1
EXHIBIT 10.11
EXECUTION ORIGINAL
LICENSE AGREEMENT
THIS LICENSE AGREEMENT, dated as of the 15th day of May, 2000 between
JAMBOREE LLC, a Delaware limited liability company ("Licensor") x/x Xxxxxxxx
Xxxxxxxxxx Management Limited Partnership, Xxxxx 000, 0000 Xxxxxxxxx Xxxxx,
Xxxxxx, XX 00000 and XXXXXXXXXXXX.XXX, INC., a Delaware corporation
("Licensee"), having an office at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX
00000.
W I T N E S S E T H:
WHEREAS, Licensor is the owner of the facility located at 0000-0000
Xxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx and commonly known as the Park Place Office
Campus (the "Facility"); and
WHEREAS, Licensor wishes to grant to Licensee and Licensee wishes to
accept from Licensor a revocable license to use a portion of the fourth (4th)
floor (Suite 430) of the 3333 Building in the Facility, as shown hatched on the
floor plan annexed hereto and made a part hereof as Exhibit A (the "Premises"),
upon the terms, covenants, and provisions and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the mutual covenants herein contained
and of Ten ($10.00) Dollars and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
mutually covenant and agree as follows:
1. Grant of License and Use of Premises:
Licensor hereby grants to Licensee and Licensee hereby accepts from
Licensor, an exclusive license (the "License") to use the Premises, subject to
the terms of Article 2 hereof. Licensee shall not use the Premises for any
purpose whatsoever other than for general and executive offices in connection
with its business.
2. Term:
A. Term. The term (the "Term") of the License granted hereunder shall
commence as of June 1, 2000 (the "Commencement Date") and shall terminate upon
the earlier to occur of (i) November 30, 2000 or (ii) the revocation of this
License Agreement by Licensee pursuant to the terms hereof (such earlier to
occur date is hereinafter referred to as on the "Termination Date").
2
B. Month-to-Month Extension. Provided this License Agreement is in
full force and effect and Licensee is not in default hereunder beyond the giving
of notice and the expiration of any applicable grace period, the Term shall be
deemed automatically extended on a month-to-month basis, unless Licensee shall
give not less than sixty (60) days prior written notice of its election to
terminate this License Agreement effective as of the last day of any calendar
month. Notwithstanding the foregoing, in no event, shall this License Agreement
be extended beyond May 31, 2001.
C. Revocation. Notwithstanding anything to the contrary contained in
this License Agreement, Licensor shall have the right to revoke and terminate
the License granted hereby for cause following the occurrence of any one or more
of the Events of Defaults (as defined in Paragraph 13 herein), pursuant to the
provisions set forth in such Paragraph 13.
D. End of Term. On the Termination Date, Licensee shall, at its sole
cost and expense (i) remove its personal property from the Premises in
accordance with the terms hereof, (ii) restore the Premises to its condition
prior to Licensee's occupancy thereof, subject, however, to ordinary wear and
tear during the Term hereof, and (iii) pay all amounts due and owing under this
License Agreement for the period up to and including the Termination Date. If
Licensee fails to do so, Licensor may cause Licensee to be removed from the
Premises without resort to process of law (to the extent permitted by applicable
law) or through resort to summary eviction proceedings or other legal process.
Furthermore, if Licensee fails to do so, Licensee shall pay to Licensor a
holdover license fee in the amount of three (3) times the License Fee then
payable pursuant to Paragraph 3 accruing from the Termination Date until such
date as Licensee shall have removed itself or been removed from the Premises. If
Licensee fails to remove its personal property from the Premises as set forth
above, Licensor shall have the right, but shall not be obligated, to perform
such removal at Licensee's sole cost and expense. Licensors right to perform
such removal shall be in addition to any other rights and remedies available to
Licensor under this License Agreement or at law or in equity.
3. License Fee: In consideration of Licensors agreement to grant the
License to Licensee to occupy the Premises, Licensee shall pay to Licensor a
monthly fee (the "License Fee") in the amount of Ten Thousand and 00/100
($10,000.00) Dollars, plus all applicable taxes or governmental charges, fees,
or impositions upon such occupancy charge or upon the privilege of using or
occupying the Premises, in advance on the first day of each calendar month
during the Term; provided, however, in the event the License is not revoked or
terminated pursuant to the terms hereof prior to December 1, 2000, the License
Fee payable hereunder shall be increased to Twelve Thousand and 00/100
($12,000.00) Dollars per month, effective as of December 1,
3
2000 and continuing thereafter during any extension of the Term pursuant to the
provisions of Paragraph 2 hereof. If the Term shall commence or terminate on
other than the first day or last day, respectively, of a calendar month, the
License Fee for such month shall be prorated based upon the actual number of
days elapsed. Notwithstanding the foregoing to the contrary, Licensee agrees to
pay the first monthly installment of the License Fee on the date of the
execution and delivery of this License Agreement by Licensee.
4. Acceptance of Premises: Licensee accepts the Premises in its present
"as is" condition as of the date hereof and Licensee acknowledges that Licensor
has no obligation to perform any work to prepare the Premises for Licensee's use
and Licensee further acknowledges that the Premises are suited for the use
described in Paragraph 1 hereof. The taking of possession of the Premises for
Licensee's use shall be conclusive evidence as against Licensee that, at the
time such possession was so taken, the Premises and the Facility were in good
and satisfactory condition.
5. Maintenance, Repair and Operation of the Premises: Licensee covenants
and agrees that, in connection with the use, maintenance, repair, operation of
the Premises and in connection with any work performed relating to the License
hereby granted:
A. All work and any alterations or improvements to the Premises shall
be done at Licensee's sole cost and expense, and Licensee's performance any such
work shall be subject to Licensor's prior written approval, which approval may
be granted or withheld in Licensor's sole discretion;
B. Licensee shall take good care of the Premises and keep the
Premises clean and hazard free and shall suffer no waste or injury thereto;
C. Licensee shall comply with all applicable rules, laws and
regulations of any governmental or quasi-governmental authority having
jurisdiction of the Premises, including, without limitation, facility and/or
zoning codes, and shall comply with all rules and regulations Licensor may, at
any time or from time to time, establish regarding the Premises, the Facility or
any part thereof. The current Rules and Regulations are annexed hereto as
Exhibit B and are made a part hereof;
D. Licensee shall not interfere in any way with the use, occupancy or
enjoyment of the Facility or the Premises, or cause any damage (including,
without limitation, leaks) to the Premises or the Facility which is not
immediately restored and repaired by Licensee (or, at Licensors option, by
Licensor), at Licensee's sole cost and expense, to its condition prior to such
damage;
E. Licensee shall not create nor permit to be created or to remain,
any
4
lien, encumbrance or charge on the Facility or the Premises;
F. Licensee shall be responsible for all maintenance and repairs
necessary with respect to the Premises. If Licensee shall not maintain and
repair the Premises to the condition in which they were prior to Licensee's
occupancy thereof, Licensor may revoke this License Agreement as provided in
Paragraph 2 hereof, and upon such revocation, this License Agreement shall
terminate as provided herein; and
G. Licensee shall not at any time use or occupy the Premises in
violation of the certificate of occupancy issued for the Premises or for the
Facility.
6. Services:
A. Delivery of Services and Utilities. Subject to other provisions in
this License Agreement and to the Facility rules and regulations promulgated by
Licensor from time to time, Licensor shall cause to be furnished to the Premises
during the period from 7:00 A.M. to 6:00 P.M. Monday through Friday and 8:00
A.M. to 1:00 P.M., Saturday (but exclusive, in any event, of New Year's Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving and Christmas)
(collectively, "Normal Business Hours"), heat and air conditioning required, in
Licensor's judgment, for the comfortable use and occupation of the premises.
Licensor shall provide water and electricity suitable for the use of the
Premises on a twenty-four (24) hours per day, seven (7) days per week basis.
Licensor shall have no obligation to provide additional or after hours heating
or air conditioning, except as provided in Section D below. Licensee also agrees
at all times to cooperate fully with Licensor and to abide by all the
regulations and requirements which Licensor may prescribe for the proper
function and protection of heating, ventilating and air conditioning ("HVAC")
systems. Wherever heat-generating machines, excess lighting or equipment are
used in the Premises which affect the temperature otherwise maintained by the
air conditioning system, Licensor reserves the right to install supplementary
air conditioning units in the Premises, and the cost thereof, including the cost
of installation, operation and maintenance thereof, shall be paid by Licensee to
Licensor within ten (10) days after written notice by Licensor. Licensor shall
provide janitorial services sufficient to keep the Premises in a clean
condition, provided that Licensee shall leave the Premises in a reasonably tidy
condition at the end of each business day.
B. Equipment Requiring Excessive Utilities. Licensee shall not,
without the prior written consent of Licensor, use any apparatus or device in
the Premises using excess lighting or using current in excess of that which is
determined by Licensor as reasonable and normal for the use of the Premises or
which will in any way increase the amount of electricity or water usually
furnished or supplied for the Premises.
5
C. Right to Curtail Services and Utilities. Licensor shall have the
sole discretion to reduce or cease any services or utilities to the Premises or
the Facility by reason of (i) the installation, use or interruption of use of
any equipment in connection with the furnishing of any of the foregoing
utilities and service, (ii) failure to furnish or delay in furnishing any such
utilities or services when such failure or delay is caused by acts of God or the
elements, labor disturbances or any character or any other accidents or breakage
or other conditions beyond the reasonable control of Licensor, (iii) the
limitation, curtailment, rationing or restriction on use of water, electricity,
gas or any other form of energy or any other services or utilities whatsoever
serving the Premises or the Facility, necessary to comply with any applicable
law or any governmental energy conservation program, and (iv) the making of any
repairs, additions, alterations or improvements to the Facility or the Premises
until such repairs, additions, alterations, or improvements have been completed.
No such reduction or cessation of services or utilities shall constitute an
eviction or disturbance of Licensee's use or possession of the Facility, or a
breach by Licensor of any of its obligations hereunder, or render Licensor
liable for damages, including but not limited to any damages, compensation or
claims arising from any reduction or cessation of services or entitle Licensee
to any compensation or to any abatement or diminution of the License Fee or
relieve Licensee of any of its obligations under this License Agreement.
Licensor shall use reasonable diligence to cause such services to be restored
where it is within Licensors reasonable control to do so. Notwithstanding the
foregoing to the contrary, (i) Licensor shall use reasonable efforts to provide
Licensee with reasonable prior notice of any planned interruption of the service
of any Facility-wide system, and (ii) if Licensor shall stop services for any
reason, Licensor shall endeavor to minimize interference with the conduct of
Licensee's business in the Premises (without any obligation to utilize overtime
or premium pay labor).
D. After Hours and Additional Services. The License Fee does not
include any charge to Licensee for the furnishing of any additional service of
heat, cooled air or mechanical ventilation to the Premises during periods other
than during Normal Business Hours (hereinafter referred to as "Overtime
Periods"). Accordingly, if Licensor shall furnish any (i) passenger elevator
facilities to Licensee during Overtime Periods or freight elevator facilities or
(ii) heat, cooled air or ventilation to the Premises during Overtime Periods,
then Licensee shall pay Licensor additional rent for such facilities or services
at the standard rates then fixed by Licensor for the Facility plus a ten percent
(10%) administrative fee or, if no such rates are then fixed, at reasonable
rates. Neither the facilities nor the services referred to in this Section D
shall be furnished to Licensee or the Premises if Licensor has not received
advance notice from Licensee specifying the particular facilities or services
requested by Licensee at least twenty-four (24) hours prior to the date on which
the facilities or services are to be furnished (other than if Licensee is
requesting the use of HVAC during period other than during Normal Business
Hours, hereinafter referred to as "Extra HVAC Use", in
6
which case Licensee must give Licensor a minimum of two (2) hours advance notice
specifying the times of Extra HVAC Use, which notice must be given to Licensor
during Normal Business Hours); of if Licensee is in default under or in breach
of the terms, covenants or conditions of this License Agreement; or if Licensor
shall determine, in its sole and exclusive discretion, that such facilities or
services are requested in connection with, or the use thereof shall create or
aid in a default under or a breach of any term, covenant or condition of this
License Agreement. All of the facilities and services referred to in this
Section D are conveniences and are not and shall not be deemed to be
appurtenances to the Premises, and the failure of Licensor to furnish any or all
of such facilities or services shall not constitute or give rise to any claim of
an actual or constructive eviction, in whole or in part, or entitle Licensee to
any abatement or diminution of the License Fee, or relieve Licensee from any of
its obligations under this License Agreement, or impose any liability upon
Licensor or its agents by reason of inconvenience or annoyance to Licensee, or
injury to or interruption of Licensee's business or otherwise.
7. No Representations By Licensor: Licensor acknowledges that no
representation as to the condition of the Premises or the Facility or as to any
manner related to this License Agreement, have been made by Licensor, unless
same are expressly set forth in this License Agreement.
8. Notices: All statements, demands, notices, letters, requests or other
communications which may or are required to be given hereunder (a "Notice"),
shall be deemed to have been properly given if in writing and sent by United
States certified or registered mail, return receipt requested, postage prepaid,
or by nationally recognized overnight delivery service to the address stated
hereinabove or to such other address as either party shall designate to the
other by a Notice given in accordance with the terms hereof. Notices to Licensor
shall also be delivered to Licensor's attorneys, Xxxxxxxx & Schecter LLP, 000
Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000. Notices by Licensor may
be given by Licensor's agent or attorney, on behalf of Licensor. Any Notice to
Licensor or Licensee shall be deemed sufficiently rendered or given on the date
such Notice was mailed.
9. Nature of Licensee's Use: This License Agreement grants a license
only; it shall not be deemed a lease, and Licensee shall not be deemed a tenant
of the Building having a leasehold or other possessory interest in the Premises.
This License Agreement grants to Licensee only a personal privilege to use and
occupy the Premises during the Term on the terms and conditions set forth
herein. Accordingly, to the fullest extent permitted by applicable law, Licensee
hereby waives any rights that Licensee may have as a tenant under applicable
law.
10. Assignment: This License Agreement is personal to Licensee and
Licensee shall not assign, transfer or otherwise encumber this License
Agreement, or
7
the License hereby granted, nor shall Licensee permit or suffer any other person
or entity to use or occupy all or any part of the Premises.
11. Relocation of Licensee: Licensor reserves the right, at its own cost
and expense, to require Licensee, upon at least sixty (60) days' notice, to
vacate the Premises and relinquish its rights with respect to the same, provided
that Licensor provides to Licensee other premises ("Relocation Premises")
elsewhere in the Facility which is an area of substantially equivalent size,
construction and finish to the Premises as designated by Licensor, and further
provided that Licensor shall, at Licensor's sole cost and expense, move Licensee
from the Premises to such Relocation Premises in such manner as will minimize,
to the extent reasonably practicable, undue interference with the business or
operations of Licensee. The Relocation Premises shall, from and after such
relocation, be treated as the Premises demised under this License Agreement, and
shall be occupied by Licensee under the same terms, provisions and conditions as
are set forth in this License Agreement.
12. No Interest in Premises: Licensee hereby expressly acknowledges (a)
that it has no interest or estate in the Premises, (b) that its possession and
control thereof is exclusive, (c) that this is a revocable license which can be
terminated or revoked by Licensor at any time with cause, pursuant to
subparagraph C of Paragraph 2 and Xxxxxxxxx 00 xxxxxx, (x) that this License
Agreement is not binding upon any subsequent owner of the Premises, and (e) that
the provisions of this License Agreement, including the benefits and the
burdens, do not run with the land. The License Agreement shall not be deemed
coupled with an interest under any circumstances.
13. Default. Remedies:
A. Events of Default. Licensor and Licensee agree that each of the
following occurrences shall be deemed to be "Events of Default" under this
License Agreement:
(i) If Licensee shall default in the payment when due of any
installment of the License Fee and/or any other additional charge or sum due
under this License Agreement and such default shall continue for a period of
three (3) days after written notice by Licensor to Licensee of such default; or
(ii) If Licensee shall fail to perform any of the terms,
provisions, covenants or conditions of this License Agreement on Licensee's part
to be performed other than the covenants for the payment of the License Fee
and/or any other additional charge or sum due under this License Agreement and
Licensee shall fail to remedy such default within ten (10) days after written
notice by Licensor to Licensee of such default, or if such default is of such a
nature that it cannot be completely remedied
8
within such ten (10) day period and Licensee shall not commence to cure within
said period and shall not thereafter diligently prosecute to completion all
steps necessary to remedy such default; or
(iii) Licensee shall default in the observance or performance of
any term, covenant or condition on Licensee's part to be observed or performed
under any other license agreement, lease or other occupancy agreement with
Licensor or Licensor's predecessor-in-interest of space in the Facility and such
default shall continue beyond any grace period set forth in such other license
agreement, lease or other occupancy agreement for the remedying of such default;
or
(iv) If Licensee abandons the Premises during the Term hereof;
or
(v) If a trustee in bankruptcy or a receiver be appointed or
elected or had for Licensee; or
(vi) If Licensee, or any general partner of Licensee, shall be
adjudicated a bankrupt or an insolvent or take the benefit of any federal or
state reorganization or composition proceeding or make a general assignment to
or for the benefit of creditors or take the benefit of any insolvency law; or
(vii) If Licensee's interest under this License Agreement shall
be sold under any execution or process of law; or
(viii) If any event shall occur or any contingency shall arise
whereby this License Agreement, or the term created hereby, would (by death,
operation of law or otherwise) devolve upon any persons, firms, officers or
corporations other than Licensee; or
(ix) If there by any lien, judgment, writ, assessment, charge,
attachment or execution on Licensor's or Licensee's interest in this License
Agreement, the Premises, or the fixtures, improvements and furnishings thereon
resulting from any action or inaction of Licensee which is not removed within
thirty (30) days of the date thereof.
B. No Waiver. Any monies received by Licensor from or on behalf of
Licensee during the pendency of any proceeding of the types referred to in items
(v), (vi) or (vii) of Subparagraph A above, shall be deemed paid as compensation
for the use and occupancy of the Premises and the acceptance of any such
compensation by Licensor shall not be deemed an acceptance of the License Fee or
a waiver on the part of Licensor or any of its rights hereunder.
C. Rights in Event of Default. In any such event described in
Subparagraph A above, at the option of Licensor, Licensor may:
9
(i) revoke and terminate the License granted hereby whereupon
the Term shall expire and end and Licensor may retake possession of the Premises
in any manner provided at law; and/or
(ii) exercise any rights or use any remedies or procedures
available in law or equity, which may be cumulative with those in item (i) of
this Subparagraph.
D. Costs of Possession and Reletting. In connection with any of such
events described in Subparagraph C above:
(i) Licensee shall be responsible for all costs, direct and
indirect, of Licensor in retaking possession of and reletting the Premises
including but not limited to attorneys' fees, brokerage charges, court costs,
advertising costs, costs of removal, storage and disposition of property, costs
of refurbishing, repairing and rebuilding the Premises, costs of tenant
inducements in reletting, and unamortized (i.e., amortized over the Term on a
straight-line basis and determined as of the first date on which the License Fee
was due but not paid) portion of (x) the cost to Licensor of preparing the
Premises for Licensee's occupancy, if any and (y) attorneys' fees and costs
incurred by Licensor in negotiation and execution of this License Agreement
("Costs of Possession and Reletting");
(ii) Licensee shall immediately, upon notice from Licensor
(which may have been included in a prior notice such as that given pursuant to
items (i) or (ii) of Subparagraph A above) surrender the Premises to Licensor;
(iii) Licensor may reenter the Premises and remove all persons
and property without being liable for trespass, eviction, forcible detainer or
entry or damages;
(iv) Licensor may treat Licensee's property as abandoned and do
with it whatever Licensor may elect without any accounting to Licensee;
(v) Licensor may declare due and payable, and Licensee shall
then immediately pay, all remaining License Fees payable under this License
Agreement during the balance of the Term, together with all Costs of Possession
and Reletting; and/or
(vi) Licensor may relet (or attempt to relet) the Premises in
its own name or otherwise, in which event:
(1) Licensee shall be responsible and immediately pay
10
Licensor for any deficiency in the net amount (less Costs of Possession and
Reletting) collected by Licensor during each payment period under any such lease
and the amount, if any, which is owed by Licensee but as yet unpaid attributable
to the equivalent payment period;
(2) Licensor shall credit Licensee for net amounts (less
Costs of Possession and Reletting) actually received for each payment period
under the new lease or other occupancy agreement against amounts owed by
Licensee but as yet unpaid attributable to the equivalent pay period;
(3) If Licensee has actually paid Licensor the License Fee
for the equivalent pay period described in Subparagraph D(v) above, then the net
amount actually received by Licensor for such pay period (up to the amount paid
by Licensee attributable to the equivalent pay period) shall be credited against
amounts owing by Licensee but unpaid as to other payment periods or Costs of
Possession and Reletting; if no such amounts remain, the applicable sums
collected by Licensor for the current payment period shall be refunded to
Licensee.
E. No Obligation to Relet. Except as may be required by law,
Licensor shall have no obligation to relet the Premises or any part thereof and
shall in no event be liable for refusal or failure to do so, or, in the event of
any such reletting, for refusal or failure to collect the rent or license fee
due upon any such reletting, and no such refusal or failure shall operate to
relieve Licensee of any liability under this License Agreement or otherwise to
affect any such liability. Licensor, at Licensor's option, may make such
repairs, replacements, alterations, additions, improvements, decorations and
other physical changes in and to the Premises as Licensor, in its sole
discretion, considers advisable or necessary in connection with any such
reletting or proposed reletting, without relieving Licensee of any liability
under this License Agreement or otherwise affecting any such liability. Licensor
may relet on any terms Licensor deems proper and may make such alterations,
repairs, replacements, decorations and other physical changes in and to the
Premises as Licensor in its sole judgment may then consider advisable. In no
event will Licensee be entitled to receive the excess, if any, of rents or other
sums collected over the sums payable by Licensee to Licensor under this, License
Agreement.
14. Additional Licensor Rights; Late Fees:
A. Right to Cure. If Licensee shall default in the observance or
performance of any term or covenant on Licensee's part to be observed or
performed under or by virtue of any of the terms or provisions of this License
Agreement, Licensor may immediately or at any time thereafter on five (5) days'
notice perform the same for the account of Licensee, and if Licensor makes any
expenditures or incurs any obligations for the payment of money in connection
therewith, including but not limited
11
to attorneys' fees and disbursements in instituting, prosecuting or defending
any action or proceeding, such sums paid or obligations incurred with interest
and costs shall be paid by Licensee to Licensor as an additional charge
hereunder within five (5) days of rendition to Licensee of any xxxx or statement
therefor.
B. Late Fees. In the event Licensee fails to pay any installment of
the License Fee or other additional charge or sum payable under this License
Agreement as and when such installment or other charge is due, Licensee shall
pay to Licensor on demand in addition to such installment or other charge
interest on the overdue amount based on a rate equal to eighteen percent (18%)
per annum or, if less, the maximum rate permitted by applicable law, of the
amount unpaid computed from the date such payment was due and including the date
of payment. The provisions for such late charges shall be in addition to all of
Licensor's other rights and remedies under this License Agreement or at law or
in equity and shall not be construed as liquidated damages or as limiting
Licensor's remedies in any manner.
15. Rights and Remedies Cumulative: All the rights and remedies of
Licensor under this License Agreement or pursuant to present or future law shall
be deemed to be separate, distinct, and cumulative. No one or more of them,
whether exercised or not, and no mention of or reference to any one or more of
them in this License Agreement, shall be deemed to be in exclusion of, or a
waiver of, any of the others, or of any of the rights or remedies which Licensor
may have under this License Agreement, at law, and/or in equity. Licensor shall
have, to the fullest extent permitted by law, the right to enforce any rights or
remedies separately and to pursue any lawful action or proceedings to exercise
or enforce any right or remedy without thereby waiving or being barred or
estopped from exercising and enforcing any other rights and remedies by
appropriate action or proceedings.
16. Licensee Claims: If at any time Licensee shall claim Licensor to be
in default or assert any defense to payment of the License Fee or other
additional charge or sums due under this License Agreement, other than the
defense of complete previous payment, Licensee may not withhold any payments
under this License Agreement but must, as a condition precedent to the making of
any such claim or defense pay all sums to Licensor without prejudice to
Licensee's position. This provision is a material inducement to Licensor to
execute this License Agreement.
17. Right of Entry: Licensor, or any of its agents, shall have the right
to enter the Premises during all reasonable hours, (a) to show the Premises to
prospective purchasers, mortgagees, lessees or assignees of all or part of the
Facility or any interest in it, (b) to examine the Premises or to make such
repairs, additions or alterations as may be deemed necessary or desirable for
the safety, comfort, or preservation of the Premises or the Facility, (c) to
exhibit the Premises at any time, (d) to remove placards, signs, fixtures,
alterations or additions which do not conform to this
12
License Agreement or (e) for the purpose of complying with laws, regulations or
other requirements of government authorities. Licensor shall have the right to
take all necessary materials and equipment into the Premises and to store them
within the Premises during any repairs or maintenance. Any entry and activity by
Licensor which is permitted under this Paragraph 17 shall not entitle Licensee
to any abatement of the License Fee, and shall not in any way violate any
provision of this License Agreement. Licensor shall at all times have the right
of entry by master key or, in the event of emergency if Licensee is not present,
by force, without incurring liability therefor. Notwithstanding the foregoing to
the contrary, at Licensee's request, Licensor shall not enter the Premises at
times other than normal business hours unless accompanied by an authorized
representative of Licensee (provided that Licensee makes such representative
available upon not more than two (2) hours prior notice) or unless required in
the event of an emergency. Notwithstanding anything contained herein to the
contrary, any entry upon the Premises by Licensor or its agents pursuant to this
Article 17 shall be effected in a manner intended to minimize interference with
the conduct of Licensee's business in the Premises (but without any requirement
that Licensor utilize overtime or premium pay labor).
18. Attorneys' And Accountants' Fees: If Licensee defaults in the
performance of any of the terms, provisions, covenants and conditions of this
License Agreement and by reason of such default Licensor employs the services of
an attorney or accountant to enforce performance of the covenants, or to perform
any service based upon defaults, then in any of said events Licensor shall be
entitled to attorneys' fees incurred by Licensor pertaining to such matters and
in enforcement of any remedy. Whenever in this License Agreement reference is
made to attorneys' fees, such fees shall be deemed to include attorneys' fees
(including paralegals' and similar support personnel's) and accountant's fees
and all expenses, disbursements and costs (including disbursements, costs and
fees relating to any appeal).
19. Waiver Of Trial By Jury: Licensor and Licensee mutually agree that
the respective parties to this License Agreement shall and do waive trial by
jury in any action, proceeding or counterclaim brought by either of the parties
against the other on any matters arising out of or in any way connected with
this License Agreement, the relationship of Licensor and Licensee, and
Licensee's use or occupancy of the Premises. This waiver is knowingly and
voluntarily given; Licensee acknowledges that this provision is a material
inducement to Licensor to enter into this License Agreement. Licensee further
agrees that it shall not interpose any counterclaim in a summary proceeding or
in any action based upon non-payment of the License Fee or any other payment
required of Licensee under this License Agreement.
20. Insurance:
A. Licensee's Insurance. Licensee shall obtain at its own expense
and keep in full force and effect during the Term, a policy of commercial
general liability
13
insurance under which Licensee is named as the insured, and Licensor, Licensors
managing agent, the present and any future mortgagee of the Facility or the land
underlying the Facility (the "Real Property") and/or such other designees
specified by Licensor from time to time, are named as additional insureds. Such
policy shall contain (i) a provision that no act or omission of Licensee shall
affect or limit the obligation of the insurance company to pay the amount of any
loss sustained, (ii) a waiver of subrogation against Licensor or a consent to a
waiver of right of recovery against Licensor and (iii) an agreement by the
insurer that it will not make any claim against or seek to recover from Licensor
for any loss, damage or claim whether or not covered under such policy. Such
policy shall also contain a provision which provides the insurance company will
not cancel or refuse to renew the policy, or change in any material way the
nature or extent of the coverage provided by such policy, without first giving
Licensor at least thirty (30) days written notice by certified mail, return
receipt requested, which notice shall contain the policy number and the names of
the insureds and policy holder. The minimum limits of liability shall be a
combined single limit with respect to each occurrence in an amount of not less
than $1,000,000 for injury (or death) and damage to property or such greater
amount as Licensor may, from time to time, reasonably require. Licensee shall
also maintain at its own expense during the Term a policy of workers'
compensation insurance providing statutory benefits for Licensee's employees and
employer's liability. Licensee shall provide to Licensor upon execution of this
License Agreement and at least thirty (30) days prior to the termination of any
existing policy, a certificate evidencing the effectiveness of the insurance
policies required to be maintained hereunder which shall include the named
insured, additional insured, carrier, policy number, limits of liability,
effective date, the name of the insurance agent and its telephone number.
Licensee shall provide Licensor with a complete copy of any such policy upon
written request of Licensor. Licensee shall have no right to obtain any of the
insurance required hereunder pursuant to a blanket policy covering other
properties unless the blanket policy contains an endorsement that names
Licensor, Licensor's managing agent and/or designees specified by Licensor from
time to time, as additional insureds, references the Premises, and guarantees a
minimum limit available for the Premises equal to the amount of insurance
required to be maintained hereunder. Each policy required hereunder shall
contain a clause that the policy and the coverage evidenced thereby shall be
primary with respect to any policies carried by Licensor, and that any coverage
carried by Licensor shall be excess insurance. The limits of the insurance
required under this Subparagraph shall not limit the liability of Licensee under
this License Agreement. All insurance required to be carried by Licensee
pursuant to the terms of this License Agreement shall be effected under valid
and enforceable policies issued by reputable and independent insurers permitted
to do business in the State of California, and rated in Best's Insurance Guide,
or any successor thereto (or if there be none, an organization having a national
reputation) as having a general policyholder rating of "A" and a financial
rating of at least "13". In the event that Licensee fails to continuously
maintain insurance as required by this Subparagraph, Licensor may, at its option
and without relieving
14
Licensee of any obligation hereunder, order such insurance and pay for the same
at the expense of Licensee. In such event, Licensee shall repay the amount
expended by Licensor, with interest thereon, immediately upon Licensor's written
demand therefor.
B. Licensee's Improvement Insurance. Licensee shall also maintain at
its own expense during the Term a policy against fire and other casualty on an
"all risk" form covering all alterations, construction and other improvements
installed within the Premises, whether existing in the Premises on the date
hereof or hereinafter installed by or on behalf of Licensor or Licensee, and on
all furniture, fixtures, equipment, personal property and inventory of Licensee
located in the Premises and any property in the care, custody and control of
Licensee (fixed or otherwise) sufficient to provide 100% full replacement value
of such items, which policy shall otherwise comply with the provisions of
Subparagraphs A and C of this Paragraph 20. On any such policy, Licensee shall
name Licensor as a loss payee, as its interest may appear.
C. Waiver of Subrogation. The parties hereto shall procure an
appropriate clause in, or endorsement on, any "all-risk" property insurance
covering the Premises and the Facility, including its respective alterations,
construction and other improvements as well as personal property, fixtures,
furniture, inventory and equipment located thereon or therein, pursuant to which
the insurance companies waive subrogation or consent to a waiver of right of
recovery, and each party hereby agrees that it will not make any claim against
or seek to recover from the other for any loss or damage to its property or the
property of others resulting from fire or other hazards covered by such
"all-risk" property insurance policies to the extent that such loss or damage is
actually recoverable under such policies exclusive of any deductibles. Such
waiver will not apply should any loss or damage result from one of the parties'
gross negligence or willful misconduct. If the payment of an additional premium
is required for the inclusion of such waiver of subrogation provision, each
party shall advise the other of the amount of any such additional premiums and
the other party shall pay the same. It is expressly understood and agreed that
Licensor will not carry insurance on the alterations, construction and other
improvements presently existing or hereafter installed within the Premises or on
Licensee's fixtures, furnishings, equipment, personal property or inventory
located in the Premises or insurance against interruption of Licensee's
business.
21. Indemnity:
A. Licensee's Indemnity. Licensee shall not do or permit any act or
thing to be done upon the Premises which may subject Licensor to any liability
or responsibility for injury, damages to persons or property or to any liability
by reason of any violation of law or of any legal requirement of public
authority, but shall exercise such control over the Premises as to fully protect
Licensor against any such liability. Licensee agrees to indemnify and save
Licensor harmless from and against (a) all claims of whatever nature against
Licensor arising from any act, omission or negligence
15
of Licensee, its contractors, agents, servants, employees, invitees or visitors,
including any claims arising from any act, omission or negligence of Licensor or
both Licensor and Licensee, (b) all claims against Licensor arising from any
accident, injury or damage whatsoever caused to any person or to the property of
any person and occurring during the Term in or about the Premises, (c) all
claims against Licensor arising from any accident, injury or damage occurring
outside of the Premises but anywhere within or about the Real Property, where
such accident, injury or damage results or is claimed to have resulted from an
act or omission of Licensee or Licensee's agents, employees, invitees or
visitors, including any claims arising from any act, omission or negligence of
Licensor or both Licensor and Licensee, (d) any breach, violation or
non-performance of any covenant, condition or agreement in this License
Agreement set forth and contained on the part of Licensee to be fulfilled, kept,
observed and performed, and (e) any claim, loss or liability arising or claimed
to arise from Licensee, or any of Licensee's contractors, licensees, agents,
servants, employees, invitees or visitors causing or permitting any Hazardous
Substance (as hereinafter defined) to be brought upon, kept or used in or about
the Premises or the Real Property or any seepage, escape or release of such
Hazardous Substances. For the purpose of this License Agreement, the term
"Hazardous Substances" shall be deemed to mean asbestos and polychlorinated
biphenyls and all other hazardous or toxic materials, wastes and substances
identified as such pursuant to any law. This indemnity and hold harmless
agreement shall include indemnity from and against any and all liability, fines,
suits, demands, costs and expenses of any kind or nature incurred in or in
connection with any such claim or proceeding brought thereon, and the defense
thereof.
B. Licensor's Indemnity. Notwithstanding anything to the contrary
contained in Section 21.A. above, Licensee shall not be required to protect,
defend, save harmless or indemnify Licensor from any liability for injury, loss,
accident or damage to any person or property resulting solely and directly from
Licensors gross negligence or willful misconduct or that of Licensors agents or
employees in connection with Licensors activities on or about the Premises, the
Building or the Facility (including the common areas), Licensor hereby
indemnifies and agrees to protect, defend and hold Licensee harmless from and
against any liability for injury, loss, accident or damage to any person or
property resulting solely and directly from Licensor's gross negligence or
willful misconduct or that of Licensors agents and employees in connection with
Licensors activities in or about the Building or the Facility. Such exclusion
from Licensee's indemnity and such agreement by Licensor to so indemnify and
hold Licensee harmless are not intended to and shall not relieve any insurance
carrier of its obligations under policies required to be carried by Licensee
pursuant to the provisions of this Lease to the extent that such policies cover
(or, if such policies would have been carried as required, would have covered)
the result of gross negligence or willful misconduct of Licensor or those of its
agents or employees.
22. Subordination: This License Agreement is subject and subordinate to
16
each and every ground lease, master lease or underlying lease of the Facility or
the real property thereunder ("Real Property"), covenants, conditions and
restrictions, reciprocal easement agreements, and parking agreements relating to
the operation, management and development of the Facility, heretofore or
hereafter made and to each and every trust indenture and mortgage (or the lien
thereof) which may now or hereafter affect the Real Property, the Facility or
any such superior interest and the leasehold interest created thereby, and to
all renewals, extensions, supplements, amendments, modifications,
consolidations, and replacements thereof or thereto, substitutions therefor and
advances made thereunder (collectively, the "Superior Interests"). This clause
shall be self-operative and no further instrument of subordination shall be
required to give effect to said provisions. In confirmation of such
subordination, however, Licensee shall execute promptly any certificate that
Licensor may request and Licensee hereby irrevocably constitutes and appoints
Licensor as Licensee's attorney-in-fact to execute any such certificate or
certificates for and on behalf of Licensee. If the date of expiration of any
Superior Interest shall be the same day as the Expiration Date, the Term shall
end and expire twelve (12) hours prior to the expiration of the Superior
Interest. If, in connection with the financing of the Real Property, the
Facility or any part thereof or the interest of the lessee under any Superior
Interest, any lending institution shall request reasonable modifications of this
License Agreement that do not materially increase the obligations or materially
and adversely affect the rights of Licensee under this License Agreement,
Licensee covenants to make such modifications. Nothing contained in this
Paragraph 22 shall be construed to impair any right otherwise exercisable by
Licensor or any holder of a Superior Interest.
23. Inability to Perform: This License Agreement and the obligation of
Licensee to pay the License Fee and additional charges hereunder and perform all
of the other covenants and agreements hereunder on the part of Licensee to be
performed shall in nowise be affected, impaired or excused because Licensor is
unable to fulfill any of its obligations under this License Agreement expressly
or impliedly to be performed by Licensor or because Licensor is unable to make,
or is delayed in making any repairs, additions, alterations, improvements or
decorations or is unable to supply or is delayed in supplying any equipment or
fixtures if Licensor is prevented or delayed from so doing by reason of strikes
or labor troubles or by accident or by any cause whatsoever reasonably beyond
Licensors control, including but not limited to, laws, governmental preemption
in connection with a national emergency or by reason of any rule, order or
regulation of any federal, state, county or municipal authority or any
department or subdivision thereof or any government agency or by reason of the
conditions of supply and demand which have been or are affected by war or other
emergency.
24. Limitation of Licensors Liability: Licensee agrees that its remedies
hereunder shall be limited solely to the interest of Licensor in the Building,
so that no other property or asset of Licensor or Licensors principal if he
holds as a nominee, or
17
any individual partner, trustee, stockholder, member, officer, employee or
beneficiary of Licensor or its principal, shall be subject to levy, execution or
any other enforcement procedure by Licensee with regard to any obligation
hereunder. In no event shall Licensor, Licensor's principal, or any trustee,
stockholder, member, officer, employee or beneficiary of Licensor have any
personal liability upon any of the covenants or agreements of Licensor expressed
herein or implied hereunder.
25. Directory Listing: Licensor agrees to provide Licensee, at
Licensor's sole cost and expense, with a single listing of Licensee's name on
the directory in the lobby of the Building.
26. Signage: Licensee shall not exhibit, inscribe, paint or affix any
sign, advertisement, notice or other lettering on any portion of the Building or
the outside of the Premises without the prior written consent of Licensor in
each instance. Any signage, advertisement, notice or other lettering which shall
be exhibited, inscribed, painted or affixed by or on behalf of Licensee in
violation of the provisions of this Paragraph may be removed by Licensor and the
cost of any such removal shall be paid by Licensee as an additional charge
hereunder.
27. Parking:
A. Spaces. During the Term of this License Agreement, provided
Licensee pays the parking fees therefor, Licensee may use up to twelve (12)
non-exclusive, unreserved surface parking spaces, subject to the terms of that
certain Construction, Operation and Reciprocal Easement Agreement for the
Facility recorded July 30, 1985 as Instrument No. 85-279768 in the Official
Records of Orange County, California (the "REA"). Licensee's use of parking
spaces may be subject to any parking control system, sticker or permit system
now in place or hereafter implemented by Licensor or the operator of the parking
facilities at any time. Access to the parking facilities for monthly users is
currently by parking identification devices, which are currently transponders.
Upon Licensee's request, Licensor shall cause to be issued to Licensee's
employees, agents or other authorized users, vehicle transponders in an amount
not to exceed the maximum number of parking spaces allocated to Licensee under
this License Agreement. As a condition of the issuance of any transponders for
parking spaces at the parking facilities, Licensee shall pay to Licensor a
transponder a security deposit. Licensor reserves the right to increase the
amount of the transponder security deposit in conjunction with future requests
for transponders, whether such transponders are requested for replacement
purposes or for new users. Licensor or the operator of the parking facilities
shall have the right to change the location of parking from time to time.
B. Visitor Parking. So long as this License Agreement is in effect,
Licensee's visitor's and guests will be entitled to use those parking areas
designated for short term visitor parking or unreserved spaces elsewhere within
the parking facilities.
18
Licensee's visitors and guests shall pay therefor the then current market rates
established by the operator of the parking facilities. Licensee, at its sole
cost and expense, may elect to validate such parking for its visitors and
guests. All such visitor parking will be on a non-exclusive, in common basis
with all other tenants, visitors and guests of the Facility.
C. Control. Subject to the terms of the REA, Landlord shall have the
sole and exclusive control of the parking facilities. Licensor may, at any time
and from time to time during the Term exclude any person from use or occupancy
thereof who is not permitted to use the Premises or is not an employee, invitee,
guest or licensee of Licensee. Licensee shall not cause or permit any
obstruction to the free and clear use of the parking facilities. Licensee shall
not use or allow any of its employees or invitees to use any parking spaces
which have been specifically assigned by Licensor to other tenants or occupants
or for other uses such as visitor or short-term parking or which have been
designated by any governmental entity as being restricted to certain uses.
Licensor shall have no liability to Licensee, nor shall Licensee's obligations
under this License Agreement be in any way excused or modified, if Licensee's
parking privilege under this License Agreement is affected or impaired in any
way by reason of any moratorium, initiative, referendum, statute, regulation or
other governmental decree or action or pursuant to the terms of the REA or by
virtue of any act of the owner or operator of the parking facilities. Any
governmental charges, surcharges or other monetary obligations which may be
imposed in connection with parking privileges appurtenant to this License
Agreement or with the operation of the parking facilities shall be paid with the
License Fee. Licensee and its invitees, employees, agents and guests shall
faithfully observe and comply with all applicable laws now in effect or
hereafter promulgated relating to the trafficking, operation, occupancy or use
of the parking and the parking facilities.
D. General Provisions. Licensor reserves the right to set and
increase monthly fees and/or daily and hourly rates for parking privileges from
time to time during the Term of this License Agreement. Licensee shall pay, from
time to time, the then market rate for any parking spaces, which rates shall be
subject to increase from time to time throughout the Term. Licensee acknowledges
and agrees that charges for reserved and unreserved parking spaces, both within
and outside of the parking structures, shall be the then respective fair market
rates therefor determined by Licensor or the operator of the parking facilities
from time to time. Licensee shall pay its parking fees to Licensor monthly in
advance, concurrently with its payments of the License Fee under this License
Agreement. Licensor may assign any unreserved and unassigned parking spaces
and/or make all or any portion of such spaces reserved, if Licensor reasonably
determines that it is necessary for orderly and efficient parking or for any
other reasonable reason. Failure to pay the rent for any particular parking
spaces or failure to comply with any terms and conditions of this License
Agreement applicable to parking may be treated by Licensor as an Event of
Default under this
19
License Agreement and, in addition to all other remedies available to Licensor
under the License Agreement, at law or in equity, Licensor may elect to
recapture such parking spaces for the balance of the Term of this License
Agreement if Licensee does not cure such failure within the applicable cure
period. Licensee's parking rights and privileges described herein are personal
to Licensee and may not be assigned or transferred, or otherwise conveyed,
without Licensor's prior written consent, which consent Licensor may withhold in
its sole and absolute discretion. In any event, under no circumstance may
Licensee's parking rights and privileges be transferred, assigned or otherwise
conveyed separate and apart from Licensee's interest in this License Agreement.
E. Cooperation with Traffic Mitigation Measures. Licensee agrees to
use its reasonable, good faith efforts to cooperate in traffic mitigation
programs which may be undertaken by Licensor independently, or in cooperation
with local municipalities or governmental agencies or other property owners in
the vicinity of the Facility. Such programs may include, but will not be limited
to, carpools, vanpools and other ridesharing programs, public and private
transit, flexible work hours, preferential assigned parking programs and
programs to coordinate tenants within the Facility and the Project with existing
or proposed traffic mitigation programs.
F. Parking Rules and Regulations. Licensee shall comply with all
rules and regulations regarding parking set forth in Exhibit B attached hereto
and Licensee agrees to cause its employees, assignees, contractors, suppliers,
customers and invitees to comply with such rules and regulations. In addition,
Licensee shall complete, and shall cause all of its employees, invitees and
guests utilizing the parking facilities at any time to complete, a xxxxxx
information form which shall include, without limitation, the name of such
xxxxxx, such xxxxxx'x vehicle registration number and other identification
information and the xxxxxx'x driver's license number and such other information
required by Licensor or the operator of the parking facilities from time to
time. Licensor reserves the right from time to time to modify and/or adopt such
other reasonable and non-discriminatory rules and regulations for the parking
facilities as it deems reasonably necessary for the operation of the parking
facilities.
28. Assurance Deposit: Licensee shall deposit with Licensor upon
Licensee's execution of this License Agreement the sum of Twenty Thousand and
00/100 ($20,000.00) Dollars (the "Assurance Deposit") to assure the faithful
performance and observance by Licensee of all of the terms, conditions and
provisions of this License Agreement, including, without limitation, the
surrender of possession of the Premises to Licensor as provided in this License
Agreement. In the event Licensee defaults in respect of any of the terms,
conditions or provisions of this License Agreement, including, but not limited
to, the payment of the Licensee Fee, Licensor may apply or retain the whole or
any part of the Assurance Deposit so deposited to the extent required for the
payment of the License Fee or any other sum as to which Licensee is in
20
default or for any sum which Licensor may expend or may be required to expend by
reason of Licensee's default in respect of any of the terms, covenants and
conditions of this License Agreement, whether such damages or deficiency
accrue(s) before or after summary proceedings or other reentry by Licensor. If
Licensor applies or retains any part of the Assurance Deposit so deposited,
Licensee shall, within three (3) days after notice from Licensor, deposit with
Licensor the amount so applied or retained so that Licensor shall have the full
Assurance Deposit on hand at all times during the Term (as the same may be
hereinafter extended). Licensor will not be required to pay Licensee any
interest on the Assurance Deposit. If Licensee shall fully and faithfully comply
with all of the terms, provisions, covenants and conditions of this License
Agreement, the Assurance Deposit shall be returned to Licensee after the
expiration of the Term (as the same may be hereinafter extended), after delivery
of the entire possession of the Premises and keys thereto to Licensor, and after
the determination and payment of all amounts due under this License Agreement.
Licensee further covenants that it will not assign or encumber or attempt to
assign or encumber the Assurance Deposit and that neither Licensor nor its
successors or assigns shall be bound by any such actual or attempted assignment
or encumbrance.
29. Broker: Licensee represents and warrants that Licensee has not dealt
with any broker or agent in connection with this License Agreement, and that
insofar as Licensee knows no broker or agent negotiated this License Agreement
or is entitled to any commission in connection therewith, and the execution and
delivery of this License Agreement by Licensor shall be conclusive evidence that
Licensor has relied upon the foregoing representation and warranty.
30. Enforceability: This License Agreement shall not be binding upon
Licensor unless and until Licensor delivers fully executed counterpart hereof to
Licensee.
31. Governing Law: This License Agreement shall be construed, governed
and enforced in accordance with the laws of the State of California.
32. Binding Effect: This License Agreement shall be binding upon, and
shall inure to the benefit of the parties and their representatives, successors
and permitted assigns.
33. Modifications, etc.; Entire Agreement: No modification, waiver or
amendment of this License Agreement or any provision herein shall be valued
unless the same is in writing and is signed by the party against which the
enforcement of such modification, waiver or amendment is sought. This License
Agreement contains the entire agreement between the parties hereto relating to
the transactions contemplated hereby, and all prior or contemporaneous
agreements, understandings, representations and statements, oral or written, are
merged herein.
21
IN WITNESS WHEREOF, this License Agreement has been duly executed by the
parties hereto on the date first written above.
LICENSOR:
WINTHROP CALIFORNIA MANAGEMENT LIMITED PARTNERSHIP
as authorized agent for JAMBOREE LLC
By: WINTHROP WEST COAST REALTY SERVICES, INC.
By: /s/ XXXXXX X. XXXXX
-----------------------------------------------------------
Xxxxxx X. Xxxxx
Its Vice President and Secretary
LICENSEE:
XXXXXXXXXXXX.XXX, INC.,
a Delaware corporation
By: /s/ XXXXXXX XXXXXXX
-------------------------------
Name: XXXXXXX XXXXXXX
-----------------------------
Title: CFO
----------------------------
22
Exhibit A
[FLOOR PLAN OF THE TOWER BUILDING]
23
Exhibit B
Rules and Regulations
A. General Rules and Regulations. The following rules and regulations
govern the use of the Facility, including the Building, each tenant's premises
and all common areas. Each tenant shall be bound by such rules and regulations
and shall be responsible for the observance of these rules and regulations by
its employees, subtenants, assignees, contractors, suppliers, customers,
invitees and guests.
1. Sidewalks, halls, passages, exits, entrances, elevators,
escalators and stairways of the Facility shall not be obstructed by tenants or
used by them for any purpose other than for ingress to and egress from their
respective premises. The halls, passages, exits, entrances, elevators,
stairways, balconies and roof are not for the use of the general public and
Licensor shall in all cases retain the right to control and prevent access
thereto by all persons whose presence in the judgment of Licensor shall be
prejudicial to the safety, character, reputation and interests of the Facility
and its tenants, provided that nothing herein contained shall be construed to
prevent such access to persons with whom any tenant normally deals in the
ordinary course of such tenant's business unless such persons are engaged in
illegal activity. No tenant and no employee or invitee of and tenant shall go
upon the roof of the Corporate Tower or any other building in the Facility,
except as authorized by Licensor.
2. No sign, placard, picture, name, advertisement or notice, visible
from the exterior of the premises shall be inscribed, painted, affixed,
installed or otherwise displayed by any tenant either on its premises or any
part of the Facility without the prior written consent of Licensor. Licensor
shall have the right to remove any such sign, placard, picture, name,
advertisement or notice without notice to and at the expense of the tenant. If
Licensor shall have given such consent to any tenant at any time, whether before
or after the execution of the License Agreement, such consent shall in no way
operate as a waiver or release of any of the provisions hereof or of such
License Agreement and shall be deemed to relate only to the particular sign,
placard, picture, name, advertisement or notice so consented to by Licensor and
shall not be construed as dispensing with the necessity of obtaining the
specific written consent of Licensor with respect to any other such sign,
placard, picture, name, advertisement or notice. All approved signs or lettering
on doors and walls shall be printed, painted, affixed or inscribed at the
expense of the tenant by a person approved by Licensor.
3. All bulletin boards or directories or other name identifications,
if any, will be provided exclusively for the display of the name and location of
tenants only and Licensor reserves the right to exclude any other names
therefrom.
24
4. No curtains, draperies, blinds, shutters, shades, screens or other
coverings, awnings, hangings or decorations shall be attached to, hung or placed
in, or used in connection with, any window or door on any premises without the
prior written consent of Licensor. In any event, with the prior written consent
of Licensor, all such items shall be installed inboard of Licensor's standard
window covering and shall in no way be visible from the exterior of the
Facility. No articles shall be placed or kept on the window xxxxx so as to be
visible from the exterior of the Facility. No articles shall be placed against
glass partitions or doors or any window or wall which might appear unsightly
from outside tenant's premises.
5. Licensor reserves the right to exclude from the Facility between
the hours of 6:00 p.m. and 8:00 a.m. and after 2:00 p.m. on Saturdays and at all
hours on Sundays and holidays all persons who are not tenants or their
accompanied guests in the Facility. Licensor, at its option, may require all
persons admitted to or leaving the Facility or certain portions of the Facility
during such hours to register. Each tenant shall be responsible for all persons
for whom it allows to enter the Facility and shall be liable for damages for
error with regard to the admission to or exclusion from the Facility of any
person. During the continuance of any invasion, mob, riot, public excitement or
other circumstance rendering such action advisable in Licensor's opinion,
Licensor reserves the right to prevent access to the Facility by closing the
doors, or otherwise, for the safety of tenants and protection of the Facility
and property in the Facility. Subject to Licensor's prior reasonable approval,
tenant shall not permit the visit to the premises of persons in such numbers or
under such conditions as will interfere with the use and enjoyment of the common
areas by others or with the use and enjoyment of the premises leased to other
tenants in the Facility.
6. No tenant shall employ any person or persons other than the
janitor of Licensor for the purpose of cleaning its premises unless otherwise
agreed to by Licensor in writing. Except with the written consent of Licensor no
person or persons other than those approved by Licensor shall be permitted to
enter the Facility for the purpose of cleaning the same. No tenant shall cause
any unnecessary labor by reason of such tenant's carelessness or indifference in
the preservation of good order and cleanliness of the premises. Janitorial
services shall be provided to Licensor by independent contractors who are
bonded.
7. No tenant shall obtain for use upon its premises food, beverage,
or other similar services except through facilities provided by Licensor (and
maintained by tenant) and under regulations fixed by Licensor, or accept
barbering or bootblacking services in its premises except from persons
authorized by Licensor at such reasonable hours and under such reasonable
regulations as may be fixed by Licensor. Licensor expressly reserves the right
to absolutely prohibit solicitation, canvassing, sales and displays of products,
goods and wares in all portions of the Facility except for such activities as
may be expressly requested by a tenant and conducted solely within such
requesting tenant's premises. Licensor reserves the right to restrict and
regulate the use of the common areas of the Facility and the Building by
invitees of tenants providing services to tenants on a periodic or daily basis
including food and beverage vendors. Such restrictions may include limitations
on time, place, manner and duration of access to a tenant's
Exhibit B-2
25
premises for such purposes. Without limiting the foregoing, Licensor may require
that such parties use service elevators, halls, passageways and stairways for
such purposes to preserve access within the Building for tenants and the general
public. No tenant shall install, maintain operate upon the premises any vending
machine without the written consent of Licensor, except for machines which
dispense candy, ice water, soft drinks and cigarettes. Microwave ovens for
preparation of food for the convenience of a tenant's employees, guests and
invitees are permitted, as provided in Paragraph 15 of these rules and
regulations.
8. Each tenant shall see that all doors of its premises are closed
and securely locked and must observe strict care and caution that all water
faucets or water apparatus are entirely shut off before the tenant or its
employees leave such premises, and that all utilities shall likewise be
carefully and entirely shut off, so as to prevent waste or damage, and for any
default or carelessness the tenant shall make good all injuries sustained by
other tenants or occupants of the Facility or Licensor. On multiple-tenancy
floors, all tenants shall keep the door or doors to the Facility corridors
closed at all times except for ingress or egress.
9. Licensee shall use its reasonable efforts to not waste
electricity, water or air-conditioning and agrees to gate fully with Licensor to
assure the most effective operation of the Facility's heating and
air-conditioning, and shall refrain from attempting to adjust any controls other
than room thermostats installed for tenant's use.
10. No tenant shall alter any lock or access device or install any
new additional locks or access devices or any bolts on any door of its premises
without the prior written consent of Licensor. If Licensor shall give its
consent, the tenant shall in each case furnish Licensor with a key for any such
lock, bolt or device. Licensor agrees to cooperate with tenant in coordinating
security access and control systems for the premises and the facility. In no
event shall tenant install or operate such security systems which are in
conflict with systems installed or operated by Licensor.
11. No tenant shall make or have made additional copies of any keys
or access provided by Licensor. Each tenant, upon the termination of the
tenancy, shall deliver to Licensor all the keys or access devices for the
Facility, offices, rooms and toilet rooms which shall have been furnished the
tenant or which the tenant shall have had made. In the event of the loss of any
keys or access devices so furnished by Licensor, tenant shall pay Licensor
therefor.
12. The toilet rooms, toilets, urinals, wash bowls and other
apparatus shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be thrown
therein, and the expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the tenant who, or whose employees or
invitees, shall have caused it.
13. No tenant shall use or keep in premises or otherwise on the
Facility any kerosene, gasoline or inflammable or combustible fluid or material
other than limited quantities
Exhibit B-3
26
necessary for the operation or maintenance of office or office equipment. Any
permitted corrosion, flammable or other special wastes shall be handled for
disposal as directed by Licensor. No tenant shall use any method of heating or
air-conditioning other than that supplied by Licensor.
14. No tenant shall use, keep or permit to be used or kept in its
premises any foul or noxious gas or substance or permit or suffer such premises
to be occupied or used in a manner offensive or objectionable to Licensor or
other occupants of the Facility by reason of noise, odors and/or vibrations or
interfere in any way with other tenants or those having business therein, nor
shall any animals or birds be brought or kept in or about any premises of the
Facility.
15. Except as otherwise permitted by Licensor, no cooking shall be
done or permitted by any tenant on its premises (except that use by tenant of
Underwriters' Laboratory approved equipment for the preparation of beverages and
food for tenants and their employees, guests and invitees shall be permitted,
provided that such equipment and use is in accordance with all applicable
federal, state and city laws, codes, ordinances, rules and regulations), nor
shall premises be used for washing clothes or lodging.
16. Except with the prior written consent of Licensor, no tenant
shall sell, or permit the sale, at retail, of newspapers, magazines,
periodicals, theater tickets or any other goods or merchandise in or on any
premises, nor shall tenant carry on, or permit or allow any employee or other
person to carry on, the business of stenography, typewriting or any similar
business in or from any premises for the service or accommodation of occupants
of any other Facility, nor shall the premises of any tenant be used for the
storage of merchandise or for manufacturing of any kind, or the business of a
public xxxxxx shop, beauty parlor, nor shall the premises of any tenant be used
for any improper, immoral or objectionable purpose, or any business or activity
other than that specifically provided for in such tenant's lease.
17. If Licensee requires telegraphic, telephonic, burglar alarm or
similar services, it shall first obtain, and comply with, Licensor's
instructions in their installation.
18. Licensor will direct electricians as to where and how telephone
telegraph and electrical wires are to be introduced or installed. No boring or
cutting for wires will be allowed without the prior written consent of Licensor.
The location of burglar alarms, telephones, call boxes and other equipment
affixed to all premises shall be subject to the written approval of Licensor.
19. No tenant without Licensor's prior approval shall install any
radio or television antenna, loudspeaker or any other device on the exterior
walls or the roof of the Facility. No tenant shall interfere with radio or
television broadcasting or reception from or in the Facility or elsewhere.
20. No tenant shall lay linoleum, tile, carpet or any other floor
covering so that the same shall be affixed to the floor of its premises in any
manner except as approved in writing
Exhibit B-4
27
by Licensor. The expense of repairing any damage resulting from a violation of
this rule or the removal of any floor covering shall be borne by the tenant of
whom, or by whose contractors, employees or invitees, the damage shall have been
caused. No tenant shall place floormats or other objects outside the boundaries
of its premises.
21. No furniture, freight, equipment, materials, supplies, packages,
merchandise or other property will be received in the Facility except between
such hours and at such locations designated by Licensor. Such items shall be
carried up and down only in such elevators as shall be designated by Licensor.
Licensee shall be responsible for receiving, checking, inspecting and paying for
deliveries of such merchandise, supplies, goods, materials, equipment and
products addressed to tenant and shall be responsible for moving these items to
its premises. Licensor will not accept deliveries for tenants.
22. Licensor shall have the right to prescribe the weight, size and
position of all safes, furniture or other heavy equipment brought into the
Facility. Safes or other heavy objects shall, if considered necessary by
Licensor, stand on wood strips of such thickness as determined by Licensor to be
necessary to distribute properly the weight thereof. Licensor shall not be
responsible for loss of or damage to any such safe, equipment or property from
any cause, and all damage done to the Facility by moving or maintaining any such
safe, equipment or other property shall be repaired at the expense of the
tenant.
23. No tenant shall place a load upon any floor of the premises which
exceeds the load per square foot which such floor was designed to carry and
which is allowed by law. No tenant shall xxxx, or drive nails, screw or drill
into, the partitions, woodwork or plaster or in any way deface such premises or
any part thereof, except as may be reasonably necessary in minor decoration of
the premises. No tenant shall xxxx or defile escalators, elevators, water
closets, toilet room walls, windows, doors, or any other part of the Facility or
the Common Area.
24. There shall not be used in any space, or in the public areas of
any of the common areas, either by any tenant or others, any hand trucks except
those equipped with rubber tires and side guards or such other material-handling
equipment as Licensor may approve. No other vehicles of any kind (except a
wheelchair for an individual) shall be brought by any tenant into or kept in or
about the premises.
25. Each tenant shall store all its trash and garbage within the
interior of its premises or within receptacles provided by Licensor. No material
shall be placed in the trash boxes or receptacles if such material is of such
nature that it may not be disposed of in the ordinary and customary manner of
removing and disposing of trash and garbage in the city without violation of any
law or ordinance governing such disposal. All trash, garbage and refuse disposal
shall be made only through entryways and elevators provided for such purposes
and at such time as Licensor shall designate.
Exhibit B-5
28
26. Canvassing, soliciting, distribution of handbills or any other
written material, and peddling in the Facility are prohibited and each tenant
shall cooperate to prevent the same. No tenant shall make room-to-room
solicitation of business from other tenants in the Facility.
27. Licensor may in the exterior of the Facility designate and use or
authorize the use of areas for shows, festivals or other events, both public and
private. Any fees collected from individuals or organizations for the use of
such areas may be used by Licensor for any purpose Licensor desires.
28. Licensee shall: (a) not effect or execute any agreement or other
instrument whereby its premises or any part thereof is restricted on the basis
of age, religion, sex or national origin in the sale, lease or occupancy
thereof; (b) not discriminate in the use or occupancy of any or all of its
premises against any person because of age, race, color, sex, religion or
national origin, not shall any person be deprived of the right to use its
premises or any of the facilities therein by reason of race, color, sex,
religion, national origin, or, except where required by law, age: and (c) comply
with all federal, state and local laws, ordinances, rules and regulations, in
effect from time to time, prohibiting discrimination or segregation by reason of
race, religion, color, sex, national origin, or except where dictated by law,
age.
29. Licensor shall have the right, exercisable upon reasonable
advance notice and without liability to any tenant, to change the name and
address of the Facility and the arrangement and/or location of the common areas
and to install and maintain a sign or signs on the exterior of any building or
in any corridor and passageway.
30. Licensor reserves and shall have the right voluntarily or
pursuant to government requirements, at Licensor's expense, to make repairs,
alterations or improvements in or to the Facility or any part thereof, and
during such repair, alteration or improvement work to temporarily block or close
entrances, doors, windows, corridors, elevators, or other common areas, provided
that such temporary blocking or closing shall not unreasonably interfere with
any tenant's use and occupancy of its premises or the Facility and take any and
all measures, including inspections, repairs, alterations, additions and
improvements to the Premises or the Facility as may be necessary or desirable
for the safety, protection or preservation of the Premises or Facility, the
Licensor's interest therein, or as may be necessary or desirable in the
operation of the Facility.
31. Licensor reserves the right to grant any tenant the exclusive
right to conduct any particular business or undertaking in the Facility.
32. Licensor reserves the right to exclude or expel from the Facility
any person who, in Licensor's judgment is intoxicated or under the influence of
liquor or drugs or who is in violation of any of the Rules and Regulations of
the Facility.
Exhibit B-6
29
33. Without the prior written consent of Licensor, no tenant shall
use the name of the Facility in connection with or in promoting or advertising
the business of tenant except as such tenant's address. Licensor may prohibit
any advertisement by any tenant, which in Licensor's opinion, tends to impair
the reputation or desirability of the Facility. Upon receipt of written notice
from Licensor objecting to such advertising, tenant shall cease and refrain from
such advertising.
34. Licensee shall comply with all safety, fire protection and
evacuation procedures and regulations established by Licensor or any
governmental agency.
35. Licensee assumes any and all responsibility for protecting its
premises from theft, robbery and pilferage, which includes keeping doors locked
and other means of entry to its premises closed.
36. Licensees authorized to sell or serve food shall not employ
persons who do not have and keep a neat, clean appearance or who are sloppy and
careless in their food handling work habits.
37. The requirements of tenants will be attended to only upon
application at the office of the Facility by an authorized individual. Employees
of Licensor shall not perform any work or do anything outside of their regular
duties unless under special instructions from Licensor, and no employees will
admit any person (tenant or otherwise) to any office without specific
instructions from Licensor.
38. Licensor may waive any one or more of these Rules and regulations
for the benefit of any particular tenant or tenants, but no such waiver by
Licensor shall be construed as a waiver of such Rules and Regulations in favor
of any other tenant or tenants, nor prevent Licensor from thereafter enforcing
any such Rules and Regulations against any or all tenants of the Facility.
39. Licensor reserves the right to make such other and reasonable
rules and regulations as in its judgment may from time to time be needed for
safety and security, for care and cleanliness of the Facility and for the
preservation of good order therein. Licensee agrees to abide by all such Rules
and Regulations which are adopted.
40. The Rules and Regulations are in addition to, and shall not be
construed to in any way modify, alter or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of any Premises in the
Facility. Whenever in these Rules and Regulations the word "tenant" is used it
shall apply to and include the tenant under the lease and its agents, employees,
customer and vendors. Similarly, the word "Licensor" shall include the Licensor,
its agents, employees, contractors and vendors.
Exhibit B-7
30
B. Parking Rules and Regulations. The following rules and regulations
govern the use of the parking facilities which serve the Facility, subject to
the terms of the REA and the rules and regulations promulgated by Licensor or
the operator of the parking facilities from time to time. Licensee will be bound
by such rules and regulations and agrees to cause its employees, assignees,
contractors, suppliers, customers and invitees to observe the same:
1. Licensee will not permit or allow any vehicles that belong to or
are controlled by Licensee or Licensee's employees, customers or invitees to be
loaded, unloaded or parked in areas other than those designated by Licensor for
such activities. No vehicles are to be left in the parking areas overnight and
no vehicles are to be parked in the parking areas other than normally sized
passenger automobiles, motorcycles and pick-up trucks. No extended term storage
of vehicles is permitted.
2. Vehicles must be parked entirely within painted stall lines of a
single parking
stall.
3. All directional signs and arrows must be observed.
4. The speed limit within all parking areas shall be five (5) miles
per hour.
5. Parking is prohibited:
(a) in areas not striped for parking;
(b) in aisles or on ramps, if any;
(c) where "no parking" signs are posted;
(d) in cross-hatched areas; and
(e) in such other areas as may be designated from time to
time by Licensor or Licensor's parking operator.
6. Licensor reserves the right, without cost or liability to
Licensor, to tow any vehicle if such vehicle's audio theft alarm system remains
engaged for an unreasonable period of time.
7. Washing, waxing, cleaning or servicing of any vehicle in any area
not specifically reserved for such purpose is prohibited.
8. Licensor may refuse to permit any person to park in the parking
facilities who violates these rules with unreasonable frequency, and any
violation of these rules shall subject the violator's car to removal, at such
car owner's expense. Licensee agrees to use its best efforts
Exhibit B-8
31
to acquaint its employees, assignees, contractors, suppliers, customers and
invitees with these parking provisions, rules and regulations.
9. Parking stickers, access cards, or any other device or form of
identification supplied by Licensor as a condition of use of the parking
facilities shall remain the property of Licensor. Parking identification
devices, if utilized by Licensor, 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. Parking identification devices, if any, are not
transferable and any device in the possession of an unauthorized holder will be
void. Licensor or the operator of the parking facilities reserves the right to
refuse the sale of monthly stickers or other parking identification devices to
Licensee or any of its agents, employees or representatives who willfully refuse
to comply with these rules and regulations and all unposted city, state or
federal ordinances, laws or agreements.
10. Loss or theft of parking identification devices or access cards
must be reported to the management office in the Facility immediately, and a
lost or stolen report must be filed by the Licensee or user of such parking
identification device or access card at the time. Licensor has the right to ewe
any vehicle from the parking facilities that does not have a parking
identification device or valid access card. Any parking identification device or
access card which is reported lost or stolen and which is subsequently found in
the possession of an unauthorized person will be confiscated and the illegal
holder will be subject to prosecution.
11. All damage or loss claimed to be the responsibility of Licensor
must be reported, itemized in writing and delivered to the management office
located within the Facility within ten (10) business days after any claimed
damage or loss occurs. Any claim not so made is waived. Licensor is not
responsible for damage by water or fire, or for the acts or omissions of others,
or for articles left in vehicles. In any event, the total liability of Licensor,
if any, is limited to Two Hundred Fifty Dollars ($250.00) for all damages or
loss to any car. Licensor is not responsible for loss of use.
12. The parking operators, managers or attendants are not authorized
to make or allow any exceptions to these rules and regulations, without the
express written consent of Licensor. Any exceptions to these rules and
regulations made by the parking operators, managers or attendants without the
express written consent of Licensor will not be deemed to have been approved by
Licensor.
13. Licensor reserves the right, without cost or liability to
Licensor, to tow any vehicles which are used or parked in violation of these
rules and regulations.
14. Licensor reserves the right from time to time to modify and/or
adopt such other reasonable and non-discriminatory rules and regulations for the
parking facilities as it deems reasonably necessary for the operation of the
parking facilities.
Exhibit B-9
