ENCINO FINANCIAL CENTER
OFFICE LEASE
FOR
SITESTAR CORPORATION
SUITE 635
DATED: JUNE 15,1998
TABLE OF CONTENTS
Page
1. TERMS. I
A. Base Rent I
B. Brokers I
C. Building I
D. Building Area 1
E. Building Manager I
F. Building Systems I
G. Commencement Date I
H. Common Area I
1. CC&Rs 1
J. C-44 1
K. Ground Leases and Mortgages I
L. Guarantee I
M Landlord's Mailing Address I
N. Landlord's Representatives I
0. Lease Year I
P. Monthly Installments of Base Rent 1
Q. Normal Business Hours I
R. Parking Area I
S. Parking Rate 1
T. Parking Spaces I
U. Pennitted Use I
V. Possession 2
W. Rules and Regulations 2
X. Premises 2
Y. Security Deposit 2
Z. Tenant's Mailing Address 2
AA. Tenant's Proportionate Share 2
BB. Tenant's Representatives 2
cc. Tenn 2
DD. Termination Date 2
EE. Total Expenses Allowance 2
FF. Total Tax Allowance 2
GG. Watt Load 2
11. EXHIBITS 2
Ill. AMOUNT DUE ON EXECUTION OF THIS LEASE 2
IV. DEMISE OF PREMISES 3
V. GENERAL TERMS, COVENANTS AND CONDITIONS 4
1 . POSSESSION 4
1.1 Early Possession 4
1.2 Confirmation of Possession and Lease
Commencement and Termination Dates 4
2. CONDITION OF THE PREMISES 4
3. RENT 4
3.1 Base Rent 4
3.2 CPI Adjustments 4
3.3 Additional Rent 4
3.4 Late Payments 4
4. TAXES AND OPERATING EXPENSES 4
4.1 Operating Expenses 4
4.2 Taxes 5
4.3 Portion Attributable to the Premises 5
4.4 Payments of Over-Allowance Expenses
and Over-Allowance Taxes 5
4.5 Effect on Rent 6
5. SERVICES
6
TABLE OF CONTENTS
(Continued) Page
(c) Compliance with Laws 9
(d) Environmental Problems 9
(e) Indemnity 9
(f) Landlord's Right to Information 9
7.5 Americans with Disability Act 9
8. RULES AND REGULATIONS 10
9. PARKING 10
9.1 Use of the Parking Spaces 10
9.2 Parking Rate 10
9.3 Identification Procedures 10
9.4 Additional Parking Space 10
9.5 Waiver of Landlord Responsibility 10
9.6 Parking Rules 10
9.7 Landlord's Termination Rights 11
9.8 Towing Rights 11
9.9 Security Programs 11
9.10 Independent Operator/Lessee 11
10. COMMON AREA USE 11
10.1 Right to Use Common Area 11
10.2 Control of Common Area 11
10.3 Prescriptive Easements 00
00.0 Xxxxxxx xx Xxxxxx Xxxx 00
00. REPAIRS AND MAINTENANCE 11
11.1 Tenant's Obligations 11
11.2 Landlord's Obligations 12
11.3 Waiver 12
11.4 Landlords Access 12
12. ALTERATIONS 12
12.1 Consent Requirement 12
12.2 Conditions 12
12.3 Mechanic's Liens 12
13. TENANT'S PROPERTY AND LEASEHOLD IMPROVEMENTS 12
13.1 Tenant's Property 12
13.2 Leasehold Improvements 12
14. CERTAIN RIGHTS RESERVED TO LANDLORD 12
15. ASSIGNMENT AND SUBLETTING 13
15.1 Certain Transfers 13
15.2 Transfer Notice 13
15.3 Landlord's Rights 13
15.4 Reasonableness Standards 13
15.5 Offer to Reconvey 14
15.6 Additional Rent 14
15.7 Continuing Liability of Tenant 14
15.8 Security 14
16. HOLDING OVER14
17. SURRENDER OF THE PREMISES 14
18. DESTRUCTION OR DAMAGE 14
18.1 Repair or Replacement 14
18.2 Landlord's Option to Terminate 14
18.3 Termination by Tenant 15
18.4 Abatement of Rent 15
19. EMINENT DOMAIN 15
19.1 When Voluntary Sale is a Taking 15
19.2 Condemnation Award 15
20. FORCE MAJEURE 15
20.1 Payment of Rent 15
20.2 Self-Help 15
20.3 Notice by Tenant 15
21. INDEMNITY 15
21.1 By Tenant 15
21.2 Tenant's Assumption of Risk 15
1
TABLE OF CONTENTS
(Continued) Page
25. EVENTS OF DEFAULT; REMEDIES OF LANDLORD 17
25.1 Events of Default 17
25.2 Notice of Event of Default is
25.3 Remedies of Landlord 18
25.4 Notice of Termination; Damages 18
25.5 Reentry Not Tennination 18
25.6 No Waiver by Landlord 18
25.7 Injunctive Relief 18
25.8 Waivers 18
26. CURING TENANT'S DEFAULTS 19
26.1 Landlord's Right to Cure 19
26.2 Additional Rent 19
27. DEFAULTS BY LANDLORD 19
28. BROKERAGE FEES 19
29. NOTICES 19
30. TRANSFER OF LANDLORD'S INTEREST 19
31. RELOCATION OF PREMISES 19
32. QUIET ENJOYMENT 19
33. LIMITATION OF LANDLORD'S LIABILITY 19
34. ARBITRATION 19
35. SIGN CONTROL20
36. EXPANSION 20
37. SHORING 17
38. MISCELLANEOUS 20
38.1 Authority; Due Organization 20
38.2 Other Tenancies in the Building 20
38.3 Landlord-Tenant Relationship 20
38.4 Joint and Several Liability 20
38.5 No Accord and Satisfaction 20
38.6 No Non-Mandatory Counterclaim 20
38.7 Waiver of Jury Trial 20
38.8 No Merger 20
38.9 Refusal to Consent 20
38.10 Costs and Attorneys' Fees 21
38.11 Validity of Clauses 21
38.12 Successors and Assigns 21
38.13 Complete Agreement 21
38.14 Captions 21
38.15 Memorandum of Lease 21
38.16 Exhibits, Riders, Attachments and
Addenda 21
38.17 Counterparts 21
38.18 Language Interpretation 21
38.19 Governing Law 21
38.20 Time of the Essence 21
38.21 Financial Statements 21
38.22 Computation of Time 21
OFFICE LEASE
Property Address: 00000 Xxxxxxx Xxxxxxxxx,
Xxxxxx Xxxxxxxxxx 00000
Tenant Name: Glenhills Comoration
Suite Number: 635
THIS OFFICE LEASE (this "Lease") dated as of the 15th day of June, 1998, is
entered into by and between XXXX ENTERPRISES COMMERCIAL GROUP, a California
corporation, as agent for EFC Investors, Ltd. , a California Limited
Partnership, dba Encino Financial Center., ("Landlord") and Glenhills
Corporation ("Tenant").
1. TERMS. As used in this Lease, the following terms shall have the
following meanings:
A. Base Rent: [$24,064.80 per annum, as from time to time increased as
ovided in 9 of the 6eviend +emrr, v enairts ----------- and [or] [ RIDER 1
hereto.
B. Brokers: Landlord's: Xxxx Enterprises Commercial Group Tenant's:
None.
C. Building,2: That certain building located at 00000 Xxxxxxx
Xxxxxxxxx, Xxxxxx, Xxxxxxxxxx, as more particularly described in EXHIBIT A
hereto.
D. Building Area: The Building, the land underlying the Building and
the Common Areas.
E. Buildin2 Manage : Xxxx Enterprises Cormnercial Group, or such other person or
entity as Landlord may from time to time designate.
F. Building Systems: The mechanical, electrical, telecommunication, plumbing,
heating, ventilating, air-conditioning and other equipment, facilities and
systems located within or serving the Building Area.
G. Commencement Date: The date set forth in the "Statement of Lease
Commencement, Possession and Termination" in the form of EXHIBIT B hereto
delivered by Landlord to Tenant in accordance herewith or if no date is
specified in such a Statement, then July 1, 1998.
H. Common Area: All areas, spaces, equipment, special services, improvements and
facilities in or near the Building provided by Landlord for the common or joint
use and benefit of the occupants of the Building, their officers, agents,
employees, servants, customers and invitees, including, but not limited to, all
parking areas, access roads, streets, driveways, entrances, exits, sidewalks,
malls, courts, loading docks, package pick-up stations, ramps, corridors, halls,
stairs, retaining walls and landscaped areas.
I. CC&Rs: Any recorded covenants, conditions, restrictions and reciprocal
easement agreements with respect to any portion of the Building Area, including,
without limitation, the documents listed on EXHIBIT G hereto.
J. Gpl~ The Genstiffier- Pr-iee 1fidelE for- All Urban Genstifner-s (All
Reffis), Les Angeles Long BeaehAnaheim, Galifei%ia aver-age (1992 84 equals
100), poblished by the Bur-eau of Labor- Statisties of the United States
Department of Labor- (the T1W GPI for- a speeifie Rieffth shall be deemed to
fneaft the GPI p4lished for- sueh fnen4h or-, if not published for- that fneff*,
the GPI publish for- a xxxxx most r-eeefftly prior- to stieh flienth. in the
event that the Bur-eft should eease pubheation of said GPI, GPI shall r-efer- to
the eempafable ee . . . de* seleeted by Landlord in its Y-easenable judgment.
K. Ground Leases and Mortgages: All ground leases, overriding leases and
underlying leases ("Ground Leases"), and all mortgages and deeds of trust
("Mortgages"), affecting the Building Area or any portion thereof, now or
hereafter existing (w]Yether or not covering other lands, buildings or leases),
and all renewals, modifications, replacements and extensions thereof.
L. The lay _Rdldy Qr-dofwig OfTwiaffs's this Lease, a form efwltieh
itt:thtehed
M. Landlord's Mailin2 Address: 00000 Xxxxxxx Xxxxxxxxx, #000, Xxxxxx, Xxxxxxxxxx
00000, with a copy to: Xxxx Enterprises Commercial Group, 00000 Xxx Xxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx, 00000.
N. Landlord's Representatives: Landlord's directors, officers, shareholders,
partners, members, principals, employees, agents, servants, contractors,
subcontractors, visitors, licensees, invitees, successors and assigns.
0. Lease Year: Each twelve month period during the Term ending on December
31, provided that the first Lease Year shall commence upon the Commencement Date
and shall end on the next succeeding December 3 1, and the last Lease Year shall
end upon the expiration of the Term.
P. Monthly Installments of Base Rent: [$2,005.4 per month as from time to time
increased as provided in *, ticte 3 of die tten=l 'Ternns, CniremaptE 2ad
1-~LV.X X xx f8ee RIDER I hereto. (DEr-ET? SEC I TON 1.2)
Q. Normal Business Hours: The hours from 8:00 a.m. to 5:30 p.m. Monday through
Friday, except recognized legal holidays.
V. Possession: Possession of the Premises shall be deemed to have occurred on
the earlier of the date on which Tenant actually is given possession of the
Premises by Landlord or the date specified in the Statement of Lease
Commencement, Possession and Termination.
W. Rules and Reaulations: The current Rules and Regulations for the Building, a
copy of which are attached hereto as EXHIBIT F.
X. Premises: That portion of the Building outlined in EXHIBIT C hereto,
consisting of approximately 970 usable square feet and 1,084 rentable square
feet (measured in accordance with the BOMA Standard ANSI 265.1-1980) and
including any and all improvements made by Landlord pursuant to the Work Letter
attached hereto as EXHIBIT E. Landlord reserves to itself the use of the
exterior walls, the roof and the right to install, maintain, use, repair and
replace pipes, ducts, conduits, vents, cables and wire leading in, through, over
or under the Premises.
Y. Securi1y Dgposit: Two Thousand One Hundred Thirteen Dollars and 80/100
($2,113.80).
--------------------------------------------------------------------------------
Z. Tenant's Mailing Address: Before Occupancy: 0000 Xxxxxxx Xxxx Xxxx, Xxxxx
000, Xxx Xxxxxxx, Xxxxxxxxxx 00000.
After Occupancy: 00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000.
AA. Tenant' s Proportionate Share: The proportion the rentable area of the
Premises bears to the total rentable area of the entire Building (excluding the
Common Areas). Initially, said proportion shall be 12oint zero zero five percent
(.0qL!j)
(1,084 rentable sg. ft./225,498 rentable so. ft.) (subject to change in the
event that the rentable area of the Building or the Premises changes).
BB. Tenant Representatives: Tenant's agents, servants, employees, contractors,
subcontractors, visitors, licensees or invitees.
Term: That period commencing on the Commencement Date and ending on the
Termination Date.
DD. Termination Date: The date set forth in the Statement of Lease Commencement,
Possession and Termination, or if no date is specified in such a Statement, then
June 30, 2001; provided, however, that if this Lease is sooner terminated
pursuant to the provisions hereof, the Termination Date shall be the effective
date of such early termination.
EE. Total Expenses Allowance: The Total Expenses Allowance shall be equal to the
actual Operating Expenses incurred with respect to the Building Area during the
1998 calendar year, adjusted for at least a ninety-five percent (95%) occupancy.
FF. Total Tax Allowance: Tenant's Proportionate Share of Real Estate Taxes for
the tax year July 1, 1997 through June 30, 1998. GG. Watt Load: 3 xxxxx per
useable square foot for power and 3 xxxxx per useable square foot for lighting.
ii. EXHIBITS. 'Me following exhibits, rider(s), attachment and addendum are
incorporated in this Lease as part hereof.
Exhibit A - Description of the Building. Exhibit B - Statement of Lease
Commencement. Exhibit C - Outline of the Premises. Exhibit D - Policies for the
Management of Telecommunications Risers and Telephone Closets. Exhibit E - Work
Letter. Exhibit F - Current Rules and Regulations. Exhibit G -CC&Ts.
[Rider 1 - Base Rent Schedule.]
Ili. AMOUNT DUE ON EXECUTION OF THIS LEASE. Upon execution of this Lease, Tenant
shall pay the following amount to Landlord:
Monthly Rent for the Month(s) of July: $2,005.40
Prorated Rent Payment on Execution of
Lease for Period from * to $ 0.00
Security Deposit: $2,113.80
Monthly Parking Fee: $ 0.00
Other (Description): $ 0.00
[GRAPHIC OMITTED][GRAPHIC OMITTED]
IV. DEMISE OF PREMISES. In consideration of the rent and the covenants and
agreements made herein, including the General Terms, Covenants and Conditions
attached hereto and made a part hereof, and in accordance with the terms of such
covenants and agreements, Landlord leases to Tenant and Tenant leases from
Landlord the Premises.
IN WITNESS WHEREOF, Landlord and Tenant have executed or caused to be executed
this Lease as of the date first written above.
LANDLORD: TENANT:
Xxxx Enterprises Commercial Group, Glenhills Corporation
A California corporation, as agent for
EFC INVESTORS, LTD., a California Limited Partnership
dba Encino Financial Center
BY: By:
It&:'/Senior Vice President Its:
Date: Date: /0
[GRAPHIC OMITTED][GRAPHIC OMITTED]
V. GENERAL TERMS, COVENANTS AND CONDITIONS
I POSSESSION.
1.1 Early Possession. If Landlord gives Tenant permission to enter into
possession of the Premises, for purposes of inspection or construction of the
Premises, prior to the Commencement Date, such possession shall be deemed to be
upon all the terms, covenants, conditions and provisions of this Lease,
excluding payment of Rent (as defined in Article 3 hereof).
1.2 Confirmation of Possession and Lease Commencement and Termination Dates.
Landlords delivery to Tenant of the Statement of Lease Commencement, Possession
and Termination shall be conclusive as to Landlord and Tenant that the dates set
forth therein are the dates for the Commencement Date, the Date Tenant received
Possession of the Premises, and the Termination Date unless Tenant amends such
dates in writing within five (5) days after Landlord has delivered such
Statement to Tenant. If Tenant so amends such dates, then Landlord and Tenant
shall agree on such dates within fifteen (15) days after the date on which
Tenant delivers notice of such amended dates to Landlord. If Landlord and Tenant
are unable to so agree, then the Commencement Date, Termination Date and date on
which Tenant received possession of the Premises shall be determined by
arbitration in accordance with Article 34 hereof.
2. CONDITION OF THE PREMISES. Tenant's taking possession of the Premises shall
be conclusive evidence that the Premises were in good order, condition and
repair (except for latent defects and punchlist items), that Substantial
Completion of the Premises has occurred as defined in EXHIBIT E and that the
Premises had an adequate security system for Tenant and Tenant's Representatives
when Tenant took possession, except for such matters of which Tenant gives
Landlord notice on or before the Commencement Date. No promise of Landlord to
alter, remodel, repair or improve the Premises or the Building and no
representation, either expressed or implied, respecting any matter or thing
relating to the Building or this Lease (including the condition of the Premises
or the Building) have been made by Landlord to Tenant, other than as may be
contained herein or in the Work Letter attached hereto as EXHIBIT E.
3. RENT. The rental reserved to Landlord during the Tenn, which Tenant covenants
and agrees to pay to Landlord as herein provided, without prior demand therefor
and without any deduction or set-off whatsoever, shall consist of Base Rent and
Additional Rent (separately, "Base Rent" and "Additional Rent," and jointly,
"Rent"). All Rent and other payments required to be made by Tenant to Landlord
under this Lease shall be paid in lawful money of the United States and shall be
paid and delivered to Landlord at Landlord's Mailing Address, or at such other
place as Landlord may from time to time direct.
3.1 Base Rent. Tenant shall pay Landlord Monthly Installments of Base Rent in
advance, commencing on the Commencement Date and on the first day of each month
of the Term thereafter. If Tenant shall commence payment of Rent on a day other
than the first day of a month, the Monthly Installments of Base Rent for that
first month shall be prorated on a per them basis.
3.3 Additional Rent. Tenant shall pay Landlord as Additional Rent all sums
(other than Base Rent) required to be paid by Tenant pursuant to the provisions
of this Lease.
3.4 Late Payments. If any part of Rent is not paid within ten days after it is
due, Tenant shall pay Landlord (a) a late charge of $100.00 and (b) interest at
the greater of 10% per annum, or five, (5) points over the San Francisco Federal
Reserve Bank discount rate in effect on the 25th day of the month preceding the
date upon which the amount in question was due, on the amount due from its due
date until paid. Such amounts shall constitute Additional Rent hereunder. Tenant
hereby agrees that if Tenant is subject to a late charge for three (3)
consecutive months, Base Rent for the following twelve months shall
automatically be adjusted to be payable quarterly in advance, commencing upon
the first day of the month following such third consecutive late month and
continuing for the next twelve months on a quarterly basis in advance.
4. TAXES AND OPERATING EXPENSES. Tenant shall pay to Landlord in accordance with
Section 4.4 below, as Additional Rent, all Taxes and all Operating Expenses
attributable to the Premises during the Term (jointly, to the extent
attributable to the Premises as set forth herein, "Tenant's Share of Expenses")
which are in excess of the Total Expenses Allowance and the Total Tax Allowance,
respectively.
4.1 Operating Expenses. "Operating Expenses" shall mean all expenses paid or
incurred by Landlord or on Landlords behalf in respect of the management,
repair, operation and maintenance of the Building Area, including without
limitation: (a) salaries, wages, other compensation and benefits of employees of
Landlord engaged in the management, repair, operation and maintenance of the
Building Area (prorated, in the case of employees who devote less than all of
their working time to the Building Area, to reflect the proportion of their
working time devoted to the Building Area); (b) payroll taxes, social security
taxes, federal, state and local unemployment taxes, workers' compensation,
uniforms and related expenses for such employees; (c) the cost of all charges
for oil, gas, steam, electricity, any alternate source of energy, heat,
ventilation, air-conditioning, water, sewers and other utilities furnished to
the
such costs shall be reasonably amortized by Landlord over the useful life of any
improvements, additions, machinery or equipment, and the Landlord shall receive
interest on the unamortized costs at the prime rate then available from the
largest bank in the state in which the Building is located; (m) management and
other personnel fees for management and operation of the Building and Common
Area or, if no managing agent is employed by Landlord, a sum in lieu thereof
which is not in excess of the then prevailing rates for management fees of other
first class office buildings in the area in which the Building is located; (n)
the cost of installing, purchasing, operating, maintaining and repairing any
security system or Common INC (as defined in Section 5.5 hereof); (o) the cost
of any capital improvements or additions to the Building Area and of any
machinery or equipment installed in the Building Area which are made or become
operational, as the case may be, during the Term and which have the effect of
reducing the expenses which otherwise would be included in Operating Expenses to
the extent of the lesser of (i) such cost, as reasonably amortized by Landlord
over the useful life of the improvements, additions, machinery or equipment,
plus interest on the unamortized amount at the prime rate then generally
available in the State in which the Building is located, or (ii) the reasonably
estimated amount of such reduction in Operating Expenses; (p) reasonable legal,
accounting and other professional fees incurred in connection with the
operation, maintenance and management of the Building Area; (q) the proportion
of all administrative and other expenses of maintaining an office for management
attributable to the Building Area; (r) license, permit and inspection fees
required in connection with operation of the Building Area; (s) all charges and
assessments on the Building pursuant to any applicable CC&Rs; and (t) all other
charges properly allocable to the repair, operation and maintenance of the
Building Area in accordance with generally accepted BONIA building operating
standards. If the Building is not fully occupied, Operating Expenses shall be
adjusted at the expiration of each Lease Year as if the Building were fully
occupied. "Fully occupied" shall be defined as the greater of actual occupancy
or occupancy of ninety five percent (95%) of the net rentable area of the
Building.
Notwithstanding the above, the following shall be excluded from Operating
Expenses: (aa) depreciation (except as provided above); (bb) interest on and
amortization of debts; (cc) leasehold improvements including redecorating made
for tenants of the Building; (dd) brokerage commissions and advertising expenses
for procuring new tenants of the Building; (ee) refinancing costs; (ff) the cost
of any repair or replacement (other than as described in clauses (a) through (t)
above) which would be required to be capitalized under generally accepted
accounting principles, except that if under such principles such costs may be
amortized over a period of not more than ten years, then a proportionate part of
such cost may be included each year in Operating Expenses over the useful life
(as reasonably estimated by Landlord) of such repair or replacement; (gg) Taxes
(as defined in Section 4.2 hereof); (hh) the cost of any repair, replacement or
alteration to the Building Area necessary to comply with the ADA to the extent
such repair, replacement or alteration is not caused by Tenant's use of the
Premises or other of Tenant's actions; (ii) the cost of any item included in
Operating Expenses under clauses (a) through (t) above to the extent that such
cost is reimbursed by an insurance company or a condemnor or a tenant (except as
a reimbursement of Operating Expenses) or any other party, but if at the time
Operating Expenses are determined for a calendar year such reimbursement has not
been made, such expenses may be included in Operating Expenses and an adjustment
shall be made when and if such reimbursement is actually received.
4.2 Taxes. "Taxes" means the amount of any and all taxes, assessments,
re-assessments, special assessments, levies, fees, license fees, license taxes,
business license taxes, in-lieu taxes, in-lieu fees, commercial rental taxes,
charges, penalties and impositions whatsoever levied or imposed or assessed by
any authority having the direct or indirect power to tax, including, without
limitation, any city, county, state or federal government or any school,
agricultural, lighting, drainage or other improvement or special assessment
district, or any other agency or other public body, whether or not consented to
or joined in by Landlord and whether or not retroactive, payable by Landlord
(other than income taxes, measured by the net income of Landlord from all
sources), whether or not now customary or within the contemplation of the
parties hereto on the date of this Lease, which are:
(a) Upon, measured by or reasonably attributable to the cost or value of Tenants
personal property installed or located in or on the Premises, including, without
limitation, trade fixtures, furniture, counters, appliances, computers and other
equipment, shelving, movable partitions and such other personal property of
Tenant placed in or on the Premises by Tenant or by the cost or value of any
leasehold improvements made in or to the Premises by or for Tenant, regardless
of whether title to such improvements shall be in Tenant or Landlord, except
such improvements that are affixed to the Building or the Premises
(collectively, the "Fixtures"), to the extent that taxes on such personal
property are included in Landlord's real property tax assessment for the land
and the Building on which the Premises are located;
(b) Upon, measured by or reasonably attributable to the value from time to time
of the real property (including the land and the Building) on which the Premises
are located and any Fixtures affixed thereto ("Real Property Taxes");
(c) Upon or measured by the rental payable hereunder, including, without
limitation, any gross income tax or excise tax levied by any city, county,
state, federal or other governmental body with respect to the receipt of such
rental, provided any such gross income tax is instituted as the means of
replacing tax or excise revenues currently levied by governmental authorities as
property taxes; and
(d) Upon or with respect to the possession, leasing, operation, management,
maintenance, improvement, alteration, repair, use or occupancy by Tenant of the
Premises or any portion thereof.
4.3 Portion Attributable to the Premises. The portion of Operating
Expenses attributable to the Premises, and included in Tenant's Share of
Expenses, shall equal Tenant's Proportionate Share of Operating Expenses, The
portion of Taxes attributable to the Premises, and included in Tenant's Share of
Expenses, shall equal the sum of: (a) all Taxes described in subsections 4.2(a),
4.2(c) and 4.2(d) above, plus (b) Tenant' s Proportionate Share of the
assessor's valuation of Real Property Taxes for the Building Area; provided,
however, that if the assessor's valuation of Real Property Taxes includes
buildings, improvements or land other than and in addition to the
A--- Ilk- 'F-~ nftrihiltnhie to the Premises shall be determined by
equitably allocating the amount of Real Property Taxes
point(s) or minimum point(s) of entry to the Premises (collectively, "Common
INC"). As used herein, the term "demarcation point(s) or minimum point(s) of
entry means that point in the Building Area at which the local exchange
company's or LEC's liability for telecommunications plant ends. As used herein,
the term "inside telephone or telecommunications wire" means that portion of the
telephone or telecommunications wire that connects the Common INC to the LEC's
telephone or telecommunications network at a demarcation point or minimum point
of entry. Tenant, at its sole cost and expense, shall be responsible for
purchasing, installing, operating, maintaining and repairing (and removing under
Article 13 hereof) any telephone or other telecommunications equipment, system,
wire, xxxx or cable within the Premises other than the Common INC. Except for
termination blocks, Tenant shall not be permitted to install or locate any
telephone or telecommunications equipment, wires or cables within any phone
closets or riser shafts in the Building. Tenant shall not enter or attempt to
gain access to any phone closets or riser shafts in the Building without the
prior written consent of Landlord, which consent may be given, conditioned or
withheld in Landlords sole discretion. Landlord hereby grants to Tenant a
non-exclusive license during the Term to use the Common INC; provided, however,
that Landlord shall have the exclusive right to install, operate, maintain and
repair the Common INC (subject to Article 4 hereof). Tenant expressly agrees
that the cost and expense of Landlord's purchase, installation, operation,
maintenance and repair of the Common INC is an Operating Expense. Without
limiting the foregoing, Tenant shall comply with Landlord's Policies for the
Management of Telecommunications Riser Systems and Telephone Closets, a copy of
which is attached hereto as Exhibit D.
5.6 Meters. Landlord may install separate meters for the Premises to register
the usage of all or any one of the utilities and in such event Tenant shall pay
for the cost of electricity usage as metered which is in excess of the Watt Load
(or in the case of other utilities, the metered usage in excess of that usage
reasonably anticipated by Landlord). Tenant shall reimburse Landlord for the
cost of installation of meters if such usage exceeds the Watt Load (or such
anticipated usage, as the case may be) by more than 10%. In any event, Landlord
may require Tenant to reduce its consumption to the Watt Load or such
anticipated usage.
5.7 Interruption of Services. Landlord does not warrant that any of the services
referred to above (including, without limitation, the Common INC), or any other
services which Landlord may supply, will be free from interruption. Tenant
acknowledges that any one or more such services may be interrupted by reason of
accident, damage, power surges, repairs, installation, inspections, maintenance,
alterations or improvements necessary to be made, or by strikes or lockouts, or
by reason of operation of law, or causes beyond the reasonable control of
Landlord, and Tenant hereby assumes all risk of injury to persons, damage to
property and loss of business or profits which may result from such interruption
or inadequacy of service. Any interruption or discontinuance of service shall
not be deemed an eviction or disturbance of Tenant's use and possession of the
Premises, or any part thereof, nor shall it render Landlord liable to Tenant for
any injury, loss or damage by abatement of Rent or otherwise (except as provided
in Section 18.4 hereof), nor shall it relieve Tenant from performance of
Tenant's obligations under this Lease. Landlord shall, however, exercise
reasonable diligence to restore any service so interrupted.
6. SECURITY DEPOSIT. Tenant has deposited with Landlord the Security Deposit as
security for the full and faithful performance of every provision of this Lease
to be performed by Tenant. If Tenant defaults with respect to any provision of
this Lease, including payment of Rent, Landlord may appropriate and apply any
portion of the Security Deposit reasonably necessary to remedy Tenant's failure
to pay Rent, or to compensate Landlord for any other loss, cost or damage which
Landlord may suffer by reason of Tenant's default. If any portion of the
Security Deposit is so used or applied, Tenant shall, within five (5) business
days after notice thereof, deposit with Landlord an amount sufficient to restore
the Security Deposit to its original amount, and Tenants failure to do so shall
be a breach of this Lease. Tenant hereby waives the provisions of Section 1950.7
of the California Civil Code and all other provisions of law, now or hereafter
in force, which provide that Landlord may claim from a security deposit only
those sums reasonably necessary to remedy defaults in the payment of rent, to
repair damage caused by Tenant, or to clean the Premises, it being agreed that
Landlord may, in addition, claim those sums reasonably necessary to compensate
Landlord for any other loss or damage, foreseeable or unforeseeable, caused by
the act or omission of Tenant or any of Tenant's Representatives. Landlord shall
not, unless otherwise required by law, be required to keep the Security Deposit
separate from its general funds, nor pay interest to Tenant. In the event of a
termination of Landlords interest in the Lease, the Security Deposit or any
portion thereof not previously applied shall be transferred by Landlord to
Landlords grantee and, upon such transfer, Landlord shall be discharged from
further liability with respect thereto and Tenant agrees to look solely to such
grantee for proper application and return of the Security Deposit in accordance
with this Article. The holder or beneficiary of any Mortgage shall not be
responsible to Tenant for the return or application of any Security Deposit,
whether or not such holder or beneficiary succeeds to the position of Landlord
hereunder, unless such Security Deposit shall have been received in hand by such
holder or beneficiary. Upon expiration of the Term, Landlord shall, provided
that Tenant is not in default under this Lease, return the Security Deposit to
Tenant, less such portion as Landlord shall have appropriated to make good any
default by Tenant. The unapplied balance of the Security Deposit shall be
refunded to Tenant within thirty (30) days after the date on which Tenant has
delivered possession of the Premises to Landlord.
7. USE OF THE PREMISES.
7.1 Permitted Use. Tenant shall use the Premises only for the Permitted Use and
all other uses or purposes are strictly prohibited. ---------------
7.2 Compliance with Laws. Tenant shall comply with all existing and future
(whether or not presently foreseeable) laws, rules, orders, ordinances,
directions, decrees, regulations and requirements ("Law" or "Laws") of all
federal, state and local governmental or regulatory agencies, offices,
departments, bureaus, boards and bodies having jurisdiction over the Premises or
Tenants use thereof ("Governmental Authorily"), and Tenant shall, at Tenant! s
sole cost, alter, improve, upgrade, retrofit, maintain, repair and restore the
Premises in compliance and conformity with all Laws relating to the condition,
use or occupancy thereof. Without limiting the foregoing, Tenant shall comply
with all police, fire and sanitary regulations imposed by any Governmental
Authority, or made by insurance underwriters, and shall observe and obey all
other requirements governing the conduct of any business conducted in the
Premises.
(c) The parties have expressly negotiated this Section 7.2 and have agreed to
allocate the cost to comply with Laws as provided herein based on the amount of
Rent and other consideration given to Tenant under the terms hereof Tenant
acknowledges that Landlord would have demanded a higher Rent absent Tenant's
agreement to such cost allocation. Tenant further acknowledges that efforts to
comply with Laws may interfere with Tenant's quiet enjoyment of the Premises.
Nevertheless, Tenant agrees to accept any such interference and that such
interference shall not excuse Tenant's obligations to comply with Laws as set
forth herein or any other obligations under this Lease.
7.3 Certain Use Restrictions. Tenant and Tenant's Representatives each shall
not:
(a) Use the Premises in any manner that will constitute waste, nuisance, or
annoyance or is liable to cause injury to other tenants in the Building,
including, without limitation, the emission of noxious or offensive odors or the
use of loudspeakers or sound or light apparatus that can be heard or seen
outside the Premises;
(b) Cause or permit any cooking on the Premises or Building Area (except for use
of microwave ovens or coffee machines) without the prior written approval of
Landlord, which shall not be unreasonably withheld, or conduct any restaurant,
luncheonette or cafeteria for the sale or service of food or beverages to its
employees or to others on the Premises;
(c) Install, use, or permit the installation or use of any vending machines
without the prior written consent of Landlord, which shall not be unreasonably
withheld;
(d) Use or permit the use of the Premises for lodging or sleeping, or for any
illegal purpose; or do anything on or about the Premises that will cause damage
to the Building Area or any part thereof or will impair or might tend to impair
the character, reputation or appearance of the Building as a first class office
building;
(e) Use or operate any machinery, apparatus, device, equipment or other
appliance in, on or about the Premises that will in any manner injure, vibrate,
or shake the Building, or place any load on any floor which exceeds the load per
square foot the floor was designed to carry;
(f) Use, keep, or store any materials of a dangerous or highly flammable nature
in any form upon the Premises, or otherwise do, bring or keep anything in, on or
about the Premises that will cause a cancellation of any insurance policy
insuring the Building Area or to be maintained by Tenant pursuant to Article 22
hereof or an increase in the premiums therefor or that will constitute a
nuisance to or interference with the other property of Landlord or its business
or the property or business of other tenants of the Building; and Tenant agrees
to pay to Landlord forthwith upon demand the amount of any increase in premium
for insurance that may be charged during the Tenn on the amount of insurance to
be carried by Landlord on the Building Area resulting from the foregoing,
whether or not Landlord shall have consented to such act on the part of Tenant;
(g) Allow carts, portable signs, devices or any other objects to be stored or to
remain outside the Premises except in the areas that Landlord has agreed in
writing can be used for storage of such items and that are clearly designated
for such storage;
(h) Erect any signs, show cases, aerial or antenna, or other articles in the
Common Area, or on the roof or exterior walls of the Premises or the Building,
without, in each instance, the prior written consent of Landlord, and any
articles installed without such written consent shall be subject to removal
without notice at any time;
(i) Use or permit any portion of the Premises to be used or occupied as a xxxxxx
or manicure shop; or engage or pay any employees in the Building except those
actually working for Tenant in the Building; or advertise for laborers giving an
address at the Building without Landlord's prior written consent;
Use any space in the Premises or Building Area for manufacturing, for storage or
merchandise, for sale or display of merchandise, goods or property of any kind
(as a store or at auction), or for the conduct of a shop, booth, bootblack, or
other stand or business or occupation which predominantly involves direct
patronage of the general public in the Premises, without the prior written
consent of Landlord; or
(k) Solicit in any manner in any of the automobile parking or other portions of
the Common Area.
7.4 Hazardous and Toxic Substances.
(a) Certain Definitions. As used in this Lease, the following terms shall have
the definitions set forth below whenever used with initial capital letters:
(i) "Hazardous Substance" shall mean any hazardous, toxic, explosive,
radioactive, infectious or dangerous substance, material, chemical, waste,
contaminant or pollutant, including, without limitation, (A) any "hazardous
substance" within the meaning of the Comprehensive Environmental Response
Compensation and Liability Act (42 U.S.C. xx.xx. 9601 et seq.) or the
Xxxxxxxxx-Xxxxxxx-Xxxxxx Hazardous Substance Account Act (CA Health & Safety
Code xx.xx. 25300 et seq.), as each may be amended from time to time, (B) any
"hazardous waste" within the meaning of the Resource Conservation and Recovery
Act (42 U.S.C. xx.xx. 6901 et seq.), as amended from time to time, (C) any
"hazardous waste," "extremely hazardous waste" or "restricted hazardous waste"
within the meaning of the California Hazardous Waste Control Act (CA Health &
Safetv Code 25100 et sea.). as amended from time to time, of the California
Hazardous Waste Cont I Act (CA Health & Safetv Code 25100 et sea.). as amended
fro time to time
Water and Toxic Enforcement Act of 1986 (CA Health & Safety Codess.ss.25249.5 et
seq.) and the Xxxxxx-Cologne Water Quality Control Act (CA Water Xxxxxx.xx.
13000 et seq.), as each may be amended from time to time.
(iii) "Environmental Problem" shall mean (A) any release or discharge, or
threatened release or discharge, of a Hazardous Substance in, on, under, from or
about the Premises, the Building Area or (B) any violation or threatened
violation of any Environmental Protection Law, whether or not intentional, in,
on, under or about the Premises or the Building Area.
OV) "Tenant Related Environmental Problem" shall mean any Enviromental Problem
resulting from or related to (A) any act or omission of Tenant, Tenant's
Representatives or anyone allowed to enter onto the Premises or the Building
Area by Tenant or (B) Tenant's use of the Premises or the Building Area.
(b) Prohibition. Tenant shall not cause or permit the manufacture, generation,
production, storage, use, transportation, treatment, incineration, disposal,
discharge, threatened discharge, release or threatened release of any Hazardous
Substance in, on, under, from or about the Premises or the Building Area, or
into the environment surrounding the Building Area. Notwithstanding the
preceding sentence, Tenant may store and use cleaning or office supplies
("Supplies") containing Hazardous Substances so long as (i) the Supplies are of
a type and chemical composition commonly used by businesses in general (and not
used solely as an incident to Tenant's particular business or use of the
Premises); (ii) Tenant stores and uses the Supplies only in such quantities as
may reasonably be expected to be stored or used by persons occupying space the
size of the Premises for general office purposes; and (iii) Tenant stores and
uses the Supplies in compliance with any manufacturer's directions or warnings
and all applicable federal, state or local Laws, regulations and judicial
decrees or orders. Tenant shall store and use all Supplies in a manner which
minimizes to the greatest extent reasonably practical the threat of any spill or
release of such Supplies into or onto the Premises, the Building Area or the
environment and shall promptly and with reasonable care clean up any such spill
or release to the satisfaction of Landlord and any Governmental Authority having
jurisdiction thereof. In no event shall Tenant use or store any
asbestos-containing materials or PCBs on the Premises.
(c) Compliance with Laws. Tenant and Tenants Representatives shall comply in all
respects with any and all Environmental Protection Laws applicable to the
Premises or Tenant's use thereof Without limiting the generality of the
foregoing, Tenant shall give all warnings required by the California Safe
Drinking Water and Toxic Enforcement Act of 1986 (CA Health & Safety Code xx.xx.
25249.5 et seq.), as amended from time to time, with respect to any exposures
occurring in the Premises or as a result of Tenant's use of the Premises or the
Common Area.
(d) Environmental Problems. Tenant shall exercise reasonable care to avoid the
occurrence of any Tenant Related Enviromental Problem. If Tenant causes, permits
or learns of any Environmental Problem, Tenant shall immediately notify
Landlord. Tenant shall give any and all notices of any Tenant Related
Environmental Problem required by applicable Environmental Protection Laws,
including, without limitation, any notice required by Section 103 of the
Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C.
xx.xx. 9601 et seq.) and any notice required by Sections 13271 or 13272 of the
California Water Code, as each may be amended from time to time. Tenant shall
immediately give Landlord notice of any governmental investigation or any
governmental or regulatory action, proceeding, order or decree relating to any
Tenant Related Environmental Problem and, at Tenant's expense, shall comply in
all respects with any such order or decree within the time period allowed
thereby for compliance, unless Landlord notifies Tenant that Landlord intends to
contest such order or decree. Prior to commencing any corrective or remedial
action with respect to any Environmental Problem (except for any such action
taken to comply with an order or decree which Landlord has not elected to
contest), Tenant shall obtain the consent of Landlord (which shall not be
unreasonably withheld or delayed) and all Governmental Authority having
jurisdiction thereof. Tenant shall not be responsible or liable to Landlord for
any costs incurred due to any Hazardous Substance which was present on the
Premises prior to Tenant's occupancy thereof.
(e) Indemnity . Tenant shall indemnify, defend and hold harmless Landlord
(through counsel reasonably satisfactory to Landlord) against any and all
claims, demands, actions, proceedings, liabilities, punitive damages, civil,
administrative or criminal penalties, costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses, fines and forfeitures)
incurred by Landlord or to which Landlord may be exposed by reason of any of the
following (an "Environmental Default"): (i) the manufacture, generation,
production, storage, use, transportation, treatment, incineration, disposal,
discharge, threatened discharge, release or threatened release of any Hazardous
Substance (including any Supplies) in, on, or from the Premises or by Tenant or
Tenant's Representatives, in, on or about the Building Area during the term of
this Lease; (ii) Tenant's violation of any of the provisions of this Section
7.4; or (iii) any Tenant Related Environmental Problem. Without limiting the
generality of the foregoing, Tenant shall reimburse Landlord upon demand for (1)
any reduction in the value of the land on which, or the improvements in which,
the Premises are located or any of Landlord's property as a result of any
Environmental Default; (II) any investigative, consulting, legal, response,
remedial, monitoring or clean up costs incurred by Landlord (whether or not in
response to any governmental or judicial action, decree or order) relating to
any Environmental Default; and (111) any investigative, consulting or legal
costs incurred by Landlord in defending against any regulatory or judicial order
or decree, or satisfying any judgment or the terms of any settlement or consent
decree, relating to any Environmental Default. Tenant's indemnity obligations
under this Section 7.4(e) shall survive the expiration or earlier termination of
this Lease.
(f) Landlord's Right to Information. Within ten (10) business days after
Landlord's request therefor (or within such shorter time as may be reasonably
required by Landlord), Tenant shall provide Landlord with any information
reasonably requested by Landlord, and shall allow Landlord reasonable access to
the Premises, to ensure Tenant's compliance with this Section 7.4 or to enable
Landlord to comply with any Environmental Protection Law or any governmental or
judicial order or decree entered pursuant thereto and applicable to the
Premises, the Building Area or Tenant's use of any of the foregoing. The
provisions of this Section 7.4 shall survive the expiration or earlier
termination of this Lease.
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(a) Tenant agrees that it shall familiarize itself with the requirements of the
ADA and that it shall be responsible for complying with the ADA in all respects,
as it affects the Premises including but not limited to, making required
"readily achievable" changes to remove any architectural or communication
barriers, and providing auxiliary aides and services within the Premises.
(b) Tenant farther agrees that any and all alterations made to the Premises
during the term of this Lease will comply with requirements of the ADA. All
plans for alterations which must be submitted to the Landlord hereunder must
include a statement from a licensed Architect or Engineer certifying that they
have reviewed the plans, and that the plans comply with all applicable
provisions of the ADA. Any subsequent approval or consent to the plans by
Landlord shall not be deemed to be a representation on Landlord's part that the
plans comply with the ADA, which obligation shall remain with the Tenant.
Tenant agrees that it will defend, indemnify and hold harmless Landlord from and
against any and all liability, claims, damages and expenses (including
reasonable attorneys' fees and costs) which may arise out of any legitimate
claim by any person for failure of Tenant to comply with its obligation under
this Paragraph 7.5.
(c) Without limiting the generality of the foregoing, it is expressly understood
and agreed that, subject to performance by Landlord of Landlord's Work described
in Exhibit E to the Lease, Tenant is accepting the Premises "AS IS " in its
present state and condition, without any representations or warranties from
Landlord of any kind whatsoever, either express or implied, with respect to the
Premises or the Building Area, including without limitation the compliance of
the Premises or the Building Area with the ADA and the rules and regulations
promulgated thereunder, as amended from time to time. Except as otherwise
provided for in Exhibit E to the Lease, if Tenant' s use of the Premises or
operations therein cause Landlord to incur any obligation under the ADA, as
reasonably determined by Landlord, then Tenant shall reimburse Landlord for
Landlord's cost and expenses in connection therewith. If Tenants initial use of
the Premises is not a "place of public accommodation" within the meaning of the
ADA, then Tenant may not thereafter change the use of the Premises to cause the
Premises to become a "place of public accommodation." In the event that Tenant
desires or is required hereby to make alterations to the Premises in order to
satisfy its obligations under the ADA, then all such alterations shall be
subject to any requirements in the Lease with respect to alterations of the
Premises, and shall be performed at Tenant's sole cost and expense. Except for
alterations to the Premises, Tenant shall have no right whatsoever to make any
alterations or modifications to any portion of the Building or its appurtenant
facilities. Tenant shall be responsible for insuring that the Premises and
Tenant's use thereof and operations therein fully and completely comply with the
ADA.
(d) Nothing contained herein is intended to create any rights in third parties.
8. RULES AND REGULATIONS. Tenant shall comply with (and cause Tenant's
Representatives to comply with) the CC&Rs and the Rules and Regulations
affecting use of the Building Area by Tenant and Tenant's Representatives, as
promulgated by Landlord and with such reasonable modifications thereof and
additions thereto as Landlord may from time to time make; provided, however, in
no event shall such Rules and Regulations contradict or abrogate any right or
privilege herein expressly granted to Tenant in this Lease. A copy of the Rules
and Regulations in effect as of the date of this Lease is attached hereto as
EXHIBIT F. Landlord shall not be responsible to Tenant or any other person or
entity for the violation by anyone of any of the Rules and Regulations.
9. PARKING.
9.1 Use of the Parking Spaces. Subject to the terms and conditions of this
Lease, any CC&Rs and the Rules and Regulations, Landlord hereby grants to Tenant
the right for Tenant and Tenant's Representatives to use the Parking Spaces and
Tenant shall not use or permit any of Tenants Representatives to use any other
parking spaces in the Building Area. Landlord, at its sole election, may
designate the types and locations of the Parking Spaces in the Parking Area and
Landlord shall have the right, in Landlord's reasonable discretion, to change
said types and locations from time to time. In no instance shall Tenant use any
spaces which have been specifically assigned by Landlord to other tenants or for
other uses or as visitor parking or which have been designated by. government
entities with competent jurisdiction as being restricted to certain uses.
9.2 Parking Rate. Commencing on the Commencement Date, subject to Section 9. 10
hereof, Tenant shall pay Landlord the applicable Parking Rate multiplied by the
number of spaces assigned, if any, as Additional Rent, payable monthly in
advance with Monthly Installments of Base Rent. Thereafter, and throughout the
Term, Landlord shall have the right to adjust the Parking Rate to the prevailing
parking rate, in Landlords absolute discretion, for each type of parking space
provided to Tenant hereunder; provided, however, that such Parking Rate shall be
consistent with the parking rates being charged by landlords of comparable
buildings. In addition, Landlord shall have the right to change the Parking Rate
at any time to include therein any amounts levied, assessed, imposed or required
to be paid to any governmental authority on account of the parking of motor
vehicles, including all sums required to be paid pursuant to transportation
controls imposed by the Environmental Protection Agency under the Clean Air Act
of 1970 (as from time to time amended), or otherwise required to be paid by any
governmental authority with respect to the parking, use, or transportation of
motor vehicles, or the reduction or control of motor vehicle traffic, or motor
vehicle pollution.
9.3 Identification Procedures. If requested by Landlord, Tenant shall notify
Landlord of the license plate number, year, make and model of the automobiles
entitled to use the Parking Spaces and if requested by Landlord, such
automobiles shall be identified by automobile window or bumper stickers provided
by the Landlord, and only such designated automobiles shall be permitted to use
the Parking Spaces.
9.4 Additional Parking Space. Landlord may, in Landlords sole discretion,
provide additional parking spaces for use by TP, and Tenant's customers and
invitees on a daily or monthly basis at landlords then-current Parking Rate.
Landlord may make
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9.7 Landlord's Termination Rights. Landlord shall have the right to terminate
parking privileges within the Parking Area for any individual who violates on
three or more occasions any provision of these parking rules or any provisions
of any other rules affecting parking adopted by Landlord so long as Landlord has
given Tenant written notice of such violations.
9.8 Towing Rights. In the event that Tenant permits any vehicles to use the
Parking Area in violation of this Lease, Landlord shall have the right, without
notice, in addition to such other rights and remedies that it may have, to
remove or tow away and store the vehicle involved or with notice to Tenant to
construct additional parking facilities to accommodate such improperly parked
vehicles, and charge the cost to Tenant, which cost shall be immediately payable
upon demand by Landlord.
9.9 Security Programs. Tenant shall reasonably comply with any security programs
and with any commuter programs or special parking arrangements designed to
reduce the number of automobiles traveling to and from the Building, such as
(but not limited to) carpooling or variable work hour programs, if such programs
are required by Landlord, in Landlord!s sole and absolute discretion, or by Law.
9.10 Independent Operator/Lessee. Landlord shall have the right to retain an
independent operator for the Parking Area and/or to lease the Parking Area to an
independent lessee. In such event, Tenant shall pay any amounts due with respect
to parking directly to such independent operator or lessee.
10. COMMON AREA USE.
10.1 Right to Use Common Area. Except as provided in Article 9 above, and
subject to the terms and provisions of this Lease, the CC&Rs and the Rules and
Regulations, Tenant's use and occupation by Tenant of the Premises shall include
a right for Tenant and Tenants Representatives to use, in common with others
entitled thereto, the Common Area. All Common Area, other than the Parking
Spaces, which is not within the Premises and which Tenant may be permitted to
use and occupy pursuant to this Article are to be used and occupied under a
revocable license, and if the amount of such areas be diminished, Landlord shall
not be subject to any liability nor shall Tenant be entitled to any compensation
or diminution or abatement of rent, nor shall such diminution of such areas be
deemed constructive or actual eviction, provided Tenant's access to and quiet
enjoyment of the Premises shall not be affected in a materially adverse manner.
10.2 Control of Common Area. Landlord shall have the sole and exclusive control
of the Common Area and at any time and from time to time to exclude and restrain
any person from use or occupancy thereof, excepting, however, bona fide Tenant's
Representatives, service suppliers and tenants of Landlord who make use of the
Common Area in accordance with the CC&Rs and the Rules and Regulations. If in
the opinion of Landlord unauthorized persons are using any of the Parking Area
or any other portion of the Common Area by reason of the presence of Tenant in
the Premises, upon demand of Landlord, Tenant shall enforce such rights against
all such unauthorized persons by appropriate proceedings. Nothing herein shall
limit the rights of Landlord at any time to remove any unauthorized persons from
the Common Area or to restrain the use of any of said areas by unauthorized
persons. Tenant shall keep all of the Common Area free and clear of any
obstructions created or permitted by Tenant or resulting from Tenant's operation
and to permit the use of the Common Area only for the purpose hereinabove set
forth.
10.3 Prescriptive Easements. Landlord shall have the right to post temporary or
permanent signs and, upon ten days' prior notice to Tenant, to temporarily close
any portion or all of the Common Area from time to time and to such extent as
Landlord reasonably deems necessary to prevent a dedication or other
prescriptive right therein in favor of the public or any group or individual and
to prevent the accrual of any such right and Landlord shall have the right by
temporary closure or other reasonable means to discourage or prevent the use of
the Common Area by persons other than those expressly authorized hereby.
10.4 Changes in Common Area. Provided Tenant's access to and quiet enjoyment of
the Premises shall not be affected in a materially adverse manner, Landlord
shall have the right, in its sole discretion, to relocate and change the Common
Area and portions thereof, if Landlord shall determine such relocation to be in
the best interest of the Building. Should Landlord acquire or make available
additional land or facilities not shown as part of the Building Area in the
exhibits attached hereto and make the same available as Common Area, the
expenses incurred by Landlord in connection with the operation, maintenance and
repair of Common Area and attributed to Operating Expenses shall also include
all of the aforementioned expenses incurred and paid in connection with said
additional land and facilities.
11. REPAIRS AND MAINTENANCE.
11.1 Tenant' s Obligations. Tenant shall keep the Premises, including the
Leasehold Improvements and Tenant' s Property (as those terms are defined in
Article 13 hereof), neat, clean and in good order and condition, normal wear and
tear excepted. Tenant shall give Landlord prompt notice of any damage to or
defective condition in any part or appurtenance of the Premises, the Leasehold
Improvements, Tenant's Property, or the Building or the Building Systems. Tenant
shall not construct or place partitions or other obstructions, including,
without limitation, heavy furniture and file cabinets, which might interfere
with the free access of Landlord or Landlords agents to the Building Systems.
Neither Tenant nor any of Tenant's Representatives shall at any time enter
Building Systems enclosures or tamper with, adjust, touch or otherwise affect
the Building Systems. Tenant shall be responsible for all repairs, replacements
and alterations in and to the Premises, the Leasehold Improvements and Tenant's
Property and for all repairs, replacements and alterations in and to the
Building and the Building Systems, normal wear and tear excepted, the need for
which arises out of. (a) Tenant's use or occupancy of the Premises; (b) the
installation or use of Tenant's Property in the Premises; (c) the moving of
Tenant's
(b) Tenant shall not install business machines or mechanical equipment which
causes odors, noise or vibration (in excess of the normal levels caused by
normal business machines or mechanical equipment) that may be transmitted to
other premises, Common Area or through the structure of the Building.
11.2 Landlord's Obligations. Except as provided in Section 11. 1 above, and
subject to Article 4 hereof, Landlord shall repair, replace and maintain the
external and structural parts of the Building Area which do not constitute a
part of the Premises and are not leased to others and the Building Systems, and
shall perform such repairs, replacements and maintenance with reasonable
dispatch, in a good and workmanlike manner. Landlord shall have no liability to
Tenant nor shall Tenants covenants and obligations under this Lease be reduced
or abated in any manner whatsoever by reason of any inconvenience, annoyance,
interruption or injury to business arising from Landlords making any repairs or
changes which Landlord is required or permitted by this Lease or by any other
tenant's lease or required by Law to make in or to any portion of the Premises,
the Building Area or the Building Systems. Landlord shall nevertheless use its
best efforts to minimize any interference with Tenant's business in the
Premises.
11.3 Waiver. Tenant hereby waives all rights under any Law in existence during
the term of this Lease authorizing a tenant to make repairs at the expense of a
landlord or to terminate a lease upon the complete or partial destruction of the
Premises, including, without limitation, all rights under the provisions of
Sections 1932, 1933, and 1942 of the Civil Code of the State of California, as
amended or replaced from time to time (if applicable).
11.4 Landlord's Access. Tenant hereby grants to Landlord such licenses or
easements in or over the Premises or any portion thereof as shall be reasonably
required for the installation or maintenance of the Building Systems or the
Building Area or any part thereof, including, but not by way of limitation, the
premises of any occupant of the Building; provided, however, that Landlord shall
pay for any alteration required on the Premises as a result of any such
exercise, occupancy under or enjoyment of any such license or easement; and
providing, further, that the exercise, occupancy under or enjoyment of any such
license or easement shall not result in any unreasonable interference with
Tenant's use, occupancy or enjoyment of the Premises as contemplated by this
Lease.
12. ALTERATIONS.
12.1 Consent Requirement. Tenant shall not make any alteration in or to the
Premises without the prior written consent of Landlord, which consent shall not
be unreasonably withheld or delayed.
12.2 Conditions. (a) All alterations shall be made in accordance with such
conditions as Landlord may reasonably impose and at such times and in such
manner as Landlord may from time to time reasonably designate. Tenant shall give
Landlord at least thirty (30) days' prior written notice of the proposed
commencement of any work, and Landlord shall have the right to post and record
appropriate notices of nonresponsibility on or about the Building and with any
recorder's office. Tenant shall secure, at Tenant's sole cost, a lien and
completion indemnity bond for the benefit of Landlord, in an amount satisfactory
to Landlord, insuring the completion of said work.
(b) If alterations requested by Tenant are made by Landlord, Tenant shall pay
Landlord within ten (10) days of demand the cost therefor plus ten percent (10%)
for Landlord's overhead and profit. If Landlord gives its consent to the making
of alterations by Tenant, Tenant shall, within ten (10) days of demand, pay to
Landlord five percent (5%) of the cost of said work for Landlord's overhead, and
all such work shall be done in accordance with such requirements and upon such
conditions as Landlord, in its sole discretion, may impose. Any review or
approval by Landlord of any plans or specifications with respect to any
alteration is solely for Landlords benefit, and without any representation or
warranty whatsoever to Tenant with respect to the adequacy, correctness or
sufficiency thereof or otherwise.
(c) In the event Tenant shall make any permitted alterations, additions or
changes to the Premises, Landlord may require that Tenant carry "Builder's All
Risk" insurance in an appropriate amount covering the construction of such
alterations, additions or changes, and such other insurance as Landlord may
require, it being understood and agreed that all of such alterations, additions
or changes shall be insured by Tenant pursuant to Article 22 hereof.
12.3 Mechanic's Liens. Tenant shall defend, indemnify and save harmless Landlord
from and against any and all mechanic's and other liens and encumbrances filed
by any person claiming by, through or under Tenant, including security interests
in any materials, fixtures, equipment or any other improvements or appurtenances
installed in, located on or constituting part of the Premises and against all
costs, expenses and liabilities (including reasonable attorneys' fees and
expenses) incurred in connection with any such lien or encumbrance or any action
or proceeding brought thereon. Tenant, at Tenant's sole expense, shall procure
the satisfaction or discharge of record of all such liens and encumbrances
within twenty (20) days after the filing thereof.
13. TENANT'S PROPERTY AND LEASEHOLD IMPROVEMENTS.
13.1 Tenant's Property. All movable partitions, other business and trade
fixtures, furnishings, furniture, machinery and equipment, communications
system, equipment, wire and cable, and other personal property located in the
Premises and acquired by or for the account of Tenant, which can be removed
without material damage to the Premises (collectively sometimes called "Tenant's
Property"), shall be and shall remain the property of Tenant and, except as
otherwise prohibited by this Lease, may be removed by Tenant at any time during
the Term; provided, however, that if any of Tenant's Property is removed, Tenant
shall pay the cost of repairing any damage to the Premises or to the Building
Area resulting from such removal in accordance with Section 11. 1 above.
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14.2 To install and maintain signs on the exterior and interior of the Building;
14.3 During the last ninety (90) days of the Tenn, if Tenant has vacated the
Premises, to decorate, remodel, repair, alter or otherwise prepare the Premises
for reoccupancy, without affecting Tenant's obligation to pay Rent for the
Premises;
14.4 To have pass keys to the Premises and all doors therein, excluding Tenant's
vaults and safes;
14.5 On reasonable prior notice to Tenant, to exhibit the Premises to any
prospective purchaser, tenant, mortgagee, or assignee of any mortgage on the
Building and to others having an interest therein at any time during the Term;
14.6 To take any and all measures, including entering the Premises, for the
purpose of making inspections, repairs, alterations, additions and improvements
to the Premises, the Common Area and the Building (including for the purpose of
checking, calibrating, adjusting and balancing controls and other parts of the
Building Systems), as may be necessary or desirable for the operation,
improvement, safety, protection or preservation of the Premises, the Common Area
and the Building, or in order to comply with all laws, orders and requirements
of governmental or other authority, or as may otherwise be permitted or required
by this Lease; and
14.7 To install, or to permit an independent contractor or concessionaire to
install, pay-telephones or other vending or other machines in the Common Area
and the exterior of the Building and to receive all revenue derived therefrom.
15. ASSIGNMENT AND SUBLETTING. Tenant shall not assign, mortgage or encumber
this Lease, nor sublet, suffer or permit the Premises or any part thereof to be
used by others (a "Transfer"), without the prior written consent of Landlord in
each instance, which shall not be unreasonably withheld. Any Transfer without
Landlord's prior written consent shall be void and invalid. Upon any Transfer
without Landlords prior written consent, Landlord may collect rent from the
assignee, subtenant, occupant or transferee ("Transferee") and apply the net
amount collected to the Rent, but no such Transfer or collection shall be deemed
a waiver of this covenant, or the acceptance of the Transferee or a release of
Tenant from the further performance of its covenants herein contained.
15.1 Certain Transfers. A "Transfer" prohibited by this Article shall include,
without limitation, the following: if Tenant is a partnership, a withdrawal or
change (voluntary, involuntary, by operation of law or otherwise) of any of the
general partners thereof, or the dissolution of the partnership; if Tenant
consists of more than one person, a purported assignment, transfer, mortgage or
encumbrance (voluntary, involuntary, by operation of law or otherwise) from one
thereof unto the other or others thereof, if Tenant is a corporation, any
dissolution, merger, consolidation or other reorganization of Tenant, or any
change in the ownership (voluntary, involuntary, by operation of law, creation
of new stock or otherwise) of fifty percent (50%) or more of its capital stock
from the ownership existing on the date of execution hereof, if Tenant is a
limited liability company, any dissolution of Tenant, or any change in the
ownership (voluntary, involuntary, by operation of law, creation of new
membership interest or otherwise) of fifty percent (50%) or more of its
membership interest from the ownership existing on the date of execution
hereof-, if Tenant is a partnership and any of its general partners is a
corporation or a limited liability company, or if Tenant is a subsidiary
corporation, any change in the ownership of fifty percent (50%) or more of such
general partner's or the parent' s (as the case may be) capital stock or
membership interest from the ownership existing on the date of execution hereof,
or the sale of fifty percent (50%) or more of the value of the assets of Tenant.
(a) Notwithstanding the foregoing, without Landlords consent but upon ten (10)
working days notice to Landlord, this Lease may be assigned, or the Premises may
be sublet, to any corporation which is a parent, subsidiary or affiliate of
Tenant. For the purposes of this Section, a "parent" shall mean a corporation or
limited liability company which owns not less than 100% of the outstanding
capital stock of Tenant, a "subsidiar " shall mean any corporation not less than
one hundred percent (100%) of whose outstanding capital stock shall be owned by
Tenant, and an "affiliate" shall mean any corporation not less than one hundred
percent (100%) of whose outstanding capital stock shall be owned by Tenant's
parent.
(b) In no instance shall Tenant make any Transfer which would result in a use of
any part of the Premises which violates any agreement under which the Landlord
is obligated at the time of the assignment. Tenant also shall not make a
collateral assignment of the Lease or any part of Tenant's interest therein for
financing purposes.
15.2 Transfer Notice. To obtain Landlord's consent, at least thirty (30) days
but no more than ninety (90) days prior to the date the proposed Transfer is to
be effective (the "Transfer Date"), Tenant shall give Landlord a written notice
(the "Transfer Notice") setting forth: the name, address and business of the
proposed Transferee; information on the nature of the business proposed to be
conduct in the Premises and on the financial condition and reputation of the
proposed Transferee; the Transfer Date; and the material terms of the proposed
Transfer. If Landlord requests additional detail or documentation, the Transfer
Notice shall be deemed to be received as of the date Landlord receives the
additional detail or documentation. Tenant shall pay to Landlord upon demand all
reasonable costs (including attorneys' fees and expenses) incurred by Landlord
in connection with Landlord's review of the Transfer Notice.
15.3 Landlords Rights. Upon receipt of the Transfer Notice, Landlord shall have
the option to: (a) consent to the proposed transfer, (b) reject the proposed
transfer on reasonable grounds, or (c) terminate this Lease, in Landlord's
absolute discretion, as to all of the Premises or that portion of the Premises
which Tenant proposes to assign or sublease, by providing Tenant written notice
of such termination within sixty (60) days of Landlord's receipt of the Transfer
Notice.
Neither the consent by Landlord to any Transfer nor any failure by Landlord to
terminate this Lease on receipt of any
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If Landlord elects to terminate the Lease pursuant to this Section 18.2, it
shall notify Tenant as to its election within ninety (90) days after the fire or
other casualty, and this Lease shall terminate thirty (30) days after such
notice; provided, however, that if the Premises are unusable by Tenant, then
this Lease shall terminate as of the date of the damage or destruction.
18.3 Termination by Tenant. Tenant may not terminate this Lease or repair the
Premises at Landlord's expense as a result of a casualty; provided, however,
that Tenant may, at its option, terminate this Lease prior to Landlord%
completion of repairs required by damage or destruction of the Premises if
Landlord fails to substantially complete the repairs or restoration within
twelve (12) months after the date of the occurrence of the damage or destruction
(subject to Article 20 below), No damages, compensation or claim shall be
payable by Landlord for any casualty or any inconvenience, loss of business or
annoyance arising from any repair or restoration of any portion of the Premises
or of the Building pursuant to this Article 18. In the event the Premises are
damaged or destroyed and Landlord repairs or restores the same, Tenant shall
repair or restore Tenant Property (and any Leasehold Improvements installed by
Tenant) and shall, to the extent reasonably practicable, continue the operation
of its business in the Premises.
18.4 Abatement of Rent. In the event the Premises are damaged or destroyed by
fire or other casualty not occasioned by the negligence or willful misconduct of
Tenant or Tenant's Representatives and this Lease is not terminated as provided
herein and the Premises are not repaired or restored within twelve (12) months
of such damage or destruction, the Base Rent thereafter shall be reduced by the
ratio that the rentable square footage of the Premises so damaged or destroyed
(and rendered untenantable bears to the total rentable square footage of the
Premises until the damage or destruction is repaired or restored; provided,
however, that there shall be no such reduction so long as Tenant's business
interruption or rental loss insurance under Section 22. 1 (c) hereof covers
Tenant's obligation to pay Base Rent under this Lease.
19. EMINENT DOMAIN. If the whole of the Building Area is lawfully taken by
condemnation or any other manner for any public or quasi-public purpose, this
Lease shall terminate as of the date of vesting of title in such condemning
authority (the "Date of Taking"), and Rent shall be prorated to such date. If
any part of the Building Area is so taken, this Lease shall be unaffected by
such taking, except that (a) Landlord may, at Landlords sole option, terminate
this Lease by notice to Tenant within ninety (90) days after the Date of Taking,
and (b) if forty percent (40%) or more of the Premises shall be taken and the
remaining area of the Premises shall not be reasonably sufficient for Tenant to
continue operation of its business, Tenant may terminate this Lease by notice to
Landlord within ninety (90) days after the Date of Taking. This Lease shall
terminate on the thirtieth day after such notice, by which date Tenant shall
vacate and surrender the Premises to Landlord. The Rent shall be prorated to the
earlier of the expiration of the Tenn or such date as Tenant is required to
vacate the Premises by reason of the taking. If this Lease continues in force
upon such partial taking, the Base Rent shall be reduced in the same percentage
as the percentage reduction in rentable space of the Premises caused by the
taking.
19.1 When Voluntary Sale is a Taking. A voluntary sale by Landlord to any public
or quasi-public body, agency or person having the power of eminent domain,
either under threat of condemnation or while condemnation proceedings are
pending, shall be deemed to be a taking by eminent domain.
19.2 Condemnation Award. In the event of any taking, all of the proceeds of any
award, judgment or settlement payable by the condemning authority shall be and
remain the sole and exclusive property of Landlord, and Tenant hereby assigns
all of its right, title and interest in and to any such award, judgment or
settlement to Landlord. Tenant, however, shall have the right, to the extent
that the same shall not reduce or prejudice Landlord's award, to claim from the
condemning authority, but not from Landlord, such compensation as may be
recoverable by Tenant in its own right for moving expenses and damage to
Tenant's Property or business.
20. FORCE MAJEURE. Landlord shall be excused for the period of any delay in the
performance of any obligation hereunder when prevented from so doing by a cause
or causes beyond its control, including, without limitation, all labor disputes
or shortage, civil commotion, war, war-like operations, invasion, rebellion,
hostilities, military or usurped power, sabotage, governmental regulations or
controls, fire or other casualty, inability to obtain any material, services or
financing, or through adverse weather or acts of God. Tenant shall similarly be
excused for delay in the performance of any obligation hereunder provided:
20.1 Payment of Rent. Nothing contained in this Article or elsewhere in this
Lease shall be deemed to excuse or permit any delay in the payment of Rent, or
any delay in the cure of any default which may be cured by the payment of money;
20.2 Self-Help. No reliance by Tenant upon this Article shall limit or restrict
in any way Landlord's right of self-help as provided in ------------ this Lease;
and
20.3 Notice by Tenant. Tenant shall not be entitled to rely upon this Article
unless it shall give Landlord notice of the existence of any force majeure
preventing the performance of an obligation of Tenant within five days after the
commencement of the force majeure.
21. INDEMNITY.
21.1 By Tenant . Tenant hereby agrees to indemnify Landlord and Landlord's
Representatives against and save Landlord and Landlords Representatives harmless
from any and all losses, costs, damages, charges, liabilities, obligations,
fines, penalties, claims, demands, or judgments and any and all expenses,
including, without limitation, reasonable attorneys' fees and expenses, court
costs, and costs of appeal, settlement and negotiations, arising out of or in
connection with: (a) Tenant' s use of the Premises; (b) the conduct of Tenant's
business or any activity, work or thing done, permitted or suffered by Tenant
in, on or about the Premises or the Building Area; (c) any failure to perform or
observe any of the terms, covenants, conditions or provisions required to be
performed or observed by Tenant under this Lease; (d) any negligence or other
misconduct of Tenant or any of Tenant's Representatives in connection with the
occupying other premises in the Building, or (ii) Landlord or Landlords
Representatives unless proximately caused by (A) the gross negligence or willful
misconduct of Landlord or Landlord's Representatives or (B) the negligence of
Landlord or Landlord's Representatives if such negligence is covered by and
compensable under Landlord's insurance obtained pursuant to Section 22.5 hereof
Landlord shall not be responsible or liable to Tenant for any defect or failure,
in (or any act or omission in the construction of) the Building Area, the
Premises or any of the Building Systems (including, without limitation, the
Common INC, nor shall it be responsible or liable for any injury, loss or damage
to any person or property of Tenant or Tenant's Representatives or any other
person caused by or resulting from fire, electricity, gas, water, or other
utility (or interruption therein) or from rain, snow, ice, theft, bursting,
breakage, explosion, implosion, leakage, steam, running, backing up, seepage, or
the overflow of water or sewerage in any part of the Building or for any injury,
loss or damage caused by or resulting from acts of God or the elements. Tenant
shall give prompt notice to Landlord in case of fire, casualty, defect or
accident in the Premises or in the Building or of defects therein or in any
Building Systems.
21.4 Duration of indemnity. The provisions of this Article 21 shall survive the
termination of this Lease with respect to any damage, ------------------------
injury or death occurring prior to such termination.
22. INSURANCE.
22.1 Insurance Maintained by Tenant. Tenant shall maintain in full force and
effect during the entire Term, at its own cost and expense, the following
policies of insurance:
(a) Comprehensive/Commercial General Liability Insurance with a combined single
limit for bodily injury and property damage of not less than $3,000,000 per
occurrence, including the Broad Form Comprehensive General Liability endorsement
(or its equivalent), completed operations and products liability coverage,
covering the insuring provisions of this Lease and the performance of Tenant of
the indemnity agreements set forth in Article 21 above. Not more frequently than
once each three years, if, in the opinion of Landlord's insurance advisor, the
amount of public liability and property damage insurance coverage at that time
is not adequate, Tenant shall increase the insurance coverage as reasonably
recommended by Landlord's insurance advisor, but in no event in excess of the
amount customarily required by landlords for comparable buildings.
(b) Standard fire, extended coverage and special extended coverage insurance
(all risk), vandalism and malicious mischief endorsements, and sprinkler leakage
coverage, insuring the Leasehold Improvements installed by Tenant, fixtures,
glass, equipment, merchandise, inventory and personal property in and all other
contents of the Premises, and (if any) all mechanical, plumbing, heating,
ventilating, air conditioning, electrical, telecommunication and other
equipment, systems and facilities located on the Premises. Such insurance shall
be in an amount equal to 100% of the replacement value thereof from time to time
(and Tenant shall redetermine the same as frequently as necessary in order to
comply herewith). The proceeds of such insurance, so long as this Lease remains
in effect, shall be used to repair and/or replace the Premises, and the
Leasehold Improvements, fixtures, glass, equipment, mechanical, plumbing,
heating, ventilating, air conditioning, electrical, telecommunication and other
equipment, systems and facilities so insured.
(c) Business interruption or rental loss insurance sufficient to cover, for a
period of not less than one year, all rental, expense and other payment
obligations of Tenant under this Lease, including, without limitation, Base Rent
and adjustments thereto and Taxes, Operating Expenses and all other costs, fees,
charges and payments which would be borne by or due from Tenant under this Lease
if the Premises and Tenant's business were fully open and operating.
(d) Worker's compensation insurance to the extent required by law and employees
liability insurance; and
(e) Any other forms of insurance Landlord may require from time to time, in form
and amounts and for insurance risks against which a prudent tenant of comparable
size in a comparable business would protect itself.
Nothing herein shall in any manner limit the liability of Tenant for
nonperformance of its obligations or for loss or damage for which Tenant is
responsible. The aforementioned minimum limits of policies shall in no event
limit the liability of Tenant hereunder.
22.2 Form of Insurance. All insurance required to be carried by Tenant hereunder
shall insure Tenant and, as additional insured parties, Landlord and such other
person or persons as Landlord shall designate to Tenant who have an insurable
interest in the Premises. Any claim for loss under said insurance policies shall
be payable notwithstanding any act, omission negligence, representation,
misrepresentation or other conduct or misconduct of Tenant which might otherwise
cause cancellation, forfeiture or reduction of such insurance. All such
insurance policies: (a) shall be issued by reputable companies authorized to do
business, operating in the State of California and rated A-X or better in Best's
Insurance Guide; (b) shall be subject to the prior approval of Landlord (which
approval shall not be unreasonably withheld) as to form, as to substance and as
to insurer; (c) shall only provide for a deductible so long as Tenant shall
remain liable for payment of any such deductible in the event of any casualty;
(d) shall contain appropriate cross-liability endorsements denying Tenants
insurers the right of subrogation against Landlord and Landlord!s
Representatives as to risks covered by such insurance, without prejudice to any
waiver or indemnity provisions applicable to Tenant and any limitation of
liability provisions applicable to Landlord hereunder, of which provisions
Tenant shall notify all insurance carriers; (e) shall contain a provision
whereby each insurer agrees to give Landlord at least thirty (30) days' prior
written notice in advance of any cancellation or lapse or the effective date of
any reduction in the amounts of insurance; (f) shall be written as primary
insurance and endorsed as not contributing with, and not in excess of, any
coverage carried by Landlord; and (g) shall contain such additional endorsements
required by Landlord. On or before the Commencement Date, Tenant shall furnish
Landlord with certificates evidencing the aforesaid insurance coverage, and
renewal certificates shall be furnished to Landlord at least thirty (30) days
prior to the expiration date of such insurance. Claims Made insurance does not
satisfy the above requirements.
flood coverage and rent interruption coverage beyond any such rent interruption
coverage held by Tenant and naming Landlord as additional insured), in an amount
not less than that required by all Mortgages and/or all Ground Leases, and all
risk as per ISO, comprehensive/commercial general liability insurance (including
Broad Form Extended Liability Endorsement or its equivalent) in an amount of not
less than $5,000,000. Tenant shall pay to Landlord as Additional Rent Tenant' s
Proportionate Share of the cost of the premiums for all such insurance and of
the reasonable cost of Landlord's insurance consultants. Notwithstanding any
contribution by Tenant to the cost of insurance premiums as provided herein,
Tenant acknowledges that Tenant has no right to receive any proceeds from any
insurance policies carried by Landlord.
23. SUBORDINATION, ATTORNMENT AND MODIFICATION.
23.1 Subordination. This Lease and all rights of Tenant hereunder shall be
subordinate to all Ground Leases and Mortgages, unless Landlord or the holder of
any such Ground Lease or Mortgage, elects (by written notice to Tenant) not to
require such subordination. This Section shall be self-operative and no further
instruments of subordination shall be required. (Each Ground Lease to which this
Lease is so subordinated is referred to herein as a "Superior Lease," and each
Mortgage to which this Lease is so subordinated is referred to herein as a
"Superior Mortgage.") In confirmation of such subordination, Tenant shall
promptly execute, acknowledge and deliver any instrument that Landlord, the
lessor under any of the Superior Leases (a "Superior Lessor"), or the holder of
any of the Superior Mortgages (a "Superior Mortgagee"), or any of their
respective assigns or successors in interest may reasonably request to evidence
such subordination. If a Superior Lessor or Superior Mortgagee requires that
such instruments be executed by Tenant, Tenant's failure to do so within twenty
(20) days after request therefor shall be deemed a material default under this
Lease.
23.2 Attomment. If any Superior Lessor or Superior Mortgagee (or any purchaser
at a foreclosure sale) succeeds to the rights of Landlord under this Lease,
whether through possession or foreclosure action or delivery of a new lease or
deed (a "Successor Landlord"), Tenant shall attorn to and recognize such
Successor Landlord as Tenant's landlord under this Lease and shall promptly
execute and deliver any instrument that such Successor Landlord may reasonably
request to evidence such attornment so long as such Successor Landlord agrees to
recognize the validity and continuance of this Lease and not to disturb Tenant's
possession of the Premises so long as Tenant shall not be in default of this
Lease, except that Successor Landlord shall in no event: (a) be liable for any
previous act or omission of a prior landlord under this Lease; (b) be subject to
any offset for a claim arising prior to its succession to the rights of Landlord
under this Lease; or (c) after notice to Tenant of the existence of a Superior
Lessor or a Superior Mortgagee, be bound by any subsequent modification of this
Lease or by any subsequent prepayment of more than one month's Rent, unless such
modification or prepayment shall have been expressly approved by the Successor
Landlord.
23.3 Modification, Financing Conditions. If any Mortgage lender should require
as a condition to such financing or pursuant to rights of approval set forth in
any Mortgages, or if any lessor under any Ground Lease, as a condition of such
Ground Lease or pursuant to rights of approval set forth therein, any
modification of the terms or conditions of this Lease, Tenant agrees to execute
such modification or amendment, provided that such modification or amendment:
(a) shall not increase Tenant's Rent hereunder, (b) shall not materially
interfere with Tenant's use or occupancy of the Premises or otherwise diminish
Tenant's rights or remedies or increase Tenant's obligations under this Lease
and (c) if requested by a Mortgage lender with a lien on the Building or a
lessor pursuant to any Ground Lease effective as of the date hereof, such
request shall have been made within thirty (30) days after the date hereof. If
Tenant should refuse to execute any modifications so required within ten (10)
days after receipt of same, Landlord shall have the right by notice to Tenant to
terminate this Lease and upon such termination Landlord shall refund any
unearned rental or security deposit, and neither party shall have any liability
thereafter accruing under this Lease, except as provided in Section 21.4 above.
24. ESTOPPEL CERTIFICATE. From time to time upon not less than ten (10) days
prior request by Landlord, Tenant shall deliver to Landlord a written statement
certifying (with the understanding that such statement so delivered may be
relied upon in connection with any lease, mortgage or transfer): (a) that this
Lease is unmodified and in full force and effect (or if there have been
modifications, identifying such modifications and certifying that the Lease, as
modified, is in full force and effect), (b) the annual base rent, monthly base
rent, annual operating expenses and monthly operating expenses under the Lease,
(c) the dates to which Rent has been paid, (d) that Tenant has not prepaid rent
more than thirty (30) days in advance and that Tenant has not delivered to
Landlord a security deposit other than the Security Deposit, (e) that Tenant has
no right to extend the term of this Lease or to expand the Premises, except as
expressly provided in this Lease, (f) that Landlord is not in default under any
provision of this Lease (or if Landlord is in default, specifying each such
default), (g) the address to which notices to Tenant shall be sent, and (h) such
other matters pertaining to the Lease as Landlord may reasonably request.
Tenant's failure to deliver such statement within ten (10) days shall be
conclusive upon Tenant that: (a) this Lease is in full force and effect and not
modified except as Landlord may represent; (b) not more than one month's Rent
has been paid in advance; (c) Landlord is not in default under any provision of
this Lease; and (d) that Tenant hereby irrevocably constitutes and appoints
Landlord as Tenant's special attomey-in-fact, coupled with an interest, to
execute and deliver such a statement for and on behalf of Tenant.
Notwithstanding the presumptions of this Section, Tenant's failure to deliver
such a statement within three (3) business days following a second request from
Landlord therefor (which notice Landlord shall have the right to give at any
time on or after the tenth (10th) day after Landlord's first request therefor)
shall constitute an immediate Event of Default.
25. EVENTS OF DEFAULT, REMEDIES OF LANDLORD.
25.1 Events of Default. The following are Events of Default hereunder:
(a) Failure of Tenant to pay Rent, when and as the same becomes due and
payable, and such failure shall continue
(d) In the event that within thirty (30) days after the commencement of any
proceeding against Tenant seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief, under any present or
future Law, such proceeding shall not have been dismissed, or if within thirty
(30) days after the appointment, without the consent or acquiescence of Tenant,
of any trustee, receiver or liquidator of Tenant or of any material part of
Tenant's properties, such appointment shall not have been vacated; and
(e)Without need for notice or opportunity to cure, the occurrence of any failure
of the type specified in clause (a) or (b) above after Landlord has given notice
under either clause on three or more separate previous occasions (whether or not
on such previous occasions, Tenant cured such failure before it matured into an
Event of Default); and
(f) Tenant's failure to deliver an estoppel certificate under Section 24 hereof,
as provided in said Section.
25.2 Notice of Event of Default. Notices given under this Article 25 shall
specify the Event of Default and shall demand that Tenant cure such Event of
Default, if curable, within the applicable period of time.
25.3 Remedies of Landlord. In the event of the occurrence of an Event of
Default, Landlord, at its sole election, shall have the following remedies, in
addition to any remedies now or hereafter allowed by Law or provided for herein:
(a) To terminate this Lease, and re-enter and take possession of the Premises
and remove all persons therefrom by any lawful means, and Tenant shall thereupon
have no further claim in or to the Premises under this Lease;
(b) To re-enter and take possession of the Premises and terminate all rights of
Tenant thereto without terminating this Lease, and from time to time occupy or
lease (without notice to Tenant) the whole or any part of the Premises for or on
account of Tenant and for such term (which may be for a term less than or
extending beyond the term then remaining of this Lease) and upon such terms and
conditions and for such rent as Landlord may obtain, and to collect said rent or
any other rent that may thereafter become due and payable and to apply the same
toward the amount of Rent due or thereafter to become due from Tenant and toward
the amount of any costs and expenses Landlord may incur by reason of such
reletting, including, without limitation, court costs, reasonable attorneys'
fees, operating expenses, alteration expenses, brokers' commissions, and
expenses in preparation for reletting and any other damages sustained by
Landlord (collectively, "Additional Expenses"). Should the amount of such rent
collected by Landlord be less than Rent, Tenant agrees to pay the amount of such
deficiency to Landlord at the time the Base Rent would otherwise be payable
hereunder, and should the amount of such rent collected by Landlord be
insufficient to cover the Additional Expenses (in addition to Rent), Tenant
agrees to pay the amount of such deficiency as Additional Rent immediately upon
presentment of a xxxx or bills therefor. Should Landlord relet the Premises or
any part thereof, Landlord may, at Landlord's sole election, relet the same in
its own name or in Tenant's name and Tenant shall have no right or authority to
collect any rent or charges under said reletting and Landlord shall have no
responsibility or liability to Tenant for any failure to collect said rent or
said charges. This provision provides to Landlord the remedy described in
California Civil Code Section 1951.4 (lessor may continue lease in effect after
lessee's breach and abandonment and recover rent when it becomes due if lessee
has right to sublet or assign subject only to reasonable limitations);
(c) Even though Landlord may have relet the Premises pursuant to Section 25.3(b)
hereof, to terminate this Lease; or
(d) To allow Tenant to retain possession of the Premises subject to the terms,
covenants, conditions and provisions of this Lease, in which event Landlord may
cure any Event of Default susceptible of being cured by Landlord, at Tenant's
sole cost, and Tenant shall pay to Landlord as Additional Rent, immediately upon
presentment of a xxxx or bills therefor, any sums expended by Landlord in
connection therewith.
25.4 Notice of Termination; Damages. This Lease may be terminated pursuant to
Section 25.3(a) or Section 25.3(c) hereof only by written notice from Landlord
to Tenant and such termination shall be effective as of the date specified in
such notice. In the event of any such termination, Landlord shall be entitled to
recover from Tenant an amount equal to the sum of- (a) the worth at the time of
award of the unpaid Rent which had been earned at the time of said termination;
(b) 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 rental loss that Tenant proves could be reasonably avoided; (c) the
worth at the time of award of the amount by which the unpaid Rent for the
balance of the term of this Lease after the time of award exceeds the amount of
rental loss that Tenant proves could be reasonably avoided; and (d) any other
amount necessary to compensate Landlord for all the detriment caused by Tenant's
failure to perform or observe any of the terms, covenants, conditions or
provisions of this Lease to be performed or observed by Tenant under the terms
of this Lease, or which in the ordinary course of things would be likely to
result therefrom. As used herein, "worth at the time of award" shall have the
meaning or meanings set forth in Section 1951.2(b) of the Civil Code of the
State of California, as from time to time amended; provided, however, that the
"worth at the time of award" of the amounts referred to in clauses (a) and (b)
of this Section shall be computed by allowing interest thereon at the greater of
ten percent (10%) or five (5) points over the San Francisco Federal Reserve Bank
discount rate in effect on the 25th day of the month preceding the date upon
which the amount in question was due.
25.5 Reentry Not Termination. No reentry, occupancy or reletting of the Premises
pursuant to Section 25.3(b) hereof, and no alteration or preparation of the
Premises for any such reletting, and no legal proceedings to obtain possession
of the Premises, shall be deemed a termination of this Lease, unless Landlord
shall have given Tenant notice as provided in Section 25.4 hereof.
terms, covenants, conditions or provisions to be performed or observed by Tenant
under this Lease. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future Law in the event of Tenant
being evicted or dispossessed from the Premises for any cause or in the event of
Landlord obtaining possession of the Premises by reason of the occurrence of an
Event of Default or otherwise.
26. CURING TENANTS DEFAULTS.
26.1 Landlord's Right to Cure. If Tenant defaults in the performance of any of
its obligations under this Lease, Landlord, without thereby waiving such
default, may (but shall not be obligated to) perform the same for the account
and at the expense of Tenant, without notice in a case of emergency, and in any
other case only if such default continues after the expiration of the later of.
(a) ten (10) days from the date Landlord gives Tenant notice of its intention so
to do; or (b) the expiration of the applicable grace period provided in this
Lease for cure of such default.
26.2 Additional Rent. Any costs or expenses incurred by Landlord, including
reasonable attorneys' fees, involved in collection or endeavoring to collect
Rent or any part thereof or enforcing or endeavoring to enforce any rights
against Tenant, including the rights set forth in this Article 26, or curing or
endeavoring to cure any default of Tenant, under or in connection with this
Lease, or pursuant to law, including any such cost, expense or disbursement
involved in instituting and prosecuting summary proceedings, shall be due and
payable within ten (10) days of Landlord's demand therefor as Additional Rent.
27. DEFAULTS BY LANDLORD. Should Landlord at any time fail to perform or observe
any of the terms, covenants, conditions or provisions to be performed or
observed by Landlord under this Lease, Tenant shall not have the right to
exercise any of its rights or remedies in connection therewith, if any, unless
Landlord fails to cure said failure within thirty (30) days after written notice
thereof from Tenant or, in the case of a failure which is susceptible of being
cured but cannot with due diligence be cured within such thirty (30) day period,
Landlord fails to proceed with all due diligence within such thirty (30) day
period to cure the same and thereafter to prosecute such curing with all due
diligence to completion. Any notice from Tenant to Landlord provided for in this
Article 27 shall specify the particulars of any such failure.
28. BROKERAGE FEES. Tenant warrants and represents that Tenant has not engaged,
entered into an agreement with or otherwise dealt with any realtor, broker,
agent or finder in connection with this Lease except the Brokers. Tenant shall
indemnify and hold Landlord harmless from any cost, expense or liability
(including cost of suit and reasonable attorneys' fees) for any compensation,
commissions, fees or charges claimed by any realtor, broker, agent or finder in
connection with this Lease or by reason of any act of Tenant.
29. NOTICES. All notices, demands or other communications ("Notices") permitted
or required to be given hereunder shall be in writing and, if mailed postage
prepaid by certified or registered mail, return receipt requested, shall be
deemed given three days after the date of mailing thereof or on the date of
actual receipt, if sooner; all other Notices not so mailed shall be deemed given
on the date of actual receipt. Notices shall be addressed as follows: (a) if to
Landlord, to the Landlord's Mailing Address and to the Building manager
designated by Landlord, and (b) if to Tenant, to the Tenant's Mailing Address.
Landlord and Tenant may from time to time by notice to the other, designate such
other place or places for the receipt of future Notices.
30. TRANSFER OF LANDLORD'S INTEREST. The term "Landlord" as used in this Lease,
so far as covenants or agreements on the part of Landlord are concerned, shall
be limited to mean and include only the owner or owners of Landlord's interest
in this Lease at the time in question. Upon any transfer or transfers of such
interest, Landlord herein named (and in case of any subsequent transfer, the
then-transferor) shall thereafter be relieved of all liability for the
performance of any covenants or agreements on the part of Landlord contained in
this Lease or relating to the Premises.
31. RELOCATION OF PREMISES. Landlord shall have the sole right to relocate the
Premises to another location within the Building or comparable building in the
area at any time by giving not less than sixty (60) days' prior written notice,
provided: (a) the new premises are substantially equivalent in rentable area;
(b) Tenant shall incur no cost or expense in connection with the relocation; (c)
the Base Rent shall be the same (unless the new premises are smaller, in which
case, the Base Rent shall be decreased in the same proportion as the reduction
in the rentable square footage); and (d) the relocation does not otherwise
materially impair Tenant's capacity to conduct its business within the Building
or the comparable building in the area. If relocation occurs, this Lease shall
remain in full force and effect, and the new premises shall become the
"Premises" (and, if applicable, the new Base Rent shall become the "Base Rent")
for all purposes set forth in this Lease.
32. QUIET ENJOYMENT. Tenant, upon paying Rent and performing all of the terms on
its part to be performed, shall peaceably and quietly enjoy the Premises
subject, nevertheless, to (a) the terms of this Lease, (b) to any document or
documents now or hereafter executed by and between Landlord and the owner(s) or
lessee(s) of certain parcels of Real Property within the Building Area, or other
adjacent or neighboring properties, which may provide, in part, for a scheme of
reciprocal easements for the benefit of tenants and customers of the Building
and said adjacent or neighboring properties, and (c) to any Superior Mortgage or
Superior Lease, as defined in Section 23.1 hereof, or other agreement to which
this Lease is subordinated, as such documents may hereafter be supplemented,
implemented, modified or amended, it being understood that none of the
aforementioned documents shall prevent Tenant from using the Premises for the
Permitted Use.
33. LIMITATION OF LANDLORD'S LIABILITY. If Landlord becomes obligated to pay
Tenant a money judgment arising out of any failure by Landlord to perform or
observe any of the terms, covenants, conditions or provisions to be performed or
observed by Landlord hereunder, Tenant shall be limited for the satisfaction of
said money judgment solely to Landlords interest in the Building or
to either party in any award rendered pursuant to such arbitration. This
provision shall constitute a written agreement to submit to arbitration.
Judgment upon any award rendered pursuant to such arbitration may be entered in
any court of competent jurisdiction.
35. SIGN CONTROL. Tenant shall not obstruct or permit the obstruction of light,
halls, Common Areas, roofs, parapets, stairways or entrances to the Building or
the Premises and will not affix, paint, erect or inscribe any sign, projection,
awning, signal or advertisement of any kind to any part of the Building or the
Premises, including the inside or outside of the windows or doors, without the
written consent of Landlord. Landlord shall have the right to withdraw such
consent at any time and to require Tenant to remove any sign, projection,
awning, signal or advertisement to be affixed to the Building or the Premises
and to repair any damage caused by such removal and restore the Building or the
Premises to the condition existing before such installation. If such work is
done by Tenant through any person, firm or corporation not designated by
Landlord, or without the express written consent of Landlord, Landlord shall
have the right to remove such signs, projections, awnings, signals or
advertisements without being liable to the Tenant by reason thereof and to
charge the cost of such removal, repair and restoration to Tenant as Additional
Rent, payable within ten (10) days of Landlord's demand therefor.
36. EXPANSION. Landlord may at its election (but shall in no event be obligated
to) expand the Building, and expand, construct improvements and structures on,
and make changes to the Common Area. Tenant acknowledges that such changes and
expansion, if and when they may occur, will involve barricading, materials
storage, noise, the presence of workers and equipment, relocation and
rearrangement of parking areas, roadways and lighting facilities, and other
inconvenience typically associated with construction. Tenant waives any claim of
defense it may have against Landlord and any right of setoff against or
deductions from rent or any other sum payable under this Lease based upon
interruption of or interference with Tenant's conduct of business or
inconvenience to its customers caused by such construction, provided that such
work by Landlord shall not materially affect Tenant's use of the Premises or
Tenant's ingress to or egress from the Premises.
37. SHORING. If any excavation or construction is made adjacent to, upon or
within the Building, or any part thereof, Tenant shall afford to any and all
persons causing or authorized to cause such excavation or construction license
to enter upon the Premises for the purpose of doing such work as such persons
shall deem necessary to preserve the Building or any portion thereof from injury
or damage and to support the same by proper foundations, braces and supports,
without any claim for damages or indemnity or abatement of Rent, or of a
constructive or actual eviction of Tenant, provided that any such work caused by
Landlord shall not materially affect Tenant's reasonable ingress to or egress
from the Premises.
38. MISCELLANEOUS.
38.1 Authori1y, Due Organization. Each person executing this Lease on behalf of
either party hereto represents and warrants that he or she is duly authorized to
execute and deliver this Lease on such party's behalf and to bind such party
hereto. Tenant represents and warrants that (a) this Lease is valid, binding and
enforceable against Tenant, and, if Tenant is a corporation, that: (b) Tenant is
a duly organized corporation and Tenant is authorized to enter into this Lease
by its board of directors in accordance with its bylaws; (c) all steps have been
taken prior to the date hereof to qualify Tenant to do business in California;
(d) all franchise and corporate taxes have been paid to date; and (e) all forms,
reports, fees and other documents necessary to comply with applicable laws will
be filed when due.
38.2 Other Tenancies in the Building. Landlord reserves the absolute right to
effect such other tenancies in the Building as Landlord in the exercise of its
sole business judgment shall determine to best promote the interests of the
Building. Tenant does not rely on the fact, nor does Landlord represent, that
any specific tenant or type or number of tenants shall during the Term occupy
any space in the Building.
38.3 Landlord-Tenant Relationship. Nothing contained in this Lease shall be
deemed or construed by the parties hereto or by any third person to create the
relationship of principal and agent or of partnership or of joint venture or of
any association between Landlord and Tenant, and neither the method of
computation of rent nor any other provision contained in this Lease nor any acts
of the parties hereto shall be deemed to create any relationship between
Landlord and Tenant other than the relationship of landlord and tenant.
38.4 Joint and Several Liability. If more than one person or entity executes
this Lease as Tenant, each such person or entity shall be jointly and severally
liable for observing and performing each of the terms, covenants, conditions and
provisions to be observed or performed by Tenant.
38.5 No Accord and Satisfaction. No payment by Tenant or receipt by Landlord of
a lesser amount than Rent payment herein stipulated shall be deemed to be other
than on account of Rent, nor shall any endorsement or statement on any check or
any letter accompanying any check or payment as Rent be deemed an accord and
satisfaction (unless Landlord expressly agrees to an accord and satisfaction in
a separate agreement duly accepted by Landlord's appropriate officer or
officers), and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such Rent or pursue any other remedy
provided in this Lease. Landlord may receive and retain, absolutely and for
itself, any and all payments so tendered, notwithstanding any accompanying
instructions by Tenant to the contrary, and any such payment shall be treated by
Landlord at its option as being received solely on account of any amounts due
and owing Landlord, including Rent, and to such items and in such order as
Landlord in its sole discretion shall determine.
38.6 No Non-Mandatory Counterclaim. If Landlord commences any summary
proceedings, Tenant shall not interpose any non-mandatory counterclaim of any
nature or description in any such proceedings or action.
38.10 Costs and Attorneys' Fees. In any action or proceeding which Landlord or
Tenant may be required to prosecute to enforce its respective rights hereunder
(including without limitation any court or arbitration proceeding), the
unsuccessful party agrees to pay all reasonable costs incurred by the prevailing
party therein, including reasonable attorneys' fees and expenses.
38.11 Validity of Clauses. If any clause or provision of this Lease is or
becomes illegal or unenforceable because of present or future laws or any rule
or regulation of any governmental body or entity, effective during the Tenn, the
intention of the parties hereto is that the remaining parts of this Lease shall
not be affected thereby unless such clause or provision is, in the reasonable
determination of Landlord, essential and material to its rights, in which event
Landlord shall have the right to terminate this Lease by notice to Tenant unless
Tenant agrees to modify such provision to Landlord's reasonable satisfaction.
38.12 Successors and Assigns. All the terms and provisions of this Lease shall
be binding upon and, except as prohibited or limited by Article 15, inure to the
benefit of the parties hereto and their respective heirs, legal representatives,
successors and assigns.
38.13 Complete Agreement. This Lease sets forth all the covenants, promises,
agreements, conditions and understandings between Landlord and Tenant concerning
the Premises and Building Area and there are no covenants, promises, agreements,
conditions or understandings, either oral or written, between them other than as
are herein set forth. Except as herein otherwise provided, no subsequent
alteration, amendment, change or addition to this Lease shall be binding upon
Landlord or Tenant unless reduced to writing and signed by them. No agreement to
accept a surrender of all or any part of the Premises shall be valid unless in
writing and signed by Landlord.
38.14 Captions. The captions appearing within the body of this Lease have been
inserted as a matter of convenience and for reference only and in no way define,
limit or enlarge the scope or meaning of this Lease or of any provision hereof.
38.15 Memorandum of Lease. At the sole option of Landlord, Tenant shall promptly
execute, acknowledge and deliver to Landlord a memorandum with respect to this
Lease sufficient for recording. In no event shall this Lease be recorded and if
Tenant records this Lease in violation of the terms hereof, in addition to any
other remedy available to Landlord upon Tenant's default, Landlord shall have
the option to terminate this Lease by recording a notice to such effect. If a
memorandum of lease is recorded, on the expiration of the Term Tenant shall
execute, acknowledge and deliver to Landlord an instrument in writing releasing
and quitclaiming to Landlord all right, title and interest of Tenant in and to
the Premises by reason of this Lease or otherwise.
38.16 Exhibits, Riders, Attachments and Addenda. If any provision contained in
an exhibit, rider, attachment or addendum is inconsistent with any other
provision of this Lease, the provision contained in said exhibit, rider,
attachment or addendum shall supersede said other provision, unless otherwise
provided in said exhibit, rider, attachment or addendum.
38.17 Counterparts. This Lease may be executed in multiple counterparts, each of
which shall be deemed an original and all of which shall constitute one and the
same instrument.
38.18 Language Intepretation . The language of this Lease shall be construed
according to its normal and usual meaning and not strictly for or against either
Landlord or Tenant. As used in this Lease, any list of one or more items
preceded by the word "including" shall not be deemed limited to the stated items
but shall be deemed without limitation. The use of the neuter singular pronoun
to refer to either party shall be deemed a proper reference even though it may
be an individual, partnership, company, corporation or a group of two or more
individuals or corporations. The necessary grammatical changes required to make
the provisions of this Lease apply in the plural number where there is more than
one Landlord or Tenant and to either corporations, associations, partnerships,
companies or individuals, males or females, shall in all instances be assumed as
though in each case fully expressed.
38.19 Governing Law. This Lease shall be deemed to have been made in and shall
be construed in accordance with the laws of the State of California, without
regard to its conflict of laws principles.
38.20 Time of the Essence. Time is of the essence with respect to the
performances of any and all obligations and the observance of any and all
conditions by Tenant under this Lease.
38.21 Financial Statements. At any time during the Term, Tenant shall, upon ten
(10) days prior written notice from Landlord, provide Landlord with financial
statements of Tenant for the three (3) most recently ended fiscal years of
Tenant. Such statements shall be prepared in accordance with generally accepted
accounting principles and, if such is the normal practice of Tenant, shall be
certified by an independent certified public accountant. Landlord shall not
disclose such financial statements or any information obtained from such
statements to any other person without prior written consent from Tenant, except
that Landlord may disclose such statements to the holder of any Ground Lease or
Mortgage or to any prospective purchaser or encumbrancer of the Building if such
person agrees to respect the confidentiality thereof.
38.22 Computation of Time. Unless this Lease specifically refers to business
days, the word "#ay" as used herein shall mean calendar day. Whenever in this
Lease any prescribed time period would end on a Saturday, Sunday or legal
holiday, such period shall be deemed to end upon the next day following that is
not a Saturday, Sunday or legal holiday.
[GRAPHIC OMITTED][GRAPHIC OMITTED]
EXHIBIT A -- DESCRIPTION OF THE BUILDING
PARCEL A:
A parcel of land situated in the City of Encino, County of Los Angeles, State of
California, being a portion of Xxx 0, xx Xxxxx 00 xx Xxxxx Number 2955,
according to map thereof recorded in Book 3 1, Pages 62 to 70 inclusive, of
Maps, records in the office of the County Recorder of Los Angeles, County, being
more particularly described as a whole as follows:
Beginning at the Southwest xxxxx of Lot 14 of tract Number 16277, according to
map thereof record in Book 430, Pages 2 and 3, of Maps, records in the office of
the County recorder of said county, said point being on the Westerly Line South
0' 03" 30" East 279.73 feet to the North Line of Ventura Boulevard, 100 feet
wide, being also a point on the Northerly Line of the Southerly 20.00 feet of
said Xxx 0, Xxxxx 00, Xxxxx Number 2955; then along said North Line South 80'
38'45" East 267.72 feet to an intersection with the east Line of said Lot 2;
thence along said East Line North 0' 03'30" West 279.73 feet to an intersection
with the Easterly prolongation North 80' 38'45" West 267.72 feet to the point of
beginning.
PARCEL B:
The Southerly 20.00 feet of Xxx 0 xx Xxxxx 00 xx Xxxxx Number 2955, in the City
of Encino, County of Los Angeles, State of California, as per map recorded in
Book 3 1, Pages 62 to 70 inclusive, of Maps, records of said County.
EASEMENT 1:
Together with an easement for Drainage and Sanitary Sewer Purposes over, through
of ingress and egress over said easement for the purpose of constructing,
maintaining and repairing drainage and sanitary sewer lines described as
follows:
Beginning at the intersection of the easterly Line of Xxx 0, Xxxxx 00, of said
Tract Number 2955, with the Easterly prolongation of the Southerly Line of Lots
11 through 14 inclusive of Said Tract Number 16227; then North 80' 38'45" West
along said Southerly Line 5.07 feet to the intersection of the Westerly Line of
the Easterly 5 feet of Xxx 0, Xxxxx 00 of said tract Number 2955; then North 0'
03' 30" West along said Westerly Line 164.67 feet to the intersection of the
Southerly Line of the Northerly 5 feet to the intersection of the Southerly Line
of the Northerly 5 feet of that portion of Lot 2, of said Block 24, lying
Southerly of the Easterly prolongation of the Northerly Line of Xxxxxxxx Xxxxxx,
00 feet wide, as shown on Map of said Tract Number 16227; thence North 0' 03'30"
West 5.07 feet to the Easterly prolongation of said Northerly Line of Xxxxxxxx
Xxxxxx; thence South 80' 38'45" East along said prolongation 119.43 feet to the
Easterly Line of Lot 2, of said Block 24; then South 0' 03'30" East along said
easterly line 169.74 feet to the point of beginning.
EASEMENT 2:
AND ALSO TOGETHER WITH an easement for drainage purposes over, through and
across that portion of Xxx 0, Xxxxx 00, of said Tract Number 2955, with the
right of ingress and egress over said easement for the purpose of constructing,
maintaining and repairing drainage lines, described as follows:
The Westerly 5 feet of Lot 2 of said Block 24, bounded Southerly by the Easterly
prolongation of the Southerly line of Moorpark Street, as shown on map of said
Tract Number 16227
RIDER 1
BASE RENT SCHEDULE
Per Rentable
Months Square Foot Per Month Per Annum.
1-12* $1.85 $2,005.40 $24,064.80
13-24 $1.90 $2,059.60 $24,715.20
25-36 $1.95 $2,113.80 $25,365.60
*Landlord shall grant Tenant a total of 1/2 months of conditionally excused
abatement of Base Rent and Operating Expenses for the month V., of August, 1998.
