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Exhibit 10.13
OFFICE LEASE
WHUB REAL ESTATE LIMITED PARTNERSHIP,
A DELAWARE LIMITED PARTNERSHIP
AS LANDLORD,
AND
STAR VENDING, INC.,
A NEVADA CORPORATION
AS TENANT
Dated:
June 28, 1996
Property:
000 XXXXX XXXXXX
XXXXX XXXXXXX, XXXXXXXXXX
NOTICE TO ALL PARTIES:
THE SUBMISSION OF THIS DOCUMENT FOR EXAMINATION, NEGOTIATION AND/OR SIGNATURE
DOES NOT CONSTITUTE AN OFFER TO LEASE, OR A RESERVATION OF, OR AN OPTION FOR THE
PREMISES. THIS DOCUMENT SHALL NOT BE BINDING AND IN EFFECT AGAINST EITHER PARTY
UNTIL AT LEAST ONE COUNTERPART, DULY EXECUTED BY LANDLORD AND TENANT, HAS BEEN
RECEIVED BY EACH OF LANDLORD AND TENANT.
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TABLE OF CONTENTS
Page
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LEASE OF PREMISES ................................................................................................1
BASIC LEASE PROVISIONS ...........................................................................................1
STANDARD LEASE PROVISIONS ........................................................................................1
1. Term.........................................................................................................1
2. Rent; Operating Costs; Square Foot Specification.............................................................1
2.1 Basic Annual Rent...............................................................................1
2.2 Operating Costs.................................................................................2
2.3 Square Footage Specification....................................................................4
2.4 Books and Records...............................................................................4
3. Delinquent Payment; Handling Charges.........................................................................4
4. Security Deposit.............................................................................................4
5. Landlord's Obligations.......................................................................................4
5.1 Services........................................................................................4
5.2 Excess Utility Use..............................................................................5
5.3 Restoration of Services.........................................................................5
6. Improvements, Alterations, Repairs and Maintenance...........................................................5
6.1 Improvements; Alterations.......................................................................5
6.2 Repairs and Maintenance.........................................................................6
6.3 Mechanic's Liens................................................................................6
7. Use..........................................................................................................6
8. Assignment and Subletting....................................................................................6
8.1 Transfers; Consent..............................................................................6
8.2 Cancellation and Recapture......................................................................7
9. Insurance, Waivers, Subrogation and Indemnity................................................................7
9.1 Insurance.......................................................................................7
9.2 Waiver of Negligence; No Subrogation............................................................7
9.3 Indemnity.......................................................................................8
10. Subordination; Attornment; Notice to Landlord's Mortgagee.......................................8
10.1 Subordination...................................................................................8
10.2 Attornment......................................................................................8
10.3 Notice to Landlord's Mortgagee..................................................................8
11. Rules and Regulations...........................................................................9
12. Condemnation....................................................................................9
13. Fire or Other Casualty..........................................................................9
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13.1 Repair Estimate; Right to Terminate.............................................................9
13.2 Repair Obligation; Abatement of Rent............................................................9
14. Parking........................................................................................10
15. Events of Default..............................................................................10
16. Remedies.......................................................................................10
17. Payment by Tenant; Non-Waiver..................................................................11
18. Surrender of Premises..........................................................................12
19. Holding Over...................................................................................12
20. Certain Rights Reserved by Landlord............................................................12
21. Substitution Space.............................................................................13
22. Miscellaneous..................................................................................13
22.1 Landlord Transfer and Liability................................................................13
22.2 Brokerage......................................................................................13
22.3 Estoppel Certificates..........................................................................13
22.4 Notices........................................................................................13
22.5 Miscellaneous..................................................................................14
23. Addenda........................................................................................14
23.A Extension Option........................................................................................14
23.A.1 Grant of Option................................................................................14
23.A.2 Basic Annual Rent..............................................................................14
23.A.3 Definition.....................................................................................14
23.A.4 Procedure for Determining the Extension FMRV...................................................14
23.A.5 Conditions to Exercise of the Extension Option.................................................15
23.B Right of First Offer....................................................................................16
23.B.1 Definitions....................................................................................16
23.B.1.1 "Available for Lease" .........................................................................16
23.B.1.2 "First Right Space" ...........................................................................16
23.B.2 First Right Space..............................................................................16
23.B.3 Miscellaneous..................................................................................16
EXHIBIT "A" PREMISES OUTLINE; BUILDING FLOOR PLAN
EXHIBIT "B" CONSTRUCTION CRITERIA
EXHIBIT "C" INSURANCE REQUIREMENTS
EXHIBIT "D" BUILDING RULES AND REGULATIONS
EXHIBIT "E" GUARANTY
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OFFICE LEASE
THIS OFFICE LEASE ("LEASE") is made between WHUB Real Estate Limited
Partnership, a Delaware limited partnership ("LANDLORD"), and the Tenant
described in Item 1 of the Basic Lease Provisions, as of June 28, 1996 (the
"DATE OF THIS LEASE").
LEASE OF PREMISES
Landlord hereby leases to Tenant and Tenant hereby hires from Landlord,
subject to all of the terms and conditions set forth herein, those certain
premises (the "PREMISES") described in Item 2 of the Basic Lease Provisions and
as shown in the cross-hatched markings in the floor plan attached hereto as
Exhibit "A". The Premises are located in that certain office building (the
"BUILDING") whose street address is 000 XXXXX XXXXXX, XXXXX XXXXXXX, XXXXXXXXXX
00000. The Building is located on that certain land (the "LAND") which is also
improved with landscaping, parking facilities and other improvements and
appurtenances. The Land, together with all such improvements and appurtenances
and the Building, are collectively referred to herein as the "PROJECT". However,
Landlord reserves the right to make such changes, additions and/or deletions to
the Land, the Building and the Project (except for the space within the
Premises) as it shall determine from time to time, provided that such changes,
additions, and/or deletions do not materially impair Tenant's use of the
Premises or its rights under this lease.
BASIC LEASE PROVISIONS
1. Tenant: STAR VENDING, INC.
a Nevada Corporation
2. Description of Premises: Suite: 202
(the Premises is shown cross-hatched on Exhibit "A")
Rentable Area: approximately 2,332 square feet (See Section 2.3)
3. Tenant's Proportionate Share of Excess Operating Costs: 10.6%
(See Section 2.2)
4. Initial Basic Annual Rent (See Section 2.1):
(a) Initial Basic Annual Rent: $53,169.60
(b) Initial Monthly Installment of Basic Annual Rent: $4,430.80
($1.90 per square foot of rentable area)
(c) Partial Lease Month Basic Annual Rent: $ * per day
* The current monthly rent, as of the date of the Partial
Lease Month calculation, divided by thirty (30). (e.g.,
numerator = currently monthly rent; denominator - thirty
(30)).
(d) Installment payable upon execution: $4,430.80
5. CPI Increase Limits (See Section 2.1(b)):
Maximum Yearly CPI Increase: N/A
Minimum Yearly CPI Increase: N/A
6. Security Deposit: NONE (See Section 4). If no guarantee, two (2)
months security deposit required
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7. Base Operating Costs: $6.21 (per square foot per year of rentable area)
(See Section 2.2)
8. (a) Initial Term: THREE (3) years and -0- months
(b) Options to extend the term: ONE OPTION FOR THREE (3) LEASE
YEARS (See Section 23)
9. Commencement Date: THE LATER OF AUGUST 1, 1996 OR THE DATE THAT CERTAIN
___________, DATED ___________, BY AND BETWEEN WHUB REAL ESTATE LIMITED
PARTNERSHIP (AS LANDLORD) AND STAR VENDING, INC. (AS TENANT) IS
TERMINATED.
10. Broker(s): PACIFICA COMMERCIAL REALTY (See Section 22.2)
11. Address for Notices (See Section 22.4):
To: Tenant
Prior to occupancy of the Premises: After occupancy of the Premises:
000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000 Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxx - President Attn: Xxxx Xxxxx - President
FAX: 000-000-0000 FAX: 000-000-0000
To: Landlord With a copy to:
WHUB Real Estate Limited Partnership WHUB Real Estate Limited Partnership
c/o X. X. Xxxxxx Companies c/o Pacific Commercial Realty
Two California Plaza 0000 Xxxxxxx Xxxxxx
000 Xxxxx Xxxxx Xxxxxx Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Forty-Sixth Floor FAX: (000) 000-0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
FAX: (000) 000-0000
12. All payments payable to Landlord under this Lease shall be sent to the
following address or to such other address as Landlord may designate.
WHUB Real Estate Limited Partnership
c/o Pacific Commercial Realty
0000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
FAX: (000) 000-0000
Attn: Xxxxx Xxxxx
13. Guarantor: _________________________________
IN WITNESS WHEREOF, the parties hereto have executed this Lease,
consisting of the foregoing Basic Lease Provisions, the provisions of the
Standard Lease Provisions (the "STANDARD LEASE PROVISIONS") (consisting of
Sections 1 through 23 which follow) and Exhibits "A" through "D", inclusive, all
of which are incorporated herein by this reference. In the event of any conflict
between the provisions of the Basic Lease Provisions and the
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provisions of the Standard Lease Provisions, the Standard Lease Provisions shall
control. Any initially capitalized terms used herein and not otherwise defined
shall have the meanings set forth in the Standard Lease Provisions.
"LANDLORD" "TENANT"
WHUB Real Estate Limited Partnership Star Vending, Inc.
a Delaware limited partnership a Nevada corporation
By: JER WHUB Services By:, Inc. By:________________________________
a Virginia corporation Xxxx Xxxxx
Its Managing General Partner Its President
By:_______________________________
Xxxxxxx X. XxXxxxx
Vice President
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STANDARD LEASE PROVISIONS
1. TERM
1.1 Unless earlier terminated in accordance with the provisions hereof,
the initial term of this Lease shall be the period shown in Item 8(a) of the
Basic Lease Provisions; provided, however, in the event the Commencement Date
(defined below) occurs on a date other than the first day of a calendar month,
there shall be added to the term the partial month (the "PARTIAL LEASE MONTH")
from the Commencement Date to the first day of the calendar month following the
Commencement Date. As used herein, "TERM" shall refer to the initial term
described in Item 8(a) of the Basic Lease Provisions and, provided the same is
duly exercised and commences, the Extension Term(s), if any, described in
Section 23.A.
1.2 Subject to the provisions of this Section 1, the term shall
commence the COMMENCEMENT DATE.
1.3 Landlord may deliver the Premises to Tenant prior to, on or after
the Target Commencement Date described in Item 9 of the Basic Lease Provisions.
Landlord shall use reasonable efforts to give Tenant at least seven (7) days'
notice of the date upon which, in Landlord's good faith opinion, the
Commencement Date shall occur; provided, however, that in the event the
Commencement Date is delayed or otherwise does not occur on the date specified,
or no such notice is given, this Lease shall not be void or voidable, the term
of this Lease shall not be extended, and Landlord shall not be liable to Tenant
for any loss or damage resulting therefrom. At any time during the term,
Landlord may deliver to Tenant Landlord's standard form document for Tenant's
acknowledgment and confirmation of the Commencement Date, the Lease expiration
date and such other Lease information and terms that Landlord deems desirable
for its business purposes, which form document Tenant shall execute and deliver
to Landlord within five (5) days of receipt thereof.
2. RENT; OPERATING COSTS; SQUARE FOOT SPECIFICATION
2.1 BASIC ANNUAL RENT
(a) Subject to the provisions of this Section 2.1, Tenant
agrees to pay during the Partial Lease Month and each Lease Year (defined below)
of the term of this Lease as Basic Annual Rent ("BASIC ANNUAL RENT") for the
Premises the sums shown for such periods in Item 4 of the Basic Lease Provisions
(which shall be increased annually pursuant to Section 2.1(b)). For purposes of
this Lease, a "LEASE YEAR" shall be each twelve (12) calendar month period
commencing on (i) the Commencement Date (or an anniversary thereof) if the
Commencement Date occurs on the first day of a month, or otherwise (ii) the
first day of the calendar month following the Commencement Date (or an
anniversary thereof).
(b) Basic Annual Rent shall increase (but never decrease) once
each year, as of the first day of the second Lease Year and as of the first day
of each Lease Year thereafter (each an "ADJUSTMENT DATE") by an amount
proportionate to the percentage increase, if any, in the CPI Index (defined
below) between the calendar month prior to such Adjustment Date and the calendar
month thirteen (13) months prior to such Adjustment Date; provided, however,
that in no case shall any such increase be more than the Maximum Yearly CPI
increase set forth in Item 5 of the Basic Lease Provisions or less than the
Minimum Yearly CPI Increase set forth in Item 5 of the Basic Lease Provisions.
"CPI INDEX" means the Consumer Price Index for All Urban Consumers, All Items
(1982-84=100) for Los Angeles-Anaheim-Riverside, as published by the United
States Department of Labor, Bureau of Labor Statistics. If the CPI Index is no
longer published or for other mutually agreeable good faith reasons the consumer
price index procedure set forth herein is not satisfactory, Landlord and Tenant,
may adopt a substitute Index or procedure which reasonably reflects consumer
price increases for the Lease Year(s) at issue.
(c) Except as expressly provided to the contrary herein, Basic
Annual Rent shall be payable in equal consecutive monthly installments, in
advance, without deduction or offset, commencing on the Commencement Date and
continuing on the first day of each calendar month thereafter. The first full
monthly
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installment of Basic Annual Rent, described in Item 4(a) of the Basic Lease
Provisions, shall be payable upon Tenant's execution of this Lease. If the
Commencement Date is a day other than the first day of a calendar month, then
the Rent (defined below) for the Partial Lease Month (the "PARTIAL LEASE MONTH
RENT") shall be calculated on the per diem basis shown therefor in Item 4(a) of
the Basic Lease Provisions for the number of days between (but including) the
Commencement Date and the first day of the next calendar month. The Partial
Lease Month Rent shall be payable by Tenant prior to the date that Tenant takes
possession or commences use of the Premises for any business purpose (including
moving in). Basic Annual Rent, all forms of additional rent payable hereunder by
Tenant and all other amounts, fees, payments or charges payable hereunder by
Tenant shall (i) each constitute rent payable hereunder (and shall sometimes
collectively be referred to herein as "RENT"), (ii) be payable to Landlord when
due without any prior demand therefor in lawful money of the United States and,
except as may be expressly provided to the contrary herein, without any offset
or deduction whatsoever, and (iii) be payable to Landlord at the address
described in Item 12 of the Basic Lease Provisions or to such other person or to
such other place as Landlord may from time to time designate in writing to
Tenant.
2.2 OPERATING COSTS.
(a) Subject to the provisions of this Lease, if Operating
Costs (defined below) for the Project for any calendar year all or any portion
of which occurs during the term of this Lease (an "EXPENSE YEAR") exceed Base
Operating Costs (defined below), Tenant shall pay to Landlord pursuant to this
Section 2.2 as additional rent an amount equal to Tenant's Proportionate Share
(defined below) of such excess. "TENANT'S PROPORTIONATE SHARE" is, subject to
the provisions of this Section 2.2, the percentage number described in Item 3 of
the Basic Lease Provisions. Tenant's Proportionate Share represents a fraction,
the numerator of which is the number of square feet of rentable area in the
Premises specified in Item 2 of the Basic Lease Provisions and the denominator
of which is the number of square feet of rentable area in the Project as
reasonably determined by Landlord. "BASE OPERATING COSTS," during the term of
this Lease, including, without limitation, any Extension Term, equals the
product of (i) the amount specified in Item 7 of the Basic Lease Provisions and
(ii) the number of square feet of rentable area contained in the Project, as
reasonably determined by Landlord.
(b) "OPERATING COSTS" means all costs, expenses and
obligations incurred or payable by Landlord because of or in connection with the
operation, ownership, repair, replacement, restoration, management or
maintenance of the Project during or allocable to any Expense Year during the
term of this Lease, all as determined by sound accounting principles selected by
Landlord, consistently applied, including without limitation the following:
(i) All real property taxes, assessments, charges or
impositions and other similar governmental ad valorem or other charges
levied on or attributable to the Project or its ownership, operation or
transfer, and all taxes, charges, assessments or similar impositions
imposed in lieu or substitution (partially or totally) of the same
(collectively, "REAL ESTATE TAXES"). "REAL ESTATE TAXES" shall also
include all taxes, assessments, levies, charges or impositions (A) on
any interest of Landlord or any mortgagee of Landlord in the Project,
the Premises or in this Lease, or on the occupancy or use of space in
the Project or the Premises; (B) on the gross or net rentals or income
from the Project, including, without limitation, any gross income tax,
excise tax, sales tax or gross receipts tax levied by any federal,
state or local governmental entity with respect to the receipt of Rent;
or (D) any possessory taxes charged or levied in lieu of real estate
taxes; and
(ii) The cost of all utilities, supplies, equipment,
tools, materials, service contracts, janitorial services, waste and
refuse disposal, landscaping, and insurance (with the nature and extent
of such insurance to be carried by Landlord to be determined by
Landlord in its sole and absolute discretion); compensation and other
fringe benefits of all persons who perform services connected with the
operation, maintenance or repair of the Project (provided, however,
that if any of such persons provide services for more than one building
of Landlord, only the prorated portion of those person's wages,
salaries, other compensation, benefits, and taxes reflecting the
percentage of their monthly time devoted to the Project shall be
included in Operating Costs); personal property taxes on and
maintenance and repair of equipment and other personal property, costs
incurred for administration and management of the Project, whether by
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Landlord or by an independent contractor, and other management office
operational expenses (including, without limitation, a management fee),
rental expenses for or a reasonable allowance for depreciation of,
personal property used in the operation, maintenance or repair of the
Project, license, permit and inspection fees; and all inspections,
activities, alterations and improvements or other matters required by
any governmental or quasi-governmental authority or by applicable law,
for any reason, including, without limitation, capital improvements,
whether capitalized or not; all capital improvements made to the
Project or any portion thereof by Landlord (A) of a personal property
nature and related to the operation, repair, maintenance or replacement
of systems, facilities, equipment or components of, or which service
the Project or portions thereof, (B) required or provided in connection
with any law, ordinance, rule or regulation (not required when building
permits for the building were obtained), (C) which are designed to
improve the operating efficiency of the Project, or (D) determined by
Landlord to be required to keep pace or be consistent with safety or
health advances or improvements (with such capital costs to be
amortized over such periods as Landlord shall determine with a return
on capital at such rate as would have been paid by Landlord on funds
borrowed for the purpose of constructing such capital improvements);
common area repair, resurfacing, replacement operation and maintenance;
security services, if any, deemed appropriate by Landlord, and any
other cost or expense incurred or payable by Landlord in connection
with the operation, ownership, repair, replacement, restoration,
management or maintenance of the Project.
(c) Operating Costs for any Expense Year during which actual
occupancy of the Project is less than ninety-five percent (95%) of the rentable
area of the Project shall be appropriately adjusted, in accordance with sound
accounting principles, to reflect ninety-five percent (95%) occupancy of the
existing rentable area of the Project during such period.
(d) Prior to the commencement of (and from time to time
during) each calendar year of the term following the Commencement Date, Landlord
shall have the right to give to Tenant a written estimate of Tenant's
Proportionate Share of the projected excess, if any, of the Operating Costs for
the Project for such year over the Base Operating Costs. Commencing with the
first day of the calendar month following the month in which such estimate was
delivered to Tenant, Tenant shall pay such estimated amount (less amounts, if
any, previously paid toward such excess for such year) to Landlord in equal
monthly installments over the remainder of such calendar year, in advance on the
first day of each month during such year (or remaining months, if less than all
of the year remains). Subject to the provisions of this Lease, Landlord shall
endeavor to furnish to Tenant within a reasonable period after the end of each
calendar year (but not later than 180 days), a statement (a "RECONCILIATION
STATEMENT") indicating to reasonable detail the excess of Operating Costs over
Base Operating Costs for such period and the parties shall, within thirty (30)
days thereafter, make any payment or allowance necessary to adjust Tenant's
estimated payments to Tenant's actual share of such excess as indicated by such
annual Reconciliation Statement. Any payment due Landlord shall be payable by
Tenant within ten (10) days of demand from Landlord. Any amount due Tenant shall
be credited against installments next becoming due under this Section 2.2(d).
(e) Tenant shall pay ten (10) days before delinquency all
taxes and assessments levied against any personal property or trade fixtures of
Tenant in or about the Premises. If any such taxes or assessments are levied
against Landlord or Landlord's property or if the assessed value of the Project
is increased by the inclusion therein of a value placed upon such personal
property or trade fixtures, Tenant shall, within ten (10) days of demand,
reimburse Landlord for the taxes and assessments so levied against Landlord, or
any such taxes, levies and assessments resulting from such increase in assessed
value.
(f) Any delay or failure of Landlord in (i) delivering any
estimate or statement described in this Section 2.2, or (ii) computing or
billing Tenant's Proportionate Share of excess Operating Costs shall not
constitute a waiver of its right to subsequently deliver such estimate or
statement, require any increase in Rent contemplated by this Section 2.2, or in
any way waive or impair the continuing obligations of Tenant under this Section
2.2. Without limiting the generality of the foregoing, Landlord may at any time
during the term hereof recalculate and correct the amounts of Tenant's
Proportionate Share of excess Operating Costs applicable to any Expense Year
during the term, and Tenant shall pay any amount so recalculated or corrected
within ten (10) days of demand by Landlord. Tenant waives the right to dispute
or contest, and shall have no right to dispute or contest, any matter relating
to the calculation of Operating Costs or other forms of Rent under this Section
2.2 with respect
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to each Expense Year for which a Reconciliation Statement is given to Tenant if
no claim or dispute with respect thereto is asserted by Tenant in writing to
Landlord within one hundred eighty (180) days of delivery to Tenant of the
original or most recent Reconciliation Statement with respect thereto.
2.3 SQUARE FOOTAGE SPECIFICATION. The parties agree that for all
purposes hereunder the Premises shall be stipulated to contain the number of
square feet of rentable area described in Item 2 of the Basic Lease Provisions.
2.4 BOOKS AND RECORDS. Landlord shall keep at its principal place of
business full, accurate and separate books of account covering Landlord's
Operating Costs. Landlord's statements to Tenant shall accurately reflect the
total Operating Costs shown on such books of account. Landlord shall retain such
books of account for at least six (6) months after Landlord's delivery to Tenant
of the Reconciliation Statement. Tenant shall have the right at reasonable times
during the term of this lease to inspect such books of account.
3. DELINQUENT PAYMENT; HANDLING CHARGES. In the event Tenant is more than five
(5) days late in paying any amount of Rent or any other payment due under this
Lease, Tenant shall pay Landlord, within ten (10) days of Landlord's written
demand therefor, a late charge equal to five percent of the delinquent amount.
Following the occurrence of three instances of payment of Rent more than ten
(10) days late in any twelve (12) month period, Landlord may, without prejudice
to any other rights or remedies available to it, upon written notice to Tenant,
require that all remaining monthly installments of Rent payable under this Lease
shall be payable by cashier's check three (3) months in advance. In addition,
any amount due from Tenant to Landlord hereunder which is not paid within thirty
(30) days of the date due shall bear interest at an annual rate (the "DEFAULT
RATE") equal to ten percent (10%).
4. SECURITY DEPOSIT. Contemporaneously with the execution of this Lease, Tenant
shall pay to Landlord the amount of Security Deposit specified in Item 6 of the
Basic Lease Provisions, which shall be held by Landlord to secure Tenant's
performance of its obligations under this Lease. The Security Deposit is not an
advance payment of Rent or a measure or limit of Landlord's damages upon a
default by Tenant or an Event of Default (defined in Section 15). If Tenant
defaults with respect to any provision of this Lease, Landlord may, but shall
not be required to, use, apply or retain all or any part of the Security Deposit
(a) for the payment of any Rent or any other sum in default, (b) for the payment
of any other amount which Landlord may spend or become obligated to spend by
reason of such default by Tenant, and (c) to compensate Landlord for any other
loss or damage which Landlord may suffer by reason of such default by Tenant. If
any portion of the Security Deposit is so used or applied, Tenant shall, upon
demand therefor by Landlord, deposit with Landlord cash in an amount sufficient
to restore the Security Deposit to the amount required to be maintained by
Tenant hereunder. Upon expiration or the sooner termination of this Lease,
provided that Tenant has performed all of its obligations hereunder, Landlord
shall return to Tenant the remaining portion of the Security Deposit no later
than two weeks after the date Landlord receives possession of the Premises in
accordance with the provisions of this Lease. The Security Deposit may be
commingled by Landlord with Landlord's other funds, and no interest shall be
paid thereon. If Landlord transfers its interest in the Premises, then Landlord
may assign the Security Deposit to the transferee and thereafter Landlord shall
have no further liability or obligation for the return of the Security Deposit.
Tenant hereby waives the provisions of Section 1950.7 of the California Civil
Code, and all other provisions of Law, now or hereinafter in force, which
restricts the amount or types of claim that a landlord may make upon a security
deposit or imposes upon a landlord (or its successors) any obligation with
respect to the handling or return of security deposits.
5. LANDLORD'S OBLIGATIONS.
5.1 SERVICES. Subject to the provisions of this Lease, Landlord shall
furnish to Tenant during the term (a) city or utility company water at those
points of supply provided for general use of the tenants of the Building; (b)
subject to mandatory and voluntary governmental laws, rules and regulations,
heating and air conditioning during Business Hours (defined below) at such
temperatures and in such amounts as Landlord determines is appropriate for
normal comfort for normal office use in the Premises; (c) janitorial services to
the Premises on weekdays, other than on Holidays (defined below), for
Building-standard installations; (d) nonexclusive passenger elevator service;
and (e) adequate electrical current during Business Hours for equipment that
does not require more
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than 110 volts and whose electrical energy consumption does not exceed normal
office usage in a premises of the size of the Premises, as determined by
Landlord. If Tenant desires any of the services specified in this Section 5.1 at
any time (i) other than between 8:00 a.m. and 6:00 p.m. on weekdays, 9:00 a.m.
to 12:00 p.m. on Saturday, other than on Holidays ("BUSINESS HOURS") or (ii) on
Sunday or holidays observed by Landlord ("HOLIDAYS"), then such services shall
be supplied to Tenant upon the written request of Tenant delivered to Landlord
in accordance with such advance deadlines as Landlord shall specify from time to
time, and Tenant shall pay to Landlord, Landlord's then customary charge for
such services within ten (10) days after Landlord has delivered to Tenant an
invoice therefor.
5.2 EXCESS UTILITY USE. Landlord shall not be required to furnish
electrical current for and Tenant shall not install or use, without Landlord's
prior written consent, any equipment (a) that requires more than 110 volts, (b)
whose operation is in excess of, or inconsistent with, the capacity of the
Building (or existing feeders and risers to, or wiring in, the Premises) or (c)
whose electrical energy consumption exceeds normal office usage or three (3)
xxxxx of connected load per usable square foot during Business Hours ("STANDARD
USAGE"). Subject to the provisions of this Section 5.2, if Tenant's consumption
of electricity exceeds the electricity to be provided by Landlord above or
Standard Usage, Tenant shall pay to Landlord Landlord's then customary charge
for such excess consumption within ten (10) days after Landlord has delivered to
Tenant an invoice therefor.
5.3 RESTORATION OF SERVICES. Following receipt of Tenant's request to
do so, Landlord shall use good faith efforts to restore any service specifically
to be provided under Section 5.1 that becomes unavailable and which is in
Landlord's reasonable control to restore; provided, however, that in no case
shall the unavailability of such services or any other service (or any
diminution in the quality or quantity thereof) render Landlord liable to Tenant
or any person using or occupying the Premises under or through Tenant
(including, without limitation, any contractor, employee, agent or visitor of
Tenant) (each, a "TENANT PARTY") for any damages caused thereby, constitute a
constructive eviction of Tenant, constitute a breach of any implied warranty by
Landlord, or entitle Tenant to any abatement of Tenant's rental obligations
hereunder.
6. IMPROVEMENTS, ALTERATIONS, REPAIRS AND MAINTENANCE.
6.1 IMPROVEMENTS; ALTERATIONS. Any alterations, additions, deletions,
modifications or utility installations in, of or to the improvements contained
within the Premises as of the date hereof (collectively, "ALTERATIONS") shall be
installed at Tenant's expense and only in accordance with reasonably detailed
plans and specifications which have been previously submitted to and approved in
writing by Landlord. No Alterations in or to the Premises may be made without
(a) Landlord's prior written consent, which consent shall not unreasonably be
withheld, and (b) compliance with such nondiscriminatory requirements concerning
such Alterations as Landlord may impose from time to time. Landlord may withhold
its consent in its sole discretion to any Alteration that may affect the
Building's structure or its HVAC, plumbing, telecommunications, elevator,
life-safety, electrical, mechanical or other basic systems or the appearance of
the interior common areas or exterior of the Project. All Alterations made in or
upon the Premises shall, (i) at Landlord's option, either be removed by Tenant
prior to the end of the term (and Tenant shall restore the portion of the
Premises affected to its condition existing immediately prior to such
Alteration), or shall remain on the Premises at the end of the term and (ii) be
constructed, maintained, and used by Tenant, at its risk and expense, in
accordance with all Laws. In the event that any Alteration made or initiated by
Tenant shall cause, trigger or result in any portion of the Project outside of
the Premises, any portion of the Building's Shell and core improvements
(including restrooms, if any) within the Premises or any Building system inside
or outside of the Premises being required by any governmental authority to be
altered or removed, Landlord shall perform the same at Tenant's expense and
shall charge the entire cost of such work, plus an administrative charge of ten
percent (10%) thereof, to Tenant.
6.2 REPAIRS AND MAINTENANCE.
6.2.1 Landlord shall repair and maintain in good condition (a)
all structural portions of the Premises, (b) all systems and equipment
(including plumbing, HVAC, electrical, fire/life safety, elevator and security
systems) that serve the entire building or portions of the building other than
simply the Premises, (c) the structural components of the Building, (d) the
exterior portion of the Building and the Project, and (e) all common
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areas located in the Building, or in or on the land. The cost of Landlord's
repair and maintenance as noted above shall be included in the operating costs
for the Project.
6.2.2 Tenant shall maintain at all times during the term the Premises
and all portions and components of the improvements and systems contained
therein in a good, clean, safe, and operable condition, and shall not permit or
allow to remain any waste or damage to any portion of the Premises. Tenant shall
repair or replace, as needed, subject to Landlord's direction and supervision,
any damage to the Building or the Project caused by Tenant or any Tenant Party.
If any such damage occurs outside of the Premises or relates to any Building
system, then Landlord may elect to repair such damage at Tenant's expense,
rather than having Tenant repair such damage. The cost of all repair or
replacement work performed by Landlord under this Section 6.2, plus an
administrative charge of ten percent (10%) thereof, shall be paid by Tenant to
Landlord. Tenant hereby waives all common law and statutory rights or provisions
inconsistent herewith, whether now or hereinafter in effect (including, without
limitation, Sections 1941, 1941.1, and 1941.2 of the California Civil Code, as
amended from time to time).
6.3 MECHANIC'S LIENS. Tenant shall not cause, suffer or permit any
mechanic's or materialman's lien, claim, or stop notice to be filed or asserted
against the Premises, the Building or any funds of Landlord for any work
performed, materials furnished, or obligation incurred by or at the request of
Tenant or any Tenant Party. If any such lien, claim or notice is filed or
asserted, then Tenant shall, within ten (10) days after Landlord has delivered
notice of the same to Tenant, either (a) pay and satisfy in full the amount of
the lien or notice or (b) diligently contest the same and deliver to Landlord a
bond or other security therefor in substance and amount (and issued by an
issuer) satisfactory to Landlord.
7. USE. Tenant shall continuously occupy and use the Premises only for general
office use or uses incidental thereto, all of which shall be consistent with the
standards of a first class office project (the "PERMITTED USE") and shall
comply, at Tenant's expense, with all Laws relating to the use, condition,
alteration, improvement, access to, and occupancy of the Premises to the extent
that such laws relate to or are triggered by (a) Tenant's particular use of the
Premises, (b) the Tenant Improvements located on the Premises, or (c) any
Alterations located on the Premises. Should any Law, standard or regulation now
or hereafter be imposed on Tenant or Landlord by any governmental body
concerning occupational, health or safety standards for employers, employees, or
tenants, then Tenant agrees, at its sole cost and expense, to comply promptly
with such Laws, standards or regulations to the extent that such laws relate to
or are triggered by (a) Tenant's particular use of the Premises, (b) the Tenant
Improvements located on the Premises, or (c) any Alterations located on the
Premises. Tenant shall conduct its business and shall cause each Tenant Party to
act in such a manner as to (a) not release or permit the release of any
Hazardous Material in, under on or about the Project or (b) not create any
nuisance or unreasonable interference with or disturbance of other tenants of
the Project or Landlord in its management of the Project. "HAZARDOUS MATERIAL"
means any hazardous, explosive, radioactive or toxic substance, material or
waste which is or becomes regulated by any local governmental authority, the
state in which the Project is located, or the United States, including, without
limitation, any material or substance which is (i) defined or listed as a
"hazardous waste," "extremely hazardous waste," "restricted hazardous waste,"
"hazardous substance," "hazardous material," "pollutant" or "contaminant" under
any Law, (ii) petroleum or a petroleum derivative, (iii) a flammable explosive,
(iv) a radioactive material, (v) a polychlorinated biphenyl, (vi) asbestos or an
asbestos derivative, or (vii) a carcinogen.
8. ASSIGNMENT AND SUBLETTING
8.1 TRANSFERS; CONSENT. Tenant shall not, without the prior written
consent of Landlord, (a) assign, transfer, mortgage, hypothecate, or encumber
this Lease or any estate or interest herein, whether directly, indirectly or by
operation of law, (b) permit any other entity to become a Tenant hereunder by
merger, consolidation, or other reorganization, (c) if Tenant is a corporation,
partnership, limited liability company, limited liability partnership, trust,
association or other business entity (other than a corporation whose stock is
publicly traded), permit, directly or indirectly, the transfer of any ownership
interest in Tenant so as to result in (i) a change in the current control of
Tenant or (ii) a transfer of twenty-five percent (25%) or more in the aggregate
in any twelve (12) month period in the beneficial ownership of such entity, (d)
sublet any portion of the Premises, (e) grant any license, concession, or other
right of occupancy of or with respect to any portion of the Premises, or (f)
permit the use of the Premises by
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any party other than Tenant or a Tenant Party (each of the events listed in this
Section 8.1 being referred to herein as a "TRANSFER"). If Tenant requests
Landlord's consent to any Transfer, then concurrently with such request, Tenant
shall provide Landlord with a written description of all terms and conditions of
the proposed Transfer and all consideration therefor (including a calculation of
the Transfer Profits described below), copies of the proposed documentation, and
the following information about the proposed transferee: name and address;
information reasonably satisfactory to Landlord about the proposed transferee's
business and business history; its proposed use of the Premises; banking,
financial, and other credit information; and general references sufficient to
enable Landlord to determine the proposed transferee's creditworthiness and
character. Landlord shall not unreasonably withhold its consent to any
assignment or subletting of the Premises, provided that the parties agree that
it shall be reasonable for Landlord to withhold any such consent if Landlord
determines in good faith that (A) the proposed transferee is not of a reasonable
financial standing or is not creditworthy, (B) the proposed transferee has the
power of eminent domain, is a governmental agency or an agency or part of a
foreign government, (C) the proposed transferee, or any affiliate thereof, is
then an occupant in the Project or has engaged in discussions with Landlord
concerning a lease of direct space in the Project, or (D) the proposed Transfer
would result in a breach of any obligation of Landlord or permit any other
tenant in the Project to terminate or modify its lease. Landlord may withhold
its consent to any other form of Transfer in its sole and absolute discretion.
Any Transfer made without Landlord's consent shall be void and at Landlord's
election, shall constitute an Event of Default by Tenant. Tenant shall also
reimburse Landlord immediately upon demand therefor for all of its reasonable
attorneys' fees and other costs incurred in connection with considering any
request for consent to a proposed Transfer. If Landlord consents to a proposed
Transfer, then the proposed transferee shall deliver to Landlord a written
agreement whereby the proposed transferee expressly assumes the Tenant's
obligations hereunder. Landlord's consent to a Transfer shall not release Tenant
from its obligations under this Lease, but rather Tenant and its transferee
shall be jointly and severally liable for all obligations under this Lease
allocable to the space subject to such Transfer. Landlord's consent to any
Transfer shall not waive Landlord's rights as to any subsequent Transfers.
Tenant hereby waives any suretyship defenses it may have to an action brought by
Landlord including those contained in Sections 2809, 2810, 2819, 2839, 2849,
2855, 2899 and 3433 of the California Civil Code, as now or hereafter amended,
or similar Laws of like import.
8.2 CANCELLATION AND RECAPTURE. Landlord may in its sole and absolute
discretion, within sixty (60) days after submission of Tenant's written request
for Landlord's consent to an assignment or subletting, cancel this Lease as to
the portion of the Premises proposed to be assigned or sublet as of the date
such proposed Transfer is proposed to be effective and, thereafter, Landlord may
lease such portion of the Premises to the prospective transferee (or to any
other person or entity or not at all) without liability to Tenant. If Landlord
shall not cancel this Lease within such sixty-day period and notwithstanding any
Landlord consent to the proposed Transfer, Tenant shall pay to Landlord,
immediately upon receipt thereof, the entire excess ("TRANSFER PROFITS") of all
compensation, key money and other consideration paid to or for the benefit of
Tenant (or any affiliate thereof) for a Transfer.
9. INSURANCE, WAIVERS, SUBROGATION AND INDEMNITY
9.1 INSURANCE. Tenant shall maintain throughout the term each of the
insurance policies described on Exhibit "C" attached hereto and shall otherwise
comply with each and all of the obligations and requirements provided on Exhibit
"C."
9.2 WAIVER OF NEGLIGENCE; NO SUBROGATION. Landlord and Tenant each
waives any claim, loss and cost it might have against the other for any injury
to or death of any person or persons or damage to or theft, destruction, loss,
or loss of use of any property (a "LOSS"), to the extent the same is insured
against under any insurance policy that covers the Building, the Premises,
Landlord's or Tenant's fixtures, personal property, leasehold improvements, or
business, or, in the case of Tenant's waiver, is required to be insured against
under the terms hereof, regardless of whether the negligence of the other party
caused such loss; however, such shall not include any deductible amounts on
insurance policies carried by the party required by this lease to obtain such
insurance or apply to any coinsurance penalty which such party may sustain. Each
party shall cause its insurance carrier to endorse all applicable policies
waiving the carrier's rights of recovery under subrogation or otherwise against
the other party.
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9.3 INDEMNITY. Subject to Section 9.2, Tenant shall indemnify, defend
and hold Landlord, X.X. Xxxxxx Companies and each of their respective parents,
shareholders, partners, lenders, contractors, affiliates and employees
(collectively, "LANDLORD INDEMNITEES") from and against all claims, demands,
proceedings, losses, obligations, liabilities, causes of action, suits,
judgments, damages, penalties, costs and expenses (including, without
limitation, attorneys' fees and court costs) (collectively "CLAIMS, LOSSES AND
COSTS") arising from or asserted in connection with (a) any act, event or
occurrence in or about the Premises or (b) Tenant's breach of any of its
covenants under this Lease or (c) the use or occupancy of the Premises by Tenant
or any Tenant Party, or (d) any act, omission, negligence or misconduct of
Tenant, or of any Tenant Party in or about the Premises, excluding any injury or
damages caused by the willful misconduct or gross negligence of Landlord or a
Landlord Indemnitee. This Section 9 shall survive termination or expiration of
this Lease.
10. SUBORDINATION; ATTORNMENT; NOTICE TO LANDLORD'S MORTGAGEE
10.1 SUBORDINATION. This Lease is subject and subordinate to all
present and future ground or master leases of the Project and to the lien of all
mortgages or deeds of trust (collectively, "SECURITY INSTRUMENTS") now or
hereafter encumbering the Project, if any, and to all renewals, extensions,
modifications, consolidations and replacements thereof, and to all advances made
or hereafter to be made upon the security of any such Security Instruments,
unless the holders of any such mortgages or deeds of trust, or the lessors under
such ground or master leases (such holders and lessors are sometimes
collectively referred to herein as "HOLDERS") require in writing that this Lease
be superior thereto. Notwithstanding any provision of this Section 10 to the
contrary, any Holder of any Security Instrument may at any time subordinate the
lien of its Security Instrument to this Lease without obtaining Tenant's consent
by giving Tenant written notice of such subordination, in which event this Lease
shall be deemed to be senior to the Security Instrument in question. Tenant
shall, within five (5) days of request to do so by Landlord, execute,
acknowledge and deliver to Landlord such further instruments or assurances as
Landlord may deem necessary or appropriate to evidence or confirm the
subordination or superiority of this Lease to any such Security Instrument.
Tenant hereby irrevocably authorizes Landlord to execute and deliver in the name
of Tenant any such instrument or instruments if Tenant fails to do so within
said five-day period.
10.2 ATTORNMENT. Tenant covenants and agrees that in the event that any
proceedings are brought for the foreclosure of any mortgage or deed of trust, or
if any ground or master lease is terminated, it shall attorn, without any
deductions or set-offs whatsoever, to the purchaser upon any such foreclosure
sale, or to the lessor of such ground or master lease, as the case may be, if so
requested to do so by such purchaser or lessor, and to recognize such purchaser
or lessor as "Landlord" under this Lease. If requested, Tenant shall enter into
a new lease with that successor on the same terms and conditions as are
contained in this Lease (for the unexpired portion of the Lease term then
remaining).
10.3 NOTICE TO LANDLORD'S MORTGAGEE. Tenant shall not seek to enforce
any remedy it may have for any default on the part of the Landlord under this
Lease without first giving written notice by certified mail, return receipt
requested, specifying the default in reasonable detail, to any Holder of a
Security Instrument whose address has been given to Tenant, and affording such
Holder a reasonable opportunity (which shall be not less than sixty (60) days)
to perform Landlord's obligations hereunder.
11. RULES AND REGULATIONS. Tenant shall comply, and shall cause each Tenant
Party to comply, with the Rules and Regulations of the Building which are
attached hereto as Exhibit "D," and all such reasonable modifications,
additions, deletions and amendments thereto as Landlord shall adopt in good
faith from time to time.
12. CONDEMNATION. If the entire Project or Premises are taken by right of
eminent domain or conveyed by Landlord in lieu thereof (a "TAKING"), this Lease
shall terminate as of the date of the Taking. If any part of the Project becomes
subject to a Taking and such Taking will prevent Tenant from conducting its
business in the Premises in a manner reasonably comparable to that conducted
immediately before such Taking for a period of more than one hundred eighty
(180) days, then Tenant may terminate this Lease as of the date of such Taking
by giving written notice to Landlord within thirty (30) days after the Taking,
and all Rent paid or payable hereunder shall be apportioned between Landlord and
Tenant as of the date of such Taking. If any material portion, but less than
all, of the Building or the Premises becomes subject to a Taking, or if Landlord
is required to pay any of the
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proceeds received for a Taking to any Holder of any Security Instrument, then
Landlord may terminate this Lease by delivering written notice thereof to Tenant
within thirty (30) days after such Taking, and all Rent paid or payable
hereunder shall be apportioned between Landlord and Tenant as of the date of
such Taking. If Tenant does not so terminate this Lease, then Basic Annual Rent
thereafter payable hereunder shall be abated for the duration of the Taking in
proportion to that portion of the Premises rendered untenantable by such Taking.
If any Taking occurs, then Landlord shall receive the entire award or other
compensation for the land on which the Building is situated, the Building, and
other improvements taken, and Tenant may separately pursue a claim (to the
extent it will not reduce Landlord's award) against the condemnor for the value
of Tenant's personal property which Tenant is entitled to remove under this
Lease and moving and relocation costs. Landlord and Tenant agree that the
provisions of this Section 12 and the remaining provisions of this Lease shall
exclusively govern the rights and obligations of the parties with respect to any
Taking of any portion of the Premises, the Building, the Project or the land on
which the Building is located, and Landlord and Tenant hereby waive and release
each and all of their respective common law and statutory rights inconsistent
herewith, whether now or hereinafter in effect (including, without limitation,
Section 1265.130 of the California Code of Civil Procedure, as amended from time
to time).
13. FIRE OR OTHER CASUALTY.
13.1 REPAIR ESTIMATE; RIGHT TO TERMINATE. If all or any portion of the
Premises, the Building or the Project is damaged by fire or other casualty (a
"CASUALTY"), Landlord shall, within ninety (90) days after actual discovery of
such Casualty or damage, deliver to Tenant its good faith estimate (the "DAMAGE
NOTICE") of the time period following such notice needed to repair the damage
caused by such Casualty. Landlord may elect to terminate this Lease in any case
where (a) any portion of the Premises or a material portion of the Project are
damaged and (b) either (i) Landlord estimates in good faith that the repair and
restoration of such damage under Section 13.2 ("RESTORATION") cannot reasonably
be completed (without the payment of overtime) within two hundred ten (210) days
of Landlord's actual discovery of such damage, (ii) the Holder of any Security
Instrument requires the application of any insurance proceeds with respect to
such Casualty to be applied to the outstanding balance of the obligation secured
by such Security Instrument, (iii) the cost of such Restoration is not fully
covered by insurance proceeds available to Landlord and/or payments received by
Landlord from tenants, or (iv) Tenant shall be entitled to an abatement of rent
under this Section 13 for any period of time in excess of thirty-three percent
(33%) of the remainder of the term. Such right of termination shall be
exercisable by Landlord by delivery of written notice to Tenant at any time
following the Casualty until forty-five (45) days following the later of (A)
delivery of the Damage Notice or (B) Landlord's discovery or determination of
any of the events described in clauses (i) through (iv) of the preceding
sentence and shall be effective upon delivery of such notice of termination (or
if Tenant has not vacated the Premises, upon the expiration of thirty (30) days
thereafter).
13.2 REPAIR OBLIGATION; ABATEMENT OF RENT. Subject to the provisions of
Section 13.1, Landlord shall, within a reasonable time after the discovery by
Landlord of any damage resulting from a Casualty, begin to repair the damage to
the Building and the Premises resulting from such Casualty and shall proceed
with reasonable diligence to restore the Building and the Premises to
substantially the same condition as existed immediately before such Casualty,
except for modifications required by applicable Laws or covenants, conditions
and restrictions, and modifications to the Building or the Project reasonably
deemed desirable by Landlord; provided, however, that Landlord shall not be
required to repair or replace any of the Alterations, furniture, equipment,
fixtures, and other improvements which may have been placed by, or at the
request of, Tenant or other occupants in the Building or the Premises. Landlord
shall have no liability for any inconvenience or annoyance to Tenant or injury
to Tenant's business as a result of any Casualty, regardless of the cause
therefor. Basic Annual Rent, and Additional Rent payable under Section 2.2,
shall xxxxx if and to the extent a Casualty damages the Premises or common areas
in the Project required and essential for access thereto and as a result thereof
all or a material portion of the Premises are rendered unfit for occupancy, and
are not occupied by Tenant, for the period of time commencing on the date Tenant
vacates the portion of the Premises affected on account thereof and continuing
until the date the Restoration with respect to the Premises (and/or required
common areas) is substantially complete, as determined by Landlord's architect;
provided, however, that such abatement shall be limited to the proceeds of
rental interruption insurance proceeds with respect to the Premises and such
Casualty collected by Landlord. Landlord and Tenant agree that the provisions of
this Section 13 and the remaining provisions of this Lease shall exclusively
govern the rights and obligations of the parties with respect to any and all
damage to, or destruction of, all or any portion of the Premises
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or the Project, and Landlord and Tenant hereby waive and release each and all of
their respective common law and statutory rights inconsistent herewith, whether
now or hereinafter in effect (including, without limitation, Sections 1932(2)
and 1933(4) of the California Civil Code, as amended from time to time).
14. PARKING. Tenant shall have the right to the nonexclusive use of the parking
facilities of the Project for the parking of motor vehicles used by Tenant, its
officers and employees only. The use of such parking facilities shall be subject
to such reasonable rules and regulations as are adopted by Landlord from time to
time for the use of such facilities.
15. EVENTS OF DEFAULT. Each of the following occurrences shall be an "EVENT OF
DEFAULT" and shall constitute a material default and breach of this Lease by
Tenant: (a) any failure by Tenant to pay any installment of Basic Annual Rent or
to make any other payment required to be made by Tenant hereunder when due,
where such failure continues for five (5) days after delivery of written notice
of such failure by Landlord to Tenant; (b) the abandonment or vacation of the
Premises by Tenant; (c) any failure by Tenant to execute and deliver any
estoppel certificate or other document or instrument described in Section 22.3
or Section 10 requested by Landlord, where such failure continues for five (5)
days after delivery of written notice of such failure by Landlord to Tenant; (d)
any failure by Tenant to fully perform any other obligation of Tenant under this
Lease, where such failure continues for thirty (30) days (except where a shorter
period of time is specified in this Lease, in which case such shorter time
period shall apply) after delivery of written notice of such failure to Tenant;
(e) the voluntary or involuntary filing of a petition by or against Tenant or
any general partner of Tenant (i) in any bankruptcy or other insolvency
proceeding, (ii) seeking any relief under any state or federal debtor relief
law, (iii) for the appointment of a liquidator or receiver for all or
substantially all of Tenant's property or for Tenant's interest in this Lease,
or (iv) for the reorganization or modification of Tenant's capital structure
(provided, however, that if such a petition is filed against Tenant, then such
filing shall not be an Event of Default unless Tenant fails to have the
proceedings initiated by such petition dismissed within sixty (60) days after
the filing thereof); (f) the default of any guarantor of Tenant's obligations
hereunder under any guaranty of this Lease, the attempted repudiation or
revocation of any such guaranty, or the participation by any such guarantor in
any other event described in this Section 15 (as if this Section 15 referred to
such guarantor in place of Tenant); or (g) any other event, act or omission
which any other provision of this Lease identifies as an Event of Default. Any
notice of any failure of Tenant required under this Section 15 shall be in lieu
of, and not in addition to, any notice required under Section 1161 et seq. of
the California Code of Civil Procedure.
16. REMEDIES. Upon the occurrence of any Event of Default by Tenant, Landlord
shall have, in addition to any other remedies available to Landlord at law or in
equity (all of which remedies shall be distinct, separate, and cumulative), the
option to pursue any one (1) or more of the following remedies, each and all of
which shall be cumulative and nonexclusive, without any notice or demand
whatsoever:
16.1 Terminate this Lease, and Landlord may recover from Tenant the
following: (i) the worth at the time of any unpaid rent which has been earned at
the time of such termination; plus (ii) the worth at the time of award of the
amount by which the unpaid rent which would have been earned after termination
until the time of award exceeds the amount of such rental loss that Tenant
proves could have been reasonably avoided; plus (iii) the worth at the time of
award of the amount by which the unpaid rent for the balance of the term after
the time of award exceeds the amount of such rental loss that Tenant proves
could have been reasonably avoided; plus (iv) any other amount necessary to
compensate Landlord for all the detriment proximately caused by Tenant's failure
to perform its obligations under this Lease or which in the ordinary course of
things would be likely to result therefrom (specifically including, without
limitation, brokerage commissions and advertising expenses incurred, expenses of
remodeling the Premises or any portion thereof for a new tenant, whether for the
same or a different use, and any special concessions made to obtain a new
tenant); and (v) at Landlord's election, such other amounts in addition to or in
lieu of the foregoing as may be permitted from time to time by applicable law.
The term "RENT" as used in this Section 16(a) shall be deemed to be and to mean
all sums of every nature required to be paid by Tenant pursuant to the terms of
this Lease, whether to Landlord or to others. As used in Sections 16(a)(i) and
(ii), above, the "WORTH AT THE TIME OF
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AWARD" shall be computed by allowing interest at the Default Rate, but in no
case greater than the maximum amount of such interest permitted by law. As used
in Section 16(a)(iii) above, the "WORTH AT THE TIME OF AWARD" shall be computed
by discounting such amount at the discount rate of the Federal Reserve Bank of
San Francisco at the time of award plus one percent (1%).
16.2 Landlord shall have 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 as it becomes due, if lessee has the right to
sublet or assign, subject only to reasonable limitations). Accordingly, if
Landlord does not elect to terminate this Lease on account of any Event of
Default by Tenant, Landlord may, from time to time, without terminating this
Lease, enforce all of its rights and remedies under this Lease, including the
right to recover all rent as it becomes due.
16.3 Landlord shall at all times have the rights and remedies (which
shall be cumulative with each other and cumulative and in addition to those
rights and remedies available under Sections 16(a) and 16(b) above, or any law
or other provision of this Lease), without prior demand or notice except as
required by applicable law, to seek any declaratory, injunctive, or other
equitable relief, and specifically enforce this Lease, or restrain or enjoin a
violation or breach of any provision hereof.
16.4 In addition, (i) without notice, Landlord may alter locks or other
security devices at the Premises to deprive Tenant of access thereto, and
Landlord shall not be required to provide a new key or right of access to
Tenant; (ii) upon the occurrence of an Event of Default by Tenant under Section
15, if the Premises or any portion thereof are sublet, Landlord may, at its
option and in addition and without prejudice to any other remedies herein
provided or provided by law, collect directly from the sublessee all rentals
becoming due to the Tenant and apply such rentals against other sums due
hereunder to Landlord; (iii) without prejudice to any other right or remedy of
Landlord, if Tenant shall be in default under this Lease, Landlord may cure the
same at the expense of Tenant (A) immediately and without notice in the case (1)
of emergency, (2) where such default unreasonably interferes with any
other tenant in the Building, or (3) where such default will result in the
violation of Law or the cancellation of any insurance policy maintained by
Landlord and (B) in any other case if such default continues for ten (10) days
from the receipt by Tenant of notice of such default from Landlord and all costs
incurred by Landlord in curing such default(s), including, without limitation,
attorneys' fees, shall be reimbursable by Tenant as Rent hereunder upon demand,
together with interest thereon, from the date such costs were incurred by
Landlord, at the Default Rate; and (iv) Tenant hereby waives for Tenant and for
all those claiming under Tenant all rights now and hereafter existing to redeem
by order or judgment of any court or by any legal process or writ, Tenant's
right of occupancy of the Premises after any termination of this Lease.
17. PAYMENT BY TENANT; NON-WAIVER. Landlord's acceptance of Rent following an
Event of Default shall not waive Landlord's rights regarding such Event of
Default. No waiver by Landlord of any violation or breach of any of the terms
contained herein shall waive Landlord's rights regarding any future violation of
such term. Landlord's acceptance of any partial payment of Rent shall not waive
Landlord's rights with regard to the remaining portion of the Rent that is due,
regardless of any endorsement or other statement on any instrument delivered in
payment of Rent or any writing delivered in connection therewith; accordingly,
Landlord's acceptance of a partial payment of Rent shall not constitute an
accord and satisfaction of the full amount of Rent that is due.
18. SURRENDER OF PREMISES. No act by Landlord shall be deemed an acceptance of a
surrender of the Premises, and no agreement to accept a surrender of the
Premises shall be valid unless it is in writing and signed by Landlord. At the
expiration or earlier termination of this Lease, Tenant shall deliver to
Landlord the Premises with all improvements located therein in good repair and
condition, broom-clean, reasonable wear and tear excepted, and shall deliver to
Landlord all keys to the Premises. Prior to the expiration of the term or any
sooner termination thereof, (a) Tenant shall remove such Alterations and shall
restore the portion of the Premises affected by such Alterations and such
removal to its condition existing immediately prior to the making of such
Alterations and wiring as Landlord may request, (b) Tenant shall remove from the
Premises all unattached trade fixtures, furniture, equipment and personal
property located in the Premises, and all garbage, waste and debris and (c)
Tenant shall repair all damage to the Premises or the Project caused by any such
removal including, without limitation, full restoration of all holes and gaps
resulting from any such removal. All personal property and fixtures of Tenant
not so removed shall, to the extent permitted under applicable Laws, be deemed
to have been abandoned by Tenant and
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may be appropriated, sold, stored, destroyed, or otherwise disposed of by
Landlord without notice to Tenant and without any obligation to account for such
items.
19. HOLDING OVER. If Tenant holds over after the expiration or earlier
termination of the term hereof, with or without the express or implied consent
of Landlord, Tenant shall become and be only a tenant at sufferance at a daily
rent equal to one-thirtieth of the greater of (a) the then prevailing monthly
fair market gross rental rate as determined by Landlord in its sole and absolute
discretion, or (b) one hundred fifty percent (150%) of the monthly installment
of Basic Annual Rent (and estimated Additional Rent payable under Section 2.2)
payable by Tenant immediately prior to such expiration or termination, and
otherwise upon the terms, covenants and conditions herein specified, so far as
applicable, as reasonably determined by Landlord. Neither any provision hereof
nor any acceptance by Landlord of any rent after any such expiration or earlier
termination shall be deemed a consent to any holdover hereunder or result in a
renewal of this Lease or an extension of the term, or any waiver of any of
Landlord's rights or remedies with respect to such holdover. Notwithstanding any
provision to the contrary contained herein, (i) Landlord expressly reserves the
right to require Tenant to surrender possession of the Premises upon the
expiration of the term of this Lease or upon the earlier termination hereof or
at any time during any holdover and the right to assert any remedy at law or in
equity to evict Tenant and collect damages in connection with any such holdover,
and (ii) Tenant shall indemnify, defend and hold Landlord harmless from and
against any and all claims, demands, actions, proceedings, losses, damages,
liabilities, obligations, penalties, costs and expenses, including, without
limitation, all lost profits and other consequential damages, attorneys' fees,
consultants' fees and court costs incurred or suffered by or asserted against
Landlord by reason of Tenant's failure to surrender the Premises on the
expiration or earlier termination of this Lease in accordance with the
provisions of this Lease.
20. CERTAIN RIGHTS RESERVED BY LANDLORD. Landlord hereby reserves and shall have
the following rights with respect to the Premises and the Project: (a) to
decorate and to make inspections, repairs, alterations, additions, changes, or
improvements, whether structural or otherwise, in and about the Project,
Building, the Premises or any part thereof; to enter upon the Premises and,
during the continuance of any such work, to temporarily close doors, entryways,
public space, and corridors in the Project or the Building; to interrupt or
temporarily suspend Building services and facilities; to change the name of the
Building or the Project; and to change the arrangement and location of entrances
or passageways, doors, and doorways, corridors, elevators, stairs, restrooms, or
other public parts of the Building or the Project; (b) to take such measures as
Landlord deems advisable in good faith for the security of the Building and its
occupants; evacuating the Building for cause, suspected cause, or for drill
purposes; temporarily denying access to the Building to any person; and closing
the Building after Business Hours and on Sundays and Holidays, subject, however,
to Tenant's right to enter when the Building is closed after Business Hours
under such rules and regulations as Landlord may prescribe from time to time
during the term; and (c) to enter the Premises at reasonable hours to show the
Premises to prospective purchasers, lenders, or, during the last six (6) months
of the Term, tenants. Landlord shall exercise its rights under this Section 20
in a manner that minimizes the interference with Tenant's use of the Premises.
21. SUBSTITUTION SPACE. Upon at least sixty (60) days prior written notice,
Landlord may relocate Tenant within the Project to space which is comparable in
size, utility and condition to the Premises. If Landlord relocates Tenant,
Landlord shall reimburse Tenant for Tenant's reasonable out-of-pocket expenses
for moving Tenant's furniture, equipment and supplies from the Premises to the
relocation space and for reprinting Tenant's stationery of the same quality and
quantity as Tenant's stationery supply on hand immediately before Landlord's
notice to Tenant of the exercise of this relocation right. Upon such relocation,
the relocation space shall be deemed to be the Premises and the terms of this
Lease shall remain in full force and shall apply to the relocation space;
provided, however, that (a) if the rentable area of the relocation space is
smaller than rentable area of the Premises, then Tenant shall be entitled from
and after the relocation date to a reduction in Basic Annual Rent in proportion
to the reduction in the rentable area of the Premises, with a corresponding
reduction in Tenant's Proportionate Share and (b) if the rentable area of the
relocation space is larger than the rentable area of the Premises, then the
Basic Annual Rent and Tenant's Proportionate Share shall not be modified in any
way.
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22. MISCELLANEOUS.
22.1 LANDLORD TRANSFERS AND LIABILITY. Landlord may without restriction
sell, assign or transfer in any manner all or any portion of the Project, any
interest therein or any of Landlord's rights under this Lease. If Landlord
assigns its rights under this Lease, then Landlord shall automatically be
released from any further obligations hereunder, provided that the assignee
thereof assumes Landlord's obligations hereunder in writing. The liability of
Landlord to Tenant for any default by Landlord under the terms of this Lease or
with respect to any obligation or liability related to the Premises or the
Project shall be recoverable only from the interest of Landlord in the Building,
and neither Landlord nor any affiliate thereof shall have any personal liability
with respect thereto.
22.2 BROKERAGE. Neither Landlord nor Tenant has dealt with any broker
or agent in connection with the negotiation or execution of this Lease, other
than the broker(s), if any, identified in Item 10 of the Basic Lease Provisions,
whose commission shall be paid by Landlord pursuant to a separate agreement.
Each party shall indemnify the other from and against all costs, expenses,
attorneys' fees, and other liability for commissions or other compensation
claimed by any broker or agent (other than the broker(s), if any, identified in
Item 10 of the Basic Lease Provisions) claiming the same by, through, or under
such party.
22.3 ESTOPPEL CERTIFICATES. At any time and from time to time during
the term, upon request of Landlord, Tenant shall, without charge, execute,
acknowledge and deliver to Landlord within ten (10) days after Landlord's
request therefor, an estoppel certificate in recordable form containing factual
certifications and other provisions as are found in the estoppel certificate
forms requested by institutional lenders and purchasers. Tenant agrees in any
case that (a) the foregoing certificate may be relied on by anyone holding or
proposing to acquire any interest in the Project from or through Landlord or by
any mortgagee or lessor or prospective mortgagee or lessor of the Project or of
any interest therein and (b) the form of estoppel certificate shall be in the
form of, at Landlord's election, the standard form of such present or
prospective lender, lessor or purchaser (or any form substantially similar
thereto), or any other form that Landlord shall reasonably select.
22.4 NOTICES. Notices, requests, consents or other communications
desired or required to be given by or on behalf of Landlord or Tenant under this
Lease shall be effective only if given in writing and sent by (a) registered or
certified United States mail, postage prepaid, (b) nationally recognized express
mail courier that provides written evidence of delivery, fees prepaid, or (c)
facsimile and United States mail, postage prepaid, and addressed as set forth in
the Basic Lease Provisions, or at such other address in the State of California
as may be specified from time to time, in writing, or, if to Tenant, at the
Premises. Any such notice, request, consent or other communication shall only be
deemed given (i) if sent by registered or certified United States mail, on the
day it is officially recorded or delivered to or refused by the intended
recipient, (ii) if sent by nationally recognized express mail courier, on the
date it is officially recorded by such courier, (iii) if delivered by facsimile,
on the date the sender obtains written telephonic confirmation that the
electronic transmission was received, or (iv) if delivered personally, upon
delivery or, if refused by the intended recipient, upon attempted delivery.
22.5 MISCELLANEOUS. If any clause or provision of this Lease is
illegal, invalid, or unenforceable under present or future laws, then the
remainder of this Lease shall not be affected thereby. This Lease may not be
amended except by instrument in writing signed by Landlord and Tenant. No
provision of this Lease shall be deemed to have been waived by Landlord unless
such waiver is in writing signed by Landlord. The terms and conditions contained
in this Lease shall inure to the benefit of and be binding upon the parties
hereto, and upon their respective successors in interest and legal
representatives, except as otherwise herein expressly provided. This Lease
constitutes the entire agreement between Landlord and Tenant regarding the
subject matter hereof and supersedes all oral statements and prior writings
relating thereto. To the maximum extent permitted by law, Landlord and Tenant
each waive right to trial by jury in any litigation arising out of or with
respect to this Lease. This Lease shall be governed by and construed in
accordance with the laws of the State of California. If Tenant is comprised of
more than one party, each such party shall be jointly and severally liable for
Tenant's obligations under this Lease. All exhibits and attachments attached
hereto are incorporated herein by this reference.
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23. ADDENDA.
23.A EXTENSION OPTION
23.A.1 GRANT OF OPTION. Tenant shall have one option (the "EXTENSION
OPTION") to extend the term of this Lease as to the entire premises then subject
to this Lease for an additional term of three (3) years (the "EXTENSION TERM"),
subject to and upon the terms and conditions contained in this Section 23.A. The
Extension Term shall commence upon the day immediately following the first
scheduled date for expiration of the term ("EXPIRATION DATE") and shall end at
noon on the day preceding the third anniversary of the commencement of the
Extension Term. The Extension Term shall be upon the same terms and conditions
as are provided for in this Lease, as then amended, except that (a) there shall
be no further option to extend the term pursuant to this Section 23.A or
otherwise, (b) Tenant shall not be entitled to any credit against Rent or any
other rent concession or rent allowance or abatement of Rent, (c) Base Operating
Costs (per square foot of rentable area) shall be as specified in Item 8 of the
Basic Lease Provisions and (d) the Basic Annual Rent payable for the Extension
Term shall be determined pursuant to Section 23.A.2. Subject to the provisions
of Section 23.A.4, the Extension Option may be exercised only by Tenant giving
written notice of exercise (the "EXTENSION NOTICE") to Landlord on or before the
date that is twelve (12) months prior to the original scheduled Expiration Date.
23.A.2 BASIC ANNUAL RENT. The Basic Annual Rent per annum payable for
the Premises during the Extension Term (the "EXTENSION TERM BASIC ANNUAL RENT")
shall be equal to the greater of (a) an amount equal to ninety-five percent
(95%) of (i) the rentable area of the Premises then subject to this Lease,
multiplied by (ii) the yearly Extension FMRV (defined below) of the Premises as
of the first day of the Extension Term, as determined in accordance with this
Section 23.A.2, and (b) the amount of the Basic Annual Rent payable hereunder
for the entire Premises then subject to this Lease (without taking into account
any applicable credits or offsets) for the twelve (12) month period immediately
preceding commencement of the Extension Term. During the Extension Term, if any,
Basic Annual Rent shall be increased annually pursuant to Section 2.1(b).
23.A.3 DEFINITION. The "EXTENSION FMRV" of the Premises during the
Extension Term shall be equal to the yearly base rent per square foot of
rentable area (taking into account any base year operating costs or expense stop
applicable thereto) at which Landlord or landlords of comparable buildings in
the market area (the "MARKET") determined by Landlord to be the local
competitive market for the Project are leasing comparable space (in size,
quality, improvements and location) to renewal tenants, for a term equal to the
Extension Term and commencing as of the first day of the Extension Term.
23.A.4 PROCEDURE FOR DETERMINING THE EXTENSION FMRV. For purposes of
determining the Extension FMRV, the following procedure shall apply:
(a) If Tenant has timely given the Extension Notice, Landlord
shall within sixty (60) days thereafter deliver to Tenant a written notice of
Landlord's determination of what the Extension FMRV would be during the
Extension Term ("LANDLORD'S EXTENSION RENT NOTICE"). Within ten (10) days after
Tenant's receipt of Landlord's Extension Rent Notice, Tenant shall give Landlord
a written notice ("TENANT'S EXTENSION RESPONSE NOTICE") electing either (i) to
accept the Extension FMRV set forth in Landlord's Extension Rent Notice, in
which case the Extension FMRV shall be the Extension FMRV set forth in
Landlord's Extension Rent Notice, or (ii) to not accept Landlord's determination
of the Extension FMRV, in which case Landlord and Tenant shall endeavor to agree
upon the Extension FMRV on or before the date that is ten (10) days after
Landlord's receipt of Tenant's Extension Response Notice. If Landlord and Tenant
are unable to agree upon the Extension FMRV within such ten-day period, then the
Extension FMRV shall be determined by arbitration pursuant to paragraph (b)
below. If Tenant fails to deliver Tenant's Extension Response Notice within the
ten-day period following its receipt of Landlord's Extension Rent Notice, Tenant
shall conclusively be deemed to have accepted Landlord's determination of the
Extension FMRV as set forth in Landlord's Extension Rent Notice.
(b) If Landlord and Tenant shall fail to agree upon the
Extension FMRV within ten (10) days of the date of Landlord's receipt of
Tenant's Extension Response Notice, then, within ten (10) days thereafter,
Landlord and Tenant each shall give notice to the other setting forth the name
and address of an arbitrator
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designated by the party giving such notice, which arbitrator shall be an
independent real estate appraiser or consultant having at least five years
continuous experience in appraising or determining the value of office space in
the Market. If either party shall fail to give notice of such designation within
such ten-day period, then the other arbitrator chosen shall make the
determination alone. If two (2) arbitrators have been designated, such two (2)
arbitrators may consult with each other and shall, not later than the 30th day
after Landlord's receipt of Tenant's Extension Response Notice make their
determination of the Extension FMRV in writing and give notice thereof to each
other and to each of Landlord and Tenant. Such two (2) arbitrators shall have
ten (10) days after the receipt of notice of each other's determination to
confer with each other and to attempt to reach agreement as to the determination
of the Extension FMRV. If such two (2) arbitrators shall concur as to the
determination of the Extension FMRV, such determination shall be final and
binding upon Landlord and Tenant. If such two (2) arbitrators shall fail to
concur within such ten-day period, then such two (2) arbitrators shall, within
the next ten (10) days, designate a third arbitrator meeting the above
requirements for arbitrators. If the two (2) arbitrators shall fail to agree
upon the designation of such third arbitrator within such ten-day period, then
either party may apply to the AAA for the designation of such arbitrator. The
third arbitrator shall conduct such hearings and investigations on an expedited
basis as such arbitrator may deem appropriate and shall, within fifteen (15)
days after its designation, choose one of the determinations (and no other) of
the two (2) arbitrators originally selected by the parties by simultaneously
delivering to Landlord and Tenant signed and acknowledged original counterparts
of his or her determination. The costs and expenses of the arbitration and of
the third arbitrator shall be shared equally by Landlord and Tenant and each
party shall be responsible for the costs and expenses of its designated
arbitrator and its own witnesses and counsel. The arbitrators shall have the
right to consult experts in the matter under arbitration; provided, however,
that any such consultation shall be made only after five (5) days' prior notice
to Landlord and Tenant and only in their presence, with full right on their part
to cross-examine such experts. The arbitrators' final decision and award shall
be in writing, shall be binding on Landlord and Tenant and shall be
nonappealable, and counterpart copies thereof shall be delivered to Landlord and
Tenant. A judgment or order based upon such award may be entered in any court of
competent jurisdiction. In rendering their decision and award, the arbitrators
shall have no power to vary, modify or amend any provision of this Lease.
23.A.5 CONDITIONS TO EXERCISE OF THE EXTENSION OPTION. Notwithstanding
any provisions of this Section 23.A.5 to the contrary, Tenant may not exercise
the Extension Option on any date on which (a) Tenant is in default under this
Lease beyond any applicable grace, notice and cure period, and (b) there is in
effect an assignment pursuant to which this Lease has been assigned (other than
an assignment to an affiliate of Tenant) and any exercise of such Extension
Option shall be deemed null and void and of no force and effect, at the election
of Landlord, if (i) on the commencement of the Extension Term, Tenant is in
default under this Lease, beyond any grace notice, and cure period, or (ii) on
any date prior to the commencement of the Extension Term this Lease has been
assigned other than to an affiliate of Tenant. If Tenant does not timely send
the Extension Notice pursuant to the provisions of this Section 23.A.5 within
the applicable time period, time being of the essence, then Tenant shall be
deemed to have forever waived and relinquished its right to extend the term, and
any other options or rights to renew or extend the term effective after the
expiration of this Extension Option shall terminate.
23.B RIGHT OF FIRST OFFER
23.B.1 DEFINITIONS. As used herein:
23.B.1.1 "AVAILABLE FOR LEASE" means, as of any date after
Commencement Date with respect to any First Right Space, that Landlord is then
prepared to offer such First Right Space for lease in the general leasing
market, regardless of the proposed commencement date of such lease.
23.B.1.2 "FIRST RIGHT SPACE" means any space located in the
Building.
23.B.2 FIRST RIGHT SPACE. Subject to Section 23.B.1.1, if, during the
Term, any First Right Space shall become Available for Lease, Landlord shall,
prior to offering such First Right Space to any other person, deliver to Tenant
a notice (a "FIRST RIGHT AVAILABILITY NOTICE") (a) stating that Landlord intends
to offer such First Right Space for lease and (b) describing such First Right
Space and the material business terms at which Landlord intends to market such
space. If Tenant shall deliver to Landlord a notice (a "TENANT'S INTEREST
NOTICE") that it desires to
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engage in negotiations with Landlord regarding the leasing of such First Right
Space within five (5) business days after receipt of the First Right
Availability Notice, then for fifteen (15) days (the "NEGOTIATION PERIOD") after
Tenant so notifies Landlord, Landlord shall negotiate exclusively with Tenant to
enter into a lease or a lease amendment under which Landlord would lease such
First Right Space to Tenant; provided, however, that neither Tenant nor Landlord
shall have any obligation to agree to any provision or term with respect to such
lease or lease amendment. If Tenant does to timely deliver to Landlord a
Tenant's Interest Notice in response to a First Right Availability Notice in
accordance with this Section 23.B.2, or if an agreement for the leasing of such
First Right Space is not executed and delivered by Landlord and Tenant within
the Negotiation Period, time being of the essence, then (i) Tenant shall, until
such time, if any, as such First Right Space shall once again become Available
for Lease (after having been leased by Landlord to another person following
Tenant's failure to lease such First Right Space), have waived and relinquished
its rights under this Section 23.B.2 with respect to the First Right Space
described in such First Right Availability Notice, and (ii) Landlord shall at
any time thereafter (up until such time, if any, as such First Right Space once
again becomes Available for Lease as set forth herein) be entitled to offer,
show, market and lease such First Right Space to all others selected by Landlord
at such rental rates and upon such terms as Landlord in its sole discretion may
desire.
23.B.3 MISCELLANEOUS. Notwithstanding any provision of this Section
23.B.3 to the contrary, Tenant shall have no right to give a Tenant's Interest
Notice on any date on which Tenant (a) is in default under this Lease beyond any
applicable grace, notice and cure period or (b) occupies less than 2,332 square
feet of rentable area in the Project. At any time when Tenant (i) is so in
default under this Lease or (ii) occupies less than 2,332 square fee of rentable
area in the Project, Landlord may cancel a Tenant's Interest Notice by notice to
Tenant, and on and after the date of such notice to Tenant, Tenant shall have no
rights, and Landlord shall have no obligations, under this Section 23.B.3 with
respect to the First Right Space for which Tenant gave such Tenant's Interest
Notice.
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EXHIBIT "A"
PREMISES OUTLINE; BUILDING FLOOR PLAN
[to be provided by Landlord and attached]
A
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EXHIBIT "B"
CONSTRUCTION CRITERIA
A. LANDLORD WORK.
Landlord agrees to contribute the sum of Four Thousand Dollars
($4,000.00) upon execution of this Lease for Tenant's use in connection with
reconfiguration of the Premises' existing work area. Prior to commencing any
Tenant work, Tenant to comply with requirements of paragraph B.2. below.
B. TENANT WORK.
1. TENANT WORK, IN GENERAL. As a material consideration for the
execution by Landlord of the Lease, Tenant agrees to perform the Tenant Work in
the Premises with quality work using only first-class materials and workmanship.
Notwithstanding the foregoing or anything to the contrary in the Lease, any
deficiency in design and/or construction shall be solely the responsibility of
Tenant.
2. SPECIFICS OF TENANT WORK. Subject to the provisions hereof, Tenant
at its sole cost and expense, shall perform all work required to complete the
Premises to a finished condition ready to be opened for business in accordance
with the provisions hereof and of the Lease. Tenant's Work shall conform to the
criteria, procedures and schedules set forth herein and in the Lease and shall
include, without limitation, the following:
a. TENANT WORK; LIENS; INSURANCE.
(i) All stacks, vents, openings, or penetrations
of any kind, if any, through the roof
desired by Tenant shall first be approved in
writing by Landlord and then be installed by
a roofing contractor approved by Landlord.
Such work shall be at Tenant's direction. In
the event Tenant shall make such openings or
roof penetrations, Tenant shall be solely
liable for all costs and expenses to
restore, reissue or recertify the warranty
issued for the original roof and for any
costs to repair leaks or damage resulting
therefrom caused in whole or in part by such
openings or such roof penetrations.
(ii) All changes in floor level or underfloor
work shall first be approved in writing by
Landlord and then be done by the Landlord's
contractor at Tenant's direction.
(iii) To deliver to Landlord drawings with respect
to the above Tenant's Work or any additional
requirements of Tenant, which drawings shall
conform in all respects with the agreements
of Landlord as above stated and shall be
prepared in a manner satisfactory to
Landlord and shall be sufficient in all
respects so that necessary building
permit(s) can be obtained.
(iv) Tenant shall furnish Landlord with partial
and final waivers of lien from all persons
performing labor or supplying materials on
behalf of Tenant in connection with the
performance of Tenant's Work at the Premises
showing that the obligations owing to all
such persons relating to the performance of
any work for Tenant in or about the Premises
have been satisfied in full. Tenant shall
not permit any mechanic's liens to be filed
against the Premises, the Building, or the
Project for any work performed, materials
furnished or obligation incurred by or at
the request of Tenant. If such a lien is
filed, then Tenant shall, within 10 days
after Landlord has delivered notice of the
filing thereof to Tenant, either pay the
amount of the lien or diligently contest
such lien and deliver to Landlord a bond or
other security reasonably satisfactory to
"B-1"
25
Landlord. If Tenant fails to timely take
either such action, then Landlord may pay
the lien claim, and any amounts so paid,
including expenses and interest, shall be
paid by Tenant to Landlord within ten days
after Landlord has invoiced Tenant therefor.
All contractors employed by Tenant shall be
licensed and insured. Tenant shall not
permit its contractor(s) to commence any
work until the following required insurance
has been obtained and certificates of
insurance evidencing such insurance have
been delivered to Landlord:
(aa) Commercial General Liability
Insurance insuring Tenant, and
naming Landlord as an additional
insured, against any and all
liability to third parties for
damages, resulting from bodily
injury (or death resulting
therefrom) or property damage,
including personal injury, in the
amount of not less than a combined
single limit of $1,000,000; and
(bb) Business and Motor Vehicle Liability
Insurance insuring Tenant, and
naming Landlord as an additional
insured, against any and all
liability to third parties for
damages, resulting from bodily
injury (or death resulting
therefrom) or property damage,
including personal injury, in the
amount of not less than a combined
single limit of $1,000,000; and
(cc) Worker's compensation insurance with
a limit of no less than $500,000,
containing a waiver of subrogation
endorsement acceptable to Landlord.
b. PERMITS AND APPROVALS.
(i) Prior to commencement of construction by
Tenant, Tenant shall obtain all necessary
permits and approvals and post same upon the
Premises as required thereby with a copy of
the permit forwarded to Landlord.
(ii) Tenant shall obtain a certificate of
occupancy ("CO"), if required by applicable
Law, and provide Landlord with a copy of the
original CO prior to occupying the Premises
for business purposes.
(iii) Tenant shall cause, for Landlord's benefit,
to be posted on the Premises notices of
nonresponsibility for Landlord.
c. APPROVALS OF TENANT'S PLANS AND SPECIFICATIONS.
(i) No construction within the Premises may
commence without Landlord's written
approval, which approval shall not
unreasonably be withheld.
(ii) Tenant shall within 30 days from the date of
the Lease prepare and deliver to Landlord,
and Landlord's architect for approval, one
(1) set of complete plans and specifications
(including all HVAC, plumbing, fire
protection and electrical engineering as
well as structural engineering, if
applicable) covering all of Tenant's
proposed work concerning the Premises, in
such detail as Landlord may require, in full
compliance with the Lease and the Exhibits
attached thereto, certified by a licensed
and registered architect and, if applicable,
a licensed and registered professional
engineer.
(iii) In the event Landlord shall notify Tenant
that Tenant's plans and specifications are
not approved, Tenant shall have 10 days from
the date of Landlord's disapproval to revise
the plans and specifications and resubmit
them to Landlord
"B-2"
26
for Landlord's approval. Landlord's written
approval shall also be obtained by Tenant
prior to the undertaking of any construction
work which deviates from or modifies in any
way Tenant's approved plans and
specifications or any other work not
explicitly shown on said plans and
specifications.
d. MISCELLANEOUS.
(i) Tenant shall, if odors, excessive heat,
moisture, smoke or other air contaminants,
including but not limited to those produced
by food service facilities, beauty salons,
etc., emanate from the Premises, and where
directed by Landlord, provide separate
exhaust systems in compliance with NFPA
standards, applicable codes and other Laws
and Landlord's design criteria. Should
Tenant fail to eliminate the odor problem
(as determined by Landlord in its sole
discretion) within 30 days of Landlord's
written notice, then Landlord, at its sole
discretion, may either terminate the Lease
or install such separate exhaust system at
Tenant's expense. Tenant shall pay to
Landlord any amounts so paid by Landlord
within 10 days after Landlord has delivered
to Tenant an invoice requesting payment for
such expense.
(ii) Tenant shall submit to Landlord at least 10
days prior to the commencement of Tenant's
Work the following:
(aa) The name and address of Tenant's
general contractor, subcontractors,
and material suppliers.
(bb) The actual commencement date of
Tenant's Work and the estimated
completion date of Tenant's Work.
(cc) Certificates of insurance as set
forth in this Exhibit "B". Tenant
shall not permit its contractor(s)
to commence any work until all
required insurance has been obtained
and certified copies of the policies
have been delivered to Landlord and
Landlord has approved same.
(iii) Tenant shall apply and pay for all utility
meters, connection fees, water and sewer
fees and all other utility and governmental
surcharges imposed as a result of Tenant's
use of the Premises.
(iv) Tenant shall accumulate and remove trash
caused by construction.
(v) Tenant must provide its own temporary power
and water for construction.
(vi) Upon completion of the improvements, Tenant
shall submit to Landlord as may be required
by Landlord or applicable Law, a recorded
copy of the Notice of Completion filed in
the County Recorder's Office in the County
in which the Project is located and a copy
of the certificate of occupancy for the
Premises issued by the appropriate
governmental agency.
(vii) AMERICANS WITH DISABILITIES ACT OF 1990:
Notwithstanding anything to the contrary
contained in the Lease, Tenant shall comply
with the Americans with Disabilities Act of
1990 ("ADA"), and any amendments to the ADA,
as well as all other applicable Laws
regarding access to, employment of and
service to individuals covered by the ADA,
for work performed during the term of this
Lease. Tenant's compliance obligation will
include but not be limited to the design,
construction and alteration of the Premises
and such other
"B-3"
27
areas (e.g. path of travel) as Tenant may
have to alter in order to be in compliance
with the ADA.
(viii) It is understood and agreed by Tenant that
changes in the improvements, plans and
specifications which do not materially
interfere with Tenant's use of the Premises
shall not affect, invalidate, or change this
Lease or any of its terms and provisions.
"B-4"
28
EXHIBIT "C"
INSURANCE REQUIREMENTS
The following requirements shall be complied with by Tenant at all
times during the Term:
1. Insurance to be Maintained by Tenant. At all times during the Term,
Tenant shall maintain, at Tenant's expense, the following insurance coverage:
(a) "ALL RISK" or "SPECIAL CAUSES OF LOSS" property insurance
covering all physical loss to the Improvements, Alterations and Tenant's
Property in the Premises for their full replacement cost;
(b) broad form commercial general liability insurance
(including protective liability coverage on operations of independent
contractors engaged in construction and blanket contractual liability
insurance), written on a per occurrence basis with an aggregate limit of not
less than $2,000,000, a per-occurrence limit of not less than $2,000,000 and
with other limits reasonably satisfactory to Landlord;
(c) business interruption insurance covering risk of loss due
to the occurrence of any of the hazards covered by the insurance to be
maintained by Tenant described in Section 1(a) above with coverage in a face
amount of not less than the aggregate amount, for a period of twelve (12) months
following the insured-against peril, of one hundred percent (100%) of all Rent
to be paid by Tenant under this Lease;
(d) worker's compensation insurance and employer's liability
coverage in statutory limits, and California State disability insurance as
required by Law, covering all employees; and
(e) such other coverage as Landlord or any mortgagee of
Landlord may require with respect to the Premises, its use and occupancy and the
conduct or operation of business therein.
Landlord may, from time to time, but not more frequently than once
every year, adjust the minimum limits set forth above.
2. Insurer and Policy Requirements. All insurance policies to be
maintained under Section 1 (a) shall be issued by companies of recognized
responsibility, licensed to do business in the State of California, reasonably
acceptable to Landlord, and maintaining a rating of A-/XII or better in Best's
Insurance Reports-Property-Casualty (or an equivalent rating in any successor
index adopted by Best's or its successor), (b) shall provide that they may not
be canceled or modified unless Landlord and all additional insureds and loss
payees thereunder are given at least thirty (30) days prior written notice of
such cancellation or modification, (c) shall name, as additional insureds,
Landlord, X.X. Xxxxxx Companies, the property manager for the Project and any
mortgagee of Landlord whose name and address shall have been furnished to Tenant
and (d) shall be primary and noncontributory in all respects. All policies
providing property insurance coverage pursuant to Section 1(a) shall name, as
loss payees, Landlord, each Mortgagee of Landlord described above and Tenant, as
their interests may appear.
1. Evidence of Coverage; Renewals. Prior to the Commencement Date or,
in the case of insurance required during the performance of Alterations, prior
to the commencement of the Alterations, Tenant shall deliver to Landlord
certificates of insurance for the insurance coverage required by Section 1 and,
if required by Landlord, copies of the policies therefor, in each case, in form
and providing for deductibles reasonably satisfactory to Landlord. Tenant shall
procure and pay for renewals of such insurance from time to time before the
expiration thereof, and Tenant shall deliver to Landlord certificates of renewal
at least thirty (30) days before the expiration of any existing policy. If
Tenant fails to procure or maintain any insurance required by this Lease and to
pay all premiums and charges therefor, Landlord may (but shall not be obligated
to) pay the same, and Tenant shall reimburse Landlord, within twenty (20) days
after demand, for all such sums paid by Landlord.
"C-1"
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2. Additional Insurance, Blanket Insurance. Tenant shall not carry
separate or additional insurance, concurrent in form or contributing in the
event of any loss or damage with any insurance required to be obtained by Tenant
under this Lease unless the parties required by Section 2 to be named as
additional insureds or loss payees thereunder are so named. Tenant may carry any
insurance coverage required of it hereunder pursuant to blanket policies of
insurance so long as the coverage afforded Landlord and the other additional
insureds or loss payees, as the case may be, thereunder shall not be less than
the coverage that would be provided by direct policies.
3. Insurance for Alterations. During the performance of any Alteration,
Tenant shall maintain the additional insurance described in Exhibit "B".
"C-2"
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EXHIBIT "D"
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply to the Premises, the
Building, the parking garage associated therewith, and the appurtenances
thereto:
1. Sidewalks, doorways, vestibules, halls, stairways, and other similar
areas shall not be obstructed by tenants or used by any tenant for purposes
other than ingress and egress to and from their respective leased premises and
for going from one to another part of the Building.
2. No sweepings, rubbish, rags or other unsuitable material shall be
thrown or deposited therein. Damage resulting to any such fixtures or appliances
from misuse by a tenant or its agents, employees or invitees, shall be paid by
such tenant.
3. No signs, advertisements or notices shall be painted or affixed on
or to any windows or doors or other part of the Building without the prior
written consent of Landlord. No curtains or other window treatments shall be
placed between the glass and the Building standard window treatments.
4. Landlord shall provide all door locks in each tenant's leased
premises, at the cost of such tenant, and no tenant shall place any additional
door locks in its leased premises without Landlord's prior written consent.
Landlord shall furnish to each tenant a reasonable number of keys to such
tenant's leased premises, at such tenant's cost, and no tenant shall make a
duplicate thereof.
5. Movement in or out of the Building of furniture or office equipment,
or dispatch or receipt by tenants of any bulky material, merchandise or
materials which require use of elevators or stairways, or movement through the
Building entrances or lobby shall be conducted under Landlord's supervision at
such times and in such a manner as Landlord may reasonably require. Each tenant
assumes all risks of and shall be liable for all damage to articles moved and
injury to persons or public engaged or not engaged in such movement, including
equipment, property and personnel of Landlord if damaged or injured as a result
of acts in connection with carrying out this service for such tenant. Landlord
shall repair, at Tenant's sole cost and expense, any damage to the Building or
the Project caused by Tenant's activities moving in or out of the Premises and
all such costs and expenses shall be paid as Additional Rent to Landlord upon
demand therefor.
4. Corridor doors, when not in use, shall be kept closed. Nothing shall
be swept or thrown into the corridors, halls, elevator shafts or stairways. No
birds or animals shall be brought into or kept in, on or about any tenant's
leased premises. No portion of any tenant's leased premises shall at any time be
used or occupied as sleeping or lodging quarters.
5. Tenant shall cooperate with Landlord's employees in keeping its
leased premises neat and clean. Tenants shall not employ any person for the
purpose of such cleaning other than the Building's cleaning and maintenance
personnel.
6. To ensure orderly operation of the Building, no ice, mineral or
other water, towels, newspapers, etc. shall be delivered to any leased area
except by persons approved by Landlord.
7. Tenant shall not make or permit any vibration or improper,
objectionable or unpleasant noises or odors in the Building or otherwise
interfere in any way with other tenants or persons having business with them.
8. No machinery of any kind (other than normal office equipment) shall
be operated by any tenant on its leased area without Landlord's prior written
consent, nor shall any tenant use or keep in the Building any flammable or
explosive fluid or substance.
"D-1"
31
9. Landlord will not be responsible for lost or stolen personal
property, money or jewelry from tenant's leased premises or public or common
areas regardless of whether such loss occurs when the area is locked against
entry or not.
10. No vending or dispensing machines of any kind may be maintained in
any leased premises without the prior written permission of Landlord.
11. Tenant shall not conduct (or permit to be conducted) any activity
on or about the Premises or Building by Tenant's employees, invitees, customers
or otherwise which will or is likely to draw pickets, demonstrators, or the
like.
12. All vehicles are to be currently licensed, in good operating
condition, parked for business purposes having to do with Tenant's business
operated in the Premises, parked within designated parking spaces, one vehicle
to each space. No vehicle shall be parked as a "BILLBOARD" vehicle in the
parking lot. Any vehicle parked improperly may be towed away. The Tenant,
Tenant's agents, employees, vendors and customers who do not operate or park
their vehicles as required shall subject the vehicle to being towed at the
expense of the owner or driver. The Landlord may place a "BOOT" on the vehicle
to immobilize it and may levy a charge of $50.00 to remove the "BOOT". The
Tenant shall indemnify, hold and save harmless the Landlord of any liability
arising from the towing or booting of any vehicles belonging to the Tenant,
Tenant's agents, vendors, employees and customers.
13. Landlord may determine the amount of electricity and other
utilities used by Tenant by any method reasonably selected by Landlord,
including, without limitation, installation of a separate meter in the high
usage portions of the Premises, installed, maintained, and read by Landlord, at
Tenant's expense. Any new or additional equipment, risers or wiring required to
meet Tenant's excess electrical requirements or otherwise requested by Tenant
shall be installed by Landlord, at Tenant's cost; provided, however, that
Landlord may, in its sole and absolute discretion, refuse to install (or modify
the installation of) such equipment risers or wiring if and to the extent, in
Landlord's judgment, the same shall (a) cause permanent damage to the Building
or the Premises, (b) cause or create a dangerous or hazardous condition, (c)
entail excessive or unreasonable alterations, repairs, or expenses, (d) violate
applicable Laws or (e) interfere with or disturb other tenants of the Building.
14. Landlord's approval of any plans and specifications submitted by
Tenant shall not be a representation by Landlord that such Alterations comply
with any Law or any other standard and Landlord shall have no liability for any
noncompliance therewith.
15. Upon completion of any Alteration made in or upon the Premises,
Tenant agrees to cause a timely Notice of Completion to be recorded in the
office of the Recorder of the County in which the Project is located in
accordance with the terms of Section 3093 of the California Civil Code or any
successor statute, and Tenant shall deliver to Landlord a legible and
reproducible copy of the "AS-BUILT" drawings of any such Alterations within ten
(10) days of completion of the same.
16. All work in the Project, including the Premises, shall be performed
only by Landlord or by contractors and subcontractors reasonably approved in
writing by Landlord. Tenant shall cause all contractors and subcontractors to
procure and maintain insurance coverage naming Landlord as an additional insured
against such risks, in such amounts, and with such companies as Landlord may
reasonably require from time to time. All such work by Tenant shall be performed
in accordance with all Laws, pursuant to a valid building permit (if and to the
extent required) and in a good and workmanlike manner, and in a manner which
does not result in any damage to the Premises, the Building, the Building
systems or any component of any of the same.
17. The Premises shall not be used for any use which is disreputable,
creates any fire hazard, or may result in an increased rate of insurance on the
Project (or any portion thereof) or its contents, or involves the use, storage
or handling of any Hazardous Material (other than customary amounts of customary
cleaning or office supplies, used and stored by Tenant in compliance with all
Laws and on a basis consistent with the standards of a first class office
project). If, because of Tenant's acts or omissions, the rate of insurance on
the Project or its contents increases, then such acts shall be an Event of
Default, Tenant shall pay to Landlord the amount of such increase on
"D-2"
32
demand, and acceptance of such payment shall not waive any of Landlord's other
rights hereunder, at law or in equity.
18. Landlord reserves the right, at any time upon written notice to
Tenant, to change the location of Tenant's parking spaces within the parking
facility originally designated for such use, if any, as required by Law or by
any governmental authority.
19. Landlord reserves the right to make such changes to the parking
facilities, system and privileges as Landlord may deem necessary or reasonable
from time to time.
"D-3"
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EXHIBIT "E"
GUARANTY
(Individual)
IN CONSIDERATION OF and as a material inducement to WHUB Real Estate
Limited Partnership, a Delaware limited partnership ("LANDLORD"), executing the
within lease dated June 28, 1996 ("LEASE"), with Star Vending, Inc., a Nevada
corporation ("TENANT"), for certain premises (the "PREMISES") located in that
certain project (the "PROJECT") commonly known as The De Xx Xxxxxx Building and
located at 000 Xxxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxxxxxxx, all as more particularly
described in the Lease, and in further consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by the undersigned, Xxxxxxxxxxx Xxxxxxxx, an
individual ("GUARANTOR"), whose residence is , Guarantor does hereby on behalf
of itself, its successors and assigns, unconditionally covenant and agree with
Landlord, its successors and assigns, that if default shall at any time under
the Lease be made by Tenant, its successors and assigns, in the payment of any
monthly installment of rent, or additional rent, or in the performance of any of
the terms, covenants and conditions of the Lease, and if the default shall not
have been cured within the time specified in the Lease for curing the same, then
Guarantor shall pay on demand in cash all rent and additional rent then due and
all damages incurred by Landlord as a result of or arising out of any such
default by Tenant.
THIS GUARANTY is an absolute and unconditional guaranty of payment and
performance. It shall be enforceable against Guarantor, its successors and
assigns, without the necessity for any suit or proceedings by Landlord against
Tenant, its successors and assigns, and without the necessity of any notice of
nonpayment, nonperformance or nonobservance or any notice of acceptance of this
Guaranty or any other notice or demand to which Guarantor might otherwise be
entitled, all of which Guarantor hereby expressly waives. Guarantor agrees that
the validity of this Guaranty and the obligations of Guarantor shall in no way
be terminated, affected or impaired by reason of the assertion or the failure or
delay to assert by Landlord against Tenant, or Tenant's successors and assigns,
any of the rights or remedies reserved to Landlord pursuant to the provisions of
the Lease. The single or partial exercise of any right, power or privilege under
this Guaranty shall not preclude any other or the further exercise thereof or
the exercise of any other right, power or privilege by Landlord.
THIS GUARANTY shall not be affected and the liability of the
undersigned shall not be extinguished or diminished by Landlord's receipt,
application or release of security given for the performance and observation of
the covenants and conditions in the Lease to be performed or observed by Tenant,
its successors and assigns; by the cessation from any cause whatsoever of the
liability of Tenant, its successors and assigns; by reason of sums paid or
payable to Landlord from the proceeds of any insurance policy or condemnation
award; by any nonliability of Tenant under the Lease for any reason, including
any defect or defense which may now or hereafter exist in favor of Tenant; or by
any extensions, renewals, amendments, indulgences, modifications, transfers or
assignments in whole or in part of the Lease by Landlord, whether or not notice
thereof is given to Guarantor and whether or not Guarantor's consent thereto is
obtained. This Guaranty is of payment and not of collection; it is one of active
performance and not one of suretyship for damages or otherwise. This Guaranty
extends to any and all liability which Tenant has or may have to Landlord by
reason of matters occurring before the execution of the Lease or the
commencement of the Term of the Lease, or by matters occurring after the
expiration of the Term of the Lease. Guarantor agrees that it shall have no
rights of indemnification or subrogation against Tenant and agrees that
Guarantor shall subordinate its rights of recourse against Tenant by reason of
any indebtedness or sums due to Guarantor, unless and until the Lease is
performed to the satisfaction of Landlord. Guarantor agrees that it shall not
assert any claim which it has or may have against Tenant, including any claims
under this Guaranty, until the obligations of Tenant under the Lease are fully
satisfied and discharged. The liability of Guarantor is coextensive with that of
Tenant and also joint and several.
X-0
00
XXXXXXXX'X XXXXXXXXXX of a note or additional collateral of Tenant or
of Guarantor shall not be the full cash payment or the active and primary
performance required herein. This Guaranty is given in addition to all other
guaranties which may pertain to Tenant's indebtedness and is not subordinate to
any other guaranties. Landlord's rights under all guaranties, including this
Guaranty, shall be cumulative and independently enforceable. It shall not be a
condition to the enforcement of this Guaranty that any other guaranties be
resorted to by Landlord. Should Landlord be obligated by any bankruptcy or other
law to repay to Tenant or to Guarantor or to any trustee, receiver or other
representative of either of them, any amounts previously paid to Landlord, its
successors and assigns, this Guaranty shall be reinstated in the amount of such
repayments.
GUARANTOR AGREES that it will, at any time and from time to time,
within ten (10) business days following written request by Landlord, execute,
acknowledge and deliver to Landlord an estoppel certificate certifying that this
Guaranty is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified and stating
such modifications) and making such additional statements with respect to this
Guaranty and Guarantor's obligations hereunder as Landlord shall in good faith
request. Guarantor agrees that Landlord may utilize for such purpose any
estoppel certificate form substantially similar to any form required by any
present or prospective purchaser or lender to Landlord. Guarantor agrees that
such certificate may be relied on by anyone holding or proposing to acquire any
interest in the Project from or through Landlord or by any mortgage or lessor or
prospective mortgagee or lessor of the Project or of any interest therein.
GUARANTOR REPRESENTS and warrants that:
(a) It is not insolvent, and that there are no limitations or
prohibitions to the enforcement of this Guaranty;
(b) It is immediately benefited by the Lease, and Landlord's leasing
of the premises to Tenant thereunder;
(c) If Guarantor is a shareholder, member or other holder of any legal
or equitable interest in Tenant, it shall not transfer any stock
or other interest in Tenant without obtaining Landlord's prior
written consent, and if such consent is given, Guarantor shall
immediately obtain guaranties in this form running from all of the
transferees to Landlord;
(d) The term of existence of Tenant is and shall remain longer than
the Term of the Lease; and
(e) The execution, delivery and performance of this Guaranty are duly
authorized and do not require the consent or approval of any
individual, body or entity.
GUARANTOR AGREES that all shares of stock and rights to shares of stock
of and all other rights or interests in and to Tenant which Guarantor may own,
and all debts, rights and other claims which may be or become due to Guarantor
from Tenant, shall be subordinate to this Guaranty and to all other guaranties
which may be given by Guarantor to Landlord from time to time. Specifically, and
not by way of limitation of the foregoing, Guarantor agrees that:
(a) It shall not collect sums due under any such stock, interests,
debts, rights or claims or commence any proceedings to collect
such sums unless and until all of Tenant's indebtedness is paid in
full;
(b) It shall not cause or allow any new shares of Tenant's stock or
other interests in Tenant to be issued or allow any delivery of
such shares; and
(c) It shall enter into such further subordinations as Landlord may
reasonably require.
AS A FURTHER inducement to Landlord to make and enter into the Lease
and in consideration thereof, Guarantor covenants and agrees that in any action
or proceeding brought on, under or by virtue of this Guaranty (a) Guarantor
hereby waives trial by jury, (b) Guarantor
E-2
35
agrees that any such action or proceeding shall have its venue in Los Angeles
County, California, or the United States District Court having jurisdiction over
Los Angeles County, California, and (c) Guarantor agrees to submit to the
jurisdiction of any court described in clause (b). Guarantor agrees that Tenant
shall act as Guarantor's agent for service of process in any action or
proceeding brought on or under, or by virtue of this Guaranty, and Guarantor and
Tenant agree to take any and all action necessary to appoint Tenant as
Guarantor's agent for service of process.
IF ANY PORTION or application of this Guaranty is invalid,
unenforceable or illegal for any reason, the parties agree that such invalid,
unenforceable or illegal portion or application shall not be deemed to affect
the remainder of this Guaranty.
GUARANTOR'S OBLIGATIONS and liabilities under this Guaranty are
absolute, independent of and regardless of any defenses, counterclaims,
set-offs, cross-claims or other claims which Guarantor may now have or at any
time hereafter have against Tenant or Landlord or any other person, firm,
corporation for any reason whatsoever. Guarantor further agrees that any such
defenses, counterclaims, set-offs, cross-claims or other claims which Guarantor
may have now, or at any time hereafter have, shall not be enforceable in any
independent action which would interfere with or in any way reduce the
obligations owed by Guarantor under this Guaranty. Guarantor unconditionally
waives: (a) any right to assert or claim that Guarantor is exonerated by any
action taken by Landlord which impairs Guarantor's rights to be subrogated to
Landlord's rights against Tenant; (b) the right to enforce any remedies that
Landlord now has, or later may have, against Tenant until such time as all
indebtedness of Tenant (relative to Landlord) has been satisfied; (c) any right
to participate in, proceed against, or exhaust any security now or later held by
Landlord; (d) all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor, and notices
of acceptance of this Guaranty; (e) all notices of the existence, creation or
incurrence of new or additional obligations under the Lease; (f) any duty of
Landlord to advise Guarantor of any information known to Landlord regarding the
financial condition of Tenant; (h) the right to proceed against Tenant or pursue
any particular remedy in Landlord's power; and (i) any defense by reason of any
disability of Tenant and any other defense based upon the termination of
Tenant's ability to perform under the Lease from any cause. Guarantor expressly
waives the provisions of Sections 2810, 2819, 2845, 2848 and 2850 of the Civil
Code of California, as recodified from time to time, except to the extent such
rights of Guarantor or obligations of Landlord are otherwise expressly addressed
in this Guaranty.
THE PROVISIONS of the Lease may be altered, affected, modified,
amended, or changed by agreement between Landlord and Tenant at any time, or by
course of conduct, without the consent of or without notice to Guarantor,
including, without limitation, any extension of the Term pursuant to the Lease
or otherwise. This Guaranty shall guaranty the performance, by Tenant and its
successors and assigns, of the Lease as so altered, affected, modified, amended
or changed. An assignment of the Lease or a sublease of all or any portion of
the Premises (whether or not in compliance with the Lease) shall not affect this
Guaranty or Guarantor's liability and obligations hereunder. If Landlord
disposes of, sells, transfers, assigns, hypothecates or otherwise conveys its
interest in the Lease, or any part thereof, "LANDLORD" as used in this Guaranty,
shall mean Landlord's successor. In the event of any assignment or sublease (as
permitted under the Lease) of all or any portion of Tenant's interest in the
Lease or to the Premises, "TENANT" as used in this Guaranty shall mean Tenant's
successor. The word "SUCCESSOR" is used herein in its most comprehensive sense
and includes any assignee, transferee, personal representative, heir or other
person or entity succeeding lawfully, and pursuant to the provisions of the
Lease to the respective rights or obligations of either party.
IN THE EVENT of the rejection or disaffirmance of the Lease by Tenant
or Tenant's Trustee in Bankruptcy pursuant to applicable bankruptcy law or any
other Law affecting creditors' rights, Guarantor will and does hereby (without
the necessity of any further agreement or act) assume all obligations and
liabilities of Tenant under the Lease as if (a) Guarantor were originally named
Tenant under said Lease and (b) there has been no rejection or disaffirmance.
Guarantor will confirm such assumption in writing at the request of Landlord
upon or after such rejection or disaffirmance, and Guarantor shall upon such
assumption (to the extent permitted by Law) have all the rights of Tenant under
the Lease.
IN THE EVENT of any legal action or proceeding brought by Landlord
against Guarantor or Tenant arising out of the Lease or this Guaranty, Landlord
shall be entitled to recover its reasonable attorneys' fees and costs incurred
in such action. Such amount shall be included in any judgment rendered in any
action or proceeding.
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IN WITNESS WHEREOF, Guarantor acting herein in its own personal and
individual capacity has executed this Guaranty this _____ day of __________,
199___.
WITNESS: GUARANTOR:
_____________________________ Xxxxxxxxxxx Xxxxxxxx
Name
____________________________ ________________________________________
Address Address
________________________________________
Telephone Number
________________________________________
Fax Number
________________________________________
Social Security Number
________________________________________
Driver's License Number and
State of Issuance
E-4
37
THIS PAGE MUST BE KEPT AS THE LAST PAGE OF THE DOCUMENT.
E-5
38
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE ("First Amendment") is effective as of
June 28, 1996, by and between WHUB REAL ESTATE LIMITED PARTNERSHIP, a Delaware
limited partnership ("Landlord"), and STAR VENDING, INC., a Nevada corporation
("Tenant").
RECITALS
A. ORIGINAL LEASE. Pursuant to that certain Office Lease dated
June 28, 1996 (the "Original Lease"), Landlord leased to Tenant certain premises
consisting of approximately 2,332 rentable square feet in Suite 202 of the De Xx
Xxxxxx Building (the "Building"), located at 000 Xxxxx Xxxxxx, Xxxxx Xxxxxxx,
Xxxxxxxxxx, 00000 (the "Premises").
B. LEASE. The Original Lease, as amended by this First
Amendment, is referred to herein as the "Lease."
C. PURPOSE. Landlord and Tenant desire to amend the Original
Lease as set forth herein.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Landlord and Tenant hereby agree that
the Original Lease shall be amended as follows:
1. PREMISES. Item 2 of the Basic Lease Provisions of the Original Lease
is hereby amended by the addition of the following:
The Premises covered by this Lease is shown cross-hatched on
Exhibit "A" attached hereto.
2. TENANT'S PROPORTIONATE SHARE. Item 3 of the Basic Lease Provisions
of the Original Lease is hereby deleted in its entirety and the following is
substituted in its place:
Tenant's Proportionate Share of Operating Costs: 10.6% (See
Section 2.2).
3. BASE OPERATING COSTS. Item 7 of the Basic Lease Provisions of the
Original Lease is hereby deleted in its entirety.
4. COMMENCEMENT DATE. Item 9 of the Basic Lease Provisions of the
Original Lease is hereby deleted in its entirety and the following is
substituted in its place:
COMMENCEMENT DATE: The later of August 1, 1996, or the date that
certain Triple Net Real Property Lease dated May 26, 1993, by and
between DLG, L.P., a California limited partnership, predecessor in
interest to WHUB Real Estate Limited Partnership, a Delaware limited
partnership, as Landlord, and Blockbuster Music Holding Corporation,
a Delaware corporation, as Tenant, is terminated.
5. GUARANTY. Item 13 of the Basic Lease Provisions of the Original
Lease, and Exhibit "E" ("Guaranty") to the Original Lease are hereby deleted in
their entirety.
6. OPERATING COSTS. Section 2.2(a) through Section 2.2(f) inclusive of
the Original Lease are hereby deleted in their entirety and the following is
substituted in their place:
1
39
2.2 OPERATING COSTS.
(a) Tenant agrees to pay to Landlord, as additional
rent ("Additional Rent") for the Premises, throughout the
Term, without deduction or setoff, Tenant's Proportionate
Share of Operating Costs (as defined below). "TENANT'S
PROPORTIONATE SHARE" is, subject to the provisions of this
Section 2.2, the percentage number described in Item 3 of the
Basic Lease Provisions. Tenant's Proportionate Share
represents a fraction, the numerator of which is the number of
square feet of rentable area in the Premises specified in Item
2 of the Basic Lease Provisions and the denominator of which
is the number of square feet of rentable area in the Project
as reasonably determined by Landlord.
(b) "OPERATING COSTS" means all costs, expenses and
obligations incurred or payable by Landlord because of or in
connection with the operation, ownership, repair, replacement,
restoration, management or maintenance of the Project during
or allocable to any calendar year during the term of this
Lease, all as determined by sound accounting principles
selected by Landlord, consistently applied, including without
limitation the following:
(i) All real property taxes, assessments,
charges or impositions and other similar governmental ad
valorem or other charges levied on or attributable to the
Project or its ownership, operation or transfer, and all
taxes, charges, assessments or similar impositions imposed in
lieu or substitution (partially or totally) of the same
(collectively, "REAL ESTATE TAXES"). "REAL ESTATE TAXES" shall
also include all taxes, assessments, levies, charges or
impositions (A) on any interest of Landlord or any mortgagee
of Landlord in the Project, the Premises or in this Lease, or
on the occupancy or use of space in the Project or the
Premises; (B) on the gross or net rentals or income from the
Project, including, without limitation, any gross income tax,
excise tax, sales tax or gross receipts tax levied by any
federal, state or local governmental entity with respect to
the receipt of Rent; or (C) any possessory taxes charged or
levied in lieu of real estate taxes; and
(ii) The cost of all utilities, supplies,
equipment, tools, materials, service contracts, janitorial
services, waste and refuse disposal, landscaping, and
insurance (with the nature and extent of such insurance to be
carried by Landlord to be determined by Landlord in its sole
and absolute discretion), compensation and other fringe
benefits of all persons who perform services connected with
the operation, maintenance or repair of the Project (provided,
however, that if any of such persons provide services for more
than one building of Landlord, only the prorated portion of
those persons' wages, salaries, other compensation, benefits,
and taxes reflecting the percentage of their monthly time
devoted to the Project shall be included in Operating Costs),
personal property, taxes on and maintenance and repair of
equipment and other personal property, costs incurred for
administration and management of the Project, whether by
Landlord or by an independent contractor, and other management
office operational expenses (including, without limitation, a
management fee), rental expenses for or a reasonable allowance
for depreciation of, personal property used in the operation,
maintenance or repair of the Project, license, permit and
inspection fees, and all inspections, activities, alterations
and improvements or other matters required by any governmental
or quasi-governmental authority or by applicable law, for any
reason, including, without limitation, capital improvements,
whether capitalized or not, all capital improvements made to
the Project or any portion thereof by Landlord (A) of a
personal property nature and related to the operation, repair,
maintenance or replacement of systems, facilities, equipment
or components of, or which service the Project or portions
thereof, (B) required or provided in connection with any law,
ordinance, rule or
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regulation (not required when building permits for the
Building were obtained), (C) which are designed to improve the
operating efficiency of the Project, or (D) determined by
Landlord to be required to keep pace or be consistent with
safety or health advances or improvements (with such capital
costs to be amortized over such periods as Landlord shall
determine with a return on capital at such rate as would have
been paid by Landlord on funds borrowed for the purpose of
constructing such capital improvements), common area repair,
resurfacing, replacement operation and maintenance, security
services, if any, deemed appropriate by Landlord, and any
other cost or expense incurred or payable by Landlord in
connection with the operation, ownership, repair, replacement,
restoration, management or maintenance of the Project.
(c) Operating Costs for any calendar year during
which actual occupancy of the Project is less than ninety-five
percent (95%) of the rentable area of the Project shall be
appropriately adjusted, in accordance with sound accounting
principles, to reflect ninety-five (95%) occupancy of the
existing rentable area of the Project during such period.
(d) At Landlord's election, Tenant's Proportionate
Share of the Operating Costs shall be estimated by Landlord
prior to or during each calendar year. Such estimates shall be
paid by Tenant in advance, on the first day of each and every
calendar month throughout such calendar year. Within a
reasonable period following expiration of each such calendar
year (but not later than 180 days), Landlord shall calculate
the exact amount of Tenant's Proportionate Share of Operating
Costs and Landlord shall notify Tenant of the same. Any
deficiencies in the payments made by Tenant shall be paid by
Tenant to Landlord within ten (10) days of receipt of
Landlord's demand therefor. Any surplus paid by Tenant during
the preceding calendar year shall be applied against the next
monthly installments of Additional Rent due from Tenant. Any
delay or failure of Landlord in delivering any estimate or
statement described in this Section 2.2(d) or in computing or
billing Tenant's Proportionate Share of Operating Costs shall
not constitute a waiver of Landlord's right to require an
increase in rent as provided herein or in any way impair the
continuing obligations of Tenant under this Lease.
(e) Tenant shall pay, when due and before any
delinquency (to the assessing authority, if directly assessed
against Tenant, or to Landlord, if assessed against Landlord
or the Project within ten (10) days of Landlord's demand), (i)
all taxes and assessments levied against any personal property
or trade fixtures of Tenant in or about the Premises; (ii) any
sales, use excise tax or other tax imposed, assessed or levied
in connection with Tenant's payment of rent hereunder.
7. LANDLORD'S OBLIGATIONS. Section 5.1 through Section 5.3, inclusive
of the Original Lease are hereby deleted in their entirety and the following is
substituted in their place:
5.1 SERVICES. Landlord shall provide electrical, water, sewer
and gas service (if available) to the Premises. Tenant shall
duly and promptly pay to the supplier thereof all bills for
utilities consumed in the Premises measured by a separate
meter for the Premises. If Tenant shall use any utility
service for any purpose in the Premises which is or can be
measured by a separate meter for the Premises and Landlord
shall elect to supply that service, Tenant shall accept and
use the same and pay Landlord as Additional Rent for such
service within ten (10) days of the presentation of a xxxx by
Landlord to Tenant. Notwithstanding anything to the contrary
provided in this Section 5, Tenant acknowledges that water
service to the Project may be measured by a master meter and
that Tenant's charges for service may be allocated by
Landlord, at Landlord's option,
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either (i) as a percentage of the total square feet of gross
leasable area of all tenants in the Project provided water
service; (ii) based upon readings taken from a water sub-meter
for the Premises, if Landlord elects to install a sub-meter;
or (iii) on such other basis as Landlord shall reasonably
determine; provided, however, that in all cases where Tenant's
use of water service is disproportionately high in relation to
the gross leasable area of the Premises, Landlord shall have
the right to specially allocate to Tenant such portion of the
Project's water service charges as Landlord shall in good
faith determine.
5.2 EXCESS UTILITY USE. Landlord shall not be liable for, and
Tenant shall not be entitled to any abatement in rent by
reason of, any interruption or failure in the supply of
utilities. Tenant shall not install any equipment which
exceeds or overloads the capacity of the utility facilities
serving the Premises, and that if equipment installed by
Tenant requires additional utility facilities, installation of
the same shall be at Tenant's expense, but only after
Landlord's written approval of the same.
8. FULL FORCE AND EFFECT. Except as provided in this First Amendment,
the Original Lease shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this First
Amendment effective as of the date first written above.
LANDLORD: TENANT:
WHUB REAL ESTATE LIMITED STAR VENDING, INC.,
PARTNERSHIP, a Delaware limited a Nevada corporation
partnership
By: JER WHUB SERVICES, INC.,
a Virginia corporation,
its Managing General partner By:_____________________________________
Xxxx Xxxxx
President
By:_______________________________
Xxxxxxxx Xxxxxxxx
Vice President
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