Agreed Rate" (as defined in Section 39.13 hereof), at the end of the Lease
term. Or sooner if allowed. No acceptance by Landlord of partial payment of any
sum due from Tenant shall be deemed a waiver by Landlord of any of its rights to
the full amount due, nor shall any endorsement or statement on any check or
accompanying letter from Tenant be deemed an accord and satisfaction. Any Rent
payments or other sums received from Tenant or any other person shall be
conclusively presumed to have been paid on Tenant's behalf, unless Landlord has
been given prior written notice to the contrary by Tenant. Tenant agrees that
the acceptance by Landlord of any such payment shall not constitute a consent by
Landlord or a waiver of any of its rights under this Lease. In no event shall
the foregoing be construed as requiring Landlord to accept any Rent or other
sums from any person other than Tenant if the term hereof begins or ends on a
day other then the last day of a month. Then the Rent and Expenses for such
month shall be prorated based on a thirty (30) day month. All prorations of Rent
or Expenses under this Lease for fractional periods shall be based on a thirty
(30) day month and a three hundred sixty (360) day year.
4.2 BASIC RENT. Tenant shall pay the "Basic Rent" set forth in Section
1.4 hereof on the first day of each month in advance, beginning on the
Commencement Date. Landlord may, but shall not be obligated to, send a xxxx or
statement for Rent to Tenant
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each month, but Tenant shall be obligated to pay Rent on the first day of each
month regardless of whether or not it receives a xxxx or statement.
4.3 PREPAID RENT. Tenant shall pay prepaid Basic Rent concurrently with
the execution of this Lease, as set forth in Section 1.7 hereof.
5. INTENTIONALLY OMITTED
6. EXPENSES
6.1 Tenant shall pay its share of "Expenses" on the first day of each
month during the term hereof or otherwise as set forth in this Article 6. The
monthly Expenses payable by Tenant hereunder consist of the amount by which
Tenant's Share of Expenses exceeds Landlord's Base War Costs (as such terms are
hereinafter defined). calculated as follows: Total Expenses (estimated or
actual) multiplied by Tenant's Share minus Landlord's Base Year Costs, divided
by twelve (12) months.
6.2 DEFINITIONS. As used in this Lease, the following terms have the
meanings indicated:
6.2.1 "Landlord's Base Year Costs" means the annualized dollar
amount which results from multiplying the total actual Expenses incurred by
Landlord during the Base Year by Tenant's Share. Such amount constitutes the
amount per year which Landlord agrees to pay towards Expenses allocable to the
Premises, without reimbursement from Tenant. Landlord's Base Year Costs shall be
adjusted to be equal to Landlord's reasonable estimate of Expenses assuming at
least ninety-five percent (95%) of the total rentable area of the Building was
occupied for the entire year, and assuming the Building was fully completed and
fully assessed for property tax assessment, maintenance and repair purposes.
6.2.2 The term "Expenses" means all expenses, costs and fees
paid or incurred by Landlord during any calendar year during the term hereof in
connection with or attributable to the Building and Common Area (as described
hereinafter), including any parking facilities therein, for.
6.2.2.1. Electricity, water, gas, sewer, and all
other utility services to or for the Building or Common Area, including
any utility taxes, fees, charges or other similar impositions paid or
incurred by Landlord in connection therewith; and
6.2.2.2. Operation, maintenance (including reasonable
reserves), security services, replacement for normal wear and tear,
repair, restriping or resurfacing of paving, management (including
costs of on-site Offices and
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personnel and a reasonable home-office overhead allocation), insurance
(including public liability and property damage, rent continuation,
boiler and machinery and extended coverage insurance), and cleaning of
the Building and Common Area and all furnishings, fixtures and
equipment therein, but excluding the costs of special services rendered
to tenants (including Tenant) for which a separate charge is made,
costs of leasing and preparing space for now tenants in the Building,
or costs borne solely by Tenant under the Lease. The term "Expenses"
includes the annual amortization of costs (including financing at the
then prevailing rate, if any) of any equipment, device or improvement
required after completion of the Building by governmental authority or
incurred as a labor saving measure or to reduce operation or
maintenance expenses with respect to the Building and Common Area where
such costs are amortized over the useful life thereof and which do not
inure primarily to the benefit of any particular tenant; and
6.2.2.3. All real property taxes and personal
property taxes, licenses, charges and assessments which are levied,
assessed, imposed or collected by any governmental authority or
improvement or assessment district during any calendar year with
respect to the Building or Common Area and the land on which the same
is located, and any improvements, fixtures, equipment and other
property of Landlord, real or personal, located in the Project and used
in connection with the operation or maintenance of the Building or
Common Area (computed on a cash basis or as if paid in permitted
installments regardless of whether actually so paid), as well as any
tax which shall be levied or assessed in addition to or in lieu of such
taxes (it being acknowledged that because of the passage of laws which
limit increases in real property taxes, government agencies may impose
fees, charges, assessments or other levies in connection with services
previously furnished without charge or at a lesser charge and which
were previously paid for in whole or in part, directly or indirectly by
real property taxes), any gross excise tax or other similar tax, and
any costs or expenses of contesting any such taxes, licenses, charges
or assessments, but excluding any federal or state income or gift tax
or any franchise, capital stock, estate or inheritance taxes.
6.2.3 The term "Common Area" means that portion of the Project
other than the Building and other buildings for lease to tenants which is from
time to time designated and improved for nonexclusive, common use by more than
one person. The general location of the Common Area is shown on EXHIBIT A-1
attached hereto and incorporated by reference. The Common Area includes parking
facilities in the Project.
Any cost or expense included in Expenses which is attributable to
Common Area shall be prorated by Landlord to the Building based on the
proportion which the total square footage of the Building bears to the total
square footage of all buildings in the Project from time to time or by such
other fair and reasonable method of allocation based
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on use or benefit as Landlord may determine except that with regard to taxes,
Landlord may use such allocation of taxes among the various parcels in the
Project as may have been used by the taxing authority.
6.2.4 The term "Base Year" means the calendar year specified
at Section 1.5.
6.2.5 The term "Subsequent Year" means the first full calendar
year following the Base Year and each calendar year, or part thereof, thereafter
occurring during the term of this Lease.
6.2.6 "Tenant's Share" is hereby agreed by Landlord and
Tenant to be the percentage set forth in Section 1.5 hereof.
6.2.7 Notwithstanding the foregoing, or anything to the
contrary in the Lease, in no event shall Tenant have any obligation to perform
or to pay directly, or to reimburse Landlord for, all or any portion of the
following repairs, maintenance, improvements, replacements, premiums, claims,
losses, fees, charges, costs and expenses (collectively, "Costs') except as
otherwise or to the extent provided in this Section 6.2.7:
6.2.7.1. Costs occasioned by the act, omission or
violation of law by Landlord, any other occupant of the Project or
their respective agents, employees or contractors.
6.2.7.2. Costs occasioned by fire, acts of God, or
other casualties pursuant to Article 18 hereof or by the exercise of
the power of eminent domain pursuant to Article 19 hereof.
6.2.7.3. Costs relating to improvements and capital
equipment and tools which could properly be capitalized under generally
accepted accounting principles, except to the extent expressly
permitted at Section 6.2.2.2 hereof.
6.2.7.4. Costs to the extent Landlord receives
reimbursement from others.
6.2.7.5. Any charge for Landlord's federal or state
income tax, excess profit tax, franchise tax, or like tax on Landlord's
business.
6.2.7.6. Costs to correct any defect in the original
construction of the Project.
6.2.7.7. Costs incurred to bring the Building into
compliance with any laws in effect prior to the Commencement to the
extent the costs therefor
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exceed $50,000.00 in any given year (as to the Project and not as to
Tenant's Share thereof) (subject to the provisions of Section 6.2.2.2).
6.2.7.8. The cost of any renovation, improvement,
painting or redecorating of any portions of the Project which are
exclusive to the use of a particular tenant or occupant.
6.2.7.9. Fees, commissions, attorneys' fees, Costs or
other disbursements incurred in connection with negotiations or
disputes with any other occupant of the Project and Costs arising from
the violation by Landlord or any occupant of the Project (other than
Tenant) of the terms and conditions of any lease or other agreement.
6.2.7.10. Depreciation, amortization or other expense
reserves except as otherwise expressly permitted by this Lease.
6.2.7.11. Interest charges and fees incurred on debt
(except as otherwise expressly permitted by this Lease), payments on
mortgages and rent under ground leasses.
6.2.7.12. Advertising or promotional Costs (excluding
any Project signage, exclusive of signs identifying any tenant or
occupant).
6.2.7.13. Lease payments and Costs for capital
machinery and equipment (except when needed in connection with normal
repairs and maintenance of permanent systems), such as air
conditioners, elevators, and the like which, if purchased rather than
rented, would constitute a capital expenditure above (but further
excluding equipment not affixed to the Building which is used in
providing janitorial and similar services).
6.2.7.14. Sums for the acquisition of paintings and
other art objects.
6.2.7.15. Costs incurred to comply with laws in
effect as of the date of this Lease relating to the removal of
hazardous material (as defined under applicable law, and defined as
such as of the Commencement Date), which hazardous material is in
existence in the Building or Project prior to the date of this Lease or
is brought into the Building or Project after the date hereof by
Landlord or any other tenant of the Building or Project (excluding
Tenant), and is of such a nature that a Federal, State or municipal
government governmental authority, if it had knowledge of the presence
of such hazardous material in the state and under the conditions that
it then exists in the Building or Project would require the removal of
such hazardous material or would require other remedial or
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containment action with respect thereto pursuant to laws in effect as
of the date of this Lease.
6.2.7.16. Wages, salaries, compensation, and labor
burden for any employee to the extent not involved with the business of
the Project, calculated on a pro rate basis between the time such
person provides services for the Project and provides services
elsewhere. Overhead profit increments paid to Landlord's subsidiaries
and affiliates for management or other services on or to the Building
to the extent that the cost of the services, supplies or materials
exceeds the cost that would have been paid had the services, supplies
or materials been provided by other qualified, first-class,
unaffiliated parties on a competitive basis.
6.2.7.17. Costs and expenses for which Tenant
reimburses Landlord directly or which Tenant pays directly to a third
person.
6.3 PAYMENT OF ESTIMATED EXPENSES. Tenant shall pay estimated
Expenses to Landlord as follows:
6.3.1 Landlord shall submit to Tenant, on or before March 31
of the first Subsequent Year or as soon thereafter as Landlord has sufficient
data, a reasonably detailed statement showing the Expenses for the Base Year.
6.3.2 For each Subsequent Year, Landlord shall submit to
Tenant, prior to January 1 of such Subsequent War or as soon thereafter as
practicable, a reasonably detailed statement showing the estimated Expenses for
such Subsequent Year. The determination of estimated Expenses hereunder shall be
made by Landlord based upon Landlord's experience with small costs and
projections. Tenant shall pay monthly to Landlord an amount equal to the excess
of (a) the sum of the total annual estimated Expenses multiplied by Tenant's
Share minus (b) Landlord's Base Year Costs, over (c) twelve (12) months. If
Landlord does not submit said statement to Tenant prior to January 1 of any such
Subsequent Year Tenant shall continue to pay its share of estimated Expenses at
the then existing rate until such statement is submitted, and, thereafter, at
the monthly Rent payment date next following the submittal of such statement,
shall pay its share of estimated Expenses based on the rate set forth in such
statement together with any amounts based on such rate which may have
theretofore accrued from January 1 of such Subsequent Year. Landlord may revise
such estimated Expenses at the end of any calendar quarter, and Tenant shall pay
Tenant's Share of such revised estimated Expenses after notice thereof as herein
provided.
6.4 PAYMENT OF ACTUAL EXPENSES. Actual Expenses shall be reconciled
against payments of estimated Expenses as follows:
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6.4.1 On or before March 31 of the second Subsequent Year and
each Subsequent Year thereafter, or as soon thereafter as Landlord has
sufficient data, Landlord shall submit to Tenant a reasonably detailed statement
showing the actual Expenses paid or incurred by Landlord during the previous
calendar year. If Tenant's Share of such actual Expenses is less than the amount
of estimated Expenses for such previous year theretofore paid by Tenant. Then
Landlord shall credit the amount of such difference against estimated and/or
actual Expenses which may thereafter be due from Tenant; provided, however, that
in no event shall Tenant receive a credit as provided herein for any amount
calculated to be less than Landlord's Base Year Costs. If Tenant's Share of such
actual Expenses is more than the amount of the estimated Expenses for such
previous year theretofore paid by Tenant, then Tenant shall at the monthly Rent
payment date next following the submittal of such statement to Tenant pay to
Landlord the full amount of such difference.
6.4.2 The reconciliation of the Expenses paid by Tenant for
the calendar year in which this Lease terminates shall be made upon Landlord's
submittal to Tenant of the statement of actual Expenses for such calendar year.
The estimated and actual Expenses for such calendar year shall be prorated based
on the actual number of days in such calendar year that this Lease was in
effect, based on a 360 day year, and shall be compared. If pursuant to such
comparison it is determined that them has been an underpayment or an overpayment
by Tenant for such calendar year, Landlord shall refund the overpayment to
Tenant. Or Tenant shall pay the amount calculated as owing to Landlord, as the
case may be, within thirty (30) days after the submittal of the statement by
Landlord. This provision shall survive the expiration or termination of the
Lease. If Landlord deems it advisable, Landlord may submit partial year
statements pursuant to this Section 6.4.2 in order to cause an earlier
reconciliation of Expenses for the calendar year in which this Lease terminates.
6.5 OTHER EXPENSE PROVISIONS.
6.5.1 Notwithstanding any provision of this Article 6 to the
contrary, if at any time during the term of this Lease any tenant pursuant to an
express provision in its lease and with Landlord's approval, contracts for
certain Building or Common Area services to be provided directly to it and at
its expense, which services would normally be furnished by Landlord (e.g.,
janitorial, maintenance, utilities, etc.), then Landlord may make an appropriate
adjustment in calculating Tenant's Share of Expenses to the end that the cost of
the remaining services provided by Landlord are shared proportionately by all
tenants receiving such services.
6.5.2 In determining the amount of Expenses hereunder, the
Expenses shall be adjusted to be equal to Landlord's reasonable estimate of
Expenses assuming at least ninety-five percent (95%) of the total rentable area
of the Building was occupied for
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the entire year, and assuming the Building was fully completed and fully
assessed for property tax assessment, maintenance and repair purposes.
6.5.3 The computation of Expenses pursuant to this Article 6
is intended to constitute a formula for an agreed sharing of costs by tenants,
and may or may not constitute an exact reimbursement to Landlord for costs paid
by Landlord, and for Landlord's administration.
6.5.4 Any delay or failure of Landlord in computing or billing
for Expenses shall not constitute a waiver of, or in any way impair, the
obligation of Tenant to pay Expenses hereunder. However, Tenant shall not be
charged interest on unpaid Expenses which have accrued during such time that
Landlord has failed to submit a statement for such Expenses.
7. TAXES PAYABLE SOLELY BY TENANT
7.1 In addition to the Rental and Expenses to be paid by Tenant, Tenant
shall pay before delinquency and without notice or demand by Landlord any and
all taxes levied or assessed on and which become payable by Tenant during the
term of this Lease (excluding, however, state and federal personal or corporate
income taxes measured by the income of Landlord from in sources, capital stock
taxes, and estate and inheritance taxes), whether or not now customary or within
the contemplation of the parties hereto, which are based upon, measured by or
otherwise calculated with respect to, (i) the gross or net Rent payable under
this Lease, including, without limitation, any gross receipts tax or any other
gross income tax or excise tax levied by any taxing authority with respect to
the receipt of the Rental hereunder, (ii) the value of Tenant's equipment,
furniture fixtures or other personal property located in the Premises; (iii) the
possession, lease, operation, management maintenance, alteration, repair, use or
occupancy by Tenant of the Premises or any portion thereof, (iv) this
transaction or any document to which Tenant is a party creating or transferring
an interest or an estate in the Premises. Real property taxes on improvements
which are installed as part of Landlord's Work shall be deemed to be included in
the taxes described in Section 6.2.2.3 above, as to which Tenant shall pay
Tenant's Share. If it is not lawful for Tenant to reimburse Landlord for any
such taxes paid or incurred by Landlord, the Rent shall be revised so as to net
Landlord the same net Rent after imposition of such taxes as would have been
payable prior to the imposition of such taxes.
8. LATE PAYMENTS
8.1 If Tenant fails to pay to Landlord when due any Rent, Expenses or
other sums owing to Landlord pursuant to the terms of this Lease said late
payment shall bear interest at the Agreed Rate as herein provided and in
addition:
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8.1.1 For each such late payment that is not paid within five
(5) days after the date the same was due, Tenant shall pay to Landlord a service
charge equal to seven percent (7%) of the overdue amount. Tenant acknowledges
and agrees that such late payment by Tenant will cause Landlord to incur costs
and expenses not contemplated by this Lease, the exact amounts of which will be
extremely difficult to ascertain, and that such service charge represents a fair
estimate of the costs and expenses which Landlord would incur by reason of
Tenant's late payment. Tenant further agrees that such service charge shall
neither constitute a waiver of Tenant's default with respect to such overdue
amount nor prevent Landlord from exercising any other right or remedy available
to Landlord; and
8.1.2 Following any three (3) consecutive late payments of
Rent, Landlord may, upon notice to Tenant,
8.1.2.1. Require that, beginning with the first
payment of Rent due following the date the third (3rd) late payment was
due, Rent shall no longer be paid in monthly installments but shall be
payable three (3) months in advance and, in addition or in the
alternative at Landlord's election,
8.1.2.2. Require that Tenant increase the amount of
any Security Deposit required herein by one hundred percent (100%),
which additional Security Deposit shall be retained by Landlord, and
which may be applied by Landlord, in the manner provided herein with
respect to any Security Deposit required herein.
9. SECURITY DEPOSIT
9.1 Upon Tenant's execution of this Lease, Tenant shall deposit with
Landlord a "Security Deposit" in the amount set forth in Section 1.8 hereof,
which shall be hold by Landlord as security for the faithful performance by
Tenant of all of the terms, covenants, and conditions of this Lease. It being
expressly understood and agreed that the deposit is neither an advance Rent
deposit nor a measure of Landlord's damages in case of Tenant's default. If at
any time during the term of this Lease or any extended term thereof Tenant's
Basic Rent is increased pursuant to Article 5 or otherwise, the Security Deposit
shall be increased in the same proportion and Tenant shall deposit cash with
Landlord in an amount sufficient to increase the Security Deposit to the
appropriate amount. The Security Deposit may be retained, used or applied by
Landlord to remedy any default by Tenant, to repair damage caused by Tenant to
any part of the Project, and to clean the Premises upon expiration or earlier
termination of the Lease, as well as to reimburse Landlord for any amount which
Landlord may spend by reason of Tenant's default or to compensate Landlord for
any other loss or damage which Landlord may suffer by reason of Tenant's
default. If any portion of said deposit is so used or applied, Tenant shall,
within ten (10) days after written demand therefore, deposit cash with Landlord
in an amount sufficient to restore said deposit to the full amount required
hereunder, and
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Tenant's failure to do so shall be a material breach of this Lease. Landlord
shall not be required to keep the Security Deposit separate from its general
funds, and Tenant shall not be entitled to interest on such deposit. Tenant may
not elect to use any portion of said Security Deposit as a Rental payment
although Landlord may elect to do so in the event Tenant is in default hereunder
or is insolvent. If Tenant shall fully and faithfully perform every provision of
this Lease to be performed by it, the Security Deposit or any balance thereof
shall be returned to Tenant at Tenant's last known address (or, at Landlord's
option, to the last assignee of Tenant's interest hereunder) within thirty (30)
days after the Lease term has ended and the Premises have been vacated by Tenant
in the manner required by this Lease.
10. TENANT IMPROVEMENTS
10.1 APPLICABILITY. The "Construction Provisions" attached as EXHIBIT C
hereto shall govern with regard to work to be completed at Tenant's expense
("Tenant's Work"). Landlord has no obligation and has made no promise to alter,
remodel, decorate, paint or otherwise improve the Premises or any part thereof
and Tenant shall accept the Premises in an "as is" condition with all faults.
10.2 INTENTIONALLY OMITTED.
10.3 INTENTIONALLY OMITTED.
11. USE
11.1. The Premises shall be used and occupied by Tenant for general
office purposes and for no other purpose without the prior written consent of
Landlord, which Landlord may withhold in its sole discretion. Tenant
acknowledges that neither Landlord nor any agent of Landlord has made any
representation or warranty with respect to the Premises, the Building or the
Project, with respect to the suitability thereof for the conduct of Tenant's
business. Tenant shall not do or permit anything to be done in or about the
Premises nor bring or keep anything therein which will in any way increase the
existing rate of or affect or cause a cancellation of any fire or other
insurance covering the Building, Common Area, or the Premises or any of its
contents, nor shall Tenant senor permit to be kept, used or sold in or about the
Premises any article which may be prohibited by a standard form policy of
insurance. Tenant shall promptly upon demand reimburse Landlord for any
additional premium charged for any such insurance by reason of Tenant's failure
to comply with the provisions of this Article 11. Tenant agrees that it will use
the Premises in such manner as not to interfere with the rights of other tenants
of the Building or Common Area. Tenant shall neither use nor allow the Premises,
Building or Common Area to be used for any unlawful or objectionable purpose,
nor cause, maintain or permit any nuisance or waste in, on or about any portion
of the Project. Tenant will not place a load upon any floor exceeding the floor
load which such floor was
14
designed to carry, and Landlord reserves the right to prescribe the location of
any safe or other heavy equipment in the Premises. Tenant shall not use or allow
anything to be done in or about the Premises or this Project which will in any
way conflict with any law, ordinance or governmental regulation or requirement
of any board of fire underwriters or any duly constituted public authority now
in force or hereafter enacted or promulgated affecting the use or occupancy of
the Premises, and shall promptly comply with any such law or requirements at its
sole cost and expense. The judgment of any court of competent jurisdiction or
any admission by Tenant that Tenant has violated any such law, statute
ordinance, rule, regulation or requirement shall be conclusive of such fact as
between Landlord and Tenant.
12. SERVICE AND UTILITIES
12.1 LANDLORD'S OBLIGATIONS. Provided Tenant is not in default
hereunder, Landlord shall as a part of Expenses make available to the Premises
during the Building's normal business hours as set forth in Rule 17 of the Rules
and Regulations described in Article 36 hereof, such amounts of air
conditioning, heating and ventilation as may be required in Landlord's
reasonable judgment for the comfortable use of the Premises, as well as elevator
service, reasonable amounts of electric current for normal lighting by Building
Standard overhead fixtures and for fractional horsepower office machines, and
water for lavatory and drinking purposes. "Building Standard" fixtures and
equipment are as described in Schedule A to EXHIBIT C attached hereto or, in
absence thereof, as installed in the typical common corridor. Landlord shall as
a part of Expenses replace Building Standard light bulbs, tubes and ballasts
which need replacing due to normal use. Landlord shall also as a part of
Expenses maintain and keep lighted the common stairs, entries and toilet rooms
in the Building and shall provide trash removal, janitorial service and window
washing customary for similar buildings in the same geographical area. Except to
the extent caused by Landlord's negligence, Landlord shall not be in default
hereunder or liable for any damages directly or indirectly resulting from, nor
shall the Rent be abated (except as otherwise expressly provided for herein) or
shall there be deemed a constructive or other eviction of Tenant by reason of
(i) the installation, use or interruption of use of any equipment in connection
with the furnishing of any of the foregoing utilities and services, (ii) failure
to furnish, or delay in furnishing, any such utilities or services when such
failure or delay is caused by acts of God, acts of government, labor
disturbances of any kind, or other conditions beyond the reasonable control of
Landlord, or by the making of repairs or improvements to the Premises or any
part of the Project, or (iii) governmental limitation, curtailment, rationing or
restriction on use of water, electricity or any other service or utility
whatsoever serving the Premises, Building or Common Area. If (a) Landlord fails
to provide any utility Landlord is required to provide Tenant under the
provisions of this Section 12.1 (except where such failure is the result of
casualty damage to, or a condemnation of, all or a part of the Building), and
(b) such failure is attributable to Landlord, or its agents, employees or
15
contractors, and (c) such failure constitutes a material interference with
Tenant's use and occupancy of the Premises, and (d) Tenant has notified Landlord
in writing of such failure ("Utility Interruption Notice"), then if such
interruption continues for five (5) consecutive days after Landlord has received
the Utility Interruption Notice, then the Basic Rent shall be wholly abated
commencing upon said fifth (5th) day and continuing until such utility is
restored and (ii) if such interruption continues for a period of forty-five (45)
consecutive days after Landlord has received the Utility Interruption Notice,
then Tenant shall have the right to terminate this Lease by providing Landlord
ten (10) days' written notice thereof, which notice must be given after the
expiration of the said forty-five (45) day period and received by Landlord prior
to the date such utility is restored. Landlord shall be entitled to cooperate
with the energy conservation efforts of governmental agencies or utility
suppliers. The failure of Landlord to provide such services if consistent with
the foregoing shall not constitute a constructive or other eviction of Tenant.
12.2 AFTER-HOURS CHARGES. During non-business hours Landlord shall as a
part of Expenses keep the public areas of the Building lighted and shall provide
elevator service with at least one (1) elevator, but shall not be obligated to
furnish ventilation, lighting or air conditioning to the Premises. If Tenant
requires ventilation, lighting and/or air conditioning during non-business hours
Tenant shall give Landlord at least twenty-four (24) hours prior notice of such
requirement or shall follow such other procedure for activating the building
energy management system as Landlord may advise Tenant, and Tenant shall pay
Landlord the "After-Hours Charges" for such extra service at the rate set forth
in Section 1.6 hereof. Such rates are subject to increase from time to time
based on increases in Landlord's costs associated with providing such extra
services. An payment required for After-Hours Charges shall be deemed to be
Additional Rent and Landlord shall have the some remedies for a default in
payment thereof as for a default in payment of Rent.
12.3 TENANT'S OBLIGATIONS. Tenant shall pay, prior to delinquency, for
all telephone charges and all other materials and services not expressly
required to be paid by Landlord, which may be furnished to or used in, on or
about the Premises during the term of this Lease. Tenant shall also pay, as
Additional Rent, all charges and fees required to be paid by Tenant by the Rules
and Regulations described in Article 38 of this Lease.
12.4 EXCESS UTILITY USAGE. Tenant will not without the prior written
consent of Landlord use any apparatus or device in the Premises, including
(without limitation) electronic date processing machines, punch card machines,
and telephone switchgear, which will materially increase the amount of cooling
or ventilation or electricity or water usually furnished or supplied for use of
the Premises as general office space; nor shall Tenant connect with electric
current (except through existing electrical outlets in the
16
Premises) or water pipes, any apparatus or device for the purpose of using
electrical current or water, except as may be provided in the Construction
Provisions. If Tenant uses electricity at a rate in excess of 4 kilowatt/hours
per usable square foot of the Premises per year, the cost to Landlord of any
such excess use of utility service by Tenant shad be paid by Tenant based on
Landlord's reasonable estimates and costs. If Tenant requires or uses
ventilation, cooling, water or electric current or any other resource in excess
of that usually furnished or supplied for use of the Premises as general office
space. Landlord may cause a special meter or other measuring device to be
installed in or about the Premises to measure the amount of water, electric
current or other resource consumed by Tenant. The cost of any such meter, and of
the installation, maintenance and repair thereof, shall be paid for by Tenant,
and Tenant agrees to pay Landlord promptly upon demand for all such water,
electric current or other resource consumed, as shown by said meter, at the
rates charged by the local public utility or other supplier furnishing the same,
plus any additional expense incurred by Landlord in keeping account of the
foregoing and administering same. If any lights, machines or equipment
(including but not limited to computers) are used by Tenant in the Premises
which materially affect the temperature otherwise maintained by the heating,
ventilation or air conditioning system, or generate substantially more heat in
the Premises than would be generated by Building Standard lights or usual
fractional horsepower office equipment, Landlord shall have the right to install
any machinery and equipment which Landlord deems necessary to restore the
temperature balance in any affected part of the Building, including but not
limited to modifications to the Building Standard air conditioning equipment and
the cost thereof including the cost of Installation and any additional cost of
operation and maintenance occasioned thereby shall be paid by Tenant to Landlord
upon demand. Any sums payable under this Section 12.4 shall be considered
Additional Rent, and Landlord shall have the same remedies for a default in
payment of such sum as for a default in the payment of Rent.
13. ENTRY BY LANDLORD
13.1 Landlord and its authorized representatives shall have the right
to enter the Premises at all reasonable times during normal business hours and
at any time in case of an emergency (i) to determine whether the Premises are in
good condition and whether Tenant is complying with its obligations under this
Lease, (ii) to maintain or to make any repair or restoration to the Building
that Landlord has the right or obligation to perform, (iii) to install any
meters or other equipment which Landlord may have the right to install, (iv) to
serve, post or keep posted any notices required or allowed under the provisions
of this Lease, (v) to post "for sale" signs at any time during the term, and to
post "for rent" or "for lease" signs during the last three (3) months of the
term or during any period while Tenant is in default, (vi) to show the Premises
to prospective brokers, agents, buyers, tenants, or persons interested in an
exchange, (vii) to shore the foundations, footings, and xxxxx of the Building
and to erect scaffolding and protective barricades
17
around and about the Building or the Premises, but not so as to prevent entry
into the Premises, and (viii) to do any other act or thing necessary for the
safety or preservation of the Premises or the Building. Landlord shall have the
right at all times to have and retain a key with which to unlock all doors in,
upon and about the Premises excluding Tenant's vaults and safes, and Landlord
shall have the right to use any and all means which Landlord may deem proper to
gain entry in an emergency, and any entry to the Premises obtained by Landlord
in accordance with the foregoing shall not be construed or deemed to be a
forcible or unlawful entry into, or a detainer of, the Premises, or an eviction
of Tenant from the Premises or any portion thereof. Except to the extent caused
by the negligence or willful misconduct of Landlord, Tenant hereby waives any
claim for damages for any injury or inconvenience to or interference with
Tenant's business and any loss of occupancy or quiet enjoyment of the Premises
by reason of Landlord's exercise of its rights of entry in accordance with this
Article 13. Tenant shall not be entitled to an abatement or reduction of Rent or
Expenses in connection with any such entry.
14. MAINTENANCE AND REPAIR
14.1 LANDLORD'S OBLIGATIONS. Landlord shall as part of Expenses
maintain or cause to be maintained in good order, condition and repair the
structural and common portions of the Building and all Common Areas in the
Project including, but not limited to, the Building Standard heating,
ventilating and air conditioning systems (except to the extent of damage caused
by Tenant and not covered by Landlord's insurance which shall be repaired by
Landlord at Tenant's expense). Landlord shall not be liable, and neither Rent
nor Expenses shall be abated, for any failure by Landlord to maintain and repair
areas which are being used in connection with construction or reconstruction of
improvements, or for any failure to make any repairs or perform any maintenance,
unless such failure shall persist for an unreasonable time after written notice
of the need thereof is given to Landlord by Tenant. To the extent the provisions
of this Article 14 are in conflict with any statute now or hereafter in affect
which would off afford Tenant the right to make repairs at Landlord's expense or
to terminate this Lease. The provisions of this Article 14 shall govern.
14.2 TENANT'S OBLIGATIONS.
14.2.1 Tenant shall, at its sole cost and expense, except for
janitorial services furnished by Landlord pursuant to Article 12 hereof, and
except as resulting from the negligence or willful misconduct of Landlord (and
which is not covered by insurance which Tenant is obligated to maintain under
this Lease) and except for damage or destruction pursuant to Article 18 hereof,
maintain the Premises including all improvements therein in good order,
condition and repair.
18
14.2.2 In connection with Tenant surrendering possession of
the Premises at the and of the Lease term, Tenant agrees to repair any damage
caused by or in connection with the removal of any article of personal property,
business or trade fixtures, machinery, equipment, cabinetwork, furniture,
movable partitions or permanent improvements or additions, including without
limitation thereto, repairing the floor and patching and painting the walls
where required by Landlord to Landlord's reasonable satisfaction, all at
Tenant's sole cost and expense. Tenant shall indemnify, defend and hold Landlord
harmless against any loss, liability, cost or expense (including reasonable
attorney's fees) resulting from delay by Tenant in so surrendering the Premises.
Tenant's obligation hereunder shall survive the expiration or termination of
this Lease.
14.2.3 If Tenant fails to maintain the Premises in good order,
condition and repair, Landlord may give Tenant notice to do such acts as are
reasonably required to so maintain the Premises. If Tenant thereafter falls to
promptly commence such work and diligently prosecute it to completion, then
Landlord shall have the right to do such acts and expend such funds at the
expense of Tenant as are reasonably required to perform such work. Any amount so
expended by Landlord (together with a charge for Landlord's administration and
overhead equal to five percent (5%) thereof) shall be paid by Tenant promptly
after demand, with interest at the Agreed Rate from the date of such work.
Landlord shall have no liability to Tenant for any inconvenience or interference
with the use of the Premises by Tenant as a result of performing any such work.
14.3 COMPLIANCE WITH LAW. Landlord and Tenant shall each do all acts
required to comply with all applicable laws, ordinances, and rules of any public
authority relating to their respective maintenance obligations as set forth
herein.
15. ALTERATIONS AND ADDITIONS
15.1 Tenant shall make no alterations, additions or improvements to the
Premises or any part thereof having a cost in excess of Five Thousand Dollars
($5,000) or which affects the exterior appearance of the Premises or the
Building or any common portion of the Building or any portion of the Common Area
or the electrical, mechanical, plumbing or other systems in the Building,
without obtaining the prior written consent of Landlord in each instance. Such
consent may be granted or withheld at Landlord's sole discretion. Any such
alterations, additions or improvements consented to by Landlord may, at
Landlord's option, be made by Landlord for Tenant's account and Tenant shall
reimburse Landlord for the cost thereof (together with a charge for Landlord's
administration and management thereof equal to five percent (5%) of the cost
incurred) within thirty (30) days after an invoice therefor is submitted to
Tenant Landlord may impose as a condition to such consent such requirements as
Landlord may deem necessary in its sole discretion, including without limitation
the requirement that Landlord be furnished with working drawings before work
commences and that a bond
19
be furnished, and requirements relating to the manner in which the work is done,
the contractor by whom it is performed, and the times during which it is
accomplished, as well as the requirement that, upon written request of Landlord
prior to the expiration or earlier termination of the Lease, Tenant will remove
at its expense any such alterations, improvements or additions to the Premises;
however, if Tenant requests in writing to Landlord prior to the construction or
Installation of such additions or alterations that Landlord stipulate that
Tenant shall not be required to remove any or all of such improvements upon the
expiration or earlier termination of this Lease and Landlord agrees thereto in
writing to Tenant (to which Landlord shall either agree or not agree within ten
(10) business days after Landlord has received from Tenant all information
reasonably required by Landlord in connection with such work), then Tenant shall
not be obligated to so remove such improvements or additions. In no event,
however, shall Tenant be obligated to remove any improvements initially made to
the Premises pursuant to the provisions of EXHIBIT C attached hereto. Any damage
done to the Premises in connection with any such removal shall be repaired at
Tenant's sole cost and expense. Landlord may, in connection with any such
removal which reasonably might involve damaging the Premises, require that such
removal be performed by a bonded contractor or other person for which a bond
satisfactory to Landlord has been furnished covering the cost of repairing the
anticipated damage. Unless so removed, all such alterations, additions or
improvements shall at the expiration or earlier termination of the Lease become
the property of Landlord and remain upon the Premises. All such improvements,
alterations or additions must be done in a good and workmanlike manner and
diligently prosecuted to completion so that the Premises shall at all times be a
complete unit except during the period of work. Such improvements, alterations
or additions shall only be constructed by a contractor which is bondable and
which shall use union employees only, except that such contractor may use
non-union employees only if prior to the commencement of any work Tenant obtains
Landlord's written consent which Landlord may withhold unless it is adequately
protected against any and all loss or damage that may result from labor problems
or any work stoppage or interruption arising from the use of such non-union
employees. Tenant shall deliver to Landlord upon commencement of such work a
copy of the building permit with respect thereto. Upon completion of such work
Tenant shall file for record in the office of the County Recorder where the
Project is located a Notice of Completion, as required or permitted by law. All
such work shall be performed and done strictly in accordance with the laws and
ordinances relating thereto and shall be performed so as not to obstruct the
access to the premises of any other tenant in the Building or Project. Tenant
agrees to carry insurance as required by Article 17 covering any improvements,
alterations or additions to the Premises made by Tenant under the provisions of
this Article 15, it being expressly agreed that none of such improvements,
additions or alterations shall be insured by Landlord under the insurance
Landlord may carry upon the Building, nor shall Landlord be required under any
provision for reconstruction to reinstall any such improvements, additions or
alterations. In addition, it is expressly agreed that if any tax is imposed, or
the amount of taxes on the
20
Building or the Project is increased, by reason of any such over Building
Standard improvements, over-Building Standard alterations or over-Building
Standard additions, Tenant shall be solely responsible therefor under Article 7.
16. INDEMNITY
16.1 INDEMNIFICATION BY TENANT. Tenant shall indemnify, defend and hold
Landlord, its agents and employees, harmless from and against any and all
claims, liability, loss, cost or expense (including reasonable attorneys' fees)
arising out of or in connection with (i) any injury or damage to any person or
property occurring in, on or about the Premises or any part thereof or the
Building or Common Area, to the extent such injury or damage is caused by any
act or omission by Tenant. Its agents, contractors, employees or invitees or
(ii) any breach or default in the performance of and obligation on Tenant's part
to be performed under this Lease. If any action or proceeding is brought against
Landlord by reason of any such claim, upon notice from Landlord, Tenant shelf
defend the same at Tenant's expense by counsel reasonably satisfactory to
Landlord. Tenant, as a material part of the consideration to Landlord, hereby
assumes all risk of damage to Tenant's property or injury to persons in, upon or
about the Premises from any cause except Landlord's negligence or wrongful acts,
and Tenant hereby waives all claims with respect thereto against Landlord. The
foregoing provisions shall survive the termination of this Lease.
16.2 EXEMPTION OF LANDLORD FROM LIABILITY. If the Premises, the
Building, or the Common Area, or any part thereof, is damaged by fire or other
cause against which Tenant is required to carry insurance pursuant to this
Lease, Landlord shall not be liable to Tenant for any loss, cost or expense
arising out of or in connection with such damage. Tenant hereby releases
Landlord, its directors, officers, shareholders, partners, employees, agents and
representatives, from any liability, claim or action arising out of or in
connection with such damage. Furthermore, Tenant shall, pursuant to Article 17,
maintain insurance against loss, injury, or damage which may be sustained by the
person, goods, wares, merchandise or property of Tenant, its agents,
contractors, employees, invitees or customers, or any other person in or about
the Premises, caused by or resulting from fire, steam, electricity, gas, water,
or rain, which may leak or flow from or into any part of the Premises or the
Building, or from the breakage, leakage, obstruction or other defects of the
pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting
fixtures of the same, whether such damage or injury results from conditions
arising within the Premises or other portions of the Building, or from other
sources, and Landlord shall not be liable therefor, unless caused by Landlord's
negligence or wrongful act, and in that event only to the extent not covered by
the insurance which Tenant is required to carry pursuant to this Lease. Landlord
shall not be liable to Tenant for any damages arising out of or in connection
with any act or omission of any other tenant in the Project or for losses due to
theft or burglary or other wrongful acts of third parties.
21
Nothing contained in this Section 16.2 shall relieve Landlord from liability for
its negligent or wrongful acts, except (a) in no event shall Landlord be liable
for consequential damages, and (b) the foregoing shall be subject to the release
and waiver contained at Section 17.7.
17. INSURANCE
17.1 GENERAL. All insurance required to be carried by Tenant hereunder
shall be issued by responsible insurance companies acceptable to Landlord and
the holder of any deed of trust or mortgage secured by any portion of the
Premises (hereinafter referred to as a "Mortgagee"). All policies of insurance
provided for herein shall be issued by insurance companies with general
policyholder's rating of not less than A and a financial rating of not less then
Class X as a in the most current available "Best Insurance Reports." Each policy
shall name Landlord and at Landlord's request any Mortgagee and an agent of
Landlord as an additional insured, as their respective interests may appear.
Tenant shall deliver certificates of such insurance to Landlord, evidencing the
existence and amounts of such insurance, at least ten (0) days prior to Tenant's
occupancy in the Premises. Failure to make such delivery shall constitute a
material default by Tenant under this Lease. All policies of insurance delivered
to Landlord must contain a provision that the company writing said policy will
give Landlord thirty (30) days prior written notice of any modification,
cancellation or lapse or reduction in the amounts of insurance. All public
liability, property damage and other casualty insurance policies shall be
written as primary policies, not contributing with, and not in excess of
coverage which Landlord may carry. Tenant shall furnish Landlord with renewals
or "binders" of any such policy at least thirty (30) days prior to the
expiration thereof. Tenant agrees that if Tenant does not procure and maintain
such insurance, Landlord may, after providing Tenant written notice followed by
a ten (10)-day period during which Tenant shall cure such insufficiency (but
shall not be required to) obtain such insurance on Tenant's behalf and charge
Tenant the premiums therefor together with a fifteen percent (15%) handling
charge payable upon demand. Tenant may carry such insurance under a blanket
policy provided such blanket policy expressly affords the coverage required try
this Lease and contains a per location aggregate endorsement and evidence
thereof is furnished to Landlord as required above.
17.2 CASUALTY INSURANCE. At all times during the term hereof, Tenant
shall maintain in affect policies of casualty insurance covering (i) all
improvements in, on or to the Premises (including any Building Standard
furnishings, and any alterations, additions or improvements as may be made by
Tenant), and (ii) trade fixtures, merchandise and other personal property from
time to time in, on or upon the Premises. Such policies shall include coverage
in an amount not less than ninety percent (90%) of the actual replacement cost
thereof from time to time during the term of this Lease. Such policies shall
provide protection against any peril included within the classification "Fire
and
22
Extended Coverage", against vandalism and malicious mischief, theft sprinkler
leakage, and if and so long as the premiums therefor are commercially reasonable
in the reasonable business judgment of Tenant, earthquake sprinkler leakage (and
including cost of demolition and debris removal). Replacement cost for purposes
hereof shall be determined by an accredited appraiser selected by Landlord or
otherwise by mutual agreement. The proceeds of such insurance shall be used for
the repair or replacement of the property so insured. Upon termination of this
Lease following a casualty as set forth in Article 18, the proceeds under (i)
above shall be paid to Landlord, and the proceeds under (ii) above shall be paid
to Tenant.
17.3 LIABILITY INSURANCE. Tenant shall at all times during the term
hereof obtain and continue in force bodily injury liability and property damage
liability insurance adequate to protect Landlord against liability for injury to
or death of any person in connection with the activities of Tenant in, on or
about the Premises or with the use, operation or condition of the Premises. Such
insurance at all times shall be in an amount of not less than Two Million
Dollars ($2,000,000) for injuries to persons in one (1) accident not less than
One Million Dollars ($1,000,000) for injury to any one (1) person and not less
than Five Hundred Thousand Dollars ($500,000) with respect to damage to
property. The limits of such insurance do not necessarily limit the liability of
Tenant hereunder. All public liability and property damage policies shall
contain a provision that Landlord, although named as an additional insured,
shall nevertheless be entitled to recovery under said policies for any loss
occasioned to it, its partners, agents and employees by reason of the negligence
of Tenant
17.4 WORKERS' COMPENSATION INSURANCE. Tenant shall, at all times during
the term hereof, maintain in effect workers" compensation insurance as required
by applicable statutes.
17.5 ADJUSTMENT. Every three (3) years during the term of this Lease,
or whenever Tenant materially improves or alters the Premises, whichever is
earlier, Landlord and Tenant shall mutually agree to increases in Tenant's
insurance policy limits for the insurance to be carried by Tenant as set forth
in this Article 17. If Landlord and Tenant cannot mutually agree upon the
amounts of said increases within thirty (30) days after notice from Landlord,
then the insurance policy limits set forth in this Article 17 shall be adjusted
upward by an accredited insurance appraiser approved by Landlord to reflect
increased replacement costs and increased limits of liability then prevailing
generally in the local real estate industry for comparable property.
17.6 LANDLORD'S INSURANCE. Landlord shall at all times from and after
substantial completion of the Premises maintain in effect as an item of Expense
a policy or policies of insurance covering the Common Area and the buildings in
the Project in an amount up to one hundred percent (100%) of the actual
replacement cost thereof
23
(exclusive of the cost of excavations, foundations and footings) from time to
time during the term of this Lease, providing protection against rental loss and
any peril generally included in the classification "Fire and Extended Coverage"
which may include insurance against sprinkler damage, vandalism, malicious
mischief, earthquake and third party liability, and including such coverages in
such amounts as Landlord may designate. Landlord's obligation to carry the
insurance provided for herein may be brought within the coverage of any
so-called blanket policy or policies of insurance carried and maintained by
Landlord, provided that the coverage afforded will not be reduced or diminished
by reason of the tax, of such blanket policy of insurance.
17.7 WAIVER OF SUBROGATION. Notwithstanding anything to the contrary
contained in this Lease, Landlord and Tenant each hereby waives any and all
rights of recovery against the other or against the directors, officers,
shareholders, partners, employees, agents and representatives of the other, on
account of loss or damage of such waiving party or its property, or the property
of others under its control, to the extent that such loss or damage is insured
against under any "all-risk property" insurance policy which either may have in
force at the time of such loss or damage without regard to the negligence of the
party released. Tenant shall, upon obtaining the policies of insurance required
under this Lease give notice to its insurance carrier(s) that the foregoing
mutual waiver of subrogation is contained in this Lease. The waivers set forth
herein shall be required to the extent that same are available from each party's
insurer without additional premium, if an extra charge is incurred to obtain
such waiver, it shall be paid by the party in whose favor the waiver runs within
fifteen (15) days; after written notice from the other party.
18. DAMAGE AND DESTRUCTION
18.1 PARTIAL DAMAGE-INSURED. If the Premises, Building or Common Area
are damaged by a risk covered under fire and extended coverage insurance
protecting Landlord, then Landlord shall restore such damage provided insurance
proceeds are available to Landlord to pay eighty percent (80%) or more of the
cost of restoration, and provided such restoration by Landlord can be completed
within six (6) months after the commencement of work, in the opinion of a
registered architect or engineer appointed by Landlord. In such event this Lease
shall continue in full force and effect so long as the Premises can be used by
Tenant, except that Tenant shall, so long as the damage is not due to the act or
omission of Tenant, be entitled to an equitable reduction of Rent and Expenses
while such restoration takes place, such reduction to be based upon the extent
to which the damage and the restoration efforts directly and materially
interfere with Tenant's Use of the Premises. Landlord shall provide Tenant
written notice within sixty (60) days following the date of such damage setting
forth the amount of time required to repair such damage.
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18.2 PARTIAL DAMAGE-UNINSURED. If the Premises, Building or Common Area
are damaged by a risk not covered by such insurance or the Insurance proceeds
available to Landlord are less than eighty percent (80%) of the cost of
restoration, or if the restoration cannot be completed within six (6) months
after the commencement of work in the opinion of the registered architect or
engineer appointed by Landlord, then Landlord shall have the option either to
(1) repair or restore such damage, this Lease continuing in full force and
effect 30 long as the Premises can be used by Tenant, but the Rent and Expenses
to be equitably reduced as hereinabove provided, or (if) give notice to Tenant
at any time within sixty (60) days after such damage terminating this Lease as
of a date to be specified in such notice, which date shall be not less than
thirty (30) nor more than sixty (60) days after giving such notice. If such
notice is given, this Lease shall expire and any interest of Tenant in the
Premises shall terminate on the date specified in such notice and the Rent and
Expenses, reduced by an equitable reduction (except as hereinabove provided)
based upon the extent, If any to which such damage directly and materially
interfered with Tenant's use of the Premises, shall be paid to the date of such
termination, and Landlord agrees to refund to Tenant any Rent or Expenses
theretofore paid in advance for any period of time subsequent to such
termination date.
18.3 TENANT'S RIGHT TO TERMINATE. Notwithstanding anything to the
contrary contained in this Article 18, in the event of either an insured or an
uninsured casualty loss, Tenant shall have the right to terminate this Lease if
the restoration work cannot be completed within six (6) months after the
commencement of such work, in the opinion of Landlord's registered architect or
engineer, provided that Tenant gives written notice of such termination to
Landlord after such determination and prior to the date restoration is
substantially complete.
18.4 TOTAL DESTRUCTION. If the Premises are totally destroyed (i.e.,
over eighty percent (80%) of the Premises is destroyed or if Tenant cannot use
the Premises without major restoration) or if in Landlord's judgment the
Premises cannot be restored as set forth above. Then, notwithstanding the
availability of Insurance proceeds, this Lease shall be terminated effective as
of the date of the damage.
18.5 LANDLORD'S OBLIGATIONS. Landlord shall not be required to carry
Insurance of any kind on Tenant's property and shall not in the absence of
Landlord's negligence or wrongful acts be required to repair any injury or
damage thereto by fire or other cause, or to make any restoration or replacement
of any paneling, decorations, partitions, ceilings, floor covering, office
fixtures or any other improvements or property installed in the Premises by or
at the direct or indirect expense of Tenant, and Tenant shall be required to
restore or replace same in the event of damage and shall have no claim against
Landlord for any loss suffered by reason of any such damage, destruction, repair
or restoration. Notwithstanding anything to the contrary contained in this
Article 18, Landlord shall have the option not to repair, reconstruct or restore
the Premises with respect to damage
25
or destruction as described in this Article 18 occurring during the last twelve
(12) months of the term of this Lease or any extension thereof, provided,
however, that if Landlord exercises such option this Lease shall be terminated
upon such exercise.
18.6 WAIVER BY TENANT. It is expressly agreed that this Article 18
shall govern the rights of Landlord and Tenant in the event of damage and
destruction and supersedes the provisions of any statutes with respect to any
damage or destruction of the Premises.
19. CONDEMNATION
19.1 If all or a substantial part of the Premises, Building or Common
Area is taken or appropriated for public or quasi-public use by the right of
eminent domain or otherwise by a taking in the nature of inverse condemnation,
with or without litigation, or is transferred try agreement in lieu thereof (any
of the foregoing being referred to herein as a "taking'), either party hereto
may, by written notice given to the other within thirty (30) days of receipt of
notice of such taking, elect to terminate this Lease as of the daft possession
is transferred pursuant "to the taking; provided, however, that before such
party may terminate this Lease for a taking, such taking shall be of such an
extent any nature as to economically frustrate its business therein, or to
substantially handicap, impede or impair its use thereof. No award for any
partial or entire taking shall be apportioned, and Tenant thereby assigns to
Landlord any and all rights of Tenant now or hereafter arising in or to the same
or any part thereof; provided, however, that Tenant may "rile a separate claim
for an award and nothing contained herein shall be deemed to give Landlord any
Interest In, or to require Tenant to assign to Landlord, any award made to
Tenant for the taking of personal property belonging to Tenant. In the event of
a taking which does not result in a termination of this Lease, Rent and Expenses
shall be equitably reduced to the extent Tenant's business in or use of the
Premises is economically impaired as described above. No temporary taking of the
Premises or any part of the Project shall terminate this Lease, or give Tenant
any right to any abatement of Rent or Expenses hereunder, except that Rent and
Expenses shall be equitably reduced as described above during that portion of
any temporary taking lasting more than thirty (30) days. To the extent the
provisions of this Article 19 conflict with California Code of Civil Procedure
Section 1265.130 allowing either party to petition the court to terminate this
Lease for a partial taking, the provisions of this Article 19 shall govern.
20. LIENS
20.1 Tenant shall keep the Premises, the Building and the Project free
from any liens arising out of work performed, materials furnished, or
obligations incurred by Tenant, and shall indemnity, hold harmless and defend
Landlord from any lions and encumbrances arising out of any work performed or
materials furnished by or at the direction of Tenant. Tenant shall give Landlord
at least ten (10) business days' prior written notice of the expected date of
commencement of work relating to alterations,
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improvements, or additions to the Premises and if requested by Landlord shall
secure a completion and indemnity bond for said work. Satisfactory to Landlord,
in an amount at least equal to one and one-half 1 1/2) times the estimated cost
of such work. Landlord shall have the right at all times to keep posted on the
Premises any notices permitted or required by law, or which Landlord shall deem
proper, for the protection of Landlord and the Premises, and any other party
having any interest therein, against mechanics' and materialmen's liens. If any
claim of lien is filed against the Premises or any part of the Project or any
similar action affecting title to such property is commenced, the party
receiving notice of such ban or action shall immediately give the other party
written notice thereof. It Tenant fails, within twenty (20) days following the
Imposition of any lien, to cause such lien to be released of record by payment
or posting of a proper bond, Landlord shall have, in addition to all other
remedies provided herein and by law, the right (but not the obligation) to cause
the same to be released by such means as it shall deem proper, including payment
of the claim giving rise to such lien. All such sums paid by Landlord and all
costs and expenses incurred by it in connection therewith (including reasonable
attorneys" fees) shall be payable to Landlord by Tenant on demand, with interest
at the Agreed Rate from the date of expenditure,
21. DEFAULTS BY TENANT
21.1 The occurrence of any one or more of the following events shall
constitute a material default and breach of this Lease by Tenant:
21.1.1 The abandonment of the Premises by Tenant.
21.1.2 The failure by Tenant to make any payment of Rent or
Expenses or of any other sum required to be made by Tenant hereunder within five
(5) days after written demand therefor (which notice shall serve as the notice
required under Section 1161 of the California Code of Civil Procedure or any
similar or superseding statute).
21.1.3 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. If such failure is not cured within thirty (30) days after written
notice thereof from Landlord to Tenant; provided, however, that if the nature of
Tenant's default is such that it cannot be cured solely by payment of money and
more then thirty (30) days we reasonably required for its cure, then Tenant
shall not be deemed to be in default if Tenant commences such cure within the
thirty (30) day period and thereafter diligently prosecutes such cure to
completion; provided, further, that repeated breaches or defaults by Tenant
(more than three (3) in any twelve (12) month period) shall entitle Landlord at
its option, to terminate this Lease unless Tenant furnishes Landlord with
adequate assurances, in Landlord's sole judgment, against further defaults, and
provided, further, that violations by Tenant of the Rules and Regulations
described in Article 36 which interfere with the rights of other tenants or
which constitute a nuisance or hazard shall be cured by Tenant within
forty-
27
eight (48) hours after written notice thereof from Landlord, failing which
Landlord may (but need not) cure same, in which event Tenant shall pay Landlord.
within ten (10) days after written notice thereof by Landlord, the amount
expended by Landlord to effect such cure together with an administrative charge
of fifteen percent (15%) of the amount thereof.
21.1.4 The making by Tenant of any general assignment for the
benefit of creditors, the filing by or against Tenant of a petition to have
Tenant adjudged a bankrupt or of a petition for reorganization or arrangement
under any law relating to bankruptcy (unless, in the case of a petition filed
against Tenant, the same is dismissed within sixty (60) days) or, the
appointment of a trustee or receiver to take possession of, or the attachment,
execution or other judicial seizure of, substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where such
seizure is not discharged within thirty (30) days.
21.1.5 Intentionally Omitted.
21.2 Any notice required or permitted by this Article 21 is intended to
satisfy to the maximum extent possible any and all notice requirements imposed
by law on Landlord. Landlord may serve a statutory notice to quit, a statutory
notice to pay rent or quit, or a statutory notice of default, as the case may
be, to effect the giving of any notice required by this Article 21.
22. LANDLORD'S REMEDIES
22.1 In the event of any material default or breach of this Lease by
Tenant, Landlord's obligations under this Lease shall be suspended and Landlord
may at any time thereafter, without limiting Landlord in the exercise of any
other right or remedy at law or in equity which Landlord may have (all remedies
provided herein being non-exclusive and cumulative), do any one or more of the
following:
22.1.1 Maintain this Lease in full force and effect and
recover the Rent, Expenses and other monetary charges as they become due,
without terminating Tenant's right to possession irrespective of whether Tenant
shall have abandoned the Premises. If Landlord does not elect to terminate the
Lease, Landlord shall have the right to attempt to relet the Premises at such
rent and upon such conditions, and for such a term, as Landlord deems
appropriate in its sole discretion and to do all acts necessary with regard
thereto, without being deemed to have elected to terminate the Lease, including
re-entering the Premises to make repairs or to maintain or modify the Premises,
and removing all persons and property from the Premises, which property if
removed may at Landlord's election be abandoned or stored in a public warehouse
or elsewhere at the cost of and for the account of Tenant. Reletting may be for
a period shorter or longer than the remaining term of this Lease, and for more
or less rent but Landlord shall have no obligation to relet
28
at less then prevailing market rental rates. If reletting occurs, this Lease
shall terminate automatically when the new tenant takes possession of the
Premises and commences rent payment. Notwithstanding that Landlord fails to
elect to terminate the Lease initially, Landlord at any time thereafter may
elect to terminate the Lease by virtue of any uncured default by Tenant. In the
event of any such termination, Landlord shall be entitled to recover from Tenant
any and all damages incurred by Landlord by reason of Tenant's default
(including, without limitation, the damages described in Section 22.1.2 below),
as well as all costs of reletting, Including commissions, reasonable attorneys"
fees, restoration or remodeling costs, and costs of advertising.
22.1.2 Terminate Tenant's right to possession 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 damages incurred by Landlord by reason of
Tenant's default including (without limitation) the following: (1) the worth at
the time of award of any unpaid Rent which had been earned at the time of such
termination; plus (2) the worth at the time of award of the amount by which the
unpaid Rent which would have been earned after termination until the time of
award exceeds the amount of such Rent loss that Tenant proves could have been
reasonably avoided; plus (3) the worth at the time of award, of the amount by
which the unpaid Rent for the balance of the term after the time of award
exceeds the amount of such Rent loss that Tenant proves could have been
reasonably avoided; plus (4) any other amount, and court costs, necessary to
compensate Landlord for all the detriment proximately caused by Tenant's default
or which in the ordinary course of things would be likely to result therefrom
(including, without limiting the generality of the foregoing, the amount of any
commissions and/or finder's fee for a replacement tenant); plus (5) at
Landlord's election, such other amounts in addition to or in lieu of the
foregoing as may be permitted from time to time by applicable law. As used in
subparagraphs (1) and (2) of this Section 22.1.2, the "worth at the time of
award" is to be computed by allowing interest at the then maximum rate of
interest allowable under law which could be charged Tenant by Landlord, and, as
used in subparagraph (3) of this Section 22.1.2, the "worth at the time of
award" is to be computed by discounting such amount at the discount rate of the
U.S. Federal Reserve Bank of San Francisco at the time of award, plus one
percent (1%). The term "Rent", as used in this Article 22, shall be deemed to be
and to mean all Rent Expenses, parking fees and other monetary sums required to
be paid by Tenant pursuant to this Lease or as defined in Section 4.1 hereof.
For the purpose of determining the amount of "unpaid Rent which would have been
earned after termination" or the "unpaid Rent for the balance of the term" (as
referenced in subparagraphs (2) and (3) hereof), the amount of parking fees and
Expenses shall be deemed to increase annually for the balance of the term by an
amount equal to the average annual percentage increase in parking fees and
Expenses during the three (3) calendar years preceding the year in which the
Lease. was terminated, or, if such termination shall occur prior to the
expiration of the third calendar year occurring during
29
the term of this Lease, then the amount of parking fees and Expenses shall be
deemed to increase monthly for the balance of the term by an amount equal to the
average monthly percentage increase in parking fees and Expenses during all of
the calendar months preceding the month in which the Lease was terminated.
22.1.3 Collect sublease rents (or appoint a receiver to
collect such rent) and otherwise perform Tenant's obligations at the Premises,
it being agreed, however, that neither the filing of a petition for the
appointment of a receiver for Tenant nor the appointment itself shall constitute
an election by Landlord to terminate this Lease.
22.1.4 Proceed to cure the default at Tenant's sole cost and
expense. without waiving or releasing Tenant from any obligation hereunder. If
at any time Landlord pays any sum or incurs any expense as a result of or in
connection with curing any default of Tenant (including any administrative fees
provided for herein and reasonable attorneys' fees), the amount thereof shall be
immediately due as of the date of such expenditure and, together with interest
at the Agreed Rate from the date of such expenditures, shall be paid by Tenant
to Landlord immediately upon demand, and Tenant hereby covenants to pay any and
all such sums.
22.1.5 If Tenant is not occupying the Premises, retain
possession of all of Tenant's fixtures, furniture, equipment, improvements,
additions and other personal property left in the Premises or, at Landlord's
option, at any time, to require Tenant to forthwith remove same, and if not so
removed to deem them abandoned and dispose of same.
22.1.6 ADDITIONAL REMEDIES. Upon the occurrence of any of the
events specified in Section 21.1.4 or Section 21.1.5, if Landlord shall elect
not to exercise, or by law shall not be able to exercise, its right hereunder to
terminate this Lease, then, in addition to any other rights or remedies of
Landlord under this Lease or provided by law: (i) Landlord shall not be
obligated to provide Tenant with any of the services specified in Article 12, or
otherwise specified in the Lease unless Landlord has received compensation in
advance for such services, and the parties agree that Landlord's reasonable
estimate of the compensation required with respect to such services shall
control; and (ii) neither Tenant, as debtor in possession, nor any trustee or
other person (collectively, the "Assuming Tenant') shall be entitled to assume
this Lease, unless on or before the date of such assumption, the Assuming Tenant
(A) cures, or provides adequate assurance that such Assuming Tenant will
promptly cure, any existing default under this Lease; (B) compensates, or
provides adequate assurance that the Assuming Tenant will promptly compensate
Landlord, for any loss (including, without limitation, reasonable attorneys'
fees and disbursements, including on appeal and in connection with any
bankruptcy) resulting from such default and (C) provides adequate assurance of
future performance under this Lease Tenant covenants and agrees that, for such
purposes (i) any
30
cure or compensation shall be effected by the immediate payment of any monetary
default or any required compensation, or the immediate correction acceptable to
Landlord of any non-monetary default; (ii) any "adequate assurance" of such cure
or compensation shall be effected by the establishment of an escrow fund for the
amount at issue or by other method acceptable to Landlord; and (iii) "adequate
assurance" of future performance shall be effected by the establishment of an
escrow fund for the amount art Issue or other method acceptable to Landlord.
Provided, further, upon the occurrence of any of the events specified in Section
21.1.4 prior to the date fixed as the Commencement Deft (whether or not such
default is cured within the time period, if any, provided in such Article), this
Lease shall IPSO FACTO be canceled and terminated. In such event, (neither
Tenant nor any person claiming through or under Tenant, or by virtue of any
statute or order of any Court, shall be entitled to possession of the Premises;
and (ii) in addition to such other rights and remedies provided in this Article
22. Landlord may retain as damages any Rent, Security Deposit (if any) or monies
received from Tenant or others on account of Tenant. The foregoing is a material
consideration to Landlord for the execution of this Lease.
22.2 All covenants and agreements to be performed by Tenant under this
Lease shall be performed by Tenant at Tenant's sole Cost and expense and without
any off set to or abatement of Rent or Expenses.
23. DEFAULTS BY LANDLORD
23.1 Landlord shall not be deemed to be in default in the performance
of any obligation under this Lease unless and until it has failed to perform
such obligation within thirty (30) days after receipt of written notice by
Tenant to Landlord specifying such failure; provided, however, that if the
nature of Landlord's default is such that more than thirty (30) days are
required for its cure, then Landlord shall not be deemed to be in default if it
commences such cure within the thirty (30) day period and thereafter diligently
prosecutes such cure to completion. Tenant agrees to give any Mortgagee a copy,
by certified mail, of any notice of default served upon Landlord, provided that
prior to such notice Tenant has been notified in writing (by way of Notice of
Assignment of Rents and Leases, or otherwise) of the address of such Mortgagee.
Tenant further agrees that if Landlord shall have failed to cure such default
within the time provided for in this Lease. Then any such Mortgagee shall have
an additional forty-five (45) days within which to have the right but not the
obligation, to cure such default on the part of the Landlord or if such default
cannot be cured within that time. Then such additional time as may be necessary
if within that forty-five (45) days the Mortgagee has commenced and is pursuing
the remedies necessary to cure such default (including but not limited to
commencement of foreclosure proceedings, if necessary; to effect such cure), in
which event this Lease shall not be terminated while such remedies are being so
pursued. If Tenant recovers any judgment against Landlord for a default by
Landlord of this Lease
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the judgment shall be satisfied only out of the interest of Landlord in the
Project and neither Landlord nor any of its partners, shareholders, officers,
directors, employees or agents shall be personally liable for any such default
or for any deficiency.
24. COSTS OF SUIT
24.1 If either party brings action for relief against the other,
declaratory or otherwise, arising out of this Lease. Including any suit by
Landlord for the recovery of Rent or possession of the Premises, the losing
party shall pay the successful party its costs incurred in connection with and
in preparation for said action, including its reasonable attorneys' fees (which
costs shall be doomed to have accrued on the commencement of such action and
shall be paid whether or not such action is prosecuted to judgment, it being
agreed that to be the successful party a party need not necessarily have
recovered a judgment, but shall be the party which, in light of all the facts
and circumstances of the case, shall be deemed to be without fault or to have a
lesser degree of fault than the other party). If either Landlord or Tenant
("Indemnified Party"), without fault on its part, is made a party to any action
instituted by the other ("Indemnifying Party") against a third party or by a
third party against the Indemnifying Party or by or against any person holding
under or using the Premises or the Project by license of Tenant or Landlord
respectively, as the case may be, or for the foreclosure of any lien for labor
or material furnished to or for the Indemnifying Party or any such other person.
Or otherwise arising out of or resulting from any act or omission of the
Indemnifying Party or of any such other person, the Indemnifying Party shall at
Its cost and at the Indemnified Party's option defend the Indemnified Party
therefrom and further, except to the extent the Indemnified Party is found
separately liable for its own negligence or wrongful acts, indemnify and hold
the Indemnified Party harmless from any judgment rendered in connection
therewith and an reasonable costs and expenses (including reasonable attorneys'
fees) incurred by the Indemnified Party in connection with such action.
25. SURRENDER OF PREMISES; HOLDING OVER
25.1 SURRENDER. On expiration or termination of this Lease, Tenant
shall surrender to Landlord the Premises, and all Tenant's improvements thereto
and alterations thereof, broom clean and in good condition (except for ordinary
wear and tear, destruction to the Premises covered by Article 18 of this Lease,
and for alterations that Tenant has the right to remove or is obligated to
remove, so long as Tenant repairs any damage to the Premises under the
provisions of this Article 25 or Article 15), and shall remove all of its
personal property including any signs, notices and displays. Tenant shall
perform all restoration made necessary by the removal of any such improvements
or alterations or personal property, prior to the expiration of the Lease term.
If any such removal would damage the Building structure, Tenant shall give
Landlord prior written
32
notice thereof and Landlord may elect to make such removal at Tenant's expense
or otherwise to require Tenant to post security for such restoration. Landlord
may retain or dispose of in any manner any such Improvements or alterations or
personal property that Tenant does not remove from the Premises on expiration or
termination of the term as allowed or required by this Lease and title to any
such improvements or alterations or personal property that Landlord so elects to
retain or dispose of shall vest in Landlord. Tenant waives all claims against
Landlord for any damage or loss to Tenant arising out of Landlord's retention or
disposition of any such improvements, alterations or personal property and shall
be liable to Landlord for Landlord's costs of storing, removing and disposing of
any such improvements, alterations or personal property which Tenant falls to
remove from the Premises. Tenant shall indemnify, defend and hold Landlord
harmless from all damages, loss, cost and expense (including to enable
attorneys' fees) arising out of or in connection with Tenant's failure to
surrender the Premises in accordance with this Section 25.1.
25.2 HOLDING OVER. If Tenant holds over after the term hereof such
tenancy shall be at sufferance only, and not a renewal hereof or an extension
for any further term, and in such case Rent shall be payable at a rental in the
amount of one hundred fifty percent (150%) of the Rent in effect as of the last
month of the term hereof and at the time specified in this Lease and such
tenancy shall be subject to every other term, covenant and agreement contained
herein other than any provisions for rant concessions, Landlord's Work, or
optional rights of Tenant requiring Tenant to exercise some by written notice
(such as options to mend the term of the Lease). The foregoing shall not
however, be construed as a consent by Landlord to any holding over by Tenant and
Landlord reserves the right to require Tenant to surrender possession of the
Premises upon expiration or termination of this Lease
26. SURRENDER OF LEASE
26.1 The voluntary or other surrender of this Lease by Tenant, or a
mutual cancellation thereof, shall not work as a merger. Such surrender or
cancellation shall, at the option of Landlord, terminate all or any existing
subleases or subtenancies, or may, at the option of Landlord, operate as an
assignment to it of any or all such subleases or subtenancies. The delivery of
keys to the Premises to Landlord or its agent shall not, of itself, constitute a
surrender and termination of this Lease.
27. TRANSFER OF LANDLORD'S INTEREST
27.1 If Landlord sells or transfers its interest in the Premises (other
than a transfer for security purposes) Landlord shall be released from all
obligations and liabilities accruing thereafter under this Lease, if Landlord's
successor has assumed in writing Landlord's obligations under this Lease. Any
Security Deposit, prepaid Rent or other funds of Tenant in the hands of Landlord
at the time of transfer shall be delivered to
33
such successor and Tenant agrees to attorn to the purchaser or assigned,
provided all Landlord's obligations hereunder are assumed in writing by such
successor. Notwithstanding the foregoing, Landlord's successor shall not be
liable to Tenant for any such funds of Tenant which Landlord does not deliver to
the successor.
28. ASSIGNMENT AND SUBLETTING
28.1 LANDLORD'S CONSENT REQUIRED. Tenant shall not sell, assign,
mortgage, pledge, hypothecate or encumber this Lease (any such act being
referred to herein as an "assignment"), and shall not sublet the Premises or any
part thereof, without the prior written consent of Landlord in each instance,
which consent shall not be unreasonably withhold, and any attempt to do so
without such consent shall be voidable by Landlord and, at Landlord's election,
shall constitute a material default under this Lease.
28.2 TENANT'S APPLICATION. If Tenant desires at any time to assign this
Lease (which assignment shall in no event be for less than its entire interest
in this Lease) or to sublet the Premises or any portion thereof, Tenant shall
submit to Landlord at least thirty (30) days prior to the proposed effective
date of the transaction ("Proposed Effective Date"), in writing, a notice of
Intent to assign or sublease, setting forth: (i) the Proposed Effective Date,
which shall be no less than thirty (30) nor more then ninety (90) days after the
sending of such notice; (ii) the name of the proposed subtenant or assignee;
(iii) the nature of the proposed subtenant's or assignee's business to be
carried on in the Premises; and (iv) a description of the terms and provisions
of the proposed sublease or assignment. Such notice shall be accompanied by (i)
such financial information as Landlord may request concerning the proposed
subtenant or assignee, including recent financial statements and bank
references; (ii) evidence satisfactory to Landlord that the proposed subtenant
or assignee will immediately occupy and thereafter use the affected portion of
the Premises for the entire term of the sublease or assignment agreement; (iii)
a conformed or photostatic copy of the proposed sublease or assignment
agreement; and (iv) any fee required under Section 28.9. During the time that
Landlord has in which to exercise the options available to Landlord upon the
giving of such Notice, as hereinafter described, Tenant shall not sublet all or
any part of the Premises nor assign all or any part of this, Lease.
28.3 LANDLORD'S OPTION TO RECAPTURE PREMISES. If Tenant provides
Landlord with a notice pursuant to Section 28.2 hereof with regard to a
subletting of all or part of the Premises for the balance of the Lease term,
Landlord may, at its option upon written notice to Tenant given within thirty
(30) days after its receipt of the above-described notice from Tenant, elect to,
recapture such portion of the Premises as Tenant proposes to sublease and upon
such election by Landlord, this Lease shall terminate as to the portion of the
Premises recaptured. In the event a portion only of the Premises is recaptured,
the Rental payable under this Lease the Security Deposit, and Tenant's Share
shall be
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proportionately reduced based on the rentable square footage retained by Tenant
and the rentable square footage leased by Tenant hereunder immediately prior to
such recapture and termination and Landlord and Tenant shall thereupon execute
an amendment of this Lease in accordance therewith. If Landlord recaptures only
a portion of the Premises, it shall construct and erect at its sole cost such
partitions as may be required to separate the space retained by Tenant from the
space recaptured by Landlord; provided, however, that said partitions need only
be finished in Building Standard condition. Landlord may, at its option, lease
the recaptured portion of the Premises to the proposed subtenant without
liability to Tenant. If Landlord does not elect to recapture pursuant to this
Section 28.3, Tenant may thereafter enter into a valid sublease with respect to
the Premises, provided Landlord, pursuant to this Article 28, consents thereto,
and provided further that (1) the sublease is executed within ninety (90) days
after notification to Landlord of such proposal, and (iii) the rental therefor
is not less than that slated in such notification. Any termination as provided
in this Section 28.3 shall be subject to the written consent of any Mortgagee of
Landlord. The effective date of any such termination shall be the Proposed
Effective Date so long as Tenant has compiled with the provisions of Section
28.2 above, and otherwise shall be as specified in Landlord's notice of
termination.
28.4 APPROVAL/DISAPPROVAL STANDARDS. In the event that Tenant complies
with the provisions of Section 28.2, and Landlord does not exercise an option
provided to Landlord under Section 28.3, Landlord's consent to a proposed
assignment or sublease shall not be unreasonably withheld. In determining
whether to grant or withhold consent to a proposed assignment or sublease,
Landlord may consider any reasonable factor. Without limiting what may be
construed as a reasonable factor, it is hereby agreed that any one of the
following factors will be reasonable grounds for disapproval of a proposed
assignment or sublease:
28.4.1 Tenant has not complied with the requirements set
forth in Section 28.2 above;
28.4.2 The proposed assignee or subtenant does not, in
Landlord's reasonable judgment, have sufficient financial worth, considering the
responsibility involved;
28.4.3 The proposed assignee or subtenant does not, in
Landlord's reasonable judgment, have a good reputation as a tenant of property;
28.4.4 Landlord has had prior negative leasing experience with
the proposed assignee or subtenant
28.4.5 The use of the Premises by the proposed assignee or
subtenant will not be a use permitted by Article 11 of this Lease:
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28.4.6 In Landlord's reasonable judgment, the proposed
assignee or subtenant is engaged in a business, and the Premises, or the
relevant part thereof, will be used in a manner, that is not in keeping with the
then current standards of the Building, or that will violate any restrictive or
exclusive covenant as to use contained in any other lease of space in the
Building or the Project;
28.4.7 The use of the Premises by the proposed assignee or
subtenant will violate any applicable low, ordinance or regulation;
28.4.8 Intentionally Omitted.
28.4.9 The proposed assignee or subtenant is a person with
whom Landlord in negotiating to lease space in the Building or the Project;
28.4.10 Intentionally Omitted.
28.4.11 The proposed assignment or sublease fails to include
all of the terms and provisions required to be included therein pursuant to this
Article 28; or
28.4.12 Tenant is then in default of any obligation of Tenant
under this Lease, or Tenant has defaulted under this Lease on three (3) or more
occasions during the twelve (12) months preceding the date that Tenant shall
request consent.
28.5 APPROVAL/DISAPPROVAL PROCEDURE. Landlord shall approve or
disapprove the proposed assignment or sublease by written notice to Tenant. If
Landlord shall exercise any option to recapture the Premises as herein provided,
or denies a request for consent to a proposed sublease or assignment Landlord
shall not be liable to the proposed assignee or subtenant or to any broker or
other person claiming a commission or similar compensation in connection with
the proposed assignment or sublease. If Landlord approves the proposed
assignment or sublease, Tenant shall, prior to the Proposed Effective Date,
submit to Landlord all executed originals of the assignment or sublease
agreement and, in the event of a sublease, Landlord's customary consent to
subletting form executed by Tenant and sublessee for execution by Landlord.
Provided such assignment or sublease agreement is in accordance with the terms
approved by Landlord, Landlord shall execute each original as described above
and shall retain two originals for its file and return the others to Tenant. No
purported assignment or sublease shall be deemed effective as against Landlord
and no proposed assignee or subtenant shall take occupancy unless such document
is delivered to Landlord in accordance with the foregoing.
28.6 REQUIRED PROVISIONS. Any and all assignment or sublease agreements
shall (i) contain such terms as are described in Tenant's notice under Section
28.2 above or as otherwise agreed by Landlord; (ii) prohibit further assignments
or subleases, or
36
impose the same obligations and conditions on the assignee or sublessee as are
imposed on Tenant by this Lease except as to Rent and term or as otherwise
agreed by Landlord; (iv) be expressly subject and subordinate to each and every
provision of this Lease, (v) have a term that expires on or before the
expiration of the term of this Lease; (vi) provide that if Landlord succeeds to
sublessor's position, Landlord shall not be liable to sublessee for advance
rental payments, deposits or other payments which have not been actually
delivered to Landlord by the sublessor and (vii) provide that Tenant and/or the
assignee or sublessee shall pay Landlord the amount of any additional costs or
expenses incurred by Landlord for repairs, maintenance or otherwise as a result
of any change in the nature of occupancy caused by the assignment or sublease.
Any and all sublease agreements shall also provide that in the event of
termination re-entry, or dispossession by Landlord under this Lease Landlord
may, at its option take over all of the right, title and interest of Tenant as
sublessor under such sublease, and such subtenant shall, at Landlord's option,
attorn to Landlord pursuant to the then executory provisions of the sublease,
except that Landlord shall not: (i) be liable for any previous act or omission
of Tenant under the sublease: (ii) be subject to any offset not expressly
provided in the sublease, that theretofore accrued to the subtenant against
Tenant; or (iii) be bound by any previous modification of such sublease or by
any previous prepayment of more than one (1) month's fixed rent or any
additional rent then due.
28.7 PAYMENT OF ADDITIONAL RENT UPON ASSIGNMENT OR SUBLEASE. If
Landlord shall give its consent to any assignment of this Lease or to any
sublease of the Premises, Tenant shall, in consideration therefor, pay to
Landlord, as additional Rent:
28.7.1 In the case of an assignment, an amount equal to all
sums and other consideration paid to Tenant by the assignee for, or by reason
of, such assignment (including, without limiting the generality of the
foregoing, an sums paid for the sale of Tenant's leasehold improvements, but
excluding the unamortized value of the leasehold Improvements paid for by
Tenant, amortized on a straight-line basis over the initial term of this Lease);
and
28.7.2 In the case of a subletting, one-half (1/2) of all
rents, sums and economic consideration actually received by Tenant as a result
of such subletting shall be paid to Landlord after first deducting (i) the
rental due hereunder, prorated to reflect only rental allocable to the sublet
portion of the Premises, (ii) the unamortized cost of the leasehold improvements
within the sublet portion of the Premises, paid for by Tenant amortized on a
straight-line basis over the Initial term of this Lease, (iii) leasehold
improvements made by Tenant to the sublet portion of the Premises for the
specific benefit of the sublessee which shall be amortized over the term of the
sublease, ad (iv) the cost of reasonable mid customary real estate commissions
and advertising costs incurred by Tenant in connection with such subletting,
amortized over the term of the sublease.
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28.8 The sums payable under Section 28.7.1 above shall be paid to
Landlord upon the effective date of the assignment. The sums payable under
Section 28.7.2 above shall be paid to Landlord as and when payable by the
sublessee to Tenant. Within fifteen (15) days after written request therefor by
Landlord, Tenant shall at any time and from time to time furnish evidence to
Landlord of the amount of all such sums or other consideration received or
expected to be received.
28.9 FEES FOR REVIEW. Simultaneously with the giving of the notice
described in Section 28.2 above, Tenant shall pay to Landlord or Landlord's
designee a non-refundable fee in the amount of Three Hundred Dollars ($300.00)
as reimbursement for expenses incurred by Landlord in connection with reviewing
each such transaction. In addition to such reimbursement, if Landlord retains
the services of an attorney to review the transaction, Tenant shall pay to
Landlord the reasonable attorneys' fees incurred by Landlord in connection
therewith. Tenant shall pay such attorneys' fees to Landlord within fifteen 15)
days after written request therefor.
28.10 NO RELEASE OF TENANT. No consent by Landlord to any assignment or
subletting by Tenant shall relieve Tenant of any obligation to be performed by
Tenant under this Lease, whether occurring before or after such consent
assignment or subletting, including Tenant's obligation to obtain Landlord's
express prior written consent to any other assignment or subletting. In no event
shall any permitted subtenant assign its sublease, further sublet all or any
portion of its sublet space, or otherwise suffer or permit the sublet space, or
any part thereof, to be used or occupied by others, except upon compliance with,
and subject to the provisions of this Article 28. The acceptance by Landlord of
payment from any person other then Tenant shall not be deemed to be a waiver by
Landlord of any provision of this Lease or to be a consent to any subsequent
assignment or sublease, or to be a release of Tenant from any obligation under
this Lease.
28.11 ASSUMPTION OF OBLIGATIONS. Each assignee of Tenant shall assume
the obligations of Tenant under this Lease and shall be and remain liable
jointly and severally with Tenant for the payment of the Rent and the
performance of all the terms, covenants. conditions and agreements herein
contained an Tenant's part to be performed for the term of this Lease. No
assignment shall be binding on Landlord unless the assignee or Tenant delivers
to Landlord a counterpart of the Instrument of assignment in recordable form
which contains a covenant of assumption by the assignee satisfactory in
substance and form to Landlord, and consistent with the requirements of this
Article 28. The failure or refusal of the assignee to execute such Instrument of
assumption shall not release or discharge the assignee from its liability to
Landlord hereunder. Landlord shall have no obligation whatsoever to perform any
duty to or respond to any request from any sublessee, it being the obligation of
Tenant to administer the terms of its subleases.
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28.12 CORPORATE OR PARTNERSHIP TRANSFERS. If the Tenant is a privately
held corporation, or is an unincorporated association or partnership, the
cumulative or aggregate transfer, assignment or hypothecation of fifty percent
(50%) or more of the total stock or interest in such corporation, association or
partnership shall be deemed an assignment or sublease within the meaning and
provisions of this Article. This Article shall, however, not apply to
assignments or subleases to a corporation (i) into or with which Tenant is
merged or consolidated; (ii) to which substantially all of Tenant's assets we
transferred, or (iii) that controls, is controlled by, or is under common
control with Tenant, provided that in any of such events:
28.12.1 The successor of Tenant has a net worth, computed in
accordance with generally accepted accounting principles, at least equal to the
net worth of Tenant herein named on the date of this Lease;
28.12.2 Proof satisfactory to Landlord of such net worth shall
have been delivered to Landlord at least ten (10) days prior to the effective
date of such transaction;
28.12.3 Any such assignment or sublease shall be subject to
all of the terms and provisions of this Lease, and such assignee or sublessee
shall assume, in a written document reasonably satisfactory to Landlord and
delivered to Landlord promptly upon the assignment or sublease, all the
obligations of Tenant under this Lease;
28.12.4 Tenant shall remain fully liable for all obligations
to be performed by Tenant under this Lease; and
28.12.5 Tenant shall reimburse Landlord, promptly on demand,
for Landlord's reasonable attorneys' fees incurred in conjunction with the
processing and documentation of any such transaction.
28.13 INVOLUNTARY ASSIGNMENT. No interest of Tenant in this Lease shall
be assignable by operation of law (including without limitation, the transfer of
this Lease by testacy or intestacy, or in any bankruptcy or insolvency
proceeding). Each of the following acts shall be considered an involuntary
assignment: (1) if Tenant is or becomes bankrupt or insolvent, makes an
assignment for the benefit of creditors, or institutes a proceeding under any
bankruptcy law in which Tenant is the bankrupt; or, if Tenant is a partnership
or consists of more than one (i) person or entity, if any partner of the
partnership or other such person or entity is or becomes bankrupt or insolvent,
or makes an assignment for the benefit of creditors; (ii) if a writ of
attachment or execution is levied on this Lease; (iii) if, in any proceeding or
action to which Tenant is a party, a receiver is appointed with authority to
take possession of the Premises; or (iv) there is any assumption, assignment,
sublease or other transfer under or pursuant to the Bankruptcy Code 11 U.S.C.
101 ET SEQ. (hereinafter referred to as the "Bankruptcy
39
Code"). An involuntary assignment shall constitute a default by Tenant and
Landlord shall have the right to elect to terminate this Lease, in which case
this Lease shall not be treated as an asset of Tenant. If Landlord shall elect
not to exercise its right hereunder to terminate this Lease in the event of an
involuntary assignment then, in addition to any other rights or remedies of
Landlord under this Lease or provided by law, the provisions of Sections 28.3,
28.6, 28.7, 28.9, 28.10, and 28.14 shall apply to any such involuntary
assignment. Such sums, if any, payable pursuant to the referenced Sections shall
be and remain the exclusive property of Landlord and shall not constitute
property of Tenant or of the estate of Tenant within the meaning of the
Bankruptcy Code. Such sums which are not paid or delivered to Landlord shall be
hold in trust for the benefit of Landlord, and shall be promptly paid or turned
over to Landlord upon demand. Any person or entity to which, this Lease is
assigned pursuant to the provisions; of said Code shall be deemed without
further act or deed to have assumed all of the obligations of Tenant arising
under this Lease on and after the daft of such assignment. Any such assignee
shall upon demand execute and deliver such instruments and documents reasonably
requested by Landlord confirming such assumption.
28.14 ASSIGNMENT OF SUBLEASE RENTS. Tenant immediately and irrevocably
assigns to Landlord, as security for Tenant's obligations under this Lease, all
rent from any subletting of all or any part of the Premises, and Landlord, as
assignee and as attorney-in-fact for Tenant for purposes hereof, or a receiver
for Tenant appointed on Landlord's application, may collect such rents and apply
same toward Tenant's obligations under this Lease; except that until the
occurrence of an act of default by Tenant, Tenant shall have the right and
license to collect such rents.
29. ATTORNMENT
29.1 If any proceeding is brought for default under any ground or
underlying lease to which this Lease is subject, or in the event of foreclosure
or the exercise of the power of sale under any mortgage or deed of trust made by
Landlord covering the Premium, Tenant shall attorn to the successor upon any
such foreclosure or sale and shall recognize that successor as Landlord under
this Lease, provided such successor expressly agrees in writing to be bound to
all future obligations by the terms of this Lease, and, if so requested, Tenant
shall enter into a new lease with that successor on the some terms and
conditions as are contained in this Lease (for the unexpired term of this Lease
then remaining).
30. SUBORDINATION
30.1 Without the necessity of any additional document being executed by
Tenant for the purpose of effecting a subordination, this Lease shall be subject
and subordinate at all times to: (i) all ground or underlying losses which may
now exist or hereafter be executed affecting the Premises, and (ii) the lien of
any first mortgage or first deed of
40
trust which may now exist or hereafter be executed in any amount for which the
Premises, such ground or underlying leases, or Landlord's interest or estate in
any of them, is specified as security. Notwithstanding the foregoing, Landlord
shall have the right to subordinate or cause to be subordinated any such ground
or underlying leases or any such liens to this Lease. If any ground or
underlying lease terminates for any reason, Tenant shall, notwithstanding any
subordination, attorn to and become tenant of the successor in interest to
Landlord at the option of such successor in Interest. Tenant covenants and
agrees to execute and deliver, upon demand by Landlord and in the form requested
by Landlord, any documents evidencing the priority or subordination of this
Lease with respect to any such ground or underlying leases or the lien of any
such first mortgage, or first deed of trust, and specifically to execute.
Acknowledge and deliver to Landlord from time to time within ten (10) days after
written request to do so a subordination of lease, or a subordination of deed of
trust, in substantially the form set forth in EXHIBIT D or EXHIBIT D-1,
respectively, attached hereto, or such other form as may be customarily required
by any Mortgagee of Landlord, and failure of Tenant to do so shall be a material
default hereunder. Tenant hereby irrevocably appoints Landlord as Its
attorney-in-fact to execute, deliver and record any such documents in the name
and an behalf of Tenant if Tenant falls to comply with the foregoing.
31. ESTOPPEL CERTIFICATE
31.1 Tenant shall from time to time within ten (10) days after prior
written notice from Landlord execute, acknowledge and deliver to Landlord a
statement in writing in the form set forth in EXHIBIT E attached hereto, or such
other form as may be customarily required by Landlord's Mortgagee, (i)
certifying that this Lease is unmodified and in full force and affect (or, if
modified, stating the nature of such modification and certifying that this
Lease, as so modified, is in full force and effect) and the date to which the
Rent and other charges are paid in advance, if any; (ii) acknowledging that
there are not, to Tenant's knowledge, any uncured defaults on the part of
Landlord hereunder (or specifying such defaults if they are claimed); and (iii)
containing such other matters as are set forth in such form. Any such statement
may be conclusively relied upon by any prospective purchaser or encumbrancer of
the Premises. Tenant's failure to deliver such statement within such time shall
be conclusive upon Tenant that this Lease is in full force and effect, without
modification except as may be represented by Landlord, that there are no uncured
defaults in Landlord's performance, and that not more than one (1) month's Rent
has been paid in advance. Failure of Tenant to so deliver such statement shall
be a material default hereunder. Tenant hereby irrevocably appoints Landlord as
its attorney-in-fact to execute and deliver such statement to any third party in
the name and on behalf of Tenant if Tenant fails to comply with the foregoing.
41
32. BUILDING OCCUPANCY PLANNING
32.1 Notwithstanding any contrary provision of this Lease, if Landlord
requires the Premises for use in conjunction with another suits or for other
reasons related to Landlord's occupancy plans for the Building, then upon at
least thirty (30) days' prior written notice to Tenant, Landlord shall have the
right to move Tenant to other space in the Project, and thereupon such other
space shall be deemed to be the Premises covered by this Lease. The expense of
moving Tenant, its property and equipment (including furniture, telephone
systems, date systems and computers) to the substituted space and of improving
same to a condition similar to the then current condition of the Premises shall
be borne by Landlord. Landlord may elect to have Tenant contract for the moving
of telephone, data and computer systems and to reimburse Tenant the reasonable
costs thereof. If the substituted space is smaller than the Premises, the Basic
Rent, Security Deposit and Tenant's Share specified in this Lease shall be
adjusted proportionately. If the substituted space is larger than the Premises,
the Basic Rent, Security Deposit and Tenant's Share specified in the Lease shall
be adjusted proportionately, but in no event by more than ten percent (10%) of
what the Basic Rent, Security Deposit and Tenant's Share is prior to such
relocation. Landlord and Tenant shall execute an amendment to this Lease in
accordance therewith. However, if the substituted space does not meet with
Tenant's approval, Tenant may cancel this Lease upon thirty (30) days' prior
written notice to Landlord given within ten (10) days after Tenant's receipt of
Landlord's notice referred to above.
33. QUIET ENJOYMENT
33.1 So long as Tenant pays all Rent and other sums due under this
Lease- performs its covenants and obligations under this Lease and recognizes
any successor to Landlord in accordance with the terms of this Lease, Tenant
shall lawfully and quietly have, hold and enjoy the Premises without hindrance
or molestation by Landlord or anyone claiming by, through or under Landlord,
subject, however. To all the provisions of this Lease.
34. WAIVER OF REDEMPTION BY TENANT
34.1 Tenant hereby waives for Tenant and for all those claiming under
Tenant all right now or hereafter existing to redeem by order or judgment of any
court or by any legal process or writ, Tenant's right of occupancy of the
Premises after any termination of this Lease.
35. WAIVER OF LANDLORD, TENANT'S PROPERTY
35.1 Landlord shall, within thirty (30) days after written request from
Tenant, execute and deliver to Tenant any statement in form acceptable to
Landlord as may be
42
required by any supplier, lessor, installment seller or chattel mortgagee in
connection with the installation in the Premises of any personal property or
trade fixtures of Tenant, pursuant to which Landlord shall agree to waive any
rights it may have or may acquire with respect to any such property, provided in
all cases that such supplier, lessor, installment seller or chattel mortgagee
expressly agrees in writing that (i) it will remove at Its sole cost and expense
all such property from the Premises before the expiration or termination of the
Lease and if it fails to do so within ten (10) days after written request from
Landlord it shall be deemed to have waived any and all rights it may have had to
such property, (ii) Prior to making any such removal it will advise Landlord in
writing of the date and time of such removal and will at the time of such
removal, allow a representative of Landlord to be present, (iii) it will
promptly and diligently and at its sole cost and expense repair any and an
damage to the Premises attributable to such removal and shall restore the
Premises to substantially the same condition it was in prior to such removal;
(iv) it will allow Landlord to select the person or persons who will effect such
removal, repair and restoration, and will bear the costs and expenses thereof,
(v) it will, if Landlord chooses not to exercise its rights under (iv) above,
cause a performance and completion bond, satisfactory to Landlord, to be
furnished to Landlord with regard to the work of such removal, repair and
restoration; (vi) it will promptly pay Landlord any costs and expenses incurred
by Landlord in connection with the enforcement of Landlord's rights hereunder,
including attorneys" fees, and will indemnity and hold Landlord harmless against
and all claims, loss, cost or expense wising out of or in connection with such
removal, repair and restoration; (vii) it will pay Landlord Interest on any
outstanding amounts payable by it to Landlord at the "Agreed Rate" (as
hereinafter defined); (viii) it will not record such statement without
Landlord's prior written consent which Landlord may withhold in its sole
discretion and (ix) it will not assign Its rights or delegate its duties under
such statement without Landlord's prior written consent.
36. RULES AND REGULATIONS
36.1 The Rules and Regulations attached hereto as EXHIBIT F are
expressly made a part hereof. Tenant agrees to comply with such Rules and
Regulations and any reasonable amendments, modifications or additions thereto as
may hereafter be adopted and published by notice to tenants in the Building, and
to cause its agents, contractors and employees to comply therewith, and agrees
that the violation of any of them shall constitute a default by Tenant under
this Lease. If there is a conflict between the Rules and Regulations and any of
the provisions of this Lease, the provisions of this Lease shall prevail.
Landlord shall not be responsible to Tenant for the non-performance by any other
tenant or occupant of the Building or of the Project of any of the Rules and
Regulations.
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37. NOTICES
37.1 Any notice, demand or communication required or permitted to be
given hereunder to Landlord by Tenant shall be personally served or deposited in
the United States mails, duly registered or certified with postage fully prepaid
thereon, addressed to Landlord at Landlord's address as set forth in Section 1.9
hereof, or to such other add or such other parties as Landlord may from time to
time designate. Any notice, demand or communication required or permitted to be
given hereunder to Tenant by Landlord may be named as above stated to Tenant's
address as set forth in Section 1.10 hereof or delivered personally to Tenant at
the address of the Premises. Either party may by written notice similarly given
designate a different address for notice purposes, except that Landlord may in
any event use the Premises as Tenant's address for notice purposes. Notice shall
be effective when mailed or delivered as above specified.
38. WAIVER
38.1 No delay or omission in the excercise of any right or remedy of
Landlord for any default suit by Tenant shall impair such right or remedy or be
construed as a waiver. The receipt and acceptance by Landlord of delinquent
payments shall not constitute a waiver of any other default and shall not
constitute a waiver of timely payment of the particular payment involved. No act
or conduct of Landlord, including, without limitation, the acceptance of keys to
the Premises, shall constitute an acceptance of the surrender of the Premises by
Tenant before the expiration of the term. Only an express notice to such effect
from Landlord to Tenant shall constitute acceptance of the surrender of the
Premises sufficient to terminate this Lease. Landlord's consent to or approval
of any act by Tenant requiring Landlord's consent or approval shall not
constitute a consent or approval of any subsequent act by Tenant. Any waiver by
Landlord of any default must be in writing and shall not be a waiver of any
other default concerning the same or any other provision of this Lease,
39. MISCELLANEOUS
39.1 EXECUTION BY LANDLORD. The submission of this document for
examination and negotiation does not constitute an offer to lease, or a
reservation of, or an option for, the Premises. This document becomes effective
and binding only upon execution by Tenant and by Landlord. No act or omission of
any employee or agent of Landlord or of Landlord's broker shall alter, change or
modify any of the provisions hereof.
39.2 LANDLORD AND TENANT. As used in this Lease, the words "Landlord"
and "Tenant" include the plural as well as the singular. Words used in the
neuter gender include the masculine and feminine and words in the masculine or
feminine gender include the neuter. If there is more than one person or entity
constituting Landlord or
44
Tenant, the obligations imposed hereunder upon Landlord or Tenant are joint and
several. If Tenant consists of a husband and wife, the obligations of Tenant
hereunder extend individually to the sole and separate property of each of them
as well as to their community property. The obligations contained in this Lease
to be performed by Landlord shall be binding on Landlord's successors and
assigns only during their respective periods of ownership of the Premises.
39.3 BROKERS. Tenant shall hold Landlord harmless from all damages
(including reasonable attorneys' fees and costs) resulting from any claims that
may be asserted against Landlord by any broker, finder, or other person with
whom Tenant has or purportedly has dealt except as set forth at Section 1. 11.
39.4 SIGNS.
39.4.1 Tenant shall not place or permit to be placed in or
upon the Premises, where visible from outside the Premises, or outside the
Premises on any part of the Building or Project, any signs, notices, drapes,
shutters, blinds, or displays of any type, without the prior written consent of
Landlord. Landlord reserves the right in its sole discretion to place and locate
on the roof or exterior of the Building, and in any area of the Project, not
leased to Tenant, any signs, notices, displays and similar items as Landlord
deems appropriate.
39.4.2 Notwithstanding anything to the contrary contained in
this Article 39, Tenant shall be permitted to install in the elevator lobby on
the eleventh floor one (1) identification sign (similar to the identification
sign installed for ATPA on the fifth floor of the Building). The size, location,
materials, method of installation and appearance of such sign shall be subject
to the mutual approval of Landlord and Tenant. Prior to the expiration or
earlier termination of this Lease, Tenant shall cause such sign to be removed
and any damage to the wall where such sign was installed repaired to the
condition in which the same existed before installation of such sign.
39.5 NAME OF BUILDING. Tenant shall not use the name of the Building or
the Project for any purpose other then the address of the business to be
conducted by Tenant in the Premises. Tenant shall not use any picture of the
Building or the Project in its advertising, stationery or in any manner so as to
imply that the entire Building is leased by Tenant. Landlord expressly reserves
the right at any time to change the name of the Building or Project without in
any manner being liable to Tenant therefor.
39.6 PARKING. During the term of this Lease, Tenant shall only be
entitled to such use of parking spaces in the parking areas located in the
Project as shall be confirmed in writing by the parties, and absent any written
agreement to the contrary, parking for Tenant and its employees, agents,
customers, invitees and licensees shall be on a first-come first-served basis,
at rates and upon other terms and conditions as may be
45
established from time to time by Landlord or Landlord's operator of the parking
areas. Parking rates may be hourly, weekly or monthly, or such other rate system
as Landlord deems advisable, and Tenant acknowledges that its employees shall
not be entitled to park in such parking areas located in and about the Building
which may from time to time be designated for visitors of the Building. Landlord
may also designate areas for assigned, reserved or employee parking either
within the parking areas located in and about the Building, or in other areas
reasonably close thereto Landlord shall have the right to change any such
designated parking areas from time to time. Tenant acknowledges that neither
Landlord nor any agent of Landlord has made any representation or warranty as to
the suitability of the parking areas for the conduct of Tenant's business.
39.7 INTENTIONALLY OMITTED.
39.8 APPROVAL OF LANDLORD'S MORTGAGEE. Tenant acknowledges that this
Lease is subject to the approval of Landlord's Mortgagee, and Tenant agrees to
make such reasonable modifications to this Lease as may be ordinarily and
customarily requested by Landlord's Mortgagee, so long as such modifications
shall not affect the Rent payable hereunder, increase Tenant's obligations
hereunder, or otherwise adversely affect Tenant in any material way.
39.9 NONRECORDABILITY OF LEASE. Tenant agrees that in no event shall
this Lease or a memorandum hereof be recorded without Landlord's express prior
written consent.
39.10 MATTERS OF RECORD. This Lease and Tenant's rights hereunder are
subject and subordinate in all respects to matters affecting Landlord's title
recorded in the official records of the county recorder's office for the county
in which the Project is located prior or subsequent to the date of execution of
this Lease. Tenant agrees that as to its leasehold estate it and all persons in
possession or holding under it, will conform with and will not violate any such
covenants, conditions and restrictions, or other matters of record.
39.11 SEVERABILITY. If any provision of this Lease shall, to any
extent, be determined by a court of competent jurisdiction to be invalid or
unenforceable, the remainder of this Lease shall not be affected thereby, and
every other term and provision of this Lease shall be valid and enforceable to
the fullest extent permitted by law.
39.12 CONSTRUCTION. All provisions hereof, whether covenants or
conditions, shall be deemed to be both covenants and conditions. The definitions
contained in this Lease shall be used to interpret this Lease.
46
39.13 INTEREST. Except as expressly provided otherwise in this Lease.
Any amount due to Landlord which is not paid when due shall bow interest from
the date due at the prime commercial rate of interest charged from time to time
by Citibank N.A. plus two percent (2%) per annum, but not to exceed the maximum
rate of interest allowable under the low (the "Agreed Rate"). Payment of such
interest shall not excuse or cure any default by Tenant under this Lease.
39.14 BINDING EFFECT; CHOICE OF LAW. Except as expressly provided
otherwise in this Lease, all of the provisions hereof shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns. This Lease shall be governed by the
laws of the State of California.
39.15 WAIVER OF TRIAL BY JURY. Landlord and Tenant each hereby waive
trial by jury in any action, proceeding or counterclaim brought by either
against the other an any matter whatsoever arising out of or in any way
connected with this Lease or Tenant's use or occupancy of the Premises,
including any claim of injury or damage, and any emergency and other statutory
remedy with respect thereto. Landlord and Tenant also agree that the venue of
any such action, proceeding or counterclaim shall be in the City and County of
Los Angeles, State of California.
39.16 TIME; RIGHTS CUMULATIVE. Time is of the essence of this Lease and
each and every provision hereof, except as may be expressly provided otherwise.
An rights and remedies of the parties shall be cumulative and non-exclusive of
any other remedy at low or in equity.
39.17 INABILITY TO PERFORM. This Lease and the obligations of Tenant
hereunder shall not be affected or impaired because Landlord is unable to
fulfill any of its obligations hereunder or is delayed in doing so, if such
inability or delay is caused by reason of force majeure, strike, labor troubles,
acts of God, acts of government, unavailability of materials or labor, or any
other cause beyond the control of Landlord.
39.18 CORPORATE AUTHORITY. If Tenant is a corporation, each individual
executing this Lease on behalf of Tenant represents and warrants that he or she
is duly authorized to execute and deliver this Lease on behalf of Tenant, and
that Tenant is qualified to do business in the State of California, and shall
deliver appropriate certification to that effect if requested.
39.19 PARTNERSHIP AUTHORITY. If Tenant is a partnership, joint venture,
or other unincorporated association, each individual executing this Lease on
behalf of Tenant represents that this Lease is binding on Tenant. Furthermore,
Tenant agrees that the execution of any written consent hereunder, or of any
written modification or termination of this Lease, by any general partner of
Tenant or and other authorized agent of Tenant, shall be binding on Tenant.
47
39.20 SUBMITTAL OF FINANCIAL STATEMENT. At any time and from time to
time during the term of this Lease, within fifteen (15) days after request
therefor by Landlord, Tenant shall supply to Landlord and/or any Mortgages a
current financial statement or such other financial information as may be
required by any such party.
39.21 RIDERS. Clauses, plats, addenda, and riders, if any, that are
signed by Landlord and Tenant and affixed to this Lease, are a part hereof.
40. INTENTIONALLY OMITTED
41. SECURITY INTEREST
41.1 In consideration of the covenants and agreements contained herein,
and as a material consideration to Landlord for entering Into this Lease, Tenant
hereby unconditionally grants to Landlord a continuing security interest in and
to all money and property of any kind or description, including, without
limitation, the Security Deposit, if any, and any advance Rental payment or
other deposit, now in or hereafter delivered to or coming Into the possession,
custody or control of Landlord, by or for the account of Tenant, in any manner
and for any purpose, together with any increase in profits or proceeds from such
property. The security interest granted to Landlord hereunder secures payment
and performance of all obligations of Tenant under this Lease now or hereafter
arising or existing, whether direct or indirect, absolute or contingent, or due
or to become due. In the event of a default under this Lease which is not cured
within the applicable grace period, if any, Landlord is and shall be entitled to
all the rights, powers and remedies granted a secured party under the California
Uniform Commercial Code and otherwise available at low or in equity, including,
but not limited to, the right to retain as damages the Security Deposit and
other funds hold by Landlord, without additional notice or demand regarding this
security interest Tenant agrees that it will execute such other documents or
instrument as may be reasonably necessary to carry out and effectuate the
purpose and terms of this Article 41, or as otherwise reasonably requested by
Landlord, including without limitation, execution of a UCC-1 financing
statement. Landlord's rights and remedies under this Article 41 are in addition
to, and not in lieu of, the provisions of Article 9.
42. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS
42.1 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
agreement, negotiations, brochures, arrangements, or understanding pertaining to
any such matter shall be effective for any purpose unless expressed herein. No
provisions 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
48
43. COMMON AREA REMODELING
43.1 Landlord hereby agrees that, during the calendar year 1997, it
will remodel the common corridor(s) on the eleventh (11th) floor of the
Building. The materials, specifications, and an other matters related to the
appearance of such remodeling shall be in the sole and absolute discretion of
Landlord.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
LANDLORD: LAKE XXXXXXX PLAZA
a California general partnership
By:LAKE XXXXXXX PLAZA ASSOCIATES,
a California general partnership,
a general partner
By: SC ENTERPRISES
a California general partnership,
a general partner
By: XXXXX XXXXX,
a general partner
By:/s/ XXXXXXX X. IRISH
-------------------------
Xxxxxxx X. Irish
his attorney-in-fact
TENANT: PANGEA SYSTEMS, INC.
a California corporation
By:/s/ XXXXXXX XXXXX
------------------------------
Name:XXXXXXX XXXXX
-------------------------
Title: President
By:/s/ XXXXXXXX XXXXXXXXX
------------------------------
Name:XXXXXXXX XXXXXXXXX
-------------------------
Title: Asst. Secretary
49
EXHIBIT A
DESCRIPTION OF PREMISES
[DIAGRAM]
EXHIBIT A-1
DESCRIPTION OF PROJECT
[DIAGRAM]
EXHIBIT B
VERIFICATION OF TERM AND INITIAL RENT
RE: office Lease dated March 21, 1997 between LAKE XXXXXXX PLAZA, a
California general partnership ("Landlord") and PANGEA SYSTEMS, INC., a
California corporation ("Tenant") for premises in Lake Xxxxxxx Plaza, 0000
Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx.
Tenant hereby verifies that the information stated below is correct and
further acknowledges and accepts possession of the Premises.
Area: 6,924 square feet of rentable area
Commencement Date: Xxxxx 0, 0000
Xxxxxxxxxxx Date: September 30, 2000
Options None
Rent: $13,848 per month
Address for Notices: 0000 Xxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxxx, Vice President,
Business Development
Billing Address: 0000 Xxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Federal Tax iD#: 00-0000000
By: /s/ XXXXXXXX XXXXXXXXX
---------------------------
Title: VP BUSINESS DEVELOPMENT
---------------------------
Date: 4/1/97
---------------------------
EXHIBIT C
CONSTRUCTION PROVISIONS
1. SCOPE OF WORK. These provisions define the scope of work to be provided by
Landlord in the Premises under the terms of the Lease. Words and phrases used
herein which are defined in the Lease have the meanings set forth therein unless
provided otherwise.
2. INTENT OF EXHIBIT. It is the intent of these provisions that Tenant shall be
permitted freedom in the interior design and layout of its space so long as same
is consistent with Landlord's policies and structural requirements, applicable
building codes, and with sound architectural and construction practices, and
provided further that no interference is caused to the operation of the
Building's mechanical heating, cooling or electrical systems or structure, or
other Building operations or functions, and that no unusual increase in
maintenance, insurance, taxes, fees or utility charges will be incurred by
Landlord or other tenants in the Building as a result thereof. Any additional
cost of design, construction, operation, insurance, maintenance, taxes, fees or
utilities which results therefrom shall be charged to Tenant and paid for by
Tenant in accordance with the provisions hereof and of the Lease.
3. LANDLORD'S WORK. Landlord shall have no obligation to improve, remodel,
alter, or otherwise prepare the Premises for Tenant's occupancy thereof, except
with respect to the following items of work, which shall be undertaken by
Landlord, at its sole cost and expense, using Building Standard materials and
specifications, in accordance with Landlord's plans and using Landlord's
contractor and subcontractors:
3.1. Repair or replace drywall, as needed, under the window sill.
3.2. Repair or replace the sill cap/window frame.
3.3. Provide fireproofing art penetrations in the core/corridor wall.
3.4. Install blinds for the exterior windows where such blinds are missing.
3.5. Repair the window gasket.
3.6. Add one door and doorframe as required for proper fire-code exiting from the Premises.
3.7. Remove debris from, and broom-clean the Premises.
Landlord may undertake and complete such work prior to delivering the
same to Tenant for the commencement of the work of improvement to be undertaken
by Tenant pursuant to this EXHIBIT C.
4. TENANT'S WORK. All costs incurred for improvements, services or materials
required by Tenant in or for the Premises (hereinafter referred to as "Tenant's
Work") shall be for the account of Tenant and at Tenant's sole cost and expense.
Tenant shall pay building lifting charges, if any, for Tenant's Work. Without
limiting the generality of the foregoing, the following work shall also
constitute part of Tenant's Work and shall be undertaken by Tenant at its sole
cost and expense:
4.1. The services of Tenant's space planner to prepare (a) the Space
Layout, (b) the Plans, and (c) the As-Built Documents, as each such term is
hereinafter defined. All revisions and prints as well as all interior design and
decorating fees, shall also be at Tenant's sole cost and expense.
4.2. The construction of the improvements and the installation of the
items shown in SCHEDULE A attached hereto, which shall be installed in the
Premises substantially in accordance with the Plans, which have received the
prior written approval of Landlord.
4.3. Fees for engineering, construction management by Landlord's Tenant
Coordinator (as hereinafter set forth), and previously installed materials used
in the construction (if any).
4.4. Permits and license fees relating to construction of Tenant's
improvements.
4.5. All other work, materials, costs and expenses required for the
construction of the improvements to the Premises.
4.6. The installation and distribution of the heating and air
conditioning system in accordance with the requirement specified at SCHEDULE A
hereto (which work is not discretionary, but is required of Tenant).
5. SPACE PLANNER. Tenant shall use the services of the space planner retained by
Tenant who shall prepare all documents required to bid, permit, construct, and
document all construction work upon the Premises and any work outside the
Premises (however, Tenant shall not be permitted to undertake any work outside
the Premises without the express written approval or direction of Landlord),
including without limitation, (a) the Space layout (b) the Plans and (c) the
As-Built Documents.
6. DEFINITION OF PLANS.
6.1. Space Layout. The "Space Layout" shall consist of all plans
depicting partitions, doors, electrical and telephone outlets, right fixture
locations, mill work, wall finishes, floor coverings and special requirements
(if any).
54
6.2. Plans. The "Plans" shall consist of all documents required for
obtaining all required permits and for the construction of the Premises,
including, but not limited to, the following: (a) partition plans, (b)
demolition plans, (c) reflected ceiling plans, (d) telephone and electrical
plans, (e) finish plans, (f) mechanical-engineered plans, (g)
electrical-engineered plans, (h) plumbing-engineered plans, and (i) all
associated construction and design detailing, including, but not limited to,
millwork details.
6.3. As-Built Documents. The "As-Built Documents" shall consist of one
(1) set of reproducible and two (2) sets of blueline copies and one (1)
computer-aided design ("CAD") diskette (if such drawings were prepared using a
CAD program) for all Tenant's Work undertaken, including, but not limited to,
the following: (a) architectural as-built drawings, (b) mechanical as-built
drawings, (c) electrical as-built drawings, (d) plumbing as-built drawings, (a)
fire/life-safety as-built drawings, and (f) structural as-built drawings.
6.4. Content. The content and level of detail of the Space Layout,
Plans and As-Built Documents shall be subject to the approval of Landlord.
Tenant shall devote such time in consultation with Tenant's space planner as
shall be necessary to enable the planner to develop the Space Layout, Plans and
As-Built Documents for the construction of improvements in the Premises.
6.5. Engineered Plans. Tenant shall retain, at its sole cost and
expense, independent, licensed engineering consultants approved in advance by
Landlord to prepare the Plans relating to the structural, mechanical, heating,
ventilating and air conditioning, electrical, plumbing, life/fire-safely, and
sprinkler work in the Premises (and such other affected areas of the Building).
7. TIME LIMITS. The following maximum time periods shall be allowed for the
indicated matters:
Time Limit After Completion of
Action Preceding item
------ -------------------------------
7.1. Tenant submits two (2) sets of the Plans to Landlord for 30 business days after Lease
written approval. execution
7.2. Landlord approves (or disapproves with explanation) the 15 business days
Plans.
7.3. Tenant submits name of the proposed TI Contractor and the 10 business days
TI Contractor information Package (as each is hereinafter
defined) to Landlord for approval.
55
7.4. Landlord approves for disapproves with explanation) the 5 business days after Landlord has
proposed TI Contractor. received the complete TI Contractor
Information Package from Tenant.
8. TI CONTRACTOR INFORMATION PACKAGE. The TI Contractor information Package
consists of all of the following with respect to the proposed contractor (a) an
AIA Document A305 (entitled "Contractor's Qualification Statement"), or such
other, similar statement as Landlord may reasonably require, completed, executed
on behalf of such contractor and acknowledged, (b) insurance limits maintained
by such contractor and evidence thereof, (c) evidence the contractor is
bondable, (d) a copy of the contractor's license in such jurisdiction, (e)
sufficient commercial references and (f) acceptable, current financial
statements.
9. CONSTRUCTION BY TI CONTRACTOR. Subject to the provisions of this EXHIBIT C
and the Lease, all construction work in the Premises shall be performed by the
Tenant improvement Contractor ("TI Contractor") retained by Tenant and approved
by Landlord. The TI Contractor shall perform such work in a good and workmanlike
manner and shall construct the improvements in the Premises substantially in
accordance with the Plans. All such construction work shall be performed in
accordance with the laws, ordinances and requirements of government agencies
having jurisdiction. The following conditions shall apply to Tenant's selection
and use of a TI Contractor.
9.11 Subject to the provisions of this EXHIBIT C, Tenant may select any
qualified contractor for the construction of Tenant's Work, provided such
contractor is bondable, uses union employees, has received the prior written
approval of Landlord and has compiled with the provisions of this EXHIBIT C.
9.2. Tenant shall be required to use the building mechanical and
electrical contractor specified by Landlord.
9.3. Tenant agrees that the provisions set forth below shall be
incorporated as "Special Conditions" into the contract between Tenant and its
contractor for the benefit of Landlord, and agrees that as to such provisions
Landlord shall have the rights of enforcement of a third party beneficiary (with
a copy of the contract to be furnished Landlord prior to the commencement of
Tenant's Work):
9.3.1. Prior to starting any of Tenant's Work, TI Contractor shall
provide Landlord with a listing of information describing the TI Contractor and
subcontractors, a construction schedule in "bar graph" form indicating the
completion dates of all phases of Tenant's Work and a copy of the building
permit.
56
9.3.2. Prior to starting any of Tenant's Work, TI Contractor shall also
deliver to Landlord duplicate originals of insurance policies (or certificates
of insurance if such certificates shall, in Landlord's sole judgment provide
clear and unambiguous evidence of insurance). The insurance provided the
Landlord by the TI Contractor pursuant to this Section 9.3.2 shall be primary
insurance without the right of contribution from any insurance maintained by the
Landlord and shall name Landlord and Landlord's agent as additional insureds.
The insurance required shall be written for not less then the following, or
greater if required by law.
9.3.2.1. Worker's Compensation:
(a) State.................................... Statutory Requirements
(b) Applicable Federal....................... Statutory Requirements
(c) Employer's Liability .................... $1,000,000.00
9.3.2.2. Comprehensive General Liability (including
Premises-Operations; independent Contractor's Protective; Products and
Completed Operations; Broad Form Property Damage):
(a) Combined Single Limits for Bodily injury and Property Damage:
$1,000,000............................Each Occurrence
(b) Products and Completed Operations to be maintained.
(c) Property Damage Liability insurance shall provide X, C, or U coverage.
9.3.2.3. Contractual Liability.
(a) Combined Single Limits for Bodily injury and Property Damage:
$1,000,000 ...........................Each Occurrence
9.3.2.4. Personal injury, with Employment Exclusion deleted:
$1,000,000 ..........................Annual Aggregate
9.3.2.5. Comprehensive Automobile Liability:
(a) Combined Single Limits for Bodily injury and Property Damage:
$1,000,000 ...........................Each Occurrence
9.3.2.6. Umbrella Excess Liability:
$3,000,000
57
9.3.3. Prior to starting any of Tenant's Work, TI Contractor shall also
deliver to Landlord evidence satisfactory to Landlord of payment and performance
bonds covering the faithful performance of the contract for the construction of
Tenant's Work and the payment of all obligations arising thereunder. Such bonds
shall be for the mutual benefit of both Landlord and Tenant and shall be issued
in the names of both Landlord and Tenant as obligees and beneficiaries.
9.3.4. TI Contractor shall be responsible for, and shall pay the cost
the repair, replacement or clean-up of any damage done by it to other
contractors' work, which specifically includes access ways to the Premises which
may be concurrently used by others.
9.3.5. Except for freight elevators, elevators in the Project are not
to be used by TI Contractor at any time. TI Contractor shall only use dollies
and hand carts that have rubber wheels. Any costs required to repair the Common
Area flooring due to the use of improper tires or wheels shall be the
responsibility of, and shall be paid by, TI Contractor to Landlord.
9.3.6. Under no circumstances shall TI Contractor cause or permit
anything to be hung from or supported by any duct work or piping above the
Premises. All suspended ceilings and other fixtures and improvements shall be
installed in a proper manner and in accordance with applicable building codes.
9.3.7. TI Contractor shall contain the storage of its materials and his
operations within the Premises and such other space, if any, as it may be
assigned by Landlord. Should it be assigned space outside of the Premises, the
TI Contractor shall move to such other space as Landlord shall direct from time
to time to avoid interference or delays with other work. In no event shall
materials be stored in corridors or other Common Areas. No flammable materials
shall be stored or kept in the Premises or anywhere else in the Project, except
for that which is to be used during the single day of construction during which
such materials are first brought onto the Project.
9.3.8. All trash and surplus construction materials shall be stored
within the Premises and shall be promptly removed from the Project. TI
Contractor shall confirm with Landlord on the placement of trash bin prior to
placing the same onto the Project.
9.3.9. TI Contractor shall provide Landlord prior written notice of any
planned work to be done on weekends or outside Landlord's normal job hours for
the purpose of obtaining Landlord's consent thereto. TI Contractor shall also
refrain from undertaking any construction during normal building hours (as such
hours are determined by Landlord) that impacts or is likely to impact other
tenants" or occupants" use or enjoyment of their premises (for example, work
that causes excessive noise [such as floor coring] or creates fumes or odors
[such as wallcovering preparation, painting, millwork and door or wood
finishing]).
58
9.3.10. Tenant and TI Contractor are responsible for compliance with
all applicable codes and regulations of duly constituted authorities having
jurisdiction insofar as the performance of the work and completed improvements
we concerned for all work performed by Tenant or TI Contractor, and with all
applicable safety regulations established by the general contractor for the
Project and Tenant further agrees to save and hold Landlord harmless for said
work as provided in the Lease.
9.3.11. Neither TI Contractor nor subcontractors shall post signs on
any part of the Project or on the Premises.
9.3.12. TI Contractor shall agree that the contract between Tenant and
TI Contractor is solely for the benefit of Tenant and TI Contractor, except for
the provisions referred to above as being for the benefit of Landlord (as to
which provisions Landlord shall have the rights of enforcement of a third party
beneficiary). TI Contractor shall further agree that it and its subcontractors
shall look only to Tenant for payment of any sums due under its contract with
Tenant. TI Contractor shall further agree that it and its subcontractors shall
look only to Tenant for payment of any sums due it under its contract with
Tenant. TI Contractor, for itself and its subcontractors, shall waive any and
all claims or actions (including mechanics' or materialmen's lien rights) that
it or its subcontractors may have against Landlord for amounts owing to it or
its subcontractors under the contract between TI Contractor and Tenant.
9.4. At Landlord's option, Landlord may provide trash removal services
for TI Contractor (who shall purchase such services by use of Landlord's form of
Tenant work order), and Tenant shall cause the cost thereof to be reimbursed to
Landlord within ten (10) days after demand. Failure by Tenant to cause any such
payment to be made shall be deemed a default under the Lease the same as a
failure to pay Rent.
9.5. Upon written notice from TI Contractor that it needs temporary
electrical power, Landlord shall make reasonable amounts of the same available
for construction of the Premises. Tenant shall reimburse Landlord for the cost
thereof, together with a charge for Landlord's direct and indirect
administrative costs related thereto, within ten (10) days after demand. Failure
by Tenant to make may such payment shall be deemed a default under the Lease the
same as a failure to pay Rent. Unless TI Contractor shall notify Landlord in
writing that such temporary power is no longer needed by it, Landlord may
continue to make such temporary power available until the Premises shall open
for business, and Tenant shall pay Landlord therefor as above provided.
9.6. All work performed by Tenant or TI Contractor will be in
compliance with the master labor agreements existing between trade unions and
local chapter of the Associated General Contractors of America. Any and all work
performed by Tenant or TI Contractor shall be performed in a manner so as to
avoid any labor dispute which results in a stoppage or impairment of work or
delivery services or any other services in the Project, and in the event there
shall be any such stoppage or impairment as the result
59
of any such labor dispute, Tenant shall immediately undertake such action as may
be necessary to eliminate such dispute or potential dispute, including but no
limited to (a) removal of all disputants from the job site until such time as
the labor dispute no longer exists, (b) seeking an injunction in the event of a
breach of contract between Tenant and TI Contractor, and (c) filing appropriate
unfair labor practice charges in the event of a union jurisdictional dispute.
9.7. Tenant shall assign any and all warranties and guaranties provided
by TI Contractor and subcontractors to Landlord immediately upon completion of
Tenant's Work. All improvements shall be guaranteed or warrantied for a period
of at least one (1) year from the date of substantial completion of such work.
9.8. Landlord may permit entry of the TI Contractor and its authorized
subcontractors into the Premises for the purpose of performing such work prior
to the commencement of the term of the Lease and while the TI Contractor is
working at the Premises, but only at such time or times as Landlord shall deem
feasible in the circumstances and under such conditions as Landlord may
reasonably determine. Such license to enter before the commencement of the term
is expressly conditioned upon the contractor retained by Tenant working in
harmony and not interfering with the workmen, mechanics and contractors of
Landlord or of any other tenant or occupant in the Building or the Project, and
if at any time such entry or work by TI Contractor shall cause any disharmony or
interference, such permission to enter may be withdrawn by Landlord immediately
upon written notice to Tenant. Such entry shall be deemed to be under all the
terms, covenants, provisions and conditions of the Lease, except the covenant to
pay Rent and Expenses.
9.9. All materials, work, installations and decorations of any nature
whatsoever brought on or installed in the Premises before the commencement of
the term of the Lease shall be at Tenant's risk, and neither Landlord nor any
party acting on Landlord's behalf shall be responsible for any damage thereto or
loss or destruction thereof.
10. TENANT COORDINATOR. Landlord has designated a "Tenant Coordinator" who shall
be responsible for the management and coordination of all work to be performed
in the Premises and for the coordination with Tenant on all matters governed by
these Construction Provisions. The Tenant Coordinator shall be paid a fee equal
to five percent (5%) of the cost of the improvements, services and materials
furnished as part of Tenant's Work as reimbursement for the expense of
administration and coordination of such work. The Tenant Coordinator will
furnish Tenant with notices of substantial completion, Landlord's approvals or
disapprovals of Plans and changes thereto, and other similar notices. Tenant
shall deliver any payments that may be required hereunder to be paid to Landlord
to the Tenant Coordinator unless written notice is given by Landlord to the
contrary.
60
11. CHANGES. If Tenant requests or necessitates any change, addition or deletion
to the Plans after approval of the Plans by Landlord, as described in Section 7
above, a request for the change shall be submitted to the Tenant Coordinator
accompanied by revised Plans prepared by Landlord's space planner at Tenant's
sole expense
12. SUBSTITUTIONS. Tenant may select different now materials (except exterior
window levolors which must be installed on all exterior windows, the ceiling
system, parabolic light fixtures, and the doors and frames and hardware) in
substitution for the materials specified as the Building Standard, provided the
selection is clearly depicted on Plane approved by Landlord.
13. CLOSE-OUT PACKAGE. Tenant shall be responsible for performing and providing
Landlord with each and every one of the following within the time specified
therefor. The failure of Tenant to perform any such obligation within five (5)
days" after receipt of written notice from Landlord of such failure shall
constitute a default under the Lease.
13.1. Tenant shall obtain and record a Notice of Completion within
three (3) days following completion of Tenant's Work and forward a copy to
Landlord within three (3) days thereafter.
13.2. Tenant shall post a Notice of Completion on the Premises within
three (3) days after substantial completion of Tenant's Work and forward a copy
to Landlord within three (3) days thereafter.
13.3. Tenant shall obtain executed, unconditional lien waivers for all
work performed by TI Contractor and all subcontractors and suppliers, and an
executed affidavit from TI Contractor that no liens exist within thirty (30)
days after substantial completion of Tenant's Work, and shall provide the
originals thereof to Landlord.
13.4. Tenant shall obtain a Certificate of Occupancy for the
Premises and provide Landlord with a duplicate original thereof within thirty
(30) days after substantial completion of Tenant's Work.
13.5. Tenant shall provide Landlord with an itemized cost breakdown for
all improvements, services, and materials, including, but not limited to, a copy
of the contract with the TI Contractor, and all approved change orders, and a
list of all components of construction in the Premises, broken down into items
and the cost of each item, and provide the original thereof to Landlord promptly
upon substantial completion of Tenant's Work.
13.6. Tenant shall provide Landlord with the As-Built Documents within
thirty (30) days following substantial completion of Tenant's Work.
61
13.7. Tenant shall obtain from the TI Contractor, and provide Landlord
with, a certified air balance report within five (5) days following substantial
completion of Tenant's Work.
13.8. Tenant shall obtain a copy of all building permits with sign-offs
executed and provide copies thereof to Landlord promptly upon substantial
completion of Tenant's Work
13.9. Tenant shall obtain an architect's certification that the
Premises were constructed in accordance with the Plans and in accordance with
this EXHIBIT C and deliver the same to Landlord upon substantial completion of
the Premises.
13. 10. Tenant shall obtain and deliver to Landlord copies of all owner
manuals for any equipment or other improvements installed in the Premises, upon
substantial completion of the Premises.
13.11. Tenant shall provide Landlord with a copy of the completed
punchlist, signed by the Tenant's space planner and the Tenant's representative,
within thirty (30) days following substantial completion of Tenant's work.
13.12. Tenant shall obtain and submit to Landlord a warranty letter
from the TI Contractor warranting an materials and workmanship for a period of
not less then one (1) year, within five (5) days following substantial
completion of Tenant's work.
14. INTENTIONALLY OMITTED.
15. INCORPORATION BY REFERENCE. This EXHIBIT C is and shall be incorporated by
reference in the Lease, and all of the terms and provisions of the Lease are
incorporated herein by this reference. Schedule A to this EXHIBIT C is hereby
incorporated by this reference in the Lease and in this EXHIBIT C.
16. ATTORNEYS" FEES. In the event of any action or proceeding initiated by a
party hereto for the enforcement or interpretation of the provisions contained
herein, the prevailing party shall be entitled to recover its costs incurred in
connection therewith, including its reasonable attorneys' fees.
62
SCHEDULE A TO EXHIBIT C
LAKE XXXXXXX PLAZA
1999 XXXXXXXX STREET
BUILDING STANDARDS
1. PARTITIONS:
1.1. Demising Partition:
1.1.1. 2 1/2" - 25 gauge metal studs - 24" on center
1.1.2. 5/8" drywall - one layer each side of studs. Height from floor
slab to underside of slab above. Partition taped smooth to receive paint or wall
covering. Seismic bracing per code.
1.1.3. Batt insulation in cavity (R-11).
1.2. Interior Partition:
1.2.1. 0-0/0" - 00 xxxxx xxxxx xxxxx - 00" on center
1.2.2. 5/8" drywall - one layer each side of studs. Height from floor
slab to ceiling grid. Partition taped smooth to receive paint or wall covering.
Seismic bracing per code. Attach to calling with 1/4" tee bolt as required.
2. DOOR ASSEMBLIES:
2.1. Corridor Door Assembly - Tenant.
2.1.1. Door. 1 hour rated stain grade mahogany veneer
2.1.2. Frame: I.C.I. extruded aluminum frame with snap-on flush trim or approved equal
2.1.3. Hardware: Schlage
2.1.4. Hardware Finish: Polished stainless steel
2.2. Interior Door Assembly:
2.2.1. Door: Stain grade mahogany veneer
2.2.2. Frame- I.C.I. extruded aluminum frame with snap-on flush trim or approved equal
2.2.3. Hardware: Schlage
2.2.4. Hardware Finish: Polished stainless steel
3. ACOUSTICAL CEILINGS:
3.1. 2" x 2" "Xxxx Fine Una," calling grid with wins suspension per coda
3.2. 2'x2" Xxxxxxxxx "Cirrus" ceiling tile
4. ELECTRICAL:
4.1. 2" x 4" Fluorescent Light Fixture: 2'x4', lay-in type, 3 tube - 40 watt lamps and ballasts, 18 cell
parabolic fixture to match building. Suspension per code.
4.2. Light Switch Assembly: Sierra #5021 or equal. Switches paired in double gang box to meet Title
XXIV requirements. Ivory Color.
4.3. Electrical Wall Outlet: Sierra #1400 or equal, duplex receptacle. Ivory color. Number of outlets
per code. Mounted vertically. Outlet height at 15" AFF to center line of outlet
4.4. Telephone Wall Outlet Single plaster ring wait-mounted
vertically with pull string to plenum. Cable and cover plate by Tenant (cable to
be plenum rated).
5. HVAC:
5.1. Hosting and Air Conditioning Distribution: Design and engineering or system by licensed mechanical
engineer in accordance with Title XXIV requirements.
5.1.1. Interior Zone: Variable air volume boxes.
5.1.2. Exterior Zone: Same as above with hot water coil for heating.
5.1.3. Perforated air registers and return air grilles.
5.1.4. One thermostat per zone mounted next to light switch.
5.1.5. The main distribution duct loop and pneumatic control lines
from core area.
5.1.6. Energy Management System: All required items including circuiting to facilitate operation of the
building's energy management system (including, but not limited to, Tenant lighting).
6. WALL FINISH:
6.1. Painting: Two coats egg shell finish latex paint as selected from Landlord's color chart.
64
7. FIRE SPRINKLERS:
7.1. The main sprinkler loop and distribution lines.
7.2. Semi-recessed head with chrome finish. Quantity of drops per code.
8. FIRE LIFE SAFETY:
8.1. Ceiling mounted illuminated exit signs to match bass building,
installed per code.
9. WINDOW COVERING:
9.1. Building standard 1" horizontal mini-blinds, Levolor "Brushed Aluminum."
10. FLOOR COVERING:
10.1. Carpet: Designweave "Now Tempest" (32 oz.) over 3/8" nova pad.
10.2. Rubber Base: 2-1/2" straight or coved by Xxxxx or equal.
10.3. VCT Xxxxxxxxx Excelon 12" x 12" x 1/8" vinyl tile in standard
colors.
11. SIGNAGE.
11.1. Building standard non-illuminated interior signage, at suite
entry.
65
EXHIBIT D
SUBORDINATION OF LEASE
Recording Requested By And
When Recorded Return To:
Attention:
NOTICE: HIS SUBORDINATION AGREEMENT RESULTS IN THE LEASEHOLD ESTATE INTHE
PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER
OR LATER SECURITY DOCUMENT.
SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT
THIS AGREEMENT made as of the ___________ of ___________, 2000, among
_________________________________ (hereinafter referred to as "Mortgagee"),
_________________________________ (hereinafter referred, to as "Landlord"), and
_________________________________ (hereinafter referred to as "Tenant").
WITNESSETH
WHEREAS, Mortgagee has become the owner and holder of a beneficial
interest under a deed of trust recorded ______________________, as Instrument
No. ___________, Official Records, County of ___________, California
(hereinafter referred to as the "Mortgage") covering certain premises described
in Exhibit A attached hereto (hereinafter referred to as the "Mortgaged
Premises") and of the note, bond or other obligation secured thereby
(hereinafter referred to as the "Note");
WHEREAS, Tenant is the holder of a leasehold estate in a portion of the
Mortgaged Premises (hereinafter referred to as the "Demised Premises") under and
pursuant to the provisions of a certain lease dated ___________, 2000 by and
between Tenant and Landlord (hereinafter referred to as the "Lease");
WHEREAS, Landlord's interest in the Lease has been assigned to
Mortgagee as additional security for the Mortgage; and
WHEREAS, Tenant has agreed to subordinate the Lease to the Mortgage and
to the lien thereof and Mortgagee has agreed to grant non-disturbance to Tenant
under the Lease on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing, of the mutual
covenants and agreements herein contained, and other good and valuable
consideration. the receipt
of which is hereby acknowledged, Mortgagee and Tenant hereby covenant and agree
as follows:
1 . So long as Tenant is not in default in the payment of rent or
additional rent or in the performance of any of the other terms, covenants or
conditions of the Lease on Tenant's part to be performed, Tenant's possession of
the Demised Premises under the Lease, or any extensions or renewals thereof
which may be effected in accordance with any option therefor in the Lease, shall
not be diminished or interfered with by Mortgages and Mortgagee shall not join
Tenant as a party defendant in any action or proceeding for the purpose of
terminating Tenant's interest and estate under the Lease because of any default
under the Mortgage.
2. If Mortgagee shall become the owner of the Mortgaged Premises or the
Mortgaged Premises shall be sold by reason of foreclosure, trustee's sale or
other proceedings brought to enforce the Mortgage, or if the Mortgaged Premises
shall be transferred by deed in lieu of the foreclosure, the Lease shall
continue in full force and effect as a direct Lease between the then owner of
the Mortgaged Premises (including Mortgagee or the grantee under a deed in lieu
of foreclosure) and Tenant, upon and subject to all of the terms, covenants and
conditions of the Lease for the balance of the term thereof remaining and any
extensions or renewals thereof which may be affected in accordance with any
option therefor in the Lease, and Tenant does hereby attorn to Mortgages or any
other such owner as its Landlord, said attornment to be effective and
self-operative without the execution of any further instruments, except that
Tenant shall neither make, nor be entitled to make, any claim against Mortgagee
or other such owner with respect to any takeover and/or subleased space, and
Tenant shall, from and after Mortgagee's or other such owner's succession to the
interest of Landlord under the Lease, have the same remedies for the breach of
covenant contained in the Lease that Tenant might have had under the Lease
against Landlord; provided further, however, that Mortgagee or other such owner
shall not be:
(a) liable for any act or omission of any prior landlord (including
Landlord); or
(b) subject to any offsets or defenses which Tenant might have against
any prior landlord; or
(c) bound by any prepayment of rent or additional rent which Tenant
might he" paid for more than the current month to any prior landlord; or
(d) bound by any amendment or modification of the Lease or by any
waiver or forbearance on the part of any prior landlord made or given without
the written consent of Mortgagee or any subsequent holder of the Mortgage.
3. The Lease is hereby made, and shall at all times be subject and
subordinate in each and every respect, to the Mortgage and to any and an
renewals, modifications,
67
extensions, substitutions, replacements and/or consolidations of the Mortgage,
but any and all such renewals. modifications, extensions, substitutions,
replacements and/or consolidations, shall nevertheless be subject to and
entitled to the benefits of the terms of this Agreement.
4. To the extent that the Lease shall entitle the Tenant to notice of
any Mortgage, this Agreement shall constitute such notice to the Tenant with
respect to the Mortgage and to any and all renewals, modifications, extensions,
substitutions, replacements and/or consolidations of the Mortgage.
5. This Agreement may not be modified orally or in any manner other
than by an agreement in writing signed by the parties hereto or their respective
successors in interest. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duty executed and acknowledged as of the day and year first above written.
Mortgagee: Tenant:
By: By:
------------------------------------ -------------------------------
Title: Title:
------------------------------------ -------------------------------
Landlord:
By: By:
------------------------------------ -------------------------------
Title: Title:
------------------------------------ -------------------------------
68
EXHIBIT D-1
SUBORDINATION OF DEED OF TRUST
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
TEACHERS INSURANCE AND
ANNUITY ASSOCIATION
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Legal Department
______________SPACE ABOVE THIS LINE FOR RECORDER'S USE_______________________
SUBORDINATION OF MORTGAGE
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA as owner and
holder of a certain Promissory Note dated ___________ in the principal sum of
______________________ ($_____) Dollars and of a certain Mortgage or Deed of
Trust of even date therewith and securing the said Note, recorded on ___________
in Book ___________ at Page ___, Official Records, ___________ County,
___________ now a first lien upon the premises more particularly demised and
described in that certain Lease dated by and between ________________________,
as Lessor, and ________________________, as Lessee, and upon other property, in
consideration of such leasing and of the sum of One ($1.00) Dollar and other
good and valuable consideration, receipt of which is hereby acknowledged;
DOES hereby covenant and agree that the said Mortgage or Deed of Trust
is and shall, remain SUBORDINATE to the said Lease, it being expressly agreed
that said Lease has been executed, delivered and recorded prior to the
execution, delivery and recording of the said Mortgage, or Deed of Trust;
EXCEPT, HOWEVER, that it is nevertheless agreed that this Subordination
shall not affect nor be applicable to and does hereby expressly exclude:
(a) The prior right claim and lien of the said Mortgage or Deed of
Trust in, to and upon any award or other compensation heretofore or hereafter to
be made for any taking by eminent domain of any part of the said premises, and
to the right of disposition thereof in accordance with the provisions of the
said Mortgage or Deed of Trust;
(b) The prior right, claim and lien of the said Mortgage or Deed or
Trust in, to and upon any proceeds payable under all policies of fire and rent
insurance upon the said premises and as to the right of disposition thereof in
accordance with the terms of the said Mortgage or Deed of Trust; and
(c) Any lien, right, power or interest, if any, which may have arisen
or intervened in the period between the recording of the said Mortgage or Deed
of Trust and the execution of the said lease, or any lien or judgment which may
arise at any time under the terms of such lease.
This Subordination shall inure to the benefit of and shall be binding
upon the undersigned, its successors and assigns.
IN WITNESS WHEREOF, the Subordination has been duly, signed and
delivered by the undersigned this ___ day of ___________, 1997.
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA LESSEE'S
AGREEMENT
By:
-------------------------------
Its:
-------------------------------
LESSEE'S AGREEMENT
The undersigned, as Losses under the lease herein described, does
hereby accept and agree to the terms of the foregoing Subordination, which shall
inure to the benefit of and be binding upon the undersigned and the hairs,
executors, administrators, legal representatives, successors and assigns of the
undersigned.
LESSEE:
By:
-------------------------------
Its:
-------------------------------
By:
-------------------------------
Its:
-------------------------------
[AFFIX NOTARY ACKNOWLEDGMENT]
70
EXHIBIT E
ESTOPPEL STATEMENT
STATEMENT OF TENANT IN RE LEASE
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
000 Xxxxx Xxxxxx Xxx Xxxx
Xxxx, XX 00000
RE: _______________________________
(ADDRESS OF PROJECT)
YOUR APPLICATION No.________________
YOUR MORTGAGE No.___________________
Gentlemen:
It is our understanding that you have committed to place a mortgage
upon the subject premises and as a condition precedent thereof hem required this
certification of the undersigned.
The undersigned, as Lessee, under that certain lease dated ___________,
made with ___________, as Lessor, hereby ratifies the said lease and certifies
that:
1 . the undersigned has entered into occupancy of the premises
described in sold lease on ___________; and
2. the undersigned is presently open and conducting business with the
public in the premises; and
3. the operation and use of the premises do not involve the generation,
treatment, storage, disposal or release of a hazardous substance or a solid
waste into the environment and that the premises are being operated in
accordance with all applicable environmental laws, zoning ordinances and
building codes; and
4. the minimum rental in the annual amount of $_____ was payable from
the date of occupancy; and
5. that said lease is in full force mid effect and has not been
assigned, modified, supplemented or amended in any way (except by agreement(s)
dated ___________ and neither party thereto is in default thereunder, and
6. that the same represents the entire agreement between the parties as
to this leasing; and
7. that the term of said lease expires on ___________; and
8. that all conditions under said lease to be performed by the Lessor
have been satisfied, including, but without limitation, all co-tenancy
requirements thereunder; and
9. all required contributions by Lessor to Lessee on account of
Lessee's improvements have been received; and
10. on this date there are no existing defenses or offsets which the
undersigned has against the enforcement of said lease by the Lessor; and
11. that no rental has been paid in advance and a security deposit in
the amount of $___________ has been deposited with Lessor; and
12. that Lessee's floor area is ___________ square foot; and
13. that rental for ___________ 1997 has been paid.
Very truly yours,
--------------------------------
(LESSEE)
By:
-----------------------------
Its:
----------------------------
By:
-----------------------------
Its:
-----------------------------
72
EXHIBIT F
BUILDING RULES AND REGULATIONS
The following rules and regulations shall be applicable to the
Building:
1 . No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed, or printed or affixed on or to any part of the Building or
Premises if visible from outside the Premises, without the prior written consent
of Landlord. Tenant's identification signs and lettering shall be in accordance
with Landlord's standard requirements for the Building unless otherwise approved
in writing by Landlord, and shall be printed, painted, affixed, or inscribed at
the expense of Tenant by a person approved by Landlord.
2. Tenant shall not place or maintain any window covering, blinds or
drapes on any window without Landlord's prior written approval. A breach of this
rule will directly and adversely affect the exterior appearance of the Building.
Upon request by Landlord, Tenant shall remove any window covering, or any other
item visible from outside the Premises, if installed or placed without
Landlord's written approval.
3. A directory of the Building will be provided for the display of the
name and location of tenants. Landlord will install at Tenant's expense
directory strips for Tenant's name and a reasonable number of the principal
employees thereof, and Landlord reserves the right to exclude may other names
therefrom.
4. The sidewalks, halls, passages, exits, entrances, elevators,
escalators, and stairways shall not be obstructed by Tenant or used by it for
any purpose other than for ingress to and egress from the Premises. The halls,
passages, exits, entrances, elevators, escalators, stairways, balconies and roof
are not for the use of the general public and Landlord shall in all cases retain
the right to control and prevent access thereto by all persons whose presence in
the judgment of the Landlord might be prejudicial to the safety, character,
reputation and interests of the Building and its tenants, provided that nothing
herein contained shall be construed so as to prevent such access to persons with
whom Tenant normally deals in the ordinary course of Tenant's business unless
such persons are engaged in illegal activities or are creating a nuisance. No
employee, invitee, contractor or agent of Tenant shall go upon the roof of the
Building.
5. Tenant shall be responsible for assuring that doors to the Premises
are locked during non-business hours. Such doors shall not be left open during
business hours, except while moving furniture or other items in or out of the
Premises, unless Landlord consents otherwise
6. The toilet rooms and urinals, wash bowls and other apparatus therein
shall not be used for any purpose other than that for which they were
constructed and no foreign
substance of any kind whatsoever shall be placed therein; the expense of
breakage, stoppage or damage resulting from the violation of this rule shall be
borne by the tenant who, or whose employee, invitees, contractors or agents,
shall have caused it.
7. Except as to normal pictures and furnishings, Tenant shall not xxxx,
drive nails, screw or drill into partitions, woodwork or plaster or in any way
deface the Premises or any part thereof. No boring, cutting or stringing of
wires shall be permitted except with the prior written consent of Landlord and
as Landlord may direct Tenant shall not lay linoleum, tile, carpet or other
similar floor covering to that the same shall be affixed to the floor of the
Premises in any manner except as approved by Landlord. The expense of repairing
any damage resulting from a violation of this rule or removal of any floor
covering shall be borne by Tenant.
8. Tenant shall not overload any floor of the Premises or the Building.
No furniture, freight or equipment of any kind shall be brought into the
Building by Tenant or its contractors or agents without prior consent of
Landlord and all moving of the same into or out of the Building shall be done at
such time and in such manner as Landlord shall designate. Landlord shall have
the right to prescribe the weight, size and position of all safes and other
heavy objects brought into the Building and also the time and manner of moving
the some in and out of the Building. Safes and other heavy objects shall, if
considered necessary by Landlord stand on wood strips of such thickness as is
necessary to property distribute weight. Landlord will not be responsible for
loss or damage to any property from am such cause, and all damage done to the
Building by moving or maintaining any such safe or other property shall be
repaired at the expense of Tenant. There shall not be used in any part of the
Building any hand truck unless it is equipped with rubber tires and side guards.
9. Tenant shall not employ any person or persons other than the janitor
of Landlord for the purpose of cleaning the Premises unless otherwise agreed to
in writing by Landlord. Except with the prior written consent of Landlord, no
person or persons other then those approved by Landlord shall be permitted to
enter the Building for the purpose of cleaning same. Tenant shall not cause any
unnecessary labor by reason of Tenant's carelessness or indifference in the
preservation of good order and cleanliness. Landlord shall in no way be
responsible to Tenant for any loss of property on the Premises, however
occurring, or for any damage done to the effects of Tenant or any of its
employees or other persons by the janitor of Landlord. Janitor service shall
include ordinary dusting and cleaning by the janitor assigned to such work and
shall not include clearing of carpets or rugs, except normal vacuuming, or
moving of furniture and other special services. Janitor service will not be
furnished to rooms which are occupied after 9:30 p.m. Window cleaning shall be
done only by Landlord at reasonable intervals and as Landlord deems necessary.
10. Tenant shall not use, keep or permit to be used or kept any noxious
gas or substance in the Premises, or permit or suffer the Premises to be
occupied or used in a
74
manner offensive or objectionable to Landlord or other occupants of the Building
by reason of noise, odors and/or vibrations, or interfere in any way with other
tenants or those having business therein. No tenant shall make or permit to be
made any loud or disturbing noises or disturb or interfere with occupants of the
Building or those having business with them whether by the use of any musical
instrument, radio, phonograph, shouting or in any other manner. Tenant shall not
throw anything out of doors or down the passageways.
11. The Premises shall not be used for the storage of merchandise
except as such storage may be incidental to the use of the Premises authorized
by the Lease. No cooking shall be done or permitted in the Premises without
Landlord's consent, except that use by Tenant of Underwriter's Laboratory
approved microwave ovens or equipment for brewing coffee or similar beverages
shall be permitted. Tenant shall not advertise for day laborers giving an
address at the Premises. The Premises shall not be used for lodging or for any
illegal purposes. Tenant shall not keep or maintain pets or animals of any type
and shall not store or keep bicycles, mopeds or motorcycles in the Premises or
the Building.
12. Tenant shall not use or keep in the Premises or the Building any
kerosene, gasoline or flammable or combustible fluid or material, or use any
method of heating or air conditioning other than that supplied or permitted by
Landlord.
13. Landlord will direct electricians as to where and how electrical,
telephone and telegraph wires are to be introduced to the Premises. No boring or
cutting for wires will be allowed without the prior consent of Landlord. The
location of telephone switching equipment, call boxes and other similar
equipment in the Premises shall be subject to the approval of Landlord.
14. Landlord will furnish Tenant free of charge two (2) keys for each
locking door in the Premises. Any additional or replacement keys will be
furnished at a reasonable charge. All keys to offices, rooms and toilet rooms
shall be obtained from Landlord and Tenant shall not duplicate or obtain such
keys from any other source. Upon termination of the Lease, Tenant shall deliver
to Landlord the keys to the offices, rooms and toilet rooms which were
previously furnished to Tenant, failing which Tenant shall pay Landlord the cost
of replacing same or of changing the lock or locks opened by any unreturned key
if Landlord deems it necessary to make such changes. Landlord shall have the
right periodically to change all locks and furnish Tenant with now keys
therefor. Tenant shall not alter any lock or install any now or additional locks
or any bolts on any door of the Premises without the prior written consent of
Landlord (except as to safes, vaults and other secured areas of Tenant approved
by Landlord).
15. No furniture packages, supplies, equipment or merchandise will be
received in the Building or carried up or down in the elevators, except between
such hours and in such elevators as shall be designated by Landlord.
75
16. Landlord reserves the right to close and keep locked all entrances
any exit doors of the Building on Saturdays, Sundays, legal holidays and on
other days between non-business hours, and during such further hours as Landlord
may deem advisable for the adequate protection of the Building and the property
of its tenants (such hours are referred to as "After-Hours"). However, during
such After-Hours Tenant and/or authorized employees as wall as guests, licensees
or invitees of Tenant who are accompanied by Tenant or an authorized employee of
Tenant, shall be allowed access to the Building upon proper identification.
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 case of invasion,
mob, riot, public excitement or other commotion, Landlord reserves the right to
prevent access to the Building during the continuance of same.
17. The "normal business hours" for the Building are from 7:00 am. To
6:00 p.m. Monday through Friday, excluding nationally recognized standard
holidays. All other hours are deemed "After-Hours."
18. Tenant shall not canvass or solicit other tenants in the Building
and Tenant shall cooperate to prevent any such canvassing and/or solicitation.
Canvassing and peddling in the Building is prohibited. Tenant shall not obtain
for use in the Premises food, beverage, shoe-shine or other services except as
expressly permitted by Landlord.
19. Landlord reserves the right to exclude or expel from the Building
any person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs, has no legitimate purpose to be in the Building,
or is violating the rules and regulations of the Building.
20. The requirements of Tenant will be attended to only upon
application to Landlord's designated property manager. Tenant acknowledges that
employees of Landlord shall have no obligation to perform work for Tenant or do
anything outside their regular duties for Tenant unless under special
instructions from Landlord, and that no employee will have any obligation to
admit any person (Tenant or otherwise) to any office of Landlord, without
specific instructions from Landlord.
21. No vending machines of any description shall be installed,
maintained, or operated by Tenant upon the Premises or in the Building, without
the prior written consent of Landlord.
22. Tenant agrees that it shall comply with all fire and security
regulations that may be issued from time to time by Landlord, and Tenant shall
also provide Landlord with the name of a designated responsible employee to
represent Tenant in all matters pertaining to such fire or security regulations.
76
23. Tenant shall not install any radio or television antenna,
loudspeaker or other device on the roof or exterior xxxxx of the Building.
Tenant shall not interfere with broadcasting or reception from or in the
Building or elsewhere.
24. Tenant shall store its trash and garbage within the Premises or in
other facilities designated by Landlord. Tenant shall not place in any trash
receptacle any material which cannot be disposed of in the ordinary practice of
trash disposal. All trash and garbage disposal shall be made pursuant to
directions issued from time to time by Landlord.
25. Landlord may waive any one or more of the rules end regulations as
to any tenant without being construed as having waived same as to any other
tenant.
26. Tenant shall be responsible for the observance of the rules and
regulations by Tenant's employees, agents, customers, invitees and guests.
27. Landlord reserves the right upon written notice to Tenant, to
rescind, after or waive any rule or regulation at any time prescribed for the
Building, or to establish additional rules and regulations when, in Landlord's
sole judgment, it is necessary, desirable or proper for the best interest of the
Building and its tenants.
28. The rules and regulations shall be administered fairly by Landlord
and Landlord shall not enforce them in a discriminatory manner as between the
tenants of the Building.
77
EXHIBIT G
EXHIBIT G HAS BEEN INTENTIONALLY OMITTED.
EXHIBIT H
EXHIBIT G HAS BEEN INTENTIONALLY OMITTED.
