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Exhibit 6(d)
000 XXXXXX XXXX XXXX
XXXXXX LEASE
This Office Lease, which includes the preceding Summary attached hereto
and incorporated herein by this reference (the Office Lease and Summary to be
known sometimes collectively hereafter as the "Lease"), dated as of the date set
forth in Section 1 of the Summary, is made by and between PALOS VERDES OFFICE
PARTNERS, LLC, a California limited liability company ("Landlord"), and
XXXXXXXXXXXXXX.XXX ("Tenant").
ARTICLE 1
REAL PROPERTY, BUILDING AND PREMISES
1.1 Real Property, Building and Premises. Upon and subject to the terms,
covenants and conditions hereinafter set forth in this Lease, Landlord hereby
leases to Tenant and Tenant hereby leases from Landlord the premises set forth
in Section 6 of the Summary (the "Premises"), which Premises are part of the
building (the "Building") located at 000 Xxxxxx Xxxx Xxxx, Xxxxxx Xxxxx Xxxxxx,
Xxxxxxxxxx. The outline of the floor plan of the Premises is set forth in
Exhibit A attached hereto. The Building, land and other improvements surrounding
the Building which are designated from time to time by Landlord as common areas
appurtenant to or servicing the Building, and the land upon which any of the
foregoing are situated, are herein sometimes collectively referred to as the
"Real Property." Tenant is hereby granted the right to the nonexclusive use of
the common corridors and hallways, stairwells, elevators, restrooms and other
public or common areas located on the Real Property; provided, however, that
Tenant's use thereof shall be subject to such rules, regulations and
restrictions as Landlord may make from time to time. Landlord reserves the right
to make alterations or additions to or to change the location of elements of the
Real Property and the common areas thereof from time to time.
1.2 Condition of Premises. Except as expressly set forth in the Work
Letter attached as Exhibit "B" hereto, Landlord shall not be obligated to
provide or pay for any improvement, remodeling or refurbishment work or services
related to the improvement, remodeling or refurbishment of the Premises, and
Tenant shall accept the Premises in its "As-Is" condition on the Lease
Commencement Date.
1.3 Rentable Square Feet. The parties hereby stipulate that the Premises
contain the rentable square feet set forth in Section 6 of the Summary, and such
square footage amount is not subject to adjustment or remeasurement by Landlord
or Tenant. Accordingly, there shall be no adjustment in the Base Rent or other
amounts set forth in this Lease, which are determined based upon rentable square
feet of the Premises.
ARTICLE 2
LEASE TERM
2.1 Term. The terms and provisions of this Lease shall be effective as of
the date of this Lease except for the provisions of this Lease relating to the
payment of Rent. The term of this Lease (the "Lease Term") shall be as set forth
in Section 7.1 of the Summary and shall commence on the date (the "Lease
Commencement Date") set forth in Section 7.2 of the Summary, and shall terminate
on the date (the "Lease Expiration Date") set forth in Section 7.3 of the
Summary, unless this Lease is sooner terminated as hereinafter provided. For
purposes of this Lease, the term "Lease Year" shall mean each consecutive twelve
(12) month period during the Lease Term, provided that the last Lease Year shall
end on the Lease Expiration Date.
ARTICLE 3
BASE RENT
Tenant shall pay, without notice or demand, to Landlord or Landlord's
agent at the management office of the Building, or at such other place as
Landlord may from time to time designate in writing, in currency or a check for
currency which, at the time of payment, is legal tender for private or public
debts in the United States of America, base rent ("Base Rent") as set forth in
Section 8 of the Summary, payable in equal monthly installments as set forth in
Section 8 of the Summary in advance on or before the first day of each and every
month during the Lease Term, without any setoff or deduction whatsoever, except
as specifically set forth herein. The Base Rent for the first full month of the
Lease Term shall be paid upon execution of this Lease. If any rental payment
date (including the Lease Commencement Date) falls on a day of the month other
than the first day of such month or if any rental payment is for a period which
is shorter than one month, then the rental for any such fractional month shall
be a proportionate amount of a full calendar month's rental based on the
proportion that the number of days in such fractional month bears to the number
of days in the calendar month during which such fractional month occurs. All
other payments or adjustments required to be made under the terms of this Lease
that require proration on a time basis shall be prorated on the same basis.
ARTICLE 4
ADDITIONAL RENT
4.1 Additional Rent. In addition to paying the Base Rent specified in
Article 3 of this Lease, Tenant shall pay as additional rent (i) "Tenant's
Share" of the annual "Operating Expenses," as those terms are defined in this
Lease, which are in excess of the amount of Operating Expenses applicable to the
"Base Year," as that term is defined in Section 4.2.1 of this Lease, plus (ii)
Tenant's Share of the annual "Tax Expenses", as that term is defined in Section
4.2.5, which are in excess of the amount of Tax Expenses applicable to the Base
Year. Such additional rent, together with any and all other amounts payable by
Tenant to Landlord pursuant to the terms of this Lease (including, without
limitation, pursuant to Article 6), shall be hereinafter collectively referred
to as the "Additional Rent." The Base Rent and Additional Rent are herein
collectively referred to as the "Rent." All amounts due under this Article 4 as
Additional Rent shall be payable for the same periods and in the same manner,
time and place
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as the Base Rent. Without limitation on other obligations of Tenant, which shall
survive the expiration of the Lease Term, the obligations of Tenant to pay the
Additional Rent provided for in this Article 4 shall survive the expiration of
the Lease Term.
4.2 Definitions. As used in this Article 4, the following terms shall have
the meanings hereinafter set forth:
4.2.1 "Base Year" shall mean the year set forth in Section 9.1 of
the Summary.
4.2.2 "Expense Year" shall mean each calendar year during the Lease
Term, provided that Landlord, upon notice to Tenant, may change the Expense Year
from time to time to any other twelve (12) consecutive-month period, and, in the
event of any such change, Tenant's Share of Operating Expenses and Tax Expenses
shall be equitably adjusted for any Expense Year involved in any such change.
4.2.3 "Operating Expenses" shall mean all expenses, costs and
amounts of every kind and nature which Landlord shall pay during any Expense
Year because of or in connection with the ownership, management, maintenance,
repair, replacement, restoration or operation of the Building and Real Property,
including, without limitation, any amounts paid for: (i) the cost of supplying
all utilities, the cost of operating, maintaining, repairing, renovating and
managing the utility systems, mechanical systems, sanitary and storm drainage
systems, any elevator systems and all other "Systems and Equipment" (as defined
in Section 4.2.4 of this Lease), and the cost of supplies and equipment and
maintenance and service contracts in connection therewith; (ii) the cost of
licenses, certificates, permits and inspections, and the cost of contesting the
validity or applicability of any governmental enactments which may affect
Operating Expenses, and the costs incurred in connection with implementation and
operation of a governmentally mandated transportation system management program
or similar program; (iii) the cost of insurance carried by Landlord in
accordance with the provisions of Section 10.2 hereof, or as may be required by
any mortgagees or the lessor of any underlying or ground lease affecting the
Real Property and/or the Building; (iv) the cost of landscaping, relamping,
supplies, tools, equipment and materials, and all fees, charges and other costs
(including consulting fees, legal fees and accounting fees) incurred in
connection with the management, operation, repair and maintenance of the
Building and Real Property; (v) the cost of parking area repair, restoration,
and maintenance; (vi) any equipment rental agreements or management agreements
(including the cost of any reasonable management fee and the fair rental value
of any office space provided thereunder); (vii) wages, salaries and other
compensation and benefits of all persons engaged in the operation, management,
maintenance or security of the Building and Real Property, and employer's Social
Security taxes, unemployment taxes or insurance, and any other taxes which may
be levied on such wages, salaries, compensation and benefits; (viii) payments
under any easement, license, operating agreement, declaration, restrictive
covenant, underlying or ground lease (excluding rent), or instrument pertaining
to the sharing of costs by the Building or Real Property; (ix) the cost of
janitorial service, alarm and security service, window cleaning, trash removal,
replacement of wall and floor coverings, ceiling tiles and fixtures in lobbies,
corridors, restrooms and other common or public areas or facilities, maintenance
and replacement of curbs and walkways, repair to roofs and re-roofing; (x)
amortization (including interest on the unamortized cost) of the cost of
acquiring or the rental expense of personal property used in the maintenance,
operation and repair of the Building and Real Property; and (xi) the cost of any
capital improvements, capital repairs, capital alterations and other capital
items (I) which are intended as a labor-saving device or to effect other
economies in the operation or maintenance of the Building and Real Property (but
only to the extent of any realized cost savings), or (II) made to the Building
or Real Property after the Lease Commencement Date that are required under any
governmental law or regulation amended, enacted or enforced after the date of
execution of this Lease; provided, however, that if any such cost described in
(I) or (II) above, is a capital expenditure, such cost shall be amortized
(including interest on the unamortized cost) over its useful life as Landlord
shall reasonably determine. If Landlord is not furnishing any particular work or
service (the cost of which, if performed by Landlord, would be included in
Operating Expenses) to a tenant who has undertaken to perform such work or
service in lieu of the performance thereof by Landlord, Operating Expenses shall
be deemed to be increased by an amount equal to the additional Operating
Expenses which would reasonably have been incurred during such period by
Landlord if it had at its own expense furnished such work or service to such
tenant.
Notwithstanding the foregoing, Operating Expenses shall not,
however, include: (A) costs of leasing commissions, attorneys' fees and other
costs and expenses incurred in connection with negotiations or disputes with
present or prospective tenants or other occupants of the Building; (B) costs
(including permit, license and inspection costs) incurred in renovating or
otherwise improving, decorating or redecorating rentable space for other tenants
or vacant rentable space; (C) costs incurred due to the violation by Landlord of
the terms and conditions of any lease of space in the Building; (D) costs of
overhead or profit increment paid to Landlord or to subsidiaries or affiliates
of Landlord for services in or in connection with the Building to the extent the
same exceeds the costs of overhead and profit increment included in the costs of
such services which could be obtained from third parties on a competitive basis;
(E) except as otherwise specifically provided in this Section 4.2.3, costs of
interest on debt or amortization on any mortgages, and rent payable under any
ground lease of the Real Property; (F) costs arising from the removal of
"Hazardous Material" (as defined in Section 5.2 hereof) in or about the Building
to the extent such Hazardous Material is (i) in existence as of the Lease
Commencement Date and in violation of applicable laws in effect as of the Lease
Commencement Date, or (ii) introduced after the Lease Commencement Date in
violation of applicable laws in effect as of the date of introduction; (G) costs
incurred in connection with the original construction of the Building; (H) costs
of correcting major and/or latent defects in or design error relating to the
design or construction of the Building or any subsequent improvements; (I) costs
(including costs for services and other items) for which the Landlord is
reimbursed by any tenant or occupant of the Building; (J) any bad debt loss,
rent loss, or reserves for bad debts or rent loss; (K) the cost of capital
improvements, capital repairs, capital alterations and other capital items,
except as expressly provided in Sections 4.2.3(x) or (y) above or clause (S)
hereinbelow; (L) costs associated with the operation of the business of the
legal entity which constitutes the Landlord, as the same are distinguished from
the costs of operation of the Building, including accounting and legal matters,
costs of defending any lawsuits with any mortgagee (except as the actions of the
Tenant may be in issue), costs of selling, syndicating, financing, mortgaging or
hypothecating any of Landlord's interest in the Building, costs (including
attorneys' fees and costs of settlement, judgments and payments in lieu thereof)
arising from claims, disputes or potential disputes in connection with potential
or actual claims, litigation or arbitration pertaining to Landlord and/or the
Real Property; (M) the wages and benefits of any employee who does not devote
substantially all of his or her employed time to the Building unless such wages
and benefits are prorated to reflect time spent on operating and managing the
Building vis-a-vis time spent on matters unrelated to operating and managing the
Building; (N) the wages and benefits of any other employee above the level of
Building manager or engineer; (O) fines, penalties and interest on late
payments; (P) costs incurred by Landlord with respect to goods and services
(including utilities sold and supplies to tenants and occupants of the Building)
to the extent that Landlord is directly reimbursed for such costs; (Q) expenses
in connection with services or other benefits which are not
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offered and/or provided to Tenant or for which Tenant is charged directly but
which are provided to another tenant or occupant of the Building without a
separate charge; (R) any compensation paid to clerks, attendants or other
persons at the Real Property or any other commercial concessions operated by
Landlord or third parties hired by Landlord; (S) rentals and other related
expenses incurred in leasing air conditioning systems, elevators or other
equipment ordinarily considered to be of a capital nature which if purchased
which would be excluded per clause (K) hereinabove, except equipment not affixed
to the Building which is used in providing janitorial or similar services and,
further excepting from this exclusion such equipment rented or leased to remedy
or ameliorate an emergency condition in the Building; (T) costs arising from
Landlord's political or charitable contributions, (U) costs, other than those
incurred in ordinary maintenance and repair, for sculpture, paintings, fountains
or other objects of art; (V) costs for which the Landlord has been compensated
by a management fee to the extent that the inclusion of such costs in Operating
Expenses would result in a double charge to Tenant; (W) tax penalties incurred
as a result of the Landlord's negligence, inability or unwillingness to make
payments when due: (X) Landlord's general corporate overhead and general and
administrative expenses; (Y) repairs or replacements to any utility systems
which are dedicated to the use of a single tenant; and (Z) electrical power
costs or other utility costs for which any tenant directly contracts with the
local public service company (but Landlord shall have the right to "gross up" as
if any such space was vacant).
4.2.4 "SYSTEMS AND EQUIPMENT" shall mean any plant, machinery,
transformers, duct work, cable, wires, and other equipment, facilities, and
systems designed to supply heat, ventilation, air conditioning and humidity or
any other services or utilities, or comprising or serving as any component or
portion of the electrical, gas, steam, plumbing, sprinkler, communications,
alarm, security, or fire/life safety systems or equipment, or any other
mechanical, electrical, electronic, computer or other systems or equipment
which serve the Building in whole or in part.
4.2.5 "TAX EXPENSES" shall mean all federal, state, county, or local
governmental or municipal taxes, fees, assessments, charges or other impositions
of every kind and nature, whether general, special, ordinary or extraordinary,
(including, without limitation, real estate taxes, general and special
assessments, transit assessments, fees and taxes, child care subsidies, fees
and/or assessments, job training subsidies, fees and/or assessments, open space
fees and/or assessments, housing subsidies and/or housing fund fees or
assessments, public art fees and/or assessments, leasehold taxes or taxes based
upon the receipt of rent, including gross receipts or sales taxes applicable to
the receipt of rent, personal property taxes imposed upon the fixtures,
machinery, equipment, apparatus, systems and equipment, appurtenances, furniture
and other personal property used in connection with the Real Property), which
Landlord shall pay during any Expense Year because of or in connection with the
ownership, leasing and operation of the Real Property or Landlord's interest
therein. For purposes of this Lease, Tax Expenses shall be calculated as if the
tenant improvements in the Building were fully constructed and the Real
Property, the Building, and all tenant improvements in the Building were fully
assessed for real estate tax purposes.
4.2.5.1 Tax Expenses shall include, without limitation:
(i) Any tax on Landlord's rent, right to rent or other income from
the Real Property or as against Landlord's business of leasing any of the Real
Property;
(ii) Any assessment, tax, fee, levy or charge in addition to, or in
substitution, partially or totally, of any assessment, tax, fee, levy or charge
previously included within the definition of real property tax, it being
acknowledged by Tenant and Landlord that Proposition 13 was adopted by the
voters of the State of California in the June 1978 election ("PROPOSITION 13")
and that assessments, taxes, fees, levies and charges may be imposed by
governmental agencies for such services as fire protection, street, sidewalk
and road maintenance, refuse removal and for other governmental services
formerly provided without charge to property owners or occupants. It is the
intention of Tenant and Landlord that all such new and increased assessments,
taxes, fees, levies, and charges and all similar assessments, taxes, fees,
levies and charges be included within the definition of Tax Expenses for
purposes of this Lease;
(iii) Any assessment, tax, fee, levy, or charge allocable to or
measured by the area of the Premises or the rent payable hereunder, including,
without limitation, any gross income tax upon or with respect to the possession,
leasing, operating, management, maintenance, alteration, repair, use or
occupancy by Tenant of the Premises, or any portion thereof;
(iv) Any assessment, tax, fee, levy or charge, upon this transaction
or any document to which Tenant is a party, creating or transferring an interest
or an estate in the Premises; and
(v) Any reasonable expenses incurred by Landlord in attempting to
protest, reduce or minimize Tax Expenses, but only to the extent such expenses
result in a reduction of such Tax Expenses.
4.2.5.2 In no event shall Tax Expenses for any Expense Year be less than
the component of Tax Expenses comprising a portion of the Base Year.
4.2.5.3 Notwithstanding anything to the contrary contained in this
Section 4.2.5, there shall be excluded from Tax Expenses (i) all excess profits
taxes, franchise taxes, gift taxes, capital stock taxes, inheritance and
succession taxes, estate taxes, federal and state net income taxes, and other
taxes to the extent applicable to Landlord's net income (as opposed to rents,
receipts or income attributable to operations at the Building or Real Property),
(ii) any items included as Operating Expenses, and (iii) any items paid by
Tenant under Section 4.4 of this Lease.
4.2.6 "TENANT'S SHARE" shall mean the percentage set forth in Section 9.2
of the Summary. Tenant's Share was calculated by dividing the rentable square
feet of the Premises by the total rentable square feet in the Building, and
stating such amount as a percentage. In the event either the rentable square
feet of the Premises and/or the total rentable square feet of the Building is
changed, Tenant's Share shall be appropriately adjusted, and, as to the Expense
Year in which such change occurs, Tenant's Share for such year shall be
determined on the basis of the number of days during such Expense Year that
each such Tenant's Share was in effect.
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4.3 Calculation and Payment of Additional Rent.
4.3.1 Calculation of Excess. If for any Expense Year ending or
commencing within the Lease Term, (i) Tenant's Share of Operating Expenses for
such Expense Year exceeds Tenant's Share of Operating Expenses for the Base
Year, and (ii) Tenant's Share of Tax Expenses for such Expense Year exceeds
Tenant's Share of Tax Expenses for the Base Year, then Tenant shall pay to
Landlord, in the manner set forth in Section 4.3.2 below, but subject to the
limitation in Section 4.3.4 below, as Additional Rent, an amount equal to the
excess of such Operating Expenses and Tax Expenses (the "Excess").
4.3.2 Statement of Actual Operating and Tax Expenses and Payment by
Tenant. Landlord shall endeavor to give to Tenant on or before the first day of
April following the end of each Expense Year, a statement (the "Statement")
which shall state the Operating and Tax Expenses incurred or accrued for such
preceding Expense Year, and which shall indicate the amount, if any, of any
Excess. Upon receipt of the Statement for each Expense Year ending during the
Lease Term, if an Excess is present, Tenant shall pay, with its next installment
of Base Rent due, the full amount of the Excess for such Expense Year, less the
amounts, if any, paid during such Expense Year as "Estimated Excess," as that
term is defined in Section 4.3.3 of this Lease. The failure of Landlord to
timely furnish the Statement for any Expense Year shall not prejudice Landlord
from enforcing its rights under this Article 4. Even though the Lease Term has
expired and Tenant has vacated the Premises, when the final determination is
made of the amount of Operating Expenses and Tax Expenses for the Expense Year
in which this Lease terminates, if an Excess is present, Tenant shall
immediately pay to Landlord an amount as calculated pursuant to the provisions
of Section 4.3.1 of this Lease. The provisions of this Section 4.3.2 shall
survive the expiration or earlier termination of the Lease Term.
4.3.3 Statement of Estimated Operating and Tax Expenses. In
addition, Landlord shall endeavor to give Tenant a yearly expense estimate
statement (the "Estimate Statement") which shall set forth Landlord's reasonable
estimate (the "Estimate") of what the total amount of Operating and Tax Expenses
for the then-current Expense Year shall be and the estimated Excess (the
"Estimated Excess") as calculated by comparing Tenant's Share of Operating and
Tax Expenses, which shall be based upon the Estimate, to Tenant's Share of
Operating and Tax Expenses respectively, for the Base Year. The failure of
Landlord to timely furnish the Estimate Statement for any Expense Year shall not
preclude Landlord from enforcing its rights to collect any Estimated Excess
under this Article 4. If pursuant to the Estimate Statement an Estimated Excess
is calculated for the then-current Expense Year, Tenant shall pay, with its next
installment of Base Rent due, a fraction of the Estimated Excess for the
then-current Expense Year (reduced by any amounts paid pursuant to the last
sentence of this Section 4.3.3). Such fraction shall have as its numerator the
number of months which have elapsed in such current Expense Year to the month of
such payment, both months inclusive, and shall have twelve (12) as its
denominator. Until a new Estimate Statement is furnished, Tenant shall pay
monthly, with the monthly Base Rent installments, an amount equal to one-twelfth
(1/12) of the total Estimated Excess set forth in the previous Estimate
Statement delivered by Landlord to Tenant.
4.4 Taxes and Other Charges for Which Tenant Is Directly Responsible.
Tenant shall reimburse Landlord upon demand for any and all taxes or assessments
required to be paid by Landlord (except to the extent included in Tax Expenses
by Landlord), excluding state, local and federal personal or corporate income
taxes measured by the net income of Landlord from all sources and estate and
inheritance taxes, whether or not now customary or within the contemplation of
the parties hereto, when:
4.4.1 Said taxes are measured by or reasonably attributable to the
cost or value of Tenant's equipment, furniture, fixtures and other personal
property located in the Premises, or by the cost or value of any leasehold
improvements made in or to the Premises by or for Tenant, to the extent the cost
or value of such leasehold improvements exceeds the cost or value of a building
standard build-out as determined by Landlord regardless of whether title to such
improvements shall be vested in Tenant or Landlord (provided Tenant shall not
pay such costs to the extent such charges are based on items located in another
tenant's premises);
4.4.2 Said taxes are assessed upon or with respect to the
possession, leasing, operation, management, maintenance, alteration, repair, use
or occupancy by Tenant of the Premises or any portion of the Real Property; or
4.4.3 Said taxes are assessed upon this transaction or any document
to which Tenant is a party creating or transferring an interest or an estate in
the Premises.
4.5 Late Charges. If any installment of Rent or any other sum due from
Tenant shall not be received by Landlord or Landlord's designee within five (5)
calendar days after such payment is due, then Tenant shall pay to Landlord a
late charge equal to ten percent (10%) of the amount due plus any attorneys'
fees incurred by Landlord by reason of Tenant's failure to pay Rent and/or other
charges when due hereunder. The late charge shall be deemed Additional Rent and
the right to require it shall be in addition to all of Landlord's other rights
and remedies hereunder, at law and/or in equity and shall not be construed as
liquidated damages or as limiting Landlord's remedies in any manner. In addition
to the late charge described above, any Rent or other amounts owing hereunder
which are not paid by the date that they are due shall thereafter bear interest
until paid at a rate (the "Interest Rate") equal to the lesser of (i) the "Prime
Rate" or "Reference Rate" announced from time to time by the Bank of America (or
such reasonable comparable national banking institution as selected by Landlord
in the event Bank of America ceases to exist or publish a Prime Rate or
Reference Rate), plus four percent (4%), or (ii) the highest rate permitted by
applicable law.
4.6 Audit Rights. In the event Tenant disputes the amount of the Operating
Expenses or Tax Expenses set forth in the Statement for the particular Expense
Year delivered by Landlord to Tenant pursuant to Section 4.3.2 above, Tenant
shall have the right, at Tenant's cost, after reasonable notice to Landlord, to
have Tenant's authorized employees inspect, at Landlord's office in Los Angeles
County during normal business hours, Landlord's books, records and supporting
documents concerning the Operating Expenses and Tax Expenses set forth in such
Statement; provided, however, Tenant shall have no right to conduct such
inspection, have an audit performed by the "Accountant" as described below, or
object to or otherwise dispute the amount of the Operating Expenses and Tax
Expenses set forth in any such Statement unless Tenant notifies Landlord of such
objection and dispute, completes such inspection, and has the Accountant
commence and complete such audit within two (2) years immediately following
Landlord's delivery of the particular Statement in question (the "Review
Period"); provided, further, that notwithstanding any such timely objection,
dispute, inspection, and/or audit, and as a condition precedent to Tenant's
exercise of its right of objection, dispute, inspection and/or audit as set
forth in this Section 4.6, Tenant shall not be permitted to withhold payment of,
and Tenant shall timely pay to Landlord, the full amounts as required by the
provisions of this Article 4 in accordance
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with such Statement. However, such payment may be made under protest pending the
outcome of any audit, which may be performed by the Accountant as described
below. In connection with any such inspection by Tenant, Landlord and Tenant
shall reasonably cooperate with each other so that such inspection can be
performed pursuant to a mutually acceptable schedule, in an expeditious manner
and without undue interference with Landlord's operation and management of the
Real Property. If after such inspection and/or request for documentation, Tenant
still disputes the amount of the Operating Expenses or Tax Expenses set forth in
the Statement, Tenant shall have the right, within the Review Period, to cause
an independent certified public accountant (which is not paid on a commission or
contingency basis) mutually approved by Landlord and Tenant (the "Accountant")
to complete an audit of Landlord's books and records to determine the proper
amount of the Operating Expenses and Tax Expenses incurred and amounts payable
by Tenant for the Expense Year which is the subject of such Statement. Such
audit by the Accountant shall be final and binding upon Landlord and Tenant. If
Landlord and Tenant cannot mutually agree as to the identity of the Accountant
within thirty (30) days after Tenant notifies Landlord that Tenant desires an
audit to be performed, then the Accountant shall be one of the "Big 5"
accounting firms (which is not paid on a commission or contingency basis), as
selected by Tenant and reasonably approved by Landlord. If such audit reveals
that Landlord has over-charged Tenant, then within thirty (30) days after the
results of such audit are made available to Landlord, Landlord shall reimburse
to Tenant the amount of such over-charge. If the audit reveals that the Tenant
was under-charged, then within thirty (30) days after the results of such audit
are made available to Tenant, Tenant shall reimburse to Landlord the amount of
such under-charge. Tenant agrees to pay the cost of such audit unless it is
subsequently determined that Landlord's original Statement which was the subject
of such audit overstated Operating Expenses and Tax Expenses by four percent
(4%) or more of the actual Operating Expenses and Tax Expenses which was the
subject of such audit. The payment by Tenant of any amounts pursuant to this
Article 4 shall not preclude Tenant from questioning, during the Review Period,
the correctness of the particular Statement in question provided by Landlord,
but the failure of Tenant to object thereto, conduct and complete its inspection
and have the Accountant conduct the audit as described above prior to the
expiration of the Review Period for such Statement shall be conclusively deemed
Tenant's approval of the Statement in question and the amount of Operating
Expenses and Tax Expenses shown thereon.
ARTICLE 5
USE OF PREMISES
5.1 Use. Tenant shall use the Premises solely for general office purposes
consistent with the character of the Building as a first-class office building,
and Tenant shall not use or permit the Premises to be used for any other purpose
or purposes whatsoever. Tenant further covenants and agrees that it shall not
use, or suffer or permit any person or persons to use, the Premises or any part
thereof for any use or purpose contrary to, or in violation of the laws of the
United States of America, the state in which the Building is located, or the
ordinances, regulations or requirements of the local municipal or county
governing body or other lawful authorities having jurisdiction over the
Building. Tenant shall comply with all recorded covenants, conditions, and
restrictions, and the provisions of all ground or underlying leases, now or
hereafter affecting the Real Property.
5.2 Hazardous Materials. Tenant shall not use or allow another person or
entity to use any part of the Premises for the storage, use, treatment,
manufacture or sale of "Hazardous Material," as that term is defined below. As
used herein, the term "Hazardous Material" means any hazardous or toxic
substance, material or waste which is or becomes regulated by any local
governmental authority, the state in which the Building is located or the United
States Government.
5.2.1 Notice. Tenant shall promptly notify Landlord of: (i) any
enforcement, cleanup or other regulatory action taken or threatened by any
governmental or regulatory authority with respect to the presence of any
Hazardous Material on the Premises or the migration thereof from or to other
property; (ii) any demands or claims made or threatened by any party against
Tenant or the Premises relating to any loss or injury resulting from any
Hazardous Material; (iii) any release, discharge or improper or unlawful
disposal or transportation of any Hazardous Material on or from the Premises;
and (iv) any matters where Tenant is required by law to give a notice to any
governmental or regulatory authority respecting any Hazardous Materials on the
Premises. Landlord shall have the right (but not the obligation) to join and
participate, as a party, in any legal proceedings or actions affecting the
Premises initiated in connection with any environmental health or safety laws.
At such times as Landlord may reasonably request, Tenant shall provide Landlord
with a written list identifying any Hazardous Material then used, stored, or
maintained upon the Premises, the use and approximate quantity of each such
material, a copy of any material safety data sheet ("MSDS") issued by the
manufacturer therefor, written information concerning the removal,
transportation and disposal of the same, and such other information as Landlord
may reasonably require or as may be required by law.
5.2.2 Tenant Compliance Actions. If any Hazardous Material is
released, discharged or disposed of by Tenant or any other occupant of the
Premises, or their employees agents or contractors, on or about the Premises or
Real Property in violation of the foregoing provisions, Tenant shall
immediately, properly and in compliance with applicable laws clean up and remove
the Hazardous Material from the Premises and any other affected property and
clean or replace any affected personal property (whether or not owned by
Landlord), at Tenant's expense. Such clean up and removal work shall be subject
to Landlord's prior written approval (except in emergencies), and shall include,
without limitation, any testing, investigation, and the preparation and
implementation of any remedial action plan required by any governmental body
having jurisdiction or reasonably required by Landlord. If Tenant shall fail to
comply with the provisions of this Section 5.2.2 within five (5) days after
written notice by Landlord, or such shorter time as may be required by law or in
order to minimize any hazard to persons or property, Landlord may (but shall not
be obligated to) arrange for such compliance directly or as Tenant's agent
through contractors or other parties selected by Landlord, at Tenant's expense
(without limiting Landlord's other remedies under this Lease or applicable law).
Without limitation of the foregoing, Tenant shall indemnify and hold Landlord
and its present and future partners, beneficiaries, trustees, officers,
directors, employees, shareholders, principals, agents affiliates, successors
and assigns, harmless from and against any claims, liabilities, judgments,
losses, expenses or costs (including attorneys' fees and costs) arising out of
any breach or violation by Tenant of this Article 5.
5.2.3 Landlord's Compliance Actions. If any Hazardous Material is
released, discharged or disposed of by Landlord or Landlord's agents or
employees on or about the Premises or Real Property in violation of applicable
Hazardous Material laws in effect at the time of introduction, (i) Landlord
shall clean-up and remove such Hazardous Material to the extent required by such
applicable laws, at Landlord's expense, which shall not be included in Operating
Expenses, and (ii) Landlord shall
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indemnify and hold Tenant harmless from and against any claims, liabilities,
judgments, losses, expenses or costs (including attorneys' fees and costs)
arising out of any breach or violation by Landlord of this Section 5.2.3.
ARTICLE 6
SERVICES AND UTILITIES
6.1 Standard Tenant Services. Landlord shall provide the following
services on all days during the Lease Term, unless otherwise stated below.
6.1.1 Subject to reasonable changes implemented by Landlord and to
all governmental rules, regulations and guidelines applicable thereto, Landlord
shall provide heating and air conditioning when necessary for normal comfort for
normal office use in the Premises (a) from Monday through Friday, during the
period from 8:00 a.m. to 6:00 p.m., and (b) Saturday's, during the period from
9:00 a.m. to 1:00 p.m., except for the date of observation of New Year's Day,
Presidents' Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day,
Christmas Day and other locally or nationally recognized holidays designated by
Landlord (collectively, the "Holidays").
6.1.2 Landlord shall provide adequate electrical wiring and
facilities and power for normal general office use as determined by Landlord.
Tenant shall bear the cost of replacement of lamps, starters and ballasts for
lighting fixtures within the Premises.
6.1.3 Landlord shall provide city water from the regular Building
outlets for drinking, lavatory and toilet purposes.
6.1.4 Landlord shall provide janitorial services five (5) days per
week, except the date of observation of the Holidays, in and about the Premises
and window washing services in a manner consistent with other comparable
buildings in the vicinity of the Building.
6.2 Overstandard Tenant Use. Tenant shall not, without Landlord's prior
written consent, use heat-generating machines, machines other than normal
fractional horsepower office machines, or equipment or lighting other than
building standard lights in the Premises, which may affect the temperature
otherwise maintained by the air conditioning system or increase the water
normally furnished for the Premises by Landlord pursuant to the terms of Section
6.1 of this Lease. If Tenant uses water or heat or air conditioning in excess of
that supplied by Landlord pursuant to Section 6.1 of this Lease, or if Tenant's
consumption of electricity shall exceed four (4) xxxxx per usable square foot of
the Premises, calculated on an annualized basis for the hours described in
Section 6.1.1 above, Tenant shall pay to Landlord, within ten (10) days after
billing, the cost of such excess consumption, the cost of the installation,
operation, and maintenance of equipment which is installed in order to supply
such excess consumption, and the cost of the increased wear and tear on existing
equipment caused by such excess consumption; and Landlord may install devices to
separately meter any increased use and in such event Tenant shall pay the
increased cost directly to Landlord, within ten (10) days after demand,
including the cost of such additional metering devices. If Tenant desires to use
heat, ventilation or air conditioning during hours other than those for which
Landlord is obligated to supply such utilities pursuant to the terms of Section
6.1 of this Lease, (i) Tenant shall give Landlord such prior notice, as Landlord
shall from time to time establish as appropriate, of Tenant's desired use, (ii)
Landlord shall supply such utilities to Tenant at Landlord's actual hourly cost
(including any start-up fees) as Landlord shall from time to time establish,
which actual hourly cost shall include a reasonable amount attributable to
increased wear and tear on existing equipment caused by such after-hours use,
overhead and accounting costs, and (iii) Tenant shall pay such cost within
thirty (30) days after billing.
6.3 Interruption of Use. Tenant agrees that Landlord shall not be liable
for damages, by abatement of Rent (except as provided in Section 6.5 below) or
otherwise, for failure to furnish or delay in furnishing any service (including
telephone and telecommunication services), or for any diminution in the quality
or quantity thereof, when such failure or delay or diminution is occasioned, in
whole or in part, by repairs, replacements, or improvements, by any strike,
lockout or other labor trouble, by inability to secure electricity, gas, water,
or other fuel at the Building after reasonable effort to do so, by any accident
or casualty whatsoever, by act or default of Tenant or other parties, or by any
other cause beyond Landlord's reasonable control; and such failures or delays or
diminution shall never be deemed to constitute an eviction or disturbance of
Tenant's use and possession of the Premises or relieve Tenant from paying Rent
(except as provided in Section 6.5 below) or performing any of its obligations
under this Lease. Furthermore, Landlord shall not be liable under any
circumstances for a loss of, or injury to, property or for injury to, or
interference with, Tenant's business, including, without limitation, loss of
profits, however occurring, through or in connection with or incidental to a
failure to furnish any of the services or utilities as set forth in this Article
6.
6.4 Additional Services. Landlord shall also have the exclusive right, but
not the obligation, to provide any additional services which may be required by
Tenant, including, without limitation, locksmithing, lamp replacement,
additional janitorial service, and additional repairs and maintenance, provided
that Tenant shall pay to Landlord upon billing, the sum of all costs to Landlord
of such additional services plus a ten percent (10%) administration fee. Charges
for any utilities or service for which Tenant is required to pay from time to
time hereunder, shall be deemed Additional Rent hereunder and shall be billed on
a monthly basis.
6.5 Abatement of Rent When Tenant Is Prevented From Using Premises. In the
event that Tenant is prevented from using, and does not use, the Premises or any
portion thereof, for ten (10) consecutive business days (the "Eligibility
Period") as a result of (i) any repair, maintenance or alteration performed by
Landlord after the Lease Commencement Date and required to be performed by
Landlord under this Lease, (ii) any failure to provide to the Premises any of
the essential utilities and services required to be provided in Sections 6.1.1
or 6.1.2 above, (iii) the presence of any Hazardous Materials in or on the Real
Property in violation of applicable Hazardous Material laws, provided such
Hazardous Materials were not introduced to the Real Property by Tenant, its
employees or agents, or (iv) any failure to provide access to the Premises, then
Tenant's obligation to pay Base Rent shall be abated or reduced, as the case may
be, from and after the first (1st) day following the Eligibility Period and
continuing until such time as Tenant may again conduct its business in the
Premises, in the proportion that the rentable square feet of the portion of the
Premises that Tenant is prevented from using, and does not use, bears to the
total rentable square feet of the
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Premises. To the extent Tenant shall be entitled to abatement of rent because of
a damage or destruction pursuant to Article 11 or a taking pursuant to Article
12, then the Eligibility Period shall not be applicable.
ARTICLE 7
REPAIRS
7.1 Tenant's Repairs. Subject to Landlord's repair obligations in Sections
7.2 and 11.1 below, Tenant shall, at Tenant's own expense, keep the Premises,
including all improvements, fixtures and furnishings therein, in good order,
repair and condition at all times during the Lease Term, which repair
obligations shall include, without limitation, the obligation to promptly and
adequately repair all damage to the Premises and replace or repair all damaged
or broken fixtures and appurtenances; provided however, that, at Landlord's
option, or if Tenant fails to make such repairs, Landlord may, but need not,
make such repairs and replacements, and Tenant shall pay Landlord the cost
thereof, including a percentage of the cost thereof (to be uniformly established
for the Building) sufficient to reimburse Landlord for all overhead, general
conditions, fees and other costs or expenses arising from Landlord's involvement
with such repairs and replacements forthwith upon being billed for same.
7.2 Landlord's Repairs. Anything contained in Section 7.1 above to the
contrary notwithstanding, and subject to Articles 11 and 12 of this Lease,
Landlord shall repair and maintain the structural portions of the Building,
including the basic plumbing, heating, ventilating, air conditioning and
electrical systems installed or furnished by Landlord (but not including any
non-base building facilities installed by or on behalf of Tenant); provided,
however, if such maintenance and repairs are caused in part or in whole by the
act, neglect, fault of or omission of any duty by Tenant, its agents, servants,
employees or invitees, Tenant shall pay to Landlord as additional rent, the
reasonable cost of such maintenance and repairs. Landlord shall not be liable
for any failure to make any such repairs, or to perform any maintenance unless
such failure shall persist for an unreasonable time after written notice of the
need of such repairs or maintenance is given to Landlord by Tenant. There shall
be no abatement of rent (except as provided in Section 6.5 above) and no
liability of Landlord by reason of any injury to or interference with Tenant's
business arising from the making of any repairs, alterations or improvements in
or to any portion of the Building or the Premises or in or to fixtures,
appurtenances and equipment therein. Tenant hereby waives and releases its right
to make repairs at Landlord's expense under Sections 1941 and 1942 of the
California Civil Code; or under any similar law, statute, or ordinance now or
hereafter in effect.
ARTICLE 8
ADDITIONS AND ALTERATIONS
8.1 Landlord's Consent to Alterations. Other than non-structural
improvements, alterations, additions or changes to the interior of the Premises
costing in the aggregate less than $10,000.00 and which are not visible from
outside the Premises, Tenant may not make any improvements, alterations,
additions or changes to the Premises (collectively, the "Alterations") without
first procuring the prior written consent of Landlord to such Alterations, which
consent shall be requested by Tenant not less than thirty (30) days prior to the
commencement thereof, and which consent shall not be unreasonably withheld by
Landlord; provided, however, Landlord may withhold its consent in its sole and
absolute discretion with respect to any Alterations which may affect the
structural components of the Building or the Systems and Equipment or which are
visible from outside of the Premises or may adversely affect any other area of
the Building. Tenant shall pay for all overhead, general conditions, fees and
other costs and expenses of the Alterations, and shall pay to Landlord a
Landlord supervision fee of fifteen percent (15%) of the cost of the
Alterations. The construction of the initial improvements to the Premises shall
be governed by the terms of the Tenant Work Letter and not the terms of this
Article 8.
8.2 Manner of Construction. Landlord may impose, as a condition of its
consent to all Alterations or repairs of the Premises or about the Premises,
such requirements as Landlord in its reasonable discretion may deem desirable,
including, but not limited to, the requirement that Tenant utilize for such
purposes only contractors, materials, mechanics and materialmen approved by
Landlord; provided, however, Landlord may impose such requirements as Landlord
may determine, in its reasonable discretion, with respect to any work affecting
the structural components of the Building or Systems and Equipment (including
designating specific contractors to perform such work). Tenant shall construct
such Alterations and perform such repairs in conformance with any and all
applicable rules and regulations of any federal, state, county or municipal code
or ordinance and pursuant to a valid building permit, issued by the city in
which the Building is located, and in conformance with Landlord's construction
rules and regulations. Landlord's approval of the plans, specifications and
working drawings for Tenant's Alterations shall create no responsibility or
liability on the part of Landlord for their completeness, design sufficiency, or
compliance with all laws, rules and regulations of governmental agencies or
authorities. All work with respect to any Alterations must be done in a good and
workmanlike manner and diligently prosecuted to completion to the end that the
Premises shall at all times be a complete unit except during the period of work.
In performing the work of any such Alterations, Tenant shall have the work
performed in such manner as not to obstruct access to the Building or the common
areas for any other tenant of the Building, and as not to obstruct the business
of Landlord or other tenants in the Building, or interfere with the labor force
working in the Building. If Tenant makes any Alterations, Tenant agrees to carry
"Builder's All Risk" insurance in an amount approved by Landlord covering the
construction of such Alterations, and such other insurance as Landlord may
require, it being understood and agreed that all of such Alterations shall be
insured by Tenant pursuant to Article 10 of this Lease immediately upon
completion thereof. In addition, Landlord may, in its discretion, require Tenant
to obtain a lien and completion bond or some alternate form of security
satisfactory to Landlord in an amount sufficient to ensure the lien-free
completion of such Alterations and naming Landlord as a co-obligee. Upon
completion of any Alterations, Tenant shall (i) cause a Notice of Completion to
be recorded in the office of the Recorder of the county in which the Building is
located in accordance with Section 3093 of the Civil Code of the State of
California or any successor statute, (ii) deliver to the Building management
office a reproducible copy of the "as built" drawings of the Alterations, and
(iii) deliver to Landlord evidence of payment, contractors' affidavits and full
and final waivers of all liens for labor, services or materials.
8.3 Landlord's Property. All Alterations, improvements, fixtures and/or
equipment which may be installed or placed in or about the Premises, and all
signs installed in, on or about the Premises, from time to time, shall be at the
sole cost of Tenant and shall be and become the property of Landlord upon the
expiration or earlier termination of the Lease. Furthermore, Landlord
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may require that Tenant remove any improvement or Alteration upon the expiration
or early termination of the Lease Term, and repair any damage to the Premises
and Building caused by such removal. If Tenant fails to complete such removal
and/or to repair any damage caused by the removal of any Alterations, Landlord
may do so and may charge the cost thereof to Tenant.
ARTICLE 9
COVENANT AGAINST LIENS
Tenant has no authority or power to cause or permit any lien or
encumbrance of any kind whatsoever, whether created by act of Tenant, operation
of law or otherwise, to attach to or be placed upon the Real Property, Building
or Premises, and any and all liens and encumbrances created by Tenant shall
attach to Tenant's interest only. Landlord shall have the right at all times to
post and keep posted on the Premises any notice which it deems necessary for
protection from such liens. Tenant covenants and agrees not to suffer or permit
any lien of mechanics or materialmen or others to be placed against the Real
Property, the Building or the Premises with respect to work or services claimed
to have been performed for or materials claimed to have been furnished to Tenant
or the Premises, and, in case of any such lien attaching or notice of any lien,
Tenant covenants and agrees to cause it to be immediately released and removed
of record within twenty (20) days after the date of notice of such filing.
Notwithstanding anything to the contrary set forth in this Lease, if any such
lien is not released and removed within such twenty (20) day period, Landlord,
at its sole option, may immediately take all action necessary to release and
remove such lien, without any duty to investigate the validity thereof, and all
sums, costs and expenses, including reasonable attorneys' fees and costs,
incurred by Landlord in connection with such lien shall be deemed Additional
Rent under this Lease and shall immediately be due and payable by Tenant.
ARTICLE 10
INDEMNIFICATION AND INSURANCE
10.1 Indemnification and Waiver. Tenant hereby assumes all risk of damage
to property and injury to persons, in, on, or about the Premises from any cause
whatsoever and agrees that Landlord, and its officers, agents, property
managers, affiliates, servants, employees, and independent contractors
(collectively, "Landlord Parties") shall not be liable for, and are hereby
released from any responsibility for, any damage to property or injury to
persons or resulting from the loss of use thereof, which damage or injury is
sustained by Tenant or by other persons claiming through Tenant. Tenant shall
indemnify, defend, protect, and hold harmless the Landlord Parties from any and
all loss, cost, damage, expense and liability, including without limitation
court costs and reasonable attorneys' fees (collectively, "Claims") incurred in
connection with or arising from any cause in, on or about the Premises
(including, without limitation, Tenant's installation, placement and removal of
Alterations, improvements, fixtures and/or equipment in, on or about the
Premises), and any acts, omissions or negligence of Tenant or of any person
claiming by, through or under Tenant, or of the contractors, agents, servants,
employees, licensees or invitees of Tenant or any such person, in, on or about
the Premises, Building and Real Property. Notwithstanding the foregoing
provisions of this Section 10.1 to the contrary, Tenant's assumption of risk and
release and indemnity of Landlord provided hereinabove shall not apply with
respect to any Claims to the extent caused by the gross negligence or willful
misconduct of Landlord and not insured or required to be insured by Tenant under
this Lease (collectively, the "Excluded Claims"), and Landlord shall indemnify,
defend, protect and hold Tenant harmless from and against any such Excluded
Claims (other than lost profits and other consequential damages). The provisions
of this Section 10.1 shall survive the expiration or sooner termination of this
Lease.
10.2 Landlord's Insurance and Tenant's Compliance with Landlord's Fire and
Casualty Insurance. Landlord shall carry commercial general liability insurance
with respect to the Building and Real Property during the Lease Term, and shall
further insure the Building (except, at Landlord's option, with respect to items
required to be insured by Tenant pursuant to Section 10.3.2 of this Lease)
during the Lease Term against loss or damage due to fire and other casualties
covered within the classification of fire and extended coverage, vandalism
coverage and malicious mischief, sprinkler leakage, water damage and special
extended coverage. Such coverage shall be in such amounts, from such companies,
and on such other terms and conditions, as Landlord may from time to time
reasonably determine. Additionally, at the option of Landlord, such insurance
coverage may include the risks of earthquakes and/or flood damage and additional
hazards, a rental loss endorsement and one or more loss payee endorsements in
favor of the holders of any mortgages or deeds of trust encumbering the interest
of Landlord in the Real Property or the ground or underlying lessors of the
Building, or any portion thereof. The cost of any new type or increased amount
of insurance coverage which is obtained by Landlord during any Expense Year
after the Base Year (but is not obtained during the Base Year) shall be added to
the Base Year Operating Expenses (but at the rate which would have been in
effect during the Base Year or the rate in effect during such subsequent Expense
Year, whichever is lower) prior to the calculation of Tenant's Share of
Operating Expenses for such Expense Year in which such insurance is initially
obtained or increased. Tenant shall, at Tenant's expense, comply with all
insurance company requirements pertaining to the use of the Premises. If
Tenant's conduct or use of the Premises causes any increase in the premium for
any insurance policies carried by Landlord, then Tenant shall reimburse Landlord
for any such increase. Tenant, at Tenant's expense, shall comply with all rules,
orders, regulations or requirements of the American Insurance Association
(formerly the National Board of Fire Underwriters) and with any similar body.
10.3 Tenant's Insurance. Tenant shall maintain the following coverages in
the following amounts.
10.3.1 Commercial General Liability Insurance covering the insured
against claims of bodily injury, personal injury and property damage arising out
of Tenant's operations, assumed liabilities or use of the Premises, including a
Broad Form Commercial General Liability endorsement covering the insuring
provisions of this Lease and the performance by Tenant of the indemnity
agreements set forth in Section 10.1 of this Lease, for limits of liability not
less than:
Bodily Injury and $2,000,000 each occurrence
Property Damage Liability $2,000,000 annual aggregate
Personal Injury Liability $2,000,000 each occurrence
$2,000,000 annual aggregate
0% Insured's participation
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10.3.2 Physical Damage Insurance covering (i) all office furniture,
trade fixtures, office equipment, merchandise and all other items of Tenant's
property on the Premises installed by, for, or at the expense of Tenant, (ii)
all tenant improvements now or hereafter existing in the Premises (including the
Tenant Improvements to be constructed pursuant to the Work Letter), including
any tenant improvements which Landlord permits to be installed above the ceiling
of the Premises or below the floor of the Premises, and (iii) all other
improvements, alterations and additions to the Premises, including any
improvements, alterations or additions installed at Tenant's request above the
ceiling of the Premises or below the floor of the Premises. Such insurance shall
be written on an "all risks" of physical loss or damage basis, for the full
replacement cost value new without deduction for depreciation of the covered
items and in amounts that meet any co-insurance clauses of the policies of
insurance and shall include a vandalism and malicious mischief endorsement,
sprinkler leakage coverage and earthquake sprinkler leakage coverage.
10.3.3 Form of Policies. The minimum limits of policies of insurance
required of Tenant under this Lease shall in no event limit the liability of
Tenant under this Lease. Such insurance shall (i) name Landlord, and any other
party it so specifies, as an additional insured; (ii) specifically cover the
liability assumed by Tenant under this Lease, including, but not limited to,
Tenant's obligations under Section 10.1 of this Lease; (iii) be issued by an
insurance company having a rating of not less than A-X in Best's Insurance Guide
or which is otherwise acceptable to Landlord and licensed to do business in the
state in which the Building is located; (iv) be primary insurance as to all
claims thereunder and provide that any insurance carried by Landlord is excess
and is non-contributing with any insurance requirement of Tenant; (v) provide
that said insurance shall not be canceled or coverage changed unless thirty (30)
days' prior written notice shall have been given to Landlord and any mortgagee
or ground or underlying lessor of Landlord; and (vi) contain a cross-liability
endorsement or severability of interest clause acceptable to Landlord. Tenant
shall deliver said policy or policies or certificates thereof to Landlord on or
before the Lease Commencement Date and at least thirty (30) days before the
expiration dates thereof. If Tenant shall fail to procure such insurance, or to
deliver such policies or certificate, within such time periods, Landlord may, at
its option, in addition to all of its other rights and remedies under this
Lease, and without regard to any notice and cure periods set forth in Section
19.1, procure such policies for the account of Tenant, and the cost thereof
shall be paid to Landlord as Additional Rent within ten (10) days after delivery
of bills therefor.
10.4 Subrogation. Landlord and Tenant agree to have their respective
insurance companies issuing property damage insurance waive any rights of
subrogation that such companies may have against Landlord or Tenant, as the case
may be, so long as the insurance carried by Landlord and Tenant, respectively,
is not invalidated thereby. As long as such waivers of subrogation are contained
in both insurance policies, Landlord and Tenant hereby waive any right that
either may have against the other on account of any loss or damage to their
respective property to the extent such loss or damage is insurable under
policies of insurance for fire and all risk coverage, theft, public liability,
or other similar insurance.
10.5 Additional Insurance Obligations. Tenant shall carry and maintain
during the entire Lease Term, at Tenant's sole cost and expense, increased
amounts of the insurance required to be carried by Tenant pursuant to this
Article 10, and such other reasonable types of insurance coverage and in such
reasonable amounts covering the Premises and Tenant's operations therein, as may
be reasonably requested by Landlord.
ARTICLE 11
DAMAGE AND DESTRUCTION
11.1 Repair of Damage to Premises by Landlord. Tenant shall promptly
notify Landlord of any damage to the Premises resulting from fire or any other
casualty. If the Premises or any common areas of the Building serving or
providing access to the Premises shall be damaged by fire or other casualty,
Landlord shall promptly and diligently, subject to reasonable delays for
insurance adjustment or other matters beyond Landlord's reasonable control, and
subject to all other terms of this Article 11, restore the base, shell, and core
of the Premises and such common areas. Such restoration shall be to
substantially the same condition of the base, shell, and core of the Premises
and common areas prior to the casualty, except for modifications required by
zoning and building codes and other laws or by the holder of a mortgage on the
Building, or the lessor of a ground or underlying lease with respect to the Real
Property and/or the Building, or any other modifications to the common areas
deemed desirable by Landlord, provided access to the Premises and any common
restrooms serving the Premises shall not be materially impaired. Notwithstanding
any other provision of this Lease, upon the occurrence of any damage to the
Premises, Tenant shall assign to Landlord (or to any party designated by
Landlord) all insurance proceeds payable to Tenant under Tenant's insurance
required under Section 10.3.2(ii) and (iii) of this Lease (but Tenant shall not
be obligated to assign any such proceeds to Landlord with respect to
improvements or alterations paid for by Tenant if this Lease is terminated by
either party pursuant to the applicable provisions of this Lease based on the
occurrence of such damage), and Landlord shall repair any injury or damage to
the tenant improvements and alterations installed in the Premises and shall
return such tenant improvements and alterations to their original condition;
provided that if the cost of such repair by Landlord exceeds the sum of (i) the
insurance proceeds received by Landlord from Tenant's insurance carrier, as
assigned by Tenant, and (ii) that portion of any insurance proceeds received by
Landlord with respect to insurance which is maintained by Landlord as part of
Operating Expenses and which is appropriately attributed to the Premises, then
the cost of such repairs shall be paid by Tenant to Landlord prior to Landlord's
repair of the damage. In connection with such repairs and replacements, Tenant
shall, prior to the commencement of construction, submit to Landlord, for
Landlord's review and approval, all plans, specifications and working drawings
relating thereto, and Landlord shall select the contractors to perform such
improvement work. Landlord shall not be liable for any inconvenience or
annoyance to Tenant or its visitors, or injury to Tenant's business resulting in
any way from such damage or the repair thereof; provided however, that if such
fire or other casualty shall have damaged the Premises or common areas necessary
to Tenant's occupancy, and if such damage is not the result of the negligence or
willful misconduct of Tenant or Tenant's employees, contractors, licensees, or
invitees, Landlord shall allow Tenant a proportionate abatement of Base Rent and
Tenant's Share of Operating and Tax Expenses, during the time and to the extent
the Premises are unfit for occupancy for the purposes permitted under this
Lease, and not occupied by Tenant as a result thereof.
11.2 Termination Rights. Within sixty (60) days after Landlord becomes
aware of such damage (specifically including the introduction of any Hazardous
Materials in violation of Section 6.5(iii) of this Lease), Landlord shall notify
Tenant in writing ("Landlord's Damage Notice") of the estimated time, in
Landlord's reasonable judgment, required to substantially complete the repairs
of such damage (the "Estimated Repair Period"). Notwithstanding the terms of
Section 11.1 of this Lease,
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Landlord may elect not to rebuild and/or restore the Premises and/or Building
and instead terminate this Lease by notifying Tenant in writing of such
termination within sixty (60) days after the date of damage, such notice to
include a termination date giving Tenant ninety (90) days to vacate the
Premises, but Landlord may so elect only if the Building shall be damaged by
fire or other casualty or cause, whether or not the Premises are affected, and
one or more of the following conditions is present: (i) repairs cannot, in
Landlord's opinion, as set forth in Landlord's Damage Notice, reasonably be
completed within one hundred twenty (120) days of the date of damage (when such
repairs are made without the payment of overtime or other premiums); or (ii) the
damage is not fully covered, except for deductible amounts, by Landlord's
insurance policies obtained or required to be obtained pursuant to Section 10.2
above; provided, however, that (A) if Landlord does not elect to terminate this
Lease pursuant to Landlord's termination right as provided above, (B) the damage
constitutes a Tenant Damage Event (as defined below), and (C) the repair of such
damage cannot, in the reasonable opinion of Landlord, as set forth in Landlord's
Damage Notice, be completed within one hundred twenty (120) days after the date
of the damage, then Tenant may elect to terminate this Lease by delivering
written notice thereof to Landlord within fifteen (15) days after Tenant's
receipt of Landlord's Damage Notice, which termination shall be effective as of
the date of such termination notice thereof to Landlord. As used herein, a
"Tenant Damage Event") shall mean damage to all or any part of the Premises or
any common areas of the Building providing access to the Premises by fire or
other casualty, which damage is not the result of the gross negligence or
willful misconduct of Tenant or any of Tenant's employees, agents, contractors
or licenses, and which damage substantially interferes with Tenant's use of or
access to the Premises and would entitle Tenant to an abatement of Rent pursuant
to the provisions of this Lease. In addition, in the event of a Tenant Damage
Event, and if neither Landlord nor Tenant has elected to terminate this Lease as
provided hereinabove, but Landlord fails to substantially complete the repair
and restoration of such Tenant Damage Event within the Estimated Repair Period
plus sixty (60) days, plus the number of days of delay, if any, attributable to
events of "Force Majeure," as that term is defined in Section 24.17 hereof, plus
the number of delay, if any, as are attributable to the acts or omissions of
Tenant, then Tenant shall have an additional right to terminate this Lease by
delivering written termination notice to Landlord within fifteen (15) days after
the expiration of such period, which termination shall be effective as of the
date of such determination notice. Further, in the event that the Premises or
the Building is destroyed or damaged to any substantial extent during the last
twelve (12) months of the Lease Term, then notwithstanding anything contained in
this Article 11, Landlord shall have the option to terminate this Lease, and to
the extent such destruction or damage constitutes a Tenant Damage Event and the
repair of same is reasonably expected by Landlord to require more than sixty
(60) days to complete, Tenant shall have the option to terminate this Lease, by
giving written termination notice to the other party of the exercise of such
option within thirty (30) days after the date of such damage or destruction;
provided, however that Tenant shall have the right to cancel Landlord's exercise
of the above-described termination right by providing Landlord, within ten (10)
days of Tenant's receipt from Landlord of the termination notice, with written
notice of Tenant's exercise of its right, pursuant to the Extension Option Rider
(if such right has not yet expired), to so extend the Lease Term. If either
Landlord or Tenant exercises any of its options to terminate this Lease as
provided hereinabove, (1) this Lease shall cease and terminate as of the date of
such termination notice, (2) Tenant shall pay the Base Rent and Additional Rent,
properly apportioned up to such date of termination, and (3) both parties hereto
shall thereafter be freed and discharged of all further obligations hereunder,
except as provided for in provisions of this Lease which by their terms survive
the expiration or earlier termination of the Lease Term.
11.3 Waiver of Statutory Provisions. The provisions of this Lease,
including this Article 11, constitute an express agreement between Landlord and
Tenant with respect to any and all damage to, or destruction of, all or any part
of the Premises, the Building or any other portion of the Real Property, and any
statute or regulation of the state in which the Building is located, including,
without limitation, Sections 1932(2) and 1933(4) of the California Civil Code,
with respect to any rights or obligations concerning damage or destruction in
the absence of an express agreement between the parties, and any other statute
or regulation, now or hereafter in effect, shall have no application to this
Lease or any damage or destruction to all or any part of the Premises, the
Building or any other portion of the Real Property.
ARTICLE 12
CONDEMNATION
12.1 Permanent Taking. If a Material Taking (as defined below) occurs,
either Landlord or Tenant may terminate this Lease upon ninety (90) days' notice
to the other party, provided such notice is given no later than one hundred
eighty (180) days after the date of such Taking (as defined below). For purposes
hereof (i) a "Material Taking" with respect to Landlord shall mean a Taking of
at least ten percent (10%) of the Premises, the Building or the Real Property,
or a Taking of any portion of the Real Property which substantially impairs
access to the Building, and (ii) a "Material Taking" with respect to Tenant
shall mean a Taking of at least twenty-five percent (25%) of the rentable square
feet of the Premises, or a Taking of any portion of the Real Property which
substantially impairs access to the Premises. As used herein, a "Taking" shall
mean the taking of property by power of eminent domain or condemnation by any
competent authority for any public or quasi-public use or purpose, or if
Landlord shall grant a deed or other instrument in lieu of such taking by
eminent domain or condemnation. Landlord shall be entitled to receive the entire
award or payment in connection therewith, except that Tenant shall have the
right to file any separate claim available to Tenant for any taking of Tenant's
personal property and fixtures belonging to Tenant and removable by Tenant upon
expiration of the Lease Term pursuant to the terms of this Lease, and for moving
expenses, so long as such claim is payable separately to Tenant. All Rent shall
be apportioned as of the date of such termination, or the date of such taking,
whichever shall first occur. If any part of the Premises shall be taken, and
this Lease shall not be so terminated, the Rent shall be proportionately abated.
Tenant hereby waives any and all rights it might otherwise have pursuant to
Section 1265.130 of The California Code of Civil Procedure.
12.2 Temporary Taking. Notwithstanding anything to the contrary contained
in this Article 12, in the event of a temporary taking of all or any portion of
the Premises for a period of ninety (90) days or less, then this Lease shall not
terminate but the Base Rent and the Additional Rent shall be abated for the
period of such taking in proportion to the ratio that the amount of rentable
square feet of the Premises taken bears to the total rentable square feet of the
Premises. Landlord shall be entitled to receive the entire award made in
connection with any such temporary taking.
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ARTICLE 13
COVENANT OF QUIET ENJOYMENT
Landlord covenants that Tenant, on paying the Rent, charges for services
and other payments herein reserved and on keeping, observing and performing all
the other terms, covenants, conditions, provisions and agreements herein
contained on the part of Tenant to be kept, observed and performed, shall,
during the Lease Term, peaceably and quietly have, hold and enjoy the Premises
subject to the terms, covenants, conditions, provisions and agreements hereof
without interference by any persons lawfully claiming by or through Landlord.
The foregoing covenant is in lieu of any other covenant express or implied.
ARTICLE 14
ASSIGNMENT AND SUBLETTING
14.1 Transfers. Tenant shall not, without the prior written consent of
Landlord, assign, mortgage, pledge, hypothecate, encumber, or permit any lien to
attach to, or otherwise transfer, this Lease or any interest hereunder, permit
any assignment or other such foregoing transfer of this Lease or any interest
hereunder by operation of law, sublet the Premises or any part thereof, or
permit the use of the Premises by any persons other than Tenant and its
employees (all of the foregoing are hereinafter sometimes referred to
collectively as "Transfers" and any person to whom any Transfer is made or
sought to be made is hereinafter sometimes referred to as a "Transferee"). If
Tenant shall desire Landlord's consent to any Transfer, Tenant shall notify
Landlord in writing, which notice (the "Transfer Notice") shall include (i) the
proposed effective date of the Transfer, which shall not be less than thirty
(30) days nor more than one hundred eighty (180) days after the date of delivery
of the Transfer Notice, (ii) a description of the portion of the Premises to be
transferred (the "Subject Space"), (iii) all of the terms of the proposed
Transfer, the name and address of the proposed Transferee, and a copy of all
existing and/or proposed documentation pertaining to the proposed Transfer,
including all existing operative documents to be executed to evidence such
Transfer or the agreements incidental or related to such Transfer, (iv) current
financial statements of the proposed Transferee certified by an officer, partner
or owner thereof, and (v) such other information as Landlord may reasonably
require. Any Transfer made without Landlord's prior written consent shall, at
Landlord's option, be null, void and of no effect, and shall, at Landlord's
option, constitute a default by Tenant under this Lease. Whether or not Landlord
shall grant consent, Tenant shall pay Landlord's reasonable legal fees incurred
by Landlord, up to a maximum of $1,500.00, within thirty (30) days after written
request by Landlord.
14.2 Landlord's Consent. Landlord shall, within fifteen (15) days of its
receipt of all appropriate information regarding the proposed Transfer and
Transferee, notify Tenant of its election to either grant or withhold (but not
unreasonably) its consent to such proposed Transfer of the Subject Space to the
Transferee on the terms specified in the Transfer Notice. If Landlord fails to
respond in a timely manner after receipt of all appropriate information, Tenant
shall deliver a second written notice ("Deemed Approval Notice"), again
including all such appropriate information and stating that, pursuant to this
Section 14.2, Landlord must either grant or withhold its consent within five (5)
business days of its receipt of such Deemed Approval Notice, otherwise Landlord
shall be deemed to have granted its approval to such proposed Transfer and
Tenant may proceed to Transfer the Subject Space pursuant to the terms proposed
in the Transfer Notice and Deemed Approval Notice. The parties hereby agree that
it shall be reasonable under this Lease and under any applicable law for
Landlord to withhold consent to any proposed Transfer where one or more of the
following apply, without limitation as to other reasonable grounds for
withholding consent:
14.2.1 The Transferee is of a character or reputation or engaged in
a business, which is not consistent with the quality of the Building;
14.2.2 The Transferee intends to use the Subject Space for purposes,
which are not permitted under this Lease;
14.2.3 The Transferee is either a governmental agency or
instrumentality thereof;
14.2.4 The Transfer will result in more than a reasonable and safe
number of occupants per floor within the Subject Space;
14.2.5 The Transferee is not a party of reasonable financial worth
and/or financial stability to perform the Tenant's obligations hereunder;
14.2.6 The proposed Transfer would cause Landlord to be in violation
of another lease or agreement to which Landlord is a party, or would give an
occupant of the Building a right to cancel its lease; or
14.2.7 Either the proposed Transferee, or any person or entity which
directly or indirectly, controls, is controlled by, or is under common control
with, the proposed Transferee, (i) occupies space in the Building at the time of
the request for consent, or (ii) is negotiating with Landlord to lease space in
the Building at such time.
If Landlord consents to any Transfer pursuant to the terms of this Section
14.2 (and does not exercise any recapture rights Landlord may have under Section
14.4 of this Lease), Tenant may within six (6) months after Landlord's consent,
but not later than the expiration of said six-month period, enter into such
Transfer of the Premises or portion thereof, upon substantially the same terms
and conditions as are set forth in the Transfer Notice furnished by Tenant to
Landlord pursuant to Section 14.1 of this Lease, provided that if there are any
changes in the terms and conditions from those specified in the Transfer Notice
(i) such that Landlord would initially have been entitled to refuse its consent
to such Transfer under this Section 14.2, or (ii) which would cause the proposed
Transfer to be more favorable to the Transferee than the terms set forth in
Tenant's original Transfer Notice, Tenant shall again submit the Transfer to
Landlord for its approval and other action under this Article 14 (including
Landlord's right of recapture, if any, under Section 14.4 of this Lease).
14.3 Transfer Premium. If Landlord consents to a Transfer, as a condition
thereto which the parties hereby agree is reasonable, Tenant shall pay to
Landlord fifty percent (50%) of any "Transfer Premium," as that term is defined
in this Section 14.3, received by Tenant from such Transferee. "Transfer
Premium" shall mean all rent, additional rent or other consideration
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payable by such Transferee in excess of the Rent and Additional Rent payable by
Tenant under this Lease on a per rentable square foot basis if less than all of
the Premises is transferred, after deducting the reasonable expenses incurred by
Tenant for (i) any changes, alterations and improvements to the Premises in
connection with the Transfer, and (ii) any brokerage commissions in connection
with the Transfer (collectively, the "Subleasing Costs"). "Transfer Premium"
shall also include, but not be limited to, key money and bonus money paid by
Transferee to Tenant in connection with such Transfer, and any payment in excess
of fair market value for services rendered by Tenant to Transferee or for
assets, fixtures, inventory, equipment, or furniture transferred by Tenant to
Transferee in connection with such Transfer.
14.4 Landlord's Option as to Subject Space. Notwithstanding anything to
the contrary contained in this Article 14, Landlord shall have the option, by
giving written notice to Tenant within fifteen (15) days after receipt of any
Transfer Notice, to recapture the Subject Space. Such recapture notice shall
cancel and terminate this Lease with respect to the Subject Space as of the date
stated in the Transfer Notice as the effective date of the proposed Transfer. If
this Lease shall be canceled with respect to less than the entire Premises, the
Rent reserved herein shall be prorated on the basis of the number of rentable
square feet retained by Tenant in proportion to the number of rentable square
feet contained in the Premises, and this Lease as so amended shall continue
thereafter in full force and effect, and upon request of either party, the
parties shall execute written confirmation of the same. With regard to any
Subject Space which is recaptured by Landlord pursuant to the above provision,
Tenant shall be released from all obligations under this Lease arising from and
after the effective date of such recapture with respect to such Subject Space,
provided Tenant properly surrenders possession of such Subject Space to
Landlord, and further provided that such release shall not apply with regard to
provisions of this Lease which by their terms survive the expiration or earlier
termination of this Lease. If Landlord declines, or fails to elect in a timely
manner to recapture the Subject Space under this Section 14.4, then, provided
Landlord has consented to the proposed Transfer, Tenant shall be entitled to
proceed to transfer the Subject Space to the proposed Transferee, subject to
provisions of the last paragraph of Section 14.2 of this Lease.
14.5 Effect of Transfer. If Landlord consents to a Transfer, (i) the terms
and conditions of this Lease shall in no way be deemed to have been waived or
modified, (ii) such consent shall not be deemed consent to any further Transfer
by either Tenant or a Transferee, (iii) Tenant shall deliver to Landlord,
promptly after execution, an original executed copy of all documentation
pertaining to the Transfer in form reasonably acceptable to Landlord, and (iv)
no Transfer relating to this Lease or agreement entered into with respect
thereto, whether with or without Landlord's consent, shall relieve Tenant or any
guarantor of the Lease from liability under this Lease. Landlord or its
authorized representatives shall have the right at all reasonable times to audit
the books, records and papers of Tenant relating to any Transfer, and shall have
the right to make copies thereof. If the Transfer Premium respecting any
Transfer shall be found understated, Tenant shall, within thirty (30) days after
demand, pay the deficiency and Landlord's costs of such audit.
14.6 Additional Transfers. For purposes of this Lease, the term "Transfer"
shall also include (i) if Tenant is a partnership, the withdrawal or change,
voluntary, involuntary or by operation of law, of fifty percent (50%) or more of
the partners, or transfer of twenty-five percent or more of partnership
interests, within a twelve (12)-month period, or the dissolution of the
partnership without immediate reconstitution thereof, and (ii) if Tenant is a
closely held corporation (i.e., whose stock is not publicly held and not traded
through an exchange or over the counter), (A) the dissolution, merger,
consolidation or other reorganization of Tenant, (B) the sale or other transfer
of more than an aggregate of fifty percent (50%) of the voting shares of Tenant
(other than to immediate family members by reason of gift or death), within a
twelve (12)-month period, or (C) the sale, mortgage, hypothecation or pledge of
more than an aggregate of fifty percent (50%) of the value of the unencumbered
assets of Tenant within a twelve (12) month period.
ARTICLE 15
SURRENDER; OWNERSHIP
AND REMOVAL OF TRADE FIXTURES
15.1 Surrender of Premises. No act or thing done by Landlord or any agent
or employee of Landlord during the Lease Term shall be deemed to constitute an
acceptance by Landlord of a surrender of the Premises unless such intent is
specifically acknowledged in a writing signed by Landlord. The delivery of keys
to the Premises to Landlord or any agent or employee of Landlord shall not
constitute a surrender of the Premises or effect a termination of this Lease,
whether or not the keys are thereafter retained by Landlord, and notwithstanding
such delivery Tenant shall be entitled to the return of such keys at any
reasonable time upon request until this Lease shall have been properly
terminated. The voluntary or other surrender of this Lease by Tenant, whether
accepted by Landlord or not, or a mutual termination hereof, shall not work a
merger, and at the option of Landlord shall operate as an assignment to Landlord
of all subleases or subtenancies affecting the Premises.
15.2 Removal of Tenant Property by Tenant. Upon the expiration of the
Lease Term, or upon any earlier termination of this Lease, Tenant shall, subject
to the provisions of this Article 15, quit and surrender possession of the
Premises to Landlord in as good order and condition as when Tenant took
possession and as thereafter improved by Landlord and/or Tenant, reasonable wear
and tear and repairs which are specifically made the responsibility of Landlord
hereunder excepted. Upon such expiration or termination, Tenant shall, without
expense to Landlord, remove or cause to be removed from the Premises all debris
and rubbish, and such items of furniture, equipment, free-standing cabinet work,
and other articles of personal property owned by Tenant or installed or placed
by Tenant at its expense in the Premises, and such similar articles of any other
persons claiming under Tenant, as Landlord may, in its sole discretion, require
to be removed, and Tenant shall repair at its own expense all damage to the
Premises and Building resulting from such removal.
ARTICLE 16
HOLDING OVER
If Tenant holds over after the expiration of the Lease Term hereof, with
or without the express or implied consent of Landlord, such tenancy shall be
from month-to-month only, and shall not constitute a renewal hereof or an
extension for any further term, and in such case Base Rent shall be payable at a
monthly rate equal to one hundred fifty percent (150%) for the first three (3)
months and two hundred percent (200%) thereafter of (i) the greater of Base Rent
applicable during the last rental period of the
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Lease Term under this Lease (ii) the fair market rental rate of the Premises as
of the commencement of such holdover period. Such month-to-month tenancy shall
be subject to every other term, covenant and agreement contained herein.
Landlord hereby expressly reserves the right to require Tenant to surrender
possession of the Premises to Landlord as provided in this Lease upon the
expiration or other termination of this Lease. The provisions of this Article 16
shall not be deemed to limit or constitute a waiver of any other rights or
remedies of Landlord provided herein or at law. If Tenant fails to surrender the
Premises upon the termination or expiration of this Lease, in addition to any
other liabilities to Landlord accruing therefrom, Tenant shall protect, defend,
indemnify and hold Landlord harmless from all loss, costs (including reasonable
attorneys' fees) and liability resulting from such failure, including, without
limiting the generality of the foregoing, any claims made by any succeeding
tenant founded upon such failure to surrender, and any lost profits to Landlord
resulting therefrom.
ARTICLE 17
ESTOPPEL CERTIFICATES
Within ten (10) days following a request in writing by Landlord, Tenant
shall execute and deliver to Landlord an estoppel certificate, which, as
submitted by Landlord, shall be substantially in the form of Exhibit E, attached
hereto, (or such other form as may be required by any prospective mortgagee or
purchaser of the Project, or any portion thereof), indicating therein any
exceptions thereto that may exist at that time, and shall also contain any other
information reasonably requested by Landlord or Landlord's mortgagee or
prospective mortgagee. Tenant shall execute and deliver whatever other
instruments may be reasonably required for such purposes. Failure of Tenant to
timely execute and deliver such estoppel certificate or other instruments shall
constitute an acceptance of the Premises and an acknowledgment by Tenant that
statements included in the estoppel certificate are true and correct, without
exception.
ARTICLE 18
SUBORDINATION
This Lease is subject and subordinate to all present and future ground or
underlying leases of the Real Property and to the lien of any mortgages or trust
deeds, now or hereafter in force against the Real Property and the Building, if
any, and to all renewals, extensions, modifications, consolidations and
replacements thereof, and to all advances made or hereafter to be made upon the
security of such mortgages or trust deeds, unless the holders of such mortgages
or trust deeds, or the lessors under such ground lease or underlying leases,
require in writing that this Lease be superior thereto. Tenant covenants and
agrees in the event any proceedings are brought for the foreclosure of any such
mortgage, or if any ground or underlying lease is terminated, to attorn, without
any deductions or set-offs whatsoever, to the purchaser upon any such
foreclosure sale, or to the lessor of such ground or underlying 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 the lessor under this Lease. In
consideration of, and as a condition precedent to, Tenant's agreement to permit
its interest pursuant to this Lease to be subordinated to any particular future
ground or underlying lease of the Building or the Real Property or to the lien
of any mortgage or trust deed encumbering the Building or Real Property which is
executed after the date of this Lease, Landlord shall deliver to Tenant a
commercially reasonable non-disturbance agreement executed by the Landlord under
such future ground lease or underlying lease or the holder of such future
mortgage or trust deed. Tenant shall, within fifteen (15) days of request by
Landlord, execute such further commercially reasonable instruments to evidence
or confirm the subordination or superiority of this Lease to any such mortgages,
trust deeds, ground leases or underlying leases. Tenant waives the provisions of
any current or future statute, rule or law which may give or purport to give
Tenant any right or election to terminate or otherwise adversely affect this
Lease and the obligations of the Tenant hereunder in the event of any
foreclosure proceeding or sale.
ARTICLE 19
DEFAULTS AND REMEDIES
19.1 Events of Default by Tenant. All covenants and agreements to be kept
or performed by Tenant under this Lease shall be performed by Tenant at Tenant's
sole cost and expense and without any reduction of Rent except as set forth
herein. The occurrence of any of the following shall constitute a default of
this Lease by Tenant:
19.1.1 Any failure by Tenant to pay any Rent or any other charge
required to be paid under this Lease, or any part thereof, within five (5) days
after the same is due; or
19.1.2 Any failure by Tenant to observe or perform any other
provision, covenant or condition of this Lease to be observed or performed by
Tenant where such failure continues for thirty (30) days after written notice
thereof from Landlord to Tenant; provided however, that if the nature of such
default is such that the same cannot reasonably be cured within a thirty
(30)-day period, Tenant shall not be deemed to be in default if it diligently
commences such cure within such period and thereafter diligently proceeds to
rectify and cure said default as soon as possible.
19.2 Landlord's Remedies Upon Default. Upon the occurrence of any such
default by Tenant, Landlord shall have, in addition to any other remedies
available to Landlord at law or in equity, the option to pursue any one or more
of the following remedies, each and all of which shall be cumulative and
nonexclusive, without any notice or demand whatsoever.
19.2.1 Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord, and if Tenant fails to do so, Landlord may,
without prejudice to any other remedy which it may have for possession or
arrearages in rent, enter upon and take possession of the Premises and expel or
remove Tenant and any other person who may be occupying the Premises or any part
thereof, without being liable for prosecution or any claim or damages therefor;
and Landlord may recover from Tenant the following:
(i) The worth at the time of award of any unpaid rent which
has been earned at the time of such termination; plus
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(ii) The worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided; plus
(iii) The worth at the time of award of the amount by which
the unpaid rent for the balance of the Lease Term after the time of award
exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided; plus
(iv) Any other amount necessary to compensate Landlord for all
the detriment proximately caused by Tenant's failure to perform its obligations
under this Lease or which in the ordinary course of things would be likely to
result therefrom, specifically including but not limited to, brokerage
commissions and advertising expenses incurred, expenses of remodeling the
Premises or any portion thereof for a new tenant, whether for the same or a
different use, and any special concessions made to obtain a new tenant.
The term "rent" as used in this Section 19.2 shall be deemed to be and to mean
all sums of every nature required to be paid by Tenant pursuant to the terms of
this Lease, whether to Landlord or to others. As used in Paragraphs 19.2.1(i)
and (ii), above, the "worth at the time of award" shall be computed by allowing
interest at the Interest Rate set forth in Section 4.5 of this Lease. As used in
Paragraph 19.2.l(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%).
19.2.2 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 default by
Tenant, Landlord may, from time to time, without terminating this Lease, enforce
all of its rights and remedies under this Lease, including the right to recover
all rent as it becomes due,
19.2.3 Landlord may, but shall not be obligated to, make any such
payment or perform or otherwise cure any such obligation, provision, covenant or
condition on Tenant's part to be observed or performed (and may enter the
Premises for such purposes). In the event of Tenant's failure to perform any of
its obligations or covenants under this Lease, and such failure to perform poses
a material risk of injury or harm to persons or damage to or loss of property,
then Landlord shall have the right to cure or otherwise perform such covenant or
obligation at any time after such failure to perform by Tenant, whether or not
any such notice or cure period set forth in Section 19.1 above has expired. Any
such actions undertaken by Landlord pursuant to the foregoing provisions of this
Section 19.2.3 shall not be deemed a waiver of Landlord's rights and remedies as
a result of Tenant's failure to perform and shall not release Tenant from any of
its obligations under this Lease.
19.3 Payment by Tenant. Tenant shall pay to Landlord, within thirty (30)
days after delivery by Landlord to Tenant of statements therefor: (i) sums equal
to expenditures reasonably made and obligations incurred by Landlord in
connection with Landlord's performance or cure of any of Tenant's obligations
pursuant to the provisions of Section 19.2.3 above; and (ii) sums equal to all
expenditures made and obligations incurred by Landlord in collecting or
attempting to collect the Rent or in enforcing or attempting to enforce any
rights of Landlord under this Lease or pursuant to law, including, without
limitation, all legal fees and other amounts so expended. Tenant's obligations
under this Section 19.3 shall survive the expiration or sooner termination of
the Lease Term.
19.4 Sublessees of Tenant. If Landlord elects to terminate this Lease on
account of any default by Tenant, as set forth in this Article 19, Landlord
shall have the right to terminate any and all subleases, licenses, concessions
or other consensual arrangements for possession entered into by Tenant and
affecting the Premises or may, in Landlord's sole discretion, succeed to
Tenant's interest in such subleases, licenses, concessions or arrangements. In
the event of Landlord's election to succeed to Tenant's interest in any such
subleases, licenses, concessions or arrangements, Tenant shall, as of the date
of notice by Landlord of such election, have no further right to or interest in
the rent or other consideration receivable thereunder.
19.5 Waiver of Default. No waiver by Landlord of any violation or breach
by Tenant of any of the terms, provisions and covenants herein contained shall
be deemed or construed to constitute a waiver of any other or later violation or
breach by Tenant of the same or any other of the terms, provisions, and
covenants herein contained. Forbearance by Landlord in enforcement of one or
more of the remedies herein provided upon a default by Tenant shall not be
deemed or construed to constitute a waiver of such default. The acceptance of
any Rent hereunder by Landlord following the occurrence of any default, whether
or not known to Landlord, shall not be deemed a waiver of any such default,
except only a default in the payment of the Rent so accepted.
19.6 Efforts to Relet. For the purposes of this Article 19, Tenant's right
to possession shall not be deemed to have been terminated by efforts of Landlord
to relet the Premises, by its acts of maintenance or preservation with respect
to the Premises, or by appointment of a receiver to protect Landlord's interests
hereunder. The foregoing enumeration is not exhaustive, but merely illustrative
of acts, which may be performed by Landlord without terminating Tenant's right
to possession.
19.7 Landlord Default. Landlord shall not be in default under this Lease
unless Landlord fails to perform any material obligation of Landlord hereunder
and such failure continues for a period of thirty (30) days following receipt of
notice from Tenant specifying in detail Landlord's failure to perform; provided,
however, if the nature of Landlord's obligation is such that more than thirty
(30) days are required for its performance, then Landlord shall not be in
default under this Lease if it shall commence such performance within such
thirty (30) days period and thereafter diligently pursue the same to completion.
Upon any such default by Landlord under this Lease, Tenant's sole and exclusive
remedy shall be to commence performance of the obligation, which constitutes
Landlord's default, and, thereafter, to pursue the Landlord (including the right
to commence an action against Landlord) for reimbursement of all costs and
expenses incurred by Tenant in remedying Landlord's default. In no event shall
Tenant be permitted to either (a) offset any Rent, or (b) terminate this Lease
as a result of any Landlord default.
ARTICLE 20
INTENTIONALLY OMITTED
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ARTICLE 21
COMPLIANCE WITH LAW
Tenant shall not do anything or suffer anything to be done in or about the
Premises which will in any way conflict with any law, statute, ordinance or
other governmental rule, regulation or requirement now in force or which may
hereafter be enacted or promulgated. At its sole cost and expense, Tenant shall
promptly comply with all such governmental measures, other than the making of
structural changes or changes to the Building's Systems and Equipment
(collectively the "Excluded Changes"), except to the extent such Excluded
Changes are required due to Tenant's alterations to or manner of use of the
Premises. In addition, Tenant shall fully comply with all present or future
governmental or quasi-governmental programs intended to manage parking,
transportation or traffic in and around the Building, and in connection
therewith, Tenant shall take responsible action for the transportation planning
and management of all employees located at the Premises by working directly with
Landlord, any governmental transportation management organization or any other
transportation-related committees or entities. In addition, Tenant shall, in
connection with (i) any of Tenant's structural changes, alterations or tenant
improvements within or on the Premises, or (ii) its use or occupancy of the
Premises, comply at all times with all applicable laws relating to accessibility
for the handicapped, including The Architectural Barriers Act of 1968, The
Rehabilitation Act of 1973, The Fair Housing Act of 1988, and The Americans With
Disabilities Act of 1990. The judgment of any court of competent jurisdiction or
the admission of Tenant in any judicial action, regardless of whether Landlord
is a party thereto, that Tenant has violated any of said laws or governmental
measures shall be conclusive of that fact as between Landlord and Tenant.
ARTICLE 22
ENTRY BY LANDLORD
Landlord reserves the right at all reasonable times and upon not less than
twenty-four (24) hours notice (except in the case of an emergency, in which
instance no notice shall be required) to Tenant to enter the Premises to (i)
inspect them; (ii) show the Premises to prospective purchasers, mortgagees or
tenants (but only during the last six (6) months of the Lease Term with regard
to such potential tenants), or to the ground or underlying lessors; (iii) to
post notices of nonresponsibility; or (iv) alter, improve or repair the Premises
or the Building if necessary to comply with current building codes or other
applicable laws, or for structural alterations, repairs or improvements to the
Building, or as Landlord may otherwise reasonably deem necessary.
Notwithstanding anything to the contrary contained in this Article 22, Landlord
may enter the Premises at any time, without notice to Tenant, to perform
janitorial or other services required of Landlord pursuant to this Lease. Any
such entries shall be without the abatement of Rent and shall include the right
to take such reasonable steps as required to accomplish the stated purposes.
Subject to Landlord's indemnity of Tenant in Section 10.1 hereof, Tenant hereby
waives any claims for damages or for any injuries or inconvenience to or
interference with Tenant's business, lost profits, any loss of occupancy or
quiet enjoyment of the Premises, and any other loss occasioned thereby. For each
of the above purposes, Landlord shall at all times have a key with which to
unlock all the doors in the Premises, excluding Tenant's vaults, safes and
special security areas designated in advance by Tenant. In an emergency,
Landlord shall have the right to use any means that Landlord may deem proper to
open the doors in and to the Premises. Any entry into the Premises in the manner
hereinbefore described shall not be deemed to be a forcible or unlawful entry
into, or a detainer of, the Premises, or an actual or constructive eviction of
Tenant from any portion of the Premises.
ARTICLE 23
TENANT PARKING
Tenant shall be entitled to use the number of parking passes set forth in
Section 11 of the Summary for parking free of charge. With respect to any other
parking spaces used by Tenant, Tenant shall pay to Landlord for said parking
passes on a monthly basis the prevailing rate charged by Landlord from time to
time for parking passes at the location of such passes, plus all applicable
parking taxes. Tenant's continued right to use the parking passes is conditioned
upon Tenant, its employees and visitors abiding by all parking rules and
regulations for parking at the Project, as may be adopted and/or modified by
Landlord and/or Landlord's parking operator from time to time. Landlord
specifically reserves the right to change the location, size, configuration,
design, layout and all other aspects of the parking at any time and Tenant
acknowledges and agrees that Landlord may, without incurring any liability to
Tenant and without any abatement of Rent under this Lease, from time to time,
close-off or restrict access to the parking area for purposes of permitting or
facilitating any such construction, alteration or improvements. Landlord may
totally or partially delegate its responsibilities hereunder to a parking
operator in which case such parking operator shall have all the rights of
control delegated by Landlord. Tenant's parking rights granted hereunder may not
be transferred, assigned, subleased or otherwise alienated by Tenant without
Landlord's prior approval.
ARTICLE 24
MISCELLANEOUS PROVISIONS
24.1 Terms; Captions. The necessary grammatical changes required to make
the provisions hereof apply either to corporations or partnerships or
individuals, men or women, as the case may require, shall in all cases be
assumed as though in each case fully expressed. The captions of Articles and
Sections are for convenience only and shall not be deemed to limit, construe,
affect or alter the meaning of such Articles and Sections.
24.2 Binding Effect. Each of the provisions of this Lease shall extend to
and shall, as the case may require, bind or inure to the benefit not only of
Landlord and of Tenant, but also of their respective successors or assigns,
provided this clause shall not permit any assignment by Tenant contrary to the
provisions of Article 14 of this Lease.
24.3 No Waiver. No waiver of any provision of this Lease shall be implied
by any failure of a party to enforce any remedy on account of the violation of
such provision, even if such violation shall continue or be repeated
subsequently, any waiver by a party of any provision of this Lease may only be
in writing, and no express waiver shall affect any provision other than the one
specified in such waiver and that one only for the time and in the manner
specifically stated. No receipt of monies by Landlord
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from Tenant after the termination of this Lease shall in any way alter the
length of the Lease Term or of Tenant's right of possession hereunder or after
the giving of any notice shall reinstate, continue or extend the Lease Term or
affect any notice given Tenant prior to the receipt of such monies, it being
agreed that after the service of notice or the commencement of a suit or after
final judgment for possession of the Premises, Landlord may receive and collect
any Rent due, and the payment of said Rent shall not waive or affect said
notice, suit or judgment.
24.4 Modification of Lease. Should any current or prospective mortgagee or
ground lessor for the Building require a modification or modifications of this
Lease, which modification or modifications will not cause an increased cost or
expense to Tenant or in any other way adversely change the rights and
obligations of Tenant hereunder, then and in such event, Tenant agrees that this
Lease may be so modified and agrees to execute whatever documents are required
therefor and deliver the same to Landlord within ten (10) days following the
request therefor. Should Landlord or any such current or prospective mortgagee
or ground lessor require execution of a short form of Lease for recording (at
Landlord's expense), containing among other customary provisions, the names of
the parties, a description of the Premises and the Lease Term, Tenant agrees to
execute such short form of Lease and to deliver the same to Landlord within ten
(10) days following the request therefor.
24.5 Transfer of Landlord's Interest. Tenant acknowledges that Landlord
has the right to transfer all or any portion of its interest in the Real
Property and Building and in this Lease, and Tenant agrees that in the event of
any such transfer, Landlord shall automatically be released from all liability
under this Lease and Tenant agrees to look solely to such transferee for the
performance of Landlord's obligations hereunder arising after the date of
transfer, provided that such transferee assumes all future obligations of
Landlord. The liability of any transferee of Landlord shall be limited to the
interest of such transferee in the Real Property and Building and such
transferee shall be without personal liability under this Lease, and Tenant
hereby expressly waives and releases such personal liability on behalf of itself
and all persons claiming by, through or under Tenant. Tenant further
acknowledges that Landlord may assign its interest in this Lease to a mortgage
lender as additional security and agrees that such an assignment shall not
release Landlord from its obligations hereunder and that Tenant shall continue
to look to Landlord for the performance of its obligations hereunder.
24.6 Prohibition Against Recording. Except as provided in Section 24.4 of
this Lease, neither this Lease, nor any memorandum, affidavit or other writing
with respect thereto, shall be recorded by Tenant or by anyone acting through,
under or on behalf of Tenant, and the recording thereof in violation of this
provision shall make this Lease null and void at Landlord's election.
24.7 Landlord's Title; Air Rights. Landlord's title is and always shall be
paramount to the title of Tenant. Nothing herein contained shall empower Tenant
to do any act, which can, shall or may encumber the title of Landlord. No rights
to any view or to light or air over any property, whether belonging to Landlord
or any other person, are granted to Tenant by this Lease.
24.8 Termination of Current Lease at the Building. Intentionally Omitted.
24.9 Relationship of Parties. Nothing contained in this Lease shall be
deemed or construed by the parties hereto or by any third party to create the
relationship of principal and agent, partnership, joint venturer or any
association between Landlord and Tenant, it being expressly understood and
agreed that neither the method of computation of Rent nor any act of the parties
hereto shall be deemed to create any relationship between Landlord and Tenant
other than the relationship of landlord and tenant.
24.10 Application of Payments. Landlord shall have the right to apply
payments received from Tenant pursuant to this Lease, regardless of Tenant's
designation of such payments, to satisfy any obligations of Tenant hereunder, in
such order and amounts as Landlord, in its sole discretion, may elect.
24.11 Time of Essence. Time is of the essence of this Lease and each of
its provisions.
24.12 Partial Invalidity. If any term, provision or condition contained in
this Lease shall, to any extent, be invalid or unenforceable, the remainder of
this Lease, or the application of such term, provision or condition to persons
or circumstances other than those with respect to which it is invalid or
unenforceable, shall not be affected thereby, and each and every other term,
provision and condition of this Lease shall be valid and enforceable to the
fullest extent possible permitted by law.
24.13 No Warranty. In executing and delivering this Lease, Tenant has not
relied on any representation, including, but not limited to, any representation
whatsoever as to the amount of any item comprising Additional Rent or the amount
of the Additional Rent in the aggregate or that Landlord is furnishing the same
services to other tenants, at all, on the same level or on the same basis, or
any warranty or any statement of Landlord which is not set forth herein or in
one or more of the Exhibits attached hereto.
24.14 Landlord Exculpation. It is expressly understood and agreed that
notwithstanding anything in this Lease to the contrary, and notwithstanding any
applicable law to the contrary, the liability of Landlord and the Landlord
Parties hereunder (including any successor landlord) and any recourse by Tenant
against Landlord or the Landlord Parties shall be limited solely and exclusively
to an amount which is equal to the interest of Landlord in the Real Property or
resulting proceeds from the sale of the Real Property, and neither Landlord, nor
any of the Landlord Parties shall have any personal liability therefor, and
Tenant hereby expressly waives and releases such personal liability on behalf of
itself and all persons claiming by, through or under Tenant.
24.15 Entire Agreement. It is understood and acknowledged that there are
no oral agreements between the parties hereto affecting this Lease and this
Lease supersedes and cancels any and all previous negotiations, arrangements,
brochures, agreements and understandings, if any, between the parties hereto or
displayed by Landlord to Tenant with respect to the subject matter thereof, and
none thereof shall be used to interpret or construe this Lease. This Lease
contains all of the terms, covenants, conditions, warranties and agreements of
the parties relating in any manner to the rental, use and occupancy of the
Premises, shall be considered to be the only agreement between the parties
hereto and their representatives and agents, and none of the terms, covenants,
conditions or provisions of this Lease can be modified, deleted or added to
except in writing signed by the parties hereto. All negotiations and oral
agreements acceptable to both parties have been merged into and are included
herein. There are no other representations or warranties between the parties,
and all reliance with respect to representations is based totally upon the
representations and agreements contained in this Lease.
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24.16 Right to Lease. Landlord reserves the absolute right to effect such
other tenancies in the Building as Landlord in the exercise of its sole business
judgment shall determine to best promote the interests of the Building. Tenant
does not rely on the fact, nor does Landlord represent, that any specific tenant
or type or number of tenants shall, during the Lease Term, occupy any space in
the Building.
24.17 Force Majeure. Any prevention, delay or stoppage due to strikes,
lockouts, labor disputes, acts of God, inability to obtain services, labor, or
materials or reasonable substitutes therefor, governmental actions, civil
commotions, fire or other casualty, and other causes beyond the reasonable
control of the party obligated to perform, except with respect to the
obligations imposed with regard to Rent and other charges to be paid by Tenant
pursuant to this Lease (collectively, the "Force Majeure"), notwithstanding
anything to the contrary contained in this Lease, shall excuse the performance
of such party for a period equal to any such prevention, delay or stoppage and,
therefore, if this Lease specifies a time period for performance of an
obligation of either party, that time period shall be extended by the period of
any delay in such party's performance caused by a Force Majeure.
24.18 Waiver of Redemption by Tenant. Tenant hereby waives for Tenant and
for all those claiming under Tenant all right now or 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.
24.19 Notices. All notices, demands, statements or communications
(collectively, "Notices") given or required to be given by either party to the
other hereunder shall be in writing, shall be sent by United States certified or
registered mail, postage prepaid, return receipt requested, or delivered
personally (i) to Tenant at the appropriate address set forth in Section 5 of
the Summary, or to such other place as Tenant may from time to time designate in
a Notice to Landlord; or (ii) to Landlord at the addresses set forth in Section
3 of the Summary, or to such other firm or to such other place as Landlord may
from time to time designate in a Notice to Tenant. Any Notice will be deemed
given on the date it is mailed as provided in this Section 24.19 or upon the
date personal delivery is made. If Tenant is notified of the identity and
address of Landlord's mortgagee or ground or underlying lessor, Tenant shall
give to such mortgagee or ground or underlying lessor written notice of any
default by Landlord under the terms of this Lease by registered or certified
mail, and such mortgagee or ground or underlying lessor shall be given a
reasonable opportunity to cure such default prior to Tenant's exercising any
remedy available to Tenant.
24.20 Joint and Several. If there is more than one Tenant, the obligations
imposed upon Tenant under this Lease shall be joint and several.
24.21 Authority. If Tenant is a corporation or partnership, each
individual executing this Lease on behalf of Tenant hereby represents and
warrants that Tenant is a duly formed and existing entity qualified to do
business in the state in which the Building is located and that Tenant has full
right and authority to execute and deliver this Lease and that each person
signing on behalf of Tenant is authorized to do so.
24.22 Jury Trial; Attorneys' Fees. IF EITHER PARTY COMMENCES LITIGATION
AGAINST THE OTHER FOR THE SPECIFIC PERFORMANCE OF THIS LEASE, FOR DAMAGES FOR
THE BREACH HEREOF OR OTHERWISE FOR ENFORCEMENT OF ANY REMEDY HEREUNDER, THE
PARTIES HERETO AGREE TO AND HEREBY DO WAIVE ANY RIGHT TO A TRIAL BY JURY. In the
event of any such commencement of litigation, the prevailing party shall be
entitled to recover from the other party such costs and reasonable attorneys'
fees as may have been incurred, including any and all costs incurred in
enforcing, perfecting and executing such judgment.
24.23 Governing Law. This Lease shall be construed and enforced in
accordance with the laws of the State of California.
24.24 Submission of Lease. Submission of this instrument for examination
or signature by Tenant does not constitute a reservation of or an option for
lease, and it is not effective as a lease or otherwise until execution and
delivery by both Landlord and Tenant.
24.25 Brokers. Landlord and Tenant hereby warrant to each other that they
have had no dealings with any real estate broker or agent in connection with the
negotiation of this Lease, excepting only the real estate brokers or agents
specified in Section 12 of the Summary (the "Brokers"), and that they know of no
other real estate broker or agent who is entitled to a commission in connection
with this Lease. Each party agrees to indemnify and defend the other party
against and hold the other party harmless from any and all claims, demands,
losses, liabilities, lawsuits, judgments, and costs and expenses (including
without limitation reasonable attorneys' fees) with respect to any leasing
commission or equivalent compensation alleged to be owing on account of the
indemnifying party's dealings with any real estate broker or agent other than
the Brokers.
24.26 Independent Covenants. This Lease shall be construed as though the
covenants herein between Landlord and Tenant are independent and not dependent
and Tenant hereby expressly waives the benefit of any statute to the contrary
and agrees that if Landlord fails to perform its obligations set forth herein,
Tenant shall not (except as specifically set forth herein) be entitled to make
any repairs or perform any acts hereunder at Landlord's expense or to any setoff
of the Rent or other amounts owing hereunder against Landlord.
24.27 Building Name and Signage. Landlord shall have the right at any time
to change the name of the Building and to install, affix and maintain any and
all signs on the exterior and on the interior of the Building as Landlord may,
in Landlord's sole discretion, desire. Tenant shall not use the name of the
Building or use pictures or illustrations of the Building in advertising or
other publicity, without the prior written consent of Landlord.
24.28 Building Directory. Tenant shall be entitled to one (1) line on the
Building directory to display Tenant's name and location in the Building, which
inclusion shall be accomplished at Tenant's expense.
24.29 Confidentiality. Tenant acknowledges that the content of this Lease
and any related documents are confidential information. Tenant shall keep such
confidential information strictly confidential and shall not disclose such
confidential
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information to any person or entity other than Tenant's financial, legal, and
space planning consultants, or as otherwise required by law.
24.30 Landlord Renovations. It is specifically understood and agreed that
Landlord has no obligation and has made no promises to alter, remodel, improve,
renovate, repair or decorate the Premises, Building, Real Property, or any part
thereof and that no representations or warranties respecting the condition of
the Premises, the Building or the Real Property have been made by Landlord to
Tenant, except as specifically set forth in this Lease. However, Tenant
acknowledges that Landlord may from time to time, at Landlord's sole option,
renovate, improve, alter, or modify (collectively, the "Renovations") the
Building, Premises, and/or Real Property, common areas, systems and equipment,
roof, and structural portions of the same, which Renovations may include,
without limitation, (i) modifying the common areas and tenant spaces to comply
with applicable laws and regulations, including regulations relating to the
physically disabled, seismic conditions, and building safety and security, and
(ii) installing new carpeting, lighting, and wall coverings in the Building
common areas, and in connection with such Renovations, Landlord may, among other
things, erect scaffolding or other necessary structures in the Building, limit
or eliminate access to portions of the Real Property, including portions of the
common areas, or perform work in the Building, which work may create noise, dust
or leave debris in the Building. Tenant hereby agrees that such Renovations and
Landlord's actions in connection with such Renovations shall in no way
constitute a constructive eviction of Tenant nor entitle Tenant to any abatement
of Rent. Landlord shall have no responsibility or for any reason be liable to
Tenant for any direct or indirect injury to or interference with Tenant's
business arising from the Renovations, nor shall Tenant be entitled to any
compensation or damages from Landlord for loss of the use of the whole or any
part of the Premises or of Tenant's personal property or improvements resulting
from the Renovations or Landlord's actions in connection with such Renovations,
or for any inconvenience or annoyance occasioned by such Renovations or
Landlord's actions in connection with such Renovations.
24.31 Option to Extend. Provided Tenant is not in default at the time and
no default has occurred within (90) days prior, Tenant shall be entitled to
extend the term of this Lease for one (1) period of two (2) years, which option
shall be exercisable by giving written notice to Landlord at lease six (6)
months prior to the commencement of the particular option period. Any such
extension to the term of this Lease shall be upon and subject to all of the
terms and conditions set forth herein, except that the monthly rent payable
pursuant to Section 8 of the Summary shall be revised to the then current market
rent. If Tenant does not exercise the option in a timely manner as noted, this
option shall become null and void. Furthermore, it is agreed and understood this
option is non-transferable and shall not be a part of any Lease Assignment or
Sub-Lease Agreements.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed the day and date first above written.
LANDLORD: TENANT:
Palos Verdes Office Partners, LLC, XxxxXxxxXxxxxx.xxx
a California limited liability company
By: Metro Properties, LLC, By: /s/ Xxxxx X. Xxxxxx
a California limited liability company ------------------------
Its: Manager Name: XXXXX XXXXXX
------------------------
Its: FOR MEDSTRONG CORP
By: /s/ Xxxxxxxxx Xxxxxxxx ------------------------------
--------------------------
Xxxxxxxxx Xxxxxxxx By:
--------------------------
Name:
------------------------
Its:
-------------------------
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EXHIBIT "A"
OUTLINE OF FLOOR PLAN OF PREMISES
EXHIBIT "A" - Page 1
20
EXHIBIT "B"
(WORK LETTER)
This Tenant Work Letter (the "Work Letter") shall set forth the terms and
conditions relating to the construction of the Premises. All references in this
Work Letter to "the Lease" shall mean the relevant portions of the Lease by and
between Palos Verdes Office Partners, LLC (as the "Landlord") and
XxxxXxxxXxxxxx.xxx (as the "Tenant"), to which this Work Letter is attached as
Exhibit B. In the event of a conflict between any provision of the Lease and
this Work Letter, the term and provision of this Work Letter shall govern and
control. In consideration of the mutual covenants and promises contained herein
and in said Lease, the parties agree as follows:
AGREEMENT:
1. Tenant's Work. Reference herein to "Improvements" shall mean the
leasehold improvements (including, but not limited to, all architectural,
engineering and city permitting, and all costs, expenses and fees related
thereto) to be constructed on the Premises in accordance with the attached
"Schedule 1". The construction of the Improvements shall be Tenant's obligation.
Landlord shall provide Tenant with an allowance of Twenty Thousand Dollars
($20,000.00) (the "TI Allowance") toward the cost of the Improvements. All other
costs associated with the Improvements shall be the responsibility of the Tenant
and shall be paid by the Tenant.
2. Improvement Plans.
a) Preliminary Plans. Landlord and Tenant have agreed on
preliminary plans and specifications for the build-out
of the Premises (the "Preliminary Plans"), attached as
"Schedule 1".
b) Submittal of Preliminary Plans. If required, Tenant
shall submit the Preliminary Plans to the appropriate
local governmental authority ("the Authority") for
review and approval. Tenant shall also promptly prepare
and submit to the Authority any studies, drawings and
other documents or items and shall prepare and submit
any revisions to the Preliminary Plans which may be
required by the Authority in order to obtain the
Authority's approval thereto; provided, however, that
any revisions to the Preliminary Plans submitted by
Tenant shall be subject to Landlord's approval, which
approval shall not be unreasonably withheld. In
connection therewith, Tenant shall deliver to Landlord
any proposed revision to the Preliminary Plans prior to
Tenant's submission of same for approval by the
Authority. Within five (5) business days after receipt
of any such proposed revision, Landlord shall either
approve same or deliver to Tenant its specific
objections thereto together with a proposed solution to
each objection.
c) Final Plans. Following approval of the Preliminary Plans
by Landlord and the Authority (if applicable), the
Tenant (or its architect, as the case may be) shall
prepare and deliver to Landlord two (2) copies of final
working drawing and specifications for the Improvements
based upon and conforming in all respects to the
approved Preliminary Plans (the "Final Plans"). Within
(5) business days following Landlord's receipt of the
Final Plans, Landlord shall approve or reasonably
disapprove the Final Plans; provided, however, Landlord
shall have no right to disapprove the Final Plans to the
extent they are consistence with the Preliminary Plans
approved by Landlord.
d) Submittal of Final Plans. Promptly following Landlord's
written approval of the Final Plans, Tenant, with the
cooperation of Landlord, shall (if applicable) (i)
submit the Final Plans to the Authority and all other
appropriate governmental agencies and prepare and summit
to the same any applications, documents, studies,
reports or other items necessary to obtain all approvals
and permits required by law for the construction of
Tenant's Work ("the "Tenant Permits"); (ii) in all other
respects diligently pursue the obtaining of any required
Tenant's Permits; (iii) pay all necessary fees
incidental to Tenant's Work and Tenant's Permits; and
(iv) furnish Landlord such evidence thereof as is
reasonably satisfactory to Landlord. Tenant agrees to
diligently and in good faith process any and all
applications required from the City, County and any
other governmental authority necessary to obtain all
required Tenant's Permits.
3. Construction of Tenant's Work. Tenant shall cause the Tenant's
Work to be completed in accordance with the Final Plans. Tenant shall use
diligent efforts to secure completion of Tenant's Work in a good and workmanlike
manner in accordance with the Final Plans. Tenant agrees to use diligent efforts
to cause construction of Tenant's Work to commence promptly following the
issuance of Tenant's Permits. At all times during the course of constructing
Tenant's Work, Landlord shall have the right to enter upon the Premises to
inspect Tenant's construction activities.
4. Installation of Tenant's FF&E. Following completion or
concurrently with the construction of Tenant's Work, Tenants all cause the
Premises to be fully equipped with Tenant's FF&E.
5. Payment of the Costs of the Improvements.
EXHIBIT "B" - Page 1
21
a) The TI Allowance. The TI Allowance shall be used solely
to contribute toward the payment of the cost of the
Tenant's Work (but not including the Tenant's FF&E). All
items included in the Tenant's Work, whether or not the
cost thereof is covered by the TI Allowance, shall
remain on the Premises at all times during the term of
the Lease. All of the Tenant's Work shall remain the
property of the Landlord both during and upon expiration
of the Lease Term.
b) Excess Costs. In the event that the actual cost of the
Tenant's Work shall exceed the TI Allowance, Tenant
shall pay such excess and Landlord shall have no
responsibility therefore. If the cost of Tenant's Work
exceeds the TI Allowance, Tenant shall not be entitled
to any payment, rent reduction or credit therefore.
c) Changes. In the event that changes to the Final Plans
are requested by the Tenant or required by any
governmental agency subsequent to Landlord's approval
thereof, such changes and costs shall be forwarded to
Landlord for approval (which approval shall not be
unreasonably withheld) prior to incorporation into the
Tenant's Work. After the Landlord's approval of the
changes and the costs thereof, the changes shall be
incorporated into the Tenant's Work.
d) Payment of TI Allowance. The TI Allowance shall be paid
by the Landlord to the Tenant as follows: Upon
completion of all of the Tenant's Work, including the
installation of all Tenant FF&E, which completion shall
be certified by the Tenant and the Tenant's Architect
(if applicable), Tenant shall execute and deliver to
Landlord a written acknowledgment that the Tenant's Work
has been completed and approved by Tenant accompanied by
a written certificate setting forth the amount and
nature of all costs and expenses billed to Tenant in
connection with the Tenant's Work. Within ten (10)
business days after Landlord's receipt of such
certificate, accompanied by copies of all related bills,
invoices, receipts and final unconditional lien releases
from Tenant's general contractor and all subcontractors,
Landlord shall pay to Tenant the amount of such costs
and expenses up to and including, but, in any event,
never exceeding the TI Allowance.
6. Miscellaneous Construction Covenants.
a) Diligent Construction. Tenant will promptly, diligently
and continuously pursue constriction of the Improvements
and of Tenant's Work to successful completion in full
compliance with the Final Pans and this Work Letter.
Landlord and Tenant shall cooperate with one another
during the Performance of Tenant's Work to effectuate
such work in a timely and compatible manner.
b) Compliance with Laws. Tenant will construct Tenant's
Work in a safe and lawful manner. Tenant shall, at its
sole cost and expense, comply with all applicable laws
and all regulations and requirements of, and all
licenses and permits issued by, all municipal or other
governmental bodies with jurisdiction. Copies of all
filed documents and all permits and licenses shall be
provided to Landlord. Tenant shall notify Landlord in
writing not less than ten (10) day prior to the
commencement of the construction of any portion of the
Improvements as to name, telephone number and
responsible party for each and every contractor and/or
subcontractor who is about to commence work at the
Premises.
c) Indemnification. Tenant agrees that its indemnification
of the Landlord set forth in the Lease shall also apply
with respect to any acts or omissions of the Tenant and
its contractors, subcontractors, laborers, material men
and suppliers in connection with the completion of the
Improvements in accordance with the terms and conditions
of this Work Letter.
d) Insurance. Construction of the Improvements shall not
proceed without Tenant first acquiring workers'
compensation and comprehensive general public liability
insurance and property damage insurance as well as "All
Risks" builders' risk insurance, with minimum coverage
of $2,000,000 issued by an insurance company meeting the
requirements of the Lease. All insurance policies
maintained by Tenant pursuant to this Work Letter shall
name Landlord and any lender with an interest in the
Premises as additional insureds and comply with all of
the applicable terms and provisions of the Lease
relating to Insurance. Any contractor retained by Tenant
shall be covered by Tenant's insurance.
e) Coordination with Lease. Nothing herein contained shall
be construed as (i) constituting Tenant as Landlord's
agent for any purpose whatsoever, or (ii) a waiver by
Landlord of any of the terms or provisions of this
Lease. Any default by Tenant or Landlord with respect to
any portion of this Work Letter shall be deemed a breach
of this Lease for which the non-defaulting party shall
have all the rights and remedies as in the case of a
breach of said Lease.
f) Approval of Plans. Landlord will not check Tenant
drawings for building code compliance. Approval of the
Final Plans by Landlord is not a representation that the
drawings are in compliance with the Requirements of
governing authorities, and it shall be Tenant's
responsibility to meet and comply with all federal,
state and local code requirements. Approval of the Final
Plans does not constitute assumption of responsibility
by Landlord or its architect for their accuracy,
sufficiency or efficiency, and Tenant shall be totally
responsible for such matters.
g) Tenant's Deliveries. Tenant shall deliver the following
information to Landlord prior to the commencement of
construction of Tenant's Work:
I. The names and addresses of the general, mechanical
and electrical contractors (as applicable) Tenant
intends to engage in the performance of Tenant's
Work;
EXHIBIT "B" - Page 2
22
II. The date on which Tenant's Work will commence,
together with the estimated dates of completion of
Tenant's construction and featuring work, and the
date on which Tenant expects to be ready to open
for business in the Premises; and
III. In the event that Tenant retains a general
contractor to complete the Tenant's Work, a copy
of a fully executed construction contract for such
work.
h) Qualification of Contractors. All contractors engaged by
Tenant shall be bondable, licensed contractors,
possessing good labor relations, capable of performing
quality workmanship.
i) No disturbance of Other Tenants. During the construction
of the Improvements and the performance of Tenant's
Work, Tenant shall use its best efforts not to disturb
the current tenants of the Project.
IN WITNESS WHEREOF, This Work Letter has been executed by the Landlord and the
Tenant as of the date first written above.
LANDLORD: TENANT:
Palos Verdes Office Partners, LLC, MedStrong Corp
a California Limited Liability company
By: Metro Properties, LLC, By: /s/ Xxxxx X. Xxxxxx
a California limited liability company ------------------------
Its: Manager Name: Xxxxx Xxxxxx
------------------------
Its: FOR MEDSTRONG CORP
By: /s/ Xxxxxxxxx Xxxxxxxx ------------------------------
--------------------------
Xxxxxxxxx Xxxxxxxx By:
--------------------------
Name:
------------------------
Its:
-------------------------
EXHIBIT "B" - Page 3
23
SCHEDULE 1 TO EXHIBIT "B"
(Approved Space Plan)
EXHIBIT "B" - Page 1
24
EXHIBIT "C"
(Intentionally Omitted)
EXHIBIT C - Page 1
25
EXHIBIT "D"
RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the following Rules and
Regulations. Landlord shall not be responsible to Tenant for the nonperformance
of any of said Rules and Regulations by or otherwise with respect to the acts or
omissions of any other tenants or occupants of the Building.
I. Tenant shall not alter any lock or install any new or additional locks
or bolts on any doors or windows of the Premises without obtaining Landlord's
prior written consent. Tenant shall bear the cost of any lock changes or repairs
required by Tenant. Two keys will be furnished by Landlord for the Premises, and
any additional keys required by Tenant must be obtained from Landlord at a
reasonable cost to be established by Landlord.
2. All doors opening to public corridors shall be kept closed at all times
except for normal ingress and egress to the Premises, unless electrical
holdbacks have been installed.
3. Landlord reserves the right to close and keep locked all entrance and
exit doors of the Building during such hours as are customary for comparable
buildings in the vicinity of the Building. Tenant, its employees and agents must
be sure that the doors to the Building are securely closed and locked when
leaving the Premises if it is after the normal hours of business for the
Building. Any tenant, its employees, agents or any other persons entering or
leaving the Building at any time when it is so locked, or any time when it is
considered to be after normal business hours for the Building, may be required
to sign the Building register when so doing. Access to the Building may be
refused unless the person seeking access has proper identification or has a
previously arranged pass for access to the Building. The Landlord and his agents
shall in no case be liable for damages for any error with regard to the
admission to or exclusion from the Building of any person. In case of invasion,
mob, riot, public excitement, or other commotion, Landlord reserves the right to
prevent access to the Building during the continuance of same by any means it
deems appropriate for the safety and protection of life and property.
4. Landlord shall have the right to prescribe the weight, size and
position of all safes and other heavy property brought into the Building. Safes
and other heavy objects shall, if considered necessary by Landlord, stand on
supports of such thickness as is necessary to properly distribute the weight.
Landlord will not be responsible for loss of or damage to any such safe or
property in any case. All damage done to any part of the Building, its contents,
occupants or visitors by moving or maintaining any such safe or other property
shall be the sole responsibility of Tenant and any expense of said damage or
injury shall be borne by Tenant.
5. No furniture, freight, packages, supplies, equipment or merchandise
will be brought into or removed from the Building, except upon prior notice to
Landlord, and in such manner, in such specific elevator, and between such hours
as shall be designated by Landlord. Tenant shall provide Landlord with not less
than 24 hours prior notice of the need to utilize an elevator for any such
purpose, so as to provide Landlord with a reasonable period to schedule such use
and to take such actions or prescribe such procedures as are appropriate to
protect against damage to the Building.
6. Landlord shall have the right to control and operate the public
portions of the Building, the public facilities, the heating and air
conditioning, and any other facilities furnished for the common use of tenants,
in such manner as is customary for comparable buildings in the vicinity of the
Building.
7. The requirements of Tenant will be attended to only upon application at
the management office of the Building or at such office location designated by
Landlord. Employees of Landlord shall not perform any work or do anything
outside their regular duties unless under special instructions from Landlord.
8. Tenant shall not disturb, solicit, or canvass any occupant of the
Building and shall cooperate with Landlord or Landlords agents to prevent same.
9. The toilet rooms, urinals, wash bowls and other apparatus shall not be
used for any purpose other than that for which they were constructed, and no
foreign substance of any kind whatsoever shall be thrown therein. The expense of
any breakage, stoppage or damage resulting from the violation of this rule shall
be borne by the tenant who, or whose employees or agents, shall have caused it.
10. Tenant shall not overload the floor of the Premises, nor xxxx, drive
nails or screws, or drill into the partitions, woodwork or plaster or in any way
deface the Premises or any part thereof without Landlord's consent first had and
obtained.
11. Except for vending machines intended for the sole use of Tenant's
employees and invitees, no vending machine or machines of any description other
than fractional horsepower office machines shall be installed, maintained or
operated upon the Premises without the written consent of Landlord.
12. Tenant shall not use any method of heating or air conditioning other
than that which may be supplied by Landlord, without the prior written consent
of Landlord.
13. Tenant shall not use or keep in or on the Premises or the Building any
kerosene, gasoline or other inflammable or combustible fluid or material. Tenant
shall not use, keep or permit to be used or kept, any foul or noxious gas or
substance in or on the Premises, or permit or allow the Premises to be occupied
or used in a manner offensive or objectionable to Landlord or other occupants of
the Building by reason of noise, odors, or vibrations, or interfere in any way
with other Tenants or those having business therein.
EXHIBIT D - Page 1
26
14. Tenant shall not bring into or keep within the Building or the
Premises any animals, birds, bicycles or other vehicles.
15. No cooking shall be done or permitted by any tenant on the Premises,
nor shall the Premises be used for the storage of merchandise, for lodging or
for any improper, objectionable or immoral purposes. Notwithstanding the
foregoing, microwave ovens may be used in the Premises for heating food and
brewing coffee, tea, hot chocolate and similar beverages, provided that such use
is in accordance with all applicable federal, state and city laws, codes,
ordinances, rules and regulations, and does not cause odors which are
objectionable to Landlord and other Tenants.
16. Landlord will approve where and how telephone and telegraph wires are
to be introduced to the Premises. No boring or cutting for wires shall be
allowed without the consent of Landlord. The location of telephone, call boxes
and other office equipment affixed to the Premises shall be subject to the
approval of Landlord.
17. Landlord reserves the right to exclude or expel from the Building any
person who, in the judgment of Landlord, is intoxicated or under the influence
of liquor or drugs, or who shall in any manner do any act in violation of any of
these Rules and Regulations.
18. Tenant, its employees and agents shall not loiter in the entrances or
corridors, nor in any way obstruct the sidewalks, lobby, halls, stairways or
elevators, and shall use the same only as a means of ingress and egress for the
Premises.
19. Tenant shall not waste electricity, water or air conditioning and
agrees to cooperate fully with Landlord to ensure the most effective operation
of the Building's heating and air conditioning system, and shall refrain from
attempting to adjust any controls.
20. Tenant shall store all its trash and garbage within the interior of
the Premises. No material shall be placed in the trash boxes or receptacles if
such material is of such nature that it may not be disposed of in the ordinary
and customary manner of removing and disposing of trash and garbage in the city
in which the Building is located without violation of any law or ordinance
governing such disposal. All trash, garbage and refuse disposal shall be made
only through entryways and elevators provided for such purposes at such times as
Landlord shall designate.
21. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
22. Tenant shall assume any and all responsibility for protecting the
Premises from theft, robbery and pilferage, which includes keeping doors locked
and other means of entry to the Premises closed, when the Premises are not
occupied.
23. No awnings or other projection shall be attached to the outside walls
of the Building without the prior written consent of Landlord. No curtains,
blinds, shades or screens shall be attached to or hung in, or used in connection
with, any window or door of the Premises without the prior written consent of
Landlord. The sashes, sash doors, skylights, windows, and doors that reflect or
admit light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed by Tenant, nor shall any bottles,
parcels or other articles be placed on the windowsills. All electrical ceiling
fixtures hung in offices or spaces along the perimeter of the Building must be
fluorescent and/or of a quality, type, design and bulb color approved by
Landlord.
24. The washing and/or detailing of or, the installation of windshields,
radios, telephones in or general work on, automobiles shall not be allowed on
the Real Property.
25. Food vendors shall be allowed in the Building upon receipt of a
written request from the Tenant. The food vendor shall service only the tenants
that have a written request on file in the Building's management office. Under
no circumstance shall the food vendor display their products in a public or
common area including corridors and elevator lobbies. Any failure to comply with
this rule shall result in immediate permanent withdrawal of the vendor from the
Building.
26. Tenant must comply with requests by the Landlord concerning the
informing of their employees of items of importance to the Landlord.
27. Tenant shall comply with any non-smoking ordinance adopted by any
applicable governmental authority.
28. Landlord may waive any one or more of these Rules and Regulations for
the benefit of any particular tenant or tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of any
other tenant or tenants, nor prevent Landlord from thereafter enforcing any such
Rules or Regulations against any or all tenants of the Building. Landlord
reserves the right at any time to change or rescind any one or more of these
Rules and Regulations, or to make such other and further reasonable Rules and
Regulations as in Landlord's judgment may from time to time be necessary for the
management, safety, care and cleanliness of the Premises and Building, and for
the preservation of good order therein, as well as for the convenience of other
occupants and tenants therein. Landlord shall not be responsible to Tenant or to
any other person for the nonobservance of the Rules and Regulations by another
tenant or other person. Tenant shall be deemed to have read these Rules and
Regulations and to have agreed to abide by them as a condition of its occupancy
of the Premises.
EXHIBIT D - Page 2
27
EXHIBIT "E"
FORM OF TENANT ESTOPPEL CERTIFICATE
The undersigned, as Tenant under that certain Office Lease (the "Lease")
made and entered into as of ________, 2000, and between
____________________________________, a __________________________ as Landlord,
and the undersigned as Tenant, for Premises on the ____________ floor(s) of the
Building located at 000 Xxxxxx Xxxx Xxxx, Xxxxxx Xxxxx Xxxxxx, Xxxxxxxxxx hereby
certifies as follows:
1. Attached hereto as Exhibit A is a true and correct copy of the Lease
and all amendments and modifications thereto. The documents contained in Exhibit
A represent the entire agreement between the parties as to the Premises.
2. The undersigned has commenced occupancy of the Premises described in
the Lease, currently occupies the Premises, and the Lease Term commenced on
__________.
3. The Lease is in full force and effect and has not been modified,
supplemented or amended in any way except as provided in Exhibit A.
4. Tenant has not transferred, assigned, or sublet any portion of the
Premises nor entered into any license or concession agreements with respect
thereto except as follows:
5. Tenant shall not modify the documents contained in Exhibit A or prepay
any amounts owing under the Lease to Landlord in excess of thirty (30) days
without the prior written consent of Landlord's mortgagee.
6. Base Rent became payable on_________________.
7. The Lease Term expires on __________________.
8. All conditions of the Lease to be performed by Landlord necessary to
the enforceability of the Lease have been satisfied and Landlord is not in
default thereunder.
9. No rental has been paid in advance and no security has been deposited
with Landlord except as provided in the Lease.
10. As of the date hereof, there are no existing defenses or offsets that
the undersigned has, which preclude enforcement of the Lease by Landlord.
11. All monthly installments of Base Rent, all Additional Rent and all
monthly installments of estimated Additional Rent have been paid when due
through __________________. The current monthly installment of Base Rent is
$___________.
12. As of the date hereof, Tenant has not committed any defaults under the
terms of the Lease and Tenant is not aware of any Landlord defaults under the
terms of the Lease.
13. The undersigned acknowledges that this Estoppel certificate may be
delivered to Landlord's prospective mortgagee, or a prospective purchaser, and
acknowledges that it recognizes that if same is done, said mortgagee,
prospective mortgagee, or prospective purchaser will be relying upon the
statements contained herein in making the loan or acquiring the property of
which the Premises are a part, and in accepting an assignment of the Lease as
collateral security, and that receipt by it of this certificate is a condition
of making of the loan or acquisition of such property.
14. If Tenant is a corporation or partnership, each individual executing
this Estoppel Certificate on behalf of Tenant hereby represents and warrants
that Tenant is a duly formed and existing entity qualified to do business in the
state in which the Building is located and that Tenant has full right and
authority to execute and deliver this Estoppel Certificate and that each person
signing on behalf of Tenant is authorized to do so.
Executed at Los Angeles on the 26 day of DEC, 2000.
"Tenant"
---------------------------------------
a
-------------------------------------
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name:
-----------------------------
Its: President CEO
-----------------------------
By:
-----------------------------------
Name:
-----------------------------
Its:
-----------------------------
EXHIBIT E - Page 1
28
OFFICE LEASE
000 XXXXXX XXXX XXXX
XXXXXX XXXXX XXXXXX, XXXXXXXXXX
PALOS VERDES OFFICE PARTNERS, LLC
a California Limited Liability Company,
as Landlord,
and
XxxxXxxxXxxxxx.xxx
as Tenant
29
000 XXXXXX XXXX XXXX
SUMMARY OF BASIC LEASE INFORMATION
This Summary of Basic Lease Information ("Summary") is hereby incorporated
into and made a part of the attached Office Lease. Each reference in the Office
Lease to any term of this Summary shall have the meaning as set forth in this
Summary for such term. In the event of a conflict between the terms of this
Summary and the Office Lease, the terms of the Office Lease shall prevail. Any
capitalized terms used herein and not otherwise defined herein shall have the
meaning as set forth in the Office Lease.
TERMS OF LEASE DESCRIPTION
(References are to
the Office Lease)
1. Date: EFF. Date 1/2/01
2. Landlord: Palos Verdes Office Partners, LLC,
a California limited liability company
3. Address of Landlord Palos Verdes Office Partners, LLC
(Section 24.19): c/o Metro Properties, LLC
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Mr. Xxxxxxxxx Xxxxxxxx
4. Tenant: XxxxXxxxXxxxxx.xxx
5. Address of Tenant Prior to Lease Commencement Date:
(Section 24.19):
XxxxXxxxXxxxxx.xxx
0000 Xxxxx Xxxxxx Xxxxx Xxxx
Xxxxxx Xxxxx Xxxxxx, XX 00000
Following Lease Commencement Date:
XxxxXxxxXxxxxx.xxx
000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx Palos Verdes, California 90274
Attention: Xx. Xxxxx Xxxxxx
6. Premises (Article 1): Initially 3,073 rentable square
feet of space ("Initial Space")
located on the third (3rd) floor of
the Building, as set forth in
Exhibit A attached hereto. Premises
shall increase by 610 rentable
square feet ("Expansion Space")
upon Landlord's completion of
certain improvements outlined in
Article 25.
7. Term (Article 2).
7.1 Lease Term: Three (3) years.
7.2 Lease Commencement Upon Tenant's receipt of fully
Date: executed Lease and keys to the
Initial Premises, but in no event
later than November 30, 2000.
7.3 Lease Expiration Date: The last day of the thirty-sixth
(36th) full calendar month
following the Lease Commencement Date
8. Base Rent (Article 3):
Monthly Installment Monthly Rental Rate
Lease Year Annual Base Rent of Base Rent per Rentable Square Foot
---------- ---------------- ------------------- ------------------------
1 $73,752.00 $6,146.00 $2.00
30
Base Rent shall be increased annually on the
Lease Anniversary Date by four (4%) percent.
Monthly Installment of Base Rent will increase to $7,366.00 and Annual
Base Rent shall increase to $88,392 when Landlord completes work on the
Expansion Space. The Initial Premises shall consist of 3,073 rentable square
feet. Tenant shall pay Base Rent on the Initial Space only starting from the
Lease Commencement Date. Landlord shall construct, at its expense, a demising
partition between Suite 301 and the reception area as well as separate entrance
doors to the reception area. See Exhibit "A" Upon substantial completion of the
above work, which is projected to be no longer than 90 days following the Lease
Commencement Date, Tenant shall take possession of the Expansion Space,
consisting of 610 rentable square feet. The Monthly installment of Base Rent
shall increase to and pay rent on same.
9. Additional Rent
(Article 4).
9.1 Base Year: Calendar year 2001.
9.2 Tenant's Share: Approximately 10.49%. (3,683/35,108).
10. Security Deposit: $44,196.00. This will be applied to
the last six months of Base Rent of
the Initial Term. (6 months * $2.00
* 3,683 rsf.)
11. Parking (Article 23): Four (4) unreserved parking spaces
per 1,000 rentable square feet of
area leased.
12. Brokers (Section 24.25): Colliers Xxxxxx International
(representing Landlord)
Xxxxxx Xxxxxxx Associates, Inc.
(representing Tenant)
13. Option (Section 24.31): One (1), two (2) year period to
extend the term of the Lease at the
then current market rent.
14. Signage: Landlord shall allow Tenant the
right to install exterior
identification signage, at Tenant's
expense, on or adjacent to the
Silver Spur Road elevation of the
Building, subject to Landlord's
approval and all City, County and
all other applicable sign
ordinances.
SCHEDULE OF EXHIBITS:
EXHIBIT A: Outline of Floor Plan of Premises
EXHIBIT B: Work Letter
EXHIBIT C: Intentionally Omitted
EXHIBIT D: Rules and Regulations
EXHIBIT E: Form of Tenant Estoppel Certificate
LANDLORD: TENANT:
Palos Verdes Office Partners, LLC, XxxxXxxxXxxxxx.xxx
By: /s/ Xxxxxxxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx
-------------------------- --------------------------
Its: Its: President & CEO
-------------------------- --------------------------
Date: 12/26/00 Date: 12/26/00 For Medstrong
-------------------------- --------------------------
By:
--------------------------
Its:
--------------------------
Date:
--------------------------
