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EXHIBIT 10.16
FIRST AMENDMENT TO LEASE
This First Amendment to Sublease is dated as of this 6th day of April
1995, by and between Xxxxxx, Xxxxxxx and Xxxxxx ("Sublandlord") and Star
Vending, Inc., a California Corporation, ("Subtenant") with reference to the
following recitals of fact:
RECITALS
A. Sublandlord and Subtenant entered into that certain One Wilshire
Building Sublease dated March 20, 1994 for a portion of the Eleventh (11th)
floor, located in the One Wilshire Building, situated at 000 Xxxxx Xxxxx Xxxxxx,
Xxx Xxxxxxx, Xxxxxxxxxx for a term ending April 10, 2001 (the "Sublease");
B. Sublandlord and Subtenant desire to amend the terms of the Sublease
as more particularly set forth herein:
1. Subtenant desires to increase the area of the Premises to
incorporate a portion of the Eleventh (11th) floor as more
particularly outlined on the attached Exhibit "A", measuring
approximately one thousand eight hundred and forty-seven
(1,847) rentable square feet and hereinafter referred to as
the "Expansion Premises".
2. TERM: The Term shall expire on April 10, 2001.
3. COMMENCEMENT DATE FOR EXPANSION PREMISES: The earlier of
immediately upon occupancy or April 1, 1995.
4. BASE RENT: The Base Rent shall be increased effective
September 1, 1995 from its current level $3,803.00 to Six
Thousand Two Hundred Fifty-nine Dollars ($6,259.00) per month
until April 1, 1999 and then increase to Six Thousand Eight
Hundred Eighty-one and Thirty-three cents ($6,881.33) for the
balance of the Term.
5. TENANT IMPROVEMENTS: The Premises shall be delivered in its
"As-Is" condition and Master Landlord shall be solely
responsible for any and all aspects of the removal of
asbestos-containing materials from the Premises should they be
desired by Subtenant. It is understood and agreed that
Subtenant shall be solely responsible for the cost of any and
all construction to the Premises and the cost of any removal
of asbestos-containing materials and any tenant improvements
desired.
6. GUARANTEE OF LEASE: The Lease Guarantee from Xxxxx Xxxxxxxx
made in favor of Xxxxxx, Xxxxxxx and Xxxxxx and dated March
27, 1995 and notarized by Xxxx Garlandshall also shall be
deemed a guarantee of the Expansion Space.
All other terms of the Sublease dated March 20, 1995 shall remain
unchanged.
AGREED AND ACCEPTED THIS ______ DAY OF APRIL 1995
STAR VENDING, INC. XXXXX XXXXXXXX
Per: /s/ XXXXX XXXXXXXX /s/ XXXXX XXXXXXXX
AGREED AND ACCEPTED THIS 6 DAY OF APRIL 1995
XXXXXX XXXXXXX & XXXXXX
Per: ___________________________
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EXHIBIT "A"
(drawing attached)
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[floor plan]
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EXHIBIT "A"
SECOND AMENDMENT TO LEASE
The Second Amendment to Lease is dated as of this 7th of June 1995, by and
between Xxxxxx Xxxxxxx & Xxxxxx ("Sublandlord") and Star Vending Inc., a
California Corporation ("Subtenant") with reference to the following recitals of
facts:
a. Sublandlord and Subtenant entered into that certain One Wilshire
Building Sublease dated March 20, 1994 for a portion of the 11th Floor
which Sublease was modified by a First Amendment to Lease dated April
6, 1995 for premises located in One Wilshire Building situated at 000
Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx for term ending April 10,
2001;
b. Sublandlord and Subtenant desire to amend the terms of the Sublease and
the First Amendment to Lease as more particularly set forth herein:
1. The commencement date of the Sublease shall be May 22,1995.
2. Corridor work rent credit: Subtenant agrees to perform the
work specified in the attached exhibit "A" in compliance with
the notes prepared by Xxxxxx Xxxxxx & Associates dated April
6, 1995. It is understood and agreed that Subtenant shall
employ Intern to prepare working drawings that essentially
correspond to the attached drawings. Subtenant shall receive a
rent credit on the first rent due under the Sublease of ten
thousand dollars ($10,000) representing the actual cost of
construction to modify the corridor to comply with the drawing
attached hereto. In the event the cost of construction exceeds
ten thousand dollars ($10,000) the rent credit will be
increased on a dollar per dollar basis up to an amount not to
exceed fifteen thousand dollars ($15,000). Subtenant agrees to
use its best efforts to minimize the cost of construction.
Subtenant shall be responsible for all cost of design, and
handicap compliance resulting from such corridor
modifications.
All other terms of the sublease dated March 20, 1995 and the First Amendment to
Lease dated April 6, 1995 shall remain unchanged.
AGREED AND ACCEPTED THIS 12 DAY OF JUNE 1995
STAR VENDING INC.
/S/ UNKNOWN
--------------------------------------
AGREED AND ACCEPTED THIS 9 DAY OF JUNE 1995
XXXXXX XXXXXXX & XXXXXX
/S/ UNKNOWN
---------------------------------------
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THIRD AMENDMENT TO SUBLEASE
The Third Amendment to Sublease is dated as of this eighth (8th) day of July
1996, by and between Xxxxxx, Pertini & Xxxxxx ("Sublandlord") and Star Vending
Inc., a Nevada corporation, ("Subtenant") with reference to the following
recitals of fact:
Sublandlord and Subtenant entered into that certain One Wilshire Sublease dated
March 20, 1995 for a portion of the 11th floor which Sublease was modified by a
First Amendment to Lease dated April 6, 1995 for Premises located in One
Wilshire Building situated at 000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx
for a term ending April 10, 2001. Subtenant and Sublandlord subsequently entered
into a Second Amendment to Sublease which was date June 7, 1995.
Sublandlord and Subtenant desire to amend the terms of the Sublease, the First
Amendment to Lease, the Second Amendment to Lease as more particularly set forth
herein:
Premises: Subtenant shall increase the Premises under Sublease by an
additional 10,945 rentable square feet contiguous to the
Premises as outlined in red on the attached Exhibit "A" and
hereinafter referred to as the ("Second Expansion Space").
Term: The term for the Second Expansion Space shall commence upon
the earlier of occupancy or September 1, 1996 and shall
continue through April 10, 2001.
Rental Rate: In addition to the Base Rent as defined in the First
Amendment to Lease between Sublandlord and Subtenant,
Subtenant shall pay the following Monthly Base Rent for the
Second Expansion Space:
September 1996-October 1998: $24,407.35
October 1998: $24,981.96
November 1998-March 2001 : $25,538.33
April 2001: $8,512.77
In addition, Subtenant will assume 34.32% of Sublandlord's
share or operating costs and tax increases over the
Sublandlord's Base Year under the Master Lease.
Right to Cure: Sublandlord shall provide Subtenant promptly with
copies of all notices that Sublandlord receives from the
Master Landlord alleging any default by Sublandlord under the
Master Lease, or a termination of the Master Lease. Subtenant
shall have the right, but not the obligation (a) to cure any
defaults by Sublandlord under the Master Lease, and (b) to set
off the cost of any such cure against the rent and other sums
that are payable by the Subtenant hereunder.
All other terms of the Sublease dated March 20, 1995, the First Amendment to
Lease dated April 6, 1995 and the Second Amendment to Lease dated June 7,1995
shall remain unchanged.
AGREE AND ACCEPTED THIS 12 DAY OF JULY, 1996.
/S/ UNKNOWN
-----------------------------------
STAR VENDING, INC.
AGREE AND ACCEPTED THIS __________ DAY OF JULY, 1996.
-----------------------------------
XXXXXX, XXXXXXX & XXXXXX
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SUBLEASE FOR PORTION OF
SUITE 1100, 000 X. XXXXX XXXXXX, XXX XXXXXXX
THIS SUBLEASE is made effective this 20th day of March 1995
between Xxxxxx, Xxxxxxx & Xxxxxx a California partnership ("Sublandlord"), whose
address is 0000 Xxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxx 00000 and STAR VENDING,
INC., a California corporation ("Subtenant"), whose principal executive office
is 000 Xxxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxxxxxxx 00000, who agree as follows:
RECITALS
A. One Wilshire Arcade Imperial, Ltd. ("Master Landlord") and
Sublandlord, as tenant, entered into a written lease dated March 26, 1990 (the
"Master Lease"), a copy of which is attached hereto as Exhibit "A", regarding
certain designated floor space ("Sublandlord's Space") in the One Wilshire
Building, located at 000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx (the
"Building").
B. Subtenant desires to sublet a portion of Sublandlord's
Space in the Building ("Premises"), from Sublandlord, pursuant to the provisions
contained in this sublease.
NOW, THEREFORE, the parties hereto agree as follows:
1. The Premises. The Premises shall consist of approximately
3,803 rentable square feet on the 11th floor of the Building in the Southeast
corner of Sublandlord's Space, as highlighted on the attached Exhibit "B".
Subtenant shall have the right to occupy the Premises after
completion of asbestos abatement for purpose of installing Subtenant's switching
equipment and other trade fixtures.
2. Possession. Sublandlord shall surrender possession of the
Premises to Master Landlord on the receipt of executed subleases and Master
Landlord's written consent to sublease. Master Landlord will be solely
responsible for any and all aspects of the abatement of asbestos-containing
materials and the removal of all walls and other presently existing tenant
improvements.
3. Term. The term of this Sublease shall commence on the
latter of April 1, 1995 or the receipt of Landlord's written Consent To Sublease
and shall terminate on April 10, 2001.
4. Rent. Subtenant agrees to pay a Base Rent (the "Base Rent")
of $3,803.00 per month, in advance, on the first day of each and every month.
Such rent shall be payable, without offset or deduction of any kind to
Sublandlord at the address designated in this Sublease. Said Base Rent shall
rise at the rate of two percent (2%) per annum.
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4.1 Asbestos Offset. Sublandlord shall provide a rental credit
of $30,000.00 which amount shall offset Subtenant's actual cost of abatement of
asbestos from the Premises. The Rental Credit shall be applied against the rent
first becoming due under the Sublease. In the event that the cost of abating
asbestos from a portion of the Premises is less than $30,000.00, then the Rental
Credit shall be reduced on a dollar for dollar basis.
5. Late Payments. In the event Subtenant fails to pay any rent
or other monetary amount due hereunder when and as due, and the delinquency
continues for a period of five days after the date the amount was due, Subtenant
shall pay to Sublandlord with such delinquent amount, late charge in an amount
equal to five percent of the delinquent amount. Said late charge is acknowledged
as being made to Sublandlord for the purpose of deferring administrative costs
and expenses of Sublandlord incident to handling the delinquency. The late
charge shall be deemed additional rent and the right to require it shall be in
addition to all of Sublandlord's other rights and remedies hereunder or at law,
and shall not be construed as liquidated damages or as limiting Sublandlord's
remedies in any manner.
6. Tenant Improvements. Master Landlord shall be solely
responsible for any and all aspects of the removal of asbestos-containing
materials from the Premises designated and the removal of walls and other
existing tenant improvements. It is understood and agreed that Subtenant shall
be responsible for demising the Premises and shall bear all costs, if necessary,
of removing the asbestos from of the Premises. Subtenant shall be solely
responsible for the construction of and payment for any and all improvements to
the Premises necessary for Subtenant to operate its telecommunication switching
operations. Sublandlord hereby agrees that Subtenant may construct improvements
and install switching equipment in accordance with the terms of the Master
Lease. Sublandlord further agrees that the switching equipment shall be removed
by Subtenant and any restoration of Premises required by Master Landlord be
performed at Subtenant's cost upon expiration or earlier termination of this
Sublease, unless otherwise agreed to in writing by Sublandlord.
7. Incorporation by Reference. All provisions in the Master
Lease which impose restrictions upon Sublandlords's use of the Premises or
impose obligations upon Sublandlord as to use of the Premises, as well as any
and all rules and regulations attached as Exhibit "B" to the Master Lease are
incorporated by reference into, and made a part of this Sublease. Subtenant
shall assume and perform all of the obligations under the Master Lease to the
extent that the provisions are applicable to the Premises being subleased under
this Sublease. Sublandlord does not assume the obligation of the Master Landlord
under provisions of the Master Lease, but shall exercise due diligence in
attempting to cause the Master Landlord to perform its obligations under the
Master Lease for the benefit of Subtenant.
8. Subtenant's Performance Under Master Lease. At any time
after prior notice to Subtenant, Sublandlord can elect to require Subtenant to
perform Subtenant's obligations under this Sublease directly to Master Landlord,
and Subtenant shall do so on Sublandlord's election, in which event Subtenant
shall send to Sublandlord form time to time copies of all notices and other
communications it shall send to or receive from Master Landlord.
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9. Covenant of Quiet Enjoyment. Sublandlord represents that
the Master Lease is in full force and effect and that there are no known
defaults on Sublandlord's or Master Landlord's part under it as of the
commencement of the term of this Sublease. Subject to this Sublease terminating
as provided in the Master Lease or as set forth in this Sublease, Sublandlord
represents that if Subtenant performs all the provisions in this sublease,
performed by Subtenant, Subtenant shall have and enjoy throughout the term of
this sublease the quiet and undisturbed possession of the premises.
10. Default and Remedies Upon Default. Subtenant shall be
deemed to be in default under the terms of this Sublease if any of the events
specified in Paragraph 13 of the Master lease shall occur. For purpose of this
Sublease, Paragraph 13 of the Master Lease shall be interpreted by substituting
the term "Subtenant" for the term "Tenant" and the term "Sublandlord" for the
term "Landlord". Upon the event any of such default, Sublandlord shall be deemed
to have all rights and remedies provided in Paragraph 14 of the Master Lease.
For purpose of this Sublease, Paragraph 14 of the Master Lease shall be
interpreted by substituting the term "Subtenant" for the term "Tenant" and term
"Sublandlord" for the term "Landlord".
11. Master Lease. This Sublease is subject to all the
provisions of the Master Lease except the following sections of the Master Lease
which are excluded therefrom: Sections 1, 2, 3, 4, 5.2, 6, 7, 8, 10, 19, 20,
22.2, 32.12, 33, 34, 35, Exhibit "A", Exhibit "C", and all Riders and Subtenant
shall not permit any act or omission to act that will violate any of the
provisions of the Master Lease. If the Master Lease terminates, this Sublease
shall terminate and the parties shall be relieved from all liabilities and
obligations under this Sublease; except that if this Sublease terminates as a
result of a default of one of the parties under this Sublease or the Master
Lease, or both, the defaulting party shall be liable to the non-defaulting party
for all damage suffered by the non-defaulting party as a result of termination.
Sublandlord agrees to maintain the Master Lease during the entire term of this
Sublease. Sublandlord agrees to pay all charges due under the Master Lease as
provided in the Master Lease and in accordance with its terms, and to comply
with or perform all obligations of lessee under the Master Lease.
12. Use. The Premises shall be used and occupied only for
general office purpose and/or telecommunications switching operations.
13. Assignment and Subletting. Subtenant shall have the right
to assign this Sublease to any successor in interest to substantially all of the
assets and business of Subtenant, and said assignee shall be deemed a
"controlled" entity for purpose of Section 17.1 and 17.2 of the Master Lease,
subject to the approval of the Master Landlord.
14. Security Deposit. Subtenant shall deposit with Sublandlord
upon execution hereof $7,606.00 as security for Subtenant's faithful performance
of Subtenant's obligation hereunder. If Subtenant fails to pay Rent or other
charges due hereunder, or otherwise defaults with respect to any provision of
this Sublease, Sublandlord may use, apply or retain all or any portion of said
deposit for the payment of any Rent or other charge in default or for the
payment of any other sum to which Sublandlord may become obligated by reason of
Subtenant's default, or to compensate Sublandlord for any loss or damage which
Sublandlord may suffer thereby. If Sublandlord so uses or applies all or any
portion of said deposit. Subtenant shall within then (10) days after written
demand therefore deposit cash with Sublandlord in amount sufficient
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to restore said deposit to the full amount herein above stated and Subtenant's
failure to do so shall be a breach of this Sublease. Sublandlord shall not be
required to keep said deposit separate from its general accounts. Provided
Subtenant is not in default under this Sublease, within thirty(30) days
(i)termination of this Sublease for any reason other than a default by
Subtenant, and (ii)the vacation of the Subleased Premises by Subtenant,
Sublandlord shall return said deposit, or much thereof as has not theretofore
been applied by Sublandlord to any costs, losses, or damages suffered or
incurred by Sublandlord as a result of Subtenant's failure to perform its
obligations under this Sublease, without payment of interest or other increment
for its use to Subtenant (or at Sublandlord's option, to the last assignee, if
any, of Subtenant's interest hereunder). No trust relationship is created herein
between Sublandlord and Subtenant with respect to said Security Deposit.
Provided that Subtenant is not in default or its obligations hereunder, it is
understood and agreed that the Security Deposit shall be applied against the
Base Rent in the 12th and 24th months of the Term.
Subtenant shall not thereafter be required to replenish the Security Deposit.
15. Consent to Sublease. The Sublease shall be contingent upon
the receipt of Master Landlord consent within 90 days following execution of the
Sublease by Subtenant. In the event that Subtenant does not receive this consent
with 90 days following execution of the Sublease by Subtenant, then subtenant
shall have the right to cancel this sublease.
16. Subtenant and Sublandlord shall have the right to cancel
this Sublease on or before April 15, 1995 in the event that Subtenant has not
obtained the required conduit space in the Building by providing written notice
to Xxxxxx Xxxxxxx & Xxxxxx, c/o Xx. Xxxx Xxxxxxxx, Xxxxxx Xxxxxxx & Xxxxxx, 0000
XxxXxxxxx Xxxxx, Xxxxxxx Xxxxx, XX 00000.
Subtenant:
STAR VENDING, INC., a
California Corporation
/s/ XXXXX XXXXXXXX
------------------
By: Xxxxx Xxxxxxxx
Its: CEO
Date: 3/23/95
Sublandlord:
XXXXXX, XXXXXXX & XXXXXX, a
California
Partnership
By:_____________________
Its:____________________
Date:___________________
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10
EXHIBIT "A"
MASTER LEASE
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[logo]
PARAMOUNT
GROUP, INC.
LEASE
(California)
THIS LEASE is made as of the 26th day of MARCH 1990 between ONE
WILSHIRE ARCADE IMPERIAL, LTD. by Paramount Group Inc., a Delaware corporation,
its agent (hereinafter called "Landlord"), and XXXXXX, XXXXXXX & XXXXXX, A
CALIFORNIA PARTNERSHIP (hereinafter called "Tenant").
1. Premises. Landlord hereby leases to Tenant and Tenant hereby hires
and takes from Landlord the premises (the "Premises") consisting of Suite 1100
comprising approximately 22,500 rentable square feet located in the building
(the "Building") commonly known as 000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx 00000. The Premises are more particularly shown on Exhibit "A"
attached hereto and incorporated herein by this reference. See Section 1.1 at
Page 14
2. Term.
2.1 The term of this Lease shall be 10 years and 0 months
commencing November 15 1990 (the "Commencement Date"). In the event
that Landlord, for any reason, cannot tender possession of the Premises
to Tenant on or before the Commencement Date, this Lease shall not be
void or voidable, nor shall Landlord be liable to Tenant in any way as
a result of such failure to tender possession. In the event that
Landlord cannot tender possession of the Premises to Tenant for any
reason other than the acts or omissions of Tenant. Tenant shall not be
obligated to pay rent hereunder until such time as Landlord tenders
possession of the Premises to Tenant, and if such inability to tender
possession of the Premises for reasons other than the acts or omissions
of Tenant continues for a period in excess of 10 days after the
Commencement Date as such period may be extended pursuant to Section
2.1(a) at page 15, Tenant shall have the right, exercisable by notice
to Landlord, to terminate this Lease, but the suspension of rent
obligations and the right of termination pursuant to this Paragraph 2.1
shall be Tenant's sole remedies in the circumstances herein described.
See Section 2.1 (a) at page 15. 2.2 In the event that Tenant is allowed
to enter into possession of the Premises prior to the Commencement
Date, such possession shall be deemed to be pursuant to, and shall be
governed by, the terms, covenants and conditions of this Lease,
including without limitation the covenant to pay rent, as though the
Commencement date occurred upon the date of taking of possession by
Tenant.
2.3 In the event that the Commencement Date falls on other
than the first day of a month, rent for any initial partial month of
the term hereof shall be appropriately prorated: and if the date of
commencement of Tenant's rent obligations, pursuant to Paragraph 2.1
above, is other than the Commencement Date, the end of the term hereof
shall be adjusted to the end of the month in which the date 10 years
and 0 months after the date of commencement of Tenant's rent
obligations falls. At the request of either party hereto, both parties
shall execute a memorandum confirming the date of commencement of
Tenant's rent obligations.
3. RENT. Beginning on the Commencement Date (subject to adjustment
pursuant to Paragraph 2.1 above), the base rent ("Base Rent") for the Premises
shall be an initial annual sum of $590,625 payable in monthly installments of
$49,218.75 in advance on the first day of each and every month throughout the
term of this Lease. Tenant agrees to pay all rent, without offset or deduction
of any kind, to Landlord by mail to the following address: One Wilshire Arcade
Imperial, Ltd. Department #1364 SCF Xxxxxxxx, XX 00000 or in such manner, to
such other person or at such other place as Landlord may from time to time
designate. Tenant acknowledges that the mode of collection of rent specified
above is by deposit in a so-called "lock box" from which payments received are
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automatically processed by Landlord's bank without any review by Landlord of the
items processed. Under those circumstances, and so long as this mode of
collection is used by Landlord. Tenant agrees that no payment made to Landlord
by check or other instrument deposited in the lock box shall contain a
restrictive endorsement of any kind: and if any such instrument should contain a
restrictive endorsement in violation of the foregoing, that endorsement shall
have no legal effect whatever, notwithstanding that such item is processed for
payment. See Paragraph 3.1 on page 15.
4. RENT ESCALATION. Tenant shall pay, as monthly rent hereunder, in
addition to the Base Rent, the sums provided in the "Rent Escalation Rider(s)"
attached hereto and incorporated herein by this reference. Tenant shall be
advised of any change, from time to time, in rent escalation payments required
hereunder by written notice from Landlord, which shall include information in
such detail as Landlord may reasonably determine to be necessary in support of
such change. Tenant shall have 30 days after the receipt of any such notice to
protest the change indicated therein: but notwithstanding any such protest all
rent escalation payments falling due after service of such notice shall be made
in accordance with such notice until the protest has been resolved, whereupon
any necessary adjustment shall be made between Landlord and Tenant.
5. TAX ON TENANT'S PROPERTY: OTHER TAXES.
5.1 Tenant shall be liable for, and shall pay at least 10 days
before delinquency, and Tenant hereby indemnities and holds Landlord
harmless from and against any liability in connection with, all taxes
levied directly or indirectly against any personal property, fixtures,
machinery, equipment, apparatus, systems and appurtenances placed by
Tenant in or about, or utilized by Tenant in, upon or in connection
with, the Premises (Equipment Taxes"). If any Equipment Taxes are
levied against Landlord or Landlord's property or if the assessed value
of Landlord's property is increased by the inclusion therein of a value
placed upon such personal property, fixtures, machinery, equipment,
apparatus, systems or appurtenances of Tenant and if Landlord, after
written notice to Tenant, pays the Equipment Taxes or taxes based upon
such an increased assessment (which Landlord shall have the right to do
regardless of the validity of such levy, but only under proper protest
if requested by Tenant prior to such payment and if payment under
protest is permissible). Tenant shall pay to Landlord upon demand, as
additional rent hereunder, the taxes so levied against Landlord or the
proportion of such taxes resulting from such increase in the
assessment: provided, however, that in any such event Tenant shall have
the right, in the name of Landlord and with Landlord's full
cooperation, but at no cost to Landlord, to bring suit in any court of
competent jurisdiction to recover the amount of any such tax so paid
under protest, and any amount so recovered shall belong to Tenant.
5.2 If the tenant improvements in the Premises, whether
installed and/or paid for by Landlord or Tenant and whether or not
affixed to the real property so as to become a part thereof, are
assessed for real property tax purposes at a valuation higher than the
valuation at which tenant improvements conforming to Landlord's
building standards in other space in the Building are assessed, then
the real property taxes and assessments levied against Landlord or
Landlord's property by reason of such excess assessed valuation shall
be deemed to be Equipment Taxes and shall be governed by the provisions
of Paragraph 5.1 above. Any such amounts, and any similar amounts
attributable to excess improvements by other tenants in the Building
and recovered by Landlord from such other tenants under comparable
lease provisions, shall not be included in Real Property Taxes for
purposes of rent escalation under Section 4 of this Lease.
5.3 Tenant shall pay, as additional rent hereunder, upon
demand and in such manner and at such times as Landlord shall direct
from time to time by written notice to Tenant, any excise, sales,
privilege or other tax, assessment or other charge (other than income
or franchise taxes) imposed, assessed or levied by any governmental or
quasi-governmental authority or agency upon Landlord on account of this
Lease, the rent or other payments by Tenant hereunder, any other
benefit received by Landlord hereunder. Landlord's business as a lessor
hereunder, or otherwise in respect of or as a result of the agreement
or relationship of Landlord and Tenant hereunder.
6. SECURITY DEPOSIT. A deposit (the "Security Deposit") in the amount
of $49,218.75 shall be paid by Tenant upon execution of this Lease and shall be
held by Landlord without liability for interest and as security for the
performance by Tenant of Tenant's covenants and obligations under this Lease, it
being expressly understood that the Security Deposit shall not be considered an
advance payment of rent or a measure of Landlord's damages in case of default by
Tenant. Upon the occurrence of any breach or default under this Lease by Tenant,
Landlord may, from time to time, without prejudice to any other remedy, use the
Security Deposit or any portion thereof to the extent necessary to make good any
arrearages of rents or any other damage, injury, expense, or liability caused to
Landlord by such breach or default. Following any application of the Security
Deposit, Tenant shall pay to Landlord on demand an amount to restore the
Security Deposit to its original amount. In the event of bankruptcy or other
debtor relief proceedings by or against Tenant, the Security Deposit shall be
deemed to be approved first to the payment of rent and other charges due
Landlord, in the order that such rent or charges became due and owing, for all
periods prior to filing of such proceedings. Upon termination of this Lease any
remaining balance of the Security Deposit shall be returned by Landlord to
Tenant within 14 days after termination of Tenant's tenancy.
7. LATE PAYMENTS. In the event Tenant fails to pay any rent or other
monetary amount due hereunder when and as due, and the delinquency continues for
a period of 10 days after the date the amount was due (but without additional
notice or demand). Tenant shall also pay to Landlord with such delinquent amount
a late charge in an amount equal to 5% of the delinquent amount for the purpose
of defraying administrative costs and expenses incident to handling the
delinquency. 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 and shall not be construed as liquidated damages or as
limiting Landlord's remedies in any manner.
8. USE OF PREMISES. Tenant shall use the Premises only for general
office purposes, except as may be specified below. Tenant is specifically
authorized to use the Premises to conduct the following business, subject to
compliance with all applicable
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laws, ordinances, rules and regulations: law offices in any event, unless
specifically authorized herein. Tenant shall not prepare or serve, or authorize
the preparation or service of, food or beverages in the Premises, except only
the occasional preparation of coffee, tea, hot chocolate and other such common
refreshments for Tenant and its employees.
9. BUILDING SERVICES.
9.1 Throughout the term of this Lease, Subject to shortages
and accidents beyond Landlord's reasonable control, Landlord shall keep
in repair all structural elements of the Building (including, without
limitation, the structural walls, doors, floors, ceilings, roof,
elevators, stairwells, lobby, heating system, air conditioning system,
plumbing and electrical wiring) and maintain the exterior of the
Premises, including grounds, walks, drives and loading area, if any;
provided that Tenant shall reimburse Landlord upon demand, as
additional rent hereunder, for the cost of any repairs or extraordinary
maintenance necessitated by acts of Tenant or Tenant's employees
contractors, agents licenses or invitees.
9.2 Subject to shortages and accidents beyond Landlord's
reasonable control, Landlord shall furnish building standard heating
and air conditioning service Monday through Friday from 8:00 a.m. to
6:00 p.m. and Saturday from 8:00 a.m. to 1:00 p.m., except for
holidays. No heating or air conditioning will be furnished by Landlord
on Sundays or holidays except upon prior arrangement with Tenant and at
an extra charge as may be agreed to between Landlord and Tenant. For
purposes of this Paragraph 9.2, "holidays" shall mean and refer to the
holidays of Christmas, New Year's Day, President's Day, Labor Day,
fourth of July, Memorial day, Thanksgiving and the day after
Thanksgiving, as those holidays are defined, recognized or established
by governmental authorities or agencies from time to time. Tenant shall
install, at its expense, such additional air conditioning equipment as
may be reasonably determined by Landlord to be necessary in order to
maintain building air conditioning standards resulting form Tenant's
installation and operation of computer equipment or other special
equipment or facilities placing a greater burden on the air
conditioning system that would general office use. Landlord shall
furnish electric current to the Premises in amounts reasonably
sufficient for normal business use, including operation of building
electric current to the Premises in amounts reasonably sufficient for
normal business use, including operation of building standard lighting
and operation of typewriters and standard fractional horsepower office
machinery. Tenant agrees that, at all times during the term of this
Lease, Tenant's use of electric current shall never exceed that
capacity of the feeders to the Building or the risers or wiring
installation in the Building. Tenant shall not install or use or permit
the installation or use upon or about the Premises of any computer or
electronic data processing or other equipment using current in excess
of 110 volts or requiring power in excess or 500 xxxxx, without the
express prior written consent of Landlord. Tenant shall pay monthly
upon billing as additional rent under this Lease such sums as
landlord's building engineer may reasonably determine to be necessary
in order to reimburse Landlord of the additional cost of utilities
(including, without limitation, electricity, gas and other fuels or
power sources, and water) attributable to the operation of additional
air conditioning equipment and any other requirements in excess of
those for normal office use by reason of the operation of computer
equipment or other special equipment of facilities.
9.3 Landlord shall furnish unheated water from mains for
drinking, lavatory and toilet purposes drawn through fixtures installed
by Landlord, or by Tenant with Landlord's express prior written
consent, and heated water for lavatory purposes from regular building
supply. Tenant shall pay Landlord for additional water which is
furnished for any other purpose. The amount that Tenant shall pay
Landlord for such additional water shall be the average price per
gallon charged to the Landlord for the Building by the entity providing
water.
9.4 Landlord shall furnish janitor service in and about the
Premises, to the extent necessitated by normal office use of the
Premises. Monday through Friday, holidays excepted. Landlord shall have
no obligation of furnish janitor service for any portion of the
premises which may be used (to the extent permitted under this Lease)
for the preparation , dispensing to consumption of food or beverages or
for any purpose other than general office use, and Tenant shall keep
all such portions of the Premises in a clean and orderly condition at
Tenant's sole cost and expense. In the event that Tenant shall fail to
keep such portions of the Premises in a clean and orderly condition,
Landlord may do so and any costs incurred by Landlord in connection
therewith shall be payable by Tenant to Landlord upon demand, as
additional rent hereunder. Tenant shall also pay to Landlord, as
additional rent hereunder, amounts equal to any increase in cost of
janitor service in and about the Premises if such increase in cost is
due to (a) use of the Premises by Tenant during hours other than normal
business hours, or (b) location in or about the Premises of any
fixtures, improvements, materials or finish items (including without
limitation wall coverings and floor coverings) other than those which
are of the standard type adopted by Landlord for the Building.
9.5 Landlord shall furnish passenger and freight elevator
service in common with Landlord and other tenants Monday through Friday
form 8:00 a.m. to 6:00 p.m. and Saturday from 8:00 a.m. to 1:00 p.m.
Landlord shall proved limited passenger elevator service daily at all
times such normal passenger service is not furnished.
9.6 Landlord does not warrant that any service will be free
form interruptions caused by repairs, renewals, improvements, changes
of service, alternations, strikes, lockouts, labor controversies,
accidents, inability to obtain fuel, steam water or supplies or other
case, provided the cause is beyond the reasonable control of Landlord,
and Landlord agrees to give Tenant notice of any extended interruptions
of which Landlord has prior knowledge. No interruption of service shall
be deemed an eviction disturbance of Tenant's use and possession of the
Premises or any part thereof, nor relieve Tenant from performance of
Tenant's obligations under this Lease. Landlord shall not be liable for
any failure to make such repairs or furnish such service unless the
failure shall be reasonably curable by Landlord and nonetheless shall
persist for an unreasonable time after written notice from Tenant of
the need for such repairs or the failure to furnish such service. There
shall be no abatement of rent and no liability of Landlord by reason of
any injury to or interference with Tenant's business arising form the
making of any repairs, alternations or improvements, or provision of
any service in or to any portion of the Building, including the
Premises, or in or to the fixtures, appurtenances and equipment
therein; provided that in making such
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repairs, alterations or improvements or providing such service Landlord
shall interfere as little as reasonably practicable with the conduct of
Tenant's business in the Premises, without, however, being obligated to
incur liability for overtime or other premium payment to its agents,
employees or contractors in connection therewith. If Tenant's
beneficial use of all or a substantial portion of the Premises is
prevented for a period in excess of 3 consecutive days, the Base Rent
shall be equitably abated commencing with the fourth day and continuing
until such use is no longer prevented. Such abatement, to the extent
provided above, shall be Tenant's sole remedy. As a material inducement
to Landlord's entry into this Lease. Tenant waives and releases its
right to make repairs at Landlord's expense under Sections 1941 and
1942 of the California Civil code.
10. CONDITION OF PREMISES. By occupying the Premise. Tenant shall be
deemed to accept the same and acknowledge that they comply fully with Landlord's
covenants and obligations hereunder, subject to completion of any items which it
is Landlord's responsibility hereunder to furnish and which are listed by
Landlord and Tenant upon inspection of the Premises. Tenant acknowledges that
neither Landlord nor any agent, employee or representative of Landlord has made
any representation or warranty with respect to the Building or Premises or with
respect to the suitability or fitness of the Building or Premises for the
conduct of Tenant's business or any other purpose. During the term of this
Lease, Tenant shall maintain the Premises in as good condition as when Tenant
took possession, ordinary wear and tear and repairs which are specifically made
the responsibility of Landlord hereunder excepted, and shall repair all damage
or injury to the Building or to fixtures, appurtenances and equipment of the
Building caused by Tenant's installation or removal of its property or resulting
form the negligence or tortuous conduct of Tenant, its employees, contractors,
agents, licensees and invitees. In the event of failure by Tenant to perform its
covenants of maintenance and repair hereunder. Landlord may perform such
maintenance and repair, and any amounts expended by Landlord in connection
therewith shall be payable by Tenant to Landlord upon demand, as additional rent
hereunder.
11. DAMAGE TO PREMISES OR BUILDING.
11.1 In the event that the Building should be totally
destroyed by fire or other casualty, this Lease shall terminate. In the
event the Premises or a substantial portion of the Building should be
so damaged or destroyed that rebuilding or repairs cannot, in
Landlord's opinion, be completed within 75 days after the day of such
damage, Landlord may at its option terminate this Lease upon notice to
Tenant, or Landlord may proceed to restore the Building. In the event
that such rebuilding or repairs can, in Landlord's opinion be completed
within 75 days after the date of such damage landlord shall restore the
Building. In the event that Landlord is obligated or elects to restore
the Building , Landlord shall commence to rebuild or repair the
Building reasonably promptly after such damage or destruction and shall
proceed with reasonable diligence to restore it to substantially the
condition in which it was immediately prior to the casualty, except
that the Landlord shall not be required to rebuild, repair or replace
any part of the partitions, fixtures, alterations, decorations or other
improvements which may have been constructed by or specifically for
Tenants, or by or for other tenants within the Building; provided,
however, that Landlord shall rebuild any such times which were part of
the Premises as delivered by Landlord to Tenant prior to the start of
the Lease term. In such event this Lease shall remain in full force and
effect, provided that if Tenant is dispossessed by reason of such
casualty form all or a substantial portion of the Premises for more
that 3 consecutive days Tenant shall be entitled to a ratable abatement
of the Base Rent during the time and to the extent the Premises are
unfit for occupancy; and provided further that Tenants shall have the
right to terminate this Lease upon notice service upon Landlord prior
to actual completion of any necessary restoration of the Premises if
such restoration is not substantially completed within 150 days after
the casualty. Such abatement or termination, to the extent provided
above, shall be Tenant's sole remedy.
11.2 In the event any holder of a mortgage or deed of trust on
the Building should require that the insurance proceeds payable upon
damage or destruction to the Building by fire or other casualty be used
to retire the debt secured by such mortgage or deed or trust, or in the
event any lessor under any underlying or ground lease should require
that such proceeds be paid to such lessor. Landlord shall in no event
have any obligation to rebuild and at Landlord's election this Lease
shall terminate.
11.3 With the exception of insurance required to be carried by
Tenant under Section 28 of this Lease, any insurance which may be
carried by Landlord or Tenant against loss or damage to the Building or
to the Premises shall be for the sole benefit of the party carrying
such insurance and under its sole control. Landlord shall not be
required to carry insurance of any kind on Tenant's property and,
except by reason of the breach by Landlord of any of its obligations
hereunder, shall not be obligated to repair any damage thereto or to
replace the same.
11.4 Tenant, as a material inducement to Landlord's entering
into this Lease, irrevocable waives and releases its rights under the
provisions of Sections 1932(2) and 1933(4) of the California civil
code. It being the intention of the parties hereto that the express
terms of this Lease shall control under any circumstances in which
those provisions might otherwise apply.
12. Eminent Domain.
12.1 In the event that the whole of the Premise, or so much
thereof as to render the balance unusable to tenant for the purposes
leased hereunder, shall be lawfully condemned or taken in any manner
for any public or quasi-public use, conveyed by Landlord in lieu
thereof (a "Taking"), this Lease ad the term hereby granted shall
forthwith cease and terminate on the date of the taking of possession
by the condemning authority (the Date of Taking").
12.2 In the event of a Taking of a portion of the Premises
which does not result in the termination of this Lease pursuant to
Section 12.1, above. The Base Rent shall be abated in proportion to the
part of the Premise so taken.
12.3 In the event that there is a taking of a portion of the
Building other than the Premises, and if in the opinion of landlord,
the Taking is so substantial as to render the remainder of the Building
uneconomic to maintain despite reasonable
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reconstruction or remodeling, or if it would be necessary to alter the
Building or Premises materially, Landlord may terminate this Lease by
notifying Tenant of such termination within 60 days following the Date
of Taking, and this Lease shall end on the date specified in the notice
of termination, which shall not be less that 60 days after the giving
of such notice.
12.4 No temporary Taking of the Building or Premises and /or
Tenant's rights therein or under this Lease shall terminate this Lease
or give Tenant any right to abatement of rent hereunder. Any award made
to Tenant by reason of any such temporary Taking shall belong entirely
to Tenant and Landlord shall not be entitled to share therein.
12.5 Except for the award in the event of a temporary Taking
as contemplated in paragraph 12.4, above. Tenant hereby releases and
shall have no interest in, or right to participate with respect to the
determination of, any compensation for any Taking, except only that
Tenant shall be entitled to the portion of any award specifically
designated by the condemning authority to be for any personal property
of Tenant included in any such Taken for any relocation expenses or
business interruption loss incurred by Tenant.
13. DEFAULT.
13.1 The following events shall be deemed to be events of default by
Tenant under this Lease:
(a) If Tenant shall fail to pay any installment of rent or any
other sum required to be paid by Tenant under this Lease as due.
(b) If Tenant shall fail to comply with any term, provision or
covenant of this Lease, other than provisions pertaining to the payment
of money.
(c) If Tenant shall make an assignment for the benefit of
creditors.
(d) If Tenant shall file a petition under any section or
chapter of the federal Bankruptcy code, as amended from time to time.
or under any similar law or statute of the United States or any State
thereof pertaining to bankruptcy, insolvency or debtor relief, or
Tenant shall have a petition or other proceedings filed against Tenant
under any such law or chapter thereof and such petition or proceeding
shall not be vacated or set aside within 60 days after such filing.
(e) If a receiver or trustee shall be appointed for all or
substantially all of the assets of Tenant and such receivership shall
not be terminated and possession of such assets restored to Tenant
within 30 days after such appointment.
(f) If Tenant shall desert or vacate any substantial portion o
the premises and the same shall remain unoccupied for more than 14 days
thereafter.
(g) If Tenant shall assign this Lease or sublet the Premises
in violation of the terms hereof.
13.2 Any shorter period for cure provided by law notwithstanding, and
in lieu thereof, Tenant may cure any default under Subparagraph 13.1(a), above,
at any time within 5 days after written notice of default is received by Tenant
from Landlord; and Tenant may cure any default under Subparagraph 13.1(b),
above, within 15 days after written notice of default is received by Tenant from
Landlord, provided that if such non-monetary default is curable but is of such a
nature that the cure cannot be completed within 15 days. Tenant shall be allowed
to cure the default if Tenant promptly commences the cure upon receipt of the
notice and diligently prosecutes the same to completion as promptly as
reasonably possible thereafter.
13.3 Landlord shall in no event be deemed to be in default of any
obligation thereunder unless and until 15 days have expired after service of
notice of such deficiency upon Landlord and such deficiency remains uncured;
provided that if such matter is of a nature that the cure thereof cannot be
completed within such period, Landlord shall not be deemed to be in default
hereunder if Landlord commenced the cure within such period and diligently
prosecutes the same to completion.
14. REMEDIES UPON DEFAULT.
14.1 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 non-exclusive) without any notice or demand
whatsoever.
(a) 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 arranges in rent, enter upon and take possession
of the Premises an expel or remove Tenant and any other person who may
be occupying the Premises or any part thereof, without being liable of
prosecution or any claim or damages therefor; and Landlord may recover
from Tenant the following:
(1) The worth at the time of award of any unpaid rent which
has been earned at the time of such termination; plus
(2) The worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until the
time of award exceeds the amount of such rental loss that Tenant proves
could have been reasonably avoided; plus
(3) The worth at the time of award of the amount by which the
unpaid rent for the balance of the term after the time of award exceeds
the amount of such rental loss that Tenant proves could have been
reasonably avoided; plus
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(4) Any other amount necessary to compensate Landlord for all
the detriment proximately caused by Tenant'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
(5) At Landlord's election, such other amounts in addition to
or in lieu of the foregoing as may be permitted from time to time by
applicable law.
The term "rent" as used in this Subparagraph 14.1(a) 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. Any such sums which are
based on percentages of income, increased costs or other historical data shall
be reasonable estimates or projections computed by Landlord on the basis of the
amounts thereof accruing during the 24-month period immediately prior to
default, except that if it becomes necessary to compute such sums before a 24-
month period has expired, then the computation shall be made on the basis of the
amounts accruing during such shorter period. As use in Subparagraphs 14.1(a)(1)
and (2), 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 1%.
(b) 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.
(c) Whether or not Landlord elects to terminate this Lease on
account of any default by Tenant, Landlord shall have the right to
terminate any and all subleases, licenses, concessions or other
consensual arrangements for possession entered into by Tenant and
affecting the Premises or may, in Landlord's sole discretion, succeed
to Tenant's interest in such subleases, licenses, concessions or
arrangements, in the event of Landlord's election to succeed to
Tenant'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.
14.2 Following the occurrence of an event of default by Tenant,
Landlord shall have the right to require that any or all subsequent amounts paid
b Tenant to Landlord hereunder, whether in cure of this default in question or
otherwise, be paid in the form of cash, money order, cashier's or certified
check drawn on an institution acceptable to Landlord, or by other means approved
by Landlord, notwithstanding any prior practice of accepting payments in any
different form.
14.3 In the event of default by Landlord hereunder Tenant shall be
entitled to recover form Landlord all damages shown by Tenant to have been
proximately caused thereby; but Tenant shall in no event have the right to
terminate this Lease by reason thereof.
14.4 No waiver by Landlord or Tenant of any violation or breach of any
of the terms, provisions and covenants herein contained shall be deemed or
construed to constitute a waiver of any other or later violation or breach of
the same or any of the terms, provisions and covenants herein contained.
Forbearance by Landlord in enforcement of one or more of the remedies herein
provided upon an event of default shall not be deemed or construed to constitute
a waiver of such default. The acceptance of any rent hereunder by Landlord
following the occurrence of any default,. whether or not known to default. The
acceptance of any rent hereunder by Landlord following the occurrence of any
default, whether or not known to Landlord, shall not be deemed a waiver of any
such default, except only a default in the payment of the rent so accepted.
15. SURRENDER
15.1 No act or thing done by Landlord or any agent or employee of
Landlord during the term hereof 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 affect 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 Tenant, 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 Upon the expiration of the term of this Lease, or upon any earlier
termination of this Lease, Tenant shall, subject to the provisions of this
section 15, quit and surrender possession of the Premises to landlord in as good
order and condition as when Tenant shall, without expense to Landlord, remove or
cause to be removed form the premises all debris and rubbish, and such items of
furniture, equipment, free-standing cabinet work, movable partitions 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 form such removal.
15.3 Whenever Landlord shall re-enter the premises as provided in this
lease, any personal property of Tenant not removed by Tenant upon the expiration
of the term of this Lease or within 48 hours after a termination by reason of
Tenant's
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default as provided in this Lease, shall be deemed abandoned by Tenant
an may be disposed of by landlord in accordance with Sections 1980 through 1991
of the California civil code and Section 1174 of the California Code or Civil
Procedure, or in accordance with an laws or judicial decisions which may
supplement or supplant those provisions form time to time.
15.4 All fixtures, alterations , additions, repairs, improvements
and/or appurtenances attached to or built into or on or about the Premises prior
to or during the term hereof, whether by Landlord at its expense or at the
expense of Tenant, or by Tenant at its expense, or by previous occupants of the
Premises, shall be and remain part of the Premises and shall not be removed by
Tenant at the end of the term of this Lease. Such fixtures, alterations,
additions, repairs, improvements and/or appurtenances shall include, without
limitation, floor coverings, drapes, paneling, molding, doors, kitchens and
dishwashing fixtures and equipment, plumbing systems, electrical systems,
lighting systems, silencing equipment, communication systems, all fixtures and
outlets for the systems mentioned above and for all telephone, radio, telegraph
and television purposes, and any special flooring or ceiling installations.
Notwithstanding the foregoing, Landlord may in its sole discretion, require
Tenant, at Tenant's sole cost and expense, to remove any fixtures, alterations,
additions, repairs improvements and/or appurtenances attached or built into
and/or on or about the Premises, and to repair any damage to the Building and
Premises occasioned by the installation, construction, operation and/or removal
of such fixtures, equipment, alterations, additions, repairs, improvements
and/or appurtenances. If Tenant shall fail to complete such removal and repair
such damage, Landlord may do so and may change the reasonable cost thereof to
Tenant.
15.5 Tenant hereby waives all claims for damages or other liability in
connection with Landlord's re-entering and taking possession of the Premises or
removing, retaining, storing or selling the Property of Tenant as herein
provided, and Tenant hereby indemnifies and holds Landlord harmless from an such
damages or other liability, and no such re-entry shall be considered or
construed to be a forcible entry.
16. COSTS OF SUIT; ATTORNEYS' FEES
16.1 If Tenant or Landlord shall bring any action for any relief,
declamatory or otherwise, against the other arising out of or under this Lease,
including any suit by Landlord for the recovery of rent or possession of the
Premises, the losing party shall pay the successful party its costs of suit,
including, without limitation, a reasonable sum for attorneys' fees in such
suit, and such attorneys fees shall be deemed to have accrued on the
commencement of such action and shall be paid whether or not such action is
contested or persecuted to judgment.
16.2 In the event that Landlord shall, without fault of Landlord's part
be made party to any litigation instituted by Tenant or by any third party
against Tenant, or by or against any person holding under or using the Premises
by license of Tenant, or for the foreclosure of any lien for labor or material
furnished to or for Tenant or any such other person or otherwise arising out of
or resulting form any action or transaction of Tenant or of any such other
person, Tenant hereby indemnifies and holds Landlord harmless from and against
all costs and expenses, including reasonable attorneys' fees, incurred by
landlord in or in connection with such litigation.
17. ASSIGNMENT AND SUBLETTING.
17.1 Except as hereinafter provided. Tenant shall not sublet all or any
part of the Premises nor assign this Lease without Landlord's express prior
written consent, which consent shall not unreasonably be withheld. Tenant may,
subject to the rest of the terms hereof but without Landlord's consent, sublet
all of the Premises or assign this Lease to any entity controlling, controlled
by or under common control with Tenant, provided the assignee expressly assumes
the obligations of Tenant hereunder by execution and delivery to Landlord of a
document approved by Landlord. Neither this Lease nor the term hereby demised
shall be mortgaged by Tenant, nor shall Tenant mortgage, assign, pledge or
otherwise transfer the interest of Tenant in and to any sublease or the rentals
payable thereunder or in the Security Deposit. Any such mortgage and any
sublease, assignment, pledge or transfer made in violation of this paragraph
17.1 shall be void and at Landlord's election shall terminate this Lease. Each
subleases, assignee or transferee of Tenant, other than Landlord, shall assume
all obligations of Tenant under this Lease and shall be and remain liable
jointly and severally with Tenant for the payment of the rent, and for the due
performance of all the terms, covenants, conditions and agreements herein
contained on Tenant's part to be performed for the term of this Lease. No
assignment shall be binding upon Landlord unless such assignee or Tenant shall
deliver to Landlord a counterpart of such assignment and an instrument in
recordable form which contains a covenant of assumption by the assignee
satisfactory in substance and form to Landlord, consistent with the requirements
of this Paragraph 17.1, but the failure or refusal of the assignee to execute
such instrument of assumption shall not release or discharge the assignee from
its liability as set forth above. No subtenant or assignee not complying with
the foregoing requirements shall have any interest in the Security Deposit. Any
assignee that does comply with the foregoing requirements shall automatically
succeed to Tenant's position with respect to the Security Deposit, and Landlord
shall have the right to refund all or any portion of the Security Deposit to the
assignee at any time or under any circumstances with no liability to the
assignor. If tenant is a corporation which, under California law, is not deemed
a publicly held corporation or is an unincorporated association or partnership,
the transfer, assignment or hypothecation of any stock or interest controlling
such corporation, association or partnership shall be deemed an assignment
within the meaning and provisions of this Section 17. For purposes hereof,
"control" shall be deemed to refer to any amount, in the aggregate, exceeding
50% of the voting power of such corporation association or partnership.
17.2 In the event that Tenant desires to assign this Lease, or to enter into a
sublease, as to all or any portion of the Premises, except where the subtenant
or assignee is an entity controlling, controlled by or under common control with
Tenant. Tenant shall, prior to solicitation of offers therefor, give landlord
notice of Tenant's desire to assign or sublet and of the portion of the Premises
to be affected by the proposed assignment or sublease. Landlord shall have the
right,
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exercisable by notice to Tenant within 60 days after Landlord's receipt
of Tenant's notice of desire to assign or sublet, to terminate this Lease as to
the portion of the Premises affected by the proposed assignment or sublease,
such termination to be effective as of the date 60 days after notice by Landlord
to Tenant of such termination. In the event of a termination of the Lease as to
a portion of the Premises pursuant to this Paragraph 17.2, effective as of such
termination, the Premises shall be deemed to no longer include the portion of
the Premises subject to such termination. Tenant shall surrender possession of
that portion of the Premises in accordance with the provisions of this lease,
and the rent payable hereunder an d tenant's Percentage Share shall be
appropriately adjusted based upon the rentable area remaining within the
Premises. If Landlord does not elect to terminate pursuant to this Paragraph
17.2, and if Tenant does not enter into an assignment or sublease as specified
in Tenant's notice of desire to assign or sublet within 6 months after the
expiration of landlord's 60-day period for election to terminate, then Tenant
shall again comply with the provisions of this Paragraph 17.2 before assigning
this Lease or entering into a sublease, as to all or any portion of the
premises. See Paragraphs 17.2 (a) and 17.3 at page 16.
18. TRANSFER OF LANDLORD'S INTEREST. In the event of any transfer of
Landlord's interest in the Building or Premises, other than a transfer for
security purposes only, the transferor shall be automatically relieved of any
and all obligation and liabilities on the part of Landlord accruing from and
after the date of such transfer, including, without limitation, the obligation
of Landlord to return the Security Deposit as provided in the Lease; provided
that the transferor shall, within a reasonable time transfer any Security
Deposit then held by Landlord, or any portion thereof remaining after proper
deductions therefrom, to the transferee and shall thereafter notify Tenant of
such transfer, of any claims made against the Security Deposit, and of the
transferee's name and address, by written notice delivered personally (in which
case Tenant shall acknowledge receipt of such notice by signing landlord's copy
of such notice) or by registered or certified mail.
19. HOLDING OVER. If Tenant hold over after the 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 an further term, and in such case, Base Rent shall be payable at a monthly
rate equal to one and one-half times the Base Rent applicable during the last
rental period of the term under this Lease. Such month-to-month tenancy shall be
subject to every other term, covenant and agreement contained herein. Nothing
contained in this Section 19 shall be construed as consent by Landlord to any
holding over by Tenant and Landlord expressly reserves the right to require
Tenant to surrender possession of the Premise to Landlord as provided in this
Lease upon the expiration or other termination of this Lease.
20. NOTICES. In every case when, under the provisions of this Lease, it
shall be necessary or desirable for one part hereto to serve any notice, request
or demand on the other, such notice or demand shall be in writing and shall be
serve personally or by deposit in the United States mail, postage and fees fully
prepaid, registered or certified mail, with return receipt requested, addressed
as follows:
Copy to: Paramount Group, Inc.
Xxxxxxxxx Xxxxx
Xxxxx 0000
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
If to Landlord: One Wilshire Arcade Imperial, Ltd.
c/o Paramount Group, Inc.
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
If to Tenant: Xxxxxx, Xxxxxxx & Xxxxxx
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Landlord or Tenant may, from time to time, by notice in writing served upon the
other as aforesaid, designate a different mailing address or a different person
to whom all such notices or demands are thereafter to be addressed. Service of
any such notice demand if given personally shall be deemed complete upon
delivery, and if made by mail shall be deemed complete on the day actual
delivery as shown by the addressee's registry or certification receipt or at the
expiration of 2 business days after the day of mailing, whichever is earlier.
21. QUIET ENJOYMENT. Landlord covenants that Tenant, upon paying the
rent and performing the convenants of the Lease on Tenant's part to be
performed, shall and may peaceably and quietly have, hold and enjoy the Premises
for the term this Lease.
22. TENANT'S FURTHER OBLIGATIONS.
22.1 Except for ordinary wear and as otherwise provided in
this Lease, Tenant shall, at Tenant's expense keep good order condition
and repair the interior of the Premises and shall promptly and
adequately repair all damage to the interior of the Premises and
replace or repair all glass, fixtures, equipment and appurtenances
therein damaged or broke under the supervision and with the approval of
Landlord and, if Tenant does not do so, Landlord may, but need not,
make such repairs and replacements and if Landlord does so Tenant shall
pay Landlord the cost thereof promptly upon demand, additional rent
hereunder.
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22.2 Tenant shall comply with all laws, ordinances, rules,
regulations, orders and directives of governmental and
quasi-governmental bodies and authorities having jurisdiction over
Tenant or the Premises from time to time and shall obtain and keep in
effect all licenses, permits and other authorizations required with
respect to the business or businesses conducted by Tenant within or
from the Premises. Tenant and its employees, agents, licensees and
invitees shall also comply with all reasonable rules and regulations
which Landlord may adopt from time to time for the protection and
welfare of the Building and its tenants and occupants: provided that
Tenant shall not be responsible for compliance with any rule or
regulation adopted by Landlord unless or until Tenant is furnished with
a copy thereof. The present rules and regulations for the Building are
attached hereto as Exhibit "B". Landlord shall have no liability to
Tenant for the failure of any other tenant in the Building to observe
the rules and regulations.
23. ESTOPPEL CERTIFICATE BY LESSEE. At any time and from time to time,
within 15 days after written request by Landlord, Tenant shall execute,
acknowledge and deliver to Landlord a statement in writing certifying that this
Lease is unmodified and in full force and effect (or if there have been
modifications, that this Lease is in full force and effect as modified and
stating the modifications), that Tenant knows of no default hereunder by
Landlord and has no right of offset or deduction against the rent or any other
charge payable to Landlord (or specifying any claimed), the amount of any
security posted by Tenant, the dates to which the rent and other charges have
been paid in advance, and any increases or decreases of rent that are
anticipated. It is intended that any statement delivered pursuant to this
Section 23 may be relied upon by any purchaser of the fee or mortgagee or
beneficiary or assignee of any mortgage or trust deed upon the fee of the
Building or Premises. Tenant's failure to deliver the statement within the
period specified above shall be conclusive and binding upon Tenant that the
Lease is in full force and effect without modification except as may be
represented by Landlord, that there are no uncured defaults in Landlord's
performance and that Tenant has no right of offset, counterclaim or deduction
against rental, and that no more than one month's rental has been paid in
advance.
24. SUBORDINATION AND ATTORNMENT. This Lease is and at all times shall
be subject and subordinate to any ground or underlying leases, mortgages, trust
deeds or like encumbrances, which may now affect the Building or Premises, and
to all renewals, modifications, consolidations, replacements and extensions of
any such lease, mortgage, trust deed or like encumbrance. In addition, as to any
future ground or underlying lease, mortgage, trust deed or like encumbrance, or
any renewal, modification, consolidation, replacement or extension of any of the
same. Tenant agrees that, at the request of Landlord or any party to a ground or
underlying lease or any holder of a note secured by a mortgage or like
encumbrance. Tenant will execute any certificate or document reflecting the
subordination of this Lease to such ground or underlying lease or to the lien of
any mortgage or like encumbrance now or hereafter placed upon the Building or
Premises, subject to Tenant's possession of the Premises under the terms of this
Lease not being disturbed so long as Tenant faithfully discharges all of its
obligations hereunder. In the event of the sale of the Building upon foreclosure
or upon the exercise of a power of sale, or by transfer in lieu of foreclosure.
Tenant agrees, upon the written request of the purchaser or transferee, to
attorn to the purchaser or transferee and recognize the purchaser or transferee
as the Landlord under this Lease and to continue to be bound by the terms of
this Lease.
25. RIGHTS RESERVED TO LANDLORD.
25.1 All portions of the Building are reserved to Landlord,
including exterior building walls, core corridor walls and doors and
any core corridor entrance, but excluding the Premises and the inside
surfaces of all walls, windows and doors bounding the Premises.
Landlord also reserves any space in or adjacent to the Premises used
for shafts, stacks, pipes, conduits, fan rooms, ducts, electric or
other utilities, sinks or other building facilities, and the use
thereof, as well as the right to access thereto through the Premises
for the purposes of operation, maintenance, decoration and repair.
25.2 Landlord shall have the following rights exercisable
without notice and without liability to Tenant for damage or injury to
property, person or business (all claims for damage being hereby
released), and without effecting an eviction or disturbance of Tenant's
use or possession or giving rise to any claim for setoffs or abatement
of rent:
(a) To enter the Premises at all reasonable times
during the term of this Lease for the purpose of inspecting
the same, exhibiting the Premises to prospective tenants,
purchasers or others, or making such repairs or replacements
therein as may be required by this Lease or as Landlord may
deem appropriate: provided that Landlord shall use all
reasonable efforts not to disturb Tenant's use and occupancy
and shall, when practical, give Tenant prior notice of such
repairs.
(b) To change the name or street address of the
Premises or Building.
(c) To install and maintain signs on the exterior and
interior of the Building, except within the Premises.
(d) To have pass keys to the Premises.
(e) To decorate, remodel, repair, alter or otherwise
prepare the Premises for reoccupancy during the last 6 months
of the term hereof if, during or prior to such time, Tenant
has vacated the Premises, or at any time after Tenant abandons
the Premises.
(f) To have access to all mail chutes according to
the rules of the United States Postal Service.
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(g) To do or permit to be done any work in or about
the exterior of the Building or any adjacent or nearby
building, land street or alley.
(h) To grant to anyone the exclusive right to conduct
any business or render any service in the Building, provided
such exclusive right shall not operate to exclude Tenant from
the use expressly permitted by this Lease.
26. FORCE MAJEURE. Whenever there is provided in this Lease a time
limitation for performance by Landlord or Tenant of any construction, repair
maintenance or service, the time provided for shall be extended for as long as
and to the extent that delay in compliance with such limitation is due to an act
of God, governmental control or other factors beyond the reasonable control of
Landlord or Tenant, respectively.
27. WAIVER OF CLAIMS: INDEMNITY.
27.1 Tenant, as a material part of the consideration to Landlord,
hereby assumes all risk of, and waives all claims it may have against Landlord,
its agents, employees, affiliates and successors in interest for damage to or
loss of property or personal injury or loss of life resulting from the Building
or Premises or any part thereof becoming out of repair, by reason of any repair
or alteration thereof, or resulting from any accident within the Building or
Premises or on or about any space adjoining the Building or Premises, or
resulting directly or indirectly from any act or omission of any person, or due
to any condition, design or defect of the Building or Premises, or any space
adjoining the Building or Premises, or the mechanical systems of the Building or
Premises, which may exist or occur whether such damage, loss or injury results
from conditions arising upon the premises or upon other portions of the
Building, or from other sources or places, and regardless of whether the cause
of such damage, loss or injury or the means of repairing the same is accessible
to Tenant: provided such assumption and waiver shall not apply to claims caused
by the negligence or willful act of Landlord or its agents.
27.2 Tenant hereby indemnifies and holds Landlord and Landlord's
agents, employees, affiliates and successors in interest harmless from and
against any and all claims, demands, suits, fines, losses and other liabilities
for or relating to injury or loss of life to persons or damage to or loss of
property arising from Tenant's use of the Building or the Premises or from the
conduct of Tenant's business or from any work done, permitted or suffered by
Tenant in or about the Premises or elsewhere, and further indemnifies and holds
Landlord and Landlord's agents, employees, affiliates and successors in interest
harmless from and against any and all claims arising from any breach or default
in the performance of any obligation on Tenant's part to be performed under the
terms of this Lease, or arising from any negligence or intentional conduct of
Tenant or Tenant's agents, employees, contractors, licensees, invitees,
representatives or successors in interest, and from and against all costs,
attorneys' fees, expenses and liabilities incurred by Landlord or Landlord's
agents, employees, affiliates and successors in interest in or in connection
with any such claim, demand, suit, fine or proceeding. In the event that any
action or proceeding be brought against Landlord or Landlord's agents,
employees, affiliates or successors in interest by reason of any such claim.
Tenant upon notice from Landlord shall defend such action or proceeding at
Tenant's cost and expense by counsel approved by Landlord, such approval not to
be unreasonably withheld.
28. INSURANCE
28.1 Tenant shall procure and shall maintain in effect, at Tenant's
sole cost and expense throughout the term of this Lease, including any
extensions and renewals thereof, public liability and properly damage insurance
against claims for bodily injury, death or property damage occurring upon or
about the Premises or Building, in each case naming Landlord as additional
insured and upon request by Landlord, naming the holder of any mortgage, deed of
trust or like encumbrance or the lessor under any underlying lease covering the
Building, as additional insured, with a limit of liability of not less than
$2,000,000 single limit. Without hereby implying any authorization therefor
unless otherwise specifically contemplate herein, if at any time during the term
hereof any alcoholic beverages of any nature are served in the Premises, Tenant
shall also maintain a liquor liability insurance policy with a limit of
liability of not less than $500,000.00, If from time to time, the limits of
liability set forth above are, in the reasonable opinion of Landlord,
inadequate, Tenant shall increase such insurance coverage to an amount as shall
be designated by Landlord's notice to Tenant. Such policies of insurance shall
be with insurance companies acceptable to Landlord, and shall be evidenced by
certificates of insurance delivered to Landlord from time to time showing such
insurance to be at all times prepaid and in full force and effect and providing
that such insurance cannot be canceled or modified upon less than 30 days prior
written notice to Landlord. If at any time Tenant has not provided Landlord with
a then currently effective certificate of insurance acceptable to Landlord as to
any insurance required in force, obtain such a policy and Tenant shall
reimburse Landlord for the cost thereof upon demand as additional rent
hereunder.
28.2 Landlord and Tenant, each on behalf of itself, its agents,
employees, contractors, representatives, affiliates, successors in interest,
licensees or invitees may have against the other or its agents, employees,
contractors, representatives, affiliates, successors in interest, licensees or
invitees for any losses or claimed losses that are caused by or result from
risks insured against under any ;policy or policies of insurance in force at
the time of such loss or claimed loss: provided that such waiver of subrogation
does not impose any additional premium upon the party so giving it. If any
additional premium would be incurred by reason of such waiver of subrogation,
the party upon whom such additional premium would be imposed shall promptly
notify the other and the other party shall have the right at its option to pay
such additional amount, in which event the waiver of subrogation shall remain in
effect. If the other party does not
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notify the party which would incur such additional premium with reasonable
promptness following receipt of the notice informing it of the additional
premium, the party that would incur such additional premium shall be free to
terminate such waiver of subrogation if it so elects.
29. FIXTURES, TENANT IMPROVEMENTS AND ALTERATIONS.
29.1 Except as otherwise provided in any Landlord's
Improvement Construction Rider, Tenant Improvement Credit Rider or
Tenant Improvement Credit Rider or Tenant Improvement Allowance Rider
attached hereto, all improvements, fixtures and / or equipment which
tenant may install or place in ,on or about the Premises, from time to
time, shall be at the sole cost of Tenant. Landlord shall be without
any obligation in connection therewith. Tenant hereby indemnifies and
holds Landlord harmless from any liability, cost, obligation, expense
or claim of lien in any manner relating to the installation, placement,
removal or financing of any such alterations, repairs, changes,
improvements, fixtures, and / or equipment in, on or about the
Premises.
29.2 Tenant shall not alter, repair or change the Premises,
nor erect any signs in, on or about the Premises, nor make
installations of a permanent nature or in any manner affixed to the
building, including the initial improvements contemplated in any
Landlord's improvement Construction Rider. Tenant Improvement Credit
Rider or Tenant Improvement Allowance rider attached hereto, without
first obtaining the express written consent of Landlord. With regard to
alterations, repairs or changes to, or installations in, the interior
of the premises which do not affect the structural members, exterior
walls, windows and doors of the Building. Landlord's consent shall not
unreasonably be withheld. With regard to any such matters which may
affect the structural members, exterior walls, windows and doors of the
Building, and with regard to the installation of any signs outside the
Premises, Landlord may grant or withhold its consent in its unlimited
discretion.
29.3 Landlord may impose, as a condition of its consent to
alterations, repairs or changes of the Premises or the erection of
signs on or about the Premises, such requirements as Landlord in its
sole discretion may deem desirable, including, but not limited to, the
requirement that Tenant utilize for such purposes only contractors,
materials, mechanics and materialmen approved by Landlord and the
requirement that Tenant shall furnish Landlord with a completion and
lien indemnity bond prior to the commencement of any work. Tenant shall
construct such improvements, alterations or repairs in any event, a
contractor of Landlord's selection shall perform all mechanical,
electrical l, plumbing, air conditioning, permanent partition and
ceiling tile work under contracts let by Landlord, and such work shall
be performed at Tenant's cost except as otherwise provided in any
Landlord's Improvement Construction Rider, Tenant Improvement Credit
Rider or Tenant Improvement Allowance Rider attached hereto. In the
event Tenant orders any construction, alteration, decorating or repair
work rent under this Lease, payable upon billing therefor, either
periodically during construction or upon the substantial completion of
such work, at Landlord's option.
30. MECHANIC'S LIENS. Tenant agrees to give Landlord written notice of
the commencement date of any alterations, improvements or repairs to be made in,
to or upon the Premises not later than 15 days prior to the commencement of any
such work, in order to give Landlord time to post notices of nonresponsibility.
Tenant will not permit any mechanic's materialman's or other lien to be placed
upon the Premises or Building or improvements therein during the term thereof:
and in the event that any mechanic's materialman's or other lien is filed
against the Premises or Building or improvements therein in connection with any
alteration, repair, improvement or change of, or installation of fixtures or
equipment in, the Premises. Tenant shall cause such lien foregoing, Landlord
shall have the right and privilege at Landlord's option of paying the amount of
any such lien or claim, or any portion thereof, without inquiry as to the
validity thereof, and any amounts so paid, including expenses and interest,
shall be deemed additional rent hereunder due from Tenant to Landlord upon
demand.
32. MISCELLANEOUS.
32.1 No receipt of money by Landlord from Tenant after the
termination of this Lease, the service of any notice, the commencement
of any suit or final judgment for possession shall reinstate, continue
or extend the term of this Lease or affect any such notice, demand,
suit or judgment.
32.2 If any provision of this Lease or its application to any
party or circumstances shall be determined by any court of competent
jurisdiction to be invalid or unenforceable to any extent, the
remainder of this Lease or the application of such provision to such
person or circumstances, other than those as to which it is so
determined invalid or unenforceable to any extent, shall not be
affected thereby, and each provision hereof shall be valid and shall be
enforced to the fullest extent,
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permitted by law: and it is the intention of the parties to this Lease that in
lieu of each clause or provision of this Lease that is
illegal, invalid or unenforceable, there be added as a part of this Lease a
clause or provision as similar in terms to such illegal, invalid or
unenforceable cause or provision as may be possible and be legal, valid and
enforceable.
32.3 The covenants and obligations of Tenant pursuant to this Lease
shall be independent of performance by Landlord of the convenants and
obligations of Landlord pursuant to this Lease, and performance by Tenant of
each covenant and obligation of Tenant pursuant to this Lease shall be a
condition precedent to the duty of Landlord to perform the covenants and
obligations of Landlord pursuant to this Lease.
32.4 The headings of Sections of this Lease are for convenience only
and do not define, limit or construe the contents thereof. References made in
this Lease to numbered Sections . Paragraphs and Subparagraphs shall refer to
numbered Sections . Paragraphs or Subparagraphs of this Lease unless otherwise
indicated.
32.5 Where appropriate, words in the singular, including without
limitation the words "Landlord" and "Tenant", include the plural, and vice
versa. Words in the neuter gender include the masculine and feminine genders,
and vice versa, and words in the masculine gender include the feminine gender,
and vice versa.
32.6 If there be more than one Tenant, at any time or from time to
time, the obligations hereunder imposed upon Tenant shall be joint and several.
33.7 Time is of the essence of this Lease. Failure of either party to
perform any act strictly within the applicable period specified herein shall
entitle the other to exercise all remedies herein contemplated.
32.8 This Lease shall be governed by and interpreted in accordance with
the laws of the State of California.
32.9 All monetary obligations of either party hereunder to the other
remaining past due 10 days or more after the date specified herein for payment
shall bear interest at 10% per annum from the due date so specified until paid.
32.10 This instrument, along with any riders, exhibits and attachments
or other documents affixed to or referred to in this instrument (all of which
riders, exhibits, attachments and other documents are hereby incorporated into
this instrument by this reference), constitutes the entire and exclusive
agreement between Landlord and Tenant relating to the Premises, and this
agreement and said riders, exhibits and attachments and other documents may be
altered, amended or revoked only by an instrument in writing signed by the party
to be charged thereby. All prior or contemporaneous oral agreements,
understandings and / or practices relative to the leasing of the Premises are
merged herein or revoked hereby. References in this instrument to this "Lease"
shall mean, refer to and include this instrument as well as any riders,
exhibits, attachments or other documents affixed to or referred to in this
instrument, and references to any covenant, condition, obligation and / or
undertaking "herein", "hereunder" or "pursuant hereto" (or language of like
import) shall mean, refer to and include the covenants, conditions, obligations
and undertakings existing pursuant to this instrument and any riders, exhibits,
attachments or other documents affixed to or referred to in this instrument. All
terms defined in this instrument shall be deemed to have the same meanings in
all riders, exhibits, attachments or other documents affixed to or referred to
in this instrument unless the context thereof clearly requires the contrary.
32.11 Tenant hereby consents to amendment of this Lease as and to the
extent required by any lender which makes a loan to Landlord secured in whole
or in part by the Building, provided that no such change shall increase the rent
payable hereunder or impair Tenant's use of the Premises.
32.12 Unless otherwise agreed in writing, if Tenant has dealt with any
real estate broker or other person or firm with respect to leasing or renting
space in the Building, Tenant shall be solely responsible for type payment of
any fee due said broker, person or firm and Tenant hereby indemnifies and holds
Landlord harmless from and against any liability with respect thereto.;
provided, however, that Landlord shall pay, and hold Tenant harmless from, the
commission owed by Landlord to Golden Empire Realty ("Brokers") pursuant to a
separate agreement between Landlord and the Brokers. The parties acknowledge
that Xxxxxx X. Xxxxxx, a partner in Tenant, has a financial interest in Golden
Empire Realty.
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33. EXECUTION BY PARTNERS; INITIALING OF PAGES. The undersigned, Xxxxxx
X. Xxxxxx, represents that he is the Managing General PARTNER of Xxxxxx, Xxxxxxx
& Xxxxxx, a general partnership formed under the laws of the State of
California, and duly qualified to do business in the State California, and that
the Lease is being executed on behalf of that Partnership. The undersigned
hereby represents that he is authorized to execute this Lease and is thereby
binding Tenant and all the partners in Tenant. The undersigned, as Managing
General Partner of Tenant, agrees and represents that he and Tenant, and all of
the partners in Tenant, shall be irrevocably bound by the signature or
initialing of any amendment to this Lease by Xxxxxx X. Xxxxxx or any successor
of Xxxxxx X. Xxxxxx as the Managing General Partner of Tenant.
34. CHANGES IN PARTNERS OF TENANT. Tenant agrees that each new Partner
to Tenant shall be obligated under this Lease, in the same fashion as the
existing Partners. Each newly admitted Partner in Tenant shall be jointly and
severally liable with the remaining Partners for the performance and
satisfaction of all obligations of the Tenant under this Lease accruing from and
after the effective date of the admission of the new partner to the Partnership.
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35. ASBESTOS WORK. Tenant acknowledges that the Premises presently contain
asbestos-containing materials as fireproofing on the structural steel and
possibly as insulation on piping. Tenant agrees that in connection with any
tenant improvements undertaken by Tenant that might disturb such
asbestos-containing materials, Tenant shall comply with all applicable laws at
Tenant's expense and shall utilize only duly licensed contractors approved by
Landlord in writing in advance.
1. PREMISES (CONTINUED).
1.1 Effective July 1, 1994, the Premises shall be expanded to include
an additional area of approximately 6,631 rentable square feet on the 12th floor
of the Building, as more specifically shown on Exhibit C (the "First Expansion
Space"). Landlord shall, at Landlord's expense, remove all asbestos-containing
fireproofing from the First Expansion Space prior to delivering possession to
Tenant. In the event of any delay by Landlord in delivering possession of the
First Expansion Space to Tenant for any reason (including but not limited to the
failure of the current tenant of such space to timely vacate upon the expiration
of such tenant's lease on February 28, 1994), all Base Rent and other charges
attributable to the First Expansion Space shall xxxxx until Landlord does
deliver possession, but such abatement shall be Tenant's sole remedy for
Landlord's delay in delivering possession.
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Effective January 1, 1996, the Premises shall be further expanded to
include an additional area of approximately 2,762 rentable square feet on the
12th floor of the Building, as more specifically shown on Exhibit C (the "Second
Expansion Space"). Landlord shall, at Landlord's expense, remove all
asbestos-containing fireproofing from the Second Expansion Space prior to
delivering possession to Tenant. In the event of any delay by Landlord in
delivering possession of the Second Expansion Space to Tenant for any reason,
all Base Rent and other charges attributable to the Second Expansion Space shall
xxxxx until Landlord does deliver possession, but such abatement shall be
Tenant's sole remedy for Landlord's delay in delivering possession.
2. TERM (CONTINUED)
2.1 (a) Tenant acknowledges that the initial Premises are currently
leased to another tenant whose lease term extends through the year 2004.
Landlord - is currently negotiating with such tenant regarding the termination
of such tenant on terms acceptable to Landlord. However, Landlord can make no
guarantee to Landlord is unable to obtain the termination of the current
tenant's lease and the vacation of the Premises by the current tenant on or
before April 1, 1991, on terms acceptable to Landlord in Landlord's sole
discretion, Landlord shall have the right to cancel this Lease by giving written
notice of such cancellation to Tenant at any time thereafter until the current
tenant does vacate.
In addition to the rights of termination set forth above, if Landlord
fails for any reason (other than delays caused by Tenant) to deliver possession
of the initial Premises under this Lease to Tenant by April 1, 1991 ( the
"Outside Date"), then Tenant shall be entitled to cancel this Lease by
delivering written notice possession. The Outside Date and Tenant's cancellation
right shall, at Landlord's written election, be deferred by the duration of any
delays beyond April 1, 1991, in obtaining the current tenant's vacation of the
Premises if such delay is due to delays in the completion of construction of
such current tenant's new premises in a different building.
3. RENT (CONTINUED).
3.1 Rental Adjustments. The following schedule of monthly Base Rents
and monthly credits shall apply during the term of the Lease:
Monthly Monthly
Period Base Rent Rent Credit
------ --------- -----------
Nov. 15, 1990 to Nov. 14, 1992 $49,218.75 $49,218.75
Tenant's rent obligation will commence November 15, 1992.
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for a term not to exceed five (5) years each
Monthly Monthly
Period Base Rent Rent Credit
------ --------- -----------
Nov. 15, 1992 to June 30, 1994 $49,218.75 None
July 1, 1994 to Dec. 31, 1995 64,691.08 None
Jan. 1, 1996 to Nov. 14, 1998 71,135.75 None
Nov. 15, 1998 to Nov. 14, 2000 74,417,00 None
If Landlord for any reason other than delays caused by Tenant is unable
to deliver the initial Premises to Tenant by November 15, 1990, then the
November 15, 1990, November 15, 1992, and November 15, 1998 rental adjustments
described above shall be correspondingly delayed.
If Landlord for any reason other then delays caused by Tenant is unable
to deliver the First Expansion Space to Tenant by July 1, 1994, then the July 1,
1994 rental adjustment shall be correspondingly delayed.
If Landlord for any reason other then delays caused by Tenant is unable
to deliver the Second Expansion Space to Tenant by January 1, 1996, then the
January 1, 1996 rental adjustment shall be correspondingly delayed.
In the event of a default by Tenant under this Lease which is not cured
within the applicable cure period set forth in Section 13.2, Tenant shall be
obligated to ;pay to Landlord, without any further notice from Landlord, a sum
equal to all rent credits previously credited to Tenant under this Lease, and no
further rent credits described in the above schedule shall be applicable for the
balance of the Lease term.
17. ASSIGNMENT AND SUBLETTING (CONTINUED).
17.2 (a) The provisions of Section 17.2 shall not apply to (a)
any subleases for a term not to exceed five (5) years each of up to a cumulative
total of 12,000 rentable square feet which are entered during the first three
years of the Lease term, nor (b) any other subleases for a term not to exceed
five (5) years each pursuant to which a subtenant is to pay to Tenant a monthly
rental per square foot which is at least 85% of the monthly rental then offered
by Landlord for comparable space in the Building for a comparable term as the
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.
sublease term. Landlord's determination of such rentals then being offered by
Landlord shall be conclusive. Landlord agrees to provide to Tenant its current
monthly rental for comparable space for a comparable term at any time during the
Lease term upon 15 day's prior written request by Tenant.
17.3 ADDITIONAL RENT. In the event that Tenant has sought and
received Landlord's consent to assign this Lease, or to monthly base rent by
Tenant to Landlord, pursuant to Paragraph 3, shall be increased by an amount
equal to one-half of the amount to be received by Tenant during each month
pursuant to the terms of the assignment or sublease, in excess of Tenant's
monthly base rent for the space subject to the assignment or sublease. The
amounts referred to in the previous sentence include rent, rent credit
additional rent, or any other payment in respect of use of occupancy, or in
reimbursement of costs of leasehold improvements installed by Tenant, and
whether paid in a lump sum or periodic payments. In no event shall the total
sums payable to the Landlord be less than the monthly rental Landlord would have
received but for such assignment or sublease.
The additional rent shall be due and payable to Landlord in
accordance with the schedule specified in the sublease or assignment instrument,
and the failure of any subtenant or assignee to make any payments in accordance
with that schedule shall not affect the obligation of Tenant to pay the
additional rent to Landlord.
The calculation of the amount of rentable space being sublet
shall be made by Landlord in accordance with its usual standards, Landlord may
require acknowledgment by Tenant of Tenant's concurrence on the Landlord's
calculation of the amount of rentable space being sublet as a condition to
Landlord's consent to any sublease.
The provisions of a sublease or assignment instrument
consented to by Landlord cannot be modified, not the sublease or assignment
terminated, other than in accordance with its terms, without the prior written
consent of the Landlord, which consent shall not be unreasonably withheld. The
terms of this Paragraph 17.2 shall apply to any subleasing or assignment by any
subtenant or assignee.
The following exhibits and riders are attached to and are part
of this Lease:
Exhibit A -- Building Floor Plan
Exhibit B -- Rules and Regulations
Exhibit C -- Building Floor Plan for First and Second
Expansion Spaces
-17-
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Rent Escalation Rider
Parking Space Rider
Tenant Improvement Allowance Rider For Initial premises
Tenant Improvement Allowance Rider No. 2 For First
Expansion Space
Tenant Improvement Allowance Rider No. 3 For Second
Expansion Space
Tenant Improvement Allowance Rider No. 4 For Entire Premise
IN WITNESS WHEREOF, this instrument has been duly executed by
the parties, as of the date first above written.
TENANT XXXXXX, XXXXXXX & XXXXXX
a California partnership
By:/s/ Xxxxxx X. Xxxxxx
----------------------------------
Managing General Partner
LANDLORD: ONE WILSHIRE ARCADE IMPERIAL,
LTD.
By Paramount Group, Inc.,
Agent
By: /s/
--------------------------
Its /s/
-----------------------
By: /s/
--------------------------
Its /s/
-----------------------
-00-
00
XXXXX XXXX
00 XX XXXXX
ONE WILSHIRE BUILDING
000 XXXXX XXXXX XXX., XXX XXXXXXX, XX 00000
EXHIBIT " A "
XXXXXX, XXXXXXX & XXXXXX
SUITE 1100
Approximately 22,500 rentable square feet
00
XXXXX XXXX
00 XX XXXXX
XXX XXXXXXXX XXXXXXXX
000 XXXXX XXXXX XXX., XXX XXXXXXX, XX 00000
BORTON, PETRINI, & XXXXXX
EXHIBIT " C "
First Expansion Space (Suite 1210)
Approximately 6,631 rentable square feet
SCALE
0' 25" 50" 75'
00
XXXXX XXXX
00XX XXXXX
XXX XXXXXXXX XXXXXXXX
000 XXXXX XXXXX XXX, XXX XXXXXXX, XX 00000
BORTON, PETRINI, & XXXXXX
EXHIBIT ' '
Second Expansion Space (Suite 1220)
Approximately 2,762 rentable square feet
SCALE
0' 25' 50' 75'
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EXHIBIT "B"
RULES AND REGULATIONS
1. Tenant shall not obstruct or interfere with the rights of other
tenants of the Building, or of persons having business in the Building, or in
any way injure or annoy such tenants or persons.
2. Tenant shall not commit any act or permit any thing in or about the
Building which shall or might subject Landlord to any liability or
responsibility for injury to any person or property by reason of any business or
operation being carried on in or about the Building or for any other reason.
3. Tenant shall not use the Building for lodging, sleeping, cooking, or
for any immoral or illegal purpose or for any purpose that will damage the
Building, or the reputation thereof, or for any purposes other than those
specified in the Lease.
4. Canvassing, soliciting and peddling in the Building are prohibited,
and Tenant shall cooperate to prevent such activities.
5. Tenant shall not bring or keep within the Building any animal,
bicycle or motorcycle.
6. Tenant shall not conduct mechanical or manufacturing operations,
xxxx or prepare food, or place or use any inflammable, combustible, explosive or
hazardous fluid, chemical, device, substance or material in or about the
Building without the prior written consent of Landlord. Tenant shall comply with
all statutes, ordinances, rules, orders, regulations and requirements imposed by
governmental or quasi-governmental authorities in connection with fire and panic
safety and fire prevention and shall not commit any act, or permit any object to
be brought or kept in the Building, which shall result in a change of the rating
of the Building by the insurance Services Office or any similar person or
entity. Tenant shall not commit any act or permit any object to be brought or
kept in the Building which shall increase the rate of fire insurance on the
Building or on property located therein.
7. Tenant shall not use the Building for manufacturing or for the
storage of goods, wares or merchandise, except as such storage may be incidental
to the use of the premises for general office purposes and except in such
portions of the Premises as may be specifically designated by Landlord for such
storage. Tenant shall not occupy the Building or permit any portion of the
Building to be occupied for the manufacture or direct sale of liquor, narcotics,
or tobacco in any form, or as a medical office, xxxxxx shop, manicure shop,
music or dance studio or employment agency. Tenant shall not conduct in or about
the Building any auction, public or private, without the prior written approval
of Landlord.
8. Tenant shall not install or use in the Building any air conditioning
unit, engine, boiler, generator, machinery, heating unit, stove, water cooler,
ventilator, radiator or any other similar apparatus without the express prior
written consent of Landlord, and then only as Landlord may direct.
9. Tenant shall not use in the Building any machines, other than
standard office machines such as typewriters, calculators, copying machines and
similar machines, without the express prior written consent of Landlord. All
office equipment and any other device of any electrical or mechanical nature
shall be placed by Tenant in the Premises in settings approved by Landlord, so
as to absorb or prevent any vibration, noise, or annoyance. Tenant shall not
cause improper noises, vibrations or odors within the Building.
10. Tenant shall move all freight, supplies, furniture, fixtures and
other personal property into, within and out of the Building only at such times
and through such entrances as may be designated by Landlord, and such movement
of such items shall be under the supervision of Landlord. Landlord reserves the
right to inspect all such freight, supplies, furniture, fixtures and other
personal property to be brought into the Building and to exclude from the
Building all such objects which violate any of these rules and regulations or
the provisions of the Lease. Tenant shall not move or install such objects in or
about the Building in such a fashion as to unreasonably obstruct the activities
of other tenants, and all such moving shall be at the sole expense, risk and
responsibility of Tenant. Tenant shall not use in the delivery, receipt or other
movement of freight, supplies, furniture, fixtures and other personal property
to, from or within the Building, and hand trucks other than those equipped with
rubber tires and side guards.
11. Tenant shall not place within the Building any safes, copying
machines, computer equipment or other objects of unusual size or weight, nor
shall Tenant place within the Building any objects which exceed the floor weight
specifications of the Building, without the express prior written consent of
Landlord. The placement and positioning of all such objects within the Building
shall be prescribed by Landlord and such objects shall , in all cases, be placed
upon plates or footings of such size as shall be prescribed by Landlord.
12. Tenant shall not deposit any trash, refuse, cigarettes, or other
substances of any kind within or out of the Building, except in the refuse
containers provided therefor. Tenant shall not introduce into the Building any
substance which might add an
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undue burden to the cleaning or maintenance of the Premises or the Building.
Tenant shall exercise its best efforts to keep the sidewalks, entrances,
passages, courts, lobby areas, garages or parking areas, elevators, escalators,
stairways, vestibules, public corridors and halls in and about the Building
(hereinafter "Common Areas") clean and free from rubbish.
13. Tenant shall use the Common Areas only as a means of ingress and
egress, and Tenant shall permit no loitering by any persons upon Common Areas or
elsewhere within the Building. The Common Areas and roof of the Building are not
for the use of the general public, and Landlord shall in all cases retain the
right to control or prevent access thereto by all persons whose presence, in the
judgment of Landlord, shall be prejudicial to the safety, character, reputation
or interests of the Building and its tenants. Tenant shall not enter the
mechanical rooms, air conditioning rooms, electrical closets, janitorial
closets, or similar areas or go upon the roof of the Building without the
express prior written consent of Landlord.
14. Landlord reserves the right to exclude or expel from the Building
any person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs or who shall in any manner act in violation of the
rules and regulations of the Building.
15. Landlord shall have the right to designate the area or areas, if
any, in which Tenant and Tenant's servants, employees, contractors, jobbers,
agents, licensees, invitees, guests and visitors may park vehicles, and Tenant
and its servants, employees, contractors, jobbers, agents, licensees, invitees,
guests and visitors shall observe and comply with all driving and parking signs
and markers within and about the Building. All parking ramps and areas and any
pedestrian walkways, plazas or other public areas forming a part of the Building
or the land upon which the Building is situated shall be under the sole and
absolute control of Landlord, who shall have the exclusive right to regulate and
control these areas.
16. Tenant shall not use the washrooms, restrooms and plumbing fixtures
of the Building, and appurtenances thereto, for any other purpose than the
purposes for which they were constructed, and Tenant shall not deposit any
sweepings, rubbish, rags or other improper substances therein. Tenant shall not
waste water by interfering or tampering with the faucets or otherwise. If Tenant
or Tenant's servants, employees, contractors, jobbers, agents, licensees,
invitees, guests or visitors cause any damage to such washrooms, restrooms,
plumbing fixtures or appurtenances, such damage shall be repaired at Tenant's
expense, and Landlord shall not be responsible therefor.
17. Tenant shall not xxxx, paint, drill into, cut, string wires within,
or in any way deface any part of the Building, without the express prior written
consent of Landlord, and as Landlord may direct. Upon removal of any wall
decorations or installations or floor coverings by Tenant, any damage to the
walls or floors shall be repaired by Tenant at Tenant's sole cost and expense,
without limitation upon any of the provisions of the Lease. Tenant shall refer
all contractors' representatives, installation maintenance or improvement of the
Premises to Landlord for Landlord's supervision, approval and control before
performance of any such services. This Paragraph 17 shall apply to all work
performed in the Building, including without limitation installation of
telephones, telegraph equipment, electrical devices and attachments and
installations of any nature affecting floors, walls, woodwork, trim, windows,
ceilings, equipment or any other portion of the Building. Plans and
specifications for such work, prepared at Tenant's sole expense, shall be
submitted to Landlord and shall be subject to Landlord's express prior written
approval in each instance before the commencement of work. All installations,
alterations and additions shall be constructed by Tenant in a good and
workmanlike manner and only good grades of material shall be used in connection
therewith. The means by which telephone, telegraph and similar wires are to be
introduced to the Premises and the location of telephones, call boxes and other
office equipment affixed to the Premises shall be subject to the express prior
written approval of Landlord. Tenant shall not lay linoleum or similar floor
coverings so that the same shall come into direct contact with the floor of the
Premises and, if linoleum or other similar floor covering is to be used, an
interlining of builder's deadening felt shall be first affixed to the floor, by
a paste or other material soluble in water. The use of cement or other similar
adhesive material is expressly prohibited.
18. No signs, awnings, showcases, advertising devices of other
projections or obstructions shall be attached to the outside walls of the
Building or attached or placed upon any Common Areas without the express prior
written consent of Landlord. No window shades, blinds, drapes or other window
coverings shall be installed in the Building without the express prior written
consent of Landlord. No sign, picture, advertisement, window display or public
display or notice shall be inscribed, exhibited, painted or affixed by Tenant
upon or within any part of the Premises in such a fashion as to be seen from the
outside of the Premises of the Building without the express prior written
consent of Landlord. In the event of the violation of any of the foregoing by
Tenant. Landlord may remove the articles constituting the violation without any
liability and Tenant shall reimburse Landlord for the expense incurred in such
removal upon demand as additional rent under the Lease. Interior signs on doors
and upon the Building directory shall be subject to the express prior written
approval of Landlord and shall be inscribed, painted, or affixed by Landlord at
the expense of Tenant.
19. Tenant shall not use the word "Paramount" or the name of the
Building or of Landlord in its business name, trademarks, signs, advertisements,
descriptive material, letterhead, insignia or any other similar item without
Landlord's express prior written consent.
20. Tenant shall be entitled to have its name entered upon the
directory of the Building. In the event that Tenant wishes to have additional
entries made upon the Building directory for the names of employees of Tenant
who occupy office space within the Premises, such entries may be allowed by
Landlord in its reasonable discretion, and Landlord may require that Tenant pay
a reasonable fee for each such additional entry. All entries upon the Building
directory shall be in uniform print of a size, style and format selected by
Landlord.
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21. The sashes, sash doors, skylights, windows and doors that reflect
or admit light or air into the Common Areas shall not be covered or obstructed
by Tenant, through placement of objects upon windowsills or otherwise. Tenant
shall cooperate with Landlord in obtaining maximum effectiveness of the cooling
system of the Building by closing drapes and other window coverings when the
sun's rays fall upon windows of the Premises. Tenant shall not obstruct, alter
or in any way impair the efficient operation of Landlord's heating, ventilating,
air conditioning, electrical, fire, safety or lighting systems, not shall Tenant
tamper with or change the setting of any thermostat or temperature control
valves in the Building.
22. Subject to applicable fire or other safety regulations, all doors
opening onto Common Areas and all doors upon the parameter of the Premises shall
be kept closed and, during non-business hours, locked, except when in use for
ingress or egress if Tenant uses the Premises after regular business hours or on
non-business days Tenant shall lock any entrance doors to the Building or to the
Premises used by Tenant immediately after using such doors.
23. Employees of Landlord shall not receive or carry messages for or to
Tenant or any other person, nor contact with nor render free or paid services to
Tenant or Tenant's servants, employees, contractors, jobbers, agents, invitees,
licensees, guests or visitors. In the event that any of Landlord's employees
perform any such services, such employees shall be deemed to be the agents of
Tenant regardless of whether or how payment is arranged for such services, and
Tenant hereby indemnifies and holds Landlord harmless from any and all liability
in connection with any such services and any associated injury or damage to
property or injury or death to persons resulting therefrom.
24. All keys to the exterior doors of the Premises shall be obtained by
Tenant from Landlord, and Tenant shall pay to Landlord a reasonable deposit
determined by Landlord from time to time for such keys. Tenant shall not make
duplicate copies of such keys. Tenant shall not install additional locks or
bolts of any kind upon any of the doors or windows of, or within, the Building,
nor shall Tenant make any changes in existing locks or the mechanisms thereof.
Tenant shall, upon the termination of its tenancy, provide Landlord with the
combinations to all combinations locks on safes, safe cabinets and vaults and
deliver to Landlord all keys to the Building, the Premises and all interior
doors, cabinets, and other key-controlled mechanisms therein, whether or not
such keys were furnished to Tenant by Landlord. In the event of the loss of any
key furnished to Tenant by Landlord, Tenant shall pay to Landlord the cost of
replacing the same or of changing the lock or locks opened by such lost key if
Landlord shall deem it necessary to make such change.
25. Access may be had by Tenant to the Common Areas and to the Premises
at any time between the hours of 7:00 A.M. and 6:00 P.M., Monday through Friday,
legal holidays excepted. At other times access to the Building may be refused
unless the person seeking admission is known to the watchman in charge, if any,
and/or has a pass or is properly identified. Tenant shall be responsible for all
persons for whom Tenant requests passes, and shall be liable to Landlord for all
acts of such persons. In the event the Building has, or there is subsequently
installed, a card access system for using the elevators at other than normal
operating hours for the Building, Landlord may deny access to any area served by
the elevators by anyone not having the necessary elevator access card. Landlord
shall in no case be liable for damages for the admission or exclusion of any
person from the Building. In case of invasion, mob, riot, public excitement, or
other commotion, Landlord reserves the right to prevent access to the Building
for the safety of tenants and protection of property in the Building.
26. Landlord shall not be responsible for, and Tenant hereby
indemnifies and holds Landlord harmless from any liability in connection with,
the loss, theft, misappropriation or other disappearance of furniture,
furnishings, fixtures, machinery, equipment, money, jewelry or other items of
personal property from the Premises or other parts of the Building, regardless
of whether the Premises or Building are locked at the time of such loss.
27. For purposes hereof, the terms "Landlord," "Tenant," "Building" and
"Premises" are defined as those terms are defined in the Lease to which these
Rules and Regulations are attached. Wherever Tenant is obligated under these
Rules and Regulations to do or refrain from doing an act or thing, such
obligation shall include the exercise by Tenant of its best efforts to secure
compliance with such obligation by the servants, employees, contractors,
jobbers, agents, invitees, licensees, guests and visitors of Tenant. The term
"building" shall include the Premises, and any obligations of Tenant hereunder
with regard to the Building shall apply with equal force to the Premises and to
other parts of the Building.
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RENT ESCALATION RIDER
In order to adjust the rent payable under the Lease in accordance with
changes in the Real Estate Taxes, Operation Costs, and Utility Costs (as
hereinafter defined) applicable to the Building, Tenant agrees to pay to
Landlord, in addition to the installments of Base Rent, and as additional
monthly rent under the Lease, the following sums:
(a) 3.9512% ("Tenant's Percentage Share") of the amount (if any) by
which Real Estate Taxes (as hereinafter defined) for any tax fiscal year exceed
Real Estate Taxes for the tax fiscal year 1990-1991 The amount of Tenant's
Percentage Share of such excess (if any) shall be due from Tenant upon the later
of the first day of the January falling within the tax fiscal year of such
increase in Real Estate Taxes or upon billing by Landlord, and shall be payable
in one lump sum for the entire amount of Tenant's Percentage Share of such
excess.
(b) Following the expiration of the first full calendar year of the
term of the Lease, in a single lump sum upon billing therefor, Tenant's
Percentage Share of the amount (if any) by which Operating Costs (as hereinafter
defined) for such first full calendar year exceed the Operating Costs for the
calendar year 1990. At the same time Tenant shall also pay to Landlord
one-twelfth of Tenant's Percentage Share of such excess for each month that has
commenced in the then current calendar year as an estimate of Tenant's share of
the Operating Costs attributable to such month(s). Thereafter, with each month's
Base Rent until the next adjustment hereunder, Tenant shall pay one-twelfth of
Tenant's Percentage Share of such excess as an estimate of Tenant's share of the
Operating Costs for the then current calendar year attributable to each such
month. Upon expiration of each such calendar year, Landlord shall determine the
increase or decrease (if any) in Operating Costs for such calendar year over or
under those for the previous calendar year, and if there is an increase Tenant
shall pay to Landlord in a single lump sum upon billing Tenant's Percentage
Share of the increase plus one-twelfth of Tenant's Percentage Share of such
increase for each month that has then commenced in the new calendar year, or if
there is a decrease Landlord shall refund to Tenant or, at Landlord's options,
credit against the next rent falling due under the Lease the amount of the
overpayment made by Tenant during the preceding calendar year, provided that the
amount of such refund or credit shall in no event exceed the total of payments
made by Tenant toward Tenant's Percentage Share of increases in Operating Costs
for such calendar year. Thereafter, with each month's Base Rent until the next
adjustment hereunder, Tenant shall pay one-twelfth of Tenant's Percentage Share
of the cumulative increase (if any) in Operating Costs over the Operating Costs
for the calendar year 1990.
(c) Following the expiration of the first full calendar year of the
term of the Lease, in a single lump sum upon billing therefor. Tenant's
Percentage Share of the amount (if any) by which Utility Costs (as hereafter
defined) for such first full calendar year exceed the Utility Costs for the
calendar year 1990. At the same time Tenant shall also pay to Landlord
one-twelfth of Tenant's Percentage Share of such excess for each month that has
commenced in the then current calendar year as an estimate of Tenant's share of
the Utility Costs attributable to such month(s). Thereafter, with each month's
Base Rent until the next adjustment hereunder, Tenant shall pay one-twelfth of
Tenant's Percentage Share of such excess as an estimate of Tenant's share of
the Utility Costs for the then current calendar year attributable to each such
month. Upon expiration of each such calendar year, Landlord shall determine the
increase or decrease (if any) in Utility Costs for such calendar year over or
under those for the previous calendar year, and if there is an increase Tenant
shall pay to Landlord in a single lump sum upon billing Tenant's Percentage
Share of the increase plus one-twelfth of Tenant's Percentage Share of such
increase for each month that has then commenced in the new calendar year, or if
there is a decrease Landlord shall refund to Tenant or, at Landlord's option,
credit against the next rent falling due under the Lease the amount of the
overpayment made by Tenant during the preceding calendar year, provided that
the amount of such refund or credit shall in no event exceed the total of
payments made by Tenant toward Tenant's Percentage Share of increases in
Utility Costs for such calendar year. Thereafter, with each month's Base Rent
until the next adjustment hereunder, Tenant shall pay one-twelfth of Tenant's
Percentage Share of the cumulative increase (if any) in Utility Costs over the
Utility Costs for the calendar year 1990.
For purposes hereof, "Real Estate Taxes" shall include any form of
assessment, license fee, commercial rental tax, levy, penalty, charge or tax
(other than net income, inheritance or estate taxes) imposed by any authority
having the direct or indirect power to tax, including any city, county, state or
federal government, or any school, agricultural, lighting, drainage, flood
control or other special district thereof, as against any legal or equitable
interest of Landlord in the Premises or in the real property of which the
Premises and the Building are a part, as against Landlord's right to rent or
other income therefrom, or as against Landlord's business of leasing the
Premises, or any tax imposed in substitution, partially or totally, for any tax
previously included in the
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definition of "Real Estate Taxes." or any additional tax the nature of which was
previously included within the definition of Real Estate Taxes. " and shall
include any increases in such taxes, levies, charges or assessments occasioned
by increases [ILLEGIBLE] rates or increases in assessed valuations, whether
occurring by sale or otherwise.
For purposes hereof, "Operating Costs" shall mean the sum of the
following:
(i) Wage and labor costs paid for by Landlord and applicable
to persons engaged in the management, operation maintenance, overhaul,
improvement or repair of the Premises and/or Building, whether such
persons be employed by Landlord or by an independent contractor with
whom Landlord shall have contracted or may contract for such services,
including without limitation, social security taxes, unemployment
insurance taxes and the costs, if any, of providing disability,
hospitalization, medical welfare, pension, retirement or other employee
benefits imposed by law or by any collective bargaining agreement, or
any voluntary employee benefit plans, applicable with respect to such
employees:
(ii) Costs of all supplies, all insurance, and all service
contracts paid for by Landlord and pertaining to the Premises and/or
Building, and costs of all improvements to the Premises and/or
Building, if and to the extent such improvements are mandated by any
present or future laws, ordinances or governmental or
quasi-governmental rules or regulations, or if the same are made to
conserve energy or otherwise reduce other Operating Costs or Utility
Costs for the Building, with the cost of such improvements being
amortized over the useful life thereof in accordance with generally
accepted accounting principles:
(iii) Such other items as are customarily included in the cost
of managing (including but not limited to management fees), operating
(including but not limited to any ground rent), maintaining (including
but not limited to cleaning and janitorial services and elevator
services), overhauling, improving and repairing the Premises and/or
Building and the fixtures and equipment of the Building in accordance
with accepted accounting or management principles or practices.
The following shall be excluded from Operating Costs: federal and state
income taxes imposed on Landlord's net income: any and all costs or expenses to
procure tenants for the Building, including but not limited to brokerage
commissions, legal fees, and costs of remodeling suites: mortgage or debt
service: and depreciation, except that amortization of improvements of the type
specified in subparagraph (ii), above, shall in no event be considered
"depreciation."
For purposes hereof, "Utility Costs" shall include the costs of all
utilities paid for by Landlord in connection with the Premises and/or Building,
including without limitation costs of heating, ventilation and air conditioning
for the Premises and/or Building, costs of furnishing gas, electricity and other
fuels or power sources to the Premises and/or Building, and costs of furnishing
water and sewer-services to the Premises and/or Building.
Notwithstanding anything in the foregoing definition of Operating
Costs, Operating Costs shall not include any costs of asbestos removal by
Landlord in the Building, nor any costs incurred by Landlord in remodeling the
main lobby of the Building.
In the event of a change of ownership of the Building, as defined in
Revenue and Taxation Code Sections 60-68, resulting in a reassessment of the
Building for property tax purposes, the sum due Landlord under subparagraph (a)
above for the tax fiscal year in which the change of ownership occurs shall not
exceed $50,000. Such limitations shall not apply to any subsequent fiscal years
except subsequent fiscal years in which another change of ownership of the
building occurs. If another such change of ownership occurs during the lease
term, such $50,000 limitation shall again apply only for the fiscal year in
which the change of ownership occurs.
Upon the addition of the First Expansion Space to the Premises pursuant
to Section 1.1, the Tenant's "Percentage Share" shall be increased by 1.1645% to
a total of 5.1157%. Upon the addition of the Second Expansion Space to the
Premises pursuant to Section 1.1, the Tenant's "Percentage Share" shall be
increased by an additional 0.4850% to a total of 5.6007%.
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PARKING SPACE RIDER
Upon payment of the applicable prevailing monthly rate in effect from
time to time, and subject to such rules and regulations as may be adopted from
time to time by the operator of the parking facility serving the Building.
Landlord shall secure to Tenant up to 22 automobile parking spaces on an
unreserved monthly basis in such parking facility throughout the term of the
Lease: provided that if at any time during the term of the Lease Tenant does not
choose to pay for the full number of such parking spaces, Tenant shall not
thereafter have the right to recommence the use of the spaces not paid for if
other commitments have been made for those spaces in the intern.
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TENANT IMPROVEMENT ALLOWANCE RIDER FOR INITIAL PREMISES
Landlord and Tenant hereby agree that Tenant shall be entitled to an
allowance, in the amount of up to $50,000 (the "Maximum Allowance"), for the
construction by Tenant of cosmetic changes only to the existing improvements in
the Premises, including space planning and the preparation of necessary plans
and specifications. The allowance provided for herein shall be available only to
the extent that, within 180 days after the execution of the Lease, Tenant incurs
costs for the construction, in accordance with the provisions of the Lease, of
improvements in the Premises, Landlord shall make disbursements of the allowance
provided for herein to Tenant upon receipt by Landlord of invoices marked as
having been paid or other evidence in form and content satisfactory to Landlord
in support of such costs and the payment thereof, including appropriate lien
releases if requested by Landlord. In no event shall Landlord be obligated to
make disbursements pursuant hereto in a total amount which exceeds the Maximum
Allowance, and in no event shall Landlord be obligated to disburse any portion
of the allowance provided for herein for any purpose other than reimbursement of
Tenant for costs of construction, in accordance with the provisions of the
Lease, of improvements in the Premises. In no event shall the allowance provided
for herein be available to Tenant as a credit against rent or other amounts
owning to Landlord pursuant to the Lease or in any manner other than as
expressly provided herein.
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TENANT IMPROVEMENT ALLOWANCE RIDER NO. 2
FOR FIRST EXPANSION SPACE
Landlord and Tenant hereby agree that Tenant shall be entitled to an
allowance, in the amount of up to $3.00 per rentable square foot in the First
Expansion Space per year remaining in the 10-year Lease term when the First
Expansion Space is added to the Premises (the allowance for any partial year
remaining shall be appropriately prorated) (the "Maximum Allowance"), for the
construction by Tenant of improvements in the Premises, including space planning
and the preparation of necessary plans and specifications. The allowance
provided for herein shall be available only to the extent that, within 180 days
after the First Expansion Space is added to the Premises pursuant to Section
1.1, Tenant incurs costs for the construction, in accordance with the provisions
of the Lease, of improvements in the Premises. Landlord shall make disbursements
of the allowance provided for herein to Tenant upon receipt by Landlord of
invoices marked as having been paid or other evidence in form and content
satisfactory to Landlord in support of such costs and the payment thereof,
including appropriate lien releases if requested by Landlord. In no event shall
Landlord be obligated to make disbursements pursuant hereto in a total amount
which exceeds the Maximum Allowance, and in no event shall Landlord be obligated
to disburse any portion of the allowance provided for herein for any purpose
other than reimbursement of Tenant for costs of construction, in accordance with
the provisions of the Lease, of improvements in the Premises. In no event shall
the allowance provided for herein be available to Tenant as a credit against
rent or other amounts owing to Landlord pursuant to the Lease or in any manner
other than as expressly provided herein.
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TENANT IMPROVEMENT ALLOWANCE RIDER NO. 3
FOR SECOND EXPANSION SPACE
Landlord and Tenant hereby agree that Tenant shall be entitled to an
allowance, in the amount of up to $3.00 per rentable square foot in the second
Expansion Space per year remaining in the 10-year Lease term when the Second
Expansion Space is added to the Premises (the allowance for any partial year
remaining shall be appropriately prorated) (the "Maximum Allowance"), for the
construction by Tenant of improvements in the Premises, including space planning
and the preparation of necessary plans and specification. The allowance provided
for herein shall be available only to the extent that, within 180 days after the
Second Expansion Space is added to the Premises pursuant to Section 1.1, Tenant
incurs costs for the construction, in accordance with the provisions of the
Lease, of improvements in the Premises. Landlord shall make disbursements of the
allowance provided for herein to Tenant upon receipt by Landlord of invoices
marked as having been paid or other evidence in form and content satisfactory to
Landlord in support of such costs and the payment thereof, including appropriate
lien releases if requested by Landlord. In no event shall Landlord be obligated
to make disbursements pursuant hereto in a total amount which exceeds the
Maximum Allowance, and in no event shall Landlord be obligated to disburse any
portion of the allowance provided for herein for any purpose other than
reimbursement of Tenant for costs of construction, in accordance with the
provisions of the Lease, of improvement in the Premises. In no event shall the
allowance provided for herein be available to Tenant as a credit against rent or
other amounts owing to Landlord pursuant to the Lease or in any manner other
than as expressly provided herein.
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TENANT IMPROVEMENT ALLOWANCE RIDER NO. 4
FOR ENTIRE PREMISES
Landlord and Tenant hereby agree that following the first 60 months of
the Lease term Tenant shall be entitled to an allowance, in the amount of up to
$50,000 (the "Maximum Allowance"), for the construction by Tenant of
improvements in the Premises, including space planning and the preparation of
necessary plans and specifications. The allowance provided for herein shall be
available only to the extent that, within 180 days after the start of the 61st
month of the Lease term, Tenant incurs costs for the construction, in accordance
with the provisions of the Lease, of improvements in the Premises. Landlord
shall make disbursements of the allowance provided for herein to Tenant upon
receipt by Landlord of invoices marked as having been paid or other evidence in
form and content satisfactory to Landlord in support of such costs and the
payment thereof, including appropriate lien releases if requested by Landlord.
In no event shall Landlord be obligated to make disbursements pursuant hereto in
a total amount which exceeds the Maximum Allowance, and in no event shall
Landlord be obligated to disburse any portion of the allowance provided for
herein for any purpose other than reimbursement of Tenant for costs of
construction, in accordance with the provisions of the Lease, of improvements in
the Premises. In no event shall the allowance provided for herein be available
to Tenant as a credit against rent or other amounts owing to Landlord pursuant
to the Lease or in any manner other than as expressly provided herein.
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EXHIBIT "B"
PREMISES
43
[floor plan]
