Exhibit 10.3
ORIGINAL LEASE AGREEMENT
between
5300 SOUTH Associates, LLC as "Landlord"
and THE ▇▇▇▇▇▇▇ GROUP as "Tenant"
BASIC LEASE INFORMATION
Lease Date: For identification purposes only, the date of this Lease is dated
January 8, 1998.
Landlord: 5300 South Associates, LLC, a California limited liability company
Tenant: Envision Career Services, LLC dba The ▇▇▇▇▇▇▇ Group
Project: The US West Dex Center
Building Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Rentable Area of Building: Approximately 136,608 square feet
Premises: Floor: ▇▇▇ ▇▇▇▇▇; ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇; ▇▇▇▇▇ #▇▇▇ = Approximately
2,174 square feet ("Existing Premises"); Suite #450 = Approximately 7,071 square
feet ("Additional Premises")
Term: 60 full calendar months (plus any partial month at the beginning of the
Term)
Commencement Date: May 1, 1998
Expiration Date: The last day of the 60th lull calendar month in the Term
Base Rent per month:
Period Suite 475 (2174 RSF) Suite 450 (7,071 RSF) Total (9,254 RSF)
5/1/98 - 4/30/99 $3,261.00 ($18.00/yr) $11,785.00 ($20.00/yr) $15,046.00/mo
5/1/99 - 4/30/00 $3,442.17 ($19.00/yr) $12,374.25 ($21.00/yr) $15,816.42/mo
5/1/00 - 4/30/01 $3,623.34 ($20.00/yr) $12,963.50 ($22.00/yr) $16,586.84/mo
5/1/01 - 4/30/02 $4,166.83 ($23.00/yr) $13,552.75 ($23.00/yr) $17,719.58/mo
5/1/02 - 4/30/03 $4,348.00 ($24.00/yr) $14,142.00 ($24.00/yr) $18,490.00/mo
Base Year: Existing Premises = 1994 Calendar Year; Additional Premises = 1998
Calendar Year
Tenant's Share: Existing Premises = 1.59%; Additional Premises = 5.18%
Security Deposit: None - Personally guaranteed by principals
Landlord's Address for Payment: 5300 South Associates, LLC, File73 224, ▇.▇. ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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Business Hours: 8:00 am to 6:00 p.m., Monday through Friday (excluding holidays)
Saturday 8:00 am to 2:00 p.m. (excluding holidays)
Landlord's Address for Notices: 5300 South Associates, LLC do ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ &
Associates ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: General
Counsel; with a copy to: 5300 South Associates, LLC do ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ &
Associates ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; Attn: Building Management
Office
Tenant's Address for Notices: The ▇▇▇▇▇▇▇ Group, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Access Card Deposit: $5.00 per card
Broker(s): None
Guarantor(s): ▇.▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Property Manager: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Associates
Exhibit A: The Premises
Exhibit B: Construction Rider
Exhibit C: Building Rules
Exhibit D: Additional Provisions (Parking)
Exhibit E: Guaranty (personally guaranteed by principals)
The Basic Lease Information set forth above is part of the Lease. In the event
of any conflict between any provision in the Basic Lease Information and the
Lease, the Lease shall control.
THIS LEASE is made as of the Lease Date set forth in the Basic Lease
Information, by and between the Landlord identified in the Basic Lease
Information ("Landlord"), and the Tenant identified in the Basic Lease
Information ("Tenant"). Landlord and Tenant hereby agree as follows:
1. PREMISES. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, upon the terms and subject to the conditions of this Lease, the office
space identified in the Basic Lease Information as the Premises (the
"Premises"), in the Building located at the address specified in the Basic Lease
Information (the "Building"). The approximate configuration and location of the
Premises is shown on Exhibit A. Landlord and Tenant agree that the rentable area
of the Premises for all purposes under this Lease shall be the Rentable Area
specified in the Basic Lease Information. The Building, together with the
parking facilities serving the Building (the "Parking Facility"), and the
parcel(s) of land on which the Building and the Parking Facility are situated
(collectively, the "Property"), is part of the Project identified in the Basic
Lease Information (the "Project").
2. TERM; POSSESSION; AND EARLY TERMINATION OF
EXISTING LEASE; AND EARLY TERMINATION OF EXISTING LEASE.
(a) The term of this Lease (the "Term") shall commence on the Commencement Date
as described below and, unless sooner terminated, shall expire on the Expiration
Date set forth in the Basic Lease Information (the "Expiration Date"). The
"Commencement Date" shall be January 1, 1998.
(b) Reference is herein made to that certain Office Building Lease dated
November 1, 1993, as amended by a First Amendment to Lease dated October 4, 1996
(together, the "Existing Lease") by and between ▇▇▇▇▇ Forum Limited Partnership
(the "Original Landlord") and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "Original Tenant") for
approximately 2,174 rentable square feet of space in the Building. Landlord is
successor in interest to Original Landlord. Tenant is successor in interest to
Original Tenant. Notwithstanding the terms and conditions contained in the
Existing Lease, the Term of the Existing Lease shall terminate upon the
Commencement Date of this Lease. Tenant shall remain liable for all obligations
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of Tenant accruing through the termination date of the Existing Lease, including
the payment of Basic Rental, Operating Expenses and taxes.
3. RENT.
3.1 Base Rent. Tenant agrees to pay to Landlord the Base Rent set forth in the
Basic Lease Information, without prior notice or demand, on the first day of
each and every calendar month during the Term, except that Base Rent for the
first lull calendar month in which Base Rent is payable shall be paid upon
Tenant's execution of this Lease and Base Rent for any partial month at the
beginning of the Term shall be paid on the Commencement Date. Base Rent for any
partial month at the beginning or end of the Term shall be prorated based on the
actual number of days in the month.
If the Basic Lease Information provides for any change in Base Rent by reference
to years or months (without specifying particular dates), the change will take
effect on the applicable annual or monthly anniversary of the Commencement Date
(which won't necessarily be the first day of a calendar month).
3.2 Additional Rent: Increases in Operating Costs and Taxes.
(a) Definitions.
(1) "Base Operating Costs" means Operating Costs for the calendar year specified
as the Base Year in the Basic Lease Information (excluding therefrom, however,
any Operating Costs of a nature that would not ordinarily be incurred on an
annual, recurring basis).
(2) "Base Taxes" means Taxes for the calendar year specified as the Base Year in
the Basic Lease Information.
(3) "Operating Costs" means all costs of managing, operating, maintaining and
repairing the Property, including all costs, expenditures, fees and charges for:
(A) Operation, maintenance and repair of the Property (including maintenance,
repair and replacement of glass, the roof covering or membrane, and
landscaping); (13)utilities and services (including telecommunications
facilities and equipment, recycling programs and trash removal), and associated
supplies and materials; (C) compensation (including employment taxes and fringe
benefits) for persons who perform duties in connection with the operation,
management, maintenance and repair of the Building, such compensation to be
appropriately allocated for persons who also perform duties unrelated to the
Building; (D) property (including coverage for earthquake and flood if carried
by Landlord), liability, rental income and other insurance relating to the
Property, and expenditures for deductible amounts paid under such insurance; (E)
licenses, permits and inspections; (F) complying with the requirements of any
law, statute, ordinance or governmental rule or regulation or any orders
pursuant thereto (collectively "Laws"); (G) amortization of capital improvements
required to comply with Laws, or which are intended to reduce Operating Costs or
improve the utility, efficiency or capacity of any Building System, with
interest on the unamortized balance at the rate paid by Landlord on funds
borrowed to finance such capital improvements (or, if Landlord finances such
improvements out of Landlord's funds without borrowing, the rate that Landlord
would have paid to borrow such funds, as reasonably determined by Landlord),
over such useful life as Landlord shall reasonably determine; (H) an office in
the Project for the management of the Property, including expenses of furnishing
and equipping such office and the rental value of any space occupied for such
purposes; (I) property management fees; (J) accounting, legal and other
professional services incurred in connection with the operation of the Property
and the calculation of Operating Costs and Taxes; (K) a reasonable allowance for
depreciation on machinery and equipment used to maintain the Property and on
other personal property owned by Landlord in the Property (including window
coverings and carpeting in common areas); (L) contesting the validity or
applicability of any Laws that may affect the Property; (M) the Building's share
of any shared or common area maintenance fees and expenses (including costs and
expenses of operating, managing, owning and maintaining the Parking Facility and
the common areas of the Project and any fitness center or conference center in
the Project); and (N) any other cost, expenditure, fee or charge, whether or not
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hereinbefore described, which in accordance with generally accepted property
management practices would be considered an expense of managing, operating,
maintaining and repairing the Property. Operating Costs for any calendar year
during which average occupancy of the Building is less than one hundred percent
(100%) shall be calculated based upon the Operating Costs that would have been
incurred if the Building had an average occupancy of one hundred percent (100%)
during the entire calendar year.
Operating Costs shall not include (i) capital improvements (except as otherwise
provided above); (ii) costs of special services rendered to individual tenants
(including Tenant) for which a special charge is made; (iii) interest and
principal payments on loans or indebtedness secured by the Building; (iv) costs
of improvements for Tenant or other tenants of the Building; (v) costs of
services or other benefits of a type which are not available to Tenant but which
are available to other tenants or occupants, and costs for which Landlord is
reimbursed by other tenants of the Building other than through payment of
tenants' shares of increases in Operating Costs and Taxes; (vi) leasing
commissions, attorneys' fees and other expenses incurred in connection with
leasing space in the Building or enforcing such leases; (vii) depreciation or
amortization, other than as specifically enumerated in the definition of
Operating Costs above; and (vi ii) costs, fines or penalties incurred due to
Landlord's violation of any Law.
(4) "Taxes" means: all real property taxes and general, special or district
assessments or other governmental impositions, of whatever kind, nature or
origin, imposed on or by reason of the ownership or use of the Property;
governmental charges, fees or assessments for transit or traffic mitigation
(including area-wide traffic improvement assessments and transportation system
management fees), housing, police, fire or other governmental service or
purported benefits to the Property; personal property taxe assessed on the
personal property of Landlord used in the operation of the Property; service
payments in lieu of taxes and taxes and assessments of every kind and nature
whatsoever levied or assessed in addition to, in lieu of or in substitution for
existing or additional real or personal property taxes on the Property or the
personal property described above; any increases in the foregoing caused by
changes in assessed valuation, tax rate or other factors or circumstances; and
the reasonable cost of contesting by appropriate proceedings the amount or
validity of any taxes, assessments or charges described above. To the extent
paid by Tenant or other tenants as "Tenant's Taxes" (as defined in Section 8
Tenant's Taxes), "Tenant's Taxes" shall be excluded from Taxes.
(5) "Tenant's Share" means the Rentable Area of the Premises divided by the
total Rentable Area of the Building, as set forth in the Basic Lease
Information. If the Rentable Area of the Building is changed or the Rentable
Area of the Premises is changed by Tenant's leasing of additional space
hereunder or for any other reason, Tenant's Share shall be adjusted accordingly.
(b) Additional Rent.
(1) Tenant shall pay Landlord as "Additional Rent" for each calendar year or
portion thereof during the Term Tenant's Share of the sum of (x) the amount (if
any) by which Operating Costs for such period exceed Base Operating Costs, and
(y) the amount (if any) by which Taxes for such period exceed Base Taxes.
(2) Prior to the end of the Base Year and each calendar year thereafter,
Landlord shall notify' Tenant of Landlord's estimate of Operating Costs, Taxes
and Tenant's Additional Rent for the following calendar year. Commencing on the
first day of January of each calendar year and continuing on the first day of
every month thereafter in such year, Tenant shall pay to Landlord one-twelfth
(1/12th) of the estimated Additional Rent. If Landlord thereafter estimates that
Operating Costs or Taxes for such year will vary from Landlord's prior estimate,
Landlord may, by notice to Tenant, revise the estimate for such year (and
Additional Rent shall thereafter be payable based on the revised estimate).
(3) As soon as reasonably practicable after the end of the Base Year and each
calendar year thereafter, Landlord shall furnish Tenant a statement with respect
to such year, showing Operating Costs, Taxes and Additional Rent for the year,
and the total payments made by Tenant with respect thereto. Unless Tenant raises
any objections to Landlord's statement within ninety (90) days after receipt of
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the same, such statement shall conclusively be deemed correct and Tenant shall
have no right thereafter to dispute such statement or any item therein or the
computation of Additional Rent based thereon. If Tenant does object to such
statement, then Landlord shall provide Tenant with reasonable verification of
the figures shown on the statement and the parties shall negotiate in good faith
to resolve any disputes. Any objection of Tenant to Landlord's statement and
resolution of any dispute shall not postpone the time for payment of any amounts
due Tenant or Landlord based on Landlord's statement, nor shall any failure of
Landlord to deliver Landlord's statement in a timely manner relieve Tenant of
Tenant's obligation to pay any amounts due Landlord based on Landlord's
statement.
(4) If Tenant's Additional Rent as finally determined for any calendar year
exceeds the total payments made by Tenant on account thereof, Tenant shall pay
Landlord the deficiency within ten (10) days of Tenant's receipt of Landlord's
statement. If the total payments made by Tenant on account thereof exceed
Tenant's Additional Rent as finally determined for such year, Tenant's excess
payment shall be credited toward the rent next due from Tenant under this Lease.
For any partial calendar year at the beginning or end of the Term, Additional
Rent shall be prorated on the basis of a 365-day year by computing Tenant's
Share of the increases in Operating Costs and Taxes for the entire year and then
prorating such amount for the number of days during such year included in the
Term. Notwithstanding the termination of this Lease, Landlord shall pay to
Tenant or Tenant shall pay to Landlord, as the case may be, within ten (10) days
after Tenant's receipt of Landlord's final statement for the calendar year in
which this Lease terminates, the difference between Tenant's Additional Rent for
that year, as finally determined by Landlord, and the total amount previously
paid by Tenant on account thereof
If for any reason Base Taxes or Taxes for any year during the Term are reduced,
refunded or otherwise changed, Tenant's Additional Rent shall be adjusted
accordingly. If Taxes are temporarily reduced as a result of space in the
Building being leased to a tenant that is entitled to an exemption from property
taxes or other taxes, then for purposes of determining Additional Rent for each
year in which Taxes are reduced by any such exemption, Taxes for such year shall
be calculated on the basis of the amount the Taxes for the year would have been
in the absence of the exemption. The obligations of Landlord to refund any
overpayment of Additional Rent and of Tenant to pay any Additional Rent not
previously paid shall survive the expiration of the Term. Notwithstanding
anything to the contrary in this Lease, if there is at any time a decrease in
Taxes below the amount of the Taxes for the Base Year, then for purposes of
calculating Additional Rent for the year in which such decrease occurs and all
subsequent periods, Base Taxes shall be reduced to equal the Taxes for the year
in which the decrease occurs.
3.3 Payment of Rent. All amounts payable or reimbursable by Tenant under this
Lease, including late charges and interest (collectively, "Rent"), shall
constitute rent and shall be payable and recoverable as rent in the manner
provided in this Lease. All sums payable to Landlord on demand under the terms
of this Lease shall be payable within ten (10) days after notice from Landlord
of the amounts due. All rent shall be paid without offset, recoupment or
deduction in lawful money of the United States of America to Landlord at
Landlord's Address for Payment of Rent as set forth in the Basic Lease
Information, or to such other person or at such other place as Landlord may from
time to time designate.
4. SECURITY DEPOSIT. On execution of this Lease, Tenant shall deposit with
Landlord the amount specified in the Basic Lease Information as the Security
Deposit, if any (the "Security Deposit"), as security for the performance of
Tenant's obligations under this Lease. Landlord may (but shall have no
obligation to) use the Security Deposit or any portion thereof to cure any Event
of Default under this Lease or to compensate Landlord for any damage Landlord
incurs as a result of Tenant's failure to perform any of Tenant's obligations
hereunder. In such event Tenant shall pay to Landlord on demand an amount
sufficient to replenish the Security Deposit. If Tenant is not in default at the
expiration or termination of this Lease, Landlord shall return to Tenant the
Security Deposit or the balance thereof then held by Landlord and not applied as
provided above. Landlord may commingle the Security Deposit with Landlord's
general and other funds. Landlord shall not be required to pay interest on the
Security Deposit to Tenant.
5. USE AND COMPLIANCE WITH LAWS.
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5.1 Use. The Premises shall be used and occupied for general business office
purposes and for no other use or purpose. Tenant shall comply with all present
and future Laws relating to Tenant's use or occupancy of the Premises (and make
any repairs, alterations or improvements as required to comply with all such
Laws), and shall observe the "Building Rules" (as defined in Section 27 - Rules
and Regulations). Tenant shall not do, bring, keep or sell anything in or about
the Premises that is prohibited by, o that will cause a cancellation of or an
increase in the existing premium for, any insurance policy covering the Property
or any part thereof. Tenant shall not permit the Premises to be occupied or used
in any manner that will constitute waste or a nuisance, or disturb the quiet
enjoyment of or otherwise annoy other tenants in the Building. Without limiting
the foregoing, the Premises shall not be used for educational activities,
practice of medicine or any of the healing arts, providing social services, for
any governmental use (including embassy or consulate use), or for personnel
agency, customer service office, studios for radio, television or other media,
travel agency or reservation center operations or uses. Tenant shall not,
without the prior consent of Landlord, (i) bring into the Building or the
Premises anything that may cause substantial noise, odor or vibration, overload
the floors in the Premises or the Building or any of the heating, ventilating
and air-conditioning ("HVAC"), mechanical, elevator, plumbing, electrical, fire
protection, life safety, security or other Systems in the Building ("Building
Systems"), or jeopardize the structural integrity of the Building or any part
thereof; (ii) connect to the utility systems of the Building any apparatus,
machinery or other equipment other than typical office equipment; or (iii)
connect to any electrical circuit in the Premises any equipment or other load
with aggregate electrical power requirements in excess of 80% of the rated
capacity of the circuit.
5.2 Hazardous Materials.
(a) Definitions.
(1) "Hazardous Materials" shall mean any substance: (A) that now or in the
future is regulated or governed by, requires investigation or remediation under,
or is defined as a hazardous waste, hazardous substance, pollutant or
contaminant under any governmental statute, code, ordinance, regulation, rule or
order, and any amendment thereto, including the Comprehensive Environmental
Response Compensation and Liability Act, 42 U.S.C. ss.9601 et seq., and the
Resource Conservation and Recovery Act, 42 U.S.C. ss.69 et seq., or (B) that is
toxic, explosive, corrosive, flammable, radioactive, carcinogenic, dangerous or
otherwise hazardous, including gasoline, diesel fuel, petroleum hydrocarbons,
polychlorinated biphenyls (?CBs), asbestos, radon and urea formaldehyde foam
insulation.
(2) "Environmental Requirements" shall mean all present and future Laws, orders,
permits, licenses, approvals, authorizations and other requirements of any kind
applicable to Hazardous Materials
(3) "Handled by Tenant" and "Handling by Tenant" shall mean and refer to any
installation, handling, generation, storage, use, disposal, discharge, release,
abatement, removal, transportation, or any other activity of any type by Tenant
or its agents, employees, contractors, licensees, assignees, sublessees,
transferees or representatives (collectively, "Representatives") or its guests,
customers, invitees, or visitors (collectively, "Visitors"), at or about the
Premises in connection with or involving Hazardous
Materials.
(4) "Environmental Losses" shall mean all costs and expenses of any kind,
damages, including foreseeable and unforeseeable consequential damages, fines
and penalties incurred in connection with any violation of and compliance with
Environmental Requirements and all losses of any kind attributable to the
diminution of value, loss of use or adverse effects on marketability or use of
any portion of the Premises or Property.
(b) Tenant's Covenants. No Hazardous Materials shall be Handled by Tenant at or
about the Premises or Property without Landlord's prior written consent, which
consent may be granted, denied, or conditioned upon compliance with Landlord's
requirements, all in Landlord's absolute discretion. Notwithstanding the
foregoing, normal quantities and use of those Hazardous Materials customarily
used in the conduct of general office activities, such as copier fluids and
cleaning supplies ("Permitted Hazardous Materials"), may be used and stored at
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the Premises without Landlord's prior written consent, provided that Tenant's
activities at or about the Premises and Property and the Handling by Tenant of
all Hazardous Materials shall comply at all times with all Environmental
Requirements. At the expiration or termination of the Lease, Tenant shall
promptly remove from the Premises and Property all Hazardous Materials Handled
by Tenant at the Premises or the Property. Tenant shall keep Landlord frilly and
promptl informed of all Handling by Tenant of Hazardous Materials other than
Permitted Hazardous Materials. Tenant shall be responsible and liable for the
compliance with all of the provisions of this Section by all of Tenant's
Representatives and Visitors, and all of Tenant's obligations under this Section
(including its indemnification obligations under paragraph (e) below) shall
survive the expiration or termination of this Lease.
(c) Compliance. Tenant shall at Tenant's expense promptly take all actions
required by any governmental agency or entity in connection with or as a result
of the Handling by Tenant of Hazardous Materials at or about the Premises or
Property, including inspection and testing, performing all cleanup, removal and
remediation work required with respect to those Hazardous Materials, complying
with all closure requirements and post-closure monitoring, and filing all
required reports or plans. All of the foregoing work and all Handling by Tenant
of all Hazardous Materials shall be performed in a good, safe and workmanlike
manner by consultants qualified and licensed to undertake such work and in a
manner that will not interfere with any other tenant's quiet enjoyment of the
Property or Landlord's use, operation, leasing and sale of the Property. Tenant
shall deliver to Landlord prior to delivery to any governmental agency, or
promptly after receipt from any such agency, copies of all permits, manifests,
closure or remedial action plans, notices, and all other documents relating to
the Handling by Tenant of Hazardous Materials at or about the Premises or
Property. If any lien attaches to the Premises or the Property in connection
with or as a result of the Handling by Tenant of Hazardous Materials, and Tenant
does not cause the same to be released, by payment, bonding or otherwise, within
ten (10) days after the attachment thereof, Landlord shall have the right but
not the obligation to cause the same to be released and any sums expended by
Landlord (plus Landlord's administrative costs) in connection therewith shall be
payable by Tenant on demand.
(d) Landlord's Rights. Landlord shall have the right, but not the obligation, to
enter the Premises at any reasonable time (i) to confirm Tenant's compliance
with the provisions of this Section 5.2, and (ii) to perform Tenant's
obligations under this Section if Tenant has failed to do so after reasonable
notice to Tenant. Landlord shall also have the right to engage qualified
Hazardous Materials consultants to inspect the Premises and review the Handling
by Tenant of Hazardous Materials, including review of all permits, reports,
plans, and other documents regarding same. Tenant shall pay to Landlord on
demand the costs of Landlord's consultants' fees and all costs incurred by
Landlord in performing Tenant's obligations under this Section. Landlord shall
use reasonable efforts to minimize any interference with Tenant's business
caused by Landlord's entry into the Premises, but Landlord shall not be
responsible for any interference caused thereby.
(e) Tenant's Indemnification. Tenant agrees to indemnify, defend, protect and
hold harmless Landlord and its partners or members and its or their partners,
members, directors, officers, shareholders, employees and agents from all
Environmental Losses and all other claims, actions, losses, damages,
liabilities, costs and expenses of every kind, including reasonable attorneys',
experts' and consultants' fees and costs, incurred at any time and arising from
or in connection with the Handling by Tenant of Hazardous Materials at or about
the Property or Tenant's failure to comply in frill with all Environmental
Requirements with respect to the Premises.
6. TENANT IMPROVEMENTS & ALTERATIONS.
6.1 Landlord and Tenant shall perform their respective obligations with respect
to design and construction of any improvements to be constructed and installed
in the Premises (the "Tenant Improvements"), as provided in the Construction
Rider. Except for any Tenant Improvements to be constructed by Tenant as
provided in the Construction Rider, Tenant shall not make any alterations,
improvements or changes to the Premises, including installation of any security
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system or telephone or data communication wiring, ("Alterations"), without
Landlord's prior written consent. Any such Alterations shall be completed by
Tenant at Tenant's sole cost and expense: (i) with due diligence, in a good and
workmanlike manner, using new materials; (ii) in compliance with plans and
specifications approved by Landlord; (iii) in compliance with the construction
rules and regulations promulgated by Landlord from time to time; (iv) in
accordance with all applicable Laws (including all work, whether structural or
non-structural inside or outside the Premises, required to comply frilly with
all applicable Laws and necessitated by Tenant's work); and (v) subject to all
conditions which Landlord may in Landlord's discretion impose. such conditions
may include requirements for Tenant to: (i) provide payment or performance bonds
or additional insurance (from Tenant or Tenant's contractors, subcontractors or
design professionals); (ii) use contractors or subcontractors designated by
Landlord; and (iii) remove all or part of the Alterations prior to or upon
expiration or termination of the Term, as designated by Landlord. If any work
outside the Premises, or any work on or adjustment to any of the Building
Systems, is required in connection with or as a result of Tenant's work, such
work shall be performed at Tenant's expense by contractors designated by
Landlord. Landlord's right to review and approve (or withhold approval of)
Tenant's plans, drawings, specifications, contractor(s) and other aspects of
construction work proposed by Tenant is intended solely to protect Landlord, the
Property and Landlord's interests. No approval or consent by Landlord shall be
deemed or construed to be a representation or warranty by Landlord as to the
adequacy, sufficiency, fitness or suitability thereof or compliance thereof with
applicable Laws or other requirements. Except as otherwise provided in
Landlord's consent, all Alterations shall upon installation become part of the
realty and be the property of Landlord.
6.2 Before making any Alterations, Tenant shall submit to Landlord for
Landlord's prior approval reasonably detailed final plans and specifications
prepared by a licensed architect or engineer, a copy of the construction
contract, including the name of the contractor and all subcontractors proposed
by Tenant to make the Alterations and a copy of the contractor's license. Tenant
shall reimburse Landlord upon demand for any expenses incurred by Landlord in
connection with any Alterations made by Tenant, including reasonable fees
charged by Landlord's contractors or consultants to review plans and
specifications prepared by Tenant and to update the existing as-built plans and
specifications of the Building to reflect the Alterations. Tenant shall obtain
all applicable permits, authorizations and governmental approvals and deliver
copies of the same to Landlord before commencement of any Alterations.
6.3 Tenant shall keep the Premises and the Property free and clear of all liens
arising out of any work performed, materials furnished or obligations incurred
by Tenant. If any such lien attaches to the Premises or the Property, and Tenant
does not cause the same to be released by payment, bonding or otherwise within
ten (10) days after the attachment thereof; Landlord shall have the right but
not the obligation to cause the same to be released, and any sums expended by
Landlord (plus Landlord's administrative costs) in connection therewith shall be
payable by Tenant on demand with interest thereon from the date of expenditure
by Landlord at the Interest Rate (as defined in Section 16.2 - Interest). Tenant
shall give Landlord at least ten (10) days' notice prior to the commencement of
any Alterations and cooperate with Landlord in posting and maintaining notices
of non-responsibility in connection therewith.
6.4 Subject to the provisions of Section 5 - Use and Compliance with Laws and
the foregoing provisions of this Section, Tenant may install and maintain
furnishings, equipment, movable partitions, business equipment and other trade
fixtures ("Trade Fixtures") in the Premises, provided that the Trade Fixtures do
not become an integral part of the Premises or the Building. Tenant shall
promptly repair any damage to the Premises or the Building caused by any
installation or removal of such Trade Fixtures.
7. MAINTENANCE AND REPAIRS
7.1 By taking possession of the Premises
Tenant agrees that the Premises are then in a good and tenantable condition.
During the Term, Tenant at Tenant's expense but under the direction of Landlord,
shall repair and maintain the Premises, including the interior walls, floor
coverings, ceiling (ceiling tiles and grid), Tenant Improvements, Alterations,
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fire extinguishers, outlets and fixtures, and any appliances (including
dishwashers, hot water heaters and garbage disposers) in the Premises, in a
first class condition, and keep the Premises in a clean, safe and orderly
condition.
7.2 Landlord shall maintain or cause to be maintained in reasonably good order,
condition and repair, the structural portions of the roof, foundations, floors
and exterior walls of the Building, the Building Systems, and the public and
common areas of the Property, such as elevators, stairs, corridors and
restrooms; provided, however, that Tenant shall pay the cost of repairs for any
damage occasioned by Tenant's use of the Premises or the Property or any act or
omission of Tenant or Tenant's Representatives or Visitors, to the extent (if
any) not covered by Landlord's property insurance. Landlord shall be under no
obligation to inspect the Premises. Tenant shall promptly report in writing to
Landlord any defective condition known to Tenant which Landlord is required to
repair. As a material part of the consideration for this Lease, Tenant hereby
waives any benefits of any applicable existing or future Law that allows a
tenant to make repairs at its landlord's expense.
7.3 Landlord hereby reserves the right, at any time and from time to time,
without liability to Tenant, and without constituting an eviction, constructive
or otherwise, or entitling Tenant to any abatement of rent or to terminate this
Lease or otherwise releasing Tenant from any of Tenant's obligations under this
Lease:
(a) To make alterations, additions, repairs, improvements to or in or to
decrease the size of area of all or any part of the Building, the fixtures and
equipment therein, and the Building Systems;
(b) To change the Building's name or street address;
(c) To install and maintain any and all signs on the exterior and interior of
the Building;
(d) To reduce, increase, enclose or otherwise change at any time and from time
to time the size, number, location, lay-out and nature of the common areas
(including the Parking Facility) and other tenancies and premises in the
Property and to create additional rentable areas through use or enclosure of
common areas; and
(e) If any governmental authority promulgates or revises any Law or imposes
mandatory or voluntary controls or guidelines on Landlord or the Property
relating to the use or conservation of energy or utilities or the reduction of
automobile or other emissions or reduction or management of traffic or parking
on the Property (collectively "Controls"), to comply with such Controls, whether
mandatory or voluntary, or make any alterations to the Property related thereto.
8. TENANT'S TAXES. "Tenant's Taxes" shall mean (a) all taxes, assessments,
license fees and other governmental charges or impositions levied or assessed
against or with respect to Tenant's personal property or Trade Fixtures in the
Premises, whether any such imposition is levied directly against Tenant or
levied against Landlord or the Property, (b) all rental, excise, sales or
transaction privilege taxes arising Out of this Lease (excluding, however, state
and federal personal or corporate income taxes measured by the income of
Landlord from all sources) imposed by any taxing authority upon Landlord or upon
Landlord's receipt of any rent payable by Tenant pursuant to the terms of this
Lease ("Rental Tax"), and (c) any increase in Taxes attributable to inclusion of
a value placed on Tenant's personal property, Trade Fixtures or Alterations.
Tenant shall pay any Rental Tax to Landlord in addition to and at the same time
as Base Rent is payable under this Lease, and shall pay all other Tenant's Taxes
befor delinquency (and, at Landlord's request, shall furnish Landlord
satisfactory evidence thereof). If Landlord pays Tenant's Taxes or any portion
thereof, Tenant shall reimburse Landlord upon demand for the amount of such
payment, together with interest at the Interest Rate from the date of Landlord's
payment to the date of Tenant's reimbursement.
9. UTILITIES AND SERVICES.
9.1 Description of Services. Landlord shall furnish to the Premises: reasonable
amounts of heat, ventilation and air-conditioning during the Business Hours
specified in the Basic Lease Information ("Business Hours") on weekdays except
public holidays ("Business Days"); reasonable amounts of electricity; and
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janitorial services five days a week (except public holidays). Landlord shall
also provide the Building with normal fluorescent tube replacement, window
washing, elevator service, and common area toile room supplies. Any additional
utilities or services that Landlord may agree to provide (including lamp or tube
replacement for other than Building Standard lighting fixtures) shall be at
Tenant's sole expense.
9.2 Payment for Additional Utilities and
Services.
(a) Upon request by Tenant in accordance with the procedures established by
Landlord from time to time for furnishing HVAC service at times other than
Business Hours on Business Days, Landlord shall furnish such service to Tenant
and Tenant shall pay for such services on an hourly basis at the then prevailing
rate established for the Building by Landlord.
(b) If the temperature otherwise maintained in any portion of the Premises by
the HVAC systems of the Building is affected as a result of (i) any lights,
machines or equipment used by Tenant in the Premises, or (ii) the occupancy of
the Premises by more than one person per 150 square feet of rentable area, then
Landlord shall have the right to install any machinery or equipment reasonably
necessary to restore the temperature, including modifications to the standard
air-conditioning equipment. The cost of any such equipment and modifications,
including the cost of installation and any additional cost of operation and
maintenance of the same, shall be paid by Tenant to Landlord upon demand.
(c) If Tenant's usage of electricity, water or any other utility service exceeds
the use of such utility Landlord determines to be typical, normal and customary
for the Building, Landlord may determine the amount of such excess use by any
reasonable means (including the installation at Landlord's request but at
Tenant's expense of a separate meter or other measuring device) and charge
Tenant for the cost of such excess usage. In addition, Landlord may impose a
reasonable charge for the use of any additional or unusual janitorial services
required by Tenant because of any unusual Tenant Improvements or Alterations,
the carelessness of Tenant or the nature of Tenant's business (including hours
of operation).
9.3 Interruption of Services. In the event of an interruption in or failure or
inability to provide any services or utilities to the Premises or Building for
any reason (a "Service Failure"), such Service Failure shall not, regardless of
its duration, impose upon Landlord any liability whatsoever, constitute an
eviction of Tenant, constructive or otherwise, entitle Tenant to an abatement of
rent or to terminate this Lease or otherwise release Tenant from any of Tenant's
obligations under this Lease. Tenan hereby waives any benefits of any applicable
existing or future Law permitting the termination of this Lease due to such
interruption, failure or inability.
10. EXCULPATION AND INDEMNIFICATION
10.1 Landlord's Indemnification of Tenant. Landlord shall indemnify, protect,
defend and hold Tenant harmless from and against any claims, actions,
liabilities, damages, costs or expenses, including reasonable attorneys' fees
and costs incurred in defending against the same ("Claims") asserted by any
third party against Tenant for loss, injury or damage, to the extent such loss,
injury or damage is caused by the willful misconduct or negligent acts or
omissions of Landlord or its authorized representatives.
10.2 Tenant's Indemnification of Landlord. Tenant shall indemnify, protect,
defend and hold Landlord and Landlord's authorized representatives harmless from
and against Claims arising from (a) the acts or omissions of Tenant or Tenant's
Representatives or Visitors in or about the Property, or (b) any construction or
other work undertaken by Tenant on the Premises (including any design defects),
or (c) any breach or default under this Lease by Tenant, or (d) any loss, injury
or damage, howsoever and by whomsoever caused, to any person or property,
occurring in or about the Premises during the Term, excepting only Claims
described in this clause (d) to the extent they are caused by the willful
misconduct or negligent acts or omissions of Landlord or its authorized
representatives.
10.3 Damage to Tenant and Tenant's Property. Landlord shall not be liable to
Tenant for any loss, injury or other damage to Tenant or to Tenant's property in
or about the Premises or the Property from any cause (including defects in the
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Property or in any equipment in the Property; fire, explosion or other casualty;
bursting, rupture, leakage or overflow of any plumbing or other pipes or lines,
sprinklers, tanks, drains, drinking fountains or washstands in, above, or about
the Premises or the Property; or acts of other tenants in the Property). Tenant
hereby waives all claims against Landlord for any such loss, injury or damage
and the cost and expense of defending against claims relating thereto, including
any loss, injury or damage caused by Landlord's negligence (active or passive)
or willful misconduct. Notwithstanding any other provision of this Lease to the
contrary, in no event shall Landlord be liable to Tenant for any punitive or
consequential damages or damages for loss of business by Tenant.
10.4 Survival. The obligations of the parties under this Section 10 shall
survive the expiration or termination of this Lease.
11 INSURANCE. 11.1 Tenant's Insurance.
(a) Liability Insurance. Tenant shall maintain in frill force throughout the
Term, commercial general liability insurance providing coverage on an occurrence
form basis with limits of not less than Two Million Dollars ($2,000,000.00) each
occurrence for bodily injury and property damage combined, Two Million Dollars
($2,000,000.00) annual general aggregate, and Two Million Dollars
($2,000,000.00) products and completed operations annual aggregate. Tenant's
liability insurance policy or policies shall: (i) include premises and
operations liability coverage, products and completed operations liability
coverage, broad form property damage coverage including completed operations,
blanket contractual liability coverage including, to the maximum extent
possible, coverage for the indemnification obligations of Tenant under this
Lease, and personal and advertising injury coverage; (ii) provide that the
insurance company has the duty to defend all insureds under the policy; (iii)
provide that defense costs are paid in addition to and do not deplete any of the
policy limits; (iv) cover liabilities arising Out of or incurred in connection
with Tenant's use or occupancy of the Premises or the Property; (v) extend
coverage to cover liability for the actions of Tenant's Representatives and
Visitors; and (iv) designate separate limits for the Property. Each policy of
liability insurance required by this Section shall:
(i) contain a cross liability endorsement or separation of insureds clause; (ii)
provide that any waiver of subrogation rights or release prior to a loss does
not void coverage; (iii) provide that it is primary to and not contributing
with, any policy of insurance carried by Landlord covering the same loss; (iv)
provide that any failure to comply with the reporting provisions shall not
affect coverage provided to Landlord, its partners, property managers and
Mortgagees; and (v) name Landlord, its partners the Property Manager identified
in the Basic Lease Information (the "Property Manager"), and such other parties
in interest as Landlord may from time to time reasonably designate to Tenant in
writing, as additional insureds. Such additional insureds shall be provided at
least the same extent of coverage as is provided to Tenant under such policies.
All endorsements effecting such additional insured status shall be at least as
broad as additional insured endorsement form number CG 20 11 ii 85 promulgated b
the Insurance Services Office.
(b) Property Insurance. Tenant shall at all times maintain in effect with
respect to any Alterations and Tenant's Trade Fixtures and personal property,
commercial property insurance providing coverage, on an "all risk" or "special
form" basis, in an amount equal to at least 90% of the full replacement cost of
the covered property. Tenant may carry such insurance under a blanket policy,
provided that such policy provides coverage equivalent to a separate policy.
During the Term, the proceeds from any such policies of insurance shall be used
for the repair or replacement of the Alterations, Trade Fixtures and personal
property so insured. Landlord shall be provided coverage under such insurance to
the extent of its insurable interest and, if requested by Landlord, both
Landlord and Tenant shall sign all documents reasonably necessary or proper in
connection with the settlement of any claim or loss under such insurance.
Landlord will have no obligation to carry insurance on any Alterations or on
Tenant's Trade Fixtures or personal property.
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(c) Requirements For All Policies. Each policy of insurance required under this
Section 1 shall: (i) be in a form, and written by an insurer, reasonably
acceptable to Landlord, (ii) be maintained at Tenant's sole cost and expense,
and (iii) require at least thirty (30) days' written notice to Landlord prior to
any cancellation, nonrenewable or modification of insurance coverage. Insurance
companies issuing such policies shall have rating classifications of "A" or
better and financial size category ratings of "VII" or better according to the
latest edition of the A.M. Best Key Rating Guide. All insurance companies
issuing such policies shall be admitted carriers licensed to do business in the
state where the Property is located. Any deductible amount under such insurance
shall not exceed $5,000. Tenant shall provide to Landlord, upon request,
evidence that the insurance required to be carried by Tenant pursuant to this
Section, including any endorsement effecting the additional insured status, is
in lull force and effect and that premiums therefor have been paid.
(d) Updating Coverage. Tenant shall increase the amounts of insurance as
required by any Mortgagee, and, not more frequently than once every three (3)
years, as recommended by Landlord's insurance broker, if, in the opinion of
either of them, the amount of insurance then required under this Lease is not
adequate. Any limits set forth in this Lease on the amount or type of coverage
required by Tenant's insurance shall not limit the liability of Tenant under
this Lease.
(e) Certificates of Insurance. Prior to occupancy of the Premises by Tenant, and
not less than thirty (30) days prior to expiration of any policy thereafter,
Tenant shall furnish to Landlord a certificate of insurance reflecting that the
insurance required by this Section is in force, accompanied by an endorsement
showing the required additional insureds satisfactory to Landlord in substance
and form. Notwithstanding the requirements of this paragraph, Tenant shall at
Landlord's request provide to Landlor a certified copy of each insurance policy
required to be in force at any time pursuant to the requirements of this Lease
or its Exhibits.
11.2 Landlord's Insurance. During the Term, to the extent such coverage's are
available at a commercially reasonable cost, Landlord shall maintain in effect
insurance on the Building with responsible insurers, on an "all risk" or
"special form" basis, insuring the Building and the Tenant Improvements in an
amount equal to at least 90% of the replacement cost thereof, excluding land,
foundations, footings and underground installations. Landlord may, but shall not
be obligated to, carry insurance against additional perils and/or in greater
amounts.
11.3 Mutual Waiver of Right of Recovery & Waiver of Subrogation. Landlord and
Tenant each hereby waive any right of recovery against each other and the
partners, managers, members, shareholders, officers, directors and authorized
representatives of each other for any loss or damage that is covered by any
policy of property insurance maintained by either party (or required by this
Lease to be maintained) with respect to the Premises or the Property or any
operation therein, regardless of cause, including negligence (active or passive)
of the party benefiting from the waiver. If any such policy of insurance
relating to this Lease or to the Premises or the Property does not permit the
foregoing waiver or if the coverage under any such policy would be invalidated
as a result of such waiver, the party maintaining such policy shall obtain from
the insurer under such policy a waiver of all right of recovery by way of
subrogation against either party in connection with any claim, loss or damage
covered by such policy.
12. DAMAGE OR DESTRUCTION.
12.1 Landlord's Duty to repair.
(a) If all or a substantial part of the Premises are rendered untenantable or
inaccessible by damage to all or any part of the Property from fire or other
casualty then, unless either party is entitled to and elects to terminate this
Lease pursuant to Sections 12.2 - Landlord's Right to Terminate and 12.3 -
Tenant's Right to Terminate, Landlord shall, at its expense, use reasonable
efforts to repair and restore the Premises and/or the Property, as the case may
be, to substantially their former condition t the extent permitted by then
applicable Laws; provided, however, that in no event shall Landlord have any
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obligation for repair or restoration beyond the extent of insurance proceeds
received by Landlord for such repair or restoration, or for any of Tenant's
personal property, Trade Fixtures or Alterations.
(b) If Landlord is required or elects to repair damage to the Premises and/or
the Property, this Lease shall continue in effect, but Tenant's Base Rent and
Additional Rent shall be abated with regard to any portion of the Premises that
Tenant is prevented from using by reason of such damage or its repair from the
date of the casualty until substantial completion of Landlord's repair of the
affected portion of the Premises as required under this Lease. In no event shall
Landlord be liable to Tenant by reason of any injury to or interference with
Tenant's business or property arising from fire or other casualty or by reason
of any repairs to any part of the Property necessitated by such casualty.
12.2 Landlord's Right to Terminate. Landlord may elect to terminate this Lease
following damage by fire or other casualty under the following circumstances:
(a) If, in the reasonable judgment of Landlord, the Premises and the Property
cannot be substantially repaired and restored under applicable Laws within one
(1) year from the date of the casualty;
(b) If, in the reasonable judgment of Landlord, adequate proceeds are not, for
any reason, made available to Landlord from Landlord's insurance policies
(and/or from Landlord's funds made available for such purpose, at Landlord's
sole option) to make the required repairs;
(c) If the Building is damaged or destroyed to the extent that, in the
reasonable judgment of Landlord, the cost to repair and restore the Building
would exceed twenty-five percent (25%) of the frill replacement cost of the
Building, whether or not the Premises are at all damaged or destroyed; or
(d) If the fire or other casualty occurs during the last year of the Term.
If any of the circumstances described in subparagraphs (a), (b), (c) or (d) of
this Section 12.2 occur or arise, Landlord shall give Tenant notice within one
hundred and twenty (120) days after the date of the casualty, specifying whether
Landlord elects to terminate this Lease as provided above and, if not,
Landlord's estimate of the time required to complete Landlord's repair
obligations under this Lease.
12.3 Tenant's Right to Terminate. If all or a substantial part of the Premises
are rendered untenantable or inaccessible by damage to all or any part of the
Property from fire or other casualty, and Landlord does not elect to terminate
as provided above, then Tenant may elect to terminate this Lease if Landlord's
estimate of the time required to complete Landlord's repair obligations under
this Lease is greater than one (1) year, in which event Tenant may elect to
terminate this Lease by giving Landlord notice of such election to terminate
within thirty (30) days after Landlord's notice to Tenant pursuant to Section
12.2 - Landlord's Right to Terminate.
12.4 Waiver. Landlord and Tenant each hereby waive the provisions of any
applicable existing or future Law permitting the termination of a lease
agreement in the event of damage or destruction under any circumstances other
than as provided in Sections 12.2 - Landlord's Right to Terminate and 12.3 -
Tenant's Right to Terminate.
13. CONDEMNATION.
13.1 Definitions.
(a) "Award" shall mean all compensation, sums, or anything of value awarded,
paid or received on a total or partial Condemnation.
(b) "Condemnation" shall mean (i) a permanent taking (or a temporary taking for
a period extending beyond the end of the Term) pursuant to the exercise of the
power of condemnation or eminent domain by any public or quasi-public authority,
private corporation or individual having such power ("Condemnor"), whether by
legal proceedings or otherwise, or (ii) a voluntary sale or transfer by Landlord
to any such authority, either under threat of condemnation or while legal
proceedings for condemnation are pending.
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(c) "Date of Condemnation" shall mean the earlier of the date that title to the
property taken is vested in the Condemnor or the date the Condemnor has the
right to possession of the property being condemned.
13.2 Effect on Lease.
(a) If the Premises are totally taken by Condemnation, this Lease shall
terminate as of the Date of Condemnation. If a portion but not all of the
Premises is taken by Condemnation, this Lease shall remain in effect; provided,
however, that if the portion of the Premises remaining after the Condemnation
will be unsuitable for Tenant's continued use, then upon notice to Landlord
within thirty (30) days after Landlord notifies Tenant of the Condemnation,
Tenant may terminate this Lease effective as of the Date of
Condemnation.
(b) If twenty-five percent (25%) or more of the Project or of the parcel(s) of
land on which the Building is situated or of the Parking Facility or of the
floor area in the Building is taken by Condemnation, or if as a result of any
Condemnation the Building is no longer reasonably suitable for use as an office
building, whether or not any portion of the Premises is taken, Landlord may
elect to terminate this Lease, effective as of the Date of Condemnation, by
notice to Tenant within thirty (30) days afte the Date of
Condemnation.
(c) If all or a portion of the Premises is temporarily taken by a Condemnor for
a period not extending beyond the end of the Term, this Lease shall remain in
lull force and effect.
13.3 Restoration. If this Lease is not terminated as provided in Section 13.2 -
Effect on Lease, Landlord, at its expense, shall diligently proceed to repair
and restore the Premises to substantially its former condition (to the extent
permitted by then applicable Laws) and/or repair and restore the Building to an
architecturally complete office building; provided, however, that Landlord's
obligations to so repair and restore shall be limited to the amount of any Award
received by Landlord and not require to be paid to any Mortgagee (as defined in
Section 20.2 below). In no event shall Landlord have any obligation to repair or
replace any improvements in the Premises beyond the amount of any Award received
by Landlord for such repair or to repair or replace any of Tenant's personal
property, Trade Fixtures, or Alterations.
13.4 Abatement and Reduction of Rent. If any portion of the Premises is taken in
a Condemnation or is rendered permanently untenantable by repairs necessitated
by the Condemnation, and this Lease is not terminated, the Base Rent and
Additional Rent payable under this Lease shall be proportionally reduced as of
the Date of Condemnation based upon the percentage of rentable square feet in
the Premises so taken or rendered permanently untenantable. In addition, if this
Lease remains in effect following a Condemnation and Landlord proceeds to repair
and restore the Premises, the Base Rent and Additional Rent payable under this
Lease shall be abated during the period of such repair or restoration to the
extent such repairs prevent Tenant's use of the Premises.
13.5 Awards. Any Award made shall be paid to Landlord, and Tenant hereby assigns
to Landlord, and waives all interest in or claim to, any such Award, including
any claim for the value of the unexpired Term; provided, however, that Tenant
shall be entitled to receive, or to prosecute a separate claim for, an Award for
a temporary taking of the Premises or a portion thereof by a Condemnor where
this Lease is not terminated (to the extent such Award relates to the unexpired
Term), or an Award or portion thereof separately designated for relocation
expenses or the interruption of or damage to Tenant's business or as
compensation for Tenant's personal property, Trade Fixtures or Alterations.
13.6 Waiver. Landlord and Tenant each hereby waive the provisions of any
applicable existing or future Law allowing either party to petition for a
termination of this Lease upon a partial taking of the Premises and/or the
Property.
14. ASSIGNMENT AND SUBLETTING.
14.1 Landlord's Consent Required. Tenant shall not assign this Lease or any
interest therein, or sublet or license or permit the use or occupancy of the
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Premises or any part thereof by or for the benefit of anyone other than Tenant,
or in any other manner transfer all or any part of Tenant's interest under this
Lease (each and all a "Transfer"), without the prior written consent of
Landlord, which consent (subject to the other provisions of this Section (4)
shall not be unreasonably withheld. If Tenant is a business entity, any direct
or indirect transfer of fifty percent (50%) or more of the ownership interest of
the entity (whether in a single transaction or in the aggregate through more
than one transaction) shall be deemed a Transfer. Notwithstanding any provision
in this Lease to the contrary, Tenant shall not mortgage, pledge, hypothecate or
otherwise encumber this Lease or all or any part of Tenant's interest under this
Lease.
14.2 Reasonable Consent.
(a) Prior to any proposed Transfer, Tenant shall submit in writing to Landlord
(i) the name and legal composition of the proposed assignee, subtenant, user or
other transferee (each a "Proposed Transferee"); (ii) the nature of the business
proposed to be carried on in the Premises; (iii) a current balance sheet, income
statements for the last two years and such other reasonable financial and other
information concerning the Proposed Transferee as Landlord may request; and (iv)
a copy of the proposed assignment, sublease or other agreement governing the
proposed Transfer. Within fifteen (15) Business Days after Landlord receives all
such information it shall notify Tenant whether it approves or disapproves such
Transfer or if it elects to proceed under Section 14.7 - Landlord's Right to
Space.
(b) Tenant acknowledges and agrees that, among other circumstances for which
Landlord could reasonably withhold consent to a proposed Transfer, it shall be
reasonable for Landlord to withhold consent where (i) the Proposed Transferee
does not intend itself to occupy the entire portion of the Premises assigned or
sublet, (ii) Landlord reasonably disapproves of the Proposed Transferee's
business operating ability or history, reputation or creditworthiness or the
character of the business to be conducted by the Proposed Transferee at the
Premises, (iii) the Proposed Transferee is a governmental agency or unit or an
existing tenant in the Project, (iv) the proposed Transfer would violate any
"exclusive" rights of any tenants in the Project, (v) Landlord or Landlord's
agent has shown space in the Building to the Proposed Transferee or responded to
any inquiries from the Proposed Transferee or the Proposed Transferee's agent
concerning availability of space in the Building, at any time within the
preceding nine months, or (vi) Landlord otherwise determines that the proposed
Transfer would have the effect of decreasing the value of the Building or
increasing the expenses associated with operating, maintaining and repairing the
Property. In no event may Tenant publicly offer or advertise all or any portion
of the Premises for assignment or sublease at a rental less than that then
sought by Landlord for a direct lease (non-sublease) of comparable space in the
Project.
14.3 Excess Consideration. If Landlord consents to the Transfer, Tenant shall
pay to Landlord as additional rent, within ten (10) days after receipt by
Tenant, any consideration paid by any transferee (the "Transferee") for the
Transfer, including, in the case of a sublease, the excess of the rent and other
consideration payable by the subtenant over the amount of Base Rent and
Additional Rent payable hereunder applicable to the subleased space.
14.4 No Release Of Tenant. No consent by Landlord to any Transfer shall relieve
Tenant of any obligation to be performed by Tenant under this Lease, whether
occurring before or after such consent, assignment, subletting or other
Transfer. Each Transferee shall be jointly and severally liable with Tenant (and
Tenant shall be jointly and severally liable with each Transferee) for the
payment of rent (or, in the case of a sublease, rent in the amount set forth in
the sublease) and for the performance of all other terms and provisions of this
Lease. The consent by Landlord to any Transfer shall not relieve Tenant or any
such Transferee from the obligation to obtain Landlord's express prior written
consent to any subsequent Transfer by Tenant or any Transferee. The acceptance
of rent by Landlord from any other person (whether or not such person is an
occupant of the Premises) shall not be deemed to be a waiver by Landlord of any
provision of this Lease or to be a consent to any Transfer.
14.5 Expenses and Attorneys' Fees. Tenant shall pay to Landlord on demand all
costs and expenses (including reasonable attorneys' fees) incurred by Landlord
in connection with
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reviewing or consenting to any proposed Transfer (including any request for
consent to, or any waiver of Landlord's rights in connection with, any security
interest in any of Tenant's property at the Premises).
14.6 Effectiveness of Transfer. Prior to the date on which any permitted
Transfer (whether or not requiring Landlord's consent) becomes effective, Tenant
shall deliver to Landlord a counterpart of the frilly executed Transfer document
and Landlord's standard form of Consent to Assignment or Consent to Sublease
executed by Tenant and the Transferee in which each of Tenant and the Transferee
confirms its obligations pursuant to this Lease. Failure or refusal of a
Transferee to execute any such instrument shall not release or discharge the
Transferee from liability as provided herein. The voluntary, involuntary or
other surrender of this Lease by Tenant, or a mutual cancellation by Landlord
and Tenant, shall not work a merger, and any such surrender or cancellation
shall, at the option of Landlord, either terminate all or any existing subleases
or operate as an assignment to Landlord of any or all of such subleases.
14.7 Landlord's Right to Space. Notwithstanding any of the above provisions of
this Section to the contrary, if Tenant notifies Landlord that it desires to
enter into a Transfer, Landlord, in lieu of consenting to such Transfer, may
elect (x) in the case of an assignment or a sublease of the entire Premises, to
terminate this Lease, or (y) in the case of a sublease of less than the entire
Premises, to terminate this Lease as it relates to the space proposed to be
subleased by Tenant. In such event, this Lease will terminate (or the space
proposed to be subleased will be removed from the Premises subject to this Lease
and the Base Rent and Tenant's Share under this Lease shall be proportionately
reduced) on the date the Transfer was proposed to be effective, and Landlord may
lease such space to any party, including the prospective Transferee identified
by Tenant.
14.8 Assignment of Sublease Rents. Tenant hereby absolutely and irrevocably
assigns to Landlord any and all rights to receive rent and other consideration
from any sublease and agrees that Landlord, as assignee or as attorney-in-fact
for Tenant for purposes hereof, or a receiver for Tenant appointed on Landlord's
application may (but shall not be obligated to) collect such rents and other
consideration and apply the same toward Tenant's obligations to Landlord under
this Lease; provided, however, that Landlord grants to Tenant at all times prior
to occurrence of any breach or default by Tenant a revocable license to collect
such rents (which license shall automatically and without notice be and be
deemed to have been revoked and terminated immediately upon any Event of
Default).
15. DEFAULT AND REMEDIES.
15.1 Events of Default. The occurrence of any of the following shall constitute
an "Event of Default" by Tenant:
(a) Tenant fails to make any payment of rent when due, or any amount required to
replenish the security deposit as provided in Section 4 above, if payment in
frill is not received by Landlord within three (3) days after written notice
that it is due.
(b) Tenant abandons the Premises.
(c) Tenant fails timely to deliver any subordination document, estoppel
certificate or financial statement requested by Landlord within the applicable
time period specified in Sections 20 - Encumbrances - and 21 - Estoppel
Certificates and Financial Statements -below.
(d) Tenant violates the restrictions on Transfer set forth in Section 14
-Assignment and Subletting.
(e) Tenant ceases doing business as a going concern; makes an assignment for the
benefit of creditors; is adjudicated an insolvent, files a petition (or files an
answer admitting the material allegations of a petition) seeking relief under
any under any state or federal bankruptcy or other statute, law or regulation
affecting creditors' rights; all or substantially all of Tenant's assets are
subject to judicial seizure or attachment and are not released within 30 days,
or Tenant consents to or acquiesces in the appointment of a trustee, receiver or
liquidator for Tenant or for all or any substantial part of Tenant's assets.
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(f) Tenant fails, within ninety (90) days after the commencement of any
proceedings against Tenant seeking relief under any state or federal bankruptcy
or other statute, law or regulation affecting creditors' rights, to have such
proceedings dismissed, or Tenant fails, within ninety (90) days after an
appointment, without Tenant's consent or acquiescence, of any trustee, receiver
or liquidator for Tenant or for all or any substantial part of Tenant's assets,
to have such appointment vacated.
(g) Tenant fails to perform or comply with any provision of this Lease other
than those described in (a) through (f) above, and does not fully cure such
failure within fifteen (15) days after notice to Tenant or, if such failure
cannot be cured within such fifteen (15)-day period, Tenant fails within such
fifteen (15)-day period to commence, and thereafter diligently proceed with, all
actions necessary to cure such failure as soon as reasonably possible but in all
events within ninety (90) days of such notice; provided, however, that if
Landlord in Landlord's reasonable judgment determines that such failure cannot
or will not be cured by Tenant within such ninety (90) days, then such failure
shall constitute an Event of Default immediately upon such notice to Tenant.
15.2 Remedies. Upon the occurrence of an Event of Default, Landlord shall have
the following remedies, which shall not be exclusive but shall be cumulative and
shall be in addition to any other remedies now or hereafter allowed by law.
(a) Landlord may terminate Tenant's right to possession of the Premises at any
time by written notice to Tenant. Tenant expressly acknowledges that in the
absence of such written notice from Landlord, no other act of Landlord,
including re-entry into the Premises, efforts to relet the Premises, reletting
of the Premises for Tenant's account, storage of Tenant's personal property and
Trade Fixtures, acceptance of keys to the Premises from Tenant or exercise of
any other rights and remedies under this Section, shall constitute an acceptance
of Tenant's surrender of the Premises or constitute a termination of this Lease
or of Tenant's right to possession of the Premises. Upon such termination in
writing of Tenant's right to possession of the Premises, as herein provided,
this Lease shall terminate and Landlord shall be entitled to recover damages
from Tenant as provided in any applicable existing or future Law providing for
recovery of damages for such breach, including the worth at the time of award of
the amount by which the rent which would be payable by Tenant hereunder for the
remainder of the Term after the date of the award of damages, including
Additional Rent as reasonably estimated by Landlord, exceeds the amount of such
rental loss as Tenant proves could have been reasonably avoided, discounted at
the discount rate published by the Federal Reserve Bank of San Francisco for
member banks at the time of the award plus one percent (1%).
(b) Landlord shall have the remedy described in applicable law Landlord may
continue this Lease in effect after Tenant's breach and abandonment and recover
rent as it becomes due, if Tenant has the right to sublet or assign, subject
only to reasonable limitations).
(c) Landlord may cure the Event of Default at Tenant's expense. If Landlord pays
any sum or incurs any expense in curing the Event of Default, Tenant shall
reimburse Landlord upon demand for the amount of such payment or expense with
interest at the Interest Rate from the date the sum is paid or the expense is
incurred until Landlord is reimbursed by Tenant.
(d) Landlord may remove all Tenant's property from the Premises, and such
property may be stored by Landlord in a public warehouse or elsewhere at the
sole cost and for the account of Tenant. If Landlord does not elect to store any
or all of Tenant's property left in the Premises, Landlord may consider such
property to be abandoned by Tenant, and Landlord may thereupon dispose of such
property in any manner deemed appropriate by Landlord. Any proceeds realized by
Landlord on the disposal of any such property shall be applied first to offset
all expenses of storage and sale, then credited against Tenant's outstanding
obligations to Landlord under this Lease, and any balance remaining after
satisfaction of all obligations of Tenant under this Lease shall be delivered to
Tenant.
16. LATE CHARGE AND INTEREST.
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16.1 Late Charge. If any payment of rent is not received by Landlord when due,
Tenant shall pay to Landlord on demand as a late charge an additional amount
equal to four percent (4%) of the overdue payment. A late charge shall not be
imposed more than once on any particular installment not paid when due, but
imposition of a late charge on any payment not made when due does not eliminate
or supersede late charges imposed on other (prior) payments not made when due or
preclude imposition of a late charge on other installments or payments not made
when due.
16.2 Interest. In addition to the late charges referred to above, which are
intended to defray Landlord's costs resulting from late payments, any payment
from Tenant to Landlord not paid when due shall at Landlord's option bear
interest from the date due until paid to Landlord by Tenant at the rate of
fifteen percent (15%) per annum or the maximum lawful rate that Landlord may
charge to Tenant under applicable laws, whichever is less (the "Interest Rate").
Acceptance of any late charge and/or interest shall not constitute a waiver of
Tenant's default with respect to the overdue sum or prevent Landlord from
exercising any of its other rights and remedies under this Lease.
17. WAIVER. No provisions of this Lease shall be deemed waived by Landlord
unless such waiver is in a writing signed by Landlord. The waiver by Landlord of
any breach of any provision of this Lease shall not be deemed a waiver of such
provision or of any subsequent breach of the same or any other provision of this
Lease. No delay or omission in the exercise of any right or remedy of Landlord
upon any default by Tenant shall impair such right or remedy or be construed as
a waiver. Landlord's acceptance of any payments of rent due under this Lease
shall not be deemed a waiver of any default by Tenant under this Lease
(including Tenant's recurrent failure to timely pay rent) other than Tenant's
nonpayment of the accepted sums, and no endorsement or statement on any check or
payment or in any letter or document accompanying any check or payment shall be
deemed an accord and satisfaction. Landlord's consent to or approval of any act
by Tenant requiring Landlord's consent or approval shall not be deemed to waiv
or render unnecessary Landlord's consent to or approval of any subsequent act by
Tenant.
18. ENTRY, INSPECTION AND CLOSURE. Upon reasonable oral or written notice to
Tenant (and without notice in emergencies), Landlord and its authorized
representatives may enter the Premises at all reasonable times to: (a) determine
whether the Premises are in good condition, (b) determine whether Tenant is
complying with its obligations under this Lease, (c) perform any maintenance or
repair of the Premises or the Building that Landlord has the right or obligation
to perform, (d) install or repair improvements for other tenants where access to
the Premises is required for such installation or repair, (e) serve, post or
keep posted any notices required or allowed under the provisions of this Lease,
(D show the Premises to prospective brokers, agents, buyers, transferees,
Mortgagees or tenants, or (g) do any other act or thing necessary for the safety
or preservation of the Premises or the Building. When reasonably necessary
Landlord may temporarily close entrances, doors, corridors, elevators or other
facilities in the Building without liability to Tenant by reason of such
closure. Landlord shall conduct its activities under this Section in a manner
that will minimize inconvenience to Tenant without incurring additional expense
to Landlord. In no event shall Tenant be entitled to an abatement of rent on
account of any entry by Landlord, and Landlord shall not be liable in any manner
for any inconvenience, loss of business or other damage to Tenant or other
persons arising Out of Landlord's entry on the Premises in accordance with this
Section. No action by Landlord pursuant to this paragraph shall constitute an
eviction of Tenant, constructive or otherwise, entitle Tenant to an abatement of
rent or to terminate this Lease or otherwise release Tenant from any of Tenant's
obligations under this Lease.
19 SURRENDER AND HOLDING OVER.
19.1 Surrender. Upon the expiration or termination of this Lease, Tenant shall
surrender the Premises and all Tenant Improvements and Alterations to Landlord
broom-clean and in their original condition, except for reasonable wear and
tear, damage from casualty or condemnation and any changes resulting from
approved Alterations; provided, however, that prior to the expiration or
termination of this Lease Tenant shall remove all telephone and other cabling
installed in the Building by Tenant and remove from the Premises all Tenant's
personal property and any Trade Fixtures and all Alterations that Landlord has
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elected to require Tenant to remove as provided in Section 6.1 - Tenant
Improvements & Alterations, and repair any damage caused by such removal. If
such removal is not completed before the expiration or termination of the Term,
Landlord shall have the right (but no obligation) to remove the same, and Tenant
shall pay Landlord on demand for all costs of removal and storage thereof and
for the rental value of the Premises for the period from the end of the Term
through the end of the time reasonably required for such removal. Landlord shall
also have the right to retain or dispose of all or any portion of such property
if Tenant does not pay all such costs and retrieve the property within ten (10)
days after notice from Landlord (in which event title to all such property
described in Landlord's notice shall be transferred to and vest in Landlord).
Tenant waives all Claims against Landlord for any damage or loss to Tenant
resulting from Landlord's removal, storage, retention, or disposition of any
such property. Upon expiration or termination of this Lease or of Tenant's
possession, whichever is earliest, Tenant shall surrender all keys to the
Premises or any other part of the Building and shall deliver to Landlord all
keys for or make known to Landlord the combination of locks on all safes,
cabinets and vaults that may be located in the Premises. Tenant's obligations
under this Section shall survive the expiration or termination of this Lease.
19.2 Holding Over. If Tenant (directly or through any Transferee or other
successor-in-interest of Tenant) remains in possession of the Premises after the
expiration or termination of this Lease, Tenant's continued possession shall be
on the basis of a tenancy at the sufferance of Landlord. No act or omission by
Landlord, other than its specific written consent, shall constitute permission
for Tenant to continue in possession of the Premises, and if such consent is
given or declared to have been given by court judgment, Landlord may terminate
Tenant's holdover tenancy at any time upon seven (7) days written notice. In
such event, Tenant shall continue to comply with or perform all the terms and
obligations of Tenant under this Lease, except that the monthly Base Rent during
Tenant's holding over shall be twice the Base Rent payable in the last frill
month prior to the termination hereof Acceptance by Landlord of rent after such
termination shall not constitute a renewal or extension of this Lease; and
nothing contained in this provision shall be deemed to waive Landlord's right of
re-entry or any other right hereunder or at law. Tenant shall indemnify, defend
and hold Landlord harmless from and against all Claims arising or resulting
directly or indirectly from Tenant's failure to timely surrender the Premises,
including (i) any rent payable by or any loss, cost, or damages claimed by any
prospective tenant of the Premises, and (ii) Landlord's damages as a result of
such prospective tenant rescinding o refusing to enter into the prospective
lease of the Premises by reason of such failure to timely surrender the
Premises.
20 ENCUMBRANCES
20.1 Subordination. This Lease is expressly made subject and subordinate to any
mortgage, deed of trust, ground lease, underlying lease or like encumbrance
affecting any part of the Property or any interest of Landlord therein which is
now existing or hereafter executed or recorded ("Encumbr3nce"); provided,
however, that such subordination shall only be effective, as to future
Encumbrances, if the holder of the Encumbrance agrees that this Lease shall
survive the termination of the Encumbrance by lapse o time, foreclosure or
otherwise so long as Tenant is not in default under this Lease. Provided the
conditions of the preceding sentence are satisfied, Tenant shall execute and
deliver to Landlord, within ten (10) days after written request therefor by
Landlord and in a form reasonably requested by Landlord, any additional
documents evidencing the subordination of this Lease with respect to any such
Encumbrance and the nondisturbance agreement of the holder of any such
Encumbrance. If the interest of Landlord in the Property is transferred pursuant
to or in lieu of proceedings for enforcement of any Encumbrance, Tenant shall
immediately and automatically attorn to the new owner, and this Lease shall
continue in full force and effect as a direct lease between the transferee and
Tenant on the terms and conditions set forth in this Lease.
20.2 Mortgagee Protection. Tenant agrees to give any holder of any Encumbrance
covering any part of the Property ("Mortgagee"), by registered mail, a copy of
any notice of default served upon Landlord, provided that prior to such notice
Tenant has been notified in writing (by way of notice of assignment of rents and
leases, or otherwise) of the address of such Mortgagee. If Landlord shall have
failed to cure such default within thirty (30) days from the effective date of
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such notice of default, then the Mortgagee shall have an additional thirty (30)
days within which to cure such default or if such default cannot be cured within
that time, then such additional time as may be necessary to cure such default
(including the time necessary to foreclose or otherwise terminate its
Encumbrance, if necessary to effect such cure), and this Lease shall not be
terminated so long as such remedies are being diligently pursued.
21. ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS.
21.1 Estoppel Certificates. Within ten (10) days after written request therefor,
Tenant shall execute and deliver to Landlord, in a form provided by or
satisfactory to Landlord, a certificate stating that this Lease is in ill force
and effect, describing any amendments or modifications hereto, acknowledging
that this Lease is subordinate or prior, as the case may be, to any Encumbrance
and stating any other information Landlord may reasonably request, including the
Term, the monthly Base Rent, the date to which Rent has been paid, the amount of
any security deposit or prepaid rent, whether either party hereto is in default
under the terms of the Lease, and whether Landlord has completed its
construction obligations hereunder (if any). Tenant irrevocably constitutes,
appoints and authorizes Landlord as Tenant's special attorney-in-fact for such
purpose to complete, execute and deliver such certificate if Tenant fails timely
to execute and deliver such certificate as provided above. Any person or entity
purchasing, acquiring an interest in or extending financing with respect to the
Property shall be entitled to rely upon any such certificate. If Tenant fails to
deliver such certificate within ten (10) days after Landlord's second written
request therefor, Tenant shall be liable to Landlord for any damages incurred by
Landlord including any profits or other benefits from any financing of the
Property or any interest therein which are lost or made unavailable as a result,
directly or indirectly, of Tenant' failure or refusal to timely execute or
deliver such estoppel certificate.
21.2 Financial Statements. Within ten (10) days after written request therefor,
but not more than once a year, Tenant shall deliver to Landlord a copy of the
financial statements (including at least a year end balance sheet and a
statement of profit and loss) of Tenant (and of each guarantor of Tenant's
obligations under this Lease) for each of the three most recently completed
years, prepared in accordance with generally accepted accounting principles
(and, if such is Tenant's normal practice, audited by an independent certified
public accountant), all then available subsequent interim statements, and such
other financial information as may reasonably be requested by Landlord or
required by any Mortgagee.
22. NOTICES. Any notice, demand, request, consent or approval that either party
desires or is required to give to the other party under this Lease shall be in
writing and shall be served personally, delivered by messenger or courier
service, or sent by U.S. certified mail, return receipt requested, postage
prepaid, addressed to the other party at the party's address for notices set
forth in the Basic Lease Information. Any notice required pursuant to any Laws
may be incorporated into, given concurrently with or given separately from any
notice required under this Lease. Notices shall be deemed to have been given and
be effective on the earlier of (a) receipt (or refusal of delivery or receipt);
or (b) one (1) day after acceptance by the independent service for delivery, if
sent by independent messenger or courier service, or three (3) days after
mailing if sent by mail in accordance with this Section. Either party may change
its address for notices hereunder, effective fifteen (15) days after notice to
the other party complying with this Section. If Tenant sublets the Premises,
notices from Landlord shall be effective on the subtenant when given to Tenant
pursuant to this Section.
23. ATTORNEYS' FEES. In the event of any dispute between Landlord and Tenant in
any way related to this Lease, the non-prevailing party shall pay to the
prevailing party all reasonable attorneys' fees and costs and expenses of any
type incurred by the prevailing party in connection with any action or
proceeding (including any appeal and the enforcement of any judgment or award),
whether or not the dispute is litigated or prosecuted to final judgment. The
"prevailing party" shall be determined based upon a assessment of which party's
major arguments or positions taken in the action or proceeding could fairly be
said to have prevailed (whether by compromise, settlement, abandonment by the
other party of its claim or defense, final decision, after any appeals, or
otherwise) over the other party's major arguments or positions on major disputed
issues.
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24. QUIET POSSESSION. Subject to Tenant's full and timely performance of all of
Tenant's obligations under this Lease and subject to the terms of this Lease,
including Section 20 -Encumbrances, Tenant shall have the quiet possession of
the Premises throughout the Term as against any persons or entities lawfully
claiming by, through or under Landlord.
25. SECURITY MEASURES. Landlord may, but shall be under no obligation to,
implement security measures for the Property, such as the registration or search
of all persons entering or leaving the Building, requiring identification for
access to the Building, evacuation of the Building for cause, suspected cause,
or for drill purposes, the issuance of magnetic pass cards or keys for Building
or elevator access and other actions that Landlord deems necessary or
appropriate to prevent any threat of property loss or damage, bodily injury or
business interruption; provided, however, that such measures shall be
implemented in a way as not to inconvenience tenants of the Building
unreasonably. If Landlord uses an access card system, Landlord may require
Tenant to pay Landlord a deposit for each after-hours Building access card
issued to Tenant, in the amount specified in the Basic Lease Information. Tenant
shall be responsible for any loss, theft or breakage of any such cards, which
must be returned by Tenant to Landlord upon expiration or earlier termination of
the Lease. Landlord may retain the deposit for any card not so returned.
Landlord shall at all times have the right to change, alter or reduce any such
security services or measures. Tenant shall cooperate and comply with, and cause
Tenant's Representatives and Visitors to cooperate and comply with, such
security measures. Landlord, its agents and employees shall have no liability to
Tenant or its Representatives or Visitors for the implementation or exercise of,
or the failure to implement or exercise, any such security measures or for any
resulting disturbance of Tenant's use or enjoyment of the Premises.
26. FORCE MAJEURE. If Landlord is delayed, interrupted or prevented from
performing any of its obligations under this Lease, including its obligations
under the Construction Rider (if any), and such delay, interruption or
prevention is due to fire, act of God, governmental act or failure to act, labor
dispute, unavailability of materials or any cause outside the reasonable control
of Landlord, then the time for performance of the affected obligations of
Landlord shall be extended for a period equivalent t the period of such delay,
interruption or prevention.
27. RULES AND REGULATIONS. Tenant shall be bound by and shall comply with the
rules and regulations attached to and made a part of this Lease as Exhibit C to
the extent those rules and regulations are not in conflict with the terms of
this Lease, as well as any reasonable rules and regulations hereafter adopted by
Landlord for all tenants of the Building, upon notice to Tenant thereof
(collectively, the "Building Rules"). Landlord shall not be responsible to
Tenant or to any other person for any violation of, or failure to observe, the
Building Rules by any other tenant or other person.
28. LANDLORD'S LIABILITY. The term "Landlord," as used in this Lease, shall mean
only the owner or owners of the Building at the time in question. In the event
of any conveyance of title to the Building, then from and after the date of such
conveyance, the transferor Landlord shall be relieved of all liability with
respect to Landlord's obligations to be performed under this Lease after the
date of such conveyance. Notwithstanding any other term or provision of this
Lease, the liability of Landlord for it obligations under this Lease is limited
solely to Landlord's interest in the Building as the same may from time to time
be encumbered, and no personal liability shall at any time be asserted or
enforceable against any other assets of Landlord or against Landlord's partners
or members or its or their respective partners, shareholders, members,
directors, officers or managers on account of any of Landlord's obligations or
actions under this Lease.
29. CONSENTS AND APPROVALS.
29.1 Determination in Good Faith. Wherever the consent, approval, judgment or
determination of Landlord is required or permitted under this Lease, Landlord
may exercise its good faith business judgment in granting or withholding such
consent or approval or in making such judgment or determination without
reference to any extrinsic standard of reasonableness, unless the specific
provision contained in this Lease providing for such consent, approval, judgment
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or determination specifies that Landlord's consent or approval is not to be
unreasonably withheld, or that such judgment or determination is to be
reasonable, or otherwise specifies the standards under which Landlord may
withhold its consent. If it is determined that Landlord failed to give its
consent where it was required to do so under this Lease, Tenant shall be
entitled to injunctive relief but shall not to be entitled to monetary damages
or to terminate this Lease for such failure.
29.2 No Liability Imposed on Landlord. The review and/or approval by Landlord of
any item or matter to be reviewed or approved by Landlord under the terms of
this Lease or any Exhibits or Addenda hereto shall not impose upon Landlord any
liability for the accuracy or sufficiency of any such item or matter or the
quality or suitability of such item for its intended use. Any such review or
approval is for the sole purpose of protecting Landlord's interest in the
Property, and no third parties, including Tenant or the Representatives and
Visitors of Tenant or any person or entity claiming by, through or under Tenant,
shall have any rights as a consequence thereof
30. BROKERS. Landlord shall pay the fee or commission of the broker or brokers
identified in the Basic Lease Information (the "Broker") in accordance with
Landlord's separate written agreement with the Broker, if any. Tenant warrants
and represents to Landlord that in the negotiating or making of this Lease
neither Tenant nor anyone acting on Tenant's behalf has dealt with any broker or
finder who might be entitled to a fee or commission for this Lease other than
the Broker. Tenant shall indemnify and hol Landlord harmless from any claim or
claims, including costs, expenses and attorney's fees incurred by Landlord
asserted by any other broker or finder for a fee or commission based upon any
dealings with or statements made by Tenant or Tenant's Representatives.
31. RELOCATION OF PREMISES. For the purpose of maintaining an economical and
proper distribution of tenants acceptable to Landlord throughout the Project,
Landlord shall have the right from time to time during the Term to relocate the
Premises within the Project, provided that (a) the rentable and usable area of
the new Premises is of equivalent size to the existing Premises, subject to a
variation of up to ten percent (10%), (b) Landlord shall pay the cost of
providing tenant improvements in the new Premises, which shall be substantially
comparable in layout to those in the existing Premises, and (c) Landlord shall
pay reasonable costs (to the extent such costs are submitted in writing to
Landlord and approved in writing by Landlord prior to such move) of moving
Tenant's Trade Fixtures and personal property to the new Premises. Landlord
shall deliver to Tenant written notice of Landlord's election to relocate the
Premises, specifying the new location and the amount of rent payable therefor,
at least sixty (60) days prior to the date the relocation is to be effective.
32. ENTIRE AGREEMENT. This Lease, including the Exhibits and any Addenda
attached hereto, and the documents referred to herein, if any, constitute the
entire agreement between Landlord and Tenant with respect to the leasing of
space by Tenant in the Building, and supersede all prior or contemporaneous
agreements, understandings, proposals and other representations by or between
Landlord and Tenant, whether written or oral, all of which are merged herein.
Neither Landlord nor Landlord's agents have made an representations or
warranties with respect to the Premises, the Building, the Project or this Lease
except as expressly set forth herein, and no rights, easements or licenses shall
be acquired by Tenant by implication or otherwise unless expressly set forth
herein. The submission of this Lease for examination does not constitute an
option for the Premises and this Lease shall become effective as a binding
agreement only upon execution and delivery thereof by Landlord to Tenant.
33. MISCELLANEOUS. This Lease may not be amended or modified except by a writing
signed by Landlord and Tenant. Subject to Section 14 - Assignment and Subletting
and Section 28 - Landlord's Liability, this Lease shall be binding on and shall
inure to the benefit of the parties and their respective successors, assigns and
legal representatives. The determination that any provisions hereof may be void,
invalid, illegal or unenforceable shall not impair any other provisions hereof
and all such other provisions of this Lease shall remain in full force and
effect. The unenforceability, invalidity or illegality of any provision of this
Lease under particular circumstances shall not render unenforceable, invalid or
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illegal other provisions of this Lease, or the same provisions under other
circumstances. This Lease shall be construed and interpreted in accordance with
the laws (excluding conflict of laws principles) of the State in which the
Building is located. The provisions of this Lease shall be construed in
accordance with the fair meaning of the language used and shall not be strictly
construed against either party, even if such party drafted the provision in
question. When required by the context of this Lease, the singular includes the
plural. Wherever the term "including" is used in this Lease, it shall be
interpreted as meaning "including, but not limited to" the matter or matters
thereafter enumerated. The captions contained in this Lease are for purposes of
convenience only and are not to be used to interpret or construe this Lease. If
more than one person or entity is identified as Tenant hereunder, the
obligations of each and all of them under this Lease shall be joint and several.
Time is of the essence with respect to this Lease, except as to the conditions
relating to the delivery of possession of the Premises to Tenant. Neither
Landlord nor Tenant shall record this Lease.
34. AUTHORITY. If Tenant is a corporation, partnership, limited liability
company or other form of business entity, each of the persons executing this
Lease on behalf of Tenant warrants and represents that Tenant is a duly
organized and validly existing entity, that Tenant has full right and authority
to enter into this Lease and that the persons signing on behalf of Tenant are
authorized to do so and have the power to bind Tenant to this Lease. Tenant
shall provide Landlord upon request with evidence reasonably satisfactory to
Landlord confirming the foregoing representations.
IN WITNESS WHEREOF, Landlord and Tenant have entered into this Lease as of the
date first above written.
TENANT:
Envision Career Services, LLC dba The ▇▇▇▇▇▇▇ Group
By: /s/▇▇ ▇▇▇▇▇▇; Title: CEO
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇; Title: President
LANDLORD
5300 South Associates, LLC, a California limited liability company
By: Opportunity Capital Partners HI, LLC, a California limited liability company
By: /s/ Authorized Signatory
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