EXHIBIT 3.23
XXXX.XXX, INC.
EXECUTIVE CHANGE IN CONTROL AGREEMENT
THIS EXECUTIVE CHANGE IN CONTROL AGREEMENT (the "Agreement") is made and
entered into this 25th day of January, 2000 between _______________
("Executive") and XXXX.XXX, a Delaware corporation (the "Company").
W I T N E S S E T H
In consideration of the mutual promises and covenants contained herein, it
is agreed by and between the parties hereto as follows:
1. Definitions.
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(a) "Cause" means:
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(i) conviction of any felony or any crime involving moral turpitude or
dishonesty;
(ii) participation in a fraud or act of dishonesty against the Company;
(iii) willful breach of the Company's policies;
(iv) intentional damage to the Company's property;
(v) conduct that, based upon a good faith and reasonable factual investigation
and determination by the Company, demonstrates gross unfitness to serve;
or
(vi) an intentional, material violation of any agreement with the Company, or
of any statutory duty to the Company, that is not corrected within thirty
(30) days after written notice thereof.
Physical or mental disability shall not constitute "Cause." For purposes of
this definition, "Company" shall include an affiliate of the Company and a
successor to the Company.
(b) "Good Reason" means any of the following undertaken without Executive's
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express written consent:
(i) a change in Executive's status, title, position or responsibilities
(including the person or persons to whom Executive has reporting
responsibilities) that represents a material adverse change from Executive's
status, title, position or responsibilities as in effect immediately prior to a
Change in Control Event, excluding for this purpose an isolated, insubstantial
and inadvertent action not taken in bad faith that is remedied by the Company
promptly after notice thereof is given by Executive;
(ii) a material reduction in Executive's rate of compensation (including annual
base compensation and incentive compensation) as in effect immediately prior to
the Change in Control, except to the extent that the compensation of other
similarly situated persons are accordingly reduced;
(iii) any failure by the Company to continue in effect any benefit plan or
arrangement, including incentive plans or plans to receive securities of the
Company, in which Executive is participating at the time of a Change in Control
Event (hereinafter referred to as "Benefit Plans"), or the taking of any action
by the Company that would adversely affect Executive's participation in or
reduce Executive's benefits under any Benefit Plans or deprive Executive of any
fringe benefit enjoyed by Executive at the time of a Change in
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Control Event, provided, however, that Executive may not terminate for Good
Reason following a Change in Control Event if the Company offers a range of
benefit plans and programs which, taken as a whole, are comparable to the
Benefit Plans;
(iv) the Company's requiring Executive to relocate to any place outside of a
forty-five (45) mile driving distance of Executive's current work site, except
for reasonably required travel on the business of the Company or its affiliates
that is not materially greater than such travel requirements prior to the
Change in Control Event or unless Executive accepts such relocation
opportunity;
(v) any material breach by the Company of any provision of an agreement between
the Company and Executive, other than a breach which is cured by the Company
within thirty (30) days following notice by Executive of such breach; or
(vi) the failure of the Company to obtain an agreement, satisfactory to
Executive, from any successors and assigns to assume and agree to perform the
obligations created under this Agreement.
(c) "Change in Control Event" means:
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(i) a dissolution or liquidation of the Company;
(ii) a sale of all or substantially all of the assets of the Company;
(iii) a sale by the stockholders of the Company of the voting stock of the
Company to another corporation or its subsidiaries that results in the
ownership by such corporation and/or its subsidiaries of fifty percent (50%) or
more of the combined voting power of all classes of the voting stock of the
Company entitled to vote;
(iv) a merger or consolidation in which the Company is not the surviving
corporation (other than a merger or consolidation in which stockholders of the
Company immediately before the merger or consolidation have, immediately after
the merger or consolidation, greater than fifty percent (50%) of the combined
voting power of all classes of the voting stock of the Company entitled to
vote);
(v) a reverse merger in which the Company is the surviving corporation but the
shares of the Company's common stock outstanding immediately preceding the
merger are converted by virtue of the merger into other property, whether in
the form of securities, cash or otherwise (other than a reverse merger in which
stockholders of the Company immediately before the merger have, immediately
after the merger, greater than fifty percent (50%) of the combined voting power
of all classes of the voting stock of the Company entitled to vote); or
(vi) any transaction or series of related transactions in which in excess of
fifty percent (50%) of the combined voting power of all classes of the voting
stock of the Company entitled to vote is transferred.
(d) "Options" shall mean all stock options granted to Executive by the Company
prior to or after the date of this Agreement.
2. Termination of Employment.
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(a) Employment Separation Date. In the event that Executive's employment with
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the Company either (i) is involuntarily terminated without Cause or (ii) is
voluntarily terminated for Good Reason within twelve (12) months after a Change
in Control Event, then the date of such termination shall be the "Employment
Separation Date" for purposes of this Agreement.
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(b) Procedure for Termination for Cause. The Company may not terminate
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Executive's employment for Cause unless and until there shall have been
delivered to Executive a copy of a resolution duly adopted by the affirmative
vote of at least a majority of the Board of Directors of the Company at a
meeting of the Board, finding that in the good faith opinion of the Board,
Executive was guilty of the conduct constituting "Cause" and specifying the
particulars thereof in detail.
3. Acceleration of Option Vesting.
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(a) Upon the closing of a Change in Control Event, any unvested Options held by
Executive shall have their vesting accelerated by twelve (12) months
immediately prior to such closing.
(b) If Executive is terminated without Cause or voluntary terminates his
employment with the Company for Good Reason within twelve (12) months after a
Change in Control Event, any unvested Options held by Executive shall have
their vesting accelerated in full so as to become one hundred percent (100%)
vested and immediately exercisable in full as of the date of such termination.
4. Accrued Salary and Paid Time Off. The Company will pay Executive all
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accrued salary, and all accrued and unused paid time off earned prior to the
Employment Separation Date, subject to standard payroll deductions and
withholdings. Executive is entitled to this payment regardless of whether
Executive signs this Agreement.
5. Expense Reimbursement. Within thirty (30) business days of the Employment
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Separation Date, Executive will submit Executive's final documented expense
reimbursement statement reflecting all business expenses Executive incurred
through the Employment Separation Date, if any, for which Executive seeks
reimbursement. The Company shall reimburse Executive's expenses pursuant to
Company policy and regular business practice.
6. Release Agreement; Cessation of Benefits.
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(a) In order to receive benefits under this Agreement (other than amounts due
under Paragraphs 3 and 4), Executive must execute a general waiver and release
in the form of Exhibit A attached hereto.
(b) If Executive is indebted to the Company on the Employment Separation Date
or at any time thereafter, the Company reserves the right to offset any
payments under this Agreement by the amount of such indebtedness. In no event
shall payment of any benefit hereunder be made prior to the Employment
Separation Date.
7. Parachute Payments. In the event that the acceleration of stock options
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provided for in this Agreement ("Agreement Benefits"), together with benefits
otherwise payable to Executive, (i) constitute a "parachute payment" within the
meaning of Section 280G (as it may be amended or replaced) of the Internal
Revenue Code of 1986, as amended or replaced (the "Code"), and (ii) but for
this Section 7, would be subject to the excise tax imposed by Section 4999 (as
it may be amended or replaced) of the Code (the "Excise Tax"), then Executive's
Agreement Benefits shall be either
(a) provided to Executive in full, or
(b) provided to Executive only as to such lesser extent that would result in no
portion of such Agreement Benefits being subject to the Excise Tax,
whichever of the foregoing amounts, taking into account the applicable federal,
state and local income taxes and the Excise Tax, results in the receipt by
Executive, on an after-tax basis, of the greatest amount of benefits,
notwithstanding that all or some portion of such Agreement Benefits may be
taxable under the Excise Tax. If clause
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(b) above is applicable, then at the option of Executive, Executive and the
Company shall enter into a consulting agreement which shall (i) provide the
Executive with payments and benefits, payable over the term of the agreement,
the present value of which in the aggregate is equal to or greater than the
present value (determined by applying a discount rate equal to the interest
rate provided in Section 1274(b)(2)(B) of the Code) of the amount of the
reduction in Agreement Benefits otherwise payable to Executive, but not in
excess of reasonable compensation for the consulting services, (ii) require
Executive to make his services available to the Company for no more than thirty
(30) hours per month, (iii) have a term of not more than three (3) years
(unless Executive consents to a longer period) and (iv) contain appropriate
provisions restricting Executive from competition with the Company or being
employed by or consulting for a competing business for the duration of the
consulting period.
Unless the Company and Executive otherwise agree in writing, any determination
required under this Section 7 shall be made in writing in good faith by the
Company's independent public accountants (or independent public accountants
selected by the Executive in the event that the independent public accounts of
the entity involved in the Change of Control are the same as those of the
Company) (the "Accountants"). In the event of a reduction in benefits
hereunder, Executive shall be given the choice, subject to approval by the
Company, of which benefits to reduce. For purposes of making the calculations
required by this Section 7, the Accountants may make reasonable assumptions and
approximations concerning applicable taxes and may rely on reasonable, good
faith interpretations concerning the application of the Code. The Company and
Executive shall furnish to the Accountants such information and documents as
the Accountants may reasonably request in order to make a determination under
this Section 7. The Company shall bear all costs the Accountants may
reasonably incur in connection with any calculations contemplated by this
Section 7.
8. Nonsolicitation. Executive agrees that, for one (1) year following the
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Employment Separation Date, Executive will not, either directly or through
others, solicit or attempt to solicit any employee, consultant, or independent
contractor of the Company to terminate his or her relationship with the Company
in order to become an employee, consultant or independent contractor to or for
any other person or entity.
9. Company Property. Within five (5) business days of the Employment
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Separation Date, Executive agrees to return to the Company all Company
documents (and all copies thereof) and other Company property in Executive's
possession, or Executive's control, including, but not limited to, Company
files, notes, drawings, records, business plans and forecasts, financial
information, specifications, computer-recorded information, tangible property,
credit cards, entry cards, identification badges and keys; and, any materials
of any kind which contain or embody any proprietary or confidential material of
the Company (and all reproductions thereof). Executive agrees that, as of the
Employment Separation Date, Executive will neither use nor possess Company
property, except such property which any officer or the Board specifically
authorizes Executive to use or possess for the sole purpose of performing
Executive's duties under this Agreement. Executive further agrees that
Executive will return all property provided to Executive pursuant to the
preceding sentence, upon completion of the specific project for which Executive
was authorized to possess such property or on the Employment Separation Date,
whichever first occurs.
10. Proprietary Information Obligations. Both during and after Executive's
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employment, Executive shall acknowledge Executive's continuing obligations
under Executive's Proprietary Information and Inventions Agreement not to use
or disclose any confidential or proprietary information of the Company without
prior written authorization from a duly authorized representative of the
Company. A copy of Executive's Proprietary Information and Inventions
Agreement is attached hereto as Exhibit B.
11. Nondisparagement. Executive and the Company agree that neither party will
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at any time disparage the other in any manner likely to be harmful to the other
party, its business reputation, or the personal or business reputation of its
directors, stockholders, and employees, provided that each party shall respond
accurately and fully to any question, inquiry, or request for information when
required by legal process.
12. Pooling of Interests. In the event that (i) the Company desires to engage
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in a Change in Control Event and to account for such transaction as a pooling
of interests and (ii) the Board of Directors determines in good
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faith, after consulting with its independent public accountants, that such
transaction, but for the terms of this Agreement, could be accounted for as a
pooling of interest, then this Agreement shall be revised to the extent
necessary to permit such transaction to be accounted for as a pooling of
interests.
13. Amendment of Agreement. This Agreement may be changed only upon the mutual
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written consent of the Company and Executive. The written consent of the
Company to a change of this Agreement must be signed by the Company's Chief
Financial Officer, after such change has been approved by the Compensation
Committee of the Board.
14. Notices. Any notices provided hereunder must be in writing and such
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notices or any other written communication shall be deemed effective upon the
earlier of personal delivery (including personal delivery by telex or
facsimile) or the third day after mailing by first class mail, to the Company
at its primary office location and to Executive at Executive's address as
listed in the Company's payroll records. Any payments made by the Company to
Executive under the terms of this Agreement shall be delivered to Executive
either in person or at Executive's address as listed in the Company's payroll
records.
15. Waiver. If either party should waive any breach of any provisions of this
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Agreement, such party shall not thereby be deemed to have waived any preceding
or succeeding breach of the same or any other provision of this Agreement.
16. Headings. The headings of the paragraphs hereof are inserted for
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convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning thereof.
17. Successors and Assigns. This Agreement is intended to bind and inure to
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the benefit of and be enforceable by Executive and the Company, and their
respective successors, assigns, heirs, executors and administrators, except
that Executive may not assign any of Executive's duties hereunder and Executive
may not assign any of Executive's rights hereunder without the written consent
of the Company, which consent shall not be withheld unreasonably.
18. Attorney Fees. If either party hereto brings any action to enforce such
party's rights hereunder, the prevailing party in any such action shall be
entitled to recover such party's reasonable attorneys' fees and costs incurred
in connection with such action.
19. Arbitration. In order to ensure rapid and economical resolution of any
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dispute which may arise under this Agreement, Executive and the Company agree
that any and all disputes or controversies, arising from or regarding the
interpretation, performance, enforcement or termination of this Agreement shall
be resolved by final and binding arbitration under the procedures set forth in
the Arbitration Procedure attached hereto as Exhibit C and the then existing
Judicial Arbitration and Mediation Services Rules, Inc. ("JAMS") of Practice
and Procedure or the rules of practice and procedure of any successor entity to
JAMS (except insofar as they are inconsistent with the procedures set forth in
the enclosed Arbitration Procedure). BY ENTERING INTO THIS AGREEMENT, THE
COMPANY AND EXECUTIVE ACKNOWLEDGE THAT THEY ARE WAIVING THEIR RIGHT TO JURY
TRIAL OF ANY DISPUTE COVERED BY THIS AGREEMENT.
20. Choice of Law. This Agreement shall be deemed to have been entered into
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and shall be construed and enforced in accordance with the laws of the State of
California as applied to contracts made and to be performed entirely within
California.
21. Construction of Agreement. In the event of a conflict between the text of
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the Agreement and any summary, description or other information regarding the
Agreement, the text of the Agreement shall control.
22. Further Execution. The parties agree to take all such further action(s) as
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may reasonably be necessary to carry out and consummate this Agreement as soon
as practicable, and to take whatever steps may be
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necessary to obtain any governmental approval in connection with or otherwise
qualify the issuance of the securities that are the subject of this Agreement.
23. Independent Counsel. Executive acknowledges that this Agreement has been
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prepared on behalf of the Company by Xxxxxx Godward LLP, counsel to the
Company, and that Cooley Godward LLP does not represent, and is not acting on
behalf of, Executive. Executive has been provided with an opportunity to
consult with Executive's own counsel with respect to this Agreement.
24. Complete Agreement. This Agreement, including Exhibits A, B and C,
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constitutes the entire agreement between Executive and the Company, and it is
the complete, final, and exclusive embodiment of their agreement with regard to
this subject matter. It is entered into without reliance on any promise or
representation, written or oral, other than those expressly contained herein.
Each party has carefully read this Agreement, has been afforded the opportunity
to be advised of its meaning and consequences by such party's respective
attorneys, and signed the same of such party's own free will.
25. Severability. If one or more provisions of this Agreement are held to be
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unenforceable under applicable law, the parties agree to renegotiate such
provision in good faith. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (iii)
the balance of the Agreement shall be enforceable in accordance with its terms.
26. Counterparts. This Agreement may be executed in two or more counterparts,
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each of which shall be deemed an original and all of which together shall
constitute one instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year written above.
XXXX.XXX, [EXECUTIVE]
a Delaware corporation
By:
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Title:
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Exhibit A: Agreement and Release
Exhibit B: Proprietary Information and Inventions Agreement
Exhibit C: Arbitration Procedure
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EXHIBIT A
AGREEMENT AND RELEASE
Except as otherwise set forth in this Agreement, I hereby release, acquit and
forever discharge the Company, its parents and subsidiaries, and their
officers, directors, agents, servants, employees, attorneys, stockholders,
successors, assigns and affiliates, of and from any and all claims,
liabilities, demands, causes of action, costs, expenses, attorneys fees,
damages, indemnities and obligations of every kind and nature, in law, equity,
or otherwise, known and unknown, suspected and unsuspected, disclosed and
undisclosed, arising out of or in any way related to agreements, events, acts
or conduct at any time prior to and including the date this Agreement is signed
or the Employment Separation Date, whichever is later, including but not
limited to: all such claims and demands directly or indirectly arising out of
or in any way connected with my employment with the Company or the termination
of that employment; claims or demands related to salary, bonuses, commissions,
stock, stock options, or any other ownership interests in the Company, vacation
pay, fringe benefits, expense reimbursements, severance pay, or any other form
of compensation; claims pursuant to any federal, state or local law, statute or
cause of action including, but not limited to, the federal Civil Rights Act of
1964, as amended; the federal Age Discrimination in Employment Act of 1967, as
amended ("ADEA"); the federal Americans with Disabilities Act of 1990; the
California Fair Employment and Housing Act, as amended; tort law; contract law;
wrongful discharge; discrimination; harassment; fraud; defamation; emotional
distress; and breach of the implied covenant of good faith and fair dealing.
I knowledge that I am knowingly and voluntarily waiving and releasing any
rights I may have under the ADEA, as amended. I also acknowledge that the
consideration given for the waiver and release in the preceding paragraph
hereof is in addition to anything of value to which I was already entitled. I
further acknowledge that I have been advised by this writing, as required by
the ADEA, that: (a) my waiver and release do not apply to any rights or claims
that may arise after the execution date of this Agreement; (b) I have been
advised hereby that I have the right to consult with an attorney prior to
executing this Agreement; (c) I have twenty-one (21) days to consider this
Agreement (although I may choose to voluntarily execute this Agreement
earlier); (d) I have seven (7) days following the execution of this Agreement
by the parties to revoke the Agreement; and (e) this Agreement shall not be
effective until the date upon which the revocation period has expired, which
shall be the eighth day after this Agreement is executed by me, provided that
the Company has also executed this Agreement by that date ("Effective Date").
In giving this release, which includes claims which may be unknown to me at
present, I acknowledge that I have read and understand Section 1542 of the
California Civil Code which reads as follows: "A general release does not
extend to claims which the creditor does not know or suspect to exist in his
favor at the time of executing the release, which if known by him must have
materially affected his settlement with the debtor." I hereby expressly waive
and relinquish all rights and benefits under that section and any law of any
jurisdiction of similar effect with respect to my release of any claims I may
have against the Company.
By:
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[Executive Name]
Date:
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EXHIBIT B
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
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EXHIBIT C
ARBITRATION PROCEDURE
1. The parties agree that any dispute that arises in connection with this
Agreement or the termination of this Agreement shall be resolved by binding
arbitration in the manner described below.
2. A party intending to seek resolution of any dispute under the Agreement by
arbitration shall provide a written demand for arbitration to the other party,
which demand shall contain a brief statement of the issues to be resolved.
3. The arbitration shall be conducted in San Mateo County, California, by a
mutually acceptable retired judge from the panel of Judicial Arbitration and
Mediation Services, Inc. or any entity performing the same type of services
that succeeds to its business ("JAMS"). At the request of either party,
arbitration proceedings will be conducted in the utmost secrecy and, in such
case, all documents, testimony and records shall be received, heard and
maintained by the arbitrator in secrecy under seal, available for inspection
only by the parties to the arbitration, their respective attorneys, and their
respective expert consultants or witnesses who shall agree, in advance and in
writing, to receive all such information confidentially and to maintain such
information in secrecy, and make no use of such information except for the
purposes of the arbitration, unless compelled by legal process.
4. The arbitrator is required to disclose any circumstances that might preclude
the arbitrator from rendering an objective and impartial determination. In the
event the parties cannot mutually agree upon the selection of a JAMS
arbitrator, the President of JAMS shall designate the arbitrator.
5. The party demanding arbitration shall promptly request that JAMS conduct a
scheduling conference within fifteen (15) days of the date of that party's
written demand for arbitration or on the first available date thereafter on the
arbitrator's calendar. The arbitration hearing shall be held within thirty
(30) days after the scheduling conference or on the first available date
thereafter on the arbitrator's calendar. Nothing in this paragraph shall
prevent a party from at any time seeking temporary equitable relief, from JAMS
or any court of competent jurisdiction, to prevent irreparable harm pending the
resolution of the arbitration.
6. It is the intent of the parties that the Federal Arbitration Act ("FAA")
shall apply to the enforcement of this provision unless it is held inapplicable
by a court with jurisdiction over the dispute, in which event the California
Arbitration Act ("CAA") shall apply.
7. The arbitrator shall apply California law, including the California Evidence
Code, and shall be able to decree any and all relief of an equitable nature,
including but not limited to such relief as a temporary restraining order, a
preliminary injunction, a permanent injunction, or replevin of Company
property. The arbitrator shall also be able to award actual, general or
consequential damages.
8. The arbitrator shall have authority to award the payment of such fees and
expenses to the prevailing party, as appropriate in the discretion of the
arbitrator. Except as may otherwise be provided in the Executive Separation
and Consulting Agreement, each party shall pay its own attorneys' fees, witness
fees and other expenses incurred for its own benefit.
9. The arbitrator shall render a written award setting forth the reasons for
his or her decision. The decree or judgment of an award rendered by the
arbitrator may be entered and enforced in any court having jurisdiction over
the parties. The award of the arbitrator shall be final and binding upon the
parties without appeal or review except as permitted by the FAA, or if the FAA
is not applicable, as permitted by the CAA.
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EXHIBIT 10.56
GROSS RENT REAL PROPERTY LEASE
(Pacific Technology Center)
THIS LEASE is made and entered into by and between XXXXXXXXX ASSOCIATES,
LLC, California a limited liability company (the 'Landlord') and XXXX.XXX,
INC., a Delaware corporation (the "Tenant"), who, intending to be legally
bound, agree as follows:
I. LEASED PREMISES
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The Landlord hereby leases to the Tenant, and the Tenant hereby leases
from the Landlord, those certain premises which consist of approximately 5,188
s.f. of Building 1 located at 0000 Xxxxxxxxx Xxxxxx in the unincorporated area
of Santa Xxxxxxx County, California known as Goleta (the "Building"), as
depicted on the Plot Plan attached as Exhibit A (the "Premises"), together with
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all fixtures presently located in the Premises, and the improvements, if any,
to be constructed by Landlord in accordance with Exhibit B, upon the terms and
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conditions set forth below.
1.1 Acceptance or Condition. Subject to the completion of the
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improvements to be constructed by Landlord as provided in Exhibit B, if any,
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the Premises are accepted 'AS IS' by the Tenant, after the Tenant's inspection,
in the condition in which they exist as at the execution of this Lease. Tenant
acknowledges that there are no warranties, express or implied, made by Landlord
with regard to the Premises.
1.2 Parking. Parking is provided by Landlord for Tenants use on a non-
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exclusive basis in common with the other tenants of the Building.
2. TERM
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2.1 Initial Term. The initial term, of this Lease (the "initial Term")
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shall commence on August 1,1999 (the "Commencement Date") and shall expire on
July 31. 2000.
2.2 Options to Extend. Landlord hereby grants to Tenant, on the terms
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and conditions set forth below, TWO conditional options (the "Options") to
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extend the term of this Lease for additional periods of one year (the "Renewal
Term"). The Renewal Term shall be subject to all of the provisions of this
Lease. The new rent for the first term, shall be calculated in accordance with
Paragraph 3, herein. The rent for the second renewal term shall be set at $1.35
per square foot. The failure by Tenant to exercise the first Option shall
render any subsequent Option(s) void and of no further force or effect
whatsoever. Landlord has no duty whatsoever to advise or remind Tenant of its
rights hereunder. The right of Tenant to exercise any single Option to extend
the term of the Lease is subject to the satisfaction of the following
conditions precedent:
2.2.1 The Lease shall be In effect at the time notice of exercise is
given and on the last day of the expiring term or the Lease;
2.2.2 Landlord shall not, in good faith, have at any time served Tenant
with a three-day notice to pay rent or quit under California Code of Civil
Procedure Section 1161 during the preceding tern, of the Lease;
2.2.3 Tenant shall not e in default at the time notice of exercise is
given or on the last day of then expiring term of the Lease; and
2.2.4 Tenant shall have given notice of exercise of its Option pursuant
to this Section 2.2 not less than ninety days, nor more than one hundred
eighty days, prior to the expiration of the then-expiring term of this Lease.
2.3 Lease Term. All references herein to "Lease Term" shall refer to
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the initial Term, and any Renewal Terms for which an Option was properly
exercised.
2.4 Delay in Possession. If, for any reason, Landlord is not able to
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deliver possession of the Premises on the Commencement Date, the Commencement
Date shall be delayed, on a day-for-day basis, until such date as Landlord is
able to deliver possession of the Premises to Tenant. In such event, (a)
Landlord shall not be subject to any liability for such delays, nor shall any
such failure affect the validity of this Lease or the obligations of Tenant
hereunder, and (b) Tenant shall not be obligated to pay rent or perform any
other obligation of Tenant under this Lease until Landlord delivers possession
of the Premises to Tenant. If Landlord is not able to deliver possession of the
Premises to Tenant on or before the passage of one hundred eighty days
following the execution hereof, then Tenant shall have the right to terminate
this Lease. This termination right may be exercised only by Tenant's delivery
to Landlord of written notice of termination no later than ten days following
the expiration of such one-hundred-eighty-day period. Following the timely
delivery of any such notice of termination. this Lease shall terminate and any
prepaid rent and security deposit shall be returned to Tenant.
3. RENT
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Commencing on the earlier of August 1, 1999, or the date upon which Tenant
opens for business in the Premises (the "Rent Commencement Date"), Tenant shall
pay to Landlord the minimum monthly rent provided in Section 3.1,
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and any other payments required under the terms of this Lease, without set-off
or reduction. All such sums owing under this Lease shall be considered
additional rent ("rent") and shall be payable at the office of the Landlord
identified on the signature page hereof. Minimum monthly rent and all
additional rent shall be payable in advance, commencing on the first day of the
first full month following the Rent Commencement Date, and continuing on the
first day of each month hereafter during the term of this Lease. The first full
month's minimum monthly rent xxxx be due and payable upon the execution of this
Lease by Tenant. Should the Rent Commencement Date be a date other than the
first day of a month, then the rent due on the Rent Commencement Date shall be
prorated, on the basis of a thirty-day month, for the number of days between
the Rent Commencement Date (including the Rent Commencement Date) and the end
of the month in which the Rent Commencement Xxxx occurs.
3.1 Minimum Monthly Rent. The minimum monthly rent payable from the Rent
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Commencement Date through the expiration of the first twelve months of the
initial Term shall be Six Thousand Thirty-One and 06/100 Dollars ($6031.06).
The minimum monthly rent shall be adjusted upon the expiration of the first
year of the initial Term and each year thereafter (including Renewal Terms, if
any). Commencing on the first day of the thirteenth month of the initial Term
(the "Adjustment Date"), the parties shall ascertain from the official
Consumer's Price Index for Urban Wage Earners and Clerical Workers, All Items,
for the Los Angeles, Anaheim-Riverside area, 0000-0000-000 base, as published
by the United States Department of Labor, Bureau of Labor Statistics (the
"index") the index figure for the month four months preceding the Commencement
Date (the "Base Index"), and for the corresponding month prior to the
Adjustment Date (the "Adjustment Index"). The minimum monthly rent payable from
each Adjustment Date until the next date upon which minimum monthly rent is
adjusted as provided in this Lease shall be determined by multiplying the
minimum monthly rent payable at the Rent Commencement Date by a fraction, the
numerator of which shall be the Adjustment Index, and the denominator of which
shall be the Base Index. Notwithstanding the preceding, in no event will the
adjusted minimum monthly rent be less than 3% or more than 7% of the minimum
monthly rent in effect prior to the Adjustment Date.
3.1.1 If the Index is no longer published on the Adjustment Date, then
appropriate reference figures for the Base Index and the Adjustment Index shall
be derived from any successor or comparable index mutually agreed by the
parties to be authoritative. If the parties are unable to agree, then the
substituted Index shall be selected by then presiding judge of the Superior
Court for the county in which the Premises are located upon the application of
either party.
3.1.2 The parties acknowledge that the Adjustment Index may not be
available on the Adjustment Date. In such event, the minimum monthly rent in
effect immediately prior to the Adjustment Data shall continue in effect until
the appropriate index figure is available. At that time, an appropriate
adjustment shall be made (retroactive to the Adjustment Date) between the
Landlord and the Tenant with respect to the minimum monthly rent payable by the
Tenant. Any amounts then determined to be owing the Tenant to Landlord shall be
paid by Tenant within ten days following Landlords delivery to Tenant of
written notice of the appropriate adjustment. No delay by Landlord in the
delivery of any such notice shall constitute a waiver by Landlord of the right
to receive any rent owing.
3.2 Late Payment Charges. Should the Tenant fail to make any payment of
--------------------
rent within three days of the date when such payment first becomes due, or
should any check tendered to the Landlord by the Tenant be returned to the
Landlord by the Tenant's bank for insufficient funds, then the Tenant shall pay
to the Landlord, in addition to such payment, a late charge in the amount of
five percent (5%) of the rent or other payment due. The parties agree this late
payment charge is a reasonable estimate of the amount necessary to reimburse
damages and additional costs not contemplated by this Lease that the Landlord
will incur as a result of the delinquent payment or returned check, including
processing and accounting charges and late charges that may be imposed on the
Landlord by its lender. Upon notice of nonpayment given by the Landlord to the
Tenant, the entire amount then due, including such late charge, shall
thereafter bear interest at the highest rate permitted by law on the due date
for such payment, until paid In full. Acceptance of any payment by the Landlord
shall not constitute waiver of any late charges at interest which may be due.
3.3 Security Deposit. Landlord has on file a security deposit in the
----------------
amount of Five Thousand Three Hundred Forty-One and 6O/100($5,341.60) Dollars
from Tenant. Upon execution of this Lease, Tenant shall deposit with Landlord
an additional Six Hundred Eighty-Nine and 46/100 Dollars ($689.48) for a total
of Six Thousand Thirty-One and 06/100 ($8.03l.06) Dollars to be held as
security deposit (the "Security Deposit") for the performance by Tenant of The
provisions of this Lease. If Tenant is in default, Landlord may use the
Security Deposit, or any portion of it, to cure the default or to compensate
Landlord for all damage sustained by Landlord resulting from Tenant's default.
Tenant shall immediately on demand pay to Landlord any amounts required to
maintain the Security Deposit in the amount required to be deposited with
Landlord. Upon the adjustment of any minimum monthly rent, Tenant shall deposit
with Landlord such sum as necessary to maintain the Security Deposit in the
same proportion to the minimum monthly rent then owing as the original Security
Deposit bore to the initial minimum monthly rent. Landlord's obligations with
respect to the Security Deposit are those or a debtor and not a trustee.
Landlord may maintain the Security Deposit separate and apart from Landlord's
general funds or may commingle the Security Deposit with Landlord's general and
other funds. Landlord shall not be required to pay Tenant interest on the
Security Deposit. In the event of bankruptcy or other debtor-creditor
proceedings against Tenant, the Security Deposit shall be onset against any
unpaid rent. If Tenant is not in default at the termination of this Lease, and
after Tenant has vacated the Premises, then Landlord shall return the Security
Deposit, less any damages, to Tenant (or at Landlord's option, to the last
assignee, if any, of Tenant's interest hereunder).
4. PROPERTY TAXES AND ASSESSMENTS
------------------------------
4.1 Personal Progeny Taxes. The Tenant shall pay before delinquency all
-----------------------
taxes assessed against any personal property of the Tenant installed or located
in or upon the Premises and that are attributable to any period included within
the Lease Term, whether or not such taxes are actually payable during the Lease
Term.
4.2 Real Property Taxes. Landlord shall pay all real property taxes
-------------------
levied and assessed against the Property without reimbursement from Tenant.
5. UTILITIES
---------
The Landlord shall pay for normal water, refuse disposal, gas, and
electric service. The Tenant shall pay when due all utility charges when
separately billed to the Tenant because of separate installation or connection
of service by the Tenant (such as telephone, Internet, and CATV), Any other
utility for which no separate installation or connection can he made for the
Tenant, shall be paid as prorated in the Landlord's discretion among the
tenants of the Building based on either percentage or leased space or estimated
usage, as reasonably determined by the Landlord. The Tenant shall comply with
all applicable laws end regulations and rules regarding utilities. The
suspension or interruption in utility services to the Property for reasons
beyond the ability of the Landlord to control shall not constitute a default by
the Landlord or entitle the Tenant to any reduction or abatement of rent.
6. LANDLORD'S MANAGEMENT OF THE BUILDING
-------------------------------------
6.1 Management of The Building. The Landlord shall have the right, at its
--------------------------
sole cost and expense:
6.1.1 To close the common areas when and to the extent necessary for
maintenance or renovation purposes or to prevent a dedication of any part
thereof or the accrual of any rights therein in favor of the public or any
third person;
6.1.2 To make changes to the common areas, including, without limitation,
changes in the location or nature of entrances and exits;
6.1.3 To remodel or renovate the Property and, in connection therewith,
to install pipes, supports, utilities, conduits, ducts and similar fixtures
beneath or through the Premises, provided that such remodeling or renovation
does not substantially change the size, dimension, configuration or nature of
the Premises or unreasonably interfere with he Tenant's use thereof; and
6.1.4 To change the plan of the Building to the extent necessary for its
expansion, or the remodeling or renovation thereof, so long as the changes do
not substantially interfere with ingress to and egress from the Premises.
6.2 Other Tenants. The Landlord reserves the right to effect such other
-------------
tenancies in the Building as the Landlord, in the exercise of its sole business
judgment, determines will best promote the Landlord's interests. Tenant
acknowledges that Tenant does not rely on the fact, and the Landlord does not
represent, that any specific tenant, or number or type of tenants, shall occupy
any space in the Building.
6.3 Rules and Regulations. The Landlord shall have the right, from time
---------------------
to time, to promulgate, amend and enforce against all occupants of the
Building, reasonable rules and regulations for the safety, care and cleanliness
of the Building, or for the preservation of good order. All such rules and
regulations shall apply without discrimination to all occupants and tenants in
the Building. Tenant agrees to conform in and abide by such rules and
regulations. A violation of any of them shall constitute a default by the
Tenant under this Lease.
6.4 Tenant's Use of Premises. Tenant agrees that the Premises shall be
-------------------------
used and occupied only for office use and for no other purpose whatsoever
without the Landlord's prior written consent. No exclusive rights regarding use
are granted hereby. The Tenant shall neither engage in nor permit others to
engage in any activity or conduct that will cause the cancellation of or an
increase in the premium for any fire or other insurance maintained by the
Landlord.
6.5 Compliance with Law. The Tenant shall, at the Tenant's sole cost
-------------------
and expense, comply promptly and at all times with all laws, requirements,
ordinances, statutes, and regulations of all municipal, state or federal
authorities, or any board of fire insurance underwriters, or other similar
bodies, now in force, or which may hereafter be in force, pertaining to the
Building and the Premises and the occupancy thereof, including, without
limitation, any law that requires alteration, maintenance or improvement of the
Premises as the result of the Tenant's use thereof, provided that Tenant shall
only be required to make capital improvements to the property as a result or
Tenant's particular use of the property.
6.6 Waste, Nuisance. The Tenant shall not commit, or suffer to be
---------------
committed, any waste of the Premises, or any nuisance, annoyance or other
unreasonable annoyance which may disturb the quiet enjoyment of other portions
of the building or the common areas by the owners or occupants thereof.
7. CARE AND MAINTENANCE
--------------------
7.1 Landlord's Maintenance. Except as otherwise provided in this Lease.
----------------------
Landlord agrees to maintain in good condition and repair, at Landlord's cost
and expense, (1) the structural components of the Building, which structural
components are limited to the foundation and the exterior walls; (2) the common
areas and the exterior of the Building, including the roof; and (3) any
heating, ventilating and air conditioning systems furnished by Landlord to the
common areas or to the Building other than the Premises.
7.2 Tenant's Maintenance. Except as otherwise provided in this Lease,
--------------------
Tenant, at its own cost and expense, agrees:
7.2.1 To maintain throughout the Lease Term In good and sanitary order,
condition and repair, all portions of the Premises, including, without
limitation, (1) the Interior of the Premises, including flooring, exposed
plumbing and wiring, paint and finish; (2) any windows, lights or skylights:
(3) any storefront or portion of the Premises fronting on any common area or
the exterior of the Building; (4) any heating, ventilating and air conditioning
which serves only the Premises; and (5) any personal property of Tenant
situated in or upon the Premises;
7.2.2 To notify the Landlord promptly of any damage to the Premises
resulting from or attributable to the acts or omissions of the Tenant, its
invitees or its authorized representatives, or any other party and thereafter
to promptly repair all such damage; and
7.2.3 To keep the storefront, or the front of the Premises adjacent to
any property line or common area, any area adjacent thereto, and the refuse
area used by Tenant clean and neat at all times, and to remove immediately
therefrom any litter, debris or other unsightly or matter placed or deposited
thereon by the agents or customers of the Tenant.
8. IMPROVEMENT TO LEASED PREMISES
------------------------------
Any improvements to the Premises other than the improvements, if any,
specifically required to be constructed by Landlord pursuant to Exhibit B,
shall be constructed by the Tenant, or its designated agent, at the sole cost
and expense of the Tenant. The Tenant shall pay, prior to delinquency,
absolutely all costs for such improvements.
8.1 Conditions to Commencement of Construction. Before construction of
-------------------------------------------
the improvements is commenced on the Premises, and before any building
materials have been delivered thereto by or pursuant to the authority or
request of the Tenant, the Tenant shall comply with the following conditions,
or obtain the Landlord's prior written waiver thereof:
8.1.1 The Tenant shall prepare and deliver to the Landlord for approval
a complete set of all preliminary and any plans and specifications to be
utilized by the Tenant fur the purpose of constructing the new improvements.
tenant must obtain the written approval of Landlord to the final plans and
specifications prior to the commencement of any construction work. The Tenant
will reimburse the Landlord for the Landlord's architect's or contractors
charges to review these plans. The Landlord shall not unreasonably withhold
approval of the plans and specifications. No review, inspection or approval by
the Landlord, or its architect, shall relieve the Tenant of any liability or
create any obligation or responsibility for the Landlord.
8.1.2 The Tenant shall give the Landlord at least fifteen days' written
notice prior to (a) the commencement of construction of any tenant
improvements, or (b) the delivery of any building materials to the site. The
Landlord, or, upon request. The Tenant, as the agent of the Landlord, shall
post on and affix to the Premises a Notice of Non-Responsibility' in the name
and on behalf of the Landlord, as provided In Sections 3094 and 3129 of the
California Civil Code, and shall cause such Notice to be recorded promptly
following posting in the Office or the County Recorder of the county in which
the Premises are located.
8.1.3 The Tenant shall purchase and maintain in effect, until a Notice
of Completion is tiled and recorded, insurance coverage for all-risk 'Builders'
RIsk' or 'Course of Construction' insurance and 'Worker's Compensation'
insurance coveting all persons employed in connection with the construction of
the improvements and with respect to whom claims could be asserted against the
Landlord, the Building or the Premises. The Tenant shall furnish to the
Landlord oertit9cates of such Insurance, and evidence of the payment of
premiums therefor, and for any other insurance required by the provisions of
this Lease to be furnished by the Tenant.
8.1.4 The Tenant shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for the Tenant. Landlord
reserves the right to require Tenant to deliver to Landlord payment and
performance bonds in an amount equal to one hundred fifty percent (150%) of the
estimated cost of the work undertaken by Tenant. Tenant promptly shall cause
the elimination and removal of any mechanic's, material lien's or other liens
arising out of any improvements performed, materials furnished or obligations
Incurred by or on behalf of the Tenant in connection with any tenant
improvements in accordance with Section 9.2.
8.2 Construction of improvements. The Tenant warrants and covenants to
----------------------------
the Landlord that:
8.2.1 The improvements shall be 0% good quality and the development and
construction work shall be performed in a good and workmanlike manner,
consistent with and comparable to standards of practice in the area in which
the Building Is located for similar space of first-class construction;
8.2.2 The Tenant shell secure or cause to be secured all permits end
licenses necessary for the proper construction and completion of the
improvements, arid shall assume foil responsibility for the compliance of
Tenant and the improvements with all governmental laws, codes, ordinances,
regulations and standards applicable thereto; and
8.2.3 The Improvements shall be constructed in accordance with the plans
and specifications. All such improvements shall be completed by the Tenant and
a certificate of occupancy for time Premises shall be obtained by Tenant on or
before the Rent commencement Date. Tenant shall give notice to the Landlord of
the imminent completion of the improvements not less than ten days prior 10
their expected completion. Promptly upon completion of the improvements, Tenant
shall cause a 'Notice of Completion' as described In Section 3093 of the
California Civil Code, to be filed and recorded in the manner provided by such
Section.
8.3 Cooperation by the Landlord. The Landlord agrees, upon the request of
---------------------------
the Tenant, to join with the Tenant to execute and deliver such documents and
instruments as may be necessary or proper for applying for or obtaining any
permits, licenses, approvals or records as may be necessary or appropriate to
the construction of the improvements and operation of the Premises. The
Landlord snail incur no expense and no liability as a result of such
cooperation. The Landlord shall have the right to approve any conditions
Imposed by any governmental agency In connection with obtaining any such
permits, or other documents or approvals, which may impact the Premises
separate and apart from the Tenant's occupancy thereof, which approval shall
not be withheld unreasonably.
8.4 Ownership of Improvements. All of the Tenant's improvements constructed
-------------------------
hereunder, and all Subsequent additions and alterations thereto and
replacements thereof, shall be deemed affixed to, become and remain a part of
the Premises and shall not be removed, encumbered, transferred or materially
altered except as provided by this Lease, Upon the expiration of the Lease
Term, or upon the sooner termination of this Lease, all of the improvements
other than the Tenant's personal property, removable trade fixtures and
equipment, shall become the property of the Landlord without further obligation
to the Tenant.
9. ALTERATIONS; LIENS
------------------
9.1 Changes by the Tenant. Following the completion of the improvements
---------------------
contemplated by Section 8 and Exhibit B, if any, any alterations, additions,
improvements or changes, including any remodeling or redecorating, that the
Tenant may desire to make in, to or upon the Premises, shall be made at the
Tenant's sole cost and expense. Prior to undertaking any such alterations,
Tenant shall first submit the plans and specifications therefor to the Landlord
and obtain Inc consent of the Landlord thereto in writing, The parties' rights
and obligations with respect to such alterations, additions, improvements or
changes shall be Identical to those rights and remedies concerning the Tenant's
construction of improvements, as set forth in Section 8. Should the Landlord so
elect, any such alterations, additions, improvements or changes shall become a
part of the Premises at the expiration or sooner termination of the Lease, and
shell be surrendered to the Landlord upon the expiration of the Lease Term or
the sooner termination of this Lease.
-4-
9.2 Mechanics Liens. The Tenant agrees to keep the Premises, and any
---------------
Improvements thereon, at all times free of mechanic's liens and other liens for
labor, services, supplies, equipment or material purchased by or directly or
indirectly furnished to the Tenant. The Tenant, however, shall have the right
to contest the validity on amount of any such lien as flied upon posting a bond
in an amount equal to one hundred fifty percent (150%) of the dollar amount
sufficient to discharge the lien. Upon the final determination of any such
contest, Tenant shall immediately pay and discharge any judgment rendered,
together with all costs and charges Incidental thereto, and shall cause the
lien thereof to be released from the Premises, Should the Tenant fail, within
thirty days after notice of the filing of any such item, to discharge or cause
the release of such liens or charges cm to contest the same and post bond as
above provided for, then he Landlord, at the Landlord's option, may satisfy
such liens by payment thereof. in such event, the amount of such, payment,
together with interest thereon at the maximum rate permitted by law, from the
time the payment is so made until repayment thereof, shell be payable by the
Tenant at the time installment of rent shall be due and payable. Tenant shall
reimburse Landlord, within ten days following whiten demand, for all costs and
expenses, Including, without limitation, attorneys' fees, incurred by Landlord
in connection with addressing any mechanic's liens or similar claims related to
Tenants occupancy of the Premises.
10. TENANT'S PERSONAL PROPERTY
--------------------------
10.1 Installation of Property. The Landlord shall have no interest In any
------------------------
removable equipment, furniture or' trade fixtures owned by the Tenant or
Installed in or upon the Premises solely at the cost and expense of the Tenant.
Prior to creating or permitting the creation of any lien or security or
reversionary interest in any removable personal property to be placed in or
upon the Premises, the Tenant shall obtain the written agreement of the party
holding such lien or Interest to make such repairs required by the removal of
such property as may be necessary to restore the Premises to good condition and
repair, excepting only reasonable wear and tear, In the event such property Is
thereafter removed from the Premises by such party, or by any agent or
representative thereof or purchaser therefrom, without any cost or expense to
the Landlord,
10.2 Removal of Personal Property. The Tenant shall have the right to
----------------------------
remove at Its own cost and expense upon the expiration of this Lease all
removable equipment, furniture or trade fixtures owned by or Installed at the
expense oh the Tenant on the Premises during the Lease Term. All such personal
property shall be removed prior to the close of business an the last day of the
Lease Term. Tenant shall make such repairs required by the removal of such
property and any damage resulting therefrom as may be necessary to restore the
Premises to good condition and repair, excepting only reasonable wear end tear.
Any such property and so removed shall be deemed to have been abandoned or, at
the option of the Landlord, shall be removed arid placed In storage for the
account and at the cost and expense of the Tenant.
II. WAIVER AND INDEMNITY
--------------------
This Lease is made upon the express condition that the Landlord is to be
free from all liability and claims for damages by reason of any injury to any
person and damage to any property (including the Tenant's), resulting from any
cause whatsoever while in, upon, about, or in any way connected with the
Premises or the Building in which the Premises is located, during the Lease
Term. In no event shall the Landlord be liable for events that occur Xxx the
common areas, or for damages at injury caused by fire, utility outage or
Interruption, pipe or sprinkler leakage, or similar causes. The Tenant hereby
waives alt claims against the Landlord for, and agrees to defend with counsel
acceptable to Landlord, and to indemnify and hold the Landlord harmless from,
any loss or liability, and all costs or expenses, including attorneys' lees and
costs of defense, arising from or attributable to any such Injury on damage
from any cause at any time related in any way to the Premises during the term
hereof, other than those caused by the gross negligence or willful misconduct
of the Landlord, to the extent of such gross negligence or willful misconduct.
This Section it shall survive the termination or the Lease.
12. INSURANCE, PUBLIC LIABILITY AND PROPERTY DAMAGE
-----------------------------------------------
12.1 Insurance coverage. The Tenant agrees to maintain in force
------------------
throughout the term hereof, at the Tenant's sole cost and expense,
comprehensive general liability insurance with a broad form general liability
endorsement insuring against any liability to the public for any claim for
damages due to death, bodily injury or property damage related to the use of or
resulting from any accident occurring in or about the Premises, with single
coverage of not less than $1,000.000 per occurrence, and $2,000,000 aggregate,
12.1.1 Such policy shall insure the contingent liability of the Landlord
and the performance by the Tenant or its indemnity obligations under this
Lease. The Landlord shall be named as an additional Insured In such policy, and
such policy shall constitute a cross-liability endorsement.
12.1.2 The Tenant further agrees that the amount of the insurance
coverage shall be reviewed every three years, at least sixty days before the
expiration or a three-year period. If the parties are unable to agree upon the
amount of such coverage, the Tenant shall be required to maintain for the next
three-year period (or prior to the expiration of the Lease Term, whichever Is
less) the amount of coverage reasonably recommended In writing by an insurer
selected by the landlord.
12.2 Tenant's Property Insurance. The Tenant, at its own cost, shall
---------------------------
maintain on all of its personal property and removable fixtures and equipment
situated in, on or about the Premises, a policy of standard fire and extended
coverage insurance, with vandalism and malicious mischief endorsements (and
sprinkler leakage and earthquake sprinkler leakage endorsements, if the
building has sprinklers), to the extent of at least one hundred percent (100%)
of their actual replacement cost. The proceeds of any such policy that become
payable due to damage, loss or destruction of such property shall be used by
the Tenant for the repair or replacement thereof.
12.3 Miscellaneous Insurance Provisions,
----------------------------------
12.3.1 Each policy of Insurance required of the Tenant by this Lease
shall he a primary policy, Issued by an insurance company reasonably
satisfactory to the Landlord, and shall contain an endorsement requiring thirty
days' written notice (or 10 days In the case of non-payment) from the insurer
to the Landlord before cancellation or change in the nature, scope or amount of
coverage. Each policy of insurance maintained by Tenant shall be primary end
noncontributing with any policy maintained by Landlord. Each policy, or a
certificate of the policy, together with evidence of the payment of premiums,
shall be deposited with the Landlord at the commencement of the Initial Term of
this Lease, prior to any expiration of any such policy, and at the commencement
of any Renewal Tern.
12.3.2 The Landlord and the Tenant each release the other, and their
respective agents and representatives, from any claims for damage to any person
or to the Premises and to the fixtures and personal properly situated therein,
resulting from or attributable to any risk Insured under any insurance policies
carded by the pan-flea and in force at the time of the damage. Each party shall
cause any Insurer providing Insurance to it pursuant to this Lease to waive all
rights or recovery by way or subrogation against either party by virtue of the
payment of any loss under such insurance. Such waiver shall be effective as
long as such Insurance is required under the provisions of this Lease.
12.4 Casualty insurance; Damage or Defluction. The Landlord shall, at
all limes during the Lease Term, and at Landlord's cost and expense, keep the
Building and improvements in which the Premises ore situated insured against
loss or damage by fire end the perils covered by a combined single limit bodily
injury and broad form property damage insurance policy, extended coverage, or
an 'all risk' insurance, with inflation, vandalism arid malicious mischief
endorsements, zoning ordinance coverage, and any other endorsements selected by
the Landlord. The Landlord, at its discretion, may purchase (a) an earthquake
policy or insurance and zoning ordinance, in any amount sufficient to prevent
either the Landlord or the Tenant from becoming a co-insured under the
provisions of the policies, (b) a policy of rental value or rent continuation
insurance for a period of one year and (a) any ether Insurance that may be
required from time to time by Landlord's lender. In addition, the Landlord may
purchase any other insurance which it. in its sole discretion, deems necessary
or desirable. All such insurance shall be payable to the Landlord and the
bolder of any encumbrances on the Property as their Interests may appear.
12.5 Insurable Casually Loss.
-----------------------
12.5.1 Except as provided in Section 12.5.2, it the Premises, or the
Building in which the Premises are situated, is damaged or destroyed as the
result of arty risk required to be insured against by this Section 12, then the
Landlord shall forthwith restore the Premises or the Building to substantially
the same condition as existed Immediately prior to such damage or destruction.
Any insurance proceeds remaining after the completion of such work shall belong
to the Landlord.
12.5.2 If, at any time during the Lease Term, the Premises are totally
destroyed, or are sufficiently damaged to render them unusable without
substantial repair or reconstruction, due to a casualty required to be Insured
against as provided herein, or should then applicable laws or zoning ordinances
preclude the restoration or repair of the Premises, or should the casts of
restoration exceed five percent (5%) or the amount of the insurance proceeds,
then the Landlord shall have the option, exercisable by giving at least ten
days' prior written notice to the Tenant within one hundred twenty days after
the occurrence of any such casualty, to terminate this Lease.
12.6 Uninsured Casualty Loss.
-----------------------
12.6.1 If, during the Lease Tent the Premises or the Building are
damaged 01' partially destroyed from a risk not required to be insured against
by this Beefing 12, the Landlord shall restore the Premises to substantially
the same condition as existed immediately prior to such damage or destruction.
12.6.2 If the costs of repair or restoration necessitated by an
uninsured casualty loss exceed hive percent (5%) of the then replacement value
of the Premises, then the Landlord shall have the option, exercisable by giving
at least ten days' prior written notice to the Tenant within one hundred twenty
days after the occurrence of any such casualty, to terminate this Lease.
12.7 Termination: Abatement of Rent. This Lease shall not be
------------------------------
terminated by any damage to or destruction of the Premises or other
improvements of which the Premises era a part, unless notice of termination is
given by the Landlord to the Tenant as provided by this Section 12. The Tenant
hereby valves the provisions of Section 1932(2) and 1933(4) of the California
Civil Code with respect to any such damage or destruction.
12.7.1 Should the Premises be damaged or destroyed at any lime during
the Lease Term, there shall be an abatement or reduction or the minimum monthly
rent, between the date of destruction and the date of completion of
restoration, based on the extent to which the destruction Interferes with the
Tenant's use of the Premises.
12.8 Notice; Tenant's Right to Terminate. Notwithstanding any
-----------------------------------
provision of this Lease to the contrary, if Landlord determines in good faith
that the repair and restoration of the Premises to be made by the Landlord
pursuant to this Section 12 reasonably cannot be made within six months
following the occurrence of any casualty, Landlord shall give written notice of
such determination to Tenant within ninety days Following the occurrence of the
casualty. Tenant may terminate this Lease only by written notice given to
Landlord within thirty days after receipt by Tenant of Landlord's notice of
such determination.
13. CONDEMNATION
------------
13.1 Entire Premises. Should title or possession of the whole of the
Premises or the Building be taken by duly constituted authority in condemnation
proceedings under the exercise of the right or eminent domain, or should a
partial taking render the remaining portion or the Premises wholly unacceptable
for occupation, then this Lease shall terminate upon the vesting of title or
taking succession.
13.2 Partial Taking.
--------------
13.2.1 The Landlord shall have the right to terminate this Lease upon
such thirty days' notice if title to a portion of the Premises is taken in
connection with, or by deed In lieu at any condemnation proceedings under the
exercise or the right of eminent domain, and Is such as to prevent the Tenant
from using the Premises, or the remaining portion thereof, in substantially the
same manner as they were used prior to such taking. If the Landlord tines not
terminate this Lease as provided herein, then this Lease shall remain in full
force and effect in such event, the Landlord snail promptly make any necessary
repels or restoration at the cost and expense of the Landlord. The minimum
monthly rent from and after the date of the taking shall be reduced In the
proportion that the value of the sea of the portion of the Premises taken bears
lathe total value of the Premises Immediately prior to the date of such taking
or conveyance.
13.2.2 Each party waives the provisions of Code of Civil Procedure
Section 1265.130 allowing either party to petition the Superior Court to
terminate this Lease In the event of a partial taking or the Premises. Any
dispute between the parties concerning the extent to which a partial taking by
eminent domain Interferes with the use and occupancy of the Premises by the
Tenant shall be settled by arbitration in the city in which the Premises are
located, In accordance with the rules of the American Arbitration Association
then in effect.
13.3 Conveyance Under Threat of Condemnation. Any Sale or conveyance
by the Landlord to any person or entity having the power of eminent domain,
either under threat of condemnation or while condemnation proceedings are
pending, shall be deemed to be a taking by eminent domain under this Section
13.
13.4 Awards and Damages. All payments made on account of any taking by
------------------
eminent domain shall be made by the Landlord, except that the Tenant shall be
entitled to any payment or await made for or attributable to the reasonable
removal and relocation costs of any removable property that the Tenant has the
right to remove, or for loss and damage to any such property that the Tenant
elects or Is not required to remove.
14. AUCTIONING, MORTGAGING. SUBLETTING OR CHANGE IN OWNERSHIP
---------------------------------------------------------
14.1 Limitation. The Tenant shall not transfer, assign, sublet,
----------
mortgage, hypothecate, share rights in this Lease or the Tenant's interest in
the Premises. or permit any other person or entity to use the Premises
(collectively, a Transfer), without first procuring the written consent of the
Landlord. The Tenant shall pay to the Landlord an amount equal to ten percent
(10%) of the then-applicable minimum monthly rent with each such request for
consent to cover the Landlord's expenses in connection with processing each
such request, Any attempted Transfer without the Landlord's written consent
shall be void end shall constitute a material default under this Lease. The
Tenant also agrees to reimburse the Landlord for the Landlord's attorneys fees
(if any) incurred in connection with any requested Transfer by the Tenant or
the Tenant's rights hereunder, which reimbursement shall be in addition to, and
not a part of, the processing fee referred to above.
14.2 Deemed Transfer. If the Tenant is a nonpublicly traded
---------------
corporation, or an unincorporated association or partnership, any direct or
Indirect cumulative transfer, assignment or hypothecation of any stock or
interest in such corporation, association or partnership in the aggregate in
excess of thirty percent (30%) of the beneficial ownership hereof (or. in the
case of a partnership, or the beneficial ownership thereof or of the general
partner interest thereof) shall be deemed a Transfer within the meaning and
provisions or this Section 14 and subject to the provisions hereof.
14.3 Standard for Consent. If Tenant desires at any time to assign
--------------------
this Lease or to sublease the Premises. or any portion thereof, it shall first
notify Landlord of its desire to do so and shall submit in writing to Landlord:
(I) the name of the proposed subtenant or assignee and the proposed guarantors
of such subtenant's or assignee's obligations:
(ii) the nature of the proposed subtenant's or assignee's business to be
carded on in the Premises; (iii) the tents and provisions of the proposed
Transfer of Tenant's business and leasehold interest, including the price, rent
and terms of payment; and (v) any other information required by Landlord.
Landlord shall not unreasonably withhold its consent provided: (1) the use of
the Premises remains the same as provided In this Lease (unless Landlord, for
reasonable cause, decides that the use and/or the location or the use Is
Incompatible with Landlord's present or future plans for operation of the
Property): (2) the proposed subtenant or assignee and their respective
guarantors demonstrate that it is financially responsible by submission to
Landlord of such reasonable Information as Landlord may request concerning the
proposed subtenant or assignee, including, but not limited to, a balance sheet
of the proposed subtenant or assignee as of a date within ninety days of the
request for Landlord's consent, and statements of Income or profit and loss of
the proposed subtenant or assignee and guarantor for the two year period
preceding the request for Landlord's consent; (3) the proposed subtenant or
assignee demonstrates a record of successful experience in operating the same
type of business by submission to Landlord of such reasonable Information as
Landlord may request concerning the proposed subtenant or assignee, Including,
but not limited 10, a written statement In reasonable detail as to the business
experience or the proposed subtenant or assignee during the five years
preceding the request for Landlord's consent; and (4) the proposed subtenant or
assignee has a reputation for honesty and is of good moral character. No
subletting or assignment, even with the consent of Landlord, shall relieve
Tenant of Its obligation to pay the rent and to perform all of the other
obligations to be performed by Tenant hereunder.
14.4 Conditions. Each Transfer to which there has been consent shall
---------
be by an Instrument in writing, in a form satisfactory to the Landlord. Such
instrument shall be executed by the transferor, assignor, Sublessor,
hypothecation or mortgagor and the transferee, assignee, subleases. mortgagee
or other person or entity, as the case may be. Each transferee, assignee,
Sublessee, mortgagee or other person or entity shall agree in writing for the
benefit of the Landlord to assume, to be bound by, and to perform the terms,
covenants and conditions of this Lease to be performed by the Tenant, inducing
the payment of all amounts due, or to become due, under this Lease. In
addition, as conditions precedent to the Landlord's consent to any transfer of
this Lease. the Landlord may require any or all of the following:
14.4.1 The Tenant shall provide the Landlord with evidence reasonably
satisfactory 10 the Landlord that ma value of the Landlord's interest under
this Lease will not thereby be diminished or reduced, which evidence shall
include, but not need be limited to, evidence respecting the relevant business
expense and financial responsibility and status of the third party concerned;
14.4.2 If the Transfer provides for the receipt by. on behalf of, or
on account or the Tenant of any consideration or any kind whatsoever
(including, but not by way of imitation, a pren1iun~ rental for the sublease or
lump sum payment for an assignment) in excess of the rent due the Landlord
under this Lease, the Tenant shall pay seventy five percent (75%) of such
excess, less the Tenant's reasonable costs (not to exceed twenty-five percent
(25%) of such excess) to the Landlord, which payment(s) to the Landlord shad be
made upon receipt of any such payment(s) by the Tenant:
14.4.3 The Tenant shall not be then in default hereunder in any
respect;
14.4.4 The Tenant shall deliver to the Landlord one executed copy of
all written instruments evidencing or relating to the Tenants assignment,
Transfer or sharing of the Premises; and
14,4.5 The Tenant shall provide a written agreement from any third party
concerned that, in the event the Landlord gives such third party notice that
the Tenant is in default under this Lease, such third panty shall Thereinafter
make alt payments otherwise clue the Tenant directly to the Landlord. Any such
payments will be received by the Landlord without the imposition of any
liability on the Landlord, except to credit such payments against those due
under the Lease, any such third party shall agree to attom to the Landlord, or
its successors and assigns, should this Lease be terminated for any reason;
provided, however, that in no event shall the Landlord, or its successors or
assigns, be obligated to accept such attomment.
14.5 Limitation on Consent.
i4&1 The Tenant hereby agrees and acknowledges that the conditions permitted to
be imposed upon grant of its consent hereunder are reasonable and the
Landlord's Imposition of such conditions shall under no circumstances impair or
limit the Landlord's tights and remedies under California Civil Code Section
1051.4, or any Successor statute.
14.5.2 The Landlord's consent to the Tenant Transfer on any one
Occasion shall apply only to the specific transaction thereby authorized. Such
consent shall not be construed as a waiver of the duty of the Tenant, or any
transferee, to obtain the Landlord's consent to any other or subsequent
Transfer, or as modifying or limiting the Landlord's rights hereunder In any
way. Tine Landlord's acceptance of raid, or any other payment directly from any
third party, shall not be construed as a waiver of any or the Landlords rights
or as the Landlord's agreement to accept the attormient of any third party, in
the event of a termination of this Lease. In no event shall the Landlord's
enforcement of any provision of this Lease against any party be deemed a waiver
of the Landlord right to enforce any provision of this Lease against the Tenant
or any other person.
14.6 Transferability to Successors. If the Landlord gives consent to a
Transfer, such third panty in respect of such consent was given may in
turn apply to the Landlord for its consent to subsequent Transfers. In such
case, the provisions of this Section 14 shall apply as fully as possible to
such third party (including this Section 14.5 In the case of more remote
transfers). Any such transfers shall be subject to all the terms and Conditions
of this Lease, and each such successive transfer shall be made only upon like
conditions. Tenant, and each successor to the Tenant's interest In the
Premises, shall agree to remain fully responsible to Landlord for the
performance of all of the Tenant's obligations under this Lease,
15. DEFAULT BY TENANT: LANDLORD'S REMEDIES
In Event of Default. Each of the following shall constitute a materiel ~4efault
and breach by Tenant under
this Lease;
15.1.1 If Tenant Is at any time In default of its obligations to pay any
rent or other charges, and such default continues for more than five days after
the date upon which the obligation to pay Is due;
15.1.2 If Tenant is in default in the prompt and full performance of any
other of Its obligations under this Lease and such default continues more than
thirty days after Landlord's delivery of written notice specifying the
particulars or such default, unless such default cannot be cured within thirty
days, In which case Tenant shall be In default if Tenant (a) dues not commence
the cure of such default within such thirty-day period, and (b) actually cures
such default within sixty days of Landlord's delivery of written notice of such
default;
15.1.3 If Tenant vacates or abandons tire Premises or otherwise fails to
occupy and operate the Premises in accordance with the terms of this Lease;
15.1.4 If Tenant or any guarantor of this Lease makes a general assignment
or general arrangement for the benefit of creditors; or Xxx petition for
adjudication of bankruptcy am for reorganization or rearrangement is flied by
or against Tenant or any guarantor and is not dismissed within thirty days: or
if a trustee or receiver Is appointed to take possession of substantially all
of Tenant's assets located at the Premises or of Tenant's interest in this
Lease and possession Is not restored t Tenant within sixty days; or If
substantially all of Tenant's assets located at the Premises or Tenant's
interest in this Lease is subjected to attachment, execution or other judicial
seizure which is not discharged within sixty days. If a court of competent
jurisdiction determines that any of the acts described in this Section 15.1.4
is not a default under this Lease and a trustee is appointed to take possession
of Tenant's assets or it Tenant remains a debtor in possession and such trustee
or Tenant transfers Tenant's interest in this Lease, then Landlord shall
receive, as additional rent, the excess, If any, of the rent (or any other
consideration) paid in connection with such assignment or sublease over the
rent payable by Tenant hereunder; or
15.1.5 1 any guarantor of the Lease revokes or otherwise terminates, or
purports to revoke or otherwise terminate, any guaranty or all or any portion
of Tenant's obligations under this Lease.
15.1.5 If the Tenant is in default under any other Lease with the Landlord
or any affiliate of the Landlord,
15.2 Remedies Upon Breach at Lease, On the o~1nence of any breach of
this Lease by Tenant, Landlord may, at any time thereafter, with or without
notice or demand and without limiting Landlord In the exercise of any right or
remedy which Landlord may have;
15.2.1 Terminate Tenant's right to possession of the Premises and re-
enter the Premises by any lawful means. In such case, Tenant shall immediately
surrender possession of the Premises to Landlord. If Landlord re-enters the
Premises under the provisions of this Sections Landlord shall not be deemed to
have terminated this Lease, or the liability of Tenant to pay any rent or other
charges that are due or thereafter accruing, or Tenant's liability for damages
under any of the provisions hereof. In the event any such entry articling
possession of the Premises, Landlord shall have the right, but not the
obligation, to remove from the Premises any personal property located therein
and to place it in storage at a public warehouse at the expense and risk of
Tenant;
15.2.2 Maintain Tenant's right to possession of the Premises, in which
case this Lease shall continue in effect whether or not Tenant has abandoned
the premises. In such event, Landlord shall be entitled to enforce alt of
Landlord's rights and remedies under this Lease. including the right to recover
the rent as it becomes due, and Landlord shall have the right to occupy or
relet the whole or any pail of the Premises for the account of Tenant; or
15.2.3 Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decisions of the State of California.
15.3 Termination, Notwithstanding any other (any or provision hereof
to the contrary, this Lease shall terminate on the occurrence of any act Which
affirms Landlord's intention to terminate this Lease as provided in this
Section 15.3, including the filing of an unlawful detainer action against
Tenant. Acts of maintenance or preservation, efforts to relet the Premises, or
the appointment of a receiver at the initiative of Landlord shall not
constitute a termination of Tenant's right to possession unless written notice
of termination is Given. On any such termination, Landlord's damages for
default shall include at casts and fees, Including reasonable attorneys' fees,
incurred by Landlord in connection with filing, commencing, pursuing or
defending any action in any bankruptcy court or other court with respect to the
Lease, obtaining relief from any stay In bankruptcy restraining any action to
evict Tenant or pursuing any action with respect to Landlord's right to
possession of the Premises. All such damages suffered (apart from minimum
monthly rent and other rent payable hereunder) shall constitute pecuniary
damages which must be reimbursed to Landlord prior to assumption of the Lease
by Tenant or any successor to Tenant in any bankruptcy or other proceeding.
15.4 Cumulative Rights. The rights and remedies given to Landlord in
this Section shall be In addition and supplemental to all other rights or
remedies which Landlord may have under the laws in forte when the default
occurs. Landlord's exercise of any light or remedy shall not prevent it from
exercising any other right or remedy.
15.6 Landlord's Damages,
15.5.1 If Landlord elects to terminate this Lease and Tenant's rights
to possession or the Premises in accordance with the provisions of this Lease,
Landlord may recover from Tenant as damages all of the following:
A. The worth at the time of award of any unpaid rent and other charges
which has been earned at the time of such termination; plus
B. The worth at the time of award of the amount by which the unpaid
rent and other charges which would have been earned after termination until the
time of award exceeds the amount of such rental loss Tenant proves Landlord
could have reasonably avoided; plus
C. The at the lime of award of the amount by which the unpaid rent and all
other charges which Tenant would have paid for the balance of the term of the
Lease after the time of award exceeds the amount of such rental loss that
Tenant proves Landlord could have reasonably avoided; plus
8. Any other amount necessary to compensate Landlord for WI of 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. Including, without limitation, any costs or expenses incurred
by Landlord In (a) maintaining or preserving the Premises after such default,
(b) recovering possession of the Premises. Including reasonable attorneys' lees
therefor (c) expenses of renting the Premises to a new tenant, including
necessary renovations or alterations of the Premises, reasonable attorneys'
fees incurred, and leasing commission incurred; plus
9. Such other amounts in addition to such lieu foregoing as may be permitted
from time to time by the laws of the State of California.
15.5,2 Mused In Subsections A and 8. above, the 'worth at the time or
award is computed by allowing interest on unpaid amounts at the rate of ten
percent (10%) per annum. As used in Subsection C. above, (ho 'worth at the time
of award' is computed by discounting such amount at the discount rate of the
Federal Reserve sank located to the Building in effect at the time of award,
plus one percent (1%).
15.5.3 For purposes of this Section 11, all rent other than minimum monthly
rent shall. far purposes of calculating any amount due under the provisions of
Subsection C, above, be computed on the basis of the average monthly amount of
rent, other than minimum monthly rent, payable by Tenant during the immediately
preceding thirty-six' month period, except that if it becomes necessary to
compute such rental before such thirty-six-month period has expired, than such
rent shall be computed on the basis of the avenge monthly amount of rent
payable during such shorter period.
15.6 No Waiver. The waiver by Landlord of any breach by Tenant of any
provision, covenant or condition
contained in this Lease shall not be deemed to be a waiver of such provision,
covenant or condition, of any subsequent breach thereof, or of any other
provision, covenant or condition of this Lease.
15.6.1 The subsequent acceptance of rent hereunder by Landlord snail not be
deemed to be a waiver of any preceding breach by Tenant of any provision,
covenant or condition of this Lease or of any tight of Landlord to a forfeiture
of the Lease by reason of such breach, regardless of Landlords knowledge of
such preceding breach at the time of acceptance of such rent. No provision,
covenant or condition of this Lease shall be deemed to have been waived by
Landlord unless such waiver is In writing and signed by Landlord.
15.6.2 Landlord Is entitled to, receive end cash or deposit any payment
made by Tenant for any reason purpose or in any amount whatsoever, arid apply
the same at Landlord's Option to any obligation of Tenant and the same shall
not constitute payment of any amount owed, except that to which Landlord has
applied the same. No endorsement or statement on any check or letter of Tenant
shall be deemed an accord and satisfaction or otherwise recognized for any
purpose whatsoever. The acceptance of any such check or payment shall be
without prejudice to Landlord's right to leaner any and all amounts owed by
Tenant hereunder and Landlord's right to pursue a~ other available remedy.
15.7 Power of Receiver. Upon a default by Tenant, Landlord shall have
the sight to obtain the appointment of a receiver to the possession of the
Premises and/or to collect the rents or profits derived therefrom. Tenant
irrevocably agrees that any such receiver may, if necessary or convenient in
order to collect such rents and profits, conduct the business then being
carried on by Tenant on the Premises and that the receiver may take possession
of any personal property belonging to Tenant and used in the conduct of such
business, and may use the same in conducting such business on the Premises
without compensation to Tenant for such use, neither the application for nor
the appointment of such a receive, shall be construed as an election on
Landlord's part to terminate this Lease unless a written notice of such
intention is given by Landlord.
15.8 Landlords Right to Cure Defaults. The Landlord, at anytime after the
Tenant commits a default in the performance of any or the Tenant's obligations
under this Lease, shall be entitled (but is not obligated) to cure such
default, or to cause such default to be cured, at the sole cost and expense of
the Tenant. If. by reason of any default by the Tenant, the Landlord incurs any
expense or pays any sum, or performs any Act requiring the Landlord to incur
any expense or to pay any sum, including reasonable fees and expenses paid or
incurred by the Landlord in order to prepare and post or Sliver any notice
permitted or required by the provisions of this Lease, or otherwise permitted
or contemplated by law, then the amount so paid or Incurred by the Landlord
shall be immediately due end payable to the Landlord by the Tenant as
additional rent, The Tenant hereby authorizes the Landlord to deduct such sums
from any Security Deposit held by the Landlord, if there is no Security
deposit, such sums shall be paid by the Tenant Immediately upon demand by the
Landlord, and shall beer interest at the rate of ten percent (10%) per annum,
or such greater sum as may be permitted by law from the xxxx of such demand
until paid in full.
16. DEFAULTS BY LANDLORD
If Landlord fails to perform any covenant, condition or agreement contained In
this Lease within thirty days after receipt of written notice from Tenant
specifying such failure (or if such failure cannot reasonably be cured within
thirty days, if Landlord does not commence to cure the failure within that
thirty-day period), then such failure shall constitute a default by Landlord
hereunder. In such cats, Landlord shall be liable to Tenant for any damages
sustained by Tenant as a result of Landlord's default.
18.1 Liability Limitation. Tenant and Landlord expressly agree that if
Tenant obtains a money judgment against Landlord resulting from any default or
other claim arising under this Lease, that judgment shell be satisfied only the
rents, issues, profits, and other income, including insurance proceeds, if any,
actually received on account of Landlord's right, Utle and Interest in the
Property. No other real, personal or mixed property of Landlord (or of any of
the partners which comprise Landlord, or of partners or principals of such
partners comprising Landlord, if any, or of the officers, shareholders or
directors, if any, of any such entity) wherever situated, shall be subject to
levy. attachment or execution, or otherwise used to satisfy any such judgment.
Tenant hereby waives any right to satisfy a Judgment against Landlord except
from the rents, Issues, profits and other Income, including insurance proceeds,
if any, actually received on account of Landlord's right, title and Interest In
the Property.
16.2 Notice to Landlord of default. Landlord falls to cure the default as
provided below, then subject to the provisions of this Lease, Tenant shall have
the sight to cure that default at the landlord's expense. In such case,
Landlord shall pay the reasonable cost of such cure promptly following receipt
of a xxxx from Tenant itemizing the cost of such cure. Tenant shall not have
the right to terminate this Lease or to withhold, reduce or offset any cost of
such cure against any payments of runt or other charges due and payable to
Landlord under this Lease, except as otherwise specifically provided in this
Lease.
16.3 Waiver of Code Previsions, Tenant hereby agrees that Civil Code
Sections 1932(2), 1935(4), 1941 and
1942 shall not be Applicable to this Lease and Tenant hereby waives any right
It may have under any of said Code Sections,
17. ENVIRONMENTAL MATTERS
The Landlord does not have actual knowledge of the presence of any
Hazardous Substances, as defined below, on the Property not in conformance with
applicable law- The Tenant has had sufficient opportunity to satisfy itself of
the condition or the Premises prior to the execution hereof,
17.1 Compliance. The Tenant shall at all times and in all respects
comply with alt federal, state and local laws, ordinances and regulations
(collectively, 'Hazardous Substances Laws relating to Industrial hygiene,
environmental protection or he use, analysis, generation, manufacture, storage,
disposal or transportation of any oil, flammables, explosives, asbestos,
radioactive materials or wastes or other hazardous, toxic, contaminating or
polluting materials, substances or wastes, including, without limitation, any
hazardous substances which are the subject of any laws, ordinances or
regulations intend to protect the environment or health, safety and welfare
(collectively, the "Hazardous Substances",
17.2 Licenses and Permits. The Tenant shall, at its own expense,
protect, maintain in effect, and comply with all conditions of any and all
permits, licenses and other governmental and regulatory approval required for
the Tenants use of the Premises, including, without limitation, discharge of
appropriately treated materials or wastes which may be discharged into or
through any sanitary sewer serving the Premises. 'TFIO Tenant shall, in all
respects, deal with the Hazardous Substances in conformity with the Hazardous
Substances Laws.
11.3 Indemnification, The Tenant shall Indemnify, defend, by counsel
reasonably acceptable to the Landlord, protect, and hold the Landlord and each
of the Landlord's partners, employees, agents, attorney's, successors and
assigns, free and harmless from and against any and all claims, liabilities,
penalties, forfeitures, losses or expenses (including attorneys' fees), damages
or death of or Injury to any person or damage to any property whatsoever,
arising from or caused in whole or in part, directly or Indirectly, by the
Tenant's failure to comply with any Hazardous Substances Law, or other
environmental, health or safety law, regulation or ordinance. The Tenant's
Obligations hereunder shall include, without limitation, whether foreseeable
or unforeseeable, all costs of any kind whatsoever related in any way In the
repair, clean-up or remedtadcrl of the Premises, and the preparation and
implementation of any closure, remedial action or other required plans In
connection therewith. The Tenant's obligations hereunder shall survive the
expiration at early termination of the Lease Term but shall in no event apply
to any events prior to Tenants tenancy. For purposes of this indemnity
provision, any acts or omission of the Tenant, or by employees, agents,
assignees, contractors or subcontractors of the Tenant, or others acting for or
on behalf of the Tenant (whether or not they are negligent, intentional.
willful or unlawful) shall be strictly attributable to the Tenant.
18. SUBORDINATION OP LEASE
18.1 Sttb~i'dirwfion Agreement. The Tenant agrees to execute,
acknowledge and deliver to the Landlord within ten days following Landlord's
written request, such documents and instruments that may be necessary to
subordinate this Lease to (1) any mortgages or trust deeds that now exist or
may hereafter be placed upon the Premises by the Landlord, (2) to any and all
advances made or to be made thereunder, (3) to the Interest on all obligations
secured thereby, (4) to all renewals, modifications, consolidations,
replacements and wdensions thereof, and (5) any easements, covenants,
conditions or restrictions executed by Landlord provided that they do not
materially Interfere with Tenants use, enjoyment and occupancy of the premises.
In each case the mortgagee or beneficiary named in any Suoli mortgage or trust
deed shall agree in writing that, as long as the Tenant performs its
obligations under this Lease, no foreclosure or deed in the of foreclosure. or
sale under the encumbrance or other procedures to enforce the rights incident
thereto, shall affect the Tenant's rights under this Lease.
15.2 Attornrment The Tenant shall attorn to any purchaser at any
foreclosure sale or to any grantee or transferee designated In any deed given
in lieu of foreclosure.
18,3 gstennep certificate. Wrthin ten days alter receipt of a written
request therefor, the Tenant shall deliver
recordable form a wrilten statement certIfying (if such is the case) that
this Lease is in full force and effect and that there are no deFenses or
offsets thereto, or slatIng those claimed to exIst and such other infomiatlon
asthe Landlord may reasonably request be included In such statement. The
failure of the Tenant to deliver such certtticate within such tIme period shall
constitute conclusive affirmation by Tenant forthe benefit of the Landlord, its
lender, mortgagee or assignee, and their respective successors In Interest,
that this Lease is In full force and effect and has not been modified except as
may be represented by the Landlord in its written request for such statement.
19. LANDLORD'S FNTRYON PREMISES
19.1 Right of En-v. The Landlord and its authorized represantal Wet
shall have the right without liability and without abatement of tent to enter
the Premises at all reasonable times for, without limitation, any of the
following
purposes:
19.t1 To detem~ne whether tile Premises and/cr the Building are ki good
conditIon, and whether the
Teneni is complying with its obligaticns under this Lease;
19,1.2 To do any necessary maintenance, repairs, restoration or remodeling
to the Premises anwor the
Building that the Landlord has the right or obligation to perfon~
19.1.3 To serve, post, or keep posted any notices required or allowed
under the provisions of this Lease, including 'for rent' or br iease notices
during the last six months of this Lease, or during any period while the Tenant
Is in default, and any notices provided by law forthe protection of the
Landlord's interest in the Premises;
19,1,4 To shore the foundatIons, footings and walls of the BuildIng, and
to erect scaffolding and
protcctr~e barricades around and about the Building, but not so as to prevent
entry to the Premises, and to do any ether eel or thing necessary for the
safety or preservation of the Premises or the BuildIng; and
19.1.5 To show the Premises and/or the BuIlding to prospective
purchasers, lenders, tenants, brokers arrd others for business purposes, and
for such other purposes as the Landlord may deem appropriate.
1 9.2 Exercise of Rioht Tile Landlord shall exercise Its rights of
entry In a manner that will not interfere unreasonably with the Tenant's use
and occupancy of the Premises; provided that the Landlord's entry and
activities do not result from the Tenant's default The Landlord shall not be
liable in any other manner for any Inconvenience, disturbance, loss of
business, nuisance, or other damage arising out of the Landlord's entry on the
Premises as provIded herein, except damage resulting from the acts or omissions
of Ihe Landlord or Its authorized representatives.
20. SALE OR TRANSFER OF PREMISES
If the Landlord sells or transfers at or any portion of the Premises, the
Building, or the improvements and land of which the Premises and the Building
are a part, then the Landlord shalt be released from any liability thereafter
accruing tinder this Lease upon (a) the consummation and (b) the Landlord
accountIng to any such Iranereree for any Security Deposit and prepald rent of
the Tenant hereunder.
21. SURRENDER ON 1ERMINA11ON~ HOLDING XxXX
21.1 Surrender. On the last day of the Lease Term, or upon
socnertenninatlon of this Lease, the Tenant shall surrender to the Landlord the
Premises and all Tenant's improvements and adoration, xxxxx xxxx, maIntained
and repaired in accordance with the terms hereof. and otherwIse in the same
condition ~ when received, except for reasonable wear and tear. Any damage to
or deterioration of the Pfefnlsea will not be deemed reasonable wear and xxxx
(the same could have been prevented by good maintenance practices of Tenant.
The Tenant xxxxx also remove nIl of Its personal properly on or prior to such
last-day. The Tenant shall promptly repair any physIcal damage to the Premises
arising as a result of the Tenant's vacation of the Premises. The Landlord may
xxxx to retain-or dispose of In any manner any improvements or alterations or
the Tenant's personal property that the Tenant does not remove from the
PromIses on expiration or termination of the Lease Term as allowed or required
bythls Lease by giving at least ten days' written notice to the Tenant, litle
to any such improvements or alterations or the Tenant's personal property that
the Landlord elects to retain or dispose of on expiration of the ten~day period
shall vest in the Landlord, The Tenant waives all claims against the Landlord
forany damage to the Tenant resulting from the Landlord's retention or
disposition of any such alterations or the Teiant's personal property.
21.2 HoldIng over. if the Tenant, with the Landlord's consent, remains
In possession of the Premises altar expiration or termination of the Lease
Term, or after the date in any notice given by the Landlord to the Tenant
terminating this Lease, such possession by the Tenant shall be deemed to be a
month-tc.mcnth tenancy temitnable on thirty days' notice given at any belle by
either party. Tile minimum monthly rent for any such tenancy snail be equal to
one hundred fifty percent (150%) he aggregate or the monthly minimum rent in
eftect on the date of such expiration. Such minimum rent shall be Sut~ect to
adjustment as provided hereunder. Such tenancy shall otherwise be subject to
all of the terms and conditIons of this Lease, except those pertaining to Lease
Term and Option to extend, If any. Any holding over without the Landlord's
consent shall not give the Tenant tenure hereunder.
22. GENERAL PROVISIONS
224 Notices. Any and all notices by the Landlord to the Tenant, or by the
Tenant to the Landlord, ehall be in writing and delivered personally or by U.S.
certified mail, return receipt requested, addressed to the patties at the
addresses specified on the signature page hereof. Either party may. at any
time, change the address by written notice to the other party in accordance
with this SectIon. If notice is mailed, it shall be deemed received on the
third business day following the date on which it is mailed.
22.2 BindIng Effect Complete Agreement. The Landlord and the Tenant
agree that each of the provisions, cond'rtions and obligations of this Lease
shall extend to and bind, or Inure to the benefIt of (as the case may require),
the respective parties hereto, and etch and every one of their respective
heirs, executors, administrators, representatives, successors and assigns. This
Lease, and the exhibits hereto, constItute the entIre agreement between the
parties and may not be altered, amended, modified or extended, except by an
instnrnlent in writing signed by all parties. The parties respectively
acknowledge arid agree that neither has made any representations or wnn'xxxxxx
to the other not expressly set forth herein. This Lease supersedes any
proposals regarding the leasing of the Premises, whether written or oral. Any
such proposals will be terminated, anti of no force or effect, effective upon
the execution of this Lease,
22.3 Attorneys' Fees, If any legal action is instituted by either
otthe parties to enforce or construe any of the previsions, conditions or
covenants of this Lease, or the validity thereof, the party prevailing In any
such action shall be entitled to recover from the other party all court costs
end reasonable attomeys' fees to be set by the court, and the costs end fees
Incurred In enforcing any judgment entered therein. Attomeys' fees and costs,
whenever mentioned in this Lease, shall include those Incurred with respect to
arbitration proceedIngs, If any.
22.4 Partial Invalidity. If any term or provision, In whole or In pad,
of this Lease or the application thereof to any person or circumstance shall,
to any extent, be Invalid, unenforceebte, or Inappicable in the stated
circumstances or fcr stated purposes, in any jurisdIction, then the remainder
of this Lease, or the application of such tenn or provision to persons or
circumstances other than those to which it is held invalid, unenforceable or
inapplicable, shall not be affected thereby. Each term and provision of this
Lease shall be valid end be enforceable to the fulest extent permitted by law.
22.5 Recerdation: Qultclaim. Neither party shall record this Lease.
Upon the request of Landlord, in Landlord's sole discretion, Tenant shafl
execute and acknowledge in recordable form a~Klenlorandum of Lease In content
agreeable to Landlord. The reasonable costs and expenses, includIng attorneys'
fees, incurred by Landlord In preparing, filing and recording 11w Memorandum of
Lease shall be bome by Landlord, concurrently with the execution of any
Memorandum of Lease, the Tenant shall execute and deliver to the Landlord for
filing and recording, upon the expiratIon or termination of this Lease, a
quitclalm deed designating the Landlord, its successors and assIgns, as the
transferee of the Premises.
22.6 Broker. The Tenant represents that It has not incurred an
obligation to pay any real estate broKer~s, agent's, or leasing commisdon, or
other sums In connection with the relationship conternpisted hereby, crlf the
Tenant nas incurred any such obtigatlon, the payment of such obligation will be
the Tenant's responsibIlity. The Tenant hereby indemnities the Landlord from
and against any such liabitity. Landlord shall pay any oemmission owing to
Landlord's broker(s). if any.
22.1 consent of Party. If this Lease requires the consent of a party
hereto, such consent shall not be unreasonably withheld or delayed.
22.3 Corporate Authority. If the Tenant is a corporatIon, each
indMdual executing this Lease on beholr of such corporation represents and
warrants that he or she Is duly authorized to execute and deliver this Lease on
behalf of such corporation, In accordance with a duly adopted resolution or the
Board of Directors, xxxx accordance with the Bylaws of such corporation; that
this Lease Is binding upon such corporation In accordance with its terms; that
the Tenant is a duly qualIfied corporation and all steps have been taken prior
to the date hereof to quallry the Tenant to do busIness in the State in which
the Premises are siluated. if the Tenant isa foreign corporation; that all
franchise and corporate taxes have been paid to date; and that all future
forms, reports, fees and other documents necessary to comply with applicatle
laws will be flied when due. -
22.9 IUDQ Time Is of the essence cr this Lease and each and evel'~f term,
covenant and conditIon hereof.
22.10 ~isna. The Tenant shell not place, or cause jo be placed or
maintsined, on any exterior door. wall or window of tIle PreMses or in a
location within the PremIses readily visible from the exterior of the PremIses
any sign, awning or canopy, Cr other advertising or display matter, and will
not place or maIntain any decoration, lettering or advertising matter on the
glass of any window or door of the Preuilses, without first obtaining the
Landlord's prior written approval and consent In each instance. The Tenant
further agrees to maintain at all limes any such sign, awning, canopy,
decoration, lettering, advertising matter or otherttling as may be approved, in
good condition, and in full compliance with all applicable governmental
regulations and the sign Criteria forthe Building established frem time to
time. Tenant shall be solely responsible for complying with any applicable
governmental regulations and obtaining all requisite governmental consents.
Landlord reserves tne right to place signage (or the BuIlding and otherteflants
In the Building on the exterior of the Building.
22.11 Financial Statements. Tenant snail refer to Landlord to annual
financial statements of Tenantwlthln nInety days afterthe end of Tenant's
fiscal year,which shall be Certified by Tenant astrue and con'eot. Such
financial statements shall be based span generally accepted accountIng
principles applied on a consistent basis. They shaH clearly snow sufficient
infcrmatlcn to accurately depict the financial Condition or Tenant as of the
date thereof. If Tenant is a partnership orjoinl venture, such finandel
statements shall, upon Landlords request, be accompanied by similar finanoal
statements of each general partner Or joint venturer of Tenant. Such similar
statements shall be certified to be true and correct by tile subject thereof
Within thIs days following written request by Landlord delivered after (a)
request by Landlord's lender or any prospective purchaser of the Building, or
Ib) any default by Tenant in the payment of any sums awing under this Lease,
whether or not any time period allowed for the cure of such default has
expired, Tenant shall provide Landlord with copies of Tenant's financial
statement forthe end of the 'float recent quarter of Tenant's fiscal year, and
Tenant's financial stetement (including year-to-date informatIon) forthe end of
the month preceding such dnfauh. In each case, such finandal statement shalt
meet all of the preceding requIrements for annual financial statements. Tenants
railure to deliver the financial statements contemplated hereby within the time
specified, or Landlcrd's dIscovery ci any misstatemenl. omisslcn or
misrepresentation in any financial statement supplied, shall constitute a
material default by Tenant Lirider this Lease.
22.12 Contideptiallty of Lease. Tenant acknowledges and agrees that
the terms of this Lease are confidential and constitute proprietary
Infotmatlori of Landlord. Disclosure of the terms hereof could adversely aired
the abfllty of the Landlord to negotiate other leases with respect to the
Building and impair the Landlord's relationship with other tenants or the
Building. The Tenant agrees that it, its partners, officers, directors,
employees and attorneys, shall not disclose Ihe lenns and conditions of this
Lease to any other person without the prior wyitten consent of the Landlord. A
breach of this covenant by Tenant shell constItute a material default under
this Lease that, by its nature, is not susceptible to curs by the Tenant, It is
understood and agreed that damages, alone, would be an Inadequate remedy for
the breach of this provision by Tenant, Landlord therefore shall have the right
to specific performance of this provisIon and to injunctIve relIef to prevent
its breach or continued breach, as well as all other remedIes avaliable at law
or In equity.
22.13 SecurIty Measures. Tenant hereby acknowledges that Landlord
shall have no obligation whatsoever to provide guard service or other security
measures for the benefit of the Premises or the Building, Tenant assumes all
responsibility for Ihe protection Of Tenant Arid its agants, employees and
irivitees, and the property ol Tenant, and its agents, employees and invitess,
from acts of third panties. Nothing herein contained shall prevent Landlord, at
Landlord's sale option, from providing security protection for the Building or
any part thereof, In which event the cost thereot shall be tncluded as en
Operating Cost.
22.14 Constucbon ef Lease. 'the language In all pails ofthis Lease
shall In all cases be construed as a whole according to its fair meaning and
not strictly for nor against the Landlord or the Tenant.
22.1 S Negation of Joint Venture. Nothing in this Lease shall cause the
Landlord tn any way to he construed as an employer, employee. Ictudaty, a
partner, a joint venturer, or otherwise associated In any way with the Tenant
In the operation of the Premises. Morning contained herein shall subject the
Landlord to any obligation, loss, charge or expense connected with or arising
from the Tenant's operatIon in Of use of the Premises.
22.18 Personal Guaranty, If Tenant Is not a sole proprietorship or a
publidy traded corporation, the shareholders or partners of the Tenant shall
execute the form of personal Guaranty attached hereto as Exhibit C.
Linuidated Damnaaes.
BY INITIALLING IN THE SPACES PROVIDED BELOW, THE PARTIES AGREE THAT A LATE
OPENING OF
THE PREMISES, LATE OR INSUFFICIENT PAYMENT OF RENT OR OTHER CHARGES PAYABLE
HEIEUNDER, OR
TENANTS HOLDING OVER. WILL CAUSE LANDLORD TO INCUR COSTS NOT COt.ITEMpLA.XXX BY
THIS LEASE,
THE EXACT AMOUNT OF SUCH COSTS BEING EXTREMELY DIFFICULT AND IMPRACTICABLE TO
ASCERTAIN.
SUCH COSTS INCLUDE ADMINISTRATIVE EXPENSES AND LOST GOOD WILL TO THE BUILDING.
THEREFORE,
THIS LEASE PROVIDES FOR CERTAIN LATE CHARGES AND OTHER LIQUIDATED DAMAGES. SUCH
LATE
CHARGES AND DAMAGES REPRESENT FAIR AND REASONABLE ESTIMATES OF THE COSTS AND/OR
DAMAGES THAT LANDLORD WILL INCUR UNDER THE CIRCUMSTANCES. ACCEPTANCE OF ANY
SUCH LATE
CHARGE OR DAMAGES SHALL CONSTITUTE NEIThER A WAIVER OF TENANT'S DEFAULT NOR AN
ELECTION
OF REMEDY,
(2/il ___
&ORD TENANT
(Signatures appear on the following page.)
IN WITNESS WHEREOF, the parties hereto have executed this Lease an this _____
day of __th. at the location of the Premises.
'LANDLORD':
XXXXXXXXX ASSOCIATES, LLC,
Name:
Title:
Ad s:
Xxxxxxxxx Associates, LW
a/a Bermant Development Company
000 Xxxxxxxxx Xxxxxx Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Director of Asset Management
"TENANT":
XXXX.XXX, INC.
a Delaware Corporation
By ____________________
Name:
Title:
Address:
EXHIBIT A
----------
PLOT PLAN OP PREMISES
----------------------
EXHIBIT B
---------
PREPARATION OF TENANT'S SPACE
------------------------------
1. GENERAL
1.1 Landlord's Work. The work described in Section 2 will be performed
by the Landlord (the 'Landlord's Work'). The Landlord will coordinate its work
with the Tenant's Work insofar as the schedule and prudent construction
practice allow. The Landlord's contractor shall make the Premises available to
contractors retained by the Tenant in connection with the Tenant's Work
provided that such contractors shall be required In coordinate such access and
work with the Landlord's contractor,
1.2 Tenant's Work. The work described in Sections will be performed
and completed by the Tenant in accordance with the Tenant's plans and
specifications (the 'Tenant's Work'). Tenant acknowledges end agrees that
Landlord will be performing the Landlord's Work in the Premises at the same
time as the Tenant Is performing the Tenant's Work. Tenant agrees to cause its
contractors (the 'Contractors') to cooperate with Landlord and Landlord's
contractors so as not to interfere with the Landlord's Work.
l.3 Tenant Improvement Allowance. Landlord shell bear the cost of all
of the XxxxX~d's Work.
Except as provided herein, Tenant shall bear the cost of all of the Tenant's
Work. Landlord shall remburso Tenant for a portion of the costs of the Tenant's
Work in an amount equal to _________NONE__________ Dollars ($_N/A ) (the
'Tenant Improvement Allowance'). The Tenant Improvement Allowance shall be paid
to Tenant upon the satisfaction of the following conditions:
1.3.1 A Certificate of Occupancy shall have been Issued by Santa
Xxxxxxx county, and Tenant shall be operating Its business open to the public
in the Premises:
1.3.2 Tenant shell have supplied Landlord with documentation shown
that Tenant's actual expenses in performing the Tenant's Wont exceed tine
amount of the Tenant Improvement Allowance sought to be released;
1.3.3 Tenant shall provide Landlord with all appropriate lien releases
by Its Contractors, subcontractors arid vendors; and
1.3.4 All of the improvements to be constructed by Tenant in the
Premises shall be completed in strict compliance with the approved plans and
specifications for the Tenant's Work,
Landlord reserves the right to offset against the Tenant Improvement Allowance
any sums Landlord has previously advanced to Tenant on the behalf of Tenant or
costs Landlord has incurred on behalf of Tenant in connection with the Tenant's
Work.
2. LANDLORD'S WORK
2.1 Landlord's Work in the Premises. The Landlord shall perform the
following work in the Premises:
Landlord will relocate and install in Tenant's suite, a portable window-mounted
air Conditioner. The air conditioner shall be either one that is now property
of the premises and en site in another vacant office, or if an existing unit Is
not available, a new unit,
2.2 Condition. By its execution hereof, Tenant acknowledges and agrees
that Tenant has inspected the Premises and accepts them in the condition in
which they exist, subject lathe performance of the Landlord's work. Tenant
understands that the Premises contain columns, sprinklers, risers, drains,
braces, shafts, ducts end pipes serving portions of the Building other than the
Premises. Landlord reserves the right to use all such shafts, ducts, drains,
pipes and etharfaduities In connection with other areas of the Rulldin8.
Landlord, Independent contractors, or authorized utility companies, as the case
may be, shall have the right to run, install, maintain, replace and repair
utility lines, pipes, wiring, conduits or duct work, where necessary or
desirable, through the ceiling space, shafts, ducts and other parts of the
Premises, and to repair, alter, replace or remove the same, all Iii a manner
which does not interfere unnecessarily with the Tenant's use thereof.
2.3 Limitation. Other than as specifically set forth In this Section
2, Landlord shall not be required to perform any wont whatsoever in connection
with the preparation of the Premises fur Tenant's occupancy. All work required
in connection with the preparation of the Premises for Tenant's occupancy other
than as expressly set forth in Section 2 shall be performed by Tenant as part
of tire Tenant's Work.
3. TENANT'S
All construction and installation of Tenant's leasehold Improvements other
than as specified in Section 2, shall be provided at Tenant's expense (subject
to the Tenant Improvement Allowance payable by Landlord in accordance with
Section 1.3),
3.1 Permits and Plans. All building and other permits required In
connection with the construction and completion of the Tenant's Work the
Permits') shall be obtained by Tenant. The Permits shall be posted in a
conspicuos location on the Premises, No part of the Tenants Work shall commence
until the Permits are received. One complete set of the plans and
specifications for the Tenant's Work, as approved by Landlord, shall be kept in
the Premises throughout the construction process. All construction shall be in
strict compliance with the approved Tenant's plans and specifications.
require the Contractors to procure labor and material payment performance bonds
for the benefit of Tenant and Landlord. Tenants Contractors shell notify
Landlord at least five business days prior to the start of construction of
Tenants Work.
3.3 Utilities. Tenant shall directly arrange for and procure at
Tenant's expanse all utility connections required for Tenant's operation in the
Premises. Tenant shall also directly arrange for and procure temporary
utilities, including transformers and electrical distribution during the
construction or Tenant's Improvements, and pay all charges incurred in
connection therewith,
34 compliance. All of the Tenants Work shall comply with all applicable
provisions of the Uniform, Building Code adopted by the cognizant governmental
agencies, all conditions of approval placed upon the operation of Tenant's
business in the Premises as a part of the cognizant governmental agencies'
approval of Tenant's plans and specincatlons, and all other applIcable laws,
condItions. approvals, ordinances, rules and regulations
4. PROCEDURES
LI performance of Tenant's Work. The construction and Instalifition of
Tenant's Wart shall be
completed In accordance with the following provisions of tflts SectIon 4,1
4.1.1 Tenant shall be responsible for obtaining all necessary
approvals from all local agencies or governmental departments having
Jurisdiction.
4.1.2 All construction work Shall be performed behind barricades and
temporary plywood storefronts or barricades installed by Tenant. All such
construction wont shall be confined to the Premises.
4.1.3 Tenant shall promptly deposit all trash arid debris in
appropriate trash receptacles, which Tenant proctires and bears all expenses
of, and shall keep the area Clean and picked up during construction.
4.1.4 Tenant shall store its coistrucilan malenaIs and supplies within
the confines of the Premises, or In such ether area as may be assigned by
Landlord,
4.1.5 Tenant shall perform Its Tenants Work at times and ins manner
which do fbi impede or deiay Landlord in the completion of the Other
constRIction wont being Canted out by Landlord or its contractors.
4,1.6 Tenant shall notify Landlord of any planned work to be done on
weekends cr other than normal job hours, Such work may be performed only In
accordance with all applicable rules and regulations.
4.1.7 Tenant shell be responsible for the repair, replacement or
clean-up of any damage caused by Tenant or Its agents or Contractors and
subcontractors to other portions or the Building or Property ri which the
construction of leasahold improvements is underway or has been completed,
Including specifically accessways to Tenant's Premises thai may be used
concurrently by others.
4.1.8 Tenant shell requIre Its Contractor to inspect and accept the
Premises prIor to starting any Tenants Work.
4,1.9 Tenant shall not post signs on any part of the Building or On
the premises other than such signs as have been authorized pursuant to the
Lease or are otherwise authorized in writing in advance by Landlord,
4.1.10 Tenant shall record a Notice of completion promptly after the
completion of Tenants Work, and shall promptly furnish Landlord a conformed
copy of such Notice, as recorded.
4.1.11 Tenant shalt perform Its work in a manner so as to avoid any
labor dispute which results in a work stoppage or a disruption in the delivery
of materials or services at the Job site. Should there be any such work
stoppage or disruption caused by any such a labor dispute, Tenant shall
kumedlately undertake those actions necessary to resoive the dispute, including
(a) removal of all diaputante from the job sIte until such time as the dispute
no longer exists, (b) seeking injunctFve relief, arid/or (C) filing appropriate
unfair labor practice charges.
4.1.12 Tenant shall indemni4'. defend and hold Landlord free and
harmless from and against any liabilities, claims, damages, losses, causes of
action, costs or expenses, Including attomeys' fees, resulting from or
attributable to any injury to persons or damage to property occuning during the
course of performing Tenant's Work.
4.2 As-Built Plans. Within thIrty days after the completion of the
Tenant's Work, Tenant shall furnish Landiord with one complete sat of sepia as-
built plans rortha Premises, prepared from Tenant's approved plans and
specifications. If Tenant fails to provide such as-built plans, Landlord may
obtain such plans from the local jurisdictional building or planning
authoritIes or otheiwise at Tenant's cost, payable within ten days following
additional demand therefor. Such amount shall be deemed to be additional rent
under this Lease,
4.3 plan Check and Auildincr Code Pas'yrft Aoollcation. The Tenant
xxxxx subn,il to the cognizant governmental agency Tenant's plans and
specifications and building pennit appllcation at such time as is reasonatily
necessary to obtain a building permit for and complete the Tenant's Work prior
to the Rent commencement Data. The Tenant shall be solely responsible for
coordinating the timing of Its st~bmittaI to the governmental agencies to avoid
delays in start of construction.
4.4 Tenant's niesnonsibility for Tenant's Plans arid Soeciflcadons.
Landlord's approval of all Tenant's plans and specifications shall be made in
accordance with the applicable Section of the Lease. Alter the Landlord's
approval of Tenant's plans and specifications, no changes shall be made to such
Tenant's plans and specilicatlcns without the prior written consent of the
Landlord. During all phases of plan development and prior to
biddIng Tonont's plans end specllloallcna and/Or commencing consInrOtlon, the
Tenant shatl make a physicalsite inspection at the Premises, and(or cause the
Tenant's architect and/or englneer(s~ to do so, to verity the as-built
location, conditions arid physical dimensions of the Premises, and conformance
of Tenant's plans and speciflc~tions thereto. Failure to do so shall be at the
sole risk and expense of the Tenant. The Landlord's review arid/or approval of
pl4flsaS herein specified is for compliance with the Landlord's criteria only,
and such ~pprcvaI dOes not relieve the Tenant of responsittlity for compliance
with this Lease and any documents relened to thereIn, any conditions of
approval or other restriollons affecting the Building, field verification of
dimensIons and existing conditions, discrepancies between Tenant's plans and
specifications and the as-built cond&ions of the Premises, coordination with
other trades anc job conditions, or compliance with all codes and regulations
applIcable to the Tenant's Work. No responsibility for proper archItecture,
engineering, safety and/or design of facilities or compbanoa with applicable
codes anc regulations is implied or Inferred from the Landlord's approval of
the Tenant's plans.
EXHIBIT A
[GRAPHIC DEPICTING FLOOR PLAN]
