EXHIBIT 10.37
STANDARD OFFICE LEASE
BY AND BETWEEN
1212 FLOWER REAL ESTATE, LLC
a Delaware limited liability company
AS LANDLORD,
AND
PEOPLE'S LIBERATION, INC.,
a California corporation
AS TENANT
SUITE 500
0000 Xxxxx Xxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000
TABLE OF CONTENTS
Page
----
ARTICLE 1 BASIC LEASE PROVISIONS ........................................ 1
ARTICLE 2 TERM/PREMISES ................................................. 2
ARTICLE 3 RENTAL ........................................................ 3
(a) Basic Rental ............................................ 3
(b) Increase in Direct Costs ................................ 3
(c) Definitions.............................................. 3
(d) Determination of Payment ................................ 7
ARTICLE 4 SECURITY DEPOSIT............................................... 9
ARTICLE 5 HOLDING OVER .................................................. 11
ARTICLE 6 PERSONAL PROPERTY TAXES........................................ 11
ARTICLE 7 USE ........................................................... 12
ARTICLE 8 CONDITION OF PREMISES ......................................... 12
ARTICLE 9 REPAIRS AND ALTERATIONS ....................................... 13
ARTICLE 10 LIENS ......................................................... 15
ARTICLE 11 PROJECT SERVICES .............................................. 15
ARTICLE 12 RIGHTS OF LANDLORD ............................................ 17
ARTICLE 13 INDEMNITY; EXEMPTION OF LANDLORD FROM LIABILITY ............... 17
(a) Indemnity ............................................... 17
(b) Exemption of Landlord from Liability .................... 17
ARTICLE 14 INSURANCE ..................................................... 18
(a) Tenant's Insurance ...................................... 18
(b) Form of Policies ........................................ 19
(c) Landlord's Insurance .................................... 19
(d) Waiver of Subrogation ................................... 19
(e) Compliance with Law ..................................... 20
ARTICLE 15 ASSIGNMENT AND SUBLETTING ..................................... 20
ARTICLE 16 DAMAGE OR DESTRUCTION ......................................... 23
ARTICLE 17 SUBORDINATION ................................................. 24
ARTICLE 18 EMINENT DOMAIN ................................................ 25
ARTICLE 19 DEFAULT ....................................................... 25
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TABLE OF CONTENTS
(continued) Page
ARTICLE 20 REMEDIES....................................................... 27
ARTICLE 21 TRANSFER OF LANDLORD'S INTEREST ............................... 28
ARTICLE 22 BROKER ........................................................ 29
ARTICLE 23 PARKING ....................................................... 29
ARTICLE 24 WAIVER......................................................... 30
ARTICLE 25 ESTOPPEL CERTIFICATE .......................................... 30
ARTICLE 26 LIABILITY OF LANDLORD ......................................... 31
ARTICLE 27 INABILITY TO PERFORM .......................................... 32
ARTICLE 28 HAZARDOUS WASTE ............................................... 32
ARTICLE 29 SURRENDER OF PREMISES; REMOVAL OF PROPERTY .................... 34
ARTICLE 30 OPTION TO EXTEND .............................................. 35
ARTICLE 31 MISCELLANEOUS ................................................. 38
(a) Severability; Entire Agreement .......................... 38
(b) Attorneys' Fees; Waiver of Jury Trial ................... 38
(c) Time of Essence ......................................... 39
(d) Headings; Joint and Several ............................. 39
(e) Reserved Area ........................................... 39
(f) No Option................................................ 39
(g) Use of Project Name; Improvements ....................... 39
(h) Rules and Regulations.................................... 39
(i) Quiet Possession ........................................ 40
(j) Rent .................................................... 40
(k) Successors and Assigns .................................. 40
(l) Notices ................................................. 40
(m) Persistent Delinquencies ................................ 41
(n) Right of Landlord to Perform ............................ 41
(o) Access, Changes in Project, Facilities, Name ............ 41
(p) Signing Authority........................................ 42
(q) Identification of Tenant ................................ 42
(r) Substitute Premises ..................................... 43
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TABLE OF CONTENTS
(continued)
(s) Survival of Obligations ................................. 44
(t) Confidentiality ......................................... 44
(u) Governing Law ........................................... 44
(v) Property Manager ........................................ 44
(w) Representations Not Personal ............................ 45
(x) Anti-Terrorism Representation ........................... 45
(y) Signage ................................................. 46
(z) Cross Default ........................................... 47
(z) Exhibits and Addendum ................................... 47
EXHIBIT A PREMISES ...................................................... A-1
EXHIBIT B RULES AND REGULATIONS ......................................... B-1
EXHIBIT C NOTICE OF LEASE TERM DATES AND TENANT'S PROPORTIONATE SHARE.... C-1
EXHIBIT D [INTENTIONALLY OMITTED] ....................................... D-1
EXHIBIT E SIGNING RESOLUTION ............................................ E-1
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STANDARD OFFICE LEASE
This Standard Office Lease ("LEASE") is made and entered into
as of January 22, 2009, by and between 1212 FLOWER REAL ESTATE, LLC A DELAWARE
LIMITED LIABILITY COMPANY ("LANDLORD"), and PEOPLE'S LIBERATION, INC., a
California corporation ("TENANT").
Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the premises described as Suite No. 500 of 0000 Xxxxx Xxxxxx Xxxxxx, as
designated on the plan attached hereto and incorporated herein as Exhibit "A"
("PREMISES"), of the project ("PROJECT") now known as 1212 and 0000 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, for the Term and upon the terms and
conditions hereinafter set forth, and Landlord and Tenant hereby agree as
follows:
ARTICLE 1
BASIC LEASE PROVISIONS
A. Term:
Commencement Date: March 1, 2009
Expiration Date: March 31, 2012
B. Square Footage: 12,977 rentable square feet
C. Basic Rental:
LEASE PERIOD ANNUAL BASIC RENTAL MONTHLY BASIC RENTAL
------------ ------------------- --------------------
3/1/2009 - 2/28/2010 $300,000 $25,000
3/1/2010 - 2/28/2011 $360,000 $30,000
3/1/2011 - 3/31/2012 $384,000 $32,000
Notwithstanding the foregoing, so long as Tenant is not in default under this
Lease, Monthly Basic Rental for March 2009 shall be abated.
D. Base Year: 2009
E. Tenant's Proportionate Share: 18.5%
F. Security Deposit: A security deposit of $100,000 shall be due
and payable by Tenant to Landlord upon Tenant's execution of
this Lease, subject to adjustment in accordance with Article
4, below.
G. Permitted Use: General office use
H. Broker(s): CB Xxxxxxx Xxxxx, Inc. and Madison Partners
I. Parking Passes: Tenant shall have the use of forty-six (46)
unreserved parking spaces and four (4) reserved parking
spaces, at the rate provided in Article 23 hereof. Subject to
availability and at Landlord's sole discretion, Tenant may
lease up to twelve (12) additional unreserved parking spaces
at the rental rate established by Landlord from time to time.
J. First Month's Rent: Basic Rental in the amount of $25,000
shall be due and payable by Tenant to Landlord upon Tenant's
execution of this Lease and shall be applied by Landlord to
the first month of rent actually due from Tenant under this
Lease.
ARTICLE 2
TERM/PREMISES
The Term of this Lease shall commence on the Commencement Date
as set forth in Article l.A of the Basic Lease Provisions and shall end on the
Expiration Date set forth in Article l.A of the Basic Lease Provisions. For
purposes of this Lease, the term "LEASE YEAR" shall mean each consecutive twelve
(12) month period during the Lease Term, with the first Lease Year commencing on
the Commencement Date; however, (a) if the Commencement Date falls on a day
other than the first day of a calendar month, the first Lease Year shall end on
the last day of the eleventh (11th) month after the Commencement Date and the
second (2nd) and each succeeding Lease Year shall commence on the first day of
the next calendar month, and (b) the last Lease Year shall end on the Expiration
Date. Landlord shall use commercially reasonable efforts to provide Tenant
access to the Premises on or before February 27, 2009; provided, however, that
if such early access is granted, all terms and provisions of this Lease (except
the obligation to pay Basic Rental) shall apply during Tenant's early occupancy
of the Premises, including, without limitation, all indemnity and insurance
provisions. If Landlord is unable to deliver possession of the Premises to
Tenant on or before the anticipated Commencement Date, Landlord shall not be
subject to any liability for its failure to do so, and such failure shall not
affect the validity of this Lease nor the obligations of Tenant hereunder;
provided, however, that Tenant shall be relieved of the obligation to pay Rent
until such date as Landlord delivers possession to Tenant, and further provided
that such delay in delivery of possession does not exceed sixty (60) days. If
Landlord fails to deliver possession of the Premises to Tenant on or before
expiration of the sixtieth (60th) day from the date hereby required, then the
Lease shall terminate and neither party shall have any obligation to the other,
except that all Tenant deposits shall be refunded by Landlord promptly, without
the need for further notice. Landlord and Tenant hereby stipulate that the
Premises contains the number of square
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feet specified in Article 1.B of the Basic Lease Provisions. Landlord may
deliver to Tenant a Commencement Letter in a form substantially similar to that
attached hereto as Exhibit "C," which Tenant shall execute and return to
Landlord within five (5) days of receipt thereof. Failure of Tenant to timely
execute and deliver the Commencement Letter shall constitute an acknowledgment
by Tenant that the statements included in such notice are true and correct,
without exception.
ARTICLE 3
RENTAL
(a) BASIC RENTAL. Tenant agrees to pay to Landlord during the Term
hereof, at Landlord's office or to such other person or at
such other place as directed from time to time by written
notice to Tenant from Landlord, the initial monthly and annual
sums as set forth in Article 1.C of the Basic Lease
Provisions, payable in advance on the first day of each
calendar month, without demand, setoff or deduction, and in
the event this Lease commences or the date of expiration of
this Lease occurs other than on the first day or last day of a
calendar month, the rent for such month shall be prorated.
Notwithstanding the foregoing, the first full month's rent
shall be paid to Landlord in accordance with Article 1.J of
the Basic Lease Provisions.
(b) INCREASE IN DIRECT COSTS. The term "BASE YEAR" means the
calendar year set forth in Article 1.D of the Basic Lease
Provisions. If, in any calendar year during the Term of this
Lease, the "DIRECT COSTS" (as hereinafter defined) paid or
incurred by Landlord shall be higher than the Direct Costs for
the Base Year, Tenant shall pay an additional sum for such and
each subsequent calendar year equal to the product of the
amount set forth in Article 1.E of the Basic Lease Provisions
multiplied by such increased amount of "Direct Costs." In the
event either the Premises and/or the Project is expanded or
reduced, then Tenant's Proportionate Share shall be
appropriately adjusted, and as to the calendar year in which
such change occurs, Tenant's Proportionate Share for such year
shall be determined on the basis of the number of days during
that particular calendar year that such Tenant's Proportionate
Share was in effect. In the event this Lease shall terminate
on any date other than the last day of a calendar year, the
additional sum payable hereunder by Tenant during the calendar
year in which this Lease terminates shall be prorated on the
basis of the relationship which the number of days which have
elapsed from the commencement of said calendar year to and
including said date on which this Lease terminates bears to
three hundred sixty (360). Any and all amounts due and payable
by Tenant pursuant to Article 3(b), (c) and (d) hereof shall
be deemed "ADDITIONAL RENT" and Landlord shall be entitled to
exercise the same rights and remedies upon default in these
payments as Landlord is entitled to exercise with respect to
defaults in monthly Basic Rental payments.
(c) DEFINITIONS. As used herein the term "DIRECT COSTS" shall mean
the sum of the following:
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(i) "TAX COSTS," which shall mean any and all real estate
taxes and other similar charges on real property or
improvements, assessments, water and sewer charges,
and all other charges assessed, reassessed or levied
upon the Project and appurtenances thereto and the
parking or other facilities thereof, or the real
property thereunder (collectively the "REAL
PROPERTY") or attributable thereto or on the rents,
issues, profits or income received or derived
therefrom which are assessed, reassessed or levied by
the United States, the State of California or any
local government authority or agency or any political
subdivision thereof, and shall include Landlord's
reasonable legal fees, costs and disbursements
incurred in connection with proceedings for reduction
of Tax Costs or any part thereof; provided, however,
if at any time after the date of this Lease the
methods of taxation now prevailing shall be altered
so that in lieu of or as a supplement to or a
substitute for the whole or any part of any Tax
Costs, there shall be assessed, reassessed or levied
(a) a tax, assessment, reassessment, levy, imposition
or charge wholly or partially as a net income,
capital or franchise levy or otherwise on the rents,
issues, profits or income derived therefrom, or (b) a
tax, assessment, reassessment, levy (including but
not limited to any municipal, state or federal levy),
imposition or charge measured by or based in whole or
in part upon the Real Property and imposed upon
Landlord, or (c) a license fee measured by the rent
payable under this Lease, then all such taxes,
assessments, reassessments or levies or the part
thereof so measured or based, shall be deemed to be
included in the term "Direct Costs." In addition,
when calculating Tax Costs for the Base Year, special
assessments shall only be deemed included in Tax
Costs for the Base Year to the extent that such
special assessments are included in Tax Costs for the
applicable subsequent calendar year during the Term.
(ii) "OPERATING COSTS," which shall mean all costs and
expenses incurred by Landlord in connection with the
maintenance, operation, replacement, ownership and
repair of the Project, the equipment, the
intrabuilding network cable, adjacent walks,
landscaped and common areas and the parking
structure, areas and facilities of the Project,
including, but not limited to, non-executive
salaries, wages, medical, surgical and general
welfare benefits and pension payments, payroll taxes,
fringe benefits, employment taxes, workers'
compensation, uniforms and dry cleaning thereof for
all persons who perform duties reasonably required in
connection with the operation, maintenance and repair
of the Project, its equipment, the intrabuilding
network cable and the adjacent walks and landscaped
areas, including janitorial, gardening, security,
parking, operating engineer, elevator, painting,
plumbing, electrical, carpentry, heating,
ventilation, air conditioning, window washing, hired
services, a reasonable allowance for depreciation of
the cost of acquiring or the rental expense of
personal property used in the maintenance, operation
and repair of the Project, accountant's fees incurred
in the preparation of rent adjustment statements,
legal fees, real estate tax consulting fees, personal
property taxes on property used in the maintenance
and operation of the Project, fees, costs,
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expenses or dues payable pursuant to the terms of any
covenants, conditions or restrictions or owners'
association pertaining to the Project, capital
expenditures incurred to effect economies of
operation of, or stability of services to, the
Project and capital expenditures required by
government regulations, laws, or ordinances
including, but not limited to the Americans with
Disabilities Act; costs incurred (capital or
otherwise) on a regular recurring basis every three
(3) or more years for certain maintenance projects
(e.g., parking lot slurry coat or replacement of
lobby and elevator cab carpeting); the cost of all
charges for electricity, gas, water and other
utilities furnished to the Project, including any
taxes thereon; the cost of all charges for fire and
extended coverage, liability and all other insurance
for the Project carried by Landlord; the cost of all
building and cleaning supplies and materials; the
cost of all charges for cleaning, maintenance and
service contracts and other services with independent
contractors and administration fees; a property
management fee not to exceed four percent (4%) of
total Direct Costs (which fee may be imputed if
Landlord has internalized management or otherwise
acts as its own property manager) and license, permit
and inspection fees relating to the Project. In the
event, during any calendar year, the Project is less
than ninety-five percent (95%) occupied at all times,
Operating Costs shall be adjusted to reflect the
Operating Costs of the Project as though ninety-five
percent (95%) were occupied at all times, and the
increase or decrease in the sums owed hereunder shall
be based upon such Operating Costs as so adjusted. In
no event shall costs for any item of utilities
included in Direct Costs for any year subsequent to
the Base Year be less than the amount included in
Direct Costs for the Base Year for such utility item.
Notwithstanding anything to the contrary set forth in
this Article 3, when calculating Operating Costs for
the Base Year, Operating Costs shall exclude (a)
market-wide labor-rate increases due to extraordinary
circumstances including, but not limited to, boycotts
and strikes, (b) utility rate increases due to
extraordinary circumstances including, but not
limited to, conservation surcharges, boycotts,
embargoes or other shortages, and (c) amortization of
any capital items including, but not limited to,
capital improvements, capital repairs and capital
replacements (including such amortized costs where
the actual improvement, repair or replacement was
made in prior years). Notwithstanding anything to the
contrary set forth in this Article 3, when
calculating Operating Costs, Landlord shall exclude:
(a) Costs incurred by Landlord for the repairs of a
capital nature to the Project (as determined in
accordance with generally accepting accounting
principles) required as a result of a casualty event;
(b) Costs of capital improvements and equipment
including, without limitation, alterations which are
considered capital improvements and replacements
under generally accepted accounting principles
consistently applied ("Capital Items"), except for
(i) the annual amortization (amortized over the
useful life) of costs, including financing costs, if
any incurred by Landlord after the Commencement Date
for any capital improvements installed or paid for by
Landlord and required by any new (or change in) laws,
rules or regulations of any governmental or
quasi-governmental authority which are enacted after
the
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Commencement Date; (ii) the cost of Capital Items
acquired to reduce the Operating Costs or as a
labor-saving measure or to affect other economics in
the operation or maintenance of the Property
(amortized at an annual rate reasonably calculated,
including interest of the actual interest rate
incurred by Landlord) to equal the amount of the
Operating Costs to be saved in each calendar year
throughout the term (as determined at the time
Landlord elects to proceed with a capital improvement
or the capital equipment to reduce the operating
expenses); (iii) minor capital improvements, tools or
expenditures; or (iv) capital improvements which
reduce expenses which would otherwise be included in
Operating Costs; (c) rentals for personal property
(except when needed in connection with normal repairs
and maintenance of permanent systems) which if
purchased, rather than rented, would constitute a
capital improvement (including, without limitation,
air conditioning systems and elevators); (d)
depreciation, amortization and interest payments on
Capital Items, except on materials, tools, supplies
and vendor-type equipment purchased by Landlord to
enable Landlord to supply services Landlord might
otherwise contract for with a third party where such
depreciation, amortization and interest payments
would otherwise have been included in the charge for
such third party's services, not to exceed in the
aggregate the amount charged by such third party, all
as determined in accordance with generally accepted
accounting principles, consistently applied, and when
depreciation or amortization is permitted or
required, the item shall be amortized over its
reasonably anticipated useful for life; (e) marketing
costs, including leasing commissions and attorneys'
fees incurred in connection with the development or
leasing of the Project, including without limitation,
expenses incurred in relationship to the bankruptcy
of any tenant, subtenant or assignee; and, costs,
including permit, license and inspection costs,
incurred with respect to the installation of tenant
or other occupant improvements made for Tenant or
other occupants in the Project or incurred in
renovating or otherwise improving, decorating,
painting or redecorating vacant space for tenants or
other occupants of the Project; (f) expenses in
connection with services or other benefits which are
not provided to Tenant or for which Tenant is charged
directly but which are not provided to another tenant
or occupant of the Project; (g) premiums for
earthquake insurance unless such premiums are
included in the Base Year calculation of Operating
Costs; (h) ground lease rentals, interest, principal,
points and fees on debts or amortization on any
mortgage or mortgages or any other debt instrument
encumbering the Project; (i) Landlord's general
corporate overhead and general and administrative
expenses and accountant's fees (as distinguished from
the costs of operating the Project) except as it
specifically relates to the Project; (j) any
compensation paid to clerks, attendants, or other
persons in commercial concessions (e.g., retail or
restaurant operations) operated by Landlord, except
in the parking garage; (k) legal fees and related
legal costs (including in connection therewith all
attorneys' fees and costs of settlement, judgments
and damages awarded against Landlord and payments in
lieu thereof) together with any damages awarded
against Landlord arising from late payments
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made by Landlord or violations of law; (l) amounts
charged to Tenant or any other tenant in the Project
with respect to all items and services for which
Tenant or any other tenant in the Project reimburses
Landlord or is obligated to reimburse Landlord (other
than through the Tenant's proportionate share of
Operating Costs) or which Landlord provides
selectively to one or more tenants without
reimbursement without benefit to Tenant; (m)
advertising and promotional expenditures, and costs
of signs in or on the Project; (n) services provided,
taxes attributable to, and cost incurred in
connection with the operation of any retail and
restaurant operations in the Project, if any, except
to the extent the square footage of such operations
are included in the rentable square footage of the
Project and do not exceed the services, utility and
tax costs which would have been incurred had the
retail and/or restaurant space been used for general
office purposes; (o) costs incurred as a result of
the failure by the original owner of the Project to
comply with laws enacted on or before the date the
temporary certificate of occupancy (or similar
permit) for the shell and core of the Project was
validly issued; (p) costs of complying with laws,
codes, regulations or ordinances relating to
Hazardous Materials in building materials or
otherwise in the Project, or Hazardous Materials in
the soil or groundwater under the Project, which
exist in violation of applicable Laws on the
Commencement Date; (q) Costs incurred with upgrading
the Project to comply with the current interpretation
of disability, life, fire and safety codes,
ordinances, statutes, or other laws in effect prior
to the Effective Date; or (r) costs arising from
Landlord's charitable or political contributions.
(d) DETERMINATION OF PAYMENT.
(i) If for any calendar year ending or commencing within
the Term, Tenant's Proportionate Share of Direct
Costs for such calendar year exceeds Tenant's
Proportionate Share of Direct Costs for the Base
Year, then Tenant shall pay to Landlord, in the
manner set forth in Article 3(d)(ii) and (iii),
below, and as additional rent, an amount equal to the
excess (the "EXCESS").
(ii) Landlord shall give Tenant a yearly expense estimate
statement (the "ESTIMATE STATEMENT") which shall set
forth Landlord's reasonable estimate (the "ESTIMATE")
of what the total amount of Direct Costs for the
then-current calendar year shall be and the estimated
Excess (the "ESTIMATED EXCESS") as calculated by
comparing Tenant's Proportionate Share of Direct
Costs for such calendar year, which shall be based
upon the Estimate, to Tenant's Proportionate Share of
Direct Costs for the Base Year. The failure of
Landlord to timely furnish the Estimate Statement for
any calendar year prior to the expiration of eighteen
(18) months from the end of such calendar year, shall
not preclude Landlord from enforcing its rights to
collect any Estimated Excess under this Article 3. If
pursuant to the Estimate Statement an Estimated
Excess is calculated for the then-current calendar
year, Tenant shall pay, with its next installment of
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Monthly Basic Rental due, a fraction of the Estimated
Excess for the then-current calendar year (reduced by
any amounts paid pursuant to the last sentence of
this Article 3(d)(ii)). Such fraction shall have as
its numerator the number of months which have elapsed
in such current calendar year to the month of such
payment, both months inclusive, and shall have twelve
(12) as its denominator. Until a new Estimate
Statement is furnished, Tenant shall pay monthly,
with the Monthly Basic Rental installments, an amount
equal to one-twelfth (1/12) of the total Estimated
Excess set forth in the previous Estimate Statement
delivered by Landlord to Tenant.
(iii) In addition, Landlord shall endeavor to give to
Tenant on or before the first day of April following
the end of each calendar year, a statement (the
"STATEMENT") which shall state the Direct Costs
incurred or accrued for such preceding calendar year,
and which shall indicate the amount, if any, of the
Excess. Upon receipt of the Statement for each
calendar year during the Term, if amounts paid by
Tenant as Estimated Excess are less than the actual
Excess as specified on the Statement, Tenant shall
pay, with its next installment of Monthly Basic
Rental due, the full amount of the Excess for such
calendar year, less the amounts, if any, paid during
such calendar year as Estimated Excess. If, however,
the Statement indicates that amounts paid by Tenant
as Estimated Excess are greater than the actual
Excess as specified on the Statement, such
overpayment shall be credited against Tenant's next
installments of Estimated Excess. The failure of
Landlord to timely furnish the Statement for any
calendar year shall not prejudice Landlord from
enforcing its rights under this Article 3. Even
though the Term has expired and Tenant has vacated
the Premises, provided that Landlord delivers the
report to Tenant within eighteen (18) months after
expiration of the period covered thereby, when the
final determination is made of Tenant's Proportionate
Share of the Direct Costs for the calendar year in
which this Lease terminates, if an Excess is present,
Tenant shall immediately pay to Landlord an amount as
calculated pursuant to the provisions of this Article
3(d). The provisions of this Article 3(d)(iii) shall
survive the expiration or earlier termination of the
Term.
(iv) Within one hundred twenty (120) days after receipt of
a Statement by Tenant ("REVIEW PERIOD"), if Tenant
disputes the amount set forth in the Statement,
Tenant's employees or an independent certified public
accountant (which accountant is a member of a
nationally or regionally recognized accounting firm),
designated by Tenant, may, after reasonable notice to
Landlord and at reasonable times, inspect Landlord's
records at Landlord's offices, provided that Tenant
is not then in default after expiration of all
applicable cure periods and provided further that
Tenant and such accountant or representative shall,
and each of them shall use their commercially
reasonable efforts to cause their respective agents
and employees to, maintain all information contained
in Landlord's records in strict confidence.
Notwithstanding the
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foregoing, Tenant shall only have the right to review
Landlord's records one (1) time during any twelve
(12) month period. Tenant's failure to dispute the
amounts set forth in any Statement within the Review
Period shall be deemed to be Tenant's approval of
such Statement, and Tenant thereafter waives the
right or ability to dispute the amounts set forth in
such Statement. If after such inspection, but within
thirty (30) days after the Review Period, Tenant
notifies Landlord in writing that Tenant still
disputes such amounts, a certification as to the
proper amount shall be made by an independent
certified public accountant selected by Landlord and
who is a member of a nationally or regionally
recognized accounting firm, but who is not affiliated
with Landlord and has performed, directly or
indirectly, no work for Landlord for a period of
twenty-four (24) months prior to the selection made
hereunder. Landlord shall cooperate in good faith
with Tenant and the accountant and provide the
accountant reasonable access at normal business hours
to the information upon which the certification is to
be based. The accountant may make copies of pertinent
documents in support of the accountant's findings as
long as a commercially reasonable confidentiality
agreement is provided to Landlord, in a form
acceptable to Landlord, before any such copies are
made. The accountant shall render a final
certification within forty-five (45) days of
commencement of the audit contemplated hereby. Tenant
shall pay all costs of the accountant, including fees
and expenses, provided, however, that if such
certification by the accountant proves that the
Direct Costs set forth in the Statement were
overstated by more than ten percent (10%), then the
cost of the accountant and the cost of such
certification shall be paid for by Landlord. Promptly
following the parties' receipt of such certification,
the parties shall make such appropriate payments or
reimbursements, as the case may be, to each other, as
are determined to be owing pursuant to such
certification.
(v) If the Project is a part of a multi-building
development, those Direct Costs attributable to such
development as a whole (and not attributable solely
to any individual building therein) shall be
allocated by Landlord to the Project and to the other
buildings within such development on an equitable
basis.
ARTICLE 4
SECURITY DEPOSIT
(a) Tenant has deposited with Landlord the sum set forth in
Article 1.F of the Basic Lease Provisions as security for the
full and faithful performance of every provision of this Lease
to be performed by Tenant. If Tenant breaches any provision of
this Lease, including but not limited to the payment of rent,
Landlord may use all or any part of this Security Deposit for
the payment of any rent or any other sums in default, or to
compensate Landlord for any other loss or damage which
Landlord may suffer by reason of Tenant's default. If any
portion of said deposit is so used or applied, Tenant
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shall, within five (5) days after written demand therefor,
deposit cash with Landlord in an amount sufficient to restore
the Security Deposit to its original amount. If Monthly Basic
Rental is increased, the amount of the Security Deposit
required to be maintained by Tenant shall also be increased so
as to maintain, at all times and from time to time, the same
ratio to Monthly Basic Rental as applicable on the
Commencement Date. Tenant agrees that Landlord shall not be
required to keep the Security Deposit in trust, segregate it
or keep it separate from Landlord's general funds, but
Landlord may commingle the Security Deposit with its general
funds and Tenant shall not be entitled to interest on such
deposit. At the expiration of the Lease Term, and provided
there exists no default by Tenant hereunder, the Security
Deposit or any balance thereof shall be returned to Tenant
(or, at Landlord's option, to Tenant's assignee), provided
that subsequent to the expiration of this Lease, Landlord may
retain from said Security Deposit (i) an amount reasonably
estimated by Landlord to cover potential Direct Cost
reconciliation payments due with respect to the calendar year
in which this Lease terminates or expires (such amount so
retained shall not, in any event, exceed ten percent (10%) of
estimated Direct Cost payments due from Tenant for such
calendar year through the date of expiration or earlier
termination of this Lease and any amounts so retained and not
applied to such reconciliation shall be returned to Tenant
within thirty (30) days after Landlord's delivery of the
Statement for such calendar year), (ii) any and all amounts
reasonably estimated by Landlord to cover the anticipated
costs to be incurred by Landlord to remove any signage
provided to Tenant under this Lease and to repair any damage
caused by such removal (in which case any excess amount so
retained by Landlord shall be returned to Tenant within thirty
(30) days after such removal and repair), and (iii) any and
all amounts permitted by law or this Article 4. Tenant hereby
waives the provisions of Section 1950.7 of the California
Civil Code and all other provisions of law, now or hereafter
in effect, which provide that Landlord may claim from a
security deposit only those sums reasonably necessary to
remedy defaults in the payment of rent, to repair damage
caused by Tenant or to clean the Premises, it being agreed
that Landlord may, in addition, claim those sums specified in
this Article 4 above and/or those sums reasonably necessary to
compensate Landlord for any other loss or damage, foreseeable
or unforeseeable, caused by the acts or omissions of Tenant or
any officer, employee, agent, contractor or invitee of Tenant.
(b) On the first and second anniversary of the Commencement Date,
provided no events or conditions have occurred or are
occurring that would constitute an Event of Default under this
Lease, the amount of the Security Deposit required hereunder
shall be reduced according to the following schedule:
LEASE PERIOD AMOUNT OF SECURITY DEPOSIT
------------ --------------------------
Lease Year 1 $100,000.00
Lease Year 2 $ 75,000.00
Lease Year 3- Expiration Date $ 50,000.00
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So long no Event of Default is occurring or has previously
occurred on the first and second anniversary of the
Commencement Date, Landlord shall apply amounts held by
Landlord that are in excess of the Security Deposit required
pursuant to the above schedule to the next installment of
Monthly Basic Rent due and payable under this Lease. In the
event that an Event of Default by Tenant occurs under this
Lease, Tenant shall no longer be entitled to any reduction of
the Security Deposit, and the Security Deposit required
hereunder shall be the amount then held by Landlord, subject
to Tenant's obligations to replenish in accordance with
Article 4(a), above.
ARTICLE 5
HOLDING OVER
Should Tenant, without Landlord's written consent, hold over
after termination of this Lease, Tenant shall become a tenant from month to
month only upon each and all of the terms herein provided as may be applicable
to a month to month tenancy, and any such holding over shall not constitute an
extension of this Lease. During such holding over, Tenant shall pay in advance,
monthly, rent at one hundred fifty percent (150%) of the rate in effect for the
last month of the Term of this Lease, in addition to, and not in lieu of, all
other payments required to be made by Tenant hereunder, including but not
limited to Tenant's Proportionate Share of any increase in Direct Costs. Nothing
contained in this Article 5 shall be construed as consent by Landlord to any
holding over of the Premises by Tenant, and Landlord expressly reserves the
right to require Tenant to surrender possession of the Premises to Landlord as
provided in this Lease upon the expiration or earlier termination of the Term.
If Tenant fails to surrender the Premises upon the expiration or termination of
this Lease, Tenant agrees to indemnify, defend and hold Landlord harmless from
all costs, loss, expense or liability, including without limitation, claims made
by any succeeding tenant, and real estate brokers' claims and attorneys' fees.
ARTICLE 6
PERSONAL PROPERTY TAXES
Tenant shall pay, prior to delinquency, all taxes assessed
against or levied upon trade fixtures, furnishings, equipment and all other
personal property of Tenant located in the Premises. In the event any or all of
Tenant's trade fixtures, furnishings, equipment and other personal property
shall be assessed and taxed with property of Landlord, or if the cost or value
of any leasehold improvements in the Premises exceeds the cost or value of a
Project-standard buildout as determined by Landlord and, as a result, real
property taxes for the Project are increased, Tenant shall pay to Landlord its
share of such taxes within ten (10) days after delivery to Tenant by Landlord of
a statement in writing setting forth the amount of such taxes applicable to
Tenant's property or above-standard improvements. Tenant shall assume and pay to
Landlord at the time of paying Basic Rental, any excise, sales, use, rent,
occupancy, garage, parking,
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gross receipts or other taxes (other than net income taxes) which may be imposed
on or on account of letting of the Premises or the payment of Basic Rental or
any other sums due or payable hereunder, and which Landlord may be required to
pay or collect under any law now in effect or hereafter enacted. Tenant shall
pay directly to the party or entity entitled thereto all business license fees,
gross receipts taxes and similar taxes and impositions which may from time to
time be assessed against or levied upon Tenant, as and when the same become due
and before delinquency. Notwithstanding anything to the contrary contained
herein, any sums payable by Tenant under this Article 6 shall not be included in
the computation of "Tax Costs."
ARTICLE 7
USE
Tenant shall use and occupy the Premises only for the use set
forth in Article 1.G of the Basic Lease Provisions and shall not use or occupy
the Premises or permit the same to be used or occupied for any other purpose
without the prior written consent of Landlord, which consent may be given or
withheld in Landlord's sole and absolute discretion, and Tenant agrees that it
will use the Premises in such a manner so as not to interfere with or infringe
the rights of other tenants in the Project. Tenant shall, at its sole cost and
expense, promptly comply with all laws, statutes, ordinances and governmental
regulations or requirements now in force or which may hereafter be in force
relating to or affecting (i) the condition, use or occupancy of the Premises or
the Project, excluding structural changes to the Project not related to Tenant's
particular use of the Premises, and (ii) improvements installed or constructed
in the Premises by or for the benefit of Tenant. Tenant shall not do or permit
to be done anything which would invalidate or increase the cost of any fire and
extended coverage insurance policy covering the Project and/or the property
located therein, and Tenant shall comply with all rules, orders, regulations and
requirements of any organization which sets out standards, requirements or
recommendations commonly referred to by major fire insurance underwriters.
Tenant shall promptly, upon demand, reimburse Landlord for any additional
premium charges for any such insurance policy assessed or increased by reason of
Tenant's failure to comply with the provisions of this Article.
ARTICLE 8
CONDITIONS OF PREMISES
Tenant hereby agrees that the Premises shall be taken "as is,"
"with all faults, "without any representations or warranties," and Tenant hereby
agrees and warrants that it has investigated and inspected the condition of the
Premises and the suitability of same for Tenant's purposes, and Tenant does
hereby waive and disclaim any objection to, cause of action based upon, or claim
that its obligations hereunder should be reduced or limited because of the
condition of the Premises or the Project or the suitability of same for Tenant's
purposes, subject to Landlord's obligation to deliver
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the Premises free from Landlord's personal property, broom clean and in the
condition existing as of the date of this Lease, reasonable wear and tear
excepted. Tenant acknowledges that neither Landlord nor any agent nor any
employee of Landlord has made any representation or warranty with respect to the
Premises or the Project or with respect to the suitability of either for the
conduct of Tenant's business, and Tenant expressly warrants and represents that
Tenant has relied solely on its own investigation and inspection of the Premises
and the Project in its decision to enter into this Lease and let the Premises in
an "As Is" condition. The existing leasehold improvements in the Premises as of
the date of this Lease shall be referred to herein as the "TENANT IMPROVEMENTS."
The taking of possession of the Premises by Tenant shall conclusively establish
that the Premises and the Project were at such time in satisfactory condition.
Tenant hereby waives Sections 1941 and 1942 of the Civil Code of California or
any successor provision of law.
Landlord reserves the right from time to time, but subject to
payment by and/or reimbursement from Tenant as otherwise provided herein:(i) to
install, use, maintain, repair, replace and relocate for service to the Premises
and/or other parts of the Project pipes, ducts, conduits, wires, appurtenant
fixtures, and mechanical systems, wherever located in the Premises or the
Project, (ii) to alter, close or relocate any facility in the Premises or the
Common Areas or otherwise conduct any of the above activities for the purpose of
complying with a general plan for fire/life safety for the Project or otherwise
and (iii) to comply with any federal, state or local law, rule or order with
respect thereto or the regulation thereof not currently in effect. Landlord
shall attempt to perform any such work with the least inconvenience to Tenant as
possible, but in no event shall Tenant be permitted to withhold or reduce Basic
Rental or other charges due hereunder as a result of same or otherwise make
claim against Landlord for interruption or interference with Tenant's business
and/or operations.
ARTICLE 9
REPAIRS AND ALTERATIONS
Landlord shall maintain the structural portions of the Project
including the foundation, floor/ceiling slabs, roof, curtain wall, exterior
glass, columns, beams, shafts, stairs, stairwells, elevator cabs and common
areas and shall also maintain and repair the basic mechanical, electrical, life
safety, plumbing, sprinkler systems and heating, ventilating and
air-conditioning systems (provided, however, that Landlord's obligation with
respect to any such systems shall be to repair and maintain those portions of
the systems located in the core of the Project or in other areas outside of the
Premises, but Tenant shall be responsible to repair and maintain any
distribution of such systems throughout the Premises). Except as expressly
provided as Landlord's obligation in this Article 9, Tenant shall keep the
Premises in good condition and repair. All damage or injury to the Premises or
the Project resulting from the act or negligence of Tenant, its employees,
agents or visitors, guests, invitees or licensees or by the use of the Premises
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shall be promptly repaired by Tenant, at its sole cost and expense, to the
satisfaction of Landlord; PROVIDED, HOWEVER, that for damage to the Project as a
result of casualty or for any repairs that may impact the mechanical,
electrical, plumbing, heating, ventilation or air-conditioning systems of the
Project, Landlord shall have the right (but not the obligation) to select the
contractor and oversee all such repairs. Landlord may make any repairs which are
not promptly made by Tenant after Tenant's receipt of written notice and the
reasonable opportunity of Tenant to make said repair within five (5) business
days from receipt of said written notice, and charge Tenant for the cost
thereof, which cost shall be paid by Tenant within five (5) days from invoice
from Landlord. Tenant shall be responsible for the design and function of all
nonstandard improvements of the Premises, whether or not installed by Landlord
at Tenant's request. Tenant waives all rights to make repairs at the expense of
Landlord, or to deduct the cost thereof from the rent. Tenant shall make no
alterations, changes or additions in or to the Premises (collectively,
"ALTERATIONS") without Landlord's prior written consent, and then only by
contractors or mechanics approved by Landlord in writing and upon the approval
by Landlord in writing of fully detailed and dimensioned plans and
specifications pertaining to the Alterations in question, to be prepared and
submitted by Tenant at its sole cost and expense. Tenant shall at its sole cost
and expense obtain all necessary approvals and permits pertaining to any
Alterations approved by Landlord. If Landlord, in approving any Alterations,
specifies a commencement date therefor, Tenant shall not commence any work with
respect to such Alterations prior to such date. Tenant hereby indemnifies,
defends and agrees to hold Landlord free and harmless from all liens and claims
of lien, and all other liability, claims and demands arising out of any work
done or material supplied to the Premises by or at the request of Tenant in
connection with any Alterations. If permitted Alterations are made, they shall
be made at Tenant's sole cost and expense and shall be and become the property
of Landlord, except that Landlord may, by written notice to Tenant given at
least thirty (30) days prior to the end of the Term, require Tenant at Tenant's
expense to remove all partitions, counters, railings and other Alterations
installed by Tenant, and to repair any damages to the Premises caused by such
removal. Any and all costs attributable to or related to the applicable building
codes of the city in which the Project is located (or any other authority having
jurisdiction over the Project) arising from Tenant's plans, specifications,
improvements, alterations or otherwise shall be paid by Tenant at its sole cost
and expense. With regard to repairs, Alterations or any other work arising from
or related to this Article 9, Landlord shall be entitled to receive an
administrative/supervision fee (which fee shall vary depending upon whether or
not Tenant orders the work directly from Landlord) sufficient to compensate
Landlord for all overhead, general conditions, fees and other costs and expenses
arising from Landlord's involvement with such work.
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ARTICLE 10
LIENS
Tenant shall keep the Premises and the Project free from any
mechanics' liens, vendors' liens or any other liens arising out of any work
performed, materials furnished or obligations incurred by Tenant, and agrees to
defend, indemnify and hold harmless Landlord from and against any such lien or
claim or action thereon, together with costs of suit and reasonable attorneys'
fees incurred by Landlord in connection with any such claim or action. Before
commencing any work of alteration, addition or improvement to the Premises,
Tenant shall give Landlord at least ten (10) business days' written notice of
the proposed commencement of such work (to afford Landlord an opportunity to
post appropriate notices of non-responsibility). In the event that there shall
be recorded against the Premises or the Project or the property of which the
Premises is a part any claim or lien arising out of any such work performed,
materials furnished or obligations incurred by Tenant and such claim or lien
shall not be removed or discharged within ten (10) days of filing, Landlord
shall have the right but not the obligation to pay and discharge said lien
without regard to whether such lien shall be lawful or correct or to require
that Tenant deposit with Landlord in cash, lawful money of the United States,
one hundred fifty percent (150%) of the amount of such claim, which sum may be
retained by Landlord until such claim shall have been removed of record or until
judgment shall have been rendered on such claim and such judgment shall have
become final, at which time Landlord shall have the right to apply such deposit
in discharge of the judgment on said claim and any costs, including attorneys'
fees incurred by Landlord, and shall remit the balance thereof to Tenant.
ARTICLE 11
PROJECT SERVICES
(a) Landlord agrees to furnish to the Premises, at a cost to be
included in Operating Costs, from 8:00 a.m. to 6:00 p.m.
Mondays through Fridays and 8:00 a.m. to 1:00 p.m. on
Saturdays, excepting local and national holidays, air
conditioning and heat, all in such reasonable quantities as in
the judgment of Landlord is reasonably necessary for the
comfortable occupancy of the Premises. In addition, Landlord
shall provide electric current for normal lighting and normal
office machines, elevator service and water on the same floor
as the Premises for lavatory and drinking purposes in such
reasonable quantities as in the judgment of Landlord is
reasonably necessary for general office use. Janitorial and
maintenance services shall be furnished five (5) days per
week, excepting local and national holidays. Tenant shall
comply with all rules and regulations which Landlord may
reasonably establish for the proper functioning and protection
of the common area air conditioning, heating, elevator,
electrical intrabuilding network cable and plumbing systems.
Landlord shall not be liable for, and there shall be no rent
abatement as a result of, any stoppage, reduction or
interruption of any such services caused by governmental
rules, regulations or ordinances, riot, strike, labor
disputes,
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breakdowns, accidents, necessary repairs or other cause.
Except as specifically provided in this Article 11, Tenant
agrees to pay for all utilities and other services utilized by
Tenant and additional building services furnished to Tenant
not uniformly furnished to all tenants of the Project at the
rate generally charged by Landlord to tenants of the Project.
(b) Tenant will not, without the prior written consent of
Landlord, use any apparatus or device in the Premises which
will in any way increase the amount of electricity or water
usually furnished or supplied for use of the Premises as
general office space; nor connect any apparatus, machine or
device with water pipes or electric current (except through
existing electrical outlets in the Premises), for the purpose
of using electric current or water.
(c) If Tenant shall require electric current in excess of that
which Landlord is obligated to furnish under Article 11(a)
above, Tenant shall first obtain the written consent of
Landlord, which Landlord may refuse in its sole and absolute
discretion, to the use thereof and Landlord may cause an
electric current meter or submeter to be installed in the
Premises to measure the amount of such excess electric current
consumed by Tenant in the Premises. The cost of any such meter
and of installation, maintenance and repair thereof shall be
paid for by Tenant and Tenant agrees to pay to Landlord,
promptly upon demand therefor by Landlord, for all such excess
electric current consumed by any such use as shown by said
meter at the rates charged for such service by the city in
which the Project is located or the local public utility, as
the case may be, furnishing the same, plus any additional
expense incurred by Landlord in keeping account of the
electric current so consumed.
(d) If any lights, machines or equipment (including but not
limited to computers) are used by Tenant in the Premises which
materially affect the temperature otherwise maintained by the
air conditioning system, or generate substantially more heat
in the Premises than would be generated by the building
standard lights and usual office equipment, Landlord shall
have the right to install any machinery and equipment which
Landlord reasonably deems necessary to restore temperature
balance, including but not limited to modifications to the
standard air conditioning equipment, and the cost
thereof, including the cost of installation and any additional
cost of operation and maintenance occasioned thereby, shall be
paid by Tenant to Landlord upon demand by Landlord. Landlord
shall not be liable under any circumstances for loss of or
injury to property, however occurring, through or in
connection with or incidental to failure to furnish any of the
foregoing.
(e) If Tenant requires heating, ventilation and/or air
conditioning during times other than the times provided in
Article 11(a) above, Tenant shall give Landlord such advance
notice as Landlord shall reasonably require and shall pay
Landlord's standard charge for such after-hours use.
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(f) Landlord may impose a reasonable charge for any utilities or
services (other than electric current and heating, ventilation
and/or air conditioning which shall be governed by Articles
11(c) and (e) above) utilized by Tenant in excess of the
amount or type that Landlord reasonably determines is typical
for general office use.
ARTICLE 12
RIGHT OF LANDLORD
Landlord and its agents shall have the right to enter the
Premises at all reasonable times for the purpose of cleaning the Premises,
examining or inspecting the same, serving or posting and keeping posted thereon
notices as provided by law, or which Landlord deems necessary for the protection
of Landlord or the Property, showing the same to prospective tenants, lenders or
purchasers of the Project, in the case of an emergency, and for making such
alterations, repairs, improvements or additions to the Premises or to the
Project as Landlord may deem necessary or desirable. If Tenant shall not be
personally present to open and permit an entry into the Premises at any time
when such an entry by Landlord is necessary or permitted hereunder, Landlord may
enter by means of a master key or may enter forcibly, only in the case of an
emergency, without liability to Tenant and without affecting this Lease.
ARTICLE 13
INDEMNITY: EXEMPTION OF LANDLORD FROM LIABILITY
(a) INDEMNITY. Tenant shall indemnify, defend and hold Landlord
harmless from any and all claims arising from Tenant's use of
the Premises or the Project or from the conduct of its
business or from any activity, work or thing which may be
permitted or suffered by Tenant in or about the Premises or
the Project and shall further indemnify, defend and hold
Landlord harmless from and against any and all claims arising
from any breach or default in the performance of any
obligation on Tenant's part to be performed under this Lease
or arising from any negligence of Tenant or any of its agents,
contractors, employees or invitees, patrons, customers or
members in or about the Project and from any and all costs,
attorneys' fees, expenses and liabilities incurred in the
defense of any claim or any action or proceeding brought
thereon, including negotiations in connection therewith.
Tenant hereby assumes all risk of damage to property or injury
to persons in or about the Premises from any cause, and Tenant
hereby waives all claims in respect thereof against Landlord,
excepting where the damage is caused solely by the gross
negligence or willful misconduct of Landlord.
(b) EXEMPTION OF LANDLORD FROM LIABILITY. Landlord shall not be
liable for injury to Tenant's business, or loss of income
therefrom, or, except in connection with damage or injury
resulting from the gross negligence or willful misconduct of
Landlord, or its authorized agents, for damage that may be
sustained by the person, goods, wares, merchandise or property
of Tenant, its employees, invitees, customers, agents, or
contractors, or any other person in, on or about the Premises
directly or indirectly caused by or resulting from fire,
steam, electricity, gas, water, or
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rain which may leak or flow from or into any part of the
Premises, or from the breakage, leakage, obstruction or other
defects of the pipes, sprinklers, wires, appliances, plumbing.
air conditioning, light fixtures, or mechanical or electrical
systems or from intrabuilding network cable, whether such
damage or injury results from conditions arising upon the
Premises or upon other portions of the Project or from other
sources or places and regardless of whether the cause of such
damage or injury or the means or repairing the same is
inaccessible to Tenant. Landlord shall not be liable to Tenant
for any damages arising from any act or neglect of any other
tenant of the building.
Tenant acknowledges that Landlord's election to provide
mechanical surveillance or to post security personnel in the
project is solely within Landlord's discretion; Landlord shall
have no liability in connection with the decision whether or
not to provide such services and Tenant hereby waives all
claims based thereon. Landlord shall not be liable for losses
due to theft, vandalism, or like causes. Tenant shall defend,
indemnify, and hold Landlord harmless from any such claims
made by any employee, licensee, invitee, contractor, agent, or
other person whose presence in, on or about the Premises or
the Project is attendant to the business of Tenant.
ARTICLE 14
INSURANCE
(a) TENANT'S INSURANCE. Tenant shall, at all times during the Term
of this Lease, and at its own cost and expense, procure and
continue in force the following insurance coverage: (i)
Commercial General Liability Insurance with a combined single
limit for bodily injury and property damages of not less than
Two Million Dollars ($2,000,000) per occurrence and Three
Million Dollars ($3,000,000) in the annual aggregate,
including products liability coverage if applicable, covering
the insuring provisions of this Lease and the performance of
Tenant of the indemnity and exemption of Landlord from
liability agreements set forth in Article 13 hereof; (ii) a
policy of standard fire, extended coverage and special
extended coverage insurance (all risks), including a vandalism
and malicious mischief endorsement, sprinkler leakage coverage
and earthquake sprinkler leakage where sprinklers are provided
in an amount equal to the full replacement value new without
deduction for depreciation of all (A) Tenant Improvements,
Alterations, fixtures and other improvements in the Premises
and (B) trade fixtures, furniture, equipment and other
personal property installed by or at the expense of Tenant;
(iii) Worker's Compensation coverage as required by law; and
(iv) business interruption, loss of income and extra expense
insurance covering failure of Tenant's telecommunications
equipment and covering all other perils, failures or
interruptions. Tenant shall carry and maintain during the
entire Lease Term (including any option periods, if
applicable), at Tenant's sole cost and expense, increased
amounts of the insurance required to be carried by Tenant
pursuant to this Article 14 and such other reasonable types of
insurance coverage and in such reasonable amounts covering
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the Premises and Tenant's operations therein, as may be
reasonably required by Landlord.
(b) FORM OF POLICIES. The aforementioned minimum limits of
policies and Tenant's procurement and maintenance thereof
shall in no event limit the liability of Tenant hereunder. The
Commercial General Liability Insurance policy shall name
Landlord, Landlord's property manager, Landlord's lender(s)
and such other persons or firms as Landlord specifies from
time to time, as additional insureds with an appropriate
endorsement to the policy(s). All such insurance policies
carried by Tenant shall be with companies having a rating of
not less than A-VIII in Best's Insurance Guide. Tenant shall
furnish to Landlord, from the insurance companies, or cause
the insurance companies to furnish, certificates of coverage.
No such policy shall be cancelable or subject to reduction of
coverage or other modification or cancellation except after
thirty (30) days' prior written notice to Landlord by the
insurer. All such policies shall be endorsed to agree that
Tenant's policy is primary and that any insurance covered by
Landlord is excess and not contributing with any Tenant
insurance requirement hereunder. Tenant shall, at least twenty
(20) days prior to the expiration of such policies, furnish
Landlord with renewals or binders. Tenant agrees that if
Tenant does not take out and maintain such insurance or
furnish Landlord with renewals or binders, Landlord may (but
shall not be required to) procure said insurance on Tenant's
behalf and charge Tenant the cost thereof, which amount shall
be payable by Tenant upon demand with interest (at the rate
set forth in Article 20(e) below) from the date such sums are
extended. Tenant shall have the right to provide such
insurance coverage pursuant to blanket policies obtained by
Tenant, provided such blanket policies expressly afford
coverage to the Premises and to Tenant as required by this
Lease.
(c) LANDLORD'S INSURANCE. Landlord shall, as a cost to be included
in Operating Costs, procure and maintain at all times during
the Term of this Lease, a policy or policies of insurance
covering loss or damage to the Project in the amount of the
full replacement costs without deduction for depreciation
thereof (exclusive of Tenant's trade fixtures, inventory,
personal property and equipment), providing protection against
all perils included within the classification of fire and
extended coverage, vandalism coverage and malicious mischief,
sprinkler leakage, water damage, and special extended coverage
on building. Additionally, Landlord may (but shall not be
required to) carry: (i) Bodily Injury and Property Damage
Liability Insurance and/or Excess Liability Coverage
Insurance; and (ii) Earthquake and/or Flood Damage Insurance;
and (iii) Rental Income Insurance at its election or if
required by its lender from time to time during the Term
hereof, in such amounts and with such limits as Landlord or
its lender may deem appropriate. The costs of such insurance
shall be included in Operating Costs.
(d) WAIVER OF SUBROGATION. Tenant hereby agrees to have its
insurers issuing the insurance described in Articles 14(a)(ii)
and 14(a)(iv) waive any rights of subrogation that such
companies may have against Landlord. Tenant hereby waives any
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right that Tenant may have against Landlord as a result of any
loss or damage to the extent such loss or damage is insurable
under such policies.
(e) COMPLIANCE WITH LAW. Tenant agrees that it will not, at any
time, during the Term of this Lease, carry any stock of goods
or do anything in or about the Premises that will in any way
tend to increase the insurance rates upon the Project. Tenant
agrees to pay Landlord immediately upon demand the amount of
any increase in premiums for insurance against loss by fire
that may be charged during the Term of this Lease on the
amount of insurance to be carried by Landlord on the Project
resulting from the foregoing, or from Tenant doing any act in
or about said Premises that does so increase the insurance
rates, whether or not Landlord shall have consented to such
act on the part of Tenant. If Tenant installs upon the
Premises any electrical equipment which constitutes an
overload of electrical lines of the Premises, Tenant shall at
its own cost and expense in accordance with all other Lease
provisions, and subject to the provisions of Articles 9, 10
and 11, hereof, make whatever changes are necessary to comply
with requirements of the insurance underwriters and any
governmental authority having jurisdiction thereover, but
nothing herein contained shall be deemed to constitute
Landlord's consent to such overloading. Tenant shall, at its
own expense, comply with all requirements of the insurance
authority having jurisdiction over the Project necessary for
the maintenance of reasonable fire and extended coverage
insurance for the Premises, including without limitation
thereto, the installation of fire extinguishers or an
automatic dry chemical extinguishing system.
ARTICLE 15
ASSIGNMENT AND SUBLETTING
Tenant shall have no power to, either voluntarily,
involuntarily, by operation of law or otherwise, sell, assign, transfer or
hypothecate this Lease, or sublet the Premises or any part thereof, or permit
the Premises or any part thereof to be used or occupied by anyone other than
Tenant or Tenant's employees without the prior written consent of Landlord which
shall not be unreasonably delayed, conditioned or withheld. If Tenant is a
corporation, unincorporated association, partnership or limited liability
company, the sale, assignment, transfer or hypothecation of any class of stock
or other ownership interest in such corporation, association, partnership or
limited liability company in excess of forty-nine percent (49%) in the aggregate
shall be deemed an assignment within the meaning and provisions of this Article
15. Tenant may transfer its interest pursuant to this Lease only upon the
following express conditions, which conditions are agreed by Landlord and Tenant
to be reasonable:
(a) That the proposed transferee shall be subject to the prior
written consent of Landlord, which consent will not be
unreasonably delayed, conditioned or withheld but, without
limiting the generality of the foregoing, it shall be
reasonable for Landlord to deny such consent if:
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(i) The use to be made of the Premises by the proposed
transferee is (a) not generally consistent with the
character and nature of all other tenancies in the
Project, or (b) a use which conflicts with any
so-called "exclusive" then in favor of, or for any
use which is the same as that stated in any
percentage rent lease to, another tenant of the
Project or any other buildings which are in the same
complex as the Project, or (c) a use which would be
prohibited by any other portion of this Lease
(including, but not limited to, any Rules and
Regulations then in effect);
(ii) The financial responsibility of the proposed
transferee relative to Tenant is not reasonably
satisfactory to Landlord or in any event not at least
equal to those which were possessed by Tenant as of
the date of execution of this Lease;
(iii) The proposed transferee is either a governmental
agency or instrumentality thereof; or
(iv) Either the proposed transferee or any person or
entity which directly or indirectly controls, is
controlled by or is under common control with the
proposed transferee (A) occupies space in the Project
at the time of the request for consent, or (B) is
negotiating with Landlord or has negotiated with
Landlord during the six (6) month period immediately
preceding the date of the proposed transfer, to lease
space in the Project.
(b) Whether or not Landlord consents to any such transfer, Tenant
shall pay to Landlord Landlord's then standard processing fee
and reasonable attorneys' fees incurred in connection with the
proposed transfer in an amount not to exceed the aggregate sum
of $2,500.00;
(c) That the proposed transferee shall execute an agreement
pursuant to which it shall agree to perform faithfully and be
bound by all of the terms, covenants, conditions, provisions
and agreements of this Lease applicable to that portion of the
Premises so transferred; and
(d) That an executed duplicate original of said assignment and
assumption agreement or other transfer on a form reasonably
approved by Landlord, shall be delivered to Landlord within
five (5) days after the execution thereof, and that such
transfer shall not be binding upon Landlord until the delivery
thereof to Landlord and the execution and delivery of
Landlord's consent thereto. It shall be a condition to
Landlord's consent to any subleasing, assignment or other
transfer of part or all of Tenant's interest in the Premises
(hereinafter referred to as a "TRANSFER") that (i) upon
Landlord's consent to any Transfer, Tenant shall pay and
continue to pay fifty percent (50%) of any "Transfer Premium"
(defined below), received by Tenant from the transferee; (ii)
any sublessee of part or all of Tenant's interest in the
Premises shall agree that in the event Landlord gives such
sublessee notice that Tenant is in default under this
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Lease, such sublessee shall thereafter make all sublease or
other payments directly to Landlord, which will be received by
Landlord without any liability whether to honor the sublease
or otherwise (except to credit such payments against sums due
under this Lease), and any sublessee shall agree to attorn to
Landlord or its successors and assigns at their request should
this Lease be terminated for any reason, except that in no
event shall Landlord or its successors or assigns be obligated
to accept such attornment; (iii) any such Transfer and consent
shall be effected on forms supplied by Landlord and/or its
legal counsel; (iv) Landlord may require that Tenant not then
be in default hereunder in any respect; and (v) Tenant or the
proposed subtenant or assignee (collectively, "TRANSFEREE")
shall agree to pay Landlord, upon demand, as additional rent,
a sum equal to the additional costs, if any, incurred by
Landlord for maintenance and repair as a result of any change
in the nature of occupancy caused by such subletting or
assignment. "TRANSFER PREMIUM" shall mean all rent, additional
rent or other consideration payable by a Transferee in
connection with a Transfer in excess of the rent and
Additional Rent payable by Tenant under this Lease during the
term of the Transfer and if such Transfer is less than all of
the Premises, the Transfer Premium shall be calculated on a
rentable square foot basis. "Transfer Premium" shall also
include, but not be limited to, key money, bonus money or
other cash consideration paid by a transferee to Tenant in
connection with such Transfer, and any payment in excess of
fair market value for services rendered by Tenant, to the
Transferee and any payment in excess of fair market value for
assets, fixtures, inventory, equipment, or furniture
transferred by Tenant to the Transferee in connection with
such Transfer. Any sale assignment, hypothecation, transfer or
subletting of this Lease which is not in compliance with the
provisions of this Article 15 shall be void and shall, at the
option of Landlord, terminate this Lease. In no event shall
the consent by Landlord to an assignment or subletting be
construed as relieving Tenant, any assignee, or sublessee from
obtaining the express written consent of Landlord to any
further assignment or subletting, or as releasing Tenant from
any liability or obligation hereunder whether or not then
accrued and Tenant shall continue to be fully liable therefor.
No collection or acceptance of rent by Landlord from any
person other than Tenant shall be deemed a waiver of any
provision of this Article 15 or the acceptance of any assignee
or subtenant hereunder, or a release of Tenant (or of any
successor of Tenant or any subtenant). Notwithstanding
anything to the contrary in this Lease, if Tenant or any
proposed Transferee claims that Landlord has unreasonably
withheld or delayed its consent under this Article 15 or
otherwise has breached or acted unreasonably under this
Article 15, their sole remedies shall be a declaratory
judgment and an injunction for the relief sought without any
monetary damages, and Tenant hereby waives all other remedies,
including, without limitation, any right at law or equity to
terminate this Lease, on its own behalf and, to the extent
permitted under all applicable laws, on behalf of the proposed
Transferee. Notwithstanding anything to the contrary contained
in this Article 15, Landlord agrees that it shall grant its
approval of a Transfer by Tenant resulting from a stock
offering to Xxxxxx Xxxxxxxxxx or an affiliate, so long as
Tenant reasonably demonstrates to Landlord that: (x) the
financial condition of the proposed transferee relative to
Tenant is at least equal to the financial condition of Tenant
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as of the date of execution of this Lease; and (y) Tenant
retains control of the entity comprising "Tenant".
ARTICLE 16
DAMAGE OR DESTRUCTION
If the Project is damaged by fire or other insured casualty
and the insurance proceeds have been made available therefor by the holder or
holders of any mortgages or deeds of trust covering the Premises or the Project,
the damage shall be repaired by Landlord to the extent such insurance proceeds
are available therefor and provided such repairs can, in Landlord's sole
opinion, be completed within two hundred seventy (270) days after the necessity
for repairs as a result of such damage becomes known to Landlord without the
payment of overtime or other premiums, and until such repairs are completed rent
shall be abated in proportion to the part of the Premises which is unusable by
Tenant in the conduct of its business (but there shall be no abatement of rent
by reason of any portion of the Premises being unusable for a period equal to
one (1) day or less). However, if the damage is due to the fault or neglect of
Tenant, its employees, agents, contractors, guests, invitees and the like, there
shall be no abatement of rent, unless and to the extent Landlord receives rental
income insurance proceeds. Upon the occurrence of any damage to the Premises,
Tenant shall assign to Landlord (or to any party designated by Landlord) all
insurance proceeds payable to Tenant under Article 14(a)(ii)(A) above; PROVIDED,
HOWEVER, that if the cost of repair of improvements within the Premises by
Landlord exceeds the amount of insurance proceeds received by Landlord from
Tenant's insurance carrier, as so assigned by Tenant, such excess costs shall be
paid by Tenant to Landlord prior to Landlord's repair of such damage. If repairs
cannot, in Landlord's opinion, be completed within two hundred seventy (270)
days after the necessity for repairs as a result of such damage becomes known to
Landlord without the payment of overtime or other premiums, Landlord may, at its
option, either (i) make them in a reasonable time and in such event this Lease
shall continue in effect and the rent shall be abated, if at all, in the manner
provided in this Article 16, or (ii) elect not to effect such repairs and
instead terminate this Lease, by notifying Tenant in writing of such termination
within sixty (60) days after Landlord learns of the necessity for repairs as a
result of damage, such notice to include a termination date giving Tenant sixty
(60) days to vacate the Premises. In addition, Landlord may elect to terminate
this Lease if the Project shall be damaged by fire or other casualty or cause,
whether or not the Premises are affected, and the damage is not fully covered,
except for deductible amounts, by Landlord's insurance policies. Finally, if the
Premises or the Project is damaged to any substantial extent during the last
twelve (12) months of the Term, then notwithstanding anything contained in this
Article 16 to the contrary, Landlord shall have the option to terminate this
Lease by giving written notice to Tenant of the exercise of such option within
sixty (60) days after Landlord learns of the necessity for repairs as the
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result of such damage. A total destruction of the Project shall automatically
terminate this Lease. Except as provided in this Article 16, there shall be no
abatement of rent and no liability of Landlord by reason of any injury to or
interference with Tenant's business or property arising from such damage or
destruction or the making of any repairs, alterations or improvements in or to
any portion of the Project or the Premises or in or to fixtures, appurtenances
and equipment therein. Tenant understands that Landlord will not carry insurance
of any kind on Tenant's furniture, furnishings, trade fixtures or equipment, and
that Landlord shall not be obligated to repair any damage thereto or replace the
same. Except for proceeds relating to Tenant's furniture, furnishings, trade
fixtures and equipment, Tenant acknowledges that Tenant shall have no right to
any proceeds of insurance relating to property damage. With respect to any
damage which Landlord is obligated to repair or elects to repair, Tenant, as a
material inducement to Landlord entering into this Lease, irrevocably waives and
releases its rights under the provisions of Sections 1932 and 1933 of the
California Civil Code.
ARTICLE 17
SUBORDINATION
This Lease is subject and subordinate to all ground or
underlying leases, mortgages and deeds of trust which affect the property or the
Project, including all renewals, modifications, consolidations, replacements and
extensions thereof; PROVIDED, HOWEVER, if the lessor under any such lease or the
holder or holders of any such mortgage or deed of trust shall advise Landlord
that they desire or require this Lease to be prior and superior thereto, upon
written request of Landlord to Tenant, Tenant agrees to promptly execute,
acknowledge and deliver any and all documents or instruments which Landlord or
such lessor, holder or holders deem necessary or desirable for purposes thereof.
Landlord shall have the right to cause this Lease to be and become and remain
subject and subordinate to any and all ground or underlying leases, mortgages or
deeds of trust which may hereafter be executed covering the Premises, the
Project or the property or any renewals, modifications, consolidations,
replacements or extensions thereof, for the full amount of all advances made or
to be made thereunder and without regard to the time or character of such
advances, together with interest thereon and subject to all the terms and
provisions thereof; PROVIDED, HOWEVER, that Landlord obtains from the lender or
other party in question a written undertaking in favor of Tenant to the effect
that such lender or other party will not disturb Tenant's right of possession
under this Lease if Tenant is not then or thereafter in breach of any covenant
or provision of this Lease. Tenant agrees, within ten (10) days after Landlord's
written request therefor, to execute, acknowledge and deliver upon request any
and all documents or instruments requested by Landlord or necessary or proper to
assure the subordination of this Lease to any such mortgages, deeds of trust, or
leasehold estates. Tenant agrees that in the event any proceedings are brought
for the foreclosure of any mortgage or deed of trust or any deed in lieu
thereof, to attorn to the purchaser or any successors thereto upon any such
foreclosure sale or deed in lieu thereof as so requested to do so by such
purchaser and to recognize such purchaser
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as the lessor under this Lease; Tenant shall, within five (5) days after request
execute such further instruments or assurances as such purchaser may reasonably
deem necessary to evidence or confirm such attornment. Tenant agrees to provide
copies of any notices of Landlord's default under this Lease to any mortgagee or
deed of trust beneficiary whose address has been provided to Tenant and Tenant
shall provide such mortgagee or deed of trust beneficiary a commercially
reasonable time after receipt of such notice within which to cure any such
default. Tenant waives the provisions of any current or future statute, rule or
law which may give or purport to give Tenant any right or election to terminate
or otherwise adversely affect this Lease and the obligations of the Tenant
hereunder in the event of any foreclosure proceeding or sale.
ARTICLE 18
EMINENT DOMAIN
If the whole of the Premises or the Project or so much thereof
as to render the balance unusable by Tenant shall be taken under power of
eminent domain, or is sold, transferred or conveyed in lieu thereof, this Lease
shall automatically terminate as of the date of such condemnation, or as of the
date possession is taken by the condemning authority, at Landlord's option. No
award for any partial or entire taking shall be apportioned, and Tenant hereby
assigns to Landlord any award which may be made in such taking or condemnation,
together with any and all rights of Tenant now or hereafter arising in or to the
same or any part thereof; PROVIDED, HOWEVER, that nothing contained herein shall
be deemed to give Landlord any interest in or to require Tenant to assign to
Landlord any award made to Tenant for the taking of personal property and trade
fixtures belonging to Tenant and removable by Tenant at the expiration of the
Term hereof as provided hereunder or for the interruption of, or damage to,
Tenant's business. In the event of a partial taking described in this Article
18, or a sale, transfer or conveyance in lieu thereof, which does not result in
a termination of this Lease, the rent shall be apportioned according to the
ratio that the part of the Premises remaining useable by Tenant bears to the
total area of the Premises. Tenant hereby waives any and all rights it might
otherwise have pursuant to Section 1265.130 of the California Code of Civil
Procedure.
ARTICLE 19
DEFAULT
Each of the following acts or omissions of Tenant or of any
guarantor of Tenant's performance hereunder, or occurrences, shall constitute an
"EVENT OF DEFAULT":
(a) Failure or refusal to pay Basic Rental, Additional Rent or any
other amount to be paid by Tenant to Landlord hereunder within
three (3) calendar days after notice that the same is due or
payable hereunder; said three (3) day period shall be in lieu
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of, and not in addition to, the notice requirements of Section
1161 of the California Code of Civil Procedure or any similar
or successor law;
(b) Except as set forth in items (a) above and (c) through and
including (g) below, failure to perform or observe any other
covenant or condition of this Lease to be performed or
observed within thirty (30) days following written notice to
Tenant of such failure. Such thirty (30) day notice shall be
in lieu of, and not in addition to, any required under Section
1161 of the California Code of Civil Procedure or any similar
or successor law;
(c) Abandonment or vacating or failure to accept tender of
possession of the Premises or any significant portion thereof;
(d) The taking in execution or by similar process or law (other
than by eminent domain) of the estate hereby created;
(e) The filing by Tenant or any guarantor hereunder in any court
pursuant to any statute of a petition in bankruptcy or
insolvency or for reorganization or arrangement for the
appointment of a receiver of all or a portion of Tenant's
property; the filing against Tenant or any guarantor hereunder
of any such petition, or the commencement of a proceeding for
the appointment of a trustee, receiver or liquidator for
Tenant, or for any guarantor hereunder, or of any of the
property of either, or a proceeding by any governmental
authority for the dissolution or liquidation of Tenant or any
guarantor hereunder, if such proceeding shall not be dismissed
or trusteeship discontinued within thirty (30) days after
commencement of such proceeding or the appointment of such
trustee or receiver; or the making by Tenant or any guarantor
hereunder of an assignment for the benefit of creditors.
Tenant hereby stipulates to the lifting of the automatic stay
in effect and relief from such stay for Landlord in the event
Tenant files a petition under the United States Bankruptcy
laws, for the purpose of Landlord pursuing its rights and
remedies against Tenant and/or a guarantor of this Lease;
(f) Tenant's failure to cause to be released any mechanics' liens
filed against the Premises or the Project within twenty (20)
days after the date the same shall have been filed or
recorded; or
(g) Tenant's failure to observe or perform according to the
provisions of Article 17 or 25 within two (2) business days
after notice from Landlord.
All defaults by Tenant of any covenant or condition of this
Lease shall be deemed by the parties hereto to be material.
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ARTICLE 20
REMEDIES
(a) Upon the occurrence of an Event of Default under this Lease as
provided in Article 19 hereof, Landlord may exercise all of
its remedies as may be permitted by law, including but not
limited to the remedy provided by Section 1951.4 of the
California Civil Code, and including without limitation,
terminating this Lease, reentering the Premises and removing
all persons and property therefrom, which property may be
stored by Landlord at a warehouse or elsewhere at the risk,
expense and for the account of Tenant. If Landlord elects to
terminate this Lease, Landlord shall be entitled to recover
from Tenant the aggregate of all amounts permitted by law,
including but not limited to (i) the worth at the time of
award of the amount of any unpaid rent which had been earned
at the time of such termination; plus (ii) the worth at the
time of award of the amount by which the unpaid rent which
would have been earned after termination until the time of
award exceeds the amount of such rental loss that Tenant
proves could have been reasonably avoided; plus (iii) the
worth at the time of award of the amount by which the unpaid
rent for the balance of the Lease Term after the time of award
exceeds the amount of such rental loss that Tenant proves
could have been reasonably avoided; plus (iv) any other amount
necessary to compensate Landlord for all the detriment
proximately caused by Tenant's failure to perform its
obligations under this Lease or which in the ordinary course
of things would be likely to result therefrom, specifically
including but not limited to, brokerage commissions and
advertising expenses incurred, expenses of remodeling the
Premises or any portion thereof for a new tenant, whether for
the same or a different use, and any special concessions made
to obtain a new tenant; and (v) at Landlord's election, such
other amounts in addition to or in lieu of the foregoing as
may be permitted from time to time by applicable law. The term
"rent" as used in this Article 20(a) shall be deemed to be and
to mean all sums of every nature required to be paid by Tenant
pursuant to the terms of this Lease to Landlord. As used in
items (i) and (ii), above, the "worth at the time of award"
shall be computed by allowing interest at the rate set forth
in item (e), below, but in no case greater than the maximum
amount of such interest permitted by law. As used in item
(iii), above, the "worth at the time of award" shall be
computed by discounting such amount at the discount rate of
the Federal Reserve Bank of San Francisco at the time of award
plus one percent (1%).
(b) Nothing in this Article 20 shall be deemed to affect
Landlord's right to indemnification for liability or
liabilities arising prior to the termination of this Lease for
personal injuries or property damage under the indemnification
clause or clauses contained in this Lease.
(c) Notwithstanding anything to the contrary set forth herein,
Landlord's re-entry to perform acts of maintenance or
preservation of or in connection with efforts to relet the
Premises or any portion thereof, or the appointment of a
receiver upon Landlord's initiative to protect Landlord's
interest under this Lease shall not
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(d) All rights, powers and remedies of Landlord hereunder and
under any other agreement now or hereafter in force between
Landlord and Tenant shall be cumulative and not alternative
and shall be in addition to all rights, powers and remedies
given to Landlord by law, and the exercise of one or more
rights or remedies shall not impair Landlord's right to
exercise any other right or remedy.
(e) Any amount due from Tenant to Landlord hereunder which is not
paid when due shall bear interest at the lower of twelve
percent (12%) per annum or the maximum lawful rate of interest
from the due date until paid, unless otherwise specifically
provided herein, but the payment of such interest shall not
excuse or cure any default by Tenant under this Lease. In
addition to such interest: (i) if Basic Rental is not paid
within ten (10) days after the same is due, a late charge
equal to five percent (5%) of the amount overdue or $100,
whichever is greater, shall be assessed and shall accrue for
each calendar month or part thereof until such rental,
including the late charge, is paid in full, which late charge
Tenant hereby agrees is a reasonable estimate of the damages
Landlord shall suffer as a result of Tenant's late payment and
(ii) an additional charge of $25 shall be assessed for any
check given to Landlord by or on behalf of Tenant which is not
honored by the drawee thereof; which damages include
Landlord's additional administrative and other costs
associated with such late payment and unsatisfied checks and
the parties agree that it would be impracticable or extremely
difficult to fix Landlord's actual damage in such event. Such
charges for interest and late payments and unsatisfied checks
are separate and cumulative and are in addition to and shall
not diminish or represent a substitute for any or all of
Landlord's rights or remedies under any other provision of
this Lease.
ARTICLE 21
TRANSFER OF LANDLORD'S INTEREST
In the event of any transfer or termination of Landlord's
interest in the Premises or the Project by sale, assignment, transfer,
foreclosure, deed-in-lieu of foreclosure or otherwise, whether voluntary or
involuntary, Landlord shall be automatically relieved of any and all obligations
and liabilities on the part of Landlord from and after the date of such transfer
or termination, including furthermore without
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limitation, the obligation of Landlord under Article 4 and California Civil Code
1950.7, above, to return the security deposit, provided said security deposit is
transferred to said transferee and that said transferee agrees to be bound by
the terms of this Lease. Tenant agrees to attorn to the transferee upon any such
transfer and to recognize such transferee as the lessor under this Lease and
Tenant shall, within five (5) days after request, execute such further
instruments or assurances as such transferee may reasonably deem necessary to
evidence or confirm such attornment.
ARTICLE 22
BROKER
In connection with this Lease, Tenant Warrants and represents
that it has had dealings only with firm(s) set forth in Article 1.H of the Basic
Lease Provisions and that it knows of no other person or entity who is or might
be entitled to a commission, finder's fee or other like payment in connection
herewith and does hereby indemnify and agree to hold Landlord, its agents,
members, partners, representatives, officers, affiliates, shareholders,
employees, successors and assigns harmless from and against any and all loss,
liability and expenses that Landlord may incur should such warranty and
representation prove incorrect, inaccurate or false.
ARTICLE 23
PARKING
Tenant shall rent from Landlord, commencing on the
Commencement Date, the number of unreserved parking passes set forth in Article
1.I of the Basic Lease Provisions, which parking passes shall pertain to the
Project parking facility. Tenant shall pay to Landlord for automobile parking
passes the prevailing rate charged from time to time at the location of such
parking passes. Landlord's prevailing rate as of the Effective Date is $100.00
per unreserved space and $150.00 per reserved space, subject to change in
accordance with this Article. In addition, Tenant shall be responsible for the
full amount of any taxes imposed by any governmental authority in connection
with the renting of such parking passes by Tenant or the use of the parking
facility by Tenant. Tenant's continued right to use the parking passes is
conditioned upon Tenant abiding by all rules and regulations which are
prescribed from time to time for the orderly operation and use of the parking
facility where the parking passes are located, including any sticker or other
identification system established by Landlord, Tenant's cooperation in seeing
that Tenant's employees and visitors also comply with such rules and
regulations, and Tenant not being in default under this Lease. Landlord
specifically reserves the right to change the size, configuration, design,
layout and all other aspects of the Project parking facility at any time, and
Tenant acknowledges and agrees that Landlord may, without incurring any
liability to Tenant and without any abatement of rent under this Lease, from
time to time, close-off or restrict access to the Project parking facility for
purposes of permitting or facilitating any such construction, alteration or
improvements. Landlord
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may delegate its responsibilities hereunder to a parking operator or a lessee of
the parking facility in which case such parking operator or lessee shall have
all the rights of control attributed hereby to the Landlord. Landlord reserves
the right to require that parking be valet or attended, requiring parkers to
leave keys with parking management personnel, at Landlord's election. The
parking passes rented by Tenant pursuant to this Article 23 are provided to
Tenant solely for use by Tenant's own personnel and such passes may not be
transferred, assigned, subleased or otherwise alienated by Tenant without
Landlord's prior approval. Tenant may validate visitor parking by such method or
methods as the Landlord may establish, at the validation rate from time to time
generally applicable to visitor parking.
ARTICLE 24
WAIVER
No waiver by Landlord of any provision of this Lease shall be
deemed to be a waiver of any other provision hereof or of any subsequent breach
by Tenant of the same or any other provision. No provision of this Lease may be
waived by Landlord, except by an instrument in writing executed by Landlord.
Landlord's consent to or approval of any act by Tenant requiring Landlord's
consent or approval shall not be deemed to render unnecessary the obtaining of
Landlord's consent to or approval of any subsequent act of Tenant, whether or
not similar to the act so consented to or approved. No act or thing done by
Landlord or Landlord's agents during the Term of this Lease shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept such
surrender shall be valid unless in writing and signed by Landlord. Any payment
by Tenant or receipt by Landlord of an amount less than the total amount then
due hereunder shall be deemed to be in partial payment only thereof and not a
waiver of the balance due or an accord and satisfaction, notwithstanding any
statement or endorsement to the contrary on any check or any other instrument
delivered concurrently therewith or in reference thereto. Accordingly, Landlord
may accept any such amount and negotiate any such check without prejudice to
Landlord's right to recover all balances due and owing and to pursue its other
rights against Tenant under this Lease, regardless of whether Landlord makes any
notation on such instrument of payment or otherwise notifies Tenant that such
acceptance or negotiation is without prejudice to Landlord's rights.
ARTICLE 25
ESTOPPEL CERTIFICATE
Tenant shall, at any time and from time to time, upon not less
than ten (10) days' prior written notice from Landlord, execute, acknowledge and
deliver to Landlord a statement in writing certifying the following information,
(but not limited to the following information in the event further information
is requested by Landlord): (i) that this Lease is unmodified and in full force
and effect (or, if modified, stating the nature of such modification and
certifying that this Lease, as modified, is in full force and
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effect); (ii) the dates to which the rental and other charges are paid in
advance, if any; (iii) the amount of Tenant's security deposit, if any; and (iv)
acknowledging that there are not, to Tenant's knowledge, any uncured defaults on
the part of Landlord hereunder, and no events or conditions then in existence
which, with the passage of time or notice or both, would constitute a default on
the part of Landlord hereunder, or specifying such defaults, events or
conditions, if any are claimed. It is expressly understood and agreed that any
such statement may be relied upon by any prospective purchaser or encumbrancer
of all or any portion of the Real Property. Tenant's failure to deliver such
statement within such time shall constitute an admission by Tenant that all
statements contained therein are true and correct. Tenant agrees to execute all
documents required in accordance with this Article 25 within ten (10) days after
delivery of said documents. Tenant hereby irrevocably appoints Landlord as
Tenant's attorney-in-fact and in Tenant's name, place and stead to execute any
and all documents described in this Article 25 if Tenant fails to do so within
the specified time period.
ARTICLE 26
LIABILITY OF LANDLORD
Notwithstanding anything in this Lease to the contrary, any
remedy of Tenant for the collection of a judgment (or other judicial process)
requiring the payment of money by Landlord in the event of any default by
Landlord hereunder or any claim, cause of action or obligation, contractual,
statutory or otherwise by Tenant against Landlord concerning, arising out of or
relating to any matter relating to this Lease and all of the covenants and
conditions or any obligations, contractual, statutory, or otherwise set forth
herein, shall be limited solely and exclusively to an amount which is equal to
the interest of Landlord in and to the Project. No other property or assets of
Landlord, or any member, officer, director, shareholder, partner, trustee,
agent, servant or employee of Landlord (the "REPRESENTATIVE") shall be subject
to levy, execution or other enforcement procedure for the satisfaction of
Tenant's remedies under or with respect to this Lease or Landlord's obligations
to Tenant, whether contractual, statutory or otherwise, the relationship of
Landlord and Tenant hereunder, or Tenant's use or occupancy of the Premises.
Tenant further understands that any liability, duty or obligation of Landlord to
Tenant shall automatically cease and terminate as of the date that Landlord or
any of Landlord's Representatives no longer have any right, title or interest in
or to the Project for any liabilities occurring from and after such date.
ARTICLE 27
INABILITY TO PERFORM
Except as otherwise provided hereafter, and except for the
obligation to make payments of any kind hereunder, each party shall be entitled
to an extension of the date of any performance required of such party under this
Lease in accordance with the terms of this Article 27; if the failure of the
party to duly perform was solely because of a
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Force Majeure Event (defined below); provided however, that a Force Majeure
Event shall not be recognized under this lease unless (1) the party seeking to
assert such an event gives written no e other party, which notice shall explain
in reasonable detail the nature of the Force Majeure Event, the obligations that
have been that have been affected by the Force Majeure Event, and how such Force
Majeure Event has impaired the performance of such obligations ("FORCE MAJEURE
EVENT NOTICE"), and (2) such Force Majeure Event actually and materially impairs
the due performance of such parties' obligations and continues for not less than
five consecutive business days. So long as Force Majeure Even Notice has been
delivered, the performance required by the notifying party shall be extended on
a day-to-day basis commencing on the date the Force Majeure Event first occurred
until such Force Majeure Event has terminated. In the event the Force Majeure
Event continues for more than sixty (60) business days, either party may, on the
giving of written notice to the other, terminate this Lease. "FORCE MAJEURE
EVENT" shall be an act of God, riot, war, civil unrest, flood, earthquake, or
other cause beyond a party's reasonable control (including, without limitation,
any mechanical, electronic, or communications failure, but excluding failure
caused by a party's financial condition or an act of negligence).
ARTICLE 28
HAZARDOUS WASTE
(a) Tenant shall not cause or permit any Hazardous Material (as
defined in Article 28(d), below) to be brought, kept or used
in or about the Project by Tenant, its agents, employees,
contractors, or invitees. Tenant indemnifies Landlord from and
against any breach by Tenant of the obligations stated in the
preceding sentence, and agrees to defend and hold Landlord
harmless from and against any and all claims, judgments,
damages, penalties, fines, costs, liabilities, or losses
(including, without limitation, diminution in value of the
Project, damages for the loss or restriction or use of
rentable or usable space or of any amenity of the Project,
damages arising from any adverse impact or marketing of space
in the Project, and sums paid in settlement of claims,
attorneys' fees, consultant fees, and expert fees) which arise
during or after the Term of this Lease as a result of such
breach. This indemnification of Landlord by Tenant includes,
without limitation, costs incurred in connection with any
investigation of site conditions or any cleanup, remedial,
removal, or restoration work required by any federal, state,
or local governmental agency or political subdivision because
of Hazardous Material present in the soil or ground water on
or under the Project. Without limiting the foregoing, if the
presence of any Hazardous Material on the Project caused or
permitted by Tenant results in any contamination of the
Project and subject to the provisions of Articles 9, 10 and 11
hereof, Tenant shall promptly take all actions at its sole
expense as are necessary to return the Project to the
condition existing prior to the introduction of any such
Hazardous Material, and the contractors to be used by Tenant
for such work must be approved by Landlord, which approval
shall not be unreasonably withheld so long as such actions
would not potentially have any material adverse long-term or
short-
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term effect on the Project and so long as such actions do not
materially interfere with the use and enjoyment of the Project
by the other tenants thereof.
(b) Landlord and Tenant acknowledge that Landlord may become
legally liable for the costs of complying with Laws (as
defined in Article 28(e), below) relating to Hazardous
Material which are not the responsibility of Landlord or the
responsibility of Tenant, including the following: (i)
Hazardous Material present in the soil or ground water on the
Project of which Landlord has no knowledge as of the Effective
Date of this Lease; (ii) a change in Laws which relate to
Hazardous Material which make that Hazardous Material which is
present on the Real Property as of the Effective Date of this
Lease, whether known or unknown to Landlord, a violation of
such new Laws; (iii) Hazardous Material that migrates, flows,
percolates, diffuses, or in any way moves on to, or under, the
Project after the Effective Date of this Lease; or (iv)
Hazardous Material present on or under the Project as a result
of any discharge, dumping or spilling (whether accidental or
otherwise) on the Project by other lessees of the Project or
their agents, employees, contractors, or invitees, or by
others. Accordingly, Landlord and Tenant agree that the cost
of complying with Laws relating to Hazardous Material on the
Project for which Landlord is legally liable and which are
paid or incurred by Landlord shall be an Operating Cost (and
Tenant shall pay Tenant's Proportionate Share thereof in
accordance with Article 3) unless the cost of such compliance
as between Landlord and Tenant is made the responsibility of
Tenant pursuant to Article 28(a), above. To the extent any
such Operating Cost relating to Hazardous Material is
subsequently recovered or reimbursed through insurance, or
recovery from responsible third parties or other action,
Tenant shall be entitled to a proportionate reimbursement to
the extent it has paid its share of such Operating Cost to
which such recovery or reimbursement relates.
(c) It shall not be unreasonable for Landlord to withhold its
consent to any proposed Transfer if (i) the proposed
Transferee's anticipated use of the Premises involves the
generation, storage, use, treatment, or disposal of Hazardous
Material; (ii) the proposed Transferee has been required by
any prior landlord, lender, or governmental authority to take
remedial action in connection with Hazardous Material
contaminating a property if the contamination resulted from
such Transferee's actions or use of the property in question;
or (iii) the proposed Transferee is subject to an enforcement
order issued by any governmental authority in connection with
the use, disposal, or storage of a Hazardous Material.
(d) As used herein, the term "HAZARDOUS MATERIAL" means any
hazardous or toxic substance, material, or waste which is or
becomes regulated by any local governmental authority, the
State of California or the United States Government. The term
"Hazardous Material" includes, without limitation, any
material or substance which is (i) defined as "Hazardous
Waste," "Extremely Hazardous Waste," or "Restricted Hazardous
Waste" under Section 25115, 25117 or 25122.7, or listed
pursuant to Section 25140, of the California Health and Safety
Code, Division 20, Chapter 6.5
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(Hazardous Waste Control Law), (ii) defined as a "Hazardous
Substance" under Section 25316 of the California Health and
Safety Code, Division 20, Chapter 6.8
(Xxxxxxxxx-Xxxxxxx-Xxxxxx Hazardous Substance Account Act),
(iii) defined as a "Hazardous Material," "Hazardous
Substance," or "Hazardous Waste" under Section 25501 of the
California Health and Safety Code, Division 20, Chapter 6.95
(Hazardous Materials Release Response Plans and Inventory),
(iv) defined as a "Hazardous Substance" under Section 25281 of
the California Health and Safety Code, Division 20, Chapter
6.7 (Underground Storage of Hazardous Substances), (v)
petroleum, (vi) asbestos, (vii) listed under Article 9 or
defined as Hazardous or extremely hazardous pursuant to
Article 11 of Title 22 of the California Administrative Code,
Division 4, Chapter 20, (viii) designated as a "Hazardous
Substance" pursuant to Section 311 of the Federal Water
Pollution Control Act (33 U.S.C. ss. 1317), (ix) defined as a
"Hazardous Waste" pursuant to Section 1004 of the Federal
Resource Conservation and Recovery Act, 42 U.S.C. ss. 6901 et
seq. (42 U.S.C. ss. 6903), or (x) defined as a "Hazardous
Substance" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, 42
U.S.C. ss. 9601 et seq. (42 U.S.C. ss. 9601).
(e) As used herein, the term "LAWS" means any applicable federal,
state or local laws, ordinances, or regulations relating to
any Hazardous Material affecting the Project, including,
without limitation, the laws, ordinances, and regulations
referred to in Article 28(d), above.
ARTICLE 29
SURRENDER OF PREMISES; REMOVAL OF PROPERTY
(a) The voluntary or other surrender of this Lease by Tenant to
Landlord, or a mutual termination hereof, shall not work a
merger, and shall at the option of Landlord, operate as an
assignment to it of any or all subleases or subtenancies
affecting the Premises.
(b) Upon the expiration of the Term of this Lease, or upon any
earlier termination of this Lease, Tenant shall quit and
surrender possession of the Premises to Landlord in as good
order and condition as the same are now and hereafter may be
improved by Landlord or Tenant, reasonable wear and tear and
repairs which are Landlord's obligation excepted, and shall,
without expense to Landlord, remove or cause to be removed
from the Premises all debris and rubbish, all furniture,
equipment, business and trade fixtures, free-standing cabinet
work, moveable partitioning and other articles of personal
property owned by Tenant or installed or placed by Tenant at
its own expense in the Premises, and all similar articles of
any other persons claiming under Tenant unless Landlord
exercises its option to have any subleases or subtenancies
assigned to it, and Tenant shall repair all damage to the
Premises resulting from the installation and removal of such
items to be removed.
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(c) Whenever Landlord shall reenter the Premises as provided in
Article 12 hereof, or as otherwise provided in this Lease, any
property of Tenant not removed by Tenant upon the expiration
of the Term of this Lease (or within forty-eight (48) hours
after a termination by reason of Tenant's default), as
provided in this Lease, shall be considered abandoned and
Landlord may remove any or all of such items and dispose of
the same in any manner or store the same in a public warehouse
or elsewhere for the account and at the expense and risk of
Tenant, and if Tenant shall fail to pay the cost of storing
any such property after it has been stored for a period of
ninety (90) days or more, Landlord may sell any or all of such
property at public or private sale, in such manner and at such
times and places as Landlord, in its sole discretion, may deem
proper, without notice or to demand upon Tenant, for the
payment of all or any part of such charges or the removal of
any such property, and shall apply the proceeds of such sale
as follows: first, to the cost and expense of such sale,
including reasonable attorneys' fees for services rendered;
second, to the payment of the cost of or charges for storing
any such property; third, to the payment of any other sums of
money which may then or thereafter be due to Landlord from
Tenant under any of the terms hereof; and fourth, the balance,
if any, to Tenant.
(d) All fixtures, equipment, Alterations and/or appurtenances
attached to or built into the Premises prior to or during the
Term, whether by Landlord or Tenant and whether at the expense
of Landlord or Tenant, or of both, shall be and remain part of
the Premises and shall not be removed by Tenant at the end of
the Term unless otherwise expressly provided for in this Lease
or unless such removal is required by Landlord pursuant to the
provisions of Article 9 above. Such fixtures, equipment,
Alterations, additions, improvements and/or appurtenances
shall include but not be limited to: all floor coverings,
drapes, paneling, built-in cabinetry, molding, doors, vaults
(including vault doors), plumbing systems, electrical systems,
lighting systems, silencing equipment, communication systems,
all fixtures and outlets for the systems mentioned above and
for all telephone, radio, telegraph and television purposes,
and any special flooring or ceiling installations.
ARTICLE 30
OPTION TO EXTEND
(a) If, at the end of the Term of this Lease, (a) Tenant is not in
default of any of the terms, conditions or covenants of this
Lease, beyond any applicable delivered notice and subsequent
cure period, and (b) Tenant has not assigned or sublet the
Premises in violation of Article 17, then Tenant shall have
the option to extend the Lease Term for one (1) additional
period of three (3) years (hereinafter referred to as the
"OPTION PERIOD") upon the same terms and conditions contained
in this Lease with the following exceptions:
(i) The Basic Rental for the Option Period shall be as
set forth in Article 30(c), below;
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(ii) There shall be no further extensions of the Lease
Term following the expiration of the Option Period
unless granted by Landlord in writing, in Landlord's
sole discretion; and
(iii) Tenant will not be granted any rental concessions,
rental abatement or finish-out allowances during any
Option Period.
(b) If Tenant desires to exercise its option to extend the Lease
Term (subject to Tenant's compliance with the standards set
forth herein), Tenant will notify Landlord in writing of
Tenant's intention to do so no later than nine (9) months and
no more than twelve (12) months prior to the expiration date
of the then current Lease Term. After proper and timely
exercise of the extension option by Tenant, all references in
this Lease to "Lease Term" of "Term" shall be considered to
mean the Lease Term as extended, and all references in this
Lease to the Expiration Date or to the end of the Lease Term
shall be considered to mean the termination or end of the
Option Period.
(c) The Basic Rental for the Option Period shall be the Fair
Market Rent (as defined hereinafter) for the Premises and
shall increase annually if so dictated by the then current
market; provided, however, that such Basic Rental shall in no
event be less than the Basic Rental in effect at the end of
the then-expiring Term. Tenant's exercise of the option to
extend shall, if Landlord so elects in its absolute discretion
be ineffective in the event that an Event of Default by Tenant
remains uncured at the time of exercise or at the commencement
of the Option Period. Tenant's option to extend the Term
described in this Article 30 is personal to Tenant and may not
be exercised by or on behalf of any assignee or subtenant.
(d) FAIR MARKET RENT. The provisions of this Section shall apply
in any instance in which this Lease provides that the Fair
Market Rent is to apply.
(i) FAIR MARKET RENT. "FAIR MARKET RENT" means the annual
amount per square foot (exclusive of occupancy costs)
that a willing tenant would pay and a willing
landlord would accept in arm's length negotiations,
without any additional inducements, for a lease of
the applicable space on the applicable terms and
conditions (including the Additional Rent terms) for
the applicable period of time. Fair Market Rent shall
be determined by considering the most recent new
leases (and market renewals and extensions, if
applicable) in the Project and in comparable office
buildings in the downtown Los Angeles area. If there
are no such leases that are recent, consideration
shall be given to the most recent new leases (and
market renewals and extensions, if applicable) in
other comparable office building locations near the
Project.
(ii) DETERMINATION BY LANDLORD. Landlord shall initially
determine the Fair Market Rent in each instance, and
shall give Tenant notice (the "MARKET RENT NOTICE")
of such determination and the basis on which such
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determination was made on or before the 60th day
prior to the date on which such determination is to
take effect, or as soon thereafter as is reasonably
practicable.
(iii) DISPUTES REGARDING FAIR MARKET RENT. In the event
that Tenant notifies Landlord in writing, on or
before the 10th business day following any Market
Rent Notice, that Tenant disagrees with the
applicable determination, Landlord and Tenant shall
negotiate in good faith to resolve such dispute
within 10 business days thereafter. If not resolved
within such period, the issue shall be referred to an
individual (the "EXPERT") reasonably agreed upon by
Landlord and Tenant or (failing such agreement)
appointed by two individuals, one of which such be
chosen by Landlord and one of which shall be chosen
by Tenant. The Expert shall in any event have at
least 5 years of experience in leasing office space
in downtown Los Angeles and shall be independent. The
Expert shall be deemed to be acting as an expert and
not as an arbitrator, and shall determine the
applicable Fair Market Rent within 30 days following
his or her appointment. The Fair Market Rent which
shall apply for purposes of the applicable provision
of this Lease shall be the rent determined by either
Landlord or Tenant which is closest to the Expert's
determination, and the party that is not closest
shall pay all of the costs and expenses incurred in
connection with the appointment of, and services of,
the Expert. Until any such dispute is resolved, any
applicable payments due under this Lease shall
correspond to Landlord's determination and, if
applicable, Landlord shall refund any overpayments to
Tenant, within thirty (30) business days following
the final resolution of the dispute.
(e) LANDLORD'S TERMINATION RIGHT. In the event that Tenant has
properly and timely exercised its option to extend the Term as
described in this Article 30, Landlord shall at any time
during the Option Period have the right to terminate the Lease
if Landlord has received governmental approvals for the
redevelopment of the Project. Such termination shall be
effective one hundred eighty (180) days after Landlord has
delivered written notice of its election to terminate to
Tenant, and so long as Tenant is not in default under this
Lease, Basic Rental for the final ninety (90) days of the
reduced Term shall be abated.
ARTICLE 31
MISCELLANEOUS
(a) SEVERABILITY; ENTIRE AGREEMENT. Any provision of this Lease
which shall prove to be invalid, void, or illegal shall in no
way affect, impair or invalidate any other provision hereof
and such other provisions shall remain in full force and
effect. This Lease and the Exhibits and any Addendum attached
hereto constitute the entire agreement between the parties
hereto with respect to the subject matter hereof, and no prior
agreement or understanding pertaining to any such matter shall
be effective for any purpose. No provision of this Lease may
be amended or supplemented except by an agreement in writing
signed by the parties hereto or their successor in interest.
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(b) ATTORNEYS' FEES; WAIVER OF JURY TRIAL.
(i) In any action to enforce the terms of this Lease,
including any suit by Landlord for the recovery of
rent or possession of the Premises, the losing party
shall pay the successful party a reasonable sum for
attorneys' fees in such suit and such attorneys' fees
shall be deemed to have accrued prior to the
commencement of such action and shall be paid whether
or not such action is prosecuted to judgment.
(ii) Should Landlord, without fault on Landlord's part, be
made a party to any litigation instituted by Tenant
or by any third party against Tenant, or by or
against any person holding under or using the
Premises by license of Tenant, or for the foreclosure
of any lieu for labor or material furnished to or for
Tenant or any such other person or otherwise arising
out of or resulting from any act or transaction of
Tenant or of any such other person. Tenant covenants
to save and hold Landlord harmless from any judgment
rendered against Landlord or the Premises or any part
thereof and from all costs and expenses, including
reasonable attorneys' fees incurred by Landlord in
connection with such litigation.
(iii) When legal services are rendered by an attorney at
law who is an employee of a party, attorneys' fees
incurred by that party shall be deemed to include an
amount based upon the number of hours spent by such
employee on such matters multiplied by an appropriate
billing rate determined by taking into consideration
the same factors, including but not limited by, the
importance of the matter, time applied, difficulty
and results, as are considered when an attorney not
in the employ of a party is engaged to render such
service.
(iv) EACH PARTY HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY
IN ANY ACTION SEEKING SPECIFIC PERFORMANCE OF ANY
PROVISION OF THIS LEASE, FOR DAMAGES FOR ANY BREACH
UNDER THIS LEASE, OR OTHERWISE FOR ENFORCEMENT OF
ANY RIGHT OR REMEDY HEREUNDER
(c) TIME OF ESSENCE. Each of Tenant's covenants herein is a
condition and time is of the essence with respect to the
performance of every provision of this Lease.
(d) HEADINGS; JOINT AND SEVERAL. The article headings contained in
this Lease are for convenience only and do not in any way
limit or amplify any term or provision hereof. The terms
"Landlord" and "Tenant" as used herein shall include the
plural as well as the singular, the neuter shall include the
masculine and feminine genders and the obligations herein
imposed upon Tenant shall be joint and several as to each of
the persons, firms or corporations of which Tenant may be
composed.
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(e) RESERVED AREA. Tenant hereby acknowledges and agrees that the
exterior walls of the Premises and the area between the
finished ceiling of the premises and the slab of the floor of
the project thereabove have not been demised hereby and the
use thereof together with the right to install, maintain, use,
repair and replace pipes, ducts, conduits and wires leading
through, under or above the Premises in locations which will
not materially interfere with Tenant's use of the Premises and
serving other parts of the Project are hereby excepted and
reserved unto Landlord.
(f) NO OPTION. THE SUBMISSION OF THIS LEASE BY LANDLORD, ITS AGENT
OR REPRESENTATIVE FOR EXAMINATION OR EXECUTION BY TENANT DOES
NOT CONSTITUTE AN OPTION OR OFFER TO LEASE THE PREMISES UPON
THE TERMS AND CONDITIONS CONTAINED HEREIN OR A RESERVATION OF
THE PREMISES IN FAVOR OF TENANT, IT BEING INTENDED HEREBY THAT
THIS LEASE SHALL ONLY BECOME EFFECTIVE UPON THE EXECUTION
HEREOF BY LANDLORD AND DELIVERY OF A FULLY EXECUTED LEASE TO
TENANT.
(g) USE OF PROJECT NAME; IMPROVEMENTS. Tenant shall not be allowed
to use the name, picture or representation of the Project, or
words to that effect, in connection with any business carried
on in the Premises or otherwise (except as Tenant's address)
without the prior written consent of Landlord. In the event
that Landlord undertakes any additional improvements on the
Real Property including, but not limited to, new construction
or renovation or additions to the existing improvements,
Landlord shall not be liable to Tenant for any noise, dust,
vibration or interference with access to the Premises or
disruption in Tenant's business caused thereby.
(h) RULES AND REGULATIONS. Tenant shall observe faithfully and
comply strictly with the Rules and Regulations attached to
this Lease as Exhibit "B" and made a part hereof, and such
other Rules and Regulations as Landlord may from time to time
reasonably adopt for the safety, care and cleanliness of the
Project, the facilities thereof, or the preservation of good
order therein. Landlord shall not be liable to Tenant for
violation of any such Rules and Regulations, or for the breach
of any covenant or condition in any lease by any other tenant
in the Project. A waiver by Landlord of any Rule or Regulation
for any other tenant shall not constitute nor be deemed a
waiver of the Rule or Regulation for this Tenant.
(i) QUIET POSSESSION. Upon Tenant's paying the Basic Rent,
Additional Rent and other sums provided hereunder and
observing and performing all of the covenants, conditions and
provisions on Tenant's part to be observed and performed
hereunder, Tenant shall have quiet possession of the Premises
for the entire Term hereof, subject to all of the provisions
of this Lease.
(j) RENT. All payments required to be made hereunder to Landlord
shall be deemed to be rent, whether or not described as such.
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(k) SUCCESSORS AND ASSIGNS. Subject to the provisions of Article
15 hereof, all of the covenants, conditions and provisions of
this Lease shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns.
(l) NOTICES. Any notice required or permitted to be given
hereunder shall be in writing and may be given by personal
service evidenced by a signed receipt or sent by registered or
certified mail, return receipt requested, addressed to Tenant
at the Premises or to Landlord at:
c/o Kor Realty Group, L.L.C.
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxx
or at the address from time to time established for the payment of rent
and which shall be effective upon proof of delivery. Either party may by notice
to the other specify a different address for notice purposes except that, upon
Tenant's taking possession of the Premises, the Premises shall constitute
Tenant's address for notice purposes. A copy of all notices to be given to
Landlord hereunder shall be concurrently transmitted by Tenant to such party
hereafter designated by notice from Landlord to Tenant. Any notices sent by
Landlord regarding or relating to eviction procedures, including without
limitation three-day notices, may be sent by regular mail. Until further written
notice from Landlord, Landlord's address for remittance of rent shall be:
c/o Kor Realty Group, L.L.C.
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Accounting - 0000 X. Xxxxxx Xxxxxx
(m) PERSISTENT DELINQUENCIES. In the event that Tenant shall be
delinquent by more than fifteen (15) days in the payment of
rent on three (3) separate occasions in any twelve (12) month
period, Landlord shall have the right to terminate this Lease
by thirty (30) days' written notice given by Landlord to
Tenant within thirty (30) days of the last such delinquency.
(n) RIGHT OF LANDLORD TO PERFORM. All covenants and agreements to
be performed by Tenant under any of the terms of this Lease
shall be performed by Tenant at Tenant's sole cost and expense
and without any abatement of rent. If Tenant shall fail to pay
any sum of money, other than rent, required to be paid by it
hereunder or shall fail to perform any other act on its part
to be performed hereunder, and such failure shall continue
beyond any applicable cure period set forth in this Lease,
Landlord may, but shall not be obligated to, without waiving
or releasing Tenant from any obligations of Tenant, make any
such payment or perform any such other act on Tenant's part to
be made or performed as is in this Lease provided. All sums so
paid by Landlord and all
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reasonable incidental costs, together with interest thereon at
the rate of ten percent (10%) per annum from the date of such
payment by Landlord, shall be payable to Landlord on demand
and Tenant covenants to pay any such sums, and Landlord shall
have (in addition to any other right or remedy of Landlord)
the same rights and remedies in the event of the nonpayment
thereof by Tenant as in the case of default by Tenant in the
payment of the rent.
(o) ACCESS, CHANGES IN PROJECT, FACILITIES, NAME.
(i) Every part of the Project except the inside surfaces
of all walls, windows and doors bounding the Premises
(including exterior building walls, core corridor
walls and doors and any core corridor entrance), and
any space in or adjacent to the Premises used for
shafts, stacks, pipes, conduits, fan rooms, ducts,
electric or other utilities, sinks or other building
facilities, and the use thereof, as well as access
thereto through the Premises for the purposes of
operation, maintenance, decoration and repair, are
reserved to Landlord.
(ii) Tenant shall permit Landlord to install, use and
maintain pipes, ducts and conduits within the walls,
columns and ceilings of the Premises.
(iii) Landlord reserves the right, without incurring any
liability to Tenant therefor, to make such changes in
or to the Project and the fixtures and equipment
thereof, as well as in or to the street entrances,
halls, passages, elevators, stairways and other
improvements thereof, as it may deem necessary or
desirable.
(iv) Landlord may adopt any name for the Project and
Landlord reserves the right to change the name or
address of the Project at any time.
(p) SIGNING AUTHORITY. If Tenant is a corporation, partnership or
limited liability company, each individual executing this
Lease on behalf of said entity represents and warrants that he
or she is duly authorized to execute and deliver this Lease on
behalf of said entity in accordance with: (i) if Tenant is a
corporation, a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the
by-laws of said corporation, (ii) if Tenant is a partnership,
the terms of the partnership agreement, and (iii) if Tenant is
a limited liability company, the terms of its operating
agreement, and that this Lease is binding upon said entity in
accordance with its terms. Concurrently with Tenant's
execution of this Lease, Tenant shall provide to Landlord a
copy of: (i) of Tenant is a corporation, such resolution of
the Board of Directors authorizing the execution of this Lease
on behalf of such corporation, which copy of resolution shall
be duly certified by the secretary or an assistant secretary
of the corporation and shall be in the form of Exhibit "E" or
in some other form reasonably acceptable to Landlord, (ii) if
Tenant is a partnership, a copy of the provisions of the
partnership agreement granting the requisite authority to each
individual executing this Lease on behalf of said
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partnership, and (iii) if Tenant is a limited liability
company, a copy of the provisions of its operating agreement
granting the requisite authority to each individual executing
this Lease on behalf of said limited liability company. In the
event Tenant fails to comply with the requirements set forth
in this subparagraph (p), then each individual executing this
Lease shall be personally liable for all of Tenant's
obligations in this Lease. (
q) IDENTIFICATION OF TENANT.
(i) If Tenant constitutes more than one person or entity,
(A) each of them shall be jointly and severally
liable for the keeping, observing and performing of
all of the terms, covenants, conditions and
provisions of this Lease to be kept, observed and
performed by Tenant, (B) the term "Tenant" as used in
this Lease shall mean and include each of them
jointly and severally, and (C) the act of or notice
from, or notice or refund to, or the signature of,
any one or more of them, with respect to the tenancy
of this Lease, including, but not limited to, any
renewal, extension, expiration, termination or
modification, of this Lease, shall be binding upon
each and all of the persons or entities executing
this Lease as Tenant with the same force and effect
as if each and all of them had so acted or so given
or received such notice or refund or so signed.
(ii) If Tenant is a partnership (or is comprised of two or
more persons, individually and as co-partners of a
partnership) or if Tenant's interest in this Lease
shall be assigned to a partnership (or to two or more
persons, individually and as co-partners of a
partnership) pursuant to Article 15 hereof (any such
partnership and such persons hereinafter referred to
in this Article 31(q)(ii) as "PARTNERSHIP TENANT"),
the following provisions of this Lease shall apply to
such Partnership Tenant:
(A) The liability of each of the parties
comprising Partnership Tenant shall be joint
and several.
(B) Each of the parties comprising Partnership
Tenant hereby consents in advance to, and
agrees to be bound by, any written
instrument which may hereafter be executed,
changing, modifying or discharging this
Lease, in whole or in part, or surrendering
all or any part of the Premises to the
Landlord, and by notices, demands, requests
or other communication which may hereafter
be given, by the individual or individuals
authorized to execute this Lease on behalf
of Partnership Tenant under Subparagraph (p)
above.
(C) Any bills, statements, notices, demands,
requests or other communications given or
rendered to Partnership Tenant or to any of
the parties comprising Partnership Tenant
shall be deemed given or rendered to
Partnership Tenant and to all such parties
and shall be binding upon Partnership Tenant
and all such parties.
-42-
(D) If Partnership Tenant admits new partners,
all of such new partners shall, by their
admission to Partnership Tenant, be deemed
to have assumed performance of all of the
terms, covenants and conditions of this
Lease on Tenant's part to be observed and
performed.
(E) Partnership Tenant shall give prompt notice
to Landlord of the admission of any such new
partners, and, upon demand of Landlord,
shall cause each such new partner to execute
and deliver to Landlord an agreement in form
satisfactory to Landlord, wherein each such
new partner shall assume performance of all
of the terms, covenants and conditions of
this Lease on Partnership Tenant's part to
be observed and performed (but neither
Landlord's failure to request any such
agreement nor the failure of any such new
partner to execute or deliver any such
agreement to Landlord shall terminate the
provisions of clause (D) of this Article
31(q)(ii) or relieve any such new partner of
its obligations thereunder).
(r) SUBSTITUTE PREMISES. Landlord shall have the right at any time
during the Term hereof, upon giving Tenant not less than sixty
(60) days' prior notice, to provide and furnish Tenant with
space elsewhere in the Project of approximately the same size
as the Premises and remove and place Tenant in such space,
with Landlord to pay all verified and previously approved
costs and expenses incurred as a result of such movement to
such new space. If Landlord moves Tenant to such new space,
this Lease and each and all of its terms, covenants and
conditions shall remain in full force and effect and shall be
deemed applicable to such new space and such new space shall
thereafter be deemed to be the "Premises" as though Landlord
and Tenant had entered into an express written amendment of
this Lease with respect thereto.
(s) SURVIVAL OF OBLIGATIONS. Any obligations of Tenant occurring
prior to the expiration or earlier termination of this Lease
shall survive such expiration or earlier termination.
(t) CONFIDENTIALITY. Tenant acknowledges that the content of this
Lease and any related documents are confidential information.
Tenant shall keep such confidential information strictly
confidential and shall not disclose such confidential
information to any person or entity other than Tenant's
financial, legal and space planning consultants and any
proposed subtenants or assignees.
(u) GOVERNING LAW. This Lease shall be governed by and construed
in accordance with the laws of the State of California. No
conflicts of law rules of any state or country (including,
without limitation, California conflicts of law rules) shall
be applied to result in the application of any substantive or
procedural laws of any state or country other than California.
All controversies, claims, actions or causes of action arising
between the parties hereto and/or their respective successors
and assigns, shall brought, heard and adjudicated by the
courts of the State of California, with venue in the
-43-
County of Los Angeles. Each of the parties hereto hereby
consents to personal jurisdiction by the courts of the State
of California in connection with any such controversy, claim,
action or cause of action, and each of the parties hereto
consents to service of process by any means authorized by
California law and consent to the enforcement of any judgment
so obtained in the courts of the State of California on the
same terms and conditions as if such controversy, claim,
action or cause of action had been originally heard and
adjudicated to a final judgment in such courts. Each of the
parties hereto further acknowledges that the laws and courts
of California were freely and voluntarily chosen to govern
this Lease and to adjudicate any claims or disputes hereunder.
(v) PROPERTY MANAGER. Any services which Landlord is required to
furnish pursuant to the provisions of this Lease may, at
Landlord's option, be furnished from time to time, in whole or
in part, by employees of Landlord or by one or more third
persons hired by Landlord or the Property Manager. Tenant
agrees that upon Landlord's written request it will enter into
direct agreements with the Property Manager or other parties
designated by Landlord for the furnishing of any such services
required to be furnished by Landlord hereunder, in form and
content approved by Landlord, provided however that no such
contract shall result in Tenant having to pay in the aggregate
more money on account of its occupancy of the Premises under
the terms of this Lease (i.e., any costs directly paid by
Tenant to Property Manager shall not be included in Direct
Costs and the total amounts paid by Tenant under this
paragraph plus Tenant's share of Direct Costs shall not exceed
what Tenant would have otherwise paid in Direct Costs should
Landlord have been the contracting party rather than Tenant),
and provided further that no such contract shall result in
Tenant receiving less services than it is presently entitled
to receive under this Lease, or services of a lesser quality.
(w) REPRESENTATIONS NOT PERSONAL. It is expressly understood and
agreed by and between the parties hereto, anything herein to
the contrary notwithstanding, that each and all of the
representations, warranties, covenants, undertakings and
agreements herein made on the part of any Landlord while in
form purporting to be the representations, warranties,
covenants, undertakings and agreements of such Landlord are
nevertheless each and every one of them made and intended, not
as personal representations, warranties, covenants,
undertakings and agreements by such Landlord, or for the
purpose or with the intention of binding such Landlord
personally, but are made and intended for the purpose only of
subjecting such Landlord's interest in the Premises and the
Project to the terms of this Lease and for no other purpose
whatsoever, and in case of default hereunder by such Landlord
(or default through, under or by any of the representatives,
servants, employees or representatives of such Landlord),
Tenant shall look solely to the interests of such Landlord in
the Premises and the Project; that no Landlord shall have any
personal liability to pay any indebtedness accruing hereunder
or to perform any covenant, either express or implied, herein
contained; that no personal liability or personal
responsibility of any sort is assumed by, nor shall at any
time be asserted or enforceable against, Landlord, or
Landlord's Property
-44-
Manager, employees or representatives, on account of this
Lease or on account of any representation, warranty, covenant,
undertaking or agreement of Landlord contained, either express
or implied. All such personal liability, if any, is hereby
expressly waived and released by Tenant and by all persons
claiming by, through or under Tenant.
(x) ANTI-TERRORISM REPRESENTATION. Neither Tenant nor any of its
affiliates have engaged in any dealings or transactions,
directly or indirectly, (i) in contravention of any U.S.,
international or other money laundering regulations or
conventions, including, without limitation, the United States
Bank Secrecy Act, the United States Money Laundering Control
Act of 1986, the United States International Money Laundering
Abatement and Anti-Terrorist Financing Act of 2001, Trading
with the Enemy Act (50 U.S.C. ss.1 et seq., as amended), or
any foreign asset control regulations of the United States
Treasury Department (31 CFR, Subtitle B, Chapter V, as
amended) or any enabling legislation or executive order
relating thereto, or (ii) in contravention of Executive Order
No. 13,244,66 Fed. Reg. 49,079 (2001) issued by the President
of the United States (Executive Order Blocking Property and
Prohibiting Transactions with Persons Who Commit, Threaten to
Commit, or Support Terrorism), as may be amended or
supplemented from time to time ("Anti-Terrorism Order") or on
behalf of terrorists or terrorist organizations, including
those persons or entities that are included on any relevant
lists maintained by the United Nations, North Atlantic Treaty
Organization, Organization of Economic Cooperation and
Development, Financial Action Task Force, U.S. Office of
Foreign Assets Control, U.S. Securities & Exchange Commission,
U.S. Federal Bureau of Investigation, U.S. Central
Intelligence Agency, U.S. Internal Revenue Service, or any
country or organization, all as may be amended from time to
time. Neither Tenant nor any of its affiliates are a person
described in section 1 of the Anti-Terrorism Order and neither
Tenant nor any of its affiliates have engaged in any dealings
or transactions, or otherwise been associated with any such
person. If at any time this representation becomes false then
it shall be considered a default under this Lease and Landlord
shall have the right to exercise all of the remedies set forth
in this Lease in the event of a default.
(y) SIGNAGE. Subject to the provisions of this paragraph, Tenant
shall be entitled to twelve (12) lines on the Project's
building directory and Project-standard suite signage outside
the Premises, subject to Project standard. In addition to the
foregoing, in the event that the Premises are hereafter
increased so that Tenant is leasing more square footage than
any other tenant in the Project, Tenant shall have the right
to "building-top" identity signage ("BUILDING SIGNAGE") on top
of the Project, subject to any rights of any third party to
Building Signage that are existing at the time Tenant becomes
entitled to the Building Signage. The Building Signage shall
(A) comply with all governmental laws, regulations, rules,
codes and ordinances pertaining thereto, (B) comply with all
provisions of this Lease, (C) have received the prior approval
of all appropriate governmental bodies, including required
permits, (D) have received the prior written approval of
Landlord as to all aspects of the Building Signage, including,
without
-45-
limitation, design and location thereof, and (E) conform to
Landlord's signage criteria for the Project. All costs and
expenses relating to the Building Signage, including without
limitation, (i) the cost of the installation of the Building
Signage, (ii) the costs of obtaining permits and approvals,
(iii) the costs for the maintenance, repair and replacement of
the Building Signage, (iv) the cost for the maintenance of the
Building Signage and any electrical consumption for
illuminating the Building Signage, if any, and (v) the costs
associated with the removal of the Building Signage and the
restoration of the area required due to such removal,
including, but not limited to, costs associated with the
restoration of landscaping damaged by removal of the Building
Signage, to the condition existing prior to the installation
of the Building Signage, shall be at the sole cost and expense
of Tenant. Tenant shall pay to Landlord, upon written demand
any and all such costs within ten (10) days after receipt
(except for such costs payable directly by Tenant to any
governmental entity). In the event of an Event of Default or
the expiration or earlier termination of this Lease, Landlord
may elect to repair, maintain, replace and remove the Building
Signage at Tenant's cost. The Building Signage shall at all
times during the term hereof be maintained in working,
first-class condition. The signage rights granted in this
paragraph are personal to Tenant and may not be transferred by
Tenant. If Tenant shall assign this Lease, sublet the Premises
or otherwise Transfer any interest of Tenant in this Lease or
the Premises or attempt to transfer any signage right in
violation of this Lease, then the rights granted Tenant under
this paragraph shall terminate and Landlord shall have the
right to immediately remove the Building and restore the area
as hereinabove provided. Tenant acknowledges and agrees that
it has familiarized itself with the signage that Landlord has
currently installed on the facades of the buildings within the
Project. Landlord shall have the ongoing right to install
similar signage on the Project building facades.
(z) CROSS DEFAULT. Landlord and Tenant acknowledge and agree that
the concurrent delivery by Tenant to Landlord of a
fully-executed AIR Commercial Real Estate Association Standard
Industrial/Commercial Multi-Tenant Lease - Gross for the lease
of premises at 0000 Xxxxx Xxxxxx Xxxxxx by Tenant (the
"CONCURRENT AGREEMENT") is a material consideration for
Landlord's execution of this Lease and that Landlord would not
execute and deliver this Lease but for such Concurrent
Agreement. Accordingly, concurrently with the execution and
delivery of this Lease by Tenant, Tenant shall deliver to
Landlord the duly executed Concurrent Agreement. If Tenant
fails to deliver to Landlord the executed Concurrent Agreement
concurrently with the delivery of this Lease, Landlord may
terminate this Lease by written notice to Tenant given at any
time thereafter. In such event, this Lease shall terminate
upon Tenant's receipt of Landlord's notice, Tenant shall bear
both parties' expenses and fees incurred in the negotiations
and preparation of this Lease and the Concurrent Agreement and
in complying herewith through the date of termination
(including, without limitation, Landlord's legal fees) and
Landlord shall have no further obligation to Tenant or any
related party under this Lease or under the Concurrent
Agreement shall be deemed a default of
-46-
Tenant under this Lease and any breach or default of Tenant
under this Lease shall be deemed a default of Tenant, as
lessee, under the Concurrent Agreement.
(aa) EXHIBITS AND ADDENDUM. The Exhibits and Addendum, if
applicable, attached hereto are incorporated herein by this
reference as if fully set forth herein.
-47-
IN WITNESS WHEREOF, the parties have executed this Lease, consisting of the
foregoing provisions and Articles, including all exhibits and other attachments
referenced therein, as of the date first above written.
"LANDLORD"
1212 FLOWER REAL ESTATE, LLC,
a Delaware limited liability company
By: Petit Real Estate Limited Partnership,
a Delaware limited partnership,
its sole member
By: Kor Trio, LLC
a Delaware limited liability
company, its general partner
By: ________________________
________________________
[Printed Name and Title]
"TENANT"
PEOPLE'S LIBERATION, INC., a California
corporation
By: ____________________________________
____________________________________
[Printed Name and Title]
By: ____________________________________
____________________________________
[Printed Name and Title]
-48-
EXHIBIT A
PREMISES
[demonstrated by red cross-hatching]
[GRAPHIC OMITTED]
A-1
EXHIBIT B
RULES AND REGULATIONS
1. No sign, advertisement or notice shall be displayed, printed
or affixed on or to the Premises or to the outside or inside
of the Project or so as to be visible from outside the
Premises or Project without Landlord's prior written consent.
Landlord shall have the right to remove any non-approved sign,
advertisement or notice, without notice to and at the expense
of Tenant, and Landlord shall not be liable in damages for
such removal. All approved signs or lettering on doors and
walls shall be printed, painted, affixed or inscribed at the
expense of Tenant by Landlord or by a person selected by
Landlord and in a manner and style acceptable to Landlord.
2. Tenant shall not obtain for use on the Premises ice, waxing,
cleaning, interior glass polishing, rubbish removal, towel or
other similar services, or accept barbering or bootblackening,
or coffee cart services, milk, soft drinks or other like
services on the Premises, except from persons authorized by
Landlord and at the hours and under regulations fixed by
Landlord. No vending machines or machines of any description
shall be installed, maintained or operated upon the Premises
without Landlord's prior written consent, which shall not be
unreasonably delayed, conditioned or withheld.
3. The sidewalks, halls, passages, exits, entrances, elevators
and stairways shall not be obstructed by Tenant or used for
any purpose other than for ingress and egress from Tenant's
Premises. Under no circumstances is trash to be stored in the
corridors. Notice must be given to Landlord for any large
deliveries. Furniture, freight and other large or heavy
articles, and all other deliveries may be brought into the
Project only at times and in the manner designated by
Landlord, and always at Tenant's sole responsibility and risk.
Landlord may impose reasonable charges for use of freight
elevators after or before normal business hours. All damage
done to the Project by moving or maintaining such furniture,
freight or articles shall be repaired by Landlord at Tenant's
expense. Tenant shall not take or permit to be taken in or out
of entrances or passenger elevators of the Project, any item
normally taken, or which Landlord otherwise reasonably
requires to be taken, in or out through service doors or on
freight elevators. Tenant shall move all supplies, furniture
and equipment as soon as received directly to the Premises,
and shall move all waste that is at any time being taken from
the Premises directly to the areas designated for disposal.
4. Toilet rooms, toilets, urinals, wash bowls and other apparatus
shall not be used for any purpose other than for which they
were constructed and no foreign substance of any kind
whatsoever shall be thrown therein.
5. Tenant shall not overload the floor of the Premises or xxxx,
drive nails, screw or drill into the partitions, ceilings or
floor or in any way deface the Premises. Tenant shall not
place typed, handwritten or computer generated signs in the
B-1
B-1
corridors or any other common areas. Should there be a need
for signage additional to the Project standard tenant placard,
a written request shall be made to Landlord to obtain approval
prior to any installation. All costs for said signage shall be
Tenant's responsibility.
6. In no event shall Tenant place a load upon any floor of the
Premises or portion of any such flooring exceeding the floor
load per square foot of area for which such floor is designed
to carry and which is allowed by law, or any machinery or
equipment which shall cause excessive vibration to the
Premises or noticeable vibration to any other part of the
Project. Prior to bringing any heavy safes, vaults, large
computers or similarly heavy equipment into the Project,
Tenant shall inform Landlord in writing of the dimensions and
weights thereof and shall obtain Landlord's consent thereto.
Such consent shall not constitute a representation or warranty
by Landlord that the safe, vault or other equipment complies,
with regard to distribution of weight and/or vibration, with
the provisions of this Rule 6 nor relieve Tenant from
responsibility for the consequences of such noncompliance, and
any such safe, vault or other equipment which Landlord
determines to constitute a danger of damage to the Project or
a nuisance to other tenants, either alone or in combination
with other heavy and/or vibrating objects and equipment, shall
be promptly removed by Tenant, at Tenant's cost, upon
Landlord's written notice of such determination and demand for
removal thereof.
7. Tenant shall not use or keep in the Premises or Project any
kerosene, gasoline or inflammable, explosive or combustible
fluid or material, or use any method of heating or
air-conditioning other than that supplied by Landlord.
8. Tenant shall not lay linoleum, tile, carpet or other similar
floor covering so that the same shall be affixed to the floor
of the Premises in any manner except as approved by Landlord.
9. Tenant shall not install or use any blinds, shades, awnings or
screens in connection with any window or door of the Premises
and shall not use any drape or window covering facing any
exterior glass surface other than the standard drapes, blinds
or other window covering established by Landlord.
10. Tenant shall cooperate with Landlord in obtaining maximum
effectiveness of the cooling system by closing window
coverings when the sun's rays fall directly on windows of the
Premises. Tenant shall not obstruct, alter, or in any way
impair the efficient operation of Landlord's heating,
ventilating and air-conditioning system. Tenant shall not
tamper with or change the setting of any thermostats or
control valves.
11. The Premises shall not be used for manufacturing or for the
storage of merchandise except as such storage may be
incidental to the permitted use of the Premises. Tenant shall
not, without Landlord's prior written consent, occupy or
permit any portion of the Premises to be occupied or used for
the manufacture or sale of liquor
B-2
or tobacco in any form, or a xxxxxx or manicure shop, or as an
employment bureau. The Premises shall not be used for lodging
or sleeping or for any improper, objectionable or immoral
purpose. No auction shall be conducted on the Premises.
12. Tenant shall not make, or permit to be made, any unseemly or
disturbing noises, or disturb or interfere with occupants of
Project or neighboring buildings or premises or those having
business with it by the use of any musical instrument, radio,
phonographs or unusual noise, or in any other way.
13. No bicycles, vehicles or animals of any kind shall be brought
into or kept in or about the Premises, and no cooking shall be
done or permitted by any tenant in the Premises, except that
the preparation of coffee, tea, hot chocolate and similar
items for tenants, their employees and visitors shall be
permitted. No tenant shall cause or permit any unusual or
objectionable odors to be produced in or permeate from or
throughout the Premises. The foregoing notwithstanding, Tenant
shall have the right to use a microwave and to heat
microwavable items typically heated in an office. No hot
plates, toasters, toaster ovens or similar open element
cooking apparatus shall be permitted in the Premises.
14. The sashes, sash doors, skylights, windows and doors that
reflect or admit light and air into the halls, passageways or
other public places in the Project shall not be covered or
obstructed by any tenant, nor shall any bottles, parcels or
other articles be placed on the window xxxxx.
15. No additional locks or bolts of any kind shall be placed upon
any of the doors or windows by any tenant, nor shall any
changes be made in existing locks or the mechanisms thereof
unless Landlord is first notified thereof, gives written
approval, and is furnished a key therefor. Each tenant must,
upon the termination of his tenancy, give to Landlord all keys
and key cards of stores, offices, or toilets or toilet rooms,
either furnished to, or otherwise procured by, such tenant,
and in the event of the loss of any keys so furnished, such
tenant shall pay Landlord the cost of replacing the same or of
changing the lock or locks opened by such lost key if Landlord
shall deem it necessary to make such change. If more than two
keys for one lock are desired, Landlord will provide them upon
payment therefor by Tenant. Tenant shall not key or re-key any
locks. All locks shall be keyed by Landlord's locksmith only.
16. Landlord shall have the right to prohibit any advertising by
any tenant which, in Landlord's opinion, tends to impair the
reputation of the Project or its desirability as an office
building, and upon written notice from Landlord any tenant
shall refrain from and discontinue such advertising.
17. Landlord reserves the right to control access to the Project
by all persons after reasonable hours of generally recognized
business days and at all hours on Sundays and legal holidays.
Each tenant shall be responsible for all persons for whom it
requests after hours access and shall be liable to Landlord
for all acts of such persons.
B-3
Landlord shall have the right from time to time to establish
reasonable rules pertaining to freight elevator usage,
including the allocation and reservation of such usage for
tenants' initial move-in to their premises, and final
departure therefrom.
18. Any person employed by any tenant to do janitorial work shall,
while in the Project and outside of the Premises, be subject
to and under the control and direction of the Office of the
Project or its designated representative such as security
personnel (but not as an agent or servant of Landlord, and the
Tenant shall be responsible for all acts of such persons).
19. All doors opening on to public corridors shall be kept closed,
except when being used for ingress and egress. Tenant shall
cooperate and comply with any reasonable safety or security
programs, including fire drills and air raid drills, and the
appointment of "fire wardens" developed by Landlord for the
Project, or required by law. Before leaving the Premises
unattended, Tenant shall close and securely lock all doors or
other means of entry to the Premises and shut off all lights
and water faucets in the Premises.
20. The requirements of tenants will be attended to only upon
application to the Office of the Project.
21. Canvassing, soliciting and peddling in the Project are
prohibited and each tenant shall cooperate to prevent the
same.
22. All office equipment of any electrical or mechanical nature
shall be placed by tenants in the Premises in settings
approved by Landlord, to absorb or prevent any vibration,
noise or annoyance.
23. No air-conditioning unit or other similar apparatus shall be
installed or used by any tenant without the prior written
consent of Landlord. Tenant shall pay the cost of all
electricity used for air-conditioning in the Premises if such
electrical consumption exceeds normal office requirements,
regardless of whether additional apparatus is installed
pursuant to the preceding sentence.
24. There shall not be used in any space, or in the public halls
of the Project, either by any tenant or others, any hand
trucks except those equipped with rubber tires and side
guards.
25. All electrical ceiling fixtures hung in offices or spaces
along the perimeter of the Project must be fluorescent and/or
of a quality, type, design and bulb color approved by
Landlord. Tenant shall not permit the consumption in the
Premises of more than 2 1/2 xxxxx per net usable square foot
in the Premises in respect of office lighting nor shall Tenant
permit the consumption in the Premises of more than 1 1/2
xxxxx per net usable square foot of space in the Premises in
respect of the power outlets therein, at any one time. In the
event that such limits are exceeded, Landlord shall have the
right to
B-4
require Tenant to remove lighting fixtures and equipment
and/or to charge Tenant for the cost of the additional
electricity consumed.
26. PARKING.
(a) Intentionally omitted.
(b) Automobiles must be parked entirely within the stall
lines on the floor.
(c) All directional signs and arrows must be observed.
(d) The speed limit shall be 5 miles per hour.
(e) Parking is prohibited in areas not striped for
parking.
(f) Parking cards or any other device or form of
identification supplied by Landlord (or its operator)
shall remain the property of Landlord (or its
operator). Such parking identification device must be
displayed as requested and may not be mutilated in
any manner. The serial number of the parking
identification device may not be obliterated. Devices
are not transferable or assignable and any device in
the possession of an unauthorized holder will be
void. There will be a replacement charge to the
Tenant or person designated by Tenant of $25.00 for
loss of any parking card. There shall be a security
deposit of $25.00 due at issuance for each card key
issued to Tenant.
(g) The monthly rate for parking is payable one (1) month
in advance and must be paid by the third business day
of each month. Failure to do so will automatically
cancel parking privileges and a charge at the
prevailing daily rate will be due. No deductions or
allowances from the monthly rate will be made for
days xxxxxx does not use the parking facilities.
(h) Tenant may validate visitor parking by such method or
methods as the Landlord may approve, at the
validation rate from time to time generally
applicable to visitor parking, not to exceed $20.00
per day.
(i) Landlord (and its operator) may refuse to permit any
person who violates the within rules to park in the
parking facilities, and any violation of the rules
shall subject the automobile to removal from the
parking facilities at the xxxxxx'x expense. In either
of said events, Landlord (or its operator) shall
refund a pro rata portion of the current monthly
parking rate and the sticker or any other form of
identification supplied by Landlord (or its operator)
will be returned to Landlord (or its operator).
(j) Parking managers or attendants are not authorized to
make or allow any exceptions to these Rules and
Regulations.
B-5
(k) All responsibility for any loss or damage to
automobiles or any personal property therein is
assumed by the xxxxxx.
(1) Loss or theft of parking identification devices from
automobiles must be reported to the garage manager
immediately, and a lost or stolen report must be
filed by the xxxxxx at that time.
(m) The parking facilities are for the sole purpose of
parking one automobile per space. Washing, waxing,
cleaning or servicing of any vehicles by the xxxxxx
or his agents is prohibited.
(n) Landlord (and its operator) reserves the right to
refuse the issuance of monthly stickers or other
parking identification devices to any Tenant and/or
its employees who refuse to comply with the above
Rules and Regulations and all City, State or Federal
ordinances, laws or agreements.
(o) Tenant agrees to acquaint all employees with these
Rules and Regulations.
(p) No vehicle shall be stored in the parking facilities
for a period of more than one (1) week.
27. The Project is a non-smoking Project. Smoking or carrying
lighted cigars or cigarettes in the Premises or the Project,
including the elevators in the Project, is prohibited.
B-6
EXHIBIT C
NOTICE OF LEASE TERM DATES
AND TENANT'S PROPORTIONATE SHARE
TO: ______________________ DATE: __________________
______________________
______________________
RE: Lease dated ________________, ___, between __________________________
___________________________ ("Landlord"), and ____________________________
____________________________ ("Tenant"), concerning Suite ______, located at
___________________________________________________________.
Ladies and Gentlemen:
In accordance with the Lease, Landlord wishes to advise and/or
confirm the following:
1. That the Premises have been accepted herewith by the Tenant as
being substantially complete in accordance with the Lease and
that there is no deficiency in construction.
2. That the Tenant has taken possession of the Premises and
acknowledges that under the provisions of the Lease, the Term
of said Lease shall commence as of ____________ for a term of
________________________ ending on ________________.
3. That in accordance with the Lease, Basic Rental commenced to
accrue on ___________________________.
4. If the Commencement Date of the Lease is other than the first
day of the month, the first billing will contain a prorated
adjustment. Each billing thereafter shall be for the full
amount of the monthly installment as provided for in said
Lease.
5. Rent is due and payable in advance on the first day of each
and every month during the Term of said Lease. Your rent
checks should be made payable to _____________________________
at __________________________.
6. The exact number of rentable square feet within the Premises
is ________ square feet.
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7. Tenant's Proportionate Share, as adjusted based upon the exact
number of rentable square feet within the Premises, is
_______%.
AGREED AND ACCEPTED:
TENANT:
____________________________________,
a ___________________________________
By: _______________________________
_______________________________
[Printed Name and Title]
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EXHIBIT D
[INTENTIONALLY OMITTED]
D-1
EXHIBIT E
SIGNING RESOLUTION
CERTIFIED COPY OF
BOARD OF DIRECTORS RESOLUTIONS
OF
____________________________________
The undersigned, being the duly elected Corporate Secretary of
___________________________ a _______________ corporation ("Corporation"),
hereby certifies that the following is a true, full and correct copy of the
resolutions adopted by the Corporation by unanimous written consent in lieu of a
special meeting of its Board of Directors, and that said resolutions have not
been amended or revoked as of the date hereof.
RESOLVED, that the Corporation, is hereby authorized to
execute, deliver and fully perform that certain document entitled Standard
Office Lease ("Lease") by and between the Corporation and1212 FLOWER REAL
ESTATE, LLC, a Delaware limited liability company, for the lease of space at
0000 Xxxxx Xxxxxx Xxxxxx, Xxx Xxxxxxx 00000.
RESOLVED FURTHER, that the Corporation is hereby authorized
and directed to make, execute and deliver any and all, consents, certificates,
documents, instruments, amendments, confirmations, guarantees, papers or
writings as may be required in connection with or in furtherance of the Lease
(collectively with the Lease, the "Documents") or any transactions described
therein, and to do any and all other acts necessary or desirable to effectuate
the foregoing resolution.
RESOLVED FURTHER, that the following officers acting together:
______________ as _____________; and ____________ as _______________ are
authorized to execute and deliver the Documents on behalf of the Corporation,
together with any other documents and/or instruments evidencing or ancillary to
the Documents, and in such forms and on such terms as such officer(s) shall
approve, the execution thereof to be conclusive evidence of such approval and to
execute and deliver on behalf of the Corporation all other documents necessary
to effectuate said transaction in conformance with these resolutions.
Date: _____________, 200_ _________________________________
________________, Corporate Secretary
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