EXECUTED
ORIGINAL
OFFICE LEASE
THE WATER GARDEN
WATER GARDEN COMPANY L.L.C.,
a Delaware Limited Liability Company,
as Landlord,
and
INTERNATIONAL CAPITAL GROWTH, LTD,
a Delaware corporation,
as Tenant.
THE WATER GARDEN
SUMMARY OF BASIC LEASE INFORMATION
The undersigned hereby agree to the following terms of this Summary of
Basic Lease Information (the "Summary"). This Summary is hereby incorporated
into and made a part of the attached Office Lease (the "Office Lease") which
pertains to the "Project," as that term is defined in the Office Lease, commonly
known as "The Water Garden" located in Santa Monica, California. This Summary
and the Office Lease are collectively referred to herein as the "Lease". Each
reference in the Office Lease to any term of this Summary shall have the meaning
set forth in this Summary for such term. In the event of a conflict between the
terms of this Summary and the Office Lease, the terms of the Office Lease shall
prevail. Any capitalized terms used herein and not otherwise defined herein
shall have the meanings set forth in the Office Lease.
TERMS OF LEASE
(References are to
the Office Lease) DESCRIPTION
----------------- -----------
1. Date: October 21, 1997.
2. Landlord: WATER GARDEN COMPANY L.L.C., a Delaware
Limited Liability Company
3. Tenant: INTERNATIONAL CAPITAL GROWTH, LTD.,
a Delaware corporation.
4. Premises (Article 1).
4.1 Building Address: 0000 Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxxx,
Xxxxxxxxxx.
4.2 Premises: Approximately 2,040 rentable square feet
of space located on the sixth (6th) floor
of the East tower of the Building and
commonly known as Suite 660E, as further
set forth in Exhibit A to the Office
Lease.
5. Lease Term (Article 2).
5.1 Length of Term: Approximately three (3) years.
5.2 Lease Commencement December 1, 1997.
Date:
5.3 Lease Expiration Date: November 30, 2000.
6. Base Rent (Article 3):
Monthly Annual Rental Rate
Installment of per Rentable
Lease Year Annual Base Rent Base Rent Square Foot
---------- ---------------- --------- -----------
1-3 $70,012.80 $5,834.40 $34.32
7. Additional Rent (Article 4).
7.1 Base Year: The calendar year of 1998.
7.2 Tenant's Share: Approximately .6128%.
8. Security Deposit (Article 21): $5,834.40.
9. Parking Pass Ratio (Article 28): Up to two (2) reserved parking passes
and up to four (4) unreserved parking
passes.
(ii)
10. Broker(s) (Section 29.18): Xxxxxx & Company
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
11. Address of Tenant (Section International Capital Growth, Ltd.
29.13): 0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000X
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxxxxx
The foregoing terms of this Summary are hereby agreed to by Landlord and
Xxxxxx.
"Landlord":
WATER GARDEN COMPANY L.L.C.,
a Delaware Limited Liability Company
By /s/ Xxxxxx X. Xxxx
---------------------------------------
Xxxxxx X. Xxxx,
Vice President
"Tenant":
INTERNATIONAL CAPITAL GROWTH, LTD.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxxxx
--------------------------------------
Its: President
----------------------------------
By:
--------------------------------------
Its:
----------------------------------
(iii)
THE WATER GARDEN
INDEX
ARTICLE SUBJECT MATTER PAGE
------- -------------- ----
SUMMARY OF BASIC LEASE INFORMATION ii
ARTICLE I PREMISES, BUILDING, PROJECT, AND
COMMON AREAS .......................................1
ARTICLE 2 LEASE TERM .........................................2
ARTICLE 3 BASE RENT ..........................................3
ARTICLE 4 ADDITIONAL RENT ....................................3
ARTICLE 5 USE OF PREMISES ....................................9
ARTICLE 6 SERVICES AND UTILITIES .............................9
ARTICLE 7 REPAIRS ...........................................10
ARTICLE 8 ADDITIONS AND ALTERATIONS .........................11
ARTICLE 9 COVENANT AGAINST LIENS ...........................12
ARTICLE 10 INSURANCE .........................................12
ARTICLE 11 DAMAGE AND DESTRUCTION ............................14
ARTICLE 12 NONWAIVER .........................................15
ARTICLE 13 CONDEMNATION ......................................16
ARTICLE 14 ASSIGNMENT AND SUBLETTING .........................16
ARTICLE 15 SURRENDER OF PREMISES; REMOVAL OF
TRADE FIXTURES ....................................19
ARTICLE 16 HOLDING OVER ......................................19
ARTICLE 17 ESTOPPEL CERTIFICATES .............................20
ARTICLE 18 SUBORDINATION .....................................20
ARTICLE 19 DEFAULTS; REMEDIES ................................20
ARTICLE 20 ATTORNEYS' FEES ...................................22
ARTICLE 21 SECURITY DEPOSIT ..................................22
ARTICLE 22 SUBSTITUTION OF OTHER PREMISES ....................23
ARTICLE 23 SIGNS .............................................23
ARTICLE 24 COMPLIANCE WITH LAW ...............................23
ARTICLE 25 LATE CHARGES ......................................23
ARTICLE 26 LANDLORD'S RIGHT TO CURE DEFAULT;
PAYMENTS BY TENANT ................................24
ARTICLE 27 ENTRY BY LANDLORD .................................24
ARTICLE 28 TENANT PARKING ....................................24
ARTICLE 29 MISCELLANEOUS PROVISIONS ..........................25
EXHIBITS
A OUTLINE OF PREMISES
B FORM OF NOTICE OF LEASE TERM DATES
C RULES AND REGULATIONS
D FORM OF TENANT'S ESTOPPEL CERTIFICATE
(iv)
THE WATER GARDEN
OFFICE LEASE
This Office Lease, which includes the preceding Summary of Basic Lease
Information (the "Summary") attached hereto and incorporated herein by this
reference (the Office Lease and Summary are sometimes collectively referred to
herein as the "Lease"), dated as of the date set forth in Section I of the
Summary is made by and between WATER GARDEN COMPANY L.L.C., a Delaware Limited
Liability Company ("Landlord"), and INTERNATIONAL CAPITAL GROWTH, LTD., a
Delaware corporation ("Tenant").
ARTICLE I
PREMISES, BUILDING, PROJECT, AND COMMON AREAS
1.1 Premises, Building, Project and Common Areas
1.1.1 The Premises. Upon and subject to the terms hereinafter set
forth in this Lease, Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord the premises set forth in Section 4.2 of the Summary (the
"Premises"), which Premises are located in the "Building," as that term is
defined in Section 1.1.2, below. The outline of the Premises is set forth in
Exhibit A attached hereto.
1.1.2 The Building and The Project. The Premises are a part of the
building set forth in Section 4.1 of the Summary (the "Building") located in
Santa Monica, California. The Building is part of an office project known as
"The Water Garden" which contains another office building (the "Adjacent
Building"). The term "Project," as used in this Lease, shall mean (i) the
Building, the Adjacent Building, and the "Common Areas," as that term is defined
in Section 1.1.3 below, (ii) the land (which is improved with landscaping,
subterranean parking facilities and other improvements) upon which the Building,
the Adjacent Building, and the Common Areas are located, and (iii) at Landlord's
discretion, any additional real property, areas, buildings or other improvements
added thereto pursuant to the terms of Section 1.1.4 of this Lease.
1.1.3 Common Areas. Tenant shall have the non-exclusive right to use
in common with other tenants in the Project, and subject to the rules and
regulations referred to in Article 5 of this Lease, those portions of the
Project which are provided, from time to time, for use in common by Landlord,
Tenant and any other tenants of the Project, whether or not those areas are open
to the general public (such areas, together with such other portions of the
Project designated by Landlord, in its discretion, including certain areas
designated for the exclusive use of certain tenants, or to be shared by Landlord
and certain tenants, such as balconies abutting tenants' premises, are
collectively referred to herein as the "Common Areas"). The Common Areas shall
consist of the "Project Common Areas" and the "Building Common Areas." The term
"Project Common Areas," as used in this Lease, shall mean the portion of the
Project designated as such by Landlord. "Building Common Areas," as used in this
Lease, shall mean the portions of the Common Areas located within the Building
designated as such by Landlord. The manner in which the Common Areas are
maintained and operated shall be at the sole discretion of Landlord, provided
that Landlord shall maintain and operate same in a manner consistent with that
of other first-class, high-rise office buildings in the Santa Monica, California
area (the "Comparable Buildings").
1.1.4 Landlord's Use and Operation of the Building, Project, and
Common Areas. Landlord reserves the right from time to time without notice to
Tenant (i) to close temporarily any of the Common Areas; (ii) to make changes to
the Common Areas, including, without limitation, changes in the location, size,
shape and number of street entrances, driveways, ramps, entrances, exits,
passages, stairways and other ingress and egress, direction of traffic,
landscaped areas, loading and unloading areas, and walkways; (iii) to expand the
Building or the Adjacent Building; (iv) to add additional buildings and
improvements to the Common Areas; (v) to designate land outside the Project to
be part of the Project, and in connection with the improvement of such land to
add additional buildings and common areas to the Project; provided that,
notwithstanding anything to the contrary contained in this Lease, the Project
shall not be
expanded to include more than the land located in Santa Monica, California,
which has Olympic Boulevard as its Southern boundary, Cloverfield Boulevard as
its Western boundary, Colorado Avenue as its Northern boundary, and 26th street
as its Eastern boundary; (vi) to use the Common Areas while engaged in making
additional improvements, repairs or alterations to the Project or to any
adjacent land, or any portion thereof; and (vii) to do and perform such other
acts and make such other changes in, to or with respect to the Project, Common
Areas and Building or the expansion thereof as Landlord may, in the exercise of
sound business judgment, deem to be appropriate.
1.2 Verification of Rentable Square Feet of Premises, Building, and
Project. For purposes of this Lease, "rentable square feet" shall be calculated
pursuant to Standard Method for Measuring Floor Area in Office Buildings, ANSI
Z65.1 - 1996 ("BOMA"), provided that the rentable square footage of the Building
and the other buildings in the Project shall include all of (and the rentable
square footage of the Premises therefore shall include a portion of) (i) the
Building Common Areas and (ii) the occupied space of the portion of the Project
dedicated to the service of the Project. The rentable square feet of the
Premises, Building, and the Project are subject to verification from time to
time by Xxxxxxxx's planner/designer and such verification shall be made in
accordance with the provisions of this Article 1. In the event that Xxxxxxxx's
planner/designer determines that the amounts thereof are different from those
set forth in this Lease, all amounts, percentages and figures appearing or
referred to in this Lease based upon such incorrect amount (including, without
limitation, the amount of the "Rent" and any "Security Deposit," as those terms
are defined in Article 4 and Article 21 of this Lease, respectively) shall be
modified in accordance with such determination. If such determination is made,
it will be confirmed in writing by Landlord to Tenant.
1.3 Base, Shell and Core Work in the Premises. Except as specifically set
forth in this Lease, Tenant shall accept the Premises in its presently existing,
"as is" condition, and Landlord shall not be obligated to provide or pay for any
improvement work or services related to the improvement of the Premises;
provided, however, that, prior to the Lease Commencement Date, Landlord shall
(i) shampoo the carpeting within the Premises, (ii) paint the walls of the
Premises using Building-standard paint, and (iii) repair the chipped cabinet in
the kitchen area of the Premises (collectively, "Landlord's Work"). Since Tenant
is occupying the Premises pursuant to that certain Office Lease dated November
30, 1994 by and between Xxxxxxxx's predecessor-in-interest, Water Garden
Associates, a Delaware limited partnership and Tenant's predecessor-in-interest,
BLC World Television, Ltd., a Texas limited partnership (the "Prior Lease"),
Landlord agrees that it shall use commercially reasonable efforts to perform
Landlord's Work in a manner so as to minimize interference with Xxxxxx's
business. Tenant hereby acknowledges that, notwithstanding Xxxxxx's occupancy of
the Premises during the performance of Landlord's Work, Landlord shall be
permitted to perform Landlord's Work during normal business hours, without any
obligation to pay overtime or other premiums to construct the Landlord's Work.
Tenant hereby agrees that the performance of Xxxxxxxx's Work shall in no way
constitute a constructive eviction of Tenant nor entitle Tenant to any abatement
of rent payable pursuant to this Lease. Landlord shall have no responsibility or
for any reason be liable to Tenant for any direct or indirect injury to or
interference with Xxxxxx's business arising from Landlord's Work, nor shall
Tenant be entitled to any compensation or damages from Landlord for loss of the
use of the whole or any part of the Premises or of Tenant's personal property or
improvements resulting from Xxxxxxxx's Work or Landlord's actions in connection
with Landlord's Work, or for any inconvenience or annoyance occasioned by
Landlord's Work or Landlord's actions in connection with Xxxxxxxx's Work. Xxxxxx
also acknowledges that Landlord has made no representation or warranty regarding
the condition of the Premises or the Project except as specifically set forth in
this Lease.
ARTICLE 2
LEASE TERM
The terms and provisions of this Lease shall be effective as of the date
of this Lease. The term of this Lease (the "Lease Term") shall be as set forth
in Section 5.1. of the Summary, shall commence on the date set forth in Section
5.2 of the Summary (the "Lease Commencement Date"), and shall terminate on the
date set forth in Section 5.3 of the Summary (the "Lease Expiration Date")
unless this Lease is sooner terminated as hereinafter provided. For purposes of
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this Lease, the term "Lease Year" shall mean each consecutive twelve (12) month
period during the Lease Term; provided, however, that the first Lease Year shall
commence on the Lease Commencement Date and end on the last day of the eleventh
month thereafter and the second and each succeeding Lease Year shall commence on
the first day of the next calendar month; and further provided that the last
Lease Year shall end on the Lease Expiration Date. At any time during the Lease
Term, Landlord may deliver to Tenant a notice (the "Notice of Lease Term Dates")
in substantially the form as set forth in Exhibit B attached hereto, which
notice Tenant shall execute and return to Landlord within five (5) days of
receipt thereof, and thereafter the dates set forth on such notice shall be
conclusive and binding upon Tenant. Failure of Tenant to timely execute and
deliver the Notice of Lease Term Dates shall constitute an acknowledgment by
Tenant that the statements included in such notice are true and correct, without
exception.
ARTICLE 3
BASE RENT
Tenant shall pay, without notice or demand, to Landlord or
Landlord's agent at the management office of the Project or at such other
place as Landlord may from time to time designate in writing, in currency or a
check for currency which, at the time of payment, is legal tender for private or
public debts in the United States of America, base rent ("Base Rent") as set
forth in Section 6 of the Summary, payable in equal monthly installments as set
forth in Section 6 of the Summary, in advance on or before the first day of each
and every month during the Lease Term, without any setoff or deduction
whatsoever. The Base Rent for the first full month of the Lease Term shall be
paid at the time of Tenant's execution of this Lease by certified or cashier's
check. If any Rent payment date (including the Lease Commencement Date) falls on
a day of the month other than the first day of such month or if any payment of
Rent is for a period which is shorter than one month, the Rent for any
fractional month shall accrue on a daily basis for the period from the date such
payment is due to the end of such calendar month or to the end of the Lease Term
at a rate per day which is equal to 1/365 of the Rent. All other payments or
adjustments required to be made under the terms of this Lease that require
proration on a time basis shall be prorated on the same basis.
ARTICLE 4
ADDITIONAL RENT
4.1 General Terms. As set forth in this Article 4, in addition to paying
the Base Rent specified in Article 3 of this Lease, Tenant shall pay "Tenant's
Share" of the annual "Project Expenses," as those terms are defined in Sections
4.2.6 and 4.2.4 of this Lease, respectively, allocated to the tenants of the
Building pursuant to the terms of Section 4.3.1 below, to the extent such
Project Expenses allocated to the tenants of the Building which are in excess of
such Project Expenses applicable to the "Base Year," as that term is defined in
Section 4.2.1 of this Lease. Such payments by Xxxxxx, together with any and all
other amounts payable by Tenant to Landlord pursuant to the terms of this Lease,
are hereinafter collectively referred to as the "Additional Rent," and the Base
Rent and the Additional Rent are sometimes herein collectively referred to as
"Rent." All amounts due under this Article 4 as Additional Rent shall be payable
for the same periods and in the same manner as the Base Rent. Without limitation
on other obligations of Tenant which survive the expiration of the Lease Term,
the obligations of Tenant to pay the Additional Rent provided for in this
Article 4 shall survive the expiration of the Lease Term.
4.2 Definitions. As used in this Article 4, the following terms shall have
the meanings hereinafter set forth:
4.2.1 "Base Year" shall mean the period set forth in Section 7.1 of
the Summary.
4.2.2 "Expense Year" shall mean each calendar year in which any
portion of the Lease Term falls, through and including the calendar year in
which the Lease Term expires.
4.2.3 "Operating Expenses" shall mean all expenses, costs and
amounts of every kind and nature incurred in connection with the ownership,
management, maintenance, repair, replacement, restoration or operation of the
Project, including, without limitation, any amounts
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paid or incurred for (i) the cost of supplying all utilities, the cost of
operating, maintaining, repairing, renovating, complying with conservation
measures in connection with, and managing the utility systems, mechanical
systems, sanitary and storm drainage systems, and elevator systems, and the cost
of supplies and equipment, maintenance, and service contracts in connection
therewith; (ii) the cost of licenses, certificates, permits and inspections and
the cost of contesting the validity or applicability of any governmental
enactments which may affect Operating Expenses, and the costs incurred in
connection with the implementation and operation of a transportation system
management program or a municipal or public shuttle service or parking program;
(iii) the cost of all insurance carried in connection with the Project, or any
portion thereof; (iv) the cost of landscaping, relamping, and all supplies,
tools, equipment and materials used in the operation, repair and maintenance of
the Project, or any portion thereof; (v) the cost of parking area repair,
restoration, and maintenance, including, but not limited to, resurfacing,
repainting, restriping, and cleaning; (vi) fees, charges and other costs,
including consulting fees, legal fees and accounting fees, of all contractors
and consultants; (vii) payments under any equipment rental agreements or
management agreements (including the cost of any management fee and the fair
rental value of any office space provided thereunder); (viii) wages, salaries
and other compensation and benefits of all persons engaged in the operation,
maintenance, management, or security of the Project, or any portion thereof,
including employer's Social Security taxes, unemployment taxes or insurance, and
any other taxes which may be levied on such wages, salaries, compensation and
benefits; (ix) payments under any easement, license, operating agreement,
declaration, restrictive covenant, or instrument pertaining to the sharing of
costs by the Project, or any portion thereof; (x) the cost of operation, repair,
maintenance and replacement of all systems and equipment which serve the Project
in whole or part; (xi) the cost of janitorial services, alarm and security
service, window cleaning, trash removal, replacement of wall and floor
coverings, ceiling tiles and fixtures in lobbies, corridors, restrooms and other
common or public areas or facilities, maintenance and replacement of curbs and
walkways, repair to roofs and re-roofing; (xii) the cost of any capital
improvements made to the Project which are intended as a labor-saving device or
to effect other economies in the operation or maintenance of the Project, or any
portion thereof, or made to all or any portion of the Project, or any portion
thereof, after the Lease Commencement Date that are required under any
governmental law or regulation that was not applicable to the Project at the
time that permits for the construction of the Building were obtained; provided,
however, that each such permitted capital expenditure shall be amortized
(including interest on the unamortized cost) over its useful life as reasonably
determined; and (xiii) the cost of operations, maintenance, repairs, and other
expenditures (whether capital or non-capital in nature) with respect to the
"Child Care Facilities," as that term is defined in Section 29.9 below, and
their lease at the Project. Notwithstanding the foregoing, for purposes of this
Lease, Operating Expenses shall not, however, include:
(a) costs, including marketing costs, legal fees, space
planners' fees, advertising and promotional expenses, and brokerage
fees incurred in connection with the original construction or
development, or original or future leasing of the Project, and
costs, including permit, license and inspection costs, incurred with
respect to the installation of tenant improvements made for new
tenants initially occupying space in the Project after the Lease
Commencement Date or incurred in renovating or otherwise improving,
decorating, painting or redecorating vacant space for tenants or
other occupants of the Project (excluding, however, such costs
relating to any common areas of the Project or parking facilities);
(b) except as set forth in this Section 4.2.3, depreciation,
interest and principal payments on mortgages and other debt costs,
if any, penalties and interest, costs of capital repairs and
alterations, and costs of capital improvements and equipment;
(c) costs for which the Landlord is reimbursed by any tenant
or occupant of the Project or by insurance by its carrier or any
tenant's carrier or by anyone else, and electric power costs for
which any tenant directly contracts with the local public service
company;
(d) any bad debt loss, rent loss, or reserves for bad debts or
rent loss;
(e) costs associated with the operation of the business of
the partnership or entity which constitutes the Landlord, as the
same are distinguished from the costs of
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operation of the Project (which shall specifically include, but not
be limited to, accounting costs associated with the operation of the
Project). Costs associated with the operation of the business of the
partnership or entity which constitutes the Landlord include costs
of partnership accounting and legal matters, costs of defending any
lawsuits with any mortgagee (except as the actions of the Tenant may
be in issue), costs of selling, syndicating, financing, mortgaging
or hypothecating any of the Landlord's interest in the Project, and
costs incurred in connection with any disputes between Landlord and
its employees, between Landlord and Project management, or between
Landlord and other tenants or occupants, and Xxxxxxxx's general
corporate overhead and general and administrative expenses;
(f) the wages and benefits of any employee who does not devote
substantially all of his or her employed time to the Project unless
such wages and benefits are prorated to reflect time spent on
operating and managing the Project vis-a-vis time spent on matters
unrelated to operating and managing the Project; provided, that in
no event shall Operating Expenses for purposes of this Lease include
wages and/or benefits attributable to personnel above the level of
Project manager;
(g) amount paid as ground rental for the Project by the
Landlord;
(h) except for a Project management fee to the extent allowed
pursuant to item (m), below, overhead and profit increment paid to
the Landlord or to subsidiaries or affiliates of the Landlord for
services in the Project to the extent the same exceeds the costs of
such services rendered by qualified, first-class unaffiliated third
parties on a competitive basis;
(i) any compensation paid to clerks, attendants or other
persons in commercial concessions operated by the Landlord, provided
that any compensation paid to any concierge at the Project shall be
includable as an Operating Expense;
(j) rentals and other related expenses incurred in leasing air
conditioning systems, elevators or other equipment which if
purchased the cost of which would be excluded from Operating
Expenses as a capital cost, except equipment not affixed to the
Project which is used in providing janitorial or similar services
and, further excepting from this exclusion such equipment rented or
leased to remedy or ameliorate an emergency condition in the
Project;
(k) all items and services for which Tenant or any other
tenant in the Project reimburses Landlord or which Landlord provides
selectively to one or more tenants (other than Tenant) without
reimbursement;
(l) costs, other than those incurred in ordinary maintenance
and repair, for sculpture, paintings or other objects of art;
(m) fees payable by Landlord for management of the Project in
excess of three and one-half percent (3.5%) (the "Management Fee
Cap") of Landlord's gross rental revenues, adjusted and grossed up
to reflect a one hundred percent (100%) occupancy of the Building
with all tenants paying rent, including base rent, pass-throughs,
and parking fees (but excluding the cost of after hours services or
utilities) from the Project for any calendar year or portion
thereof;
(n) any costs expressly excluded from Operating Expenses
elsewhere in this Lease;
(o) rent for any office space occupied by Project management
personnel to the extent the size or rental rate of such office space
exceeds the size or fair market rental value of office space
occupied by management personnel of the Comparable Buildings in the
vicinity of the Building, with adjustment where appropriate for the
size of the applicable project;
(p) costs arising from the gross negligence or wilful
misconduct of Landlord or its agents, employees, vendors,
contractors, or providers of materials or services;
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(q) costs incurred to comply with laws relating to the removal
of hazardous material (as defined under applicable law) which was in
existence in the Building or on the Project prior to the Lease
Commencement Date, and was of such a nature that a federal, State or
municipal governmental authority, if it had then had knowledge of
the presence of such hazardous material, in the state, and under the
conditions that it then existed in the Building or on the Project,
would have then required the removal of such hazardous material or
other remedial or containment action with respect thereto; and costs
incurred to remove, remedy, contain, or treat hazardous material,
which hazardous material is brought into the Building or onto the
Project after the date hereof by Landlord or any other tenant of the
Project and is of such a nature, at that time, that a federal, State
or municipal governmental authority, if it had then had knowledge
of the presence of such hazardous material, in the state, and under
the conditions, that it then exists in the Building or on the
Project, would have then required the removal of such hazardous
material or other remedial or containment action with respect
thereto; and
(r) costs arising from Landlord's charitable or political
contributions;
If the Project is not fully occupied during all or a portion of any Expense
Year, Landlord shall make an appropriate adjustment to the variable components
of Operating Expenses for such year employing sound accounting and management
principles, to determine the amount of Operating Expenses that would have been
paid had the Project been fully occupied; and the amount so determined shall be
deemed to have been the amount of Operating Expenses for such year. In no event
shall the components of Project Expenses for any Expense Year related to
electrical costs be less than the components of Project Expenses related to
electrical costs in the Base Year.
4.2.4 "Project Expenses" shall mean the sum of "Operating Expenses"
and "Tax Expenses".
4.2.5 "Tax Expenses" shall mean all federal, state, county, or local
governmental or municipal taxes, fees, charges or other impositions of every
kind and nature, whether general, special, ordinary or extraordinary (including,
without limitation, real estate taxes, general and special assessments, transit
taxes, leasehold taxes or taxes based upon the receipt of rent, including gross
receipts or sales taxes applicable to the receipt of rent, unless required to be
paid by Tenant, personal property taxes imposed upon the fixtures, machinery,
equipment, apparatus, systems and equipment, appurtenances, furniture and other
personal property used in connection with all or any portion of the Project),
which shall be paid during any Expense Year (without regard to any different
fiscal year used by such governmental or municipal authority) because of or in
connection with the ownership, leasing and operation of the Project, or any
portion thereof.
4.2.5.1 Tax Expenses shall include, without limitation:
(i) Any assessment, tax, fee, levy or charge in addition to,
or in substitution, partially or totally, of any assessment, tax,
fee, levy or charge previously included within the definition of
real property tax, it being acknowledged by Xxxxxx and Landlord that
Proposition 13 was adopted by the voters of the State of California
in the June 1978 election ("Proposition 13") and that assessments,
taxes, fees, levies and charges may be imposed by governmental
agencies for such services as fire protection, street, sidewalk and
road maintenance, refuse removal and for other governmental services
formerly provided without charge to property owners or occupants,
and, in further recognition of the decrease in the level and quality
of governmental services and amenities as a result of Proposition
13, Tax Expenses shall also include any governmental or private
assessments or the Project's contribution towards a governmental or
private cost-sharing agreement for the purpose of augmenting or
improving the quality of services and amenities normally provided by
governmental agencies. It is the intention of Tenant and Landlord
that all such new and increased assessments, taxes, fees, levies,
and charges and all similar assessments, taxes, fees, levies and
charges be included within the definition of Tax Expenses for the
purposes of this Lease;
(ii) Any assessment, tax, fee, levy, or charge allocable to or
measured by the area of the Premises or the Rent payable hereunder,
including, without
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limitation, any gross income tax with respect to the receipt of such rent,
or upon or with respect to the possession, leasing, operating, management,
maintenance, alteration, repair, use or occupancy by Tenant of the
Premises, or any portion thereof;
(iii) Any assessment, tax, fee, levy or charge, upon
this transaction or any document to which Tenant is a party, creating or
transferring an interest or an estate in the Premises; and
(iv) Any possessory taxes charged or levied in lieu of
real estate taxes.
4.2.5.2 Any expenses incurred in attempting to protest, reduce
or minimize Tax Expenses shall be included in Tax Expenses in the Expense Year
such expenses are paid.
4.2.5.3 Tax refunds shall be deducted from Tax Expenses in the
Expense Year they are received.
4.2.5.4 The amount of Tax Expenses for the Base Year
attributable to the valuation of the Project, inclusive of tenant improvements,
shall be known as "Base Taxes." If, in any comparison year subsequent to the
Base Year, the amount of Tax Expenses decreases, then for purposes of all
subsequent comparison years, including the comparison year in which such
decrease in Tax Expenses occurs, the Base Taxes shall be decreased by an amount
equal to the decrease in Tax Expenses.
4.2.6 "Tenant's Share" shall mean the percentage set forth in
Section 7.2 of the Summary. Tenant's Share was calculated by multiplying the
number of rentable square feet of the Premises by 100, and dividing the product
by the total rentable square feet in the Building.
4.3 Allocation and Calculation of Project Expenses.
4.3.1 Allocation of Project Expenses to Tenants of the Building.
Project Expenses (i.e., Operating Expenses and Tax Expenses) are determined
annually for the Project as a whole. Since the Building is only one of the
buildings which constitute the Project, Project Expenses shall be allocated by
Landlord, in its reasonable discretion, to both the tenants of the Building and
the tenants of the other buildings in the Project. The portion of Project
Expenses allocated to the tenants of the Building shall consist of (i) all
Project Expenses attributable solely to the Building and (ii) an equitable
portion of Project Expenses attributable to the Project as a whole and not
attributable solely to the Building, the Adjacent Building or to any other
building of the Project. Additionally, in allocating Project Expenses to the
tenants of the Building, Landlord shall have the right, from time to time, to
equitably allocate some or all of the Project Expenses allocable to tenants of
the Building among different tenants of the Building (the "Cost Pools"). Such
Cost Pools may include, but shall not be limited to, the office space tenants of
the Building and the retail space tenants of the Building.
4.3.2 Calculation of Project Expenses. Notwithstanding anything to
the contrary set forth in this Article 4, when calculating the Project Expenses
for the Base Year, such Project Expenses shall not include any increase in Tax
Expenses attributable to special assessments, charges, costs, or fees, or due to
modifications or changes in governmental laws or regulations, including but not
limited to the institution of a split tax roll, and Operating Expenses shall
exclude market-wide labor-rate increases due to extraordinary circumstances,
including, but not limited to, boycotts and strikes, and utility rate increases
due to extraordinary circumstances including, but not limited to, conservation
surcharges, boycotts, embargoes or other shortages and amortized costs relating
to capital improvements.
4.4 Calculation and Payment of Additional Rent.
4.4.1 Calculation of Excess. For every Expense Year ending or
commencing within the Lease Term, Tenant shall pay to Landlord, in the manner
set forth in Section 4.4.2, below, and as Additional Rent, an amount equal to
Tenant's Share of Project Expenses for such Expense Year in excess of Tenant's
Share of Project Expenses for the Base Year (the "Excess").
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4.4.2 Statement of Actual Project Expenses and Payment by Tenant.
Landlord shall endeavor to give to Tenant on or before the first day of April
following the end of each Expense Year, a statement (the "Statement") which
shall state the Project Expenses incurred or accrued for such preceding Expense
Year and the amount thereof allocated to the tenants of the Building, and which
shall indicate the amount, if any, of Tenant's Share of Project Expenses in
excess of Tenant's Share of Project Expenses for the Base Year. Upon receipt of
the Statement for each Expense Year ending during the Lease Term, Tenant shall
pay, with its next Installment of Base Rent due, the full amount of Tenant's
Share of Project Expenses for such Expense Year in excess of Tenant's Share of
Project Expenses for the Base Year, less the amounts, if any, paid during such
Expense Year as "Estimated Additional Rent," as that term is defined in Section
4.4.3, below. If the amount of Tenant's Share of Project Expenses for such
Expense Year in excess of Tenant's Share of Project Expenses for the Base Year
is less than the amount paid by Tenant as Estimated Additional Rent during the
applicable period of the Expense Year (but not including any period of the
Expense Year which occurs after the Lease has terminated), Landlord shall pay
the difference to Tenant together with the applicable Statement, even if the
Lease has terminated or expired. The failure of Landlord to timely furnish the
Statement for any Expense Year shall not prejudice Landlord or Tenant from
enforcing its rights under this Article 4. Even though the Lease Term has
expired and Tenant has vacated the Premises, when the final determination is
made of Tenant's Share of Project Expenses allocated to the tenants of the
Building for the Expense Year in which this Lease terminates, if Tenant's Share
of Project Expenses for such Expense Year is in excess of Tenant's Share of
Project Expenses for the Base Year, then Tenant shall immediately pay to
Landlord an amount as calculated pursuant to the provisions of Section 4.4.1 of
this Lease. The provisions of this Section 4.4.2 shall survive the expiration or
earlier termination of the Lease Term.
4.4.3 Statement of Estimated Project Expenses. In addition, Landlord
shall endeavor to give Tenant a yearly expense estimate statement (the "Estimate
Statement") which shall set forth Landlord's reasonable estimate (the
"Estimate") of what the total amount of Project Expenses for the then-current
Expense Year shall be, the amount thereof to be allocated to the tenants of the
Building, and the estimated amount of Tenant's Share of Project Expenses in
excess of Tenant's Share of the Project Expenses for the Base Year (the
"Estimated Additional Rent"). The failure of Landlord to timely furnish the
Estimate Statement for any Expense Year shall not preclude Landlord from
enforcing its rights to collect any Estimated Additional Rent under this Article
4. If, pursuant to the Estimate Statement, Estimated Additional Rent is
calculated for the then-current Expense Year, Tenant shall pay, with its next
installment of Base Rent due, a fraction of the Estimated Additional Rent for
the then-current Expense Year (reduced by any amounts paid pursuant to the last
sentence of this Section 4.4.3). Such fraction shall have as its numerator the
number of months which have elapsed in such current Expense Year, including the
month of such payment, and twelve (12) as its denominator. Until a new Estimate
Statement is furnished (which Landlord shall have the right to deliver to Tenant
at any time), Tenant shall pay monthly, with the monthly Base Rent installments,
an amount equal to one-twelfth (1/12) of the total Estimated Additional Rent set
forth in the previous Estimate Statement delivered by Landlord to Tenant.
4.5 Taxes and Other Charges for Which Tenant Is Directly Responsible.
Tenant shall reimburse Landlord upon demand for any and all taxes required to be
paid by Landlord, excluding state, local and federal personal or corporate
income taxes measured by the net income of Landlord from all sources and estate
and inheritance taxes, whether or not now customary or within the contemplation
of the parties hereto, when:
4.5.1 Said taxes are measured by or reasonably attributable to the
cost or value of Tenant's equipment, furniture, fixtures and other personal
property located in the Premises, or by the cost or value of any leasehold
improvements made in or to the Premises by or for Tenant, to the extent the cost
or value of such leasehold improvements exceeds the cost or value of a building
standard build-out as determined by Landlord regardless of whether title to such
improvements shall be vested in Tenant or Landlord;
4.5.2 Said taxes are assessed upon or with respect to the
possession, leasing, operation, management, maintenance, alteration, repair, use
or occupancy by Tenant of the Premises or any portion of the Project (including
the Project parking facility); or
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4.5.3 Said taxes are assessed upon this transaction or any document
to which Xxxxxx is a party creating or transferring an interest or an estate in
the Premises.
ARTICLE 5
USE OF PREMISES
Tenant shall use the Premises solely for general office purposes
consistent with the character of the Project as a first-class office building
project, and Tenant shall not use or permit the Premises to be used for any
other purpose or purposes whatsoever without the prior written consent of
Landlord, which may be withheld in Landlord's sole discretion. Tenant further
covenants and agrees that Tenant shall not use, or suffer or permit any person
or persons to use, the Premises or any part thereof for any use or purpose
contrary to the provisions of the Rules and Regulations set forth in Exhibit C,
attached hereto, or in violation of the laws of the United States of America,
the State of California, or the ordinances, regulations or requirements of the
local municipal or county governing body or other lawful authorities having
jurisdiction over the Project. Tenant shall comply with all recorded covenants,
conditions, and restrictions now or hereafter affecting the Project. Tenant
shall not use or allow another person or entity to use any part of the Premises
for the storage, use, treatment, manufacture or sale of "Hazardous Material," as
that term is defined in Section 29.23 of this Lease.
ARTICLE 6
SERVICES AND UTILITIES
6.1 Standard Tenant Services. Landlord shall provide the following
services on all days (unless otherwise stated below) during the Lease Term.
6.1.1 Subject to all governmental rules, regulations and guidelines
applicable thereto, Landlord shall provide heating and air conditioning when
necessary for normal comfort for normal office use in the Premises, from Monday
through Friday, during the period from 8 A.M. to 6 P.M. and on Saturday during
the period from 9 A.M. to 1 P.M., except for the date of observation of New
Year's Day, Independence Day, Labor Day, Memorial Day, Thanksgiving Day,
Christmas Day and, at Landlord's discretion, other locally or nationally
recognized holidays (collectively, the "Holidays").
6.1.2 Landlord shall provide adequate electrical wiring and
facilities and power for normal general office use as determined by Landlord.
Tenant shall bear the cost of replacement of lamps, starters and ballasts for
lighting fixtures within the Premises.
6.1.3 Landlord shall provide city water from the regular Building
outlets for drinking, lavatory and toilet purposes.
6.1.4 Landlord shall provide janitorial services Monday through
Friday except the date of observation of the Holidays, in and about the Premises
and window washing services in a manner consistent with other first-class office
buildings in the Santa Monica, California area.
6.2 Overstandard Tenant Use. Tenant shall not, without Xxxxxxxx's prior
written consent, use heat-generating machines, machines other than normal
fractional horsepower office machines, or equipment or lighting other than
Building standard lights in the Premises, which may affect the temperature
otherwise maintained by the air conditioning system or increase the water
normally furnished for the Premises by Landlord pursuant to the terms of Section
6.1 of this Lease. If such consent is given, Landlord shall have the right to
install supplementary air conditioning units or other facilities in the
Premises, including supplementary or additional metering devices, and the cost
thereof, including the cost of installation, operation and maintenance,
increased wear and tear on existing equipment and other similar charges, shall
be paid by Tenant to Landlord upon billing by Landlord. If Tenant uses water,
electricity, heat or air conditioning in excess of that supplied by Landlord
pursuant to Section 6.1 of this Lease, Tenant shall pay to Landlord, upon
billing, the cost of such excess consumption, the cost of the installation,
operation, and maintenance of equipment which is installed in order to supply
such excess consumption, and the cost of the increased wear and tear on existing
equipment caused by
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such excess consumption; and Landlord may install devices to separately meter
any increased use and in such event Tenant shall pay the increased cost directly
to Landlord, on demand, including the cost of such additional metering devices.
If Tenant desires to use heat, ventilation or air conditioning during hours
other than those for which Landlord is obligated to supply such utilities
pursuant to the terms of Section 6.1 of this Lease, Tenant shall give Landlord
such prior notice, as Landlord shall from time to time establish as appropriate,
of Tenant's desired use and Landlord shall supply such utilities to Tenant at
such hourly cost to Tenant as Landlord shall from time to time establish.
Amounts payable by Tenant to Landlord for such use of additional utilities shall
be deemed Additional Rent hereunder and shall be billed on a monthly basis.
6.3 Interruption of Use. Tenant agrees that Landlord shall not be liable
for damages, by abatement of Rent or otherwise, for failure to furnish or delay
in furnishing any service (including telephone and telecommunication services),
or for any diminution in the quality or quantity thereof, when such failure or
delay or diminution is occasioned, in whole or in part, by repairs,
replacements, or improvements, by any strike, lockout or other labor trouble, by
inability to secure electricity, gas, water, or other fuel at the Building or
Project after reasonable effort to do so, by any accident or casualty
whatsoever, by act or default of Tenant or other parties, or by any other cause
beyond Landlord's reasonable control; and such failures or delays or diminution
shall never be deemed to constitute an eviction or disturbance of Tenant's use
and possession of the Premises or relieve Tenant from paying Rent or performing
any of its obligations under this Lease. Furthermore, Landlord shall not be
liable under any circumstances for a loss of, or injury to, property or for
injury to, or interference with, Xxxxxx's business, including, without
limitation, loss of profits, however occurring, through or in connection with or
incidental to a failure to furnish any of the services or utilities as set forth
in this Article 6, including, but not limited to, a failure to provide
telecommunications, including telephone risers. Landlord may comply with
voluntary controls or guidelines promulgated by any governmental entity relating
to the use or conservation of energy, water, gas, light or electricity or the
reduction of automobile or other emissions without creating any liability of
Landlord to Tenant under this Lease, provided that the Premises are not thereby
rendered untenantable.
6.4 Rent Abatement. If Landlord fails to perform the obligations required
of Landlord under the terms of this Lease and such failure causes all or a
portion of the Premises to be untenantable and unusable by Tenant and such
failure relates to the nonfunctioning of the heat, ventilation, and air
conditioning system in the Premises, the electricity in the Premises, the
nonfunctioning of the elevator service to the Premises, or a failure to provide
access to the Premises, Tenant shall give Landlord notice (the "Initial
Notice"), specifying such failure to perform by Landlord (the "Landlord
Default"). If Landlord has not cured such Landlord Default within five (5)
business days after the receipt of the Initial Notice (the "Eligibility
Period"), Tenant may deliver an additional notice to Landlord (the "Additional
Notice"), specifying such Landlord Default and Xxxxxx's intention to xxxxx the
payment of Rent under this Lease. If Landlord does not cure such Landlord
Default within five (5) business days of receipt of the Additional Notice,
Tenant may, upon written notice to Landlord, immediately xxxxx Rent payable
under this Lease for that portion of the Premises rendered untenantable and not
used by Tenant, for the period beginning on the date five (5) business days
after the Initial Notice to the earlier of the date Landlord cures such Landlord
Default or the date Tenant recommences the use of such portion of the Premises.
Such right to xxxxx Xxxx shall be Tenant's sole and exclusive remedy at law or
in equity for a Landlord Default. Except as provided in this Section 6.4,
nothing contained herein shall be interpreted to mean that Tenant is excused
from paying Rent due hereunder.
ARTICLE 7
REPAIRS
Tenant shall, at Xxxxxx's own expense, keep the Premises, including all
improvements, fixtures and furnishings therein, in good order, repair and
condition at all times during the Lease Term. In addition, Tenant shall, at
Xxxxxx's own expense, but under the supervision and subject to the prior
approval of Landlord, and within any reasonable period of time specified by
Landlord, promptly and adequately repair all damage to the Premises and replace
or repair all damaged, broken, or worn fixtures and appurtenances; provided
however, that, at Landlord's option, or if Tenant fails to make such repairs,
Landlord may, but need not, make such repairs and replacements, and Tenant shall
pay Landlord the cost thereof, including a percentage of the cost
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thereof (to be uniformly established for the Building and/or the Project)
sufficient to reimburse Landlord for all overhead, general conditions, fees and
other costs or expenses arising from Landlord's involvement with such repairs
and replacements forthwith upon being billed for same. Notwithstanding the
foregoing, Landlord shall be responsible for repairs to the exterior walls,
foundation and roof of the Building, the structural portions of the floors of
the Building, and the systems and equipment of the Building, except to the
extent that such repairs are required due to the negligence or wilful misconduct
of Tenant; provided, however, that if such repairs are due to the negligence or
wilful misconduct of Tenant, Landlord shall nevertheless make such repairs at
Tenant's expense, or, if covered by Landlord's insurance, Tenant shall only be
obligated to pay any deductible in connection therewith. Landlord may, but shall
not be required to, enter the Premises at all reasonable times to make such
repairs, alterations, improvements or additions to the Premises or to the
Project or to any equipment located in the Project as Landlord shall desire or
deem necessary or as Landlord may be required to do by governmental or
quasi-governmental authority or court order or decree. Tenant hereby waives and
releases its right to make repairs at Landlord's expense under Sections 1941 and
1942 of the California Civil Code or under any similar law, statute, or
ordinance now or hereafter in effect.
ARTICLE 8
ADDITIONS AND ALTERATIONS
8.1 Landlord's Consent to Alterations. Tenant may not make any
improvements, alterations, additions or changes to the Premises (collectively,
the "Alterations") without first procuring the prior written consent of Landlord
to such Alterations, which consent shall be requested by Tenant not less than
thirty (30) days prior to the commencement thereof, and which consent shall not
be unreasonably withheld by Landlord; provided however, that Tenant may make
strictly cosmetic changes to the finish work in the Premises, not requiring any
structural or other substantial modifications to the Premises, upon thirty (30)
days prior notice to Landlord.
8.2 Manner of Construction. Landlord may impose, as a condition of its
consent to any and all Alterations or repairs of the Premises or about the
Premises, such requirements as Landlord in its sole discretion may deem
desirable, including, but not limited to, the requirement that upon Xxxxxxxx's
request, Tenant shall, at Tenant's expense, remove such Alterations upon the
expiration or any early termination of the Lease Term, and/or the requirement
that Tenant utilize for such purposes only contractors, materials, mechanics and
materialmen selected by Landlord. Tenant shall construct such Alterations and
perform such repairs in conformance with any and all applicable federal, state,
county or municipal laws, rules and regulations and pursuant to a valid building
permit, issued by the City of Santa Xxxxxx, all in conformance with Xxxxxxxx's
construction rules and regulations. All work with respect to any Alterations
must be done in a good and workmanlike manner and diligently prosecuted to
completion to the end that the Premises shall at all times be a complete unit
except during the period of work. In performing the work of any such
Alterations, Tenant shall have the work performed in such manner so as not to
obstruct access to the Project or any portion thereof, by any other tenant of
the Project, and so as not to obstruct the business of Landlord or other tenants
in the Project, or interfere with the labor force working in the Project. In
addition to Tenant's obligations under Article 9 of this Lease, upon completion
of any Alterations, Xxxxxx agrees to cause a Notice of Completion to be recorded
in the office of the Recorder of the County of Los Angeles in accordance with
Section 3093 of the Civil Code of the State of California or any successor
statute, and Tenant shall deliver to the Project management office a
reproducible copy of the "as built" drawings of the Alterations.
8.3 Payment for Improvements. In the event Tenant orders any Alterations
or repair work directly from Landlord, or from the contractor selected by
Landlord, the charges for such work shall be deemed Additional Rent under this
Lease, payable within five (5) days of billing therefor, either periodically
during construction or upon the substantial completion of such work, at
Xxxxxxxx's option. Upon completion of such work, Xxxxxx shall deliver to
Landlord evidence of payment, contractors' affidavits and full and final waivers
of all liens for labor, services or materials. Tenant shall pay to Landlord a
percentage of the cost of such work sufficient to compensate Landlord for all
overhead, general conditions, fees and other costs and expenses arising from
Landlord's involvement with such work.
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8.4 Construction Insurance. In the event that Xxxxxx makes any Alterations
Tenant agrees to carry "Builder's All Risk" insurance in an amount approved by
Landlord covering the construction of such Alterations, and such other insurance
as Landlord may require, it being understood and agreed that all of such
Alterations shall be insured by Tenant pursuant to Article 10 of this Lease
immediately upon completion thereof. In addition, Landlord may, in its
discretion, require Tenant to obtain a lien and completion bond or some
alternate form of security satisfactory to Landlord in an amount sufficient to
ensure the lien-free completion of such Alterations and naming Landlord as a
co-obligee.
8.5 Landlord's Property. All Alterations, improvements, fixtures and/or
equipment which may be installed or placed in or about the Premises, and all
signs installed in, on or about the Premises, from time to time, shall be at the
sole cost of Tenant and shall be and become the property of Landlord, except
that Tenant may remove any Alterations, improvements, fixtures and/or equipment
which Tenant can substantiate to Landlord have not been paid for with any Tenant
improvement allowance funds provided to Tenant by Landlord, provided Tenant
repairs any damage to the Premises and Building caused by such removal.
Furthermore, if Landlord, as a condition to Landlord's consent to any
Alteration, requires that Tenant remove any Alteration upon the expiration or
early termination of the Lease Term, Landlord may, by written notice to Tenant
prior to the end of the Lease Term, or given following any earlier termination
of this Lease, require Tenant, at Tenant's expense, to remove such Alterations
and to repair any damage to the Premises and Building caused by such removal. If
Tenant fails to complete such removal and/or to repair any damage caused by the
removal of any Alterations, Landlord may do so and may charge the cost thereof
to Tenant.
ARTICLE 9
COVENANT AGAINST LIENS
Tenant has no authority or power to cause or permit any lien or
encumbrance of any kind whatsoever, whether created by act of Tenant, operation
of law or otherwise, to attach to or be placed upon the Project or Premises, and
any and all liens and encumbrances created by Tenant shall attach to Tenant's
interest only. Landlord shall have the right at all times to post and keep
posted on the Premises any notice which it deems necessary for protection from
such liens. Tenant covenants and agrees not to suffer or permit any lien of
mechanics or materialmen or others to be placed against the Project, the
Building or the Premises, or any portion thereof, with respect to work or
services claimed to have been performed for or materials claimed to have been
furnished to Tenant or the Premises, and, in case of any such lien attaching or
notice of any lien, Tenant covenants and agrees to cause it to be immediately
released and removed of record. Notwithstanding anything to the contrary set
forth in this Lease, in the event that such lien is not released and removed on
or before the date occurring five (5) days after notice of such lien is
delivered by Landlord to Tenant, Landlord, at its sole option, may immediately
take all action necessary to release and remove such lien, without any duty to
investigate the validity thereof, and all sums, costs and expenses, including
reasonable attorneys' fees and costs, incurred by Landlord in connection with
such lien shall be deemed Additional Rent under this Lease and shall immediately
be due and payable by Xxxxxx.
ARTICLE 10
INSURANCE
10.1 Indemnification and Waiver. To the extent not prohibited by law,
Landlord, its members and their respective partners, subpartners, officers,
agents, servants, employees, and independent contractors (collectively,
"Landlord Parties") shall not be liable for, any damage either to person or
property or resulting from the loss of use thereof, which damage is sustained by
Tenant. Tenant shall indemnify, defend, protect, and hold harmless Landlord
Parties from any and all loss, cost, damage, expense and liability (including
without limitation court costs and reasonable attorneys' fees) incurred in
connection with or arising from any cause in, on or about the Premises, either
prior to, during, or after the expiration of the Lease Term, provided that the
terms of the foregoing indemnity shall not apply to the gross negligence or
wilful misconduct of Landlord. The provisions of this Section 10.1 shall
survive the expiration or sooner termination of this Lease with respect to any
claims or liability occurring prior to such expiration or
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termination. Notwithstanding anything to the contrary contained in this Lease,
nothing in this Lease shall impose any obligations on Tenant or Landlord to be
responsible or liable for, and each hereby releases the other from all liability
for, consequential damages other than those consequential damages incurred by
Landlord in connection with a holdover of the Premises by Tenant after the
expiration or earlier termination of this Lease or incurred by Landlord in
connection with any repair, physical construction or improvement work performed
by or on behalf of Tenant in the Project.
10.2 Tenant's Compliance with Xxxxxxxx's Fire and Casualty Insurance.
Tenant shall, at Tenant's expense, comply with all insurance company
requirements pertaining to the use of the Premises. If Tenant's conduct or use
of the Premises causes any increase in the premium for such insurance policies
then Tenant shall reimburse Landlord for any such increase. Tenant, at Tenant's
expense, shall comply with all rules, orders, regulations or requirements of
the American Insurance Association (formerly the National Board of Fire
Underwriters) and with any similar body.
10.3 Tenant's Insurance. Tenant shall maintain the following coverages in
the following amounts.
10.3.1 Commercial General Liability Insurance covering the insured
against claims of bodily injury, personal injury and property damage arising out
of Tenant's operations, assumed liabilities or use of the Premises, including a
Broad Form endorsement covering the insuring provisions of this Lease and the
performance by Tenant of the indemnity agreements set forth in Section 10.1 of
this Lease, for limits of liability not less than:
Bodily Injury and
Property Damage Liability $3,000,000 each occurrence
$3,000,000 annual aggregate
Personal Injury Liability $3,000,000 each occurrence
$3,000,000 annual aggregate
0% Insured's participation
10.3.2 Physical Damage Insurance covering (i) all office furniture,
trade fixtures, office equipment, merchandise and all other items of Tenant's
property on the Premises installed by, for, or at the expense of Tenant, (ii)
any improvements which exist in the Premises as of the Lease Commencement Date
(excluding the "Base Building," as that term is defined hereinbelow), and (iii)
all other improvements, alterations and additions to the Premises. The term
"Base Building," for purposes of this Lease, shall mean the structural portions
of the Building, and the public restrooms and the systems and equipment located
in the internal core of the Building on the floor or floors on which the
Premises are located. Such insurance shall be written on an "all risks" of
physical loss or damage basis, for the full replacement cost value new without
deduction for depreciation of the covered items and in amounts that meet any
co-insurance clauses of the policies of insurance and shall include a vandalism
and malicious mischief endorsement, sprinkler leakage coverage and earthquake
sprinkler leakage coverage.
10.3.3 Workers Compensation Insurance in form and with limits in
accordance with the laws of the State of California, including Occupational
Disease Insurance, and Voluntary Compensation Insurance, and Employer's
Liability Insurance with limits not less than Five Hundred Thousand Dollars
($500,000.00) per occurrence; per employee for disease; and in the aggregate for
disease.
10.4 Form of Policies. The minimum limits of policies of insurance
required of Tenant under this Lease shall in no event limit the liability of
Tenant under this Lease. Such insurance shall (i) name Landlord, Xxxxxx &
Company, and any other party Landlord specifies, as an additional insured; (ii)
specifically cover the liability assumed by Tenant under this Lease, including,
but not limited to, Tenant's obligations under Section 10.1 of this Lease;
(iii) be issued by an insurance company having a rating of not less than A-X in
Best's Insurance Guide or which is otherwise acceptable to Landlord and licensed
to do business in the State of California; (iv) be primary insurance as to all
claims thereunder and provide that any insurance carried by Landlord is excess
and is non-contributing with any insurance requirement of Tenant; (v) provide
that said
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insurance shall not be canceled or coverage changed unless thirty (30) days'
prior written notice shall have been given to Landlord and any mortgagee of
Landlord; and (vi) contain a cross-liability endorsement or severability of
interest clause acceptable to Landlord. Tenant shall deliver said policy or
policies or certificates thereof to Landlord on or before the Lease Commencement
Date and at least thirty (30) days before the expiration dates thereof.
10.5 Subrogation. Landlord and Tenant agree to have their respective
insurance companies issuing property damage insurance waive any rights of
subrogation that such companies may have against Landlord or Tenant, as the case
may be, so long as the insurance carried by Landlord and Tenant, respectively,
is not invalidated thereby. As long as such waivers of subrogation are contained
in their respective insurance policies, Landlord and Tenant hereby waive any
right that either may have against the other on account of any loss or damage to
their respective property to the extent such loss or damage is insurable under
policies of insurance for fire and all risk coverage, theft, or other similar
insurance.
10.6 Additional Insurance Obligations. Tenant shall carry and maintain
during the entire Lease Term, at Tenant's sole cost and expense, increased
amounts of the insurance required to be carried by Tenant pursuant to this
Article 10, and such other reasonable types of insurance coverage and in such
reasonable amounts covering the Premises and Xxxxxx's operations therein, as may
be reasonably requested by Landlord, but in no event in excess of the amounts
and types of insurance then being required by landlords of other Comparable
Buildings.
ARTICLE 11
DAMAGE AND DESTRUCTION
11.1 Repair of Damage to Premises by Landlord. Tenant shall promptly
notify Landlord of any damage to the Premises resulting from fire or any other
casualty. If the Base Building or any Common Areas serving or providing access
to the Premises shall be damaged by fire or other casualty, Landlord shall
promptly and diligently, subject to reasonable delays for insurance adjustment
or other matters beyond Landlord's reasonable control, and subject to all other
terms of this Article 11, restore the Base Building and such Common Areas. Such
restoration shall be to substantially the same condition of the Base Building
and the Common Areas prior to the casualty, except for modifications required by
zoning and building codes and other laws or by the holder of a mortgage on the
Building or Project or any other modifications to the Base Building or the
Common Areas deemed desirable by Landlord, provided that access to the Premises
and any common restrooms serving the Premises shall not be materially impaired.
Tenant shall, at Tenant's sole cost and expense, repair any injury or damage to
the Premises which is not part of the Base Building, in accordance with Article
8, above, and shall return the Premises to their original condition. Landlord
shall not be liable for any inconvenience or annoyance to Tenant or its
visitors, or injury to Tenant's business resulting in any way from such damage
or the repair of the Base Building or the Common Areas; provided, however, that
if such fire or other casualty shall have damaged the Base Building or Common
Areas necessary to Tenant's occupancy, and if such damage is not the result of
the negligence or wilful misconduct of Tenant or Tenant's employees,
contractors, licensees, or invitees, Landlord shall allow Tenant a proportionate
abatement of Rent to the extent Landlord is reimbursed from the proceeds of
rental interruption insurance purchased by Landlord as part of Operating
Expenses, during the time and to the extent the Premises are unfit for occupancy
for the purposes permitted under this Lease as the sole result of the damage to
the Base Building or the Common Areas, and not occupied by Tenant as a result
thereof.
11.2 Landlord's Option to Repair. Notwithstanding the terms of Section
11.1 of this Lease, Landlord may elect not to rebuild and/or restore the
Premises, Building and/or Project; and instead terminate this Lease by notifying
Tenant in writing of such termination within sixty (60) days after the date of
damage, such notice to include a termination date giving Tenant ninety (90) days
to vacate the Premises, but Landlord may so elect only if the Building or
Project shall be damaged by fire or other casualty or cause, whether or not the
Premises are affected, and one or more of the following conditions is present:
(i) repairs to be made by Landlord cannot reasonably be completed within one
hundred twenty (120) days after the date of damage (when such repairs are made
without the payment of overtime or other premiums); (ii) the holder of any
mortgage on the Building or Project or ground lessor with respect to the
Building or Project shall require that
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the insurance proceeds or any portion thereof be used to retire the mortgage
debt, or shall terminate the ground lease, as the case may be; (iii) the damage
which is required to be repaired by Landlord is not fully covered, except for
deductible amounts, by Landlord's insurance policies; or (iv) any owner of any
other portion of the Project, other than Landlord, does not intend to repair the
damage to such portion of the Project; provided, however, that if Landlord does
not elect to terminate this Lease pursuant to Landlord's termination right as
provided above, and the repairs cannot, in the reasonable opinion of Landlord,
be completed within one hundred eighty (180) days after being commenced, Tenant
may elect, no earlier than sixty (60) days after the date of the damage and not
later than ninety (90) days after the date of such damage, to terminate this
Lease by written notice to Landlord effective as of the date specified in the
notice, which date shall not be less than thirty (30) days nor more than sixty
(60) days after the date such notice is given by Xxxxxx. Furthermore, if neither
Landlord nor Tenant has terminated this Lease, and the repairs are not actually
completed within such 180-day period, Tenant shall have the right to terminate
this Lease during the first five (5) business days of each calendar month
following the end of such period until such time as the repairs are complete, by
notice to Landlord (the "Damage Termination Notice"), effective as of a date set
forth in the Damage Termination Notice (the "Damage Termination Date"), which
Damage Termination Date shall not be less than ten (10) business days following
the end of each such month. Notwithstanding the foregoing, if Tenant delivers a
Damage Termination Notice to Landlord, then Landlord shall have the right to
suspend the occurrence of the Damage Termination Date for a period ending thirty
(30) days after the Damage Termination Date set forth in the Damage Termination
Notice by delivering to Tenant, within five (5) business days of Landlord's
receipt of the Damage Termination Notice, a certificate of Landlord's contractor
responsible for the repair of the damage certifying that it is such contractor's
good faith judgment that the repairs shall be substantially completed within
thirty (30) days after the Damage Termination Date. If repairs shall be
substantially completed prior to the expiration of such thirty-day period, then
the Damage Termination Notice shall be of no force or effect, but if the repairs
shall not be substantially completed within such thirty-day period, then this
Lease shall terminate upon the expiration of such thirty-day period. At any
time, from time to time, after the date occurring sixty (60) days after the date
of the damage, Xxxxxx may request that Landlord inform Tenant of Landlord's
reasonable opinion of the date of completion of the repairs and Landlord shall
respond to such request within five (5) business days.
11.3 Waiver of Statutory Provisions. The provisions of this Lease,
including this Article 11, constitute an express agreement between Landlord and
Tenant with respect to any and all damage to, or destruction of, all or any part
of the Premises, the Building or the Project, and any statute or regulation of
the State of California, including, without limitation, Sections 1932(2) and
1933(4) of the California Civil Code, with respect to any rights or obligations
concerning damage or destruction in the absence of an express agreement between
the parties, and any other statute or regulation, now or hereafter in effect,
shall have no application to this Lease or any damage or destruction to all or
any part of the Premises, the Building or the Project.
11.4 Damage Near End of Term. In the event that the Premises, the
Building, or the Project is destroyed or damaged to any substantial extent
during the last eighteen (18) months of the Lease Term, then notwithstanding
anything contained in this Article 11, Landlord shall have the option to
terminate this Lease by giving written notice to Tenant of the exercise of such
option within thirty (30) days after such damage or destruction, in which event
this Lease shall cease and terminate as of the date of such notice, Tenant shall
pay the Base Rent and Additional Rent, properly apportioned up to such date of
damage, and both parties hereto shall thereafter be freed and discharged of all
further obligations hereunder, except as provided for in provisions of this
Lease which by their terms survive the expiration or earlier termination of the
Lease Term.
ARTICLE 12
NONWAIVER
No waiver of any provision of this Lease shall be implied by any failure
of Landlord to enforce any remedy on account of the violation of such provision,
even if such violation shall continue or be repeated subsequently, and any
waiver by Landlord of any provision of this Lease may only be in writing.
Additionally, no express waiver shall affect any provision other than the one
specified in such waiver and then only for the time and in the manner
specifically stated. No receipt of monies by Landlord from Tenant after the
termination of this Lease shall in any way
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alter the length of the Lease Term or of Xxxxxx's right of possession hereunder,
or after the giving of any notice shall reinstate, continue or extend the Lease
Term or affect any notice given Tenant prior to the receipt of such monies, it
being agreed that after the service of notice or the commencement of a suit, or
after final judgment for possession of the Premises, Landlord may receive and
collect any Rent due, and the payment of said Rent shall not waive or affect
said notice, suit or judgment.
ARTICLE 13
CONDEMNATION
If the whole or any part of the Premises, Building or Project shall be
taken by power of eminent domain or condemned by any competent authority for any
public or quasi-public use or purpose, or if Landlord shall grant a deed or
other instrument in lieu of such taking by eminent domain or condemnation,
Landlord shall have the option to terminate this Lease upon ninety (90) days'
notice, provided such notice is given no later than one hundred eighty (180)
days after the date of such taking, condemnation, reconfiguration, vacation,
deed or other instrument. If more than twenty-five percent (25%) of the
rentable square feet of the Premises is taken, or if access to the Premises is
substantially impaired, Tenant shall have the option to terminate this Lease
upon ninety (90) days' notice, provided such notice is given no later than one
hundred eighty (180) days after the date of such taking. Landlord shall be
entitled to the entire award or payment in connection therewith, except that
Tenant shall have the right to file any separate claim available to Tenant for
any taking of Tenant's personal property and fixtures belonging to Tenant and
removable by Tenant upon expiration of the Lease Term pursuant to the terms of
this Lease, and for moving expenses, so long as such claims do not diminish the
award available to Landlord, its ground lessor with respect to the Building or
Project or its mortgagee, and such claim is payable separately to Tenant. All
Rent shall be apportioned as of the date of such termination, or the date of
such taking, whichever shall first occur. If any part of the Premises shall be
taken, and this Lease shall not be so terminated, the Rent shall be
proportionately abated. Tenant hereby waives any and all rights it might
otherwise have pursuant to Section 1265.130 of The California Code of Civil
Procedure.
ARTICLE 14
ASSIGNMENT AND SUBLETTING
14.1 Transfers. Tenant shall not, without the prior written consent of
Landlord, assign, mortgage, pledge, hypothecate, encumber, or permit any lien to
attach to, or otherwise transfer, this Lease or any interest hereunder, permit
any assignment, or other transfer of this Lease or any interest hereunder by
operation of law, sublet the Premises or any part thereof, or permit the use of
the Premises by any persons other than Tenant and its employees (all of the
foregoing are hereinafter sometimes referred to collectively as "Transfers" and
any person to whom any Transfer is made or sought to be made is hereinafter
sometimes referred to as a "Transferee"). If Tenant desires Landlord's consent
to any Transfer, Tenant shall notify Landlord in writing, which notice (the
"Transfer Notice") shall include (i) the proposed effective date of the
Transfer, which shall not be less than forty-five (45) days nor more than one
hundred eighty (180) days after the date of delivery of the Transfer Notice,
(ii) a description of the portion of the Premises to be transferred (the
"Subject Space"), (iii) all of the material terms of the proposed Transfer and
the consideration therefor (including calculation of the "Transfer Premium", as
that term is defined in Section 14.3 below, in connection with such Transfer),
the name and address of the proposed Transferee, and a copy of all existing
executed and/or proposed documentation pertaining to the proposed Transfer,
including all existing operative documents to be executed to evidence such
Transfer or the agreements incidental or related to such Transfer, and (iv)
current financial statements of the proposed Transferee certified by an officer,
partner or owner thereof, and any other information reasonably required by
Landlord to determine the financial responsibility, character, and reputation of
the proposed Transferee, nature of such Transferee's business and proposed use
of the Subject Space, and such other information as Landlord may reasonably
require. Any Transfer made without Landlord's prior written consent shall, at
Landlord's option, be null, void and of no effect, and shall, at Landlord's
option, constitute a default by Tenant under this Lease. Whether or not Landlord
consents to any proposed Transfer, Tenant shall pay
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Landlord's review and processing fees, as well as any reasonable legal fees
incurred by Landlord, within thirty (30) days after written request by Xxxxxxxx.
14.2 Landlord's Consent. Landlord shall not unreasonably withhold its
consent to any proposed Transfer of the Subject Space to the Transferee on the
terms specified in the Transfer Notice. Without limitation as to other
reasonable grounds for withholding consent, the parties hereby agree that it
shall be reasonable under this Lease and under any applicable law for Landlord
to withhold consent to any proposed Transfer where one or more of the following
apply:
14.2.1 The Transferee is of a character or reputation or engaged in
a business which is not consistent with the quality of the Building or the
Project, or would be a significantly less prestigious occupant of the Building
than Tenant;
14.2.2 The Transferee is either a governmental agency or
instrumentality thereof;
14.2.3 The Transferee is not a party of reasonable financial worth
and/or financial stability in light of the responsibilities involved under the
Lease on the date consent is requested;
14.2.4 The proposed Transfer would cause a violation of another
lease for space in the Project, or would give an occupant of the Project a right
to cancel its lease;
14.2.5 The terms of the proposed Transfer will allow the Transferee
to exercise a right of renewal, right of expansion, right of first offer, or
other similar right held by Tenant (or will allow the Transferee to occupy space
leased by Tenant pursuant to any such right); or
14.2.7 Either the proposed Transferee, or any person or entity which
directly or indirectly, controls, is controlled by, or is under common control
with, the proposed Transferee, (1) occupies space in the Project at the time of
the request for consent, (ii) is negotiating with Landlord to lease space in the
Project at such time, or (ill) has negotiated with Landlord during the twelve
(12)-month period immediately preceding the Transfer Notice.
If Landlord consents to any Transfer pursuant to the terms of this Section 14.2
(and does not exercise any recapture rights Landlord may have under Section 14.4
of this Lease), Tenant may within six (6) months after Xxxxxxxx's consent, but
not later than the expiration of said six-month period, enter into such Transfer
of the Premises or portion thereof, upon substantially the same terms and
conditions as are set forth in the Transfer Notice furnished by Tenant to
Landlord pursuant to Section 14.1 of this Lease, provided that if there are any
material changes in the terms and conditions from those specified in the
Transfer Notice (i) such that Landlord would initially have been entitled to
refuse its consent to such Transfer under this Section 14.2, or (ii) which would
cause the proposed Transfer to be more favorable to the Transferee than the
terms set forth in Tenant's original Transfer Notice, Tenant shall again submit
the Transfer to Landlord for its approval and other action under this Article 14
(including Xxxxxxxx's right of recapture, if any, under Section 14.4 of this
Lease). Notwithstanding anything to the contrary in this Lease, if Tenant or any
proposed Transferee claims that Landlord has unreasonably withheld or delayed
its consent under Section 14.2 or otherwise has breached or acted unreasonably
under this Article 14, their sole remedies shall be declaratory judgment and an
injunction for the relief sought without any monetary damages, and Tenant hereby
waives all other remedies on its own behalf and, to the extent permitted under
all applicable laws, on behalf of the proposed Transferee.
14.3 Transfer Premium. If Landlord consents to a Transfer, as a condition
thereto which the parties hereby agree is reasonable, Tenant shall pay to
Landlord fifty percent (50%) of any "Transfer Premium," as that term is defined
in this Section 14.3, received by Tenant from such Transferee. "Transfer
Premium" shall mean all rent, additional rent or other consideration payable by
such Transferee in excess of the Rent and Additional Rent payable by Tenant
under this Lease on a per rentable square foot basis if less than all of the
Premises is transferred. "Transfer Premium" shall also include, but not be
limited to, key money and bonus money paid by Transferee to Tenant in connection
with such Transfer, and any payment in excess of fair market value for services
rendered by Tenant to Transferee or for assets, fixtures, inventory, equipment,
or furniture transferred by Tenant to Transferee in connection with such
Transfer. In the calculations of Rent (as it relates to the Transfer Premium
calculated under this Section 14.3), and
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the Transferee's Rent and Quoted Rent under Section 14.2 of this Lease, the Rent
paid during each annual period for the Subject Space by Tenant, and the
Transferee's Rent and the Quoted Rent, shall be computed after adjusting such
rent to the actual effective rent to be paid, taking into consideration any and
all leasehold concessions granted in connection therewith, including, but not
limited to, any rent credit and tenant improvement allowance. For purposes of
calculating any such effective rent all such concessions shall be amortized on a
straight-line basis over the relevant term.
14.4 Landlord's Option as to Subject Space. Notwithstanding anything to
the contrary contained in this Article 14, in the event Tenant contemplates a
Transfer of all or a portion of the Premises (or in the event of any other
Transfer or Transfers entered into by Tenant as a subterfuge in order to avoid
the terms of this Section 14.4), Tenant shall give Landlord notice (the
"Intention to Transfer Notice") of such contemplated Transfer (whether or not
the contemplated Transferee or the terms of such contemplated Transfer have been
determined). The Intention to Transfer Notice shall specify the portion of and
amount of rentable square feet of the Premises which Tenant intends to Transfer
(the "Contemplated Transfer Space"), the contemplated date of commencement of
the Contemplated Transfer (the "Contemplated Effective Date"), and the
contemplated length of the term of such contemplated Transfer, and shall specify
that such Intention to Transfer Notice is delivered to Landlord pursuant to this
Section 14.4 in order to allow Landlord to elect to recapture the Contemplated
Transfer Space for the term set forth in the Intention to Transfer Notice.
Thereafter, Landlord shall have the option, by giving written notice to Tenant
within thirty (30) days after receipt of any Intention to Transfer Notice, to
recapture the Contemplated Transfer Space. In the event such option is exercised
by Landlord, this Lease shall be canceled and terminated with respect to such
Contemplated Transfer Space as of the Contemplated Effective Date until the last
day of the term of the contemplated Transfer as set forth in the Intention to
Transfer Notice. In the event of a recapture by Landlord, if this Lease shall be
canceled with respect to less than the entire Premises, the Rent reserved herein
shall be prorated on the basis of the number of rentable square feet retained by
Tenant in proportion to the number of rentable square feet contained in the
Premises, and this Lease as so amended shall continue thereafter in full force
and effect, and upon request of either party, the parties shall execute written
confirmation of the same. If Landlord declines, or falls to timely elect to
recapture such Contemplated Transfer Space under this Section 14.4, then,
subject to the other terms of this Article 14, for a period of nine (9) months
(the "Nine Month Period") commencing on the last day of such thirty (30) day
period, Landlord shall not have any right to recapture the Contemplated Transfer
Space with respect to any Transfer made during the Nine Month Period, provided
that any such Transfer is substantially on the terms set forth in the Intention
to Transfer Notice, and provided further that any such Transfer shall be subject
to the remaining terms of this Article 14. If such a Transfer is not so
consummated within the Nine Month Period (or if a Transfer is so consummated,
then upon the expiration of the term of any Transfer of such Contemplated
Transfer Space consummated within such Nine Month Period), Tenant shall again be
required to submit a new Intention to Transfer Notice to Landlord with respect
any contemplated Transfer, as provided above in this Section 14.4.
14.5 Effect of Transfer. If Landlord consents to a Transfer, (i) the terms
and conditions of this Lease shall in no way be deemed to have been waived or
modified, (ii) such consent shall not be deemed consent to any further Transfer
by either Tenant or a Transferee, (iii) Tenant shall deliver to Landlord,
promptly after execution, an original executed copy of all documentation
pertaining to the Transfer in form reasonably acceptable to Landlord, (iv)
Tenant shall furnish upon Xxxxxxxx's request a complete statement, certified by
an independent certified public accountant, or Xxxxxx's chief financial officer,
setting forth in detail the computation of any Transfer Premium Tenant has
derived and shall derive from such Transfer, and (v) no Transfer relating to
this Lease or agreement entered into with respect thereto, whether with or
without Landlord's consent, shall relieve Tenant or any guarantor of the Lease
from liability under this Lease.
14.6 Additional Transfers. For purposes of this Lease, the term "Transfer"
shall also include (i) if Tenant is a partnership, the withdrawal or change,
voluntary, involuntary or by operation of law, of twenty-five percent (25%) or
more of the partners, or transfer of twenty-five percent or more of partnership
interests, within a twelve (12)-month period, or the dissolution of the
partnership without immediate reconstitution thereof, and (ii) if Tenant is a
closely held corporation (i.e., whose stock is not publicly held and not traded
through an exchange or over the
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counter), (A) the dissolution, merger, consolidation or other reorganization of
Tenant or, (B) the sale or other transfer of more than an aggregate of
twenty-five percent (25%) of the voting shares of Tenant (other than to
immediate family members by reason of gift or death) within a twelve (12)-month
period, or (C) the sale, mortgage, hypothecation or pledge of more than an
aggregate of twenty-five percent (25%) of the value of the unencumbered assets
of Tenant within a twelve (12)-month period.
14.7 Non-Transfers. Notwithstanding anything to the contrary contained
in this Article 14, an assignment or subletting of all or a portion of the
Premises to an affiliate of Tenant (an entity which is controlled by, controls,
or is under common control with Tenant, or an entity which merges with, is
acquired by, or acquires Tenant (whether through the acquisition of all or
substantially all of the assets or securities of the acquired entity))
(collectively, the "Affiliate"), shall not be deemed a Transfer under this
Article 14, provided that Tenant notifies Landlord of any such assignment or
sublease and promptly supplies Landlord with any documents or information
requested by Landlord regarding such assignment or sublease, or such Affiliate,
and further provided that such assignment or sublease is not a subterfuge by
Tenant to avoid its obligations under this Lease. "Control," as used in this
Section 14.7, shall mean the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a person or
entity, whether through the ownership of voting securities, by contract or
otherwise.
ARTICLE 15
SURRENDER OF PREMISES;
REMOVAL OF TRADE FIXTURES
15.1 Surrender of Premises. No act or thing done by Landlord or any agent
or employee of Landlord during the Lease Term shall be deemed to constitute an
acceptance by Landlord of a surrender of the Premises unless such intent is
specifically acknowledged in a writing signed by Landlord. The delivery of keys
to the Premises to Landlord or any agent or employee of Landlord shall not
constitute a surrender of the Premises or effect a termination of this Lease,
whether or not the keys are thereafter retained by Landlord, and notwithstanding
such delivery Tenant shall be entitled to the return of such keys at any
reasonable time upon request until this Lease shall have been properly
terminated. The voluntary or other surrender of this Lease by Xxxxxx, whether
accepted by Landlord or not, or a mutual termination hereof, shall not work a
merger, and at the option of Landlord shall operate as an assignment to Landlord
of all subleases or subtenancies affecting the Premises.
15.2 Removal of Tenant Property by Xxxxxx. Upon the expiration of the
Lease Term, or upon any earlier termination of this Lease, Tenant shall, subject
to the provisions of this Article 15, quit and surrender possession of the
Premises to Landlord in as good order and condition as when Xxxxxx took
possession and as thereafter improved by Xxxxxxxx and/or Tenant, reasonable wear
and tear and repairs which are specifically made the responsibility of Landlord
hereunder excepted. Upon such expiration or termination, Tenant shall, without
expense to Landlord, remove or cause to be removed from the Premises all debris
and rubbish, and such items of furniture, equipment, free-standing cabinet work,
and other articles of personal property owned by Tenant or installed or placed
by Tenant at its expense in the Premises, and such similar articles of any other
persons claiming under Tenant, as Landlord may, in its sole discretion, require
to be removed, and Tenant shall repair at its own expense all damage to the
Premises and Building resulting from such removal.
ARTICLE 16
HOLDING OVER
If Xxxxxx holds over after the expiration of the Lease Term hereof, with
or without the express or implied consent of Landlord, such tenancy shall be
from month-to-month only, and shall not constitute a renewal hereof or an
extension for any further term, and in such case Base Rent shall be payable at a
monthly rate equal to twice the Base Rent applicable during the last rental
period of the Lease Term under this Lease. Such month-to-month tenancy shall be
subject to every other applicable term, covenant and agreement contained herein.
Nothing contained in this Article 16 shall be construed as consent by Landlord
to any holding over by Xxxxxx, and
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Landlord expressly reserves the right to require Tenant to surrender possession
of the Premises to Landlord as provided in this Lease upon the expiration or
other termination of this Lease. The provisions of this Article 16 shall not be
deemed to limit or constitute a waiver of any other rights or remedies of
Landlord provided herein or at law. If Xxxxxx falls to surrender the Premises
upon the termination or expiration of this Lease, in addition to any other
liabilities to Landlord accruing therefrom, Tenant shall protect, defend,
indemnify and hold Landlord harmless from all loss, costs (including reasonable
attorneys' fees) and liability resulting from such failure, including, without
limiting the generality of the foregoing, any claims made by any succeeding
tenant founded upon such failure to surrender (including such tenant's lost
profits) and any lost profits to Landlord resulting therefrom.
ARTICLE 17
ESTOPPEL CERTIFICATES
Within ten (10) days following a request in writing by Landlord, Tenant
shall execute and deliver to Landlord an estoppel certificate, which, as
submitted by Landlord, shall be substantially in the form of Exhibit D, attached
hereto (or such other form as may be required by any prospective mortgagee or
purchaser of the Project, or any portion thereof), indicating therein any
exceptions thereto that may exist at that time, and shall also contain any other
information reasonably requested by Landlord or Landlord's mortgagee or
prospective mortgagee. Tenant shall execute and deliver whatever other
instruments may be reasonably required for such purposes. Failure of Tenant to
timely execute and deliver such estoppel certificate or other instruments shall
constitute an acceptance of the Premises and an acknowledgment by Tenant that
statements included in the estoppel certificate are true and correct, without
exception.
ARTICLE 18
SUBORDINATION
This Lease shall be subject and subordinate to all present and future
ground or underlying leases of the Building or Project and to the lien of any
first mortgage or trust deed, now or hereafter in force against the Building or
Project, if any, and to all renewals, extensions, modifications, consolidations
and replacements thereof, and to all advances made or hereafter to be made upon
the security of such mortgages or trust deeds, unless the holders of such
mortgages or trust deeds, or the lessors under such ground lease or underlying
leases, require in writing that this Lease be superior thereto. Tenant covenants
and agrees in the event any proceedings are brought for the foreclosure of any
such mortgage or deed in lieu thereof, to attorn, without any deductions or
set-offs whatsoever, to the purchaser or any successors thereto upon any such
foreclosure sale or deed in lieu thereof if so requested to do so by such
purchaser, and to recognize such purchaser as the lessor under this Lease.
Tenant shall, within five (5) days of request by Landlord, execute such further
instruments or assurances as Landlord may reasonably deem necessary to evidence
or confirm the subordination or superiority of this Lease to any such mortgages,
trust deeds, ground leases or underlying leases. Tenant waives the provisions of
any current or future statute, rule or law which may give or purport to give
Tenant any right or election to terminate or otherwise adversely affect this
Lease and the obligations hereunder in the event of any foreclosure proceeding
or sale.
ARTICLE 19
DEFAULTS; REMEDIES
19.1 Defaults. The occurrence of any of the following shall constitute a
default of this Lease by Tenant:
19.1.1 Any failure by Tenant to pay any Rent or any other charge
required to be paid under this Lease, or any part thereof, when due; or
19.1.2 Any failure by Xxxxxx to observe or perform any other
provision, covenant or condition of this Lease to be observed or performed by
Tenant where such failure continues for fifteen (15) days after written notice
thereof from Landlord to Tenant, or
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19.1.3 Abandonment or vacation of the Premises by Xxxxxx; or
19.1.4 To the extent permitted by law, a general assignment by
Tenant or any guarantor of the Lease for the benefit of creditors, or the filing
by or against Tenant or any guarantor of any proceeding under an insolvency or
bankruptcy law, unless in the case of a proceeding filed against Tenant or any
guarantor the same is dismissed within sixty (60) days, or the appointment of a
trustee or receiver to take possession of all or substantially all of the assets
of Tenant or any guarantor, unless possession is restored to Tenant or such
guarantor within thirty (30) days, or any execution or other judicially
authorized seizure of all or substantially all of Tenant's assets located upon
the Premises or of Tenant's interest in this Lease, unless such seizure is
discharged within thirty (30) days; or
19.1.5 The hypothecation or assignment of this Lease or
subletting of the Premises, or attempts at such actions, in violation of Article
14 hereof; or
19.1.6 The failure by Xxxxxx to occupy the Premises within thirty
(30) days after the Substantial Completion of the Premises.
19.2 Remedies Upon Default. Upon the occurrence of any event of default by
Tenant, Landlord shall have, in addition to any other remedies available to
Landlord at law or in equity, the option to pursue any one or more of the
following remedies, each and all of which shall be cumulative and nonexclusive,
without any notice or demand whatsoever.
19.2.1 Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord, and if Tenant fails to do so, Landlord may,
without prejudice to any other remedy which it may have for possession or
arrearages in rent, enter upon and take possession of the Premises and expel or
remove Xxxxxx and any other person who may be occupying the Premises or any part
thereof, without being liable for prosecution or any claim or damages therefor;
and Landlord may recover from Tenant the following:
(i) The worth at the time of award of any unpaid rent which
has been earned at the time of such termination; plus
(ii) The worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until the time
of award exceeds the amount of such rental loss that Tenant proves could
have been reasonably avoided; plus
(iii) The worth at the time of award of the amount by which
the unpaid rent for the balance of the Lease Term after the time of award
exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided; plus
(iv) Any other amount necessary to compensate Landlord for all
the detriment proximately caused by Xxxxxx's failure to perform its
obligations under this Lease or which in the ordinary course of things
would be likely to result therefrom, specifically including but not
limited to, brokerage commissions and advertising expenses incurred,
expenses of remodeling the Premises or any portion thereof for a new
tenant, whether for the same or a different use, and any special
concessions made to obtain a new tenant; and
(v) At Landlord's election, such other amounts in addition to
or in lieu of the foregoing as may be permitted from time to time by
applicable law.
The term "rent" as used in this Section 19.2 shall be deemed to be and to mean
all sums of every nature required to be paid by Tenant pursuant to the terms of
this Lease, whether to Landlord or to others. As used in Paragraphs 19.2.1(i)
and (ii), above, the "worth at the time of award" shall be computed by allowing
interest at the rate set forth in Article 25 of this Lease, but in no case
greater than the maximum amount of such interest permitted by law. As used in
Paragraph 19.2.1(iii) above, the "worth at the time of award" shall be
computed by discounting such amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of award plus one percent (1%).
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19.2.2 Landlord shall have the remedy described in California Civil
Code Section 1951.4 (lessor may continue lease in effect after xxxxxx's breach
and abandonment and recover rent as it becomes due, if xxxxxx has the right to
sublet or assign, subject only to reasonable limitations). Accordingly, if
Landlord does not elect to terminate this Lease on account of any default by
Tenant, Landlord may, from time to time, without terminating this Lease, enforce
all of its rights and remedies under this Lease, including the right to recover
all Rent as it becomes due.
19.3 Sublessees of Tenant. Whether or not Landlord elects to terminate
this Lease on account of any default by Tenant as set forth in this Article 19,
Landlord shall have the right to terminate any and all subleases, licenses,
concessions or other consensual arrangements for possession entered into by
Xxxxxx and affecting the Premises or may, in Xxxxxxxx's sole discretion, succeed
to Xxxxxx's interest in such subleases, licenses, concessions or arrangements.
In the event of Xxxxxxxx's election to succeed to Xxxxxx's interest in any such
subleases, licenses, concessions or arrangements, Tenant shall, as of the date
of notice by Landlord of such election, have no further right to or interest in
the rent or other consideration receivable thereunder.
ARTICLE 20
ATTORNEYS' FEES
If either party commences litigation against the other for the specific
performance of this Lease, for damages for the breach hereof or otherwise for
enforcement of any remedy hereunder, the parties hereto agree to and hereby do
waive any fight to a trial by jury and, in the event of any such commencement of
litigation, the prevailing party shall be entitled to recover from the other
party such costs and reasonable attorneys' fees as may have been incurred.
ARTICLE 21
SECURITY DEPOSIT
Landlord and Xxxxxx acknowledge that Xxxxxx has previously delivered an
amount equal to Four Thousand Five Hundred Ninety Dollars ($4,590.00) to
Landlord as a security deposit (the "Existing Security Deposit") pursuant to the
terms of the Prior Lease. Effective as of the Lease Commencement Date, Landlord
shall apply the Existing Security Deposit then held by Landlord towards the
amount set forth in Section 8 of the Summary (the "Security Deposit"). The
Security Deposit shall be held by Landlord as security for the faithful
performance by Tenant of all the terms, covenants, and conditions of this Lease
to be kept and performed by Tenant during the Lease Term; provided that
concurrent with Xxxxxx's execution of this Lease, Tenant shall deposit with
Landlord an amount equal to One Thousand Two Hundred Forty-Four and 40/100
Dollars ($1,244.40), which amount shall constitute a part of the Security
Deposit. To the extent that as of the Lease Commencement Date, the total amount
then held by Landlord is less than Five Thousand Eight Hundred Thirty-Four and
40/100 Dollars ($5,834.40), Tenant shall pay the difference to Landlord within
ten (10) days following Xxxxxx's receipt of notice thereof from Landlord. If
Tenant defaults with respect to any provisions of this Lease, including, but not
limited to, the provisions relating to the payment of Rent, Landlord may, but
shall not be required to, use, apply or retain all or any part of the Security
Deposit for the payment of any Rent or any other sum in default, or for the
payment of any amount that Landlord may spend or become obligated to spend by
reason of Tenant's default, or to compensate Landlord for any other loss or
damage that Landlord may suffer by reason of Tenant's default. If any portion of
the Security Deposit is so used or applied, Tenant shall, within five (5) days
after written demand therefor, deposit cash with Landlord in an amount
sufficient to restore the Security Deposit to its original amount, and Xxxxxx's
failure to do so shall be a default under this Lease. If Tenant shall fully and
faithfully perform every provision of this Lease to be performed by it, the
Security Deposit, or any balance thereof, shall be returned to Tenant, or, at
Landlord's option, to the last assignee of Xxxxxx's interest hereunder, within
sixty (60) days following the expiration of the Lease Term. Tenant shall not be
entitled to any interest on the Security Deposit.
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ARTICLE 22
SUBSTITUTION OF OTHER PREMISES
Landlord shall have the privilege of moving Tenant to other space in the
Building comparable to the Premises, and all terms hereof shall apply to the new
space with equal force, provided that Tenant's then existing monetary
obligations under this Lease shall not be increased as a result of such
relocation of the Premises. In such event, Landlord shall give Tenant at least
sixty (60) days prior notice, shall provide Tenant, at Landlord's sole cost and
expense, with tenant improvements at least equal in quality to those in the
Premises and shall move Tenant's effects to the new space at Landlord's sole
cost and expense at such time and in such manner as to inconvenience Tenant as
little as practicable. In addition, Landlord shall reimburse Tenant for the
reasonable costs and expenses incurred by Tenant in connection with such
relocation (including, but not limited to, the costs of reasonable supplies of
replacement stationery and telephone installations), within thirty (30) days of
Landlord's receipt of an invoice therefor. Simultaneously with such relocation
of the Premises, the parties shall immediately execute an amendment to this
Lease stating the relocation of the Premises.
ARTICLE 23
SIGNS
Tenant's identifying signage shall be provided by Landlord, at Tenant's
cost, and such signage shall be comparable to that used by Landlord for other
similar floors in the Building and shall comply with Landlord's Building
standard signage program. Any signs, notices, logos, pictures, names or
advertisements which are installed and that have not been separately approved by
Landlord may be removed without notice by Landlord at the sole expense of
Tenant. Tenant may not install any signs on the exterior or roof of the Project
or the Common Areas. Any signs, window coverings, or blinds (even if the same
are located behind the Landlord-approved window coverings for the Building), or
other items visible from the exterior of the Premises or Building, shall be
subject to the prior approval of Landlord, in its sole discretion. Tenant's
identifying entry on the building directory located in the lobby of the Building
shall be provided by Landlord, at Tenant's cost.
ARTICLE 24
COMPLIANCE WITH LAW
Tenant shall not do anything or suffer anything to be done in or about the
Premises which will in any way conflict with any law, statute, ordinance or
other governmental rule, regulation or requirement now in force or which may
hereafter be enacted or promulgated. At its sole cost and expense, Tenant shall
promptly comply with all such governmental measures, other than the making of
structural changes or changes to the Building's life safety system. Should any
standard or regulation now or hereafter be imposed on Landlord or Tenant by a
state, federal or local governmental body charged with the establishment,
regulation and enforcement of occupational, health or safety standards for
employers, employees, landlords or tenants, then Tenant agrees, at its sole cost
and expense, to comply promptly with such standards or regulations. The judgment
of any court of competent jurisdiction or the admission of Tenant in any
judicial action, regardless of whether Landlord is a party thereto, that Xxxxxx
has violated any of said governmental measures, shall be conclusive of that fact
as between Landlord and Tenant.
ARTICLE 25
LATE CHARGES
If any installment of Rent or any other sum due from Tenant shall not be
received by Landlord or Landlord's designee within three (3) days after said
amount is due, then Tenant shall pay to Landlord a late charge equal to five
percent (5%) of the overdue amount plus any attorneys' fees incurred by Landlord
by reason of Tenant's failure to pay Rent and/or other charges when due
hereunder. The late charge shall be deemed Additional Rent and the right to
require it shall be in addition to all of Landlord's other rights and remedies
hereunder or at law
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and shall not be construed as liquidated damages or as limiting Landlord's
remedies in any manner. In addition to the late charge described above, any Rent
or other amounts owing hereunder which are not paid within three (3) days after
the date they are due shall bear interest from the date when due until paid at a
rate per annum equal to the lesser of (1) eighteen percent (18%) per annum or
(ii) the highest rate permitted by applicable law.
ARTICLE 26
LANDLORD'S RIGHT TO CURE DEFAULT; PAYMENTS BY TENANT
26.1 Landlord's Cure. All covenants and agreements to be kept or performed
by Tenant under this Lease shall be performed by Tenant at Tenant's sole cost
and expense and without any reduction of Rent. If Tenant shall fail to perform
any of its obligations under this Lease, within a reasonable time after such
performance is required by the terms of this Lease, Landlord may, but shall not
be obligated to, after reasonable prior notice to Tenant (except in the case of
an emergency), make any such payment or perform any such act on Tenant's part
without waiving its rights based upon any default of Tenant and without
releasing Tenant from any obligations hereunder.
26.2 Tenant's Reimbursement. Except as may be specifically provided to the
contrary in this Lease, Tenant shall pay to Landlord, within fifteen (15) days
after delivery by Landlord to Tenant of statements therefor: (i) sums equal to
expenditures reasonably made and obligations incurred by Landlord in connection
with the remedying by Landlord of Tenant's defaults pursuant to the provisions
of Section 26.1; (ii) sums equal to all losses, costs, liabilities, damages and
expenses referred to in Article 10 of this Lease; and (iii) sums equal to all
expenditures made and obligations incurred by Landlord in collecting or
attempting to collect the Rent or in enforcing or attempting to enforce any
rights of Landlord under this Lease or pursuant to law, including, without
limitation, all legal fees and other amounts so expended. Tenant's obligations
under this Section 26.2 shall survive the expiration or sooner termination of
the Lease Term.
ARTICLE 27
ENTRY BY LANDLORD
Landlord reserves the right at all reasonable times and upon reasonable
notice to Tenant (except in the case of an emergency) to enter the Premises to
(i) inspect them; (ii) show the Premises to prospective purchasers, mortgagees
or tenants, or to the ground or underlying lessors; (iii) post notices of
nonresponsibility; or (iv) alter, improve or repair the Premises or the Building
if necessary to comply with current building codes or other applicable laws, or
for structural alterations, repairs or improvements to the Building.
Notwithstanding anything to the contrary contained in this Article 27, Landlord
may enter the Premises at any time to (A) perform services required of Landlord;
(B) take possession due to any breach of this Lease in the manner provided
herein; and (C) perform any covenants of Tenant which Xxxxxx fails to perform.
Landlord may make any such entries without the abatement of Rent and may take
such reasonable steps as required to accomplish the stated purposes. Tenant
hereby waives any claims for damages or for any injuries or inconvenience to or
interference with Xxxxxx's business, lost profits, any loss of occupancy or
quiet enjoyment of the Premises, and any other loss occasioned thereby. For each
of the above purposes, Landlord shall at all times have a key with which to
unlock all the doors in the Premises, excluding Tenant's vaults, safes and
special security areas designated in advance by Tenant. In an emergency,
Landlord shall have the right to use any means that Landlord may deem proper to
open the doors in and to the Premises. Any entry into the Premises by Landlord
in the manner hereinbefore described shall not be deemed to be a forcible or
unlawful entry into, or a detainer of, the Premises, or an actual or
constructive eviction of Tenant from any portion of the Premises.
ARTICLE 28
TENANT PARKING
Tenant shall be obligated to rent from Landlord, commencing on the Lease
Commencement Date, one (1) parking pass for the use of a reserved parking space,
and two (2)
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unreserved parking passes, on a monthly basis throughout the Lease Term, which
parking passes shall pertain to the Project parking facility. Tenant shall have
a one (1) time right to increase or decrease the number of reserved and/or
unreserved parking passes rented by Tenant during the Lease Term upon thirty
(30) days prior written notice to Landlord, but in no event may Tenant rent more
than the number of reserved or unreserved parking passes set forth in Section 9
of the Summary. Tenant shall pay to Landlord for automobile parking passes on a
monthly basis the prevailing rate charged from time to time for parking passes
in the Project. Tenant's continued right to use the parking passes is
conditioned upon Tenant abiding by all rules and regulations which are
prescribed from time to time for the orderly operation and use of the Project
parking facility and upon Tenant's cooperation in seeing that Xxxxxx's employees
and visitors also comply with such rules and regulations. Landlord specifically
reserves the right to change the size, configuration, design, layout and all
other aspects of the Project parking facility at any time and Tenant
acknowledges and agrees that Landlord may, without incurring any liability to
Tenant and without any abatement of Rent under this Lease, from time to time,
close-off or restrict access to the Project parking facility for purposes of
permitting or facilitating any such construction, alteration or improvements.
Landlord may delegate its responsibilities hereunder to a parking operator in
which case such parking operator shall have all the rights of control attributed
hereby to the Landlord. The parking passes rented by Tenant pursuant to this
Article 28 are provided to Tenant solely for use by Xxxxxx's own personnel and
such passes may not be transferred, assigned, subleased or otherwise alienated
by Tenant, except to an Affiliate of Tenant, without Xxxxxxxx's prior approval.
ARTICLE 29
MISCELLANEOUS PROVISIONS
29.1 Binding Effect. Subject to all other provisions of this Lease, each
of the provisions of this Lease shall extend to and shall, as the case may
require, bind or inure to the benefit not only of Landlord and of Tenant, but
also of their respective successors or assigns, provided this clause shall not
permit any assignment by Tenant contrary to the provisions of Article 14 of this
Lease.
29.2 Modification of Lease. Should any current or prospective mortgagee or
ground lessor for the Building or Project require a modification or
modifications of this Lease, which modification or modifications will not cause
an increased cost or expense to Tenant or in any other way materially and
adversely change the rights and obligations of Tenant hereunder, then and in
such event, Xxxxxx agrees that this Lease may be so modified and agrees to
execute whatever documents are reasonably required therefor and to deliver the
same to Landlord within ten (10) days following a request therefor. Should
Landlord or any such prospective mortgagee or ground lessor require execution of
a short form of Lease for recording, containing, among other customary
provisions, the names of the parties, a description of the Premises and the
Lease Term, Xxxxxx agrees to execute and deliver such short form of Lease to
Landlord within ten (10) days following the request therefor.
29.3 Transfer of Landlord's Interest. Tenant acknowledges that Xxxxxxxx
has the right to transfer all or any portion of its interest in the Project or
Building and in this Lease, and Xxxxxx agrees that in the event of any such
transfer, Landlord shall automatically be released from all liability under this
Lease and Xxxxxx agrees to look solely to such transferee for the performance of
Landlord's obligations hereunder after the date of transfer. Tenant further
acknowledges that Landlord may assign its interest in this Lease to the holder
of any mortgage or deed of trust as additional security, but agrees that an
assignment shall not release Landlord from its obligations hereunder and Tenant
shall continue to look to Landlord for the performance of its obligations
hereunder.
29.4 Prohibition Against Recording. Except as provided in Section 29.3 of
this Lease, neither this Lease, nor any memorandum, affidavit or other writing
with respect thereto, shall be recorded by Tenant or by anyone acting through,
under or on behalf of Tenant, and the recording thereof in violation of this
provision shall make this Lease null and void at Landlord's election.
29.5 Captions. The captions of Articles and Sections are for convenience
only and shall not be deemed to limit, construe, affect or alter the meaning of
such Articles and Sections.
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29.6 Time of Essence. Time is of the essence of this Lease and each of its
provisions.
29.7 Partial Invalidity. If any term, provision or condition contained in
this Lease shall, to any extent, be invalid or unenforceable, the remainder of
this Lease, or the application of such term, provision or condition to persons
or circumstances other than those with respect to which it is invalid or
unenforceable, shall not be affected thereby, and each and every other term,
provision and condition of this Lease shall be valid and enforceable to the
fullest extent possible permitted by law.
29.8 No Warranty. In executing and delivering this Lease, Tenant has not
relied on any representations, including, but not limited to, any representation
as to the amount of any item comprising Additional Rent or the amount of the
Additional Rent in the aggregate or that Landlord is furnishing the same
services to other tenants, at all, on the same level or on the same basis, or
any warranty or any statement of Landlord which is not set forth herein or in
one or more of the exhibits attached hereto.
29.9 Child Care Facilities. Tenant acknowledges that any child care
facilities located in the Project (the "Child Care Facilities") which are
available to Tenant and Tenant's employees are provided by a third party (the
"Child Care Provider") which is leasing space in the Project, and not by
Landlord. If Tenant or its employees choose to use the Child Care Facilities,
Tenant acknowledges that Tenant and Tenant's employees are not relying upon any
investigation which Landlord may have conducted concerning the Child Care
Provider or any warranties or representation with respect thereto, it being the
sole responsibility of Tenant and the individual user of the Child Care
Facilities to conduct any and all investigations of the Child Care Facilities
prior to making use thereof. Accordingly, Landlord shall have no responsibility
with respect to the quality or care provided by the Child Care Facilities, or
for any acts or omissions of the Child Care Provider. Furthermore, Tenant, for
Tenant and for Tenant's employees, hereby agrees that Landlord, its members and
their respective partners, subpartners, officers, agents, servants, employees,
and independent contractors shall not be liable for, and are hereby released
from any responsibility for any loss, cost, damage, expense or liability, either
to person or property, arising from the use of the Child Care Facilities by
Tenant or Tenant's employees. Tenant hereby covenants that Tenant shall inform
all of Tenant's employees of the provisions of this Section 29.9 prior to such
employees' use of the Child Care Facilities.
29.10 Entire Agreement. It is understood and acknowledged that there are
no oral agreements between the parties hereto affecting this Lease and this
Lease supersedes and cancels any and all previous negotiations, arrangements,
brochures, agreements and understandings, if any, between the parties hereto or
displayed by Landlord to Tenant with respect to the subject matter thereof, and
none thereof shall be used to interpret or construe this Lease. This Lease and
any side letter or separate agreement executed by Landlord and Tenant in
connection with this Lease and dated of even date herewith, contain all of the
terms, covenants, conditions, warranties and agreements of the parties relating
in any manner to the rental, use and occupancy of the Premises and shall be
considered to be the only agreements between the parties hereto and their
representatives and agents. None of the terms, covenants, conditions or
provisions of this Lease can be modified, deleted or added to except in writing
signed by the parties hereto.
29.11 Right to Lease. Landlord reserves the absolute right to effect such
other tenancies in the Project as Landlord in the exercise of its sole business
judgment shall determine to best promote the interests of the Building or
Project. Tenant does not rely on the fact, nor does Landlord represent, that any
specific tenant or type or number of tenants shall, during the Lease Term,
occupy any space in the Building or Project.
29.12 Force Majeure. Any prevention, delay or stoppage due to strikes,
lockouts, labor disputes, acts of God, inability to obtain services, labor, or
materials or reasonable substitutes therefor, governmental actions, civil
commotions, fire or other casualty, and other causes beyond the reasonable
control of the party obligated to perform, except with respect to the
obligations imposed with regard to Rent and other charges to be paid by Tenant
pursuant to this Lease (collectively, the "Force Majeure"), notwithstanding
anything to the contrary contained in this Lease, shall excuse the performance
of such party for a period equal to any such prevention, delay or stoppage and,
therefore, if this Lease specifies a time period for performance of an
obligation
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of either party, that time period shall be extended by the period of any delay
in such party's performance caused by a Force Majeure.
29.13 Notices. All notices, demands, statements, designations, approvals
or other communications (collectively, "Notices") given or required to be given
by either party to the other hereunder shall be in writing, shall be sent by
United States certified or registered mail, postage prepaid, return receipt
requested, or delivered personally (i) to Tenant at the appropriate address set
forth in Section 11 of the Summary, or to such other place as Tenant may from
time to time designate in a Notice to Landlord; or (ii) to Landlord at the
following addresses, or to such other firm or to such other place as Landlord
may from time to time designate in a Notice to Tenant:
X.X. Xxxxxx Investment Management, Inc.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxx, Vice-President
and
Xxxxxx & Company
0000 00xx Xxxxxx
Xxxxx 0000X
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Building Manager
With a copy to:
Xxxxx, Matkins, Xxxx, Xxxxxx & Xxxxxxx
1999 Avenue of the Stars, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Any Notice will be deemed given on the date it is mailed as provided in this
Section 29.13 or upon the date personal delivery is made. If Tenant is notified
of the identity and address of the holder of any deed of trust or ground or
underlying lessor, Tenant shall give to such mortgagee or ground or underlying
lessor written notice of any default by Landlord under the terms of this Lease
by registered or certified mail, and such mortgagee or ground or underlying
lessor shall be given a reasonable opportunity to cure such default prior to
Tenant's exercising any remedy available to Tenant.
29.14 Joint and Several. If there is more than one Tenant, the obligations
imposed upon Tenant under this Lease shall be joint and several.
29.15 Authority. If Tenant is a corporation or partnership, each
individual executing this Lease on behalf of Tenant hereby represents and
warrants that Tenant is a duly formed and existing entity qualified to do
business in California and that Tenant has full right and authority to execute
and deliver this Lease and that each person signing on behalf of Tenant is
authorized to do so.
29.16 Governing Law. This Lease shall be construed and enforced in
accordance with the laws of the State of California.
29.17 Submission of Lease. Submission of this instrument for examination
or signature by Xxxxxx does not constitute a reservation of or an option for
lease, and it is not effective as a lease or otherwise until execution and
delivery by both Landlord and Tenant.
29.18 Brokers. Landlord and Tenant hereby warrant to each other that they
have had no dealings with any real estate broker or agent in connection with the
negotiation of this Lease, excepting only the real estate brokers or agents
specified in Section 10 of the Summary (the "Brokers"), whose commissions shall
be the responsibility of Landlord pursuant to a separate written agreement, and
that they know of no other real estate broker or agent who is entitled to a
commission in connection with this Lease. Each party agrees to indemnify and
defend the other
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party against and hold the other party harmless from any and all claims,
demands, losses, liabilities, lawsuits, judgments, and costs and expenses
(including without limitation reasonable attorneys' fees) with respect to any
leasing commission or equivalent compensation alleged to be owing on account of
any dealings with any real estate broker or agent, other than the Brokers,
occurring by, through, or under the indemnifying party.
29.19 Independent Covenants. This Lease shall be construed as though the
covenants herein between Landlord and Tenant are independent and not dependent
and Tenant hereby expressly waives the benefit of any statute to the contrary
and agrees that if Landlord fails to perform its obligations set forth herein,
Tenant shall not be entitled to make any repairs or perform any acts hereunder
at Landlord's expense or to any setoff of the Rent or other amounts owing
hereunder against Landlord; provided, however, that the foregoing shall in no
way impair the right of Tenant to commence a separate action against Landlord
for any violation by Landlord of the provisions hereof so long as notice
is first given to Landlord and any holder of a mortgage or deed of trust
covering the Building or Project or any portion thereof, whose address has
theretofore been given to Tenant, and an opportunity is granted to Landlord and
such holder to correct such violations as provided above.
29.20 Project or Building Name and Signage. Landlord shall have the
right at any time to change the name of the Project or Building and to install,
affix and maintain any and all signs on the exterior and on the interior of the
Project or Building as Landlord may, in Landlord's sole discretion, desire.
Tenant shall not use the name of the Project or Building or use pictures or
illustrations of the Project or Building in advertising or other publicity,
without the prior written consent of Landlord.
29.21 Transportation Management. Tenant shall fully comply with all
present or future programs intended to manage parking, transportation or traffic
in and around the Project or Building, and in connection therewith, Tenant shall
take responsible action for the transportation planning and management of all
employees located at the Premises by working directly with Landlord, any
governmental transportation management organization or any other transportation-
related committees or entities. Such programs may include, without limitation:
(i) restrictions on the number of peak-hour vehicle trips generated by Tenant;
(ii) increased vehicle occupancy; (iii) implementation of an in-house
ridesharing program and an employee transportation coordinator; (iv) working
with employees and any Project, Building or area-wide ridesharing program
manager; (v) instituting employer-sponsored incentives (financial or in-kind) to
encourage employees to rideshare; and (vi) utilizing flexible work shifts for
employees.
29.22 No Discrimination. Tenant covenants by and for itself, its heirs,
executors, administrators and assigns, and all persons claiming under or through
Tenant, and this Lease is made and accepted upon and subject to the following
conditions: that there shall be no discrimination against or segregation of any
person or group of persons, on account of race, color, creed, sex, religion,
marital status, ancestry or national origin in the leasing, subleasing,
transferring, use, or enjoyment of the Premises, nor shall Tenant itself, or any
person claiming under or through Tenant, establish or permit such practice or
practices of discrimination or segregation with reference to the selection,
location, number, use or occupancy, of tenants, lessees, sublessees, subtenants
or vendees in the Premises.
29.23 Hazardous Material. As used herein, the term "Hazardous Material"
means any hazardous or toxic substance, material or waste which is or becomes
regulated by, or is dealt with in, any local governmental authority, the State
of California or the United States Government. Tenant acknowledges that Landlord
may incur costs (A) for complying with laws, codes, regulations or ordinances
relating to Hazardous Material, or (B) otherwise in connection with Hazardous
Material including, without limitation, the following: (i) Hazardous Material
present in soil or ground water; (ii) Hazardous Material that migrates, flows,
percolates, diffuses or in any way moves onto or under the Project; (iii)
Hazardous Material present on or under the Project as a result of any discharge,
dumping or spilling (whether accidental or otherwise) on the Project by other
tenants of the Project or their agents, employees, contractors or invitees, or
by others; and (iv) material which becomes Hazardous Material due to a change in
laws, codes, regulations or ordinances which relate to hazardous or toxic
material, substances or waste. Xxxxxx agrees that the costs incurred by Landlord
with respect to, or in connection with, the Project for complying with laws,
codes, regulations or ordinances relating to Hazardous Material shall be an
Operating
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Expense, unless the cost of such compliance, as between Landlord and Tenant, is
made the responsibility of Tenant under this Lease. To the extent any such
Operating Expense relating to Hazardous Material is subsequently recovered or
reimbursed through insurance, or recovery from responsible third parties, or
other action, Tenant shall be entitled to a proportionate share of such
Operating Expense to which such recovery or reimbursement relates.
29.24 Development of the Project.
29.24.1 Subdivision. Tenant acknowledges that the Project has been
subdivided. Landlord reserves the right to further subdivide all or a portion of
the buildings and Common Areas in the Project. Xxxxxx agrees to execute and
deliver, upon demand by Landlord and in the form requested by Landlord, any
additional documents needed to conform this Lease to the circumstances resulting
from a subdivision and any all maps in connection therewith. Notwithstanding
anything to the contrary set forth in this Lease, the separate ownership of any
buildings and/or Common Areas of the Project by an entity other than Landlord
shall not affect the calculation of Project Expenses or Tenant's payment of
Tenant's Share of Project Expenses.
29.24.2 The Other Improvements. If portions of the Project or
property adjacent to the Project (collectively, the "Other Improvements") are
owned by an entity other than Landlord, Landlord, at its option, may enter into
an agreement with the owner or owners of any of the Other Improvements to
provide (i) for reciprocal rights of access, use and/or enjoyment of the Project
and the Other Improvements, (ii) for the common management, operation,
maintenance, improvement and/or repair of all or any portion of the Project and
all or any portion of the Other Improvements, (iii) for the allocation of a
portion of the Project Expenses to the Other Improvements and the allocation of
a portion of the operating expenses and taxes for the Other Improvements to the
Project, (iv) for the use or improvement of the Other Improvements and/or the
Project in connection with the improvement, construction, and/or excavation of
the Other Improvements and/or the Project, and (v) for any other matter which
Landlord deems necessary. Nothing contained herein shall be deemed or construed
to limit or otherwise affect Landlord's right to sell all or any portion of the
Project or any other of Landlord's rights described in this Lease.
29.24.3 Construction of Project and Other Improvements. Tenant
acknowledges that portions of the Project and/or the Other Improvements may be
under construction following Tenant's occupancy of the Premises, and that such
construction may result in levels of noise, dust, obstruction of access, etc.
which are in excess of that present in a fully constructed project. Tenant
hereby waives any and all rent offsets or claims of constructive eviction which
may arise in connection with such construction.
29.25 Tenant's ERISA Representation. Tenant hereby represents and warrants
to Landlord that none of the assets of Tenant are "plan assets" as that term is
defined in 29 C.F.R. ss. 2509.75-2 or ss. 2510.3-101.
29.26 Landlord Exculpation. It is expressly understood and agreed that
notwithstanding anything in this Lease to the contrary, and notwithstanding any
applicable law to the contrary, the liability of Landlord hereunder (including
any successor landlord hereunder) and any recourse by Tenant against Landlord
shall be limited solely and exclusively to the interest of Landlord in and to
the Building and Real Property, and neither Landlord, nor any of its members,
shall have any personal liability therefor, and Tenant, on behalf of itself and
all persons claiming by, through or under Tenant, hereby expressly waives and
releases Landlord and such members from any and all personal liability.
-29-
IN WITNESS WHEREOF, Landlord and Xxxxxx have caused this Lease to be
executed the day and date first above written.
"Landlord":
WATER GARDEN COMPANY L.L.C.,
a Delaware Limited Liability Company
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Xxxxxx X. Xxxx
Vice President
"Tenant":
INTERNATIONAL CAPITAL GROWTH, LTD.,
a Delaware corporation
By: Xxxxxxx Xxxxxxxxx
-------------------------------
Its: President
--------------------------
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------
Its: President
--------------------------
-30-
EXHIBIT A
THE WATER GARDEN
OUTLINE OF PREMISES
[MAP OF THE WATER GARDEN]
THE SIXTH FLOOR CATTERALL DESIGN OFFICE
WATER 0000 XXXXXXX XXXXXXXXX XXXXXXXX TENANT IMPROVEMENTS
GARDEN NOT TO SCALE REVISED: 10 JULY 1996
EXHIBIT A--Page 1
EXHIBIT B
THE WATER GARDEN
NOTICE OF LEASE TERM DATES
To: ---------------------
---------------------
---------------------
---------------------
Re: Office Lease dated ______________________, 19__ between WATER GARDEN
COMPANY L.L.C., a Delaware Limited Liability Company ("Landlord"), and
_______________________________, a ___________________________ ("Tenant")
concerning Suite ____________ on floor(s)________________ of the office
building located at __________________________________, Santa Monica,
California.
Gentlemen:
In accordance with the referenced Office Lease (the "Lease"), we wish to
advise you and/or confirm as follows:
1. The Substantial Completion of the Premises has occurred, and the
Lease Term shall commence on or has commenced on ___________________
for a term of _______________________ ending on ___________________.
2. Rent commenced to accrue on ___________________________, in the amount
of ____________________.
3. If the Lease Commencement Date is other than the first day of the
month, the first billing will contain a pro rata adjustment. Each
billing thereafter, with the exception of the final billing, shall
be for the full amount of the monthly installment as provided for
in the Lease.
4. Your rent checks should be made payable to _________________________
at __________________________________.
5 The exact number of rentable square feet within the Premises is
____________________ square feet.
6. Tenant's Share as adjusted based upon the exact number of rentable
square feet within the Premises is _______%.
Pursuant to the terms of Article 2 of your Lease, you are required to
return an executed copy of this Notice to __________________ within five (5)
days following your receipt hereof, and thereafter the statements set forth
herein shall be conclusive and binding upon you. Your failure to timely execute
and return this Notice shall constitute your acknowledgment that the statements
included herein are true and correct, without exception.
EXHIBIT B - Page 1
"Landlord":
WATER GARDEN COMPANY L.L.C.,
a Delaware Limited Liability Company
By:
------------------------------------
Its:
-------------------------------
Agreed to and Accepted as
of____________________, 19__.
"Tenant":
------------------------------,
a
----------------------------
By:
---------------------------
Its:
---------------------
By:
---------------------------
Its:
---------------------
EXHIBIT B - Page 2
EXHIBIT C
THE WATER GARDEN
RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the following Rules and
Regulations. Landlord shall not be responsible to Tenant for the nonperformance
of any of said Rules and Regulations by or otherwise with respect to the acts
or omissions of any other tenants or occupants of the Project.
1. Tenant shall not alter any lock or install any new or additional locks
or bolts on any doors or windows of the Premises without obtaining Landlord's
prior written consent. Tenant shall bear the cost of any lock changes or repairs
required by Tenant. Two keys will be furnished by Landlord for the Premises, and
any additional keys required by Tenant must be obtained from Landlord at a
reasonable cost to be established by Landlord.
2. All doors opening to public corridors shall be kept closed at all times
except for normal ingress and egress to the Premises.
3. Landlord reserves the right to close and keep locked all entrance and
exit doors of the Building during such hours as are customary for comparable
buildings in the greater Los Angeles area. Tenant, its employees and agents must
be sure that the doors to the Building are securely closed and locked when
leaving the Premises if it is after the normal hours of business for the
Building. Any tenant, its employees, agents or any other persons entering or
leaving the Building at any time when it is so locked, or any time when it is
considered to be after normal business hours for the Building, may be required
to sign the Building register. Access to the Building may be refused unless the
person seeking access has proper identification or has a previously arranged
pass for access to the Building. The Landlord and his agents shall in no case be
liable for damages for any error with regard to the admission to or exclusion
from the Building of any person. In case of invasion, mob, riot, public
excitement, or other commotion, Landlord reserves the right to prevent access to
the Building or the Project during the continuance thereof by any means it deems
appropriate for the safety and protection of life and property.
4. No furniture, freight or equipment of any kind shall be brought into
the Building without prior notice to Landlord. All moving activity into or out
of the Building shall be scheduled with Landlord and done only at such time and
in such manner as Landlord designates. No service deliveries (other than
messenger services) will be allowed between hours of 4:00 p.m. to 6:00 p.m.,
Monday through Friday. Landlord shall have the right to prescribe the weight,
size and position of all safes and other heavy property brought into the
Building and also the times and manner of moving the same in and out of the
Building. Safes and other heavy objects shall, if considered necessary by
Landlord, stand on supports of such thickness as is necessary to properly
distribute the weight. Landlord will not be responsible for loss of or damage to
any such safe or property in any case. Any damage to any part of the Building,
its contents, occupants or visitors by moving or maintaining any such safe or
other property shall be the sole responsibility and expense of Tenant.
5. No furniture, packages, supplies, equipment or merchandise will be
received in the Building or carried up or down in the elevators, except between
such hours and in such specific elevator as shall be designated by Landlord.
6. Any requests of Tenant shall be directed to the management office for
the Project or at such office location designated by Landlord. Employees of
Landlord shall not perform any work or do anything outside their regular duties
unless under special instructions from Landlord.
7. Tenant shall not disturb, solicit, or canvass any occupant of the
Project and shall cooperate with Landlord and its agents to prevent such
activities.
8. The toilet rooms, urinals, wash bowls and other apparatus shall not be
used for any purpose other than that for which they were constructed, and no
foreign substance of any kind whatsoever shall be thrown therein. The expense of
any breakage, stoppage or damage resulting
EXHIBIT C - Page 1
from the violation of this rule shall be borne by the tenant who, or whose
employees or agents, shall have caused it.
9. Tenant shall not overload the floor of the Premises, nor mark, drive
nails or screws, or drill into the partitions, woodwork or plaster or in any way
deface the Premises or any part thereof without Landlord's consent first had and
obtained.
10. Except for vending machines intended for the sole use of Tenant's
employees and invitees, no vending machines other than fractional horsepower
office machines shall be installed, maintained or operated upon the Premises
without the written consent of Landlord.
11. Tenant shall not use or keep in or on the Premises, the Building, or
the Project any kerosene, gasoline or other inflammable or combustible fluid or
material.
12. Tenant shall not without the prior written consent of Landlord use
any method of heating or air conditioning other than that supplied by Landlord.
13. Tenant shall not use, keep or permit to be used or kept, any foul or
noxious gas or substance in or on the Premises, or permit or allow the Premises
to be occupied or used in a manner offensive or objectionable to Landlord or
other occupants of the Project by reason of noise, odors, or vibrations, or
interfere in any way with other tenants or those having business therein.
14. Tenant shall not bring into or keep within the Project, the Building
or the Premises any animals, birds, bicycles or other vehicles.
15. No cooking shall be done or permitted on the Premises, nor shall the
Premises be used for the storage of merchandise, for lodging or for any
improper, objectionable or immoral purposes. Notwithstanding the foregoing,
Underwriters' laboratory-approved equipment and microwave ovens may be used in
the Premises for heating food and brewing coffee, tea, hot chocolate and similar
beverages for employees and visitors, provided that such use is in accordance
with all applicable federal, state and city laws, codes, ordinances, rules and
regulations.
16. Xxxxxxxx will approve where and how telephone and telegraph wires are
to be introduced to the Premises. No boring or cutting for wires shall be
allowed without the consent of Landlord. The location of telephone, call boxes
and other office equipment affixed to the Premises shall be subject to the
approval of Landlord.
17. Landlord reserves the right to exclude or expel from the Project any
person who, in the judgment of Landlord, is intoxicated or under the influence
of liquor or drugs, or who shall in any manner do any act in violation of any of
these Rules and Regulations.
18. Tenant, its employees and agents shall not loiter in the entrances or
corridors, nor in any way obstruct the sidewalks, lobby, halls, stairways or
elevators, and shall use them only as a means of ingress and egress for the
Premises.
19. Tenant shall not waste electricity, water or air conditioning and
agrees to cooperate fully with Landlord to ensure the most effective operation
of the Building's heating and air conditioning system, and shall refrain from
attempting to adjust any controls.
20. Tenant shall store all its trash and garbage within the interior of
the Premises. No material shall be placed in the trash boxes or receptacles if
such material is of such nature that it may not be disposed of in the ordinary
and customary manner of removing and disposing of trash and garbage in Santa
Monica, California without violation of any law or ordinance governing such
disposal. All trash, garbage and refuse disposal shall be made only through
entry-ways and elevators provided for such purposes at such times as Landlord
shall designate.
21. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
EXHIBIT C - Page 2
22. Tenant shall assume any and all responsibility for protecting the
Premises from theft, robbery and pilferage, which includes keeping doors locked
and other means of entry to the Premises closed.
23. No awnings or other projection shall be attached to the outside walls
of the Building without the prior written consent of Landlord. No curtains,
blinds, shades or screens shall be attached to or hung in, or used in connection
with, any window or door of the Premises without the prior written consent of
Landlord. All electrical ceiling fixtures hung in offices or spaces along the
perimeter of the Building must be fluorescent and/or of a quality, type, design
and bulb color approved by Landlord. Tenant shall abide by Xxxxxxxx's
regulations concerning the opening and closing of window coverings which are
attached to the windows in the Premises, if any, which have a view of any
interior portion of the Building or Building Common Areas.
24. The sashes, sash doors, skylights, windows, and doors that reflect or
admit light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed by Tenant, nor shall any bottles,
parcels or other articles be placed on the windowsills.
Landlord reserves the right at any time to change or rescind any one or
more of these Rules and Regulations, or to make such other and further
reasonable Rules and Regulations as in Landlord's judgment may from time to time
be necessary for the management, safety, care and cleanliness of the Premises,
Building, the Common Areas and the Project, and for the preservation of good
order therein, as well as for the convenience of other occupants and tenants
therein. Tenant shall be deemed to have read these Rules and Regulations and to
have agreed to abide by them as a condition of its occupancy of the Premises.
Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular tenants, but no such waiver by Landlord shall be
construed as a waiver of such Rules and Regulations in favor of any other
tenant, nor prevent Landlord from thereafter enforcing any such Rules or
Regulations against any or all tenants of the Project.
EXHIBIT C - Page 3
EXHIBIT D
THE WATER GARDEN
FORM OF TENANT'S ESTOPPEL CERTIFICATE
The undersigned as Tenant under that certain Office Lease (the "Lease")
made and entered into as of ___________________, 199_ by and between ___________
as Landlord, and the undersigned as Tenant, for Premises on the ____________
floor(s) of the office building located at ________________________, Santa
Monica, California __________________________, certifies as follows:
1. Attached hereto as Exhibit A is a true and correct copy of the Lease
and all amendments and modifications thereto. The documents contained in Exhibit
A represent the entire agreement between the parties as to the Premises.
2. The undersigned currently occupies the Premises described in the Lease.
3. The Lease Term commenced on _________________, and the Lease Term
expires on ______________________.
4. Base Rent became payable on ________________________.
5. The Lease is in full force and effect and has not been modified,
supplemented or amended in any way except as provided in Exhibit A.
6. Tenant has not transferred, assigned, or sublet any portion of the
Premises nor entered into any license or concession agreements with respect
thereto except as follows:
7. Tenant shall not modify the documents contained in Exhibit A without
the prior written consent of the holder of the first deed of trust on the
Premises.
8. All monthly installments of Base Rent, all Additional Rent and all
monthly installments of estimated Additional Rent have been paid when due
through ______________. The current monthly installment of Base Rent is
$_____________.
9. All conditions of the Lease to be performed by Landlord necessary to
the enforceability of the Lease have been satisfied and Landlord is not in
default thereunder.
10. The current amount of the Security Deposit held by Landlord is
$__________.
11. No rental has been paid more than thirty (30) days in advance and no
security has been deposited with Landlord except as provided in the Lease.
12. As of the date hereof, there are no existing defenses or offsets that
the undersigned has against Landlord nor have any events occurred that with the
passage of time or the giving of notice, or both, would constitute a default on
the part of Landlord under the Lease.
13. The undersigned acknowledges that this Estoppel Certificate may be
delivered to Landlord or to a prospective mortgagee, or a prospective purchaser,
and acknowledges that said prospective mortgagee or prospective purchaser will
be relying upon the statements contained herein in making the loan or acquiring
the property of which the Premises are a part and that receipt by it of this
certificate is a condition of making of such loan or acquisition of such
property.
EXHIBIT D - Page 1
14. If Tenant is a corporation or partnership, each individual executing
this Estoppel Certificate on behalf of Tenant hereby represents and warrants
that Tenant is a duly formed and existing entity qualified to do business in
California and that Tenant has full right and authority to execute and deliver
this Estoppel Certificate and that each person signing on behalf of Tenant is
authorized to do so.
Executed at _______________________ on the ______ day of _______, 19___.
"Tenant":
-----------------------------------,
a
---------------------------------
By:
-------------------------------
Its:
-------------------------
By:
-------------------------------
Its:
-------------------------
EXHIBIT D - Page 2
