OFFICE LEASE Between DOUGLAS EMMETT 1995, LLC, a Delaware limited liability company as Landlord and PLATINUM STUDIOS, LLC, a California limited liability company as Tenant Dated July 10, 2006
Exhibit
10.8
Between
XXXXXXX
XXXXXX 1995, LLC,
a
Delaware limited liability company
as
Landlord
and
PLATINUM
STUDIOS, LLC,
a
California limited liability company
as
Tenant
Dated
July
10,
2006
BASIC
LEASE INFORMATION
|
Date:
Landlord:
Tenant:
|
July
10, 2006
XXXXXXX
XXXXXX 1995, LLC,
a
Delaware limited liability company
PLATINUM
STUDIOS, LLC,
a
California limited liability
company
|
|
SECTION
|
||
|
1.1
|
Premisses:
|
11400
Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
|
| 1.4 | Rentable Area of Premises: | Approximately 12,493 square feet |
| 1.4 | Usable Area of Premises: | Approximately 11,357 square feet |
| 2.1 | Delivery Date | One (1) business day after the full execution of the Lease |
| Beneficial Occupancy Period | Delivery Date until August 31, 2006 | |
| Term: | Five (5) Years | |
| Commencement Date: | September 1, 2006 | |
| Expiration Date: | August 31, 2011 | |
| 3.1 | Fixed Monthly Rent: | $31,857.15 per month for the first twelve (12) calendar months of the Term. |
| 3.3 | Date of First Increase: | September 1, 2007, and then annually thereafter |
| Fixed Monthly Rent Increase on | Four percent (4%) percent per annum | |
| September 1, 2007: | ||
| 3.7 | Security Deposit: | $37,268.36 |
| 4.1 | Tenant's Share | 5.50% |
| 4.2 | Base Eyar for Operating Expenses: | 2007 |
| 6.1 | Use of Premises: | General office use consistent with the operation of |
| a first-class office building on the Olympic Corridor | ||
| in the West Los Angeles area | ||
| 16.1 | Tenant's Address for Notices: | |
|
Before
the Commencement Date:
|
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000 | |
| Xxxxxxx XXxxx, Xxxxxxxxxx 00000 | ||
|
After
the Commencement Date:
|
114400 West Olympic Boulevard, | |
| Suites 1100 and 1400 | ||
| Xxx Xxxxxxx, Xxxxxxxxxx 00000 | ||
|
Contact:
|
Mr. Xxxxx Xxxxxxxx Xxxxxxxxx | |
| Landlord's Addres for Notices: | XXXXXXXX XXXXXX 1995, LLC | |
| Director of Property Management | ||
| c/o Xxxxxxx, Xxxxxx and Company | ||
| 000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000 | ||
| Xxxxx Xxxxxx, Xxxxxxxxxx 00000 | ||
| 20.5 | Brokers: | Xxxxxxx, Xxxxxx and Company |
| 000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000 | ||
| Xxxxx Xxxxxx, Xxxxxxxxxx 00000 and | ||
| Bietler Commercial Realty Services | ||
| 000 Xxxxx Xxxxxxxxxx Xxxxxx | ||
| Xxxx Xxxxxxx, Xxxxxxxxxx 00000 | ||
| 20.25 | Guarantors: | Xxxxx Xxxxxxxx Xxxxxxxxx, and individual, and |
| Xxxxx X. Xxxxxxxxx, an individual, jointly and | ||
| severally | ||
| 21.1 | Parking Permits: | Tenant shall have the right, but not the obligation to |
| purchase thirty-four (34) permits for unreserved | ||
| spaces | ||
| 23. | Letter of Credit | $336,000.00 |
| Exhibit G |
ii
Except
as noted hereinbelow, the foregoing Basic Lease Infirmation is hereby
incorporated into and made a pail of the Lease. The Section referemce in the
led? margin of the Basic Lease litfotwunion
exists solely to
indicate u,here
such
reference initialb,
appeinw
in the Lease elocument, Except as specified hereinbelow, each such
reference in the Lease document shall incorporate the applicable Basic Lease
In
[Munition.
iii
TABLE
OF CONTENTS
| ARTICLE | PAGE | |
| ARTICLE 1 | DEMISE OF PREMISES |
1
|
| ARTICLE 2 | COMMENCEMENT DATE AND TERM |
2
|
| ARTICLE 3 | PAYMENT OF RENT, LATE CHARGE |
2
|
| ARTICLE 4 | ADDITIONAL RENT |
4
|
| ARTICLE 5 | ETHICS |
8
|
| ARTICLE 6 | USE OF PREMISES |
8
|
| ARTICLE 7 | CONDITION UPON VACATING & REMOVAL OF PROPERTIES |
9
|
| ARTICLE 8 | UTILITIES AND SERVICES |
10
|
| ARTICLE 9 | XXXXXXX'X IDEMNIFICATION AND LIMITATION ON LANDLORD'S LIABILITY |
12
|
| ARTICLE 10 | COMPLIANCE WITH LAWS |
13
|
| ARTICLE 11 | ASSIGNIMENT AND SUBLETING |
13
|
| ARTICLE 12 | MAINTENACE, REPAIRS, DAMAGE, DESTRUCTION, RENOVATION AND OR ALTERATION |
17
|
| ARTICLE 13 | CONDEMNATION |
21
|
| ARTICLE 14 | MORTGAGE SUBORDINATION; ATTORNMENT AND MODIFICATION OF LEASE |
22
|
| ARTICLE 15 | ESTOPPEL CERTIFICATES |
23
|
| ARTICLE 16 | NOTICES |
23
|
| ARTICLE 17 | DEFAULT AND LANDLORD'S OPTION TO CURE |
23
|
| ARTICLE 18 | DAMAGES; REMEDIES; RE-ENTRY BY LANDLORD; ETC |
25
|
| ARTICLE 19 | INSURANCE |
26
|
| ARTICLE 20 | MISCELLANEOUS |
28
|
| ARTICLE 21 | PARKING |
31
|
| ARTICLE 22 | CONCIERGE SERVICES |
31
|
| ARTICLE 23 | LETTER OF CREDIT |
32
|
| Exhibits |
|
|
| A -- | Premises Plan |
|
| B -- | Improvement Construction Agreement - Xxxxxxx Build |
|
| B -1-- | Construction by Tenant During Term |
|
| C -- | Rules and Regulations |
|
| D -- | |
|
| E -- | Guaranty of Lease |
|
| F -- | |
|
| G -- | Form of Letter of Credit |
|
| H -- | Subordination, Non-Disturbance and Attornment Agreement |
|
iv
This
Office Lease,
dated July 10, 2006, is by and between XXXXXXX XXXXXX 1995,
LLC,
a Delaware limited liability company ("Landlord"), with an office at 000
Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxx'x Xxxxxx, Xxxxxxxxxx 00000, and PLATINUM
STUDIOS, LLC, a California limited liability company ("Tenant"), with an office
at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx
00000.
ARTICLE
1
DEMISE
OF PREMISES
Section
1.1. Demise. Subject to the covenants and agreements contained
in this Lease, Landlord leases to Tenant and Tenant hires from Landlord, Suite
Number 1400 (the "Premises") on the fourteenth (14th) (Moil,
in the
building located at 11400 West Olympic Boulevard, Los Angeles, Cali lomia 90064
(the "Building"). The configuration of the Premises is shown on Exhibit A,
attached hereto and made a part hereof by reference.
Tenant
acknowledges that it, has made its own inspection of and inquiries regarding
the
Premises, whidh are already improved. Therefore„ Tenant accepts the Premises in
their "as-is" condition. Tenant further acknowledges that Landlord has made
no
representation or warranty, express or implied, except as are contained in
this
Lease and its Exhibits, regarding the condition, suitability or usability of
the
Preniises or the Building for the purposes intended by Tenant.
The
Building, the Building's parking facilhies, any outside plaza areas, land and
other improvements surrounding the Building which are designated from time
to
time by Landlord as common areas appurtenant to or servicing the Building,
and
the land upon which any of the foregoing are situated, are herein sometimes
collectively referred to as the "Real Property."
Section
12. Tenant's
Non-Exclusive
Use Tenant is granted the nonexclusive use of the common
corridors and hallways, stairwells, elevators, restrooms, parking facilities,
lobbies and other public or common areas located on the Real Property. However,
the manner in which such public and common areas are maintained and operated
shall be at the reasonable discretion of Landlord, and Tenant's use thereof
shall be subject to such reasonable and non-discriminatory rules, regulations
and restrictions as Landlord may make from time to time.
Section
1.3. Landlord's Reservation of Rights.
Landlord specifically reserves to itself use control and repair
of the structural portions of all perimeter walls of the Premises, any
balconies, terraces or roofs adjacent to the Premises (including any flagpoles
or other installations on said walls, balconies, terraces or roofs) and any
space in and/or adjacent to the Premises used for shafts, stairways, pipes,
conduits, ducts, mail chutes, conveyors, pneumatic tubes, electric or other
utilities, sinks, fan rooms or other Building facilities, and the use thereof,
as well as access thereto through the Premises. Landlord also Specifically
reserves to itself the following rights:
|
a)
|
To
designate all sources furnishing sign painting or
lettering
|
|
b)
|
To
Consistantly have pass to the Premises
|
|
c)
|
To
grant to anyone the exclusive right to conduct any, particular
business or
undertaking in the Building, so long as Landlord's granting of
the same
does, not prohibit Tenant's use of the Premises for Tenant's Specified
Use, as defined in Article 6
|
|
d)
|
To
enter the Premises at reasonable times with reasonable prior notice
(except for emergencies) to inspect, repair, alter, improve, update
or
make additions to the Premises or the Building, so long as Tenant's
access
to and use of the Premises is not materially impaired
thereby;
|
|
e)
|
During
the last six (6) months of the Term, to exhibit the Premises to
prospective future tenants upon not less than 24 hours prior notice
and
accompanied by a representative of
Tenant;
|
|
f)
|
Subject
to the provisions of Article 12, to at any time and from time to
time
whether at Tenant's request or pursuant to governmental requirement,
repair, alter, make additions to improve, or decorate all or any
portion
of the Real Property, or the Building at any reasonable time with
prior
reasonable notice (except for emergencies), so long as Tenant's access
to
and use of the Premises is not materially impaired thereby. In connection
therewith, and without limiting the generality of the foregoing rights,
Landlord shall specifically have the right to remove, alter, improve
or
rebuild all or any part of the lobby of the Building as the same
is
presently or shall hereafter be
constituted;
|
|
g)
|
Subject
to the provisions
of
Article 12, Landlord reserves the right to make alterations or additions
to dr change the location of elements of the Real Property and any
common
areas appurtenant thereto at any reasonable time with prior reasonable
notice (except for emergencies), so long as Tenant's access to and
use of
the Premises is not materially impaired thereby;
and/or
|
|
h)
|
To
take such other actions as may reasonably be necessary when the same
are
required to preserve. protect or improve the Premises, the Building,
or
Landlord's interest therein at any reasonable time with prior reasonable
notice (except for emergencies).
|
Section
1.4. Area.Landlord and Tenant agree that the usable area (the
"Usable Area") of the Premises has been measured using the June, 1996 standards
published by the Building Owners' and Managers' AssoCiation ("BOMA"), as a
guideline, and that Landlord is utilizing a deemed add-on factor of 10.00%
to
compute the rentable area (the "Rentable Area") of the Premises. Rentable Area
herein is calculated as 1.1000 times the estimated Usable Area regardless of
what the actual square footage of the common areas; of the Building may be,
and
whether or not they are more or less than 10.00% of the total
estimated
1
Usable
Area of the Building. The purpose of this calculation is solely to provide
a
general basis for comparison and pricing of this space in relation to other
spaces in the market area.
Landlord
and Tenant further agree that even if the Rentable or Usable Area of the
Premises and/or the total Building Area are later determined to be more or
less
than the figures stated herein, for all purposes of the Lease, the figures
stated herein shall be conclusively deemed to be the actual Rentable or Usable
Area of the Premises, as the case may be.
Section
1.5. Quiet Enjoyment. Subject to all of the covenants,
agreements, terms, provisions and conditions of this Lease Tenant shall lawfully
and quietly hold, occupy and enjoy the Premises during the Term.
Section
1.6. No Light,
Air or View Easement. Any
diminution or shutting off of light, air or view by any structure which
is now or may hereafter be erected on lands adjacent to the Building shall
in no
way affect this Lease or impose any liability on Landlord, provided Landlord
shall not (i) construct any signhge or other appendage to the Building that
materially affect the view from the Premises, or (ii) permit any tenant to
construct any signage or other appendage to the Building that materially affect
the view from the Premises. Noise, dust or vibration or other ordinary incidents
to new construction of improvements on lands adjacent to the Building, whether
or not by Landlord, shall in no way affect this Lease or impose any liability
on
Landlord.
Section
1.7. Relocation. INTENTIONALLY OMITTED.
ARTICLE
2
DELIVERY
DATE, COMMENCEMENT DATE AND TERM
Section
2.1. Delivery Date, Commencement Date and Term.
Subject
to Tenant's prior delivery to Landlord and Landlord's receipt of the written
evidence of insurance coverage required under Lease Section 19.2 herein, Tenant
may enter and take possession of the Premises on the date that is one (1)
business day following the full execution of the Lease (the "Delivery Date")
for
among other things, Tenant's Contractor performing Tenant's Improvements
contemplated under Exhibit B attached hereto and incorporated herein. Tenant's
occupancy of the Premises as of the Delivery Date until August 31, 2006 (the
"Beneficial Occupancy Period") shall be subject to Tenant complying with all
of
the provisions and covenants contained herein, except that Tenant shall not
be
obligated to pay Fixed Monthly Rent or Additional Rent from the Delivery Date
until the expiration of the Beneficial Occupancy Period. Landlord and Tenant
shall confirm the finalized Deliiery Date, and Beneficial Occupancy Period,
if
any as soon as they are determined.
This
Lease shall commence on September 1, 2006 (the "Commencement Date"), and shall
end, unless sooner terminated as otherwise provided herein, at midnight
on August 31, 2011 (the "Termination Date").
Section
2.2. Holding Over
If Tenant fails to deliver possession of the Premises on the
Termination Datd., but holds over after the expiration or earlier termination
of
this Lease without the express prior written consent of Landlord, such tenancy
shall be construed as a tenancy from month-to-month (terminable by either
Landlord or Tenant upon 30 days' prior written notice to the other) on the
same
terns and conditions as are contained herein, except that the Fixed Monthly
Rent
payable by Tenant durinu such period of holding over shall automatically
increase as of the Termination Date to an amount equaf to one hundred and fifty
percent (150%) of the Fixed Monthly Rent payable by Tenant the calendar month
immediately prior to the date when Tenant commences such holding over (the
"Holdover Rent
.
Tenant's
payment of such Holdover Rent, and Landlord's acceptance thereof, shall not
constitute a waiver by Landlord of any of
Landlord's rights or remedies with respect to such holding over, nor
shall it be deemed to be a consent by Landlord to Tenant's continued occupancy
or possession of the Premises past the time period covered by Tenant's payment
of the Holdover Rent.
Furtlaerrnore,
if Tenant fails to deliver possession of the Premises to Landlord within
forty-five (45) days following the expiration or earlier termination of this
Lease, and Landlord has theretofore notified Tenant in writing, at least sixty
(60) days prior to the expiration or earlier termination of this Lease, that
Landlord requires possession of the Premises for a succeeding tenant, then,
in
addition to my other liabilities to Landlord accruing therefrom, Tenant shall
protect, defend, indemnify and hold Landlord harmless from all loss, costs
(including reasonable attorneys' fees and expenses) and liability resulting
from
such failure, including without limiting the foregoing, any claims made by
any
succeeding tenant arising out of Tenant's failure to so surrender, and any
lost
profits to Landlord resulting therefrom.
Notwithstanding
the provisions contained hereinabove regarding Tenant's liability for a
continuing holdover, Landlord agrees to use commercially reasonable efforts
to
insert into any future lease of another tenant proposing to occupy the Premises
provisions, permitting mitigation of Tenant's damages arising out of Tenant's
temporary holdover.
ARTICLE
3
PAYMENT
OF RENT, LATE CHARGE
SectiOn
3.1.
Payment of
Fixed Monthly Rent and Additional Rent. "Rent"
shall mean: all payments of monies in any form whatsoever required under
the terms and provisions of this Lease, and shall consist of:
| a) | "Fixed Monthly Rent," which shall be payable in equal monthly installments of 531,857.15; plus |
| b) | Additional Rent as provided in Article 4 and elsewhere in this Lease. |
2
Section
3.2. Manner of Payment. Tenant shall pay Fixed Monthly Rent and
Additional Rent immediately upon the same becoming due and payable, without
demand therefor, and without any abatiment except as set forth in this Lease,
set off or deduction whatsoever, except as may be expressly provided in this
Lease. Landlord's failure to submit statements to Tenant stating the amount
of
Fixed Monthly Rent or Additional Rent then due, including Landlord's failure
to
provide to Tenant a calcdlation of the adjustment as required in Section 3.3
or
the Escalation Statement referred to in Artiqle 4, shall not constitute
Landlord's waiver of Tenant's requirement to pay the Rent called for herein,
unless Landlord fails to provide an Escalation Statement described in Article
4
within three (3) years after the calendar year to which such Escalation
Statement is applicable, in which event Landlord shalllbe deemed to have waived
its right to collect any Additional Rent for such calendar year for which Tenant
had not theretofore been billed. Tenant's failure to pay Additional Rent as,
provided herein shall constitute a material default equal to Tenant's failure
to
pay Fixed Monthly Rent when due.
Rent
shall be payable in advance on the first day of each and every calendar month
throughout the Term, in lawful money of the United States of America, to
Landlord at 00000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx
00000, or at such other place(s) as Landlord designates in writing to Tenant.
Tenant's obligation to pay Rent shall begin on the Commencement Date and
continue throtighout the Tenn, without abatement, setoff or deduction, except
as
otherwise specified hcreinbelow.
Concurrent
with Tenant's execution and delivery to Landlord of this Lease, Tenant shall
pay
to Landlord the Fixed Monthly Rent due for the first month of the
Term.
Section
3.3. Fixed Monthly Rent Increase (Suite 1100 and 1400).
Commencing on September I, 2007, and continuing through August 31, 2008, the
Fixed Monthly Rent payable by Tenant shall Mcrease froml $31,857.15 per month
to
$33,131.44 per month.
Commencing
on September 1, 2008, and continuing through August 31, 2009, the Fixed Monthly
Rentpayable
by
Tenant shall increase from $33'
131.44 per month to
$34,456.69 per month.
Commencing
on September 1, 2009, and continuing through August 31, 2010, the Fixed Monthly
Rentlpayable by Tenant shall increase from $34,456.69 per month to $35,834.96
per month.
Commencing
on. September I, 2010; and continuing throughout the remainder of the initial
Tenn, the Fixed Monthly Rent payable by Tenant shall increase from $35,834.96
per month to S37,268.36 per month.
Section
3.4. Tenant's Payment of Certain Taxes. Tenant shall,
within thirty (30) days following Tendnt's receipt of substantiating
documentation from Landlord, reimburse Landlord, as Additional Rent; for any
and
all taxes, surcharges, levies, assessments, fees and charges payable by Landlord
when:
|
a)
|
assessed
on measured by or reasonably attributable to the cost or value of
Tenant's
equipment, furniture, fixtures and other personal property located
in the
Premises;
|
|
b)
|
assessed
on or measured by any rent payable hereunder, including, without
limitation, any gross income tax, gross receipts tax, or excise tax
levied
by the City or County of Los Angeles or any other governmental body
with
respect to the receipt of such rent (computed as if such rent were
the
only income of Landlord), but solely when levied by the appropriate
City
or County agency in lieu of or as an adjunct to, such business license(s),
fees or taxes as would otherwise have been payable by Tenant directly
to
such taxing authority; or
|
|
c)
|
upon
or with respect to the possession, leasing, operating, management,
maintenance, alteration, repair, use or occupancy by Tenant of the
Premises or any portion thereof.
|
Said
taxes shall be due and payable whether or not now customary or within the
contemplation of Landlord and Tenant. Notwithstanding the above, in no event
shall the provisions of this Section 3.4 serve to entitle Landlord to
reimbursement from
Tenant for any federal, state, county or city income tax payable by
Landlord or the managing agent of Landlord, or any gift, estate, transfer or
inheritance taxes assessed against Landlord or any of its partners, shareholders
or members.
Section
3.5. Certain Adjustments. If
|
a)
|
the
Commencement Date occurs on other than January 1st of a calendar
year or
the Lease expires or terminates on other than December 31st of a
calendar
year; or
|
|
b)
|
any
abatement of Fixed Monthly Rent or Additional Rent occurs during
a
calendar year, thenIthe
amount
payable by Tenant or reimbursable by Landlord during such year shall
be
adjusted proportionately on a daily basis, and the obligation to
pay such
amount shall survive the expiration or earlier termination of this
Lease.
|
If
the
Commencement Date occurs on other than the first day of a calendar month, or
the
Lease expires on a day other than the last day of a calendar month, then the
Fixed Monthly Rent and Additional Rent payable by Tenant shall be appropriately
apportioned on a prorata basis for the number of days remaining in the month
of
the Term for which such proration is calculated.
If
the
amount of Fixed Monthly Rent or Additional Rent due is modified pursuant to
the
terms of this Lease, such modification shall take effect the first day of the
calendar month immediately following the date such modification would have
been
scheduled.
Section
3.6. Late Charge
and Interest. Tenant acknowledges that late payment by Tenant to
Landlord of Fixed Monthly Rent or Additional Rent will cause Landlord to incur
costs not contemplated by this Lease, the exact amount of which are extremely
difficult and impracticable to fix. Such costs include, withOut limitation,
processing and, accounting charges and late charges that may be imposed on
Landlord by the
terms
of any encumbrance and note secured by any encumbrance covering the
Premises.
3
Therefore,
if any installment of Fixed Monthly Rent or Additional Rent and other payment
due from Tenant hereunder is not received by Landlord within five (5) business
days of the date it becomes due, Tentint shall pay to Landlord on demand an
additional sum equal to five percent (5%) of the overdue amount as a late
charge. The parties agree that this late, charge represents a fair and
reasonable settlement against the costs that Landlord will incur by reason
of
Tenant's late payment. Acceptance of any late charge shall not constitute a
waiver of Tenant's default with respect to the overdue amount, or prevent
Landlord from exercising any of the other rights and remedies available to
Landlord.
Every
installment of Fixed Monthly Rent and Additional Rent and any other payment
due
hereunder from Tenant to Landlord which is not paid within twelve (12) days
after the same becomes due and payable shall, in addition to any Late Charge
already paid by Tenant, bear interest at the rate of ten percent (10%) per
annum
from the date that the same originally became due and, payable until the date
it
is paid. Landlord shall xxxx. Tenant for said interest, and Tenant shall pay
the
same within five (5) business days of receipt of Landlord's
billing.
Notwithstanding
the foregoing, Tenant shall not be assessed any late charge for the first two
(2) late payMents in each twelve (12) month period of the Term so long as Tenant
pays such amount within five (5) husiness days of Tenant's receipt of written
notice that such amount has not been paid.
Section
3.7. Security Deposit Concurrent with Tenant's
execution and tendering of this Lease to Landlord, Tenant shall deposit the
sum
of $37,268.36 (the "Security Deposit"), which amount Tenant shall; thereafter
at
all times maintain on deposit with Landlord as security for Tenant's full and
faithful observance and performance of its obligations under this Lease
(expressly including, without limitation, the payment as and when due of the
Fixed Monthly Rent, Additional Rent and any other sums or damages payable by
Tenant hereunder and the payment of any and all other damages for which Tenant
shall; be liable by reason of any act or omission contrary to any of said
covenants or agreements). Landlord shall have the right to commingle the
Security Deposit with its general assets and shall not be obligated to pay
Tenant interest thereon.
If
at any
time Tenant defaults in the performance of any of its obligations under this
Lease, after the expiration of any applicable notice and cure period, then,
Landlord may
|
a)
|
apply
as much of the Security Deposit as may be reasonably necessary to
cure
Tenant's non-payment of the Fixed Monthly Rent, Additional Rent and/or
other sums or damages due from Tenant;
and/or;
|
|
h)
|
if
an Event of Default (as hereinafter defined) has occurred; apply
so much
of the Security Deposit as May be reasonably necessary to reimburse
all
expenses incurred by Landlord in curing such default;
or
|
|
c)
|
if
the Security Deposit is insufficient to pay the sums specified in
Section
3.7 (a) or (h), elect to apply the entire Security Deposit in partial
payment thereof, and proceed against Tenant pursuant to the provisions
of
Article 17 and Article 18 herein.
|
If
as a
result of Landlord's application of any portion or all of the Security Deposit,
the amount held by Landlord declines to less than $37,268.36, Tenant shall,
within ten (10) days after demand therefor, deposit with Landlord additional
cash sufficient to bring the then-existing balance held as the Security Deposit
to the amount specified hereinabove. Tenant's failure to deposit said amount
shall constitute a material breach of this Lease.
At
the
expiration or earlier termination of this Lease, Landlord shad deduct from
the
Security DepOsit being held on behalf of Tenant any unpaid sums, costs, expenses
or damages payable by Tenant pursuant to the provisions of this Lease; and/or
any costs required to cure Tenant's default or performance of any other covenant
or agreement of this Lease, and shall, within thirty (30) days after the
expiration or earlier termination of this Lease, return to Tenant, without
interest, all or such part of the Security Deposit as then remains on deposit
with Landlord.
ARTICLE
4
ADDITIONAL
RENT
Section
4.1. Certain Definitions. As used in this Lease:
|
a)
|
''Escalation
Statement" means a statement by Landlord, setting forth the amount
payable
by Tenant Or by Landlord, as the case may be, for a specified calendar
year pursuant to this Article 4.
|
|
b)
|
"Operating
Expenses" means the followinu in a referenced calendar year including
the
Base Year as hereinafter defined, calculated assuming the Building
is at
least ninety-five percent (95%) occupied: all costs of management,
operation, maintenance, and repair of the
Building.
|
By
way of
illustration only Operating Expenses shall include, but not be limited to
management fees paid by Landlord to any third-party, which shall not exceed
those reasonable and customary in
the geographic area in which the Building is located; water and sewer
charges; any and all insurance premiums not otherwise directly payable by
Tenant; license, permit and inspection fees; air conditioning (including repair
of same); heat; light; power and other utilities; steam; labor; cleaning and
janitorial services; guard services; supplies; materials; equipment and
tools.
Operating
Expenses shall also include the cost or portion thereof of those capital
improvements made to the Building by Landlord during the Term:
|
i)
|
to
the extent that such capital improvements reduce other direct expenses,
when the same were made to the Building by Landlord after the Delivery
Date, or
|
|
ii)
|
that
are required under any governmental law or regulation that was not
applicable to the Building as of the Delivery
Date.
|
4
Said
capital improvement costs, or the allocable portion thereof (as referred to
in
clauses (i) and 6i) above), shall be amortized over the useful life of any
such
capital improvement pursuant to generally-accepted accounting principles,
together with interest on the unamortized balance at the rate of ten percent
(10%) per, annum.
Operating
Expenses shall also include all general and special real estate taxes, increases
in assessments or special assessments and any other ad valorem taxes, rates,
levies and assessments Paid during a calendar year (or portion thereof) upon
or
with respect to the Building and the personal Property used by Landlord to
operate the Building, whether paid to any governmental or quasi-governmental
authority, and all taxes specifically imposed in lieu of any such taxes (but
excluding taxes referred to in Section 3.4 for which Tenant or other tenants
in
the Building are liable) including fees of counsel and experts, reasonably
incurred by or reimbursable by Landlord in connection with any application
for a
reduction in the assessed valuation of the Building and/or the land thereunder
or for a judicial review thereof, (collectively "Appeal Fees"), but solely
to
the extent that the Appeal Fees result directly in a reduction of taxes
otherwise payable by Tenant. However, in no event shall the portion of Operating
Expenses used to calculate any billing to Tenant attributable to real estate
taxes and assessments for any expense year be less than the billing for real
estate taxes and assessments during the Base Year.
Operating
Expenses shall also include, but not be limited to the premiums for the
following insurance coverage: all-risk, structural, fire, boiler and machinery,
liability, earthquake and for replacement of tenant improvements to a maximum
of
$35.00 per usable square foot, and for such other coverage(s), and at such
policy limit(s) as Landlord deems reasonably prudent and/or are rcquired by
any
lender or ground lessor, which coverage and limits Landlord may, in Landlord's
reasonable discretion, change from time to time, subject to the following
paragraph
.
If,
in
any calendar year following the Base Year, as defined hereinbelow (a "Subsequent
Year"), a new expense item (e.g. earthquake insurance, concierge services;
entry
card systems), is included in Operating Expenses which was not included in
the
Base Year Operating Expenses, then the cost of such new item shall be added
to
the Base Year Operating Expenses for purposes of determining the Additional
Rent
payable under this Article 4 for such Subsequent Year During each Subsequent
Year the same amount shall continue to be included in the computation of
Operating Expenses for the Base Year resulting in each, such Subsequent Year
Operating Expenses only including the increase in the cost of such new item
over
the Base Year, as so adjusted.
Conversely,
as reasonably determined by Landlord, when an expense item that was originally
included in the Base Year Operating Expenses is in any Subsequent Year no longer
included in Operating Expenses, then the cost of such item shall be deleted
from
the Base Year Operatino Expenses for purposes of determining the Additional
Rent
payable under this Article 4 for such Subsequent Year. The same amount shall
continue to be deleted from the Base Year Operating Expenses for each Subsequent
Year thereafter that the item is not included. However, if such expense item
is
again included in the Operating Expenses for any Subsequent Year, then the
amount Of said expense item originally included in the Base Year Operating
Expenses shall again be added back to the Base Year Operating
Expenses.
|
i)
|
Any
ground lease rental;
|
|
ii)
|
The costs of repairs to the Building and the Real Property, to the extent the costs of such repairs is reimbursed by the insurance carried by Landlord or subject to award under any eminent domain porceeing |
|
iii)
|
Costs,
including permit, license and inspection costs, incurred with respect
to
the installation of Tenant's or other occupant's improvements or
incurred
in renovating or otherwise imporving, decorating, painting or redecorating
vacant space for Tenant or other occupants of the
Building.
|
|
iv)
|
Depreciation, amortization and interest payments, except as specifically permitted herein or 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. In such a circumstance, the inclusion of all depreciation, amortization and interest payments shall be determined pursuant to generally accepted accounting principles, consistently applied, amortized over the reasonably anticipated useful life of the capital item for which such amortization, depreciation or interest allocation was calculated; |
|
v)
|
Marketing
costs, including leasing commissions, attorneys' fees incurred in
connection with the negotiation and preparation of letters, deal
memos,
letters of intent, leases subleases and/or assignments, space planning
costs, and other costs and expenses incurred in connection with lease,
sublease and/or assignment negotiations and transactions with present
or
prospective tenants or other occupants of the
Building;
|
|
vi)
|
Expenses
for services not offered to Tenant or for which Tenant is charged
directly, whether or not such services or other benefits are provided
to
another tenant or occupant of the
Building;
|
5
|
vii)
|
Costs incurred due to Landlord's or any tenant of the Building's violation, other than Tenant, of the terms and conditions of any lease or rental agreement in the Building; |
|
viii)
|
That
portion of any billing by Landlord, its subsidiaries or affiliates
for
goods and/or services in the Building, to the extent that such billing
exceeds the costs of such goods and/or services if rendered by an
unaffiliated third parties on a competitive
basis;
|
|
ix)
|
Costs incurred by Landlord for structural earthquake repairs or any seismic retrofit requirements necessitated by the January 17, 1994 earthquake that occurred in the vicinity of the Building; |
|
x)
|
Interest,
principal, points and fees on debts or amortization on any mortgage
or
mortgages or any other debt instrument encumbering the Building or
the
land thereunder;
|
|
xi)
|
Costs associated with operating the entity which constitutes Landlord, as the same are distinguished from the costs of operation of the Building, including partnership accounting and legal matters, costs of defending any lawsuits with any mortgagee (except as the actions of Tenant may be in issue), costs of selling, syndicating, financing, mortgaging or hypothecating any of Landlord's interest in the Building, costs (including attorneys' fees and costs of, settlement judgments and payments in lieu thereof) arising from claims, disputes or potential disputes in connection with potential or actual claims, litigation or arbitration pertaining to Landlord's ownership of the Building; |
|
xii)
|
Advertising and promotional expenditures, and costs of signs in or on the Building identifying the owner of the Building or other tenants of the Building; |
|
xiii)
|
Electric, gas or other power costs for with Landlord has been directly reimbursed by another tenant or occupant of the Building, or for which any tenant directly contracts with the local public service company; |
|
xiv)
|
Tax
penalties and interest incurred as a result of Landlord's negligent
or
willful failure to make payments and/or to file any income tax
or
informational return(s) when due, unless such non-payment is due
to
Tenant's nonpayment of rent;
|
|
xv)
|
Costs
incurred by Landlord to comply with notices of violation of any
applicable
laws or ordinances including the Americans With Disabilities Act,
as
amended, when such notices are for conditions existing prior to
the
Delivery Date;
|
|
xvi)
|
Any
charitable or political
contributions;
|
|
xvii)
|
The purchase or rental price of any sculpture, paintings or other object of art, whether or not installed in, on or upon the Building; |
|
xviii)
|
Any compensation paid or expenses reimbursed to clerks, attendants or other persons working in any commercial concession(s) operated by Landlord, and any services provided, taxes attributable to and costs incurred in connection with the operation of any retail, parking or restaurant operations in the Building; |
|
xix)
|
Any accelerated payment(s) made at Landlord's election on obligations undertaken by Landlord which would not otherwise become due, to the extent that such accelerated payment(s) exceed the amount otherwise payable had Landlord not elected to accelerate payment thereof. Notwithstanding such exclusion, the balance of such accelerated payment shall be included by Landlord in operating expense calculations for succeeding years, as if the payment had been made when originally due prior to such acceleration. |
|
xx)
|
Costs, including attorneys' fees`and settlement judgments and/or payments in lieu thereof, arising from actual or potential claims, disputes, litigation or arbitration pertaining to Landlord and/or the Building; |
|
xxi)
|
Insurance deductibles in excess of reasonable and customary deductible amounts; |
|
xxii)
|
Costs of repairs that would have been covered by casualty insurance but for Landlord's failure to maintain casualty insurance to cover the replacement value of the Building as required by this Lease; |
|
xxiii)
|
Capital expenditures not otherwise permitted hereunder; |
|
xxiv)
|
The assessment or billing of operating expenses that results in Landlord being reimbursed more than one hundred percent (100%) of the total expenses for the calendar year in question; |
|
xxv)
|
Any cost or expenditure for which Landlord may be reimbursed, whether by insurance proceeds, warranties, service contracts or otherwise, except through rent adjustment or other tax or operating expense pass-through provisions; |
|
xxvi)
|
Salaries, fringe benefits and other compensation of employees above the grade of building manager; |
|
xxvii)
|
Expenses for painting, redecorating or other work which Landlord, at its expense, performs for Tenant or for any other tenant in leased areas of the Building other than painting, redecorating or other work for common areas of the Building; |
|
xxviii)
|
The cost of alterations, additions, changes or decorations (including leasehold improvements, construction allowances and work letters) made for or paid to any tenant of the Building or made in order to prepare space in the Building for occupancy by a tenant; |
6
|
xxix)
|
The
cost of repairs in or to a tenant's premises incurred by reason
of breach
by a tenant of its lease for the space in the
Building;
|
|
xxx)
|
Payments
for rented equipment the cost of which would constitute a capital
expenditure if the equipment was
purchased;
|
|
xxxi)
|
Professional fees, not allocated to the operation of the Building and professional fees allocable to disputes with or preparation of leases for other tenants and prospective tenants of the Building; |
|
xxxii)
|
The costs of services or other benefits provided to other tenants of the Building without charge, but which are only provided to Tenant by payment of a seperate charge; |
|
xxxiii)
|
Cost, expenses, fines and penalties incurred by the Lanlord due to a violation by Landlord of any lease or of any laws or legal requirements; |
|
xxxiv)
|
Any bad debt loss, rent loss or reserves for bad debts or rent loss; |
|
xxxv)
|
The cost and expense incurred by Landlord in furnishing any service to any retail or non-office portions of the Building which is not furnished to the office space portions of the Building; |
|
xxxvi)
|
The cost of any judgment resulting from any tort liability of Landlord and any attorneys' fees incurred in connection with the same; |
|
xxxvii)
|
The
cost of correcting defects in building construction for the Building
including noncompliance with governmental codes and laws, and repairs
or
replacements caused by Landlord's
negligence or the negligence, of its agents, employees or
contractors;
|
|
xxxviii)
|
Any
expenses, costs and disbursements relating to or arising in any way,
directly or indirectly from handling, removal, treatment, disposal
or
replacement of asbestos, asbestos containing materials or other Hazardous
Materials in the Building;
|
|
xxxix)
|
Costs
reimbursed to Landlord
by governmental authorities;
and
|
|
xxxx)
|
All
other items which under generally accepted accounting principles,
as
consistently applied in the real estate industry for first-class
office
buildings are properly classified as capital expenditures except,
however,
as specifically permitted by this
Lease.
|
|
d)
|
"Tenant's
Share means 5.50%, which is calculated by dividing the Usable Area
of the
Premises (11,357
square feet) by the Usable Area of the Building (206,488 square feet)
multiplied by 100.
|
Section
4.2. Calculationof
Tenant's Share of Increases in Operating Expenses. If commencing
withrthe calendar year 2008, the Operating Expenses for any calendar year during
the Term, or portion thereof,
(including the last calendar year of the Term), have increased over
the
Operating Expenses for the Calendar year 2007 (the "Base Year"), then within
thirty (30) days after Tenant's receipt of Landlord's computation of such
increase (an "Escalation Statement"), Tenant shall pay to Landlord, as
Additional Rent, an amount equal to the product obtained by multiplying such
increase by Tenant's Share. if Landlord fails to provide an Escalation Statement
within three (3) years after the calendar year to which
suchiEscalation
Statement
is applicable, Landlord shalt be deemed to have waived its right to collect
any
Additional Rent for such
calendar year for which Tenant had not theretofore been
billed.
Landlord
may at or after the start of any calendar year subsequent to the Base Year
notify Tenant or the amount which Landlord estimates will be Tenant's monthly
share of any such increase in Operating Expenses
for such calendar year over the Base Year and the amount thereof shall
be
added to the Fixed Monthly Rent payments required to be made by Tenant in such
year If Tenant's Share of any such increase in rent payable hereunder as shown
on the Escalation Statement is greater or less than the total amounts actually
billed to and paid by Tenant during the year covered by such statement, then
within thirty (30) days thereafter, Tenant shall pay in cash any sums owed
Landlord or if applicable, Tenant shall either receive a credit against any
Fixed Monthly Rent and/or Additional Rent next accruing for any sum I owed
Tenant, or if Landlord's Escalation Statement
is rendered after the expiration or earlier termination of this Lease
and
indicates that Tenant's estimated payments have exceeded the total amount to
which Tenant was obligated, then provided that Landlord is not owed any other
sum by Tenant, Landlord shall issue
a cash refund to Tenant within thirty (30) days after Landlord's
completion of such Escalation Statement.
Section
4.2.1 Audit Right. Within one (1) year after receipt, of a statement by
Tenant, if Tenant disputes the amount of Additional Rent set forth in the
statement, an accountant (which accountant is not working
on a contingency fee basis
and which shall be hereinafter referred to as "Tenant's Accountant"),
designated and paid for by Tenant, may after reasonable notice to Landlord
and
at reasonable times, inspect and copy Landlord's records with respect to such
statement at Landlord's offices,
provided that Tenant is not then in default under this Lease beyond
any
applicable notice and cure period and Tenant has paid all amounts required
to be
paid under the applicable statement. In connection with such inspection, Tenant
and Tenant's agents must
agree in advance to follow Landlord's reasonable rules and procedures
regarding inspections of Landlord's records, and shall execute a mutually
acceptable confidentiality agreement regarding such inspection. Tenant's failure
to dispute the amount of
Additional Rent set forth in any Statement within one (1) year of Tenant's
receipt of such statement 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, Tenant still
disputes
such Additional Rent, a determination as to the proper amount shall
be
made, at Tenant's expense, by an independent certified public accountant
selected by Landlord (which accountant has not previously been retained by
Landlord and which shall he hereinafter referred
to as "Landlord's Accountant") and subject to Tenant's reasonable approval;
provided that if such determination by Landlord's Accountant proves that
Operating Expenses were overstated by more than five percent (5%), then the
overstated amount shall be repaid to Tenant and the cost of Landlord's
Accountant and the costs of Tenant's Accountant shall be paid for by Landlord.
Tenant hereby acknowledges that Tenant's sole right to inspect and copy
Landlord's books and records and io contest the amount of Operating Expenses
payable by Tenant shall be as set forth in
this Section 4.2 and Tenant hereby waives any and all other rights
pursuant to applicable law to inspect such books and records and/or to contest
the amount of Operating Expenses payable by Tenant. In the event Tenant does
not
agree as to the determination made by Landlord's accountant, Tenant may notify
Landlord that Tenant desires to have such disagreement determined by an arbiter,
and within fifteen (15) days thereafter Landlord and Tenant shall designate
a
certified public accountant (the ?Arbiter") whose determination made in
accordance with this Section 4.2 shall be binding upon the arties. If Tenant
fails to notify Landlord of Tenant's desire to have such disagreement determined
by an Arbiter within 60 days after the determination of Landlord's Accountant,
then the determination of Landlord's Accountant shall be conclusive and binding
on Tenant. IT the Arbiter Shall substantially confirm the determination of
Landlord's Accountant, then Tenant shall pay the cost of the Arbiter. If the
Arbiter shall substantially confirm the determination of Tenant, then Landlord
shall pay the cost of the Arbiter. In all other events, the cost of the Arbiter
shall be borne equally by Landlord and Tenant, The Arbiter shall be a member
of
a national independent certified public accounting firm, which has not been
previously employed by Landlord or Tenant and with not less than ten (10) years
experience in commercial leasing. If Landlord and Tenant shall be unable to
agree upon the designation of the Arbiter within fifteen (15) days after receipt
of written notice from Tenant requesting agreement as to the designation of
the
Arbiter, which notice shall contain the names and addresses of two or more
certified public accountants meeting the requirements set forth above who are
acceptable to Tenant, then either party shall have the right to request, the
American Arbitration Association, Jams/endispute (or any organization which
is
the successor thereto) (the qA.A.A") to
designate as
the Arbiter a member of a national certified public accounting firm whose
written determination shall be conclusive and binding upon the parties, and
the
cost of such certified public accountant shall be borne as provided above in
the
case of the Arbiter designated by Landlord and Tenant. The Arbiter's written
determination shall be made within thirty (30) days of the Ai, -biter's
appointment and shall only apply to the additional rent in dispute. In rendering
such written determination such Arbiter shall not add to, subtract from or
otherwise modify the provisions of this Lease. If Tenant shall prevail in such
contest, Landlord shall make an appropriate refund to Tenant Within thirty
(30)
days of the written determination of the Arbiter.
7
Section
4.3. Tenant's Payment
of Direct Charges, as
AdditionalRent.
Tenant shall promptly and duly; pay all costs and expenses
incurred for or in connection with any Tenant Change (as such term is defined
in
Section 12.12 of this Lease) or Tenant Service (as such term is defined in
Section 8.10 of this Lease), and discharge any mechanic's or other lien created
against the Premises, Building or the Real Property arising as a result of
or in
connection with any Tenant Change or Tenant Service as Additional Rent by paying
the same, bonding or manner otherwise provided by law.
Any
other
cost, expense, charge, amount or sum (other than Fixed Monthly Rent) payable
by
Tenant as provided in this Lease shall also be considered Additional
Rent.
Certain
individual items of cost or expense may, in the reasonable determination of
Landlord, be separately charged and billed to Tenant by Landlord, either alone
or in conjunction with another party or parties, if they are deemed in good
faith by Landlord to apply solely to Tenant and/or such other party or parties
and are not otherwise normally recaptured by Landlord as part of normal
operating expenses. Insofar as is reasonable, Landlord shall attempt to give
Tenant prior notice and the opportunity to cure any circumstance that would
give
rise to such separate and direct, billing.
Said
separate billing shall be paid as Additional Rent, regardless of Tenant's Share.
Such allocations by Landlord shall be binding on Tenant unless patently
unreasonable, and shall be payable within ten (10) days after receipt of
Landlord's billing therefor.
ARTICLE`5
ETHICS
Section
5.1. Ethics.
Landlord and Tenant agree to conduct their business or practice in
compliance with any appropriate and applicable codes of professional or business
practice.
ARTICLE
6
USE
OF PREMISES
Section
6.1. Use. The Premises shall only be used for general office use
consistent with the operation of a first-class office building on the;Olympic
Corridor in the West Los Angeles area (the "Specified Use") and for no other
purposes, without Landlord's prior written consent, which consent shall be
in
Landlord's sole discretion. Any proposed revision of the Specified Use by Tenant
shall be for a use consistent with those customarily found in first-class office
buildings. Reasonable grounds for Landlord withholding its consent shall
include. but not be limited to:
|
a)
|
the
proposed use will place a disproportionate burden on the Building
systems;
|
|
b)
|
the
proposed user is for governmental or medical purposes or for a company
whose primary business is that of conducting boiler-room type transactions
or sales;
|
|
c)
|
the proposed use would generate excessive foot
traffic
to the Premises and/or Building.
|
8
So
long
as Tenant is in control of the Premises, Tenant covenants and agrees that it
shall not use, suffer or permit any person(s) to use all or any portion of
the
Premises for any purpose in violation of the laws of the United States of
America, the State of California, or the ordinances, regulations or requirements
of the City or County of Los Angeles, or other lawful authorities having
jurisdiction over the Building,
Tenant
shall not do or permit anything to be done in or about the Premises which will
materially obstriict or unreasonably interfere with the rights of other tenants
or occupants of the Building, or injure them; Tenant shall not use or allow
the
Premises to be used for any pornographic or violent purposes, nor shall Tenant
cause, commit, maintain or permit the continuance of any nuisance or waste
in,
on or aboui the Premises. Tenant shall not use the Premises in any manner that
in Landlord's reasonable judgrhent would adversely affect or interfere with
any
services Landlord is required to furnish to Tenant or to any other tenant or
occupant of the Building, or that would interfere with or obstruct the proper
and economical rendition of any such service.
Section
6.2. Exclusive Use Landlord represents that Tenant's Specified Use of
the Premises does not conflict with exclusive use provisions granted by Landlord
in other leases for the Building. Landlord further agrees that it shall, in
the
future, not grant an exclusive use privilege to any other tenant in the Building
that will prevent Tenant from continuing to use the Premises for its Specified
Use.
Tenant
acknowledges and agrees that it shall not engage in any of the uses specified
hereinbelow, for NvItich Landlord has already granted exclusive
rights:
As
a
primary business, an Italian-style restaurant.
Provided
that Tenant has received written notice of the same from Landlord, and further
provided that Landlord does not grant a future exclusive use right
that'prohibits Tenant from engaging in the Specified Use then Tenant agrees
that
it shall not violate any exclusive use provision(s) granted by Landlord to
other
tenants in the Building.
Section
6.3.Rules and Regulations. Tenant shall observe and
comply with the rules and regulations set forth in Exhibit C and such other
and
further reasonable and non-discriminatory rules and regulations as Landlord
may
make or adopt and communicate to Tenant at any time or from time to time, when
said rules, in the reasonable judgment of Landlord, may be necessary or
desirable to ensure the first-class operation, maintenance, reputation or
appearance of the Building. However, if any conflict arises between the
provisions of this Lease and any such rule or regulation, the, provisions of
this Lease shall 'control.
Provided
Landlord makes commercially reasonable efforts to seek compliance by all
occupants of the building with the rules and regulations adopted by Landlord,
Landlord shall not be responsible to Tenant for the failure of any other tenants
or occupants of the Building to comply with said rules and
regulations.
ARTICLE
7
CONDITION
UPON VACATING & REMOVAL OF PROPERTY
Section
7.1. Condition upon Vacating. At the expiration or earlier termination
of this Lease, Tenant shall;
|
a)
|
terminate
its occupancy of quit and surrender to Landlord, all or such portion
of
the Premises upon Which this Lease has so terminated, broom-clean
and in
substantially similar condition as received except
for:
|
|
i)
|
ordinary
wear and tear, or
|
|
ii)
|
loss
or damage by fire or other casualty which shall not have been caused
by
the gross negligence or willful misconduct of Tenant or its agents,
clients, contractors, employees, invitees, licensees, officers, partners
or shareholders; and
|
|
b)
|
surrender
the Premises free of any and all debris and trash and any of Tenant's
personal property, furniture, fixtures and equipment that do not
otherwise
become a part of the Real Property, pursuant td the provisions contained
in Section 7.2 hereinbelow; and,
|
|
c)
|
at
Tenant's sole expense, forthwith and with all due diligence remove
any
Specialty Alteration (as liereinafter defined) made by Tenant, provided
Landlord has previously notified Tenant of its obligation to remove
such
Specialty Alteration at the time Landlord approved Tenant's request
for
such Specialty Alteration. If Tenant fails to complete such removal
and/or
to repair any damage caused by the removal of any Specialty Alterations,
Landlord may do so and may charge the reasonable cost thereof to
Tenant.
For purposes of this Lease, "Specialty Alterations" shall mean any
Tenant
Change, work, alteration or installation that are not typical or
standard
office alterations. Tenant shall have no obligation to remove any
Tenant
Change or other work, alteration or installation that is not a Specialty
Alteration. Tenant shall not be obligated to remove any of the
IMprovements (as such term is defined in Exhibit
B).
|
Section
7.2.Tenant's Property. All fixtures, equipment,
improvements and installations attached or builtlinto
the Premises at any time during the Term shall, at the expiration or earlier
termination of this Lease, be deemed the properly of Landlord; become a
permanent part of the Premises and remain therein. However, if said equipment,
improvements and/or installations can be removed without causing any structural
damage to the Premises, then, provided after such removal Tenant restores the
Premises to the condition existing prior to installation of Tenant's trade
fixtures or equipment Tenant shall be permitted, at Tenant's sole expense,
to
remove said trade fixtures and equipment.
9
ARTICLE
8
UTILITIES
AND SERVICES
Section
8.1. Normal Building Hours / Holidays. The "Normal
Business Hours" of the Building, during which Landlord shall furnish the
services specified in this Article 8 are defined as 8:00 A.M. to 6:001 P.M.,
Monday through Friday, and 9:00 A.M. to 1:00 P.M. on Saturday, any one or more
Holiday(s) excepted.
The
‘`Holidays" which shall be observed by Landlord in the Building are defined
as
any federally-recognized holiday and any other holiday specified herein, which
are New Years Day, Presidents' Day, Mentorial Day, the 4th of July, Labor Day,
Thanksgiving Day, the day after Thanksgiving, and Christmas Day (each
individually a '`Holiday"). Tenant acknowledges that the Building shall be
closed on etich and every such Holiday, and Tenant shall not be guaranteed
access to Landlord or Landlord's manging
agent(s) on each such Holiday.
Section
8.2. Access to the Building and General Services. Subject to Force
Majeure and any power outage(s)
which may occur in the Building when the same are out of Landlord's reasonable
control, Landlord shall furnish the following services to the Premises
twenty-four (24) hours per day, seven days per Week:
| a) | during Normal Business Hours, bulb replacement for building standard lights; |
| b) | access to and use of the parking facilities for persons holding valid parking permits; |
| c) | access to and use of the elevators and Premises; |
| d) | use of electrical lighting on an as-needed basis within the Premises; and |
| e) | use of a reasonable level of water for kitchen and toilet facilities in the Premises and common area bathrooms. |
Section
8.3. Janitorial Services. Landlord shall furnish the Premises with
reasonable and customary janiterial services five (5) days per business week,
except when the Building is closed on any Holiday. Landlord shall retain the
sole discretion to choose and/or revise the janitorial company providing said
services to the Premises and/or Building.
Section
8.4. Security Services. Tenant acknowledges that Landlord currently
provides uniformed guard service to the Building twenty-four (24) hours per
day,
seven (7) days per week, solely for the purposes of providing surveillance
of,
and information and directional assistance to persons entering the
Building.
Tenant
acknowledges that such guard service shall not provide any measure of security
or safety to the Building or the Premises, and that Tenant shall take such
actions as it may deem necessary and reasonable to ensure the safety and
security of Tenant's property or person or the property or persons of Tenant's
agents, clients, contractors, directors, employees, invitees, licensees,
officers, partners or shareholders. Tenant agrees and acknowledges that except
in the case of the gross negligence or willful misconduct of Landlord or its
directors, employees, officers, partners or shareholders, Landlord shall not
be
liable to Tenant in any manner whatsoever arising out of the failure of
Landlord's guard service to secure any person or property from
harm.
Tenant
agrees and acknowledges that Landlord, in
Landlord's sole discretion, shall have the option, but not the obligation
to add, decrease, revise the hours of and/or change the level of services being
provided by any guard company serving the Building, so long as such services
are
in keeping with the standards of Comparable Buildings. Tenant further agrees
that Tenant shall not engage or hire any outside guard or security company
without Landlord's prior written consent, which shall be in Landlord's sole
discretion.
Section
8.5. Utilities. During Normal Business Hours Landlord shall furnish a
reasonable level of water, heat, ventilation and air conditioning ("HVAC")
to
the Premises consistent with that provided by landlords of comparable
first-class office buildings in the West Los Angeles area and a sufficient
amount of electric current to provide customary business lighting and to operate
ordinary office business machines, such as a single personal computer and
ancillary printer per one hundred tmd twenty (120) rentable square feet
contained in the Premises, facsimile machines, small copiers customarily used
for general office purposes, and such other equipment and office machines as
do
not result in above standard use of
the existing electrical system. So long as the same remain reasonably
cost competitive, Landlord shall retain the sole discretion to choose the
utility vendor(s) to supply such services to the Premises and the
Building.
Except
with the prior written consent of Landlord, which shall not be unreasonably
withheld, conditioned and/or delayed, Tenant shall not install or use any
equipment, apparatus or device in the Premises that requires the installation
of
a 220 voltage circuit; consumes more than five (5) kilowatts per hour per,
item;
or the aggregate use ofwhich will in any way increase the connected load to
more
than 5 Watt's per square foot, or cause the amount of electricity to be
furnished or supplied for use in the PreMises to more than 1.2 kWh per usable
square foot, per month.
Except
with the prior written consent of Landlord, Tenant shall not connect any
electrical equipment to the electrical system, of the Building, except through
electrical outlets already existing in the Premises, nor shall Tenant xxxxxx,
revise, delete or add to the electrical, plumbing, mechanical or HVAC systems
in
the Premises.
10
Section
8.6. After Hours HVAC and/or Excess Utility Usage. If Tenant requires
HVAC service during other than Normal Business Hours ("Excess HVAC"), Tenant
shall make its request in writing at least three (3) hours before the close
of
the normal business day. Otherwise, Landlord shall have no obligation to provide
Excess HVAC. Tenant's request shall be deemed conclusive evidence of its
willingness to pay Landlord's actual costs specified herein, As of the date
of
the Lease, the prevailing afterThours HVAC charge in the Building is $65.00
per
hour.
If
Tenant
requires electric current in excess of the amounts specified hereinabove, water
or gas in excess of that customarily furnished to the Premises as office space
("Excess Utility Use"), Tenant shall first (procure Landlord's prior written
consent to such Excess Utility Use, which Landlord may reasonably
refuse.
In
lieu
of Landlord's refusal, Landlord may cause a meter or sub-meter to be installed
to measure the amount of water, gas and/or electric current consumed by Tenant
in the Premises. The cost of any such meter(s), and the installation,
maintenance, and repair thereof; shall be paid by Tenant as Additional
Rent
After
completing installation of said meter(s), and/or if Tenant requests Excess
HVAC,
then Tenant shallipay, as Additional Rent, within thirty (30) calendar days
after Tenant's receipt of Landlord's billing, for the actual amounts of all
water, steam, compressed air, electric current and/or Excess HVAC consumed
beyond the normal levels Landlord is required herein to provide. Said billing
shall he calcUlated on the usage indicated by such meter(s), sub-meter(s),
or
Tenant's written request, therefor,
and shall
be issued by Landlord at the rates charged for such services by the local public
utility lumiShing the same, plus any additional expense reasonably incurred
by
Landlord in providing said Excess Utility Use and/or in keeping account of
the
water, steam, compressed air and electric current so consumed.
Section
8.7. Changes affecting HVAC. Tenant shall also pay as Additional Rent
for any additional costs) Landlord incurs to repair any failure of the HVAC
equipment and systems to perform their function when said failure arises out
of
or in connection with any change in, or alterations to, the arrangement of
partitioning in the Premises after the Delivery Date, or from occupancy by,
on
average, more than one person for every two hundred and fifty (250) usable
square feet of the Premises, or from Tenant's failure to keep all HVAC vents
within the Premises free of obstruction.
Section
8.8. Damaged or Defective Systems. Tenant shall give written notice to
Landlord within twenty-four (24) business hours of any alleged damage to, or
defective condition in any part or appurtenance of the Building's sanitary,
electrical, HVAC or other systems serving, located in, or passing throtigh,
the
Premises. Provided that the repair or remedy of said damage or defective
condition is within the reasonable control of Landlord, it shall be remedied
by
Landlord with reasonable diligence. Otherwise, Landlord shall make such
commercially reasonable efforts as may be available to Landlord to effect such
remedy or repair, but except in the case of Landlord's gross negligence and/or
willful misconduct or the gross negligence and/or willful misconduct of
Landlord's agents, contractors, direetors, employees, officers, partners, and/or
shareholders, Landlord shall not be liable to Tenant for any failure
thereof.
Tenant
shall not be entitled to claim any damages arising from any such damage or
defective condition nor shall Tenant be entitled to claim any eviction by reason
of any such damage or defective condition unless:
|
a)
|
the
same was caused by Landlord's gross negligence or willful misconduct
while
operating or maintaining the Premises or the
Building;
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|
b)
|
the
damage or defective condition has substantially prevented Tenant
from
conducting its normal business operations;
and
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|
c)
|
Landlord
shall have failed to commence the remedy thereof and proceeded with
reasonable diligence to complete the same after Landlord's receipt
of
notice thereof from Tenant.furthermore,
if such damage or defective condition was caused by, or is attributed
to,
a Tenant Change or the gross negligence or willful misconduct of
Tenant or
its employees, licensees or
invitees:
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|
d)
|
the
cost of the remedy thereof shall be paid by Tenant as Additional
Rent
pursuant to the provisions of Section
4.3;
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e)
|
in
no event shall Tenant be entitled to any abatement of rent as specified
below: and
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f)
|
Tenant
shall be estopped from making any claim for damages arising out of
Landlord's repair thereof
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Section
8.9. Limitationon Landlord's Liability for Failure to Provide
Utilities and/or Services. Except in the case of Landlord's gross
negligence or willful misconduct or the;gross negligence or willful misconduct
of Landlord's agents, contractors, directors, employees, licensees, officers,
partners or shareholders, Tenant hereby releases Landlord from any liability
for
damages, by abatement of rent or otherwise, for any failure or delay in
furnishing any of the services or utilities specified in this Article 8
(incliKling, but not limited to telephone and telecommunication services),
or
for any diminution in the quality or quantity thereof.
Tenant's
release of Landlord's liability shall be applicable when such failure, delay
or
diminution is occasioned, in whole or in part, by repairs, replacements, or
improvements, by any strike, lockout or other labor trouble, by Landlord's
inability to secure electricity, gas, water or other fuel at the Building after(
Landlord's reasonable effort to do so, by accident or casualty whatsoever,
by
act or default of Tenant or parties other than Landlord, or by any other cause
beyond Landlord's reasonable control. Such failures, delays or diminution shall
never be deemed to constitute a constructive eviction or disturbance of Tenant's
use and possession of the Premises, or serve to relieve Tenant from paying
Rent
or performing any of its obligations under the Lease.
11
Furthermore,
Landlord shall not be liable under any circumstances for a loss of injury to,
or
interference with Tenant's business, including, without limitation, any loss
of
profits occurring or arising through or in connection with or incidental to
Landlord's failure to furnish any of the services or utilities required by
this
Article 8.
Notwithstanding
the above, Landlord shall use commercially reasonable efforts to remedy any
delay, defect or insufficiency in providing the services, and or
utilities
required hereunder.
Notwithstanding
the foregoing, if Tenant is prevented from using and does not use the Premises
or any portion thereof, as a result of (i) Landlord's failure to provide
services or utilities as required by this Lease, or (ii) Landlord's exercise
of
its rights under Section 12,11 below (an "Abatement Event"), then five
15)
consecutive business days after Landlord's receipt of any such Notice (the
"Eligibility Period"), Xxxx t shall give Landlord Notice of such Abatement
Event
and if such Abatement Event continues for and such failure is in no way
attributable to or caused by the negligence or willful misconduct
of
Tenant,
then the Fixed Monthly Rent and Additional Rent shall be abated or reduced,
as
the case may be„after expiration of the Eligibility Period for such time that
Tenant continues to be so prevented from using, and does not use the Premises,
or a portion thereof, in the proportion that the rentable area of the portion
of
the Premises that Tenant is prevented from using, and does not use ("Unusable
Area"), bears to the total rentable area of tile Premises; provided, however,
in
the event that Tenant is prevented from using, and does not use the Unusable
Area for a period of time in excess of the Eligibility Period and the remaining
portion of the Premises is not sufficient to allow Tenant to effectively conduct
its business therein and if Tenant does not conduct its business from such
remaining portion, then for such time after expiration of the Eligibility Period
during which Tenant is so prevented from effectively conducting its business
therein, the Fixed Monthly Rent and Additional Rent for the entire Premises
shall be abated for such 1 time as Tenant continues to be so prevented from
usMg, and does not use the Premises, If however, Tenant reoccupies any portion
of the Premises during such period, the Rent allocable to such reoccupied
portion, based on the pmportion that the rentable area of such reoccupied
portion of the Premises bears to the total rentable area of the Premises, shall
be payable by Tenant from the date Tenant reoccupies such portion of the
Premises. Such right to xxxxx Fixed Monthly Rent and Additional Rent shall
be
Tenant's sole and exclusive remedy at law or in equity for an Abatement
Event.
Section
8.10. Tenant Provided Services. Tenant shall make no contract or employ any
labor in connection with the maintenance, cleaning or other servicing of the
physical structures of the Premises or for installation of any computer,
telephone or other cabling, equipment or materials provided in or to the
Premises (collectively and individually a "Tenant Service") without the prior
consent of Landlord, which consent shall not be unreasonably withheld. Tenant
shall not permit the use of any labor, material or equipment in the performance
of any Tenant Service if the use thereof, in Landlord's reasonable judgment,
would violate the provisions of any agreement between Landlord and any union
providing work, labor or services in or about the Premises, Building and/or
create labor disharmony in the Building.
ARTICLE
9
TENANT'S
INDEMNIFICATION AND LIMITATION ON LANDLORD'S LIABILITY
Section
9.1. Tenant'sIndemnification
and Hold Harmless. For the purposes of this Section 9.1,
"Indemnitee(s)" shall jointly and severally refer to Landlord and Landlord's
agents, clients, contractors, directors, employees, officers, partners, and/or
shareholders.
Tenant
shall indemnify and hold Indemnitees harmless from and against all claims,
suits, demands, damages, judgments, costs, interest and expenses (including
reasonable attorneys fees and costs incurred in th;defense thereof) to which
any
Indemnitee may be subject or suffer to the extent arising out of the negligence
or willful misconduct of Tenant or the negligence or willful misconduct of
Tenant's agents, contractors,
directors, employees, licensees, officers, partners or shareholders in
connection with the use of work in construction to or actions in on upon or
about the Premises, including any actions relating to the installation,
placement, or removal of any Tenant Xxxxx; improvements, fixtures and/or
equipment in, on, upon or about the Premises.
Tenant's
indemnification shall extend to any and all claims and occurrences, whether
for
injury to or death of any person or persons, or for damage to property
(including any loss of use thereof), or otheliwise, occurring during the Term
or
prior to the Commencement Date (if Tenant has been given early access to the
Premises for whatever pin-pose), and to all claims arising from any condition
of
the Premises due to or resulting from any default by Tenant in the keeping,
observance or performance of any covenant or provision of this Lease, or from
the negligence or willful misconduct of Tenant or the negligence or willful
misconduct of Tenant's agents, contractors, directors, employees, licensees,
officers, partners or shareholders.
Section
9.2. Nullityof
Tenant's Indemnification in Event of Negligence. Notwithstanding
anything to the contrary contained in this Lease, Tenant's indemnification
shall
not extend to the negligence or willful misconduct of Landlord or the negligence
or willful misconduct of Landlord's agents, contractors, directors, employees,
officers, partners or shareholders, nor to such events and occurrences for
which
Landlord otherwise carries insurance coverage.
Section
9.3. Tenant's Waiver of Liability. Provided and to the extent
that any injury or damage suffered by Tenant or Tenant's agents, clients,
contractors, directors, employees, invitees, officers, partners, and/or shareholders did not arise out of the
negligence or
willful misconduct of Landlord or the negligence or willful misconduct of
Landlord's agents, contractors, employees, officers, partners or sharehOlders,
Tenant shall make no claim against Landlord and Landlord shall not be liable
or
responsible in any way for and Tenant hereby waives all claims against Landlord
with respect to or arisiniout of injury or damage to any person or property
in
or about the Premises by or from any cause whatsoever under the reasonable
control or management of Tenant.
12
Section
9.4. Limitation of Landlord's Liability. Tenant expressly agrees that
notwithstanding anything in this Lease and/or any applicable law to the
contrary, the liability of Landlord and Landlord's agents,: contractors,
directors, employees, licensees, officers, partners or shareholders, including
any succesSor in interest thereto (collectively and individually the "Landlord
Parties"), and any recourse by Tenant! against Landlord or the Landlord Parties
shall be limited solely and exclusively to an amount i which
is
equal to the interest of Landlord in the Building and any insurance or sale
proceeds or profits received by Landlord.
Tenant
specifically agrees that neither Landlord nor any of the Landlord Parties shall
have any personal liability therefor. Further, Tenant hereby expressly waives
and releases such personal liability on behalf of itself and all persons
claiming by through or under Tenant.
Section
9.5. Transfer of Landlord's Liability. Tenant expressly agrees that to
the extent that any transferee assumes the obligations of Landlord hereunder,
and provided Landlord has either transferred the coinpletc Security Deposit
held
pursuant to this Lease or refimded the same to Tenant as of the dine of such
transfer, then the covenants and agreements on the part of Landlord to be
performed under this Lease which arise and/or accrue after the date of such
transfer shall not be binding upon Landlord herein named from and after the
date
of transfer of its interest in the Building.
Section
9.6. Landlord's Indemnification. Notwithstanding any contrary provision
of this Lease, Landlord shall indemnify, and hold Tenant and Tenant's agents,
clients, directors, officers, partners, emploYees, shareholders and contractors
harmless from and against, any and all claims, causes of action, liabilities,
losses, costs and expenses, including reasonable attorney's fees and court
costs, arising from or in connection with:
|
a)
|
Any
activity occurring, or condition existing, at or in the Building
and/or
the Real Property (other than in the Premises) when such activity
or
condition is under the reasonable control of Landlord, except and
to the
extent the same is caused by the negligence or willful misconduct
of
Tenant or Tenant's employees, agents, licensee, invitees, or contractors,
or by Tenant's breach or default in the performance of any obligation
under this Lease;
|
|
b)
|
Any
activity occurring, or condition existing in the Premises when, and
to the
extent caused by the negligence or willful misconduct of Landlord
or
Landlord's employees, agents or contractors;
or
|
| c) | Any breach by Landlord of any of Landlord's obligations under this Lease. |
ARTICLE
10
COMPLIANCE
WITH LAWS
SectiOn
10.1.Tenant's Compliance with Laws. Tenant shall not
use permit to be used or permit anything to be done in or about all or any
portion of the Premises which will in any way violate any laws, statutes,
ordinances, rules, orders or regulations duly issued by any governmental
authority having jurisdiction over the Premises or the provisions of this Lease,
or by the Board of Fire Undenvriters (or any successor thereto) (collectively
"Codes" or "Applicable Laws").
Section
10.2. TenanttoComply at
SoleExpense. Tenant shall, at its sole expense,
promptly remedy any violation of such Codes, provided, however, that nothing
contained in this Section 102 shall require Tenant to make any structural
changes to the Premises, unless such changes are required due to either Tenant
or Tenant's agents, clients, contractors, directors, employees, invitees,
licensees, officers, partners or shareholders use of the Premises for purposes
other than general office purposes consistent with ;.J. Class A office
building.
Section
10.3.Conclusive Evidence of
Violation.Intentionally Omitted.
Section
10.4. Landlord'sOperation of Building. Landlord shall
operate, lease, manage and maintain the Bnilding, common areas, parking
facilities and Real Property at all times during the Term in a first class
Manner similar to other Class A office buildings located in along the Olympic
Corridor in the West Los Angeles area of the Building.
ARTICLE
11
ASSIGNMENT
AND SUBLETTING
Section
11.1.Permission Required for Assignment or Sublet.
Unless Landlord's prior written consent has been
given, which consent
shall not be unreasonably withheld, conditioned and/or delayed (subject to
the
express provisions of this Article 11), this Lease shall not nor shall any
interest herein, be assignable as to the interest of Tenant by operation of
law;
nor shall Tenant:
|
a)
|
assign
Tenant's interest in this Lease; or
|
|
b)
|
sublet
the Premises or any part thereof or permit the Premises or any part
thereof to be utilized by anyone other than Tenant, whether as by
a
concessionaire, franchisee, licensee, permittee or otherwise
(collectively, a "sublease")
|
13
In
addition, except for Transfers under clauses (a) or (b), Tenant shall not
mortgage, pledge, encumber or otherwise transfer this Lease, the Term, and/or
estate hereby granted or any interest herein withOut Landlord's prior written
consent, which consent may be granted or withheld in Landlord's sole and
absolute discretion.
Any
assignment, mortgage, pledge, encumbrance, transfer,or sublease (collectively,
any `Transfer") without Landlord's prior written consent shall be voidable,
and,
in Landlord's sole election, shall constitute a material default under this
Lease.
Seetion
11.2. Voluntary Assignment due to Changes in Structure of Tenant. Any
dissolution, merger, consolidation, or other reorganization of Tenant, or
the
single sale or other transfer of a controlling percentage of the capital
stock
of Tenant (other than the sale of such stock pursuant to a nubile offering
that
results in a majority of the same members of the Board and executive officers
remaining in control of said corporation) and or the single sale of fifty
percent (50%) or more of the value of the assets of Tenant, shall be deemed
a
voluntary assignment. The phrase "controlling percentage" means the ownership
of, and the right to vote stock possessing fifty percent (50%) or more of
the
total combined voting power of all classes of Tenant's capital stock issued,
outstanding, and entitled to vote for the election of directors. Notwithstanding
anything to the contrary contained herein, the preceding paragraph shall
not
apply to corporations whose stock is traded through a recognized United States
exchange or over the counter.
Any
withdrawal or change (whether voluntary, involuntary, or by operation of
law) in
the partnership by one or more partners who own, in the aggregate fifty percent
(50%) or more of the partnership, or the dissolution of the partnership,
shall
be deemed a voluntary assignment.
If
Tenant
is comprised of more than one individual, a purported assignment (whether
voluntary, involuntary, or by operation of law), by any one of the persons
executing this Lease shall be deemed a voluntary assignment.
Secion
11.2.1. Tenant Affiliated
Companies/Restructuring of Business Organization. Any contrary
provision of this Article 11, notwithstanding and provided Tenant is
not in Default, the assignment or subletting by Tenant of all or any portion
of
this Lease or the Premises to (i) a parent or subsidary of (x) Tenant or
(y) any
person or entity which controls Tenant, or (ii) any person or entity which
controls, is controlled by or under common control with Tenant or a person
or
entity which controls tenant, or (iii) any entity which purchases all or
substantially all the assets or stock of Tenant, or (iv) any entity into
which
Tenant or a person or entity which controls Tenant is merged or consolidated
(all such persons or entities described in (i), (ii), (iii) and (iv) being
sometimes hereinafter referred to as "Tenant Affiliates") shall not be deemed
a
Transfer under this Article 11 and thus shall not be subject to Landlord's
prior
consent, and Landlord shall not be entitled to any Net Rental Profit resulting
therefrom, provided that:
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a)
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any such Tenant Affiliate was
not formed as a
subterfuge to avoide the obligations of this
Article11;
|
|
b)
|
Tenant gives Landlord written
notice of
any such assignment or sublease to a Tenant
Affiliate;
|
|
c)
|
if said transfer of Tenant's
interest is
accomplised through an assignment, assignee shall assume, in a
written
document reasonably satisfactory to Landlord and delivered to Landlord
upon or prior to the effective date of such assignment, all the
obligations of Tenant under this Lease will respect to that portion
of the
Premises which is the subject of such Transfer;
and
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e)
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Tenant and any Guarantor shall
remain
fully liable for all obligations to be performed by Tenant under
this
Lease.
|
If
Tenant
fails to comply with the requirements
of Section 11.2.1 (a) through (e), then any purported assignement or sublease
which was made shall at the sole option of Landlord be made null, void and
of no
effect whatsoever.
Section
11.3. Request to.
Assign or Sublease. If
at any
time during the Term, Tenant wishes to assign this Lease or any interest
therein, or'to sublet all or any portion of the Premises, then at least twenty
(20) days prior to the date when Tenant desires the assignment or sublease
to be
effective, Tenant shall give written notice to Landlord setting forth the name,
address, and business of the proposed assignee or sublessee, business and
personal credit applications completed on Landlord's standard application forms,
and information (including references and such financial documentation as
Landlord shall reasonably prescribe) 'concerning the character and financial
condition of the proposed assignee or sublessee, the effective date of the
assignment or sublease, and all the material terms and conditions of the
proposed assignment, and with reference solely to a sublease: a detailed
description of the space proposed to be sublet together with any rights of
the
proposed sublessee to use Tenant's improvements and/or ancillary services with
the Premises.
Section
11.4.Landlord's
Consent. Landlord
shall have thirty (30) days after Tenant's notice of assignment and/or
sublease is received with the financial information reasonably requested by
Landlord (the ('Section 11.3 Notice") to advise Tenant of Landlord's (i) consent
to such proposed assigrunent or sublease, or (ii) withholding of consent for
reasonable reasons to such proposed assignment or sublease, in which event
Landlord's notice shall be accompanied by an explanation of the reason for
such
disapproval, or (iii) election to terminate this Lease as to all of the space
proposed to be sublet or as to the entire premises in the event of an assignment
, such termination to be effective as of the date of the commencement of the
proposed assignment or subletting (the "Effective Date"). If Landlord shall
exercise its termination right hereunder, Landlord shall have the right to
enter
into a lease or other occupancy agreement directly with the proposed assignee
or
subtenant, and Tenant shall have no right to any of the rents or other
consideration payable by such proposed assignee or subtenant under such other
leasel or occupancy agreement, even if such rents and other consideration exceed
the rent payable under this Lease by Tenant. Landlord shall have the right
to
lease the Premises to any other tenant, or not lease the Premises, in its sole
and absolute discretion. Landlord and Tenant specifically agree that Landlord's
right to terminate this Lease under clause (iii) above is a material
consideration for Landlord's agreement to enter into this Lease and such right
may be exercised in Landlord's sole and absolute discretion and no test of
reasonableness shall be applicable thereto.
14
11.4.1.
Recapture Right Notice. In as much as Landlord has the right per
Section 11.4(i6) above to elect to terminate the Lease as to all of the space
proposed to be sublet or as to the entire premises in the event of an
assignment, prior to giving Landlord a Section 11.3 Notice, Tenant may, give
Landlord an advance written notice prior to Tenant actually selecting a broker
to go to the marketplace to procure any specific transferee (in which case
such
advance notice from Tenant shall specify, with particularity whether Tenant
intends to assign this Lease or sublease all or a specified portion of the
Premises, and if a sublease, such advance notice shall also specify the term
of
the intended sublease (the "Recapture Right Notice").
11.4.2
Retractionof Transfer Notice or Recapture Right Notice.
Tenant shall have the right to retract Tenant's
Section 11.3 Notice, or
Recapture Right Notice upon written notification given to Landlord within five
(5) business days of the date of Landlord's notice to Tenant electing to
terminate the Lease. If Tenant does not timely provide Landlord with Tenant's
notice retracting Tenant's Section 11.3 Notice or Recapture Right Notice
and
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(1)
|
Landlord
terminates the Lease in whole, in the case of an assignment or a
sublease
of all of the Premises for a portion of the then Lease Term, then
neither
Landlord nor Tenant shall be liable to the other under the Lease
from and
after the Effective Date, except for matters, which shall have arisen
prior to such date; or
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|
(2)
|
Landlord
terminates the Lease in part in the case of a sublease of a portion
of the
Premises, then neither Landlord nor Tenant shall be liable to the
other
under the Lease with respect to
said proposed subleased portion from and after the Effective Date,
except for matters,
which
shall have arisen prior to such
date.
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11.4.3
Consent Criteria. Tenant acknowledges that Landlord's consent shall be
based upon the criteria listed in Sections 11.4 (a) through (e) below, and
subject to Landlord's right to unilaterally disapprove of any proposed
assignment and/or sublease, based on the existence of any condition contained
within Section 11.5 hereinbelow. If Landlord provides its consent within the
time period specified, Tenant shall be free to complete the assignment and/or
sublet such space to the party contained in Tenant's notice, subject to the
following conditions:
|
a)
|
The
assignment and/or sublease shall be on the same terms as were set
forth in
the notice given to Landlord;
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|
b)
|
The
assignment and/or sublease shall be documented in a written
format
that is reasonably acceptable to Landlord, which form shall specifically
include the assignee's and/or sublessee's acknowledgement and acceptance
of the obligation contained in this Lease, in so far as
applicable;
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|
c)
|
The
assignment and/or sublease shall not be valid, nor shall the assignee
or
sublessee take possession of the Premises, or subleased portion thereof,
until an executed duplicate original of such sublease and/or assignment
has been delivered to Landlord;
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|
d)
|
Theassignee
and/or sublessee shall have no further right to assign this Lease
and/or
sublease the Premises,
except as permitted herein;
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|
e)
|
In
the event of any Transfer, Landlord shall receive as Additional Rent
hereunder (and without affecting or reducing any other obligation
of
Tenant under this Lease) fifty percent (50%) of Tenant's "Net Rental
Profit" derived from such Transfer. In the event of a Transfer which
is a
sublease, "Net Rental Profit" shall mean all rent, Additional Rent
or
other consideration actually received by Tenant during the term of
such
sublease from such subtenant and/or actually paid by such subtenant
to
Tenant in connection with the space covered by the sublease ("Transferred
Space") less: (1) the gross revenue paid to Landlord by Tenant durinu
the
sublease term with respect to the Transferred Space; (2) any improvement
allowance or other economic concession (planning allowance, moving
expenses, etc.), paid by Tenant to sublessee; (3) reasonable brokers'
commissions; (4) reasonable attorneys' fees; (5) costs of advertising
the
space for sublease; and (6) unamortized cost of initial improvements
to
the Premises by Tenant (items (1) through (6) referred to' collectively
as
the "Subleasing Costs"). In the event of a Transfer other than
a.
sublease, "Net Rental Profit" shall mean key money, bonus money or
other
consideration paid
by the 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
for
assets, fixtures, inventory,
equipment, or furniture transferred by Tenant to the Transferee in
connection with such
Transfer. If part of the'Net Rental Profit shall be payable by the
Transferee other than in cash,
then Landlord's share of such non-cash consideration shall be in
such form
as is reasonably satisfactory to Landlord exist
and sends Tenant a notice requesting such information, Tenant shall
deliver to Landlord
If
Landlord so requests because it reasonably believes a Net Rental
Profit
may a statement within thirty (30) days after the end of each calendar
year and/or within thirty (30) days after the expiration or earlier
termination of the Term of this Lease in which any such Transfer
has
occurred, specifying for each such Transfer:
i) the
date of its execution and delivery, the number of square feet of
the
Rentable Area demised thereby, and the Term thereof, and
ii) a
computation in reasonable detail showing the amounts (if any)
paid and
payable by Tenant to Landlord pursuant to this Section 11.4.3
with respect
to such Transfer
for the period
covered by such statement, and the amounts (if any) paid and
payable by
Tenant to Landlord pursuant to this Section 11.4 with respect
to any
payments received from a Transferee during such period but, which
relate
to an earlier period.
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15
Section
11.5. Reasonable Grounds for Denial of Assignment and/or Sublease.
Landlord and Tenant agree that, in addition to such other reasonable
grounds as Landlord may assert for withholding its consent, it shall be
reasonable under this Lease and any applicable law for Landlord to
withhold its consent to any proposed Transfer, where any one or more
of
the following conditions exists:
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a)
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The
proposed sublessee or assignee (a "Transferee") is, in Landlord's
reasonable judgment, of a character or reputation which
is not consistent with those businesses customarily found
in a
Class A office
building owned or operated by Landlord or "Landlord Affiliate" [meaning
(A) an entity which is controlled by, controls or is under common
control
with Landlord, or (B) an entity which merges with or acquires or
is
acquired by Landlord or a parent, subsidiary or member of Landlord,
or (C)
a transferee of substantially all of the assets or stock of Landlord],
in
a comparable location, or by comparable landlords of comparable buildings
along the Olympic Corridor in the West Los Angeles area of the Building
(the "Comparable Buildings");
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b)
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The
Transferee is engaged in a business or intends to use all or any
portion of the Premises for purposes which are not consistent with
those
generally found in the Building or other Comparable Buildings, provided,
however, that in no event shall Landlord be permitted to decline
Tenant's
request for a Transfer solely on the basis of said Transferee's intent
to
change the Specified Use from that of Tenant, unless such proposed
change
shall violate any Exclusive Use provision already granted by
Landlord;
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c)
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The
Transferee is either a governmental agency or instrumentality
thereof;
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d)
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The Transfer will result in more than a reasonable
and
safe number of occupants within the
Premises;
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e)
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The
Transferee is not a party of reasonable financial worth and;or
financial stability in light of the responsibilities involved under
the
sublease, if a sublessee, or the Lease, if an assignee, on the date
consent is requested, or has demonstrated a prior history of credit
instability or unworthiness, but in making such determination,
consideration shall be given to credit enhancements in the form of
letters
of credit, security deposits and
guarantees;
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f)
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The
Transfer will cause Landlord to be in violation of another lease
or
agreement to which Landlord is a party, or would give another occupant
of
the Building a rid.t to cancel its lease;
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g)
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The
Transferee will retain any right originally granted to Tenant to
exercise
a right of renewal, right of
expansion, right of first offer or other similar right held by Tenant,
except as permitted under this
Lease;
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h)
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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 is
(I) a tenant in the Building at the time Tenant requests approval
of the proposed Transfer and Landlord is
able to
provide comparable space in the Building to such tenant, or
(2) is
engaged in on-going negotiations with Landlord to lease space in
the
Building at the time Tenant requests approval of the proposed
Transfer;
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i)
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The
Transferee intends to use all or a portion of the Premises for medical
procedures or for a primary btisiness which is as a boiler-room type
sales
or marketing organization.
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If
Landlord withholds or conditions its consent and Tenant believes that Landlord
did so contrary to the terms of this Lease, Tenant may, prosecute an action
for
declaratory relief and/or damages to determine if Landlord properly withheld
or
conditioned its consent.
Section
11.6. Tenant's Continued Obligation. Any
consent by Landlord to an assignment of this Lease and/or sublease of the
Premises shall not release Tenant from any of Tenant's obligations hereunder
or be deemed to be a consent by Landlord to any subsequent hypothecation,
assignment, subletting, occupation or use by another person, and Tenant
shall remain liable to
pay the Rent and/or perfOrm
all other obligations to be performed by Tenant hereunder. Landlord's
acceptance of Rent or Additional Rent from any other person shall not be deemed
to be a waiver by Landlord of any provision of this Lease. Landlord's consent
to
one assignment or subletting shall not be, deemed consent to any subsequent
assignment or subletting.
16
If
any
assignee or sublessee of Tenant or any successor of Tenant defaults in the
performance of any of the provisions of this Lease, whether or not Landlord
has
collected Rent directly from said assignee or sublessee, Landlord may proceed
directly against Tenant without the necessity of exhausting remedies against
such assignee, sublessee or other successor-in-interest'.
Provided
that in no event shall any further assignment, sublease, amendment or
modification to this Lease serve
to either increase Tenant's liability or expand Tenant's duties or
obligations hereunder, or relieve Tenant of its liability under this Lease,
then
Landlord may consent to subsequent assignments or subletting of this Lease
or
amendments or modifications to this Lease with any assignee, without notifying
Tenant or any successor of Tenant, and without obtaining their consent
thereto.
Section
11.7.Tenant To Pay Landlord's Costs. If Tenant assigns
or sublets the Premises or requests the consent of Landlord to any assipment,
subletting or other modification of this Lease, or if Tenant reqUests the
consent of Landlord for any act that Tenant proposes to do, whether or not
Landlord shall xxxxx consent thereto, then Tenant shall, concurrent with
Tenant's submission of any written request therefor, pay to Landlord as
reasonable consideration for Landlord's considering and processing the
applicable request, plus the amount reasonably estimated
by`Landlord as its anticipated legal fees to be incurred by Landlord in
connection therewith not to exceed $2,000.00.
Section
11.8. Successors and Assigns. Subject to the provisions contained
herein, the covenants and agreements contained in this Lease shall bind and
inure to the benefit of Landlord and Tenant, their respective successors and
assigns and all persons claiming by, through or under them.
Section
11.9. Occupancy by Others. Notwithstanding anything to the contrary in
this Article 11, Tenant may allow any person or company which is a bona fide
client or customer of Tenant or which is providing service to Tenant or one
of
Tenant's clients (a "Permitted Occupant") to occupy certain portions of the
Premises without such permitted occupancy being deemed a Transfer as long as:
(i) such portions of the Premises occupied by any Permitted Occupants do not
exceed more than ten percent (10°)p) in the aggregate of the Premises and for, a
period not to exceed more than nine (9) consecutive months. (ii) no
new
demising walls are constructed to accomplish such occupancy; and (iii) such
relationship was not created as a subterfuge to avoid the obligations set forth
in this Article 11.
ARTICLE
12
MAINTENANCE,
REPAIRS, DAMAGE, DESTRUCTION, RENOVATION AND/OR
ALTERATION
Section
12.1. Tenant's andLandlord's Obligation to Maintain.
Tenant shall, at Tenant's sole expense, maintain the non-Building Structure
and
non-Building Systems (both as defined below) portion of the Premises in good
order and repair, and shall also keep clean any portion of the Premises which
Landlord is not obligated to clean. Such obligation shall include the clean-out;
repair and/or replacement of Tenant's garbage disposal(s), Instant-Heat or
other
hot water producing equipment, if any, and the cleaning and removal of any
dishes and/or food prior to the same becoming unsanitary. If Tentint becomes
obligated to repair anything within the Premises, Tenant shall advise Landlord's
managing agent of such need.
Further,
Tenant shall pay the cost of any injury, damage or breakage in, upon or to
the
Premises created by Tenant's gross negligence or willful misconduct or the
gross
negligence or willful misconduct of Tenant's agents, clients, contractors,
directors, employees, invitees, licensees, officers, partners or shareholders,
but only to the extent such damage is not (i) covered by insurance carried
by
Landlord as part of Operating Expenses and (ii) is not covered by the waiver
of
subrogation.
Subject
to Tenant's obligation for reimbursement to Landlord, as specified herein,
Landlord shall operate the Building in a first-class manner, repair, maintain
in
good
and tenable condition the Premises and the structural portions of the
Building (including the exterior walls, foundation, roof, floor/ceiling slabs,
columns, and beams), curtain walls, exterior glass and mullions, shafts
(including elevator shafts), stairs, parking garape, stairwells,
escalators, elevator cabs, plazas, artwork, sculptures, washrooms, mechanical,
electric;I and telephone closets and all Common Areas and public areas
(collectively, the "Building Structure") and the mechanical, electrical, life
safety, plumbing, sprinkler systems (connected to the core), HVAC systems
(including primary and secondary loops connected to the core), and all meters,
pipes, conduits, equipment, components and facilities that supply the Premises
with utilities on a nonexclusive basis (except as the appropriate utility
company has assumed these duties) (collectively. the "Building
Systems").
Subject
to Tenant's obligation for reimbursement to Landlord, as specified herein,
Landlord shall make all repairs to the Premises and the exterior walls,
foundation and roof of the Buildimr, the structural
portions of the floors of the Building, the systems and equipment of the
Building and the Tenant Improvements installed in the Premises. However, if
such
repairs, maintenance or cleaning are requi'red due to Tenant's gross negligence
or willful misconduct or the gross negligence or willful misconduct of Tenant's
agents, clients, contractors, directors, employees, invitees, licensees,
officers, partners or shareholders, then, Tenant shall, within ten (l 0) days
after receipt of Landlord's billing therefor, reimburse Landlord, as Additional
Rent, for any expense of such repairs, cleaning and/or maintenance in excess
of
any insurance proceeds available for reimbursement thereof, including for any
deduatible anticipated in connection therewith.
Tenant
hereby waives all right to make repairs at Landlord's expense under the
provisions of
SectiOn 1932(1), 1941 and 1942 of the Civil Code of
California.
17
Section
00.0.Xxxxxx Period Notice. Tenant shall give prompt
notice to Landlord of Tenant's actual knoWledge of any damage or destruction
to
all or any part of the Premises or Building resulting from
or arising
.
sing out of any fire, earthquake, or other identifiable event of a sudden,
unexpected or unusual nature (individually or collectively a "Casualty"). The
time periods specified in this Section 12.2 shall commence
after from the earlier of the date Landlord receives said written notice from
Tenant of the occurrence of a Casualty or Landlord independently, at its
officer level, obtains actual knowledge that a Casalty has occurred
(the
"Casualty Date"). After the Casualty Date, Landlord shall, within the later
of:
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a)
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sixty
(60) days after the date on which Landlord determines the full extent
of
the damage caused by the Casualty;
or
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b)
|
thirty
(30) days after Landlord has determined the extent of the insurance
proceeds available to effectuate repairs,
but
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c)
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in
no event more than ninety (90) days after the Casualty
Date,
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Provide
written notice to Tenant indicating the anticipated time period for repairing
the Casualty (the "Repair Period Notice"). The Repair Period Notice shall also
state, if applicable, Landlord's eleciion either to repair the Premises, or
to
terminate this Lease, pursuant to the provisions of Section 12.31
and if Landlord elects to terminate this Lease, Landlord shall use
commercially reasonable efforts to provide Tenant with a minimum period of
ninety (90) days within which to fully vacate the Premises.
Section
12.3.Landlord's Option to Terminate or Repair.
Notwithstanding anything to the contrary contained
herein, Landlord
shall have the option, but not the obligation to elect not to rebuild or restore
the Premises and/or the Building if one or more of the following conditions
is
present:
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a)
|
repairs
to the Premises cannot reasonably be completed within one hundred
and
eighty (180) days after the date of the Casualty (when such repairs
are
made without the payment of overtime or other
premiums);
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b)
|
repairs
required cannot be made pursuant to the then-existing laws or regulations
affecting the Premises or Building, or the Building
cannot be restored except in a substantially different structural
or architectural form than existed before the
Casualty;
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c)
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the
holder of any'mortgage on the Building or ground or underlying lessor
with
respect to the Real Property and/or the Building shall require that
all or
such large a portion of the insurance proceeds be used to retire
the
mortgage debt, so that
the balance of insurance proceeds remaining available to Landlord
for completion of repairs shall be insufficient to repair said damage
or
destruction;
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d)
|
the
holder of any mortgage on the Building with respect to the Real Property
and/or the Building shall terminate the mortgage and Landlord elects
not
to commence repairs within one (1) year following the occurrence
of the
Casualty;
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c)
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provided
Landlord has carried the coverage Landlord is required to obtain
under
Section 19.1 of this Lease, the damage is not fully covered, except
for
deductible amounts, by Landlord's insurance Policies and Landlord
elects
not to commence repairs within one (1) year following the occurrence
of
the Casualty;
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f)
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more
than thirty-three and one-third percent (33 1/3%) of the Building
is
damaged or destroyed, Whether or not the Premises is affected, provided
that Landlord elects to terminate all other leases in the Buildina
for
similarly affected premises.
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If
Landlord elects not to complete repairs to the Building or Premises, pursuant
to
this Section 12.3, Landlord's election to terminate this Lease shall be stated
in the Repair Period Notice, in which event this Lease shall cease and terminate
as of the date contained in Landlord's Repair Period Notice.
If
one
hundred percent of the Building is damaged or destroyed, as certified by an
independent building inspector, this Lease shall automatically
terminate after Tenant's receipt of written notice of such Itermination
from Landlord, and without action
beyond the
giving of such notice being required by either Landlord or
Tenant.
Upon
any
termination of this Lease pursuant to this Section 12.3, Tenant shall pay its
prorata share of FiXed Monthly Rent and Additional Rent, properly apportioned
up
to the date of such termination, reduced by any abatement of Rent to which
Tenant is entitled under Section 12.5; after which both Landlord and Tenant
shall thereafter be freed and discharged of all further obligations under the
Lease, except for those obligations which by their provisions specifically
survive the expiration or earlier termination of the Term.
Section
12.4.Tenant's Option to Terminate. If
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a)
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the
Repair Period Notice provided by Landlord indicates that the
anticipated period for repairing the Casualty exceeds one hundred
and
eighty (180) days after the Casualty (the "Repair Period"),
or
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b)
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the
Casualty to the Premises occurs during the last twelve (12) months
of the
Term;
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then
Tenant shall have the option, but not the obligation, to terminate this Lease
by
providing written notice
("Tenant's Termination Notice") to Landlord within thirty (30) days after
receiving the Repair Period Notice in the case of 12.4 (a); or within thirty
(30) days after the Casualty, in the case of Section 12.4 (b). Furthermore,
if:
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c)
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Landlord
does not complete the repairs required hcreinabove within the Repair
Period, and
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d)
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farther
provided Landlord has not
diligently commenced and continued to prosecute to completion repair of
the damage and/or
destruction caused by the Casualty,
and
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18
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e)
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Landlordhas not completed
the repairs thereafter on or before thirty (30) days after the expiration
of the Repair Period,
|
then
Tenant shall also have the option, but not the obligation, to terminate this
Lease by giving Landlord written notice of its intention to so terminate, which
notice shall be given not more than forty-five (45) dayS after expiration of
the
Repair Period.
Tenant's
failure to provide Landlord with Tenant's Termination Notice within the time
periods specified hereinabove shall be deemed conclusive evidence that Tenant
has waived its option to terminate this Lease.
Section
12.5, Temporary Space and/or Rent Abatement During Repairs or
Renovation. During the Repair Period or during any such period
that Landlord completes Work (as defined hereinbelow) or Renovations (as defined
in Section 12.11 hereinbelow), if available, and if requested by Tenant,
Landlord shall make available to Tenant other space in the Building which,
in
Tenant's reasonable opinion, is
suitable for the temporary conduct of Tenant's business. However,
if
such temporary space is smaller than the Premises Tenant shall pay Fixed Monthly
Rent and Additional Rent for the temporary space based upon the calculated
rate
per Rentable square foot payable hereunder for the Premises, times the number
of
Rentable square feet available for Tenant's use in the temporary
space.
If
no
temporary space is available that is reasonably satisfactory to Tenant, and
any
part of the PreMises is rendered untenantable by reason of such Casualty, Work
or Renovation, then to the extent thatiall or said portion of the usable area
of
the Premises is so rendered untenantable by reason of such Casualty, Work or
Renovation, Tenant shall be provided with a proportionate abatement of Fixed
Monthly Rent and Additional Rent. Said proportional abatement shall be based
on
the Usable Square Footage of the Premises that cannot and is not actually used
by Tenant, divided by the total Usable square feet contained in the Premises
but
shall be one hundred percent (100%) if the amount of the damage is partial
and
the remaining of the usable portion of the Premises would preclude Tenant's
utilization of the Premises for the Specified Use and Tenant actually vacates
the Premises. That proportional abatement, if
any shall be provided during the period bcginning on the later
of:
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a)
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the
Casualty Date; or
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b)
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the
actual date on which Tenant ceases to conduct Tenant's normal business
operations in all or any portion of the
Premises,
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and
shall
end on the date that both (i) Landlord achieves substantial completion of
restoration of the Premises and (ii) a certificate of occupancy is issued by
the
governmental agency having authority therefor. Tenant's acceptance of said
abatement of Rent shall be deemed conclusive evidence of Tenant's waiver of
any
further claim or
right of future claim for any loss or damage asserted by Tenant arising
out of tlie Casualty Repair, Work or Renovation, as the case may
be.
Section
12.6. Tenant'sWaiver
of Consequential Damages. Subject to Section 12.4, the
provisions contained in Section 12.5 are Tenant's sole remedy arising out of
any
Casualty. Landlord shall not be liable to Tenant or any other person or entity
for any direct, indirect, or consequential damage (including but aot limited
to
lost profits of Tenant or loss of or interference with Tenant's business),
unless caused by the gross negligence or willful misconduct of Landlord or
the
gross negligence or willful misconduct of Landlord's agents, contractors,
directors, employees, licensees, officers, partners or shareholders, due to
apsing out of or as a result of the Casualty (including but not limited to
the
termination of the Lease in connection with the Casualty).
Section
00.0.Xxxxxx
Of The Premises When Casualty Not Caused By Tenant. If the cost
of repair of any Casualty is covered under one or more of the insurance policies
Landlord is required herein to provide, or elected to provide and which cost
was
included in Operating Expenses, Landlord shall restore the base core and shell
of the Premises to its condition prior to the Casualty and repair and/or replace
the Improvements previously installed in the Premises, to a maximum of $35.00
per usable square foot. Tenant shall have the option to either, at Tenants
sole
expense, complete the balance of repairs needed to restore the Improvements
contained in the Premises to their condition prior to the Casnalty or to
continue Tenant's normal business operations in
the Premises in the condition to which Landlord has so restored
the
Improvements.
If
Landlord has elected to complete repairs to the Premises, and has not elected
to
terminate this Lease, as specified in
Section 12.3, then Landlord shall complete such repairs within
the
Repair Period, in a manner, and at times, which do not unreasonably interfere
with Tenant's use of that portion of the Premises remaining unaffected by the
Casualty. Provided Landlord has elected to make the repairs required hereunder,
and Tenant did not terminate this Lease pursuant to Section 12.4, this Lease
shall not be void or voidable during the Repair Period, nor shall Landlord
be
deemed to have constructively evicted Tenant thereby.
Section
12.8. INTENTIONALLY OMITTED.
Section
00.0.Xxxxxx
of the Building. Except as specified hereinabove, unless
Landlord or Tenant terminates this Lease as permitted hereinabove, Landlord
shall repair the Building, parking structure or other! supporting structures
and
facilities within two hundred and seventy (270) days after Landlord becomes
aware of such damage and/or destruction.
Section
12.10.Government-Required
Repairs. If during the Term, additional inspections other than
those standard annual or biannual inspections to which the Building may
generally be subject; testing, repairs and/or reconstruction (collectively
the
"Work") are required by any governmental authority, or if upon the
recommendation of its engineers, Landlord independently elects to undertake
all
or any portion of the Work prior to being required to do so by such governmental
authority, Landlord shall give notice thereof to Tenant and shall use its best
efforts not to unreasonably interfere with Tenant's use of the Prernises while
completing the Work. Tenant shall cooperate fully with Landlord in connection
with the Work and, upon the prior written request of Landlord, shall make the
Premises available for completion of the Work. Tenant and Landlord agree that
Landlord shall only be able to allocate all costs associated with completion
of
the Work to the Building's Operating Expenses, when permitted to under the
provisions of Section 4.1 of this Lease.
19
If
Landlord elects to undertake the Work during the Term, then Tenant shall be
entitled to an abatement of rent, pursuant to the provisions of Section 12.5
hcreinabove, and Landlord shall be completely responsible for repair of any
damage to the Premises and all costs associated with the removal, moving and/or
storage of Tenant's furniture, artwork, office equipment and files. Landlord
will restore any and all areas damaged by completion of the Work to their
previous quality and pay all cleanup costs. Landlord further agrees that it
shall use commercially reasonable efforts to see that all construction, such
as
coring or power nailing or work that makes excessive noise, dust, or requires
the displacement of tenant personnel or that could otherwise be disruptive
to
Tenant's normal business operations shall, in so far as is reasonably possible,
be performed between the hours of 7:00 p.m. to 7:00 a.m.;Monday through Friday;
after 1:00 p.m. on Saturdays and/or at any time on Sundays (this sentence is
referred to as the "Premises Work Restrictions").
Except
in
the case of Landlord's gross negligence and/or willful misconduct or the gross
negligence and/Or willful misconduct of Landlord's agents, contractors,
directors, employees, officers, partners, and/or shareholders or except as
otherwise provided in this Lease, Tenant shall not have the right to tennnate
this Lease as a result of Landlord undertaking the Work, nor shall Tenant or
any
third party claiming under Tenant be entitled to make any claim against Landlord
for any interruption, interference or disruption of Tenant's business or loss of profits therefrom
as
a result of the Work, and except as otherwise provided in this Lease Tenant
hereby releases Landlord from any claim which Tenant may have against Landlord
arising from or relating to, directly or'indirectly, the performance of the
Work
by Landlord.
Section
12.11.Optional
Landlord Renovation,
It is
specifically understood and agreed that Landlord has no obligation and has
made
no promises to alter, remodel, improve, renovate or decorate the Premises,
Building, or any part thereof and that, except as set forth herein, no
representations respecting the condition of the Premises or the I3uilding have
been made by Landlord to Tenant.
However,
at any time and from time to time during the Term, Landlord may elect, in
Landlord's reasonable discretion, to otherwise renovate, improve, alter or
modify elements of the Real Property, the Building and/or the Premises
(collectively, "Renovations") including without limitation, the parking
facilities, common areas, systems, equipment, roof, and structural portions
of
the same. which Renovations may include, without limitation:
|
a)
|
modifying
the common areas and tenant spaces to comply with applicable laws
and
regulations, including regulations relating to the physically disabled,
seismic conditions and building safety and security,
and
|
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b)
|
installing
new carpeting, lighting and wall covering in the Building common
areas.
|
In
connection with such_Renovations, Landlord may, among other things, erect
scaffolding or other necessary structures in or about the Building, limit or
eliminate access to portions of the Building, common areas or parking facilities
serving the Building, or perform other work in or about the Building, which
work
may create, noise, dust or debris that remains in the Building.
Landlord
shall have the right to access through the Premises as well as the right to
take
into and upon and through all or any part of the Premises, or any other part
of
the Building, all materials that may reasonably be required to make such
repairs, alterations, decorating, additions or improvements pursuant to the
provisions of this Section 12.11. So long as Tenant shall maintain reasonable
access to the Premises, the Building and the parking facilities, Landlord shall
also have the right, in the course of the Renovations, to close entrances,
doors, corridors, elevators, or, other building facilities, or temporarily
to
abatd the operation of such facilities.
So
long as Tenant is able to continue business operations and is not
required to vacate the Premises for any reason arising out of the Renovations,
and maintains reasonable access to and complies with the Premises Work
Restrictions, the Premises and the parking facilities, Tenant shall permit
all
of the Renovations to be done, and except in the case of Landlord's gross
negligence or willful misconduct or the gross negligence or willful misconduct
of Landlord's contractors, directors, employees, officers, partners or
shareholders, without claiming Landlord is, guilty of the constructive eviction
or disturbance of Tenant's use and possession.
Landlord
shall not be liable to Tenant in any manner (except as expressly provided
otherwise in this Lease), whether for abatement of any Rent or other charge,
reimbursement of any expense, injury, loss or damage to Tenant's property,
business, or any person claiming by or under Tenant, by reason of interference
with the business of Tenant or inconvenience or annoyance to Tenant or the
customers of Tenaht resulting from any Renovations
done in
or about the Premises or the Building or to any adjacent or nearby building,
land, street or alley. However, Landlord agrees that the Renovations shall
be
scheduled insofar as is commercially reasonable to permit Tenant to continue
its
normal business operations, with advance notice thereof, and in such
commercially reasonable manner so as to minimize Tenant's inconvenience and
in
compliance with'the Premises Work Restrictions.
20
Section
12.12.Optional
Tenant Changes During the Term. After completion of the initial
Improvements contemplated hereunder, if any, Tenant shall make no alteration,
change, addition, removal, demolition, improvement, repair or replacement in,
on, upon, to or about the Premises, or at any time to any portion of the
Building (collectively or individually a "Tenant Change"), without the prior
written consent of Landlord, which consent shall not be unreasonably withheld,
conditioned or delayed. Notwithstanding the foregoing, Tenant shall have the
right, without Landlord's consent but upon ten (10) days prior written notice
to
Landlord, to make interior non-structural, non-mechanical additions, removals,
repairs and alterations ("Minor Alterations") to the Premises that do not (i)
involve the expenditure of more than $20,000.00 in the aggregate in any twelve
(12) month period during the Term, (ii) affect the exterior appearance of the
Building, or (iii) affect the Building Systems or the Building Structure..
Except as otherwise specified in Article 7, any Tenant Change shall, at the
termination of this Lease, become a part of the Building and belong to Landlord,
pursuant to the provisions of Article 7. Any application for Landlord's consent
to a Tenant Change, and the completion thereof, shall be in conformance with
the
provisions of Exhibit B-1, attached hereto and made a part heMof by
reference.
Tenant
shall not knowingly permit Tenant's agents clients contractors, directors,
employees, invitees, licensees, officers, partners or shareholders to deface
the
walls, floors and/or ceilings of the Preinises, nor xxxx, drive nails, screws
or
drill holes into, paint, or in any way mar any surface in the Building.
Notwithstanding the above, Tenant is hereby permitted to install such pictures,
certificates, licenses, artwork, bulletin boards and similar items as are
normally used in Tenant's business, so long as such installation is carefully
attached to the walls by Tenant in a manner reasonably prescribed by Landlord
in
writing.
If
Tenant
desires, as a part of any Tenant Change, to make any revisions whatsoever to
the
electrical, HVAC, mechanical, life-safety, plumbing, or structural systems
of
the Building or Premises, such revisions must be completed by subcontractors
approved by Landlord, which approval will not be unreasonably
withheld and in the manner and location(s) reasonably prescribed by Landlord.
If
Tenant desires to install any telephone outlets, the same shall be installed
in
the manner and location(s) reasonably prescribed by Landlord in
writing.
If
Landlord consents to, any requested Tenant Change, Tenant shall give Landlord
a
minimum of ten (10)1business days written notice prior to commencement thereof.
Landlord reserves the option, but not the obligation, to enter upon, the
Premises for the purpose of posting and maintaining such notices on the Premises
as may be reasonably necessary to protect Landlord against mechanic's liens,
material man's liens,or other
liens,
and/or for posting any other notices that may be proper and necessary in
connection withlTenant's
completion
of the Tenant Change.
If
any
alterations, additions or improvements made by Tenant result in Landlord being
required to make any alterations to other portions of the Building in order
to
comply with any applicable statutes, ordinances or regulations (e.g., "handicap
ordinances") then Tenant shall reimburse Landlord upon demand for all costs
and
expenses incurred by Landlord in making such alterations. In addition, Tenant
shall,
reimburse Landlord for any and all of Landlord's out of pocket costs incurred
in
reviewing Tenant's plans for any Tenant Change or for any other "peer review"
work associated with Landlord's review of.Tenant's plans for any Tenant Change,
including, without limitation, Landlord's out of pocket costs incurred in
engaging any third party engineers, contractors, consultants or design
specialists. Tenant shall pay such costs not to exceed three percent (3%) of
Landlord's actual costs) to Landlord within five (5) business days after
Landlord's delivery to Tenant of a copy of the invoice(s) for such
work.
Section
12.13. Express Agreement. The provisions of this Lease,
including those contained in this Article 12, constitute an express agreement
between Landlord and Tenant that applies in the event of any Casualty to the
Premises, Building or Real Property. Tenant, therefore, fully waives the
provisions of any Statute or regulations, including California Civil Code
Sections 1932(2) and 1933(4), and any other law or statute which purports to
govern the rights or obligations of Landlord and. Tenant concerning a Casualty
in the absence of express agreement. Tenant and Landlord expressly agree and
accept that any successor or other law of like import shall have no application
hereunder.
ARTICLE
13
CONDEMNATION
Section
13.1. Condemnation of the Premises. If more than twenty five
percent (25%) of the Premises is laWfully condemned or taken in any manner
for
any public'or quasi-public use, or if any portion of the Building is condemned
or taken in such a manner that Tenant is reasonably prevented from obtaining
access to the Building or the Premises, this Lease may, within ten (10) business
days of such taking, be terminated at the option of either Landlord or Tenant
by
one party giving the other thirty (30) days written notice of its intent to
do
so. If either Landlord or Tenant provide the other party written notice of
termination, the Term and estate hereby granted shall forthwith cease and
terminate as of the earlier of the date of vesting of title in such condemnation
or taking or the date of taking of possession by the condemning
authority.
If
less
than twenty-five percent (25%) of the Premises is so condemned or taken, then
the term and estati hereby granted with respect to such part shall forthwith
cease and terminate as of the earlier of the date of vesting of title in such
condemnation or taking or the date of taking of possession by the condemning
authority, and the Fixed Monthly Rent payable hereunder (and Additional Rent
payable purstiant to Articles 3 or 4) shall be abated on a prorated basis,
by
dividing the total number of Usable square feet so taken by the total number
of
Usable square feet contained in the Premises, then muihiplying
said percentage on a monthly basis, continuing from the date of such vesting
of
title to the date specified in this Lease for the expiration of the Term
hereof.
21
Section
13.2. Condemnation of the Building. If less than twenty-five percent
(25%) of the Building is so condemned or taken, then Landlord shall, to the
extent of the proceeds of the condemnation payable to Landlord and with
reasonable diligence, restore the remaining portion of the Building as nearly
as
pradticable to its condition prior to such condemnation or taking; except that,
if such proceeds constitute less; than ninety percent (90%) of Landlord's
estimate of the cost of rebuilding or restoration, then Landlord may terminate
this Lease on thirty (30) days prior written notice to Tenant.
If
more
than twenty-five percent (25%) of the Building is so condemned or taken, but
the
Premises are unaffected thereby, then Landlord shall have the option but not
the obligation, which election shall be
in
Landlord's sole discretion, to terminate this Lease, effective the earlier
of
the date of vesting of title in such condemnation or the date Landlord delivers
actual possession of the Building and Premises to the condenming authority,
which election by Landlord shall be provided to Tenant in writing.
Section
13.3. Award. If any condemnation or taking of all or a part of the
Building takes place, Tenant shall be entitled to join in any action claiming
compensation therefore, and Landlord shall be entitled to receive that portion
of the award made for the value of the Building, Premises, leasehold
improvements made or reimbursed by Landlord, or bonus value of the Lease, and
Tenant shall only be entitled to receive any award made for the value of the
estate vested by this Lease in Tenant, including Tenant's proXimate damages
to
Tenant's business and reasonable relocation expenses. Nothing shall preclude
Tenant from intervening in any such condemnation proceeding to claim or receive
from the condemning authority any compensation to which Tenant may otherwise
lawfully be entitled in such case in respect of Tenant's property or for moving
to a new location.
Section
13.4. Condemnation for aLimited Period.
Notwithstanding the provisions of Section 13.1,
13.2 or 13.3, except
during the final twelve (12) months of the Term, if all or any portion of the
Premises are condemned or taken for governmental occupancy for a limited period
(i.e. - anticipated to be no lonubr than sixty (60) days), then this Lease
shall
not terminate; there shall be no abatement of Fixed Monthly Rent or Additional
Rent payable hereunder; and Tenant shall be entitled to receive the entire
maid
therefor (whether paid as damages, rent or otherwise). Tf
during
the final twelve (12) months of the Term, all or any portion of the Premises
are
condemned or taken for uovernmental
occupancy for a limited period anticipated to be in excess of sixty (60) days,
or Or a period extended after the expiration of the initial Term, Tenant shall
have the option, but not the obligation, to terminate this Lease, in which
case,
Landlord shall be entitled to such part of such award as shall be properly
allocable to the cost of restoration of the Premises, and the balance of such
award shall' be apportioned between Landlord and Tenant as of the date of such
termination.
If
the
termination of such governmental occupancy is prior to expiration of this Lease,
and Tenant has not elected to terminate this Lease, Tenant shall, upon receipt
thereof and to the extent an award has been made, restore the Premises as nearly
as possible to the condition in which they were prior to the condemnation or
taking.
ARTICLE
14
MORTGAGE
SUBORDINATION; ATTORNMENT AND MODIFICATION OF LEASE
Section
14.1. Subordination. This Lease, the Term and estate hereby granted,
are and shall be subject and Subordinate to the lien of each mortgage which
may
now or at any time hereafter affect Landlord's interest in the real property,
Building, parking facilities, common areas or portions thereof and/or the land
hhereunder (an ''Underlying Mortgage"), regardless of the interest rate, the
terms of repayment, the use of the proceeds or any other provision of any such
mortgage, provided that Tenant receives, as a condition precedent to such
subordination, a commercially reasonable subordination, non-disturbance and
attornment agreement in sum and substance the equivalent of Exhibit H ("SNDAA").
Tenant shall from time to time execute and deliver such instruments as Landlord
or the holder of any such mortgage may reasonably request to confirm the
subordination provided in this Section 14.1, subject to the
foregoing.
Section
14.2. Attornment. Tenant confirms that if by reason of a default under
an Underlying Morigage the interest of Landlord in the Premises is terminated,
provided Tenant is granted in writing continued quiet enjoyment of the Premises
pursuant to the terms and provisions of this Lease, Tenant shall
attorn to the holder of the reversionary interest in the Premises and shall
recognize such holder as Tenant's landlord under this Lease, but in no
event shall such holder be bound by any payment of Rent paid
more
than one month in advance of the date due under this Lease. Tenant shall, within
ten (10) calendar days after request therefor, execute and deliver, at any
time
and from time to time, upon the request of Landlord or of the`holder of an
Underlying Mortgage any instrument which may be necessary or appropriate to
evidence such attoniment.
Section
14.3.Modification of Lease; Notice of Default. If any
current or prospective mortgagee or ground lessor for the Building requires
a
modification or modifications of this Lease, which modification or mbdifications
will not cause an increased cost or expense to Tenant or in any other way
materially and adversely change the rights and obligations of Tenant hereunder,
then in such event, Tenant agrees that this Lease may be so modified. Tenant
agrees to execute and deliver to Landlord within ten (10) business days
following the request therefor whatever reasonable documents are required to
effectuate said modification. Should Landlord or' any such current or
prospective mortgagee or ground lessor require execution of a short form of
Lease for recording, containing, among other customary provisions, the names
of
the parties, a description of the Premises and the Term, Tenant agrees to
execute and deliver to Landlord such short form of Lease within ten (10)
business days following the request therefor. Further, Tenant shall give written
notice of any default by Landlord under this Lease to any morkgagee and ground
lessor of the Building of whom Tenant has received written notification and
shall affol-d
such mortgagee and ground lessor a reasonable opportunity to cure such default
prior to exercising
any remedy under this Lease.
22
Section
14.4.Non
Disturbance Agreement. Landlord agrees
to obtain and deliver
to Tenant, within thirty
(30) days after mutual execution and delivery of this Lease, an SNDAA from
the
holder of the existing
deed of trust affecting the Building SNDAA is in form and substance comparable
to the SNDAA attached hereto as Exhibit
H.
ARTICLE
15
ESTOPPEL
CERTIFICATES
Section
15.1. Estoppel Certificates. Tenant shall, within ten (10) business
days alter receipt of Landlord's written request therefor, execute, acicnowledge
and deliver to Landlord an Estoppel Certificate, which may be conclusively
relied upon by any prospective purchaser, mortgagee or beneficiary under any
deed of trust covering the Building or any part thereof Said Estoppel
Certificate shall certify the following:
|
a)
|
that
this Lease is unmodified and in full force and effect (or,
if there
have been modifications, that this Lease is in full force and effect,
as
modified, and stating the date and nature of each
modification);
|
|
b)
|
the
date, if any to which rental and other sums payable hereunder have
been
paid;
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c)
|
that
no notice has been received by Tenant of any default which has
not been
cured, except as to defaults specified in the
certificate;
|
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d)
|
that
Landlord is not in default under this Lease or if so, specifying
such
default; and
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e)
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such other factual matters as
may be
reasonably xxxxxxxxx.xx Landlord.
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Tenant's
failure to deliver the Estoppel Certificate within the time period specified
above shall constitute a material default under the Lease, and Landlord shall
have the option, but not the obligation, to enforce the remedies contained
in
Article 18.
ARTICLE
16
NOTICES
Section
16.1. Notices. Any notice, consent, approval, agreement, certification,
request, xxxx, demand. statement, acceptance or other communication hereunder
(a
"notice") shall be in writing and shall be considered duly given or furnished
vvhen:
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a)
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delivered
personally or by messenger or overnight delivery service, with
signature
evidencing such delivery; or
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|
b)
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upon
the date of delivery, after being mailed in a postpaid envelope,
sent
certified mail, return receipt
requested.
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In
each
case such notices must be when addressed to Landlord as set forth in the Basic
Lease Information and to Tenant at the Premises and any other address for Tenant
specified in the Basic Lease Information; or to such other address or addressee
as either party may designate by a written notice given pursuant
hereto
ARTICLE
17
DEFAULT
AND LANDLORD'S OPTION TO CURE
Section
17.1. Tenant's Default. For the purposes of this Section 17.1, if the
term "Tenant'', as used in this Lease, refers to more than one person,
then,
such term shall be deemed to include all of such persons or any one of
them; if
any of the obligations of Tenant under this Lease are guaranteed, the term
"Tenant," as used in Section 17.1(e) and Section 17.1(1), shall be deemed
to
also include the guarantor or ifi there is more than one guarantor, all
or any
one of them; and if this Lease has been assigned, the term i "Tenant,"
as used
in Sections 17.1 (a) through (11), inclusive, shall be deemed to include
the
assignee and assignor, jointly and severally, unless Landlord shall have
in
connection with such assignment, previously released the assignor from
any
further liability under this Lease, in which event the term "Tenant," as
used in
said subparagraphs, shall not include the assignor that was previously
released
This
Lease and the covenants and estate hereby granted are subject to the limitation
that:
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a)
|
Tenant
fails to make any payment of Fixed Monthly Rent or Additional
Rent within
five (5) bUsiness days following Tenant's receipt of written
notice that
any such amount is due and unpaid;
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b)
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Tenant
defaults in the keeping, observance or performance of any covenant
or
agreement including any provisions of the rules and regulations
established by Landlord , and if such default continues and is
not cured
by Tenant within thirty (30) days after Landlord has given to
Tenant a
notice specifying the same, or in the case of such a default
which for
causes beyond Tenant's reasonable control (including occupancy
of a
sublessee) cannot with due diligence be cured within such period
of thirty
(30) days, if Tenant
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23
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c)
|
if
Tenant fails to deliver the Estoppel Certificate required under Article
15
hereof within the time Period specified in the last paragraph of
said
Article 15, or
|
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d)
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if
Tenant:
|
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i)
|
applies
for or consents to the appointment of or the taking of possession
by a
receiver, custodian, trustee or liquidator of itself or of all or
a
substantial part of its property;
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ii)
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admits
in writing its liability, or is generally unable to pay its debts
as such
debts become due;
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iii)
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makes a
general assignment for the benefit of its
creditors;
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iv)
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commences
a voluntary case under federal bankruptcy laws (as now in hereafter
in
effect);
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v)
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files
a petition seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, winding up, or composition
or
adjustment of debts;
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vi)
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fails
to controvert in a timely or appropriate manner, or acquiesces in
writing
to any petition filed against it in an involuntary case under such
bankruptcy laws;
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vii)
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take
any action for the purpose of effecting any of the foregoing,
or
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e)
|
if
a proceeding or case is commenced, without the application or consent
of
Tenant, in any court of competent jurisdiction,
seeking:
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|
i)
|
the
liquidation, reorganization, dissolution, winding up, or composition
or
readjustment of debts, of Tenant;
or
|
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ii)
|
the
appointment of a trustee, receiver, custodian, liquidator or the
like of
Tenant or of all or a substantial part of its assets;
or
|
|
iii)
|
similar
relief with respect of Tenant under any law relating to bankruptcy,
insolvency, reorganization, winding up, or composition or adjustment
of
debts, and such proceeding or case shall continue undismissed,
or an
order, judgment or decree approving or ordering any of the foreuoing
shall
be entered and continue unstayed and in effect, for a period of
sixty (60)
days, or an order for relief against Tenant shall be entered in
an
involuntary case under such bankruptcy
laws.
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The
occurrences described in Section 17.1 (a)-(e) above are deemed, individually
and
collectively, an "Event of Default".
Section
17.2.Landlord's
Option to Cure Tenant's Default If Tenant enters into a default
under this Lease, upon Landlord's issuance of a written notice, as specified
hereinabove, Landlord may cure the same at the sole expense of
Tenant:
|
a)
|
immediately
and without notice in the case of emergency; if said default is specified
in Sections 17.1
(a), (b) or (c), or if such default unreasonably interferes with
the use
by any other tenant of the Building;
with the efficient operation of the Building; or will result in a
violation of law or in a cancellation
of any insurance policy maintained by Landlord,
and
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b)
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after
the expiration of Landlord's 3-Day Notice of Intent to Cure, in
the case
of any default other than those specified in Section 17.2 (a)
hereinabove.
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Section
17.3.Landlord's
Option to Terminate this Lease. In addition to any other
remedies Landlord may have at law or in equity, upon an Event of Default,
Landlord shall be entitled to give to Tenant a written notice of intention
to
terminate this Lease at the expiration of three (3) days from the date of the
uivincr of such
notice, and if such notice is given by Landlord, and Tenant fails to cure the
defaults specified therein, then this Lease and the Term and estate hereby
granted (whether or not the Commencement Date has already occurred) shall
terminate upon the expiration of such three (3) day period (a 'Default
Termination"), with the same effect as if the last of such three (3) days were
the Termination Date, except that Tenant shall remain liable for damages as
provided hereinbelow or pursuant to law.
SectIon
I74.Certain
Payments. Bills for all reasonable costs and expenses incurred
by Landlord in connection with any performance by it under Section 17.2 shall
be
payable, as Additional Rent, pursuant to the provisions of Section
4.3.
Section
17.5. Certain Waivers. Unless Tenant has submitted documentation that
it validly disputes Landlord's billing for Fixed Monthly Rent hereunder, or
is
completing an audit of Landlord's Operating Expense Statement, if Tenant is
in
default in payment of Fixed Monthly Rent or Additional Rent hereunder, Tenant
waives the right to designate the items against which any payments made by
Tenant are to be credited. In lieu thereof, Landlord may apply any payments
received from Tenant to the then-oldest billing remaining unpaid on Tenant's
rental account or to any other payment due from Tenant, as Landlord sees
fit.
Section
17.6.Landlord
Default. Notwithstanding anything to the contrary set forth in
this Lease, Landlord shall not be in default in the performance of any
obligation required to be performed by Landlord pursuant to this Lease
unless:
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a)
|
in;
the
event such default
is with respect to the payment of money, Landlord fails to pay such
unpaid
amounts within five (5) business days of written notice from Tenant
that
the same was not paid when due, or
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|
b)
|
in
the event such default is other than the obligation to pay money,
Lanlord
fails to perform such obligation, within thirty (30) days after the
receipt of notice form Tenant specifying in detail Landlord's failure
to
perform; provided, however, if the nature is such that more than
thirty
(30) days are required for its performance, then Landlord shall not
be in
default Under this Lease if it shall commence such performance within
such
thirty (30) days period and thereafter diligently pursue the same
to
completion within a reasonable time
period.
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24
Upon
any
such default by Landlord under this Lease, 'fen= may except as otherwise
specifically provided in this Lease to the contrary, exercise any of its rights
provided at law or in equity.
ARTICLE
18
DAMAGES;
REMEDIES; RE-ENTRY BY LANDLORD; ETC.
Section
18.1. Damages.
In the event of a Default Termination, Landlord may recover from Tenant
the
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a)
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the
worth at the time of award of the unpaid Fixed Monthly Rent and Additional
Rent earned to the date of such Default Termination;
and
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b)
|
the
worth at the time of award of the amount by which the unpaid Fixed
Monthly
Rent and Additional Rent which would have been earned after the 'date
of
such Default Termination until the time of award exceeds the amount
of
such rental loss that Tenant proves could have been reasonably avoided;
and
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c)
|
the
worth at the time of award of the amount by which the unpaid Fixed
Monthly
Rent and Additional Rent which would have been earned for the balance
of
the Term after the time of award ekceeds the amount of such rental
loss
that Tenant proves could have been reasonably avoided;
and
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d)
|
any
other amount reasonably necessary to compensate Landlord for all
of the
detriment proximately caused by Tenant's failure to observe or perform
any
of its covenants and agreements under this Lease or which in the
ordinary
course of events would be likely to result therefrom, including,
without
limitation. the payment of the reasonable expenses incurred or paid
by
Landlord in reebtering and securing possession of the Premises and in
the reletting thereof (including, without liMitation, altering and
preparing the Premises for new tenants and brokers' commission);
and
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e)
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at
Landlord's sole election such other amounts in addition to or in
lieu of
the foregoing as may be permitted from time to time under applicable
California laws.
|
Sectfon
18.2. Computations: The "worth at the time of award" is computed: 1the
total Fixed Monthly Rent for the balance of the Term,
plus
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a)
|
in
paragraphs (a) and (b) above, by allowing interest at the rate
of ten
percent (10%) per annum (but in no event in excess of the maximum
rate
permitted by law); and
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|
b)
|
in
paragraph (c) above, 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%).
|
|
c)
|
For
purposes of computing unpaid rental which would have accured and
become
payable under this Lease, unpaid rental shall consist of the sum
of:
|
|
i)
|
the
total Fixed Monthly Rent for the balance of the Term,
plus
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|
ii)
|
a computation of Tenant's Share
of
Additional Rent due under the Lease including; without limitation,
Tenant's Share of any increase in Operating Expenses (including real
estate taxes) for the balance of the Term. For purposes of computing
any
increases due Landlord hereunder, Additional Rent for the calendar
year of
the default and for each future calendar year in the Term shall be
assumed
to be equal to the Additional Rent for the calendar year prior to
the year
in which default occurs, compounded at a rate equal to the mean average
rate of inflation for the preceding five calendar years as determined
by
the United States Department of Labor, Bureau of Labor Statistics
Consumer
Price Index (All Urban Consumers, all items, 1982-84 equals 100)
for the
metropolitan area or region of which Los Angeles, California is a
part. If
such index is discontinued or revised, the average rate of inflation
shall
be determined by reference to the index designated as the successor
or
substitute index by the government of the United
States.
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Section
18.3. Re-Entryby Landlord.
|
a)
|
Upon
an Event of Default, Landlord or Landlord's authorized representatives
may
re-enter the Premises with appropriate legal process, and remove
all
persons and all property therefrom, either by summary dispossession
proceedings or by any suitable action or proceeding at law, without
being
liable to indictment, prosecution or damages therefor, and may repossess
and enjoy the Premises. No re-entry or repossession of the Premises
by
Landlord or its representatives under this Section 18.3 shall be
construed
as an election to terminate this Lease unless a notice of such election
is
given to Tenant or unless the termination thereof is decreed by a
court of
competent jurisdiction. The words "re-enter", "re-entry" and "re-entering"
as used herein are not restricted to their technical legal
meanings.
|
|
b)
|
If
an Event of Default specified occurs
and continues beyond the period of grace (if any) therefor,
then if
Landlord does not elect to terminate this Lease Landlord may, from
time to
time and without terminating this Lease, enforce all its rights and
remedies under this Lease, including the right to recover the Fixed
Monthly Rent and Additional Rent as the same becomes payable by Tenant
hereunder.
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i)
|
If
Landlord consents thereto, Tenant may sublet the Premises or any
part
thereof (which consent Landlord agrees will not be unreasonably withheld),
subject to Tenant's compliance with the requirements of Article 11
of this
Lease. So long as Landlord is exercising this remedy it will not
terminate
Tenant's right to possession of the Premises, but it may engage in
the
acts permitted by Section 1951.4(c) of the California Civil
Code.
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25
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c)
|
If
Tenant permanently abandons the Premises in breach of this Lease,
Landlord
shall have the right o
relet the Premises or any part thereof on such terms and conditions
and at such rentals as Landlord in its reasonable discretion may
deem
advisable, with the right to make alterations and repairs in and
to the
Premises necessary to reletting. If Landlord so elects to relet,
then
gross rentals received by Landlord from the reletting shall be
applied:
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|
i)
|
first,
to the payment of the reasonable expenses incurred
or paid
by Landlord in re-entering and securing possession of the Premises
and in
the reletting thereof (including, without limitation, altering and
preparing the Premises for new tenants and brokers'
commissions);
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|
ii)
|
second,
to the payment of the Fixed Monthly Rent and Additional
Rent payable by Tenant hereunder; and
|
| iii) |
third,
the remainder, if any to be retained by Landlord
and
applied to the payment of future Fixed Monthly Rent and Additional
Rent as
the same become due.
|
Should
the gross rentals received by Landlord from the reletting be insufficient to
pay
in full the sums stated in Section 18.3 (a) and (b) hereinabove, Tenant shall,
upon demand, pay the deficiency to Landlord.
Section
18.4. Certain Waivers. After Landlord has actually obtained
possession of the Premises pursbant to any lawful order of possession granted
in
a valid court of law, Tenant thereafter waives and surrenders for Tenant, and
for all claiming under Tenant, all rights and privileges now or hereafter
existing to redeem the Premises (whether by order or judgment of
any court or
by any legal process or writ) to assert Tenant's continued right to occupancy
of
the Premises; or to have a continuance of this Lease for the Term hereof. Tenant
also waives the provisions of any law relating to notice and/or delay in levy
of
execution in case of, an eviction
or
dispossession for nonpayment of rein, and of any successor or other law of
like
import.
Section
183. Cumulative Remedies. The remedies of Landlord provided for
in this Lease are cumulative and are not intended to be exclusive of any other
remedies to which Landlord may be, lawfully entitled. The exercise by Landlord
of any remedy to which it is entitled shall not preclude or hinder the exercise
of any other such remedy.
ARTICLE
19 INSURANCE
Section
19.1. Landlord Obligations:
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a)
|
Landlord
shall secure and maintain during the Term of this Lease the following
insurance:
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|
i)
|
Commercial
General Liability and Umbrella Liability insurance relating to Landlord's
operation of the Building, for personal and bodily injury and death,
and
damage to other's property.
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ii)
|
All
risk of standard fire insurance and extended coverage including vandalism
and malicious mischief and sprinkler leakage endorsements relating
to the
Building, the parking facilities, the common area improvements and
any and
all improvements installed in on or upon the Premises and affixed
thereto
(but excluding Tenant's fixtures, furnishings, equipment, personal
property or other elements of Tenant's
Property);
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|
iii)
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Such
other insurance (including, without limitation, boiler and machinery,
rental loss, earthquake and/or flood insurance) as Landlord reasonably
elects to obtain or any Lender
requires.
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b)
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Insurance
effected by Landlord under this Section 19.1 will
be:
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|
i)
|
In
amounts which Landlord from time to time reasonably determines sufficient
or which any ; Lender requires; and
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ii)
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Subject
to such deductibles and exclusions as Landlord reasonably deems
appropriate.
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c)
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Notwithstanding
any contribution by Tenant to the cost of insurance premiums as provided
herein, Tenant acknowledges that Tenant has no right to receive any
proceeds from any insurance policies carried by Landlord, but shall
continue to receive the waiver of subrogation benefits pursuant to
Section
19.4 below,
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Section
19.2. Tenant Obligations.
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a)
|
Prior
to the Commencement Date or Tenant's anticipated early possession
date of
the Premises and thereafter during the Term of this Lease, Tenant
shall`secure and maintain, at its own expense throughout the Term
of this
Lease the following minimum types and amounts of insurance, in form
and in
companies acceptable to Landlord, insuring Tenant, its employees,
agents
and designees:
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|
i)
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Workers'
Compensation Insurance, the amount and scope required by statute
or other
governing law.
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|
ii)
|
Employer's
Liability Insurance in amounts equal to the following: Bodily Injury
by
accident -, $1,000,000 each accident; Bodily Injury by disease -
$1,000,000 policy limit; and Bodily Injury by disease - $1,000,000
each
employee.
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iii)
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CommercialGeneral
Liability on an occurrence basis, without claims-made features, with
bodily injury and property damage coverage in an amount equal to
the
greater of (1) the insurance currently maintained by Tenant or (2)
a
combined single limit of $2,000,000; and such insurance shall include
the
following coverages: (A) Premises and Operations coverage with X,
C, and U
exclusions for explosion, collapse, and underground property damage
deleted under both premises/operations and contractual liability
coverage
parts, if applicable; (B) Owner and Contractor Protective coverage;
(C)
Products and Completed Operations coverage; (D) Blanket Contractual
coverage, including both oral and written contracts; (E) Personal
Injury
coverage; (F) Broad Form Comprehensive General Liability coverage
(or its
equivalent); and (G) Broad Form Property Damage coverage, including
completed operations.
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26
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iv)
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All
risk of standard fire insurance and extended coverage with vandalism
and
malicious mischief and sprinkler leakage endorsements, insuring fixtures,
glass, equipment, merchandise, inventory and other elements of Tenant's
Property in the Premises, and all other contents of the Premises
(e.g.
Tenant Improvements, furniture, fixtures, equipment). Such insurance
shall
be in an amount equal to 100% of the replacement value thereof (and
Tenant
shall re-determine the same as frequently as necessary in order to
comply
herewith). The proceeds of such insurance, so long as this Lease
remains
in effect, shall be used to repair and/or replace the items so
insured.
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|
v)
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A
commercially reasonable and customary policy of business interruption
insurance with respect to the operation of Tenant's
business.
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vi)
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Any
other forms of insurance'Landlord may reasonably require from time
to time
as compared to prudent landlords of Comparable Buildings, in form
and
amounts and for insurance risks against which a pnident tenant of
comparable size in a comparable business would protect
itself.
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|
b)
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All
insurance policies maintained to provide the coverages required herein
shall:
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|
i)
|
Be
issued by insurance companies authorized to do business in the state
in
which the leased premises are located, and with companies rated,
at a
minimum "A- VII" by A.M. Best;
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|
ii)
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Bc
subject to the prior approval of Landlord (which approval shall not
be
unreasonably withheld) as to form, substance and
insurer;
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iii)
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Provide
for a deductible only so long as Tenant shall remain liable for payment
of
any such j deductible in the event of any
loss;
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iv)
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Intentionally
Omitted;
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v)
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Contain
provisions for at least ten (10) days advance written notice to Landlord
of cancellation due to non-payment and thirty (30) days advance written
notice to Landlord of material modification or cancellation for any
reason
other than non-payment; and
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|
vi)
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Stipulate
that coverages afforded under such policies are primary insurance
as
respects Landlord and that any other insurance maintained by Landlord
are
excess and non-contributing with the ; insurance required
hereunder.
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|
e)
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No
endorsement limiting or excluding a required coverage is
permitted.
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|
d)
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Tenant
shall deliver to Landlord written evidence of insurance coverages
required
herein prior to the Delivery Date. Tenant shall deliver to Landlord
no
less than fifteen (15) days prior to the expiration Of any required
coverage, written evidence of the renewal or replacement of such
coverage.
Landlord's failure at any time to object to Tenant's failure to provide
the specified insurance or written evidence thereof (either as to
the type
or amount of such insurance) shall not be deemed as a waiver of Tenant's
obligations under this Section.
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|
e)
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Landlord
shall be named as an additional insured on the Tenant's policies
of
General Liability and gmbrella Liability insurance. Landlord shall
be
named as a loss payee on the Tenant's policies of All Risk insurance
as
their interest may appear to the extent any fixtures, equipment,
improvements and installations attached or built into the Premises
by
Tenant or on Tenant's behalf at any time during the Term shall, at
the
expiration or earlier termination of this Lease, be deemed the property
of
Landlord; become a permanent part of the Premises and remain therein.
Tenant shall deliver to Landlord the appropriate endorsements evidencing
additional insured and loss payee status. Any claim for loss under
said
insurance policies shall be payable notwithstanding any act, omission,
negligence, representation, misrepresentation or other conduct or
misconduct of Tenant which might otherwise cause cancellation, forfeiture
or reduction of such insurance.
|
|
f)
|
The
insurance requirements in this Section shall not in any way limit,
in
either scope or amount, the indemnity obligations separately owed
by one
party to the other under the Lease.
|
|
g)
|
Nothing
herein shall in any manner limit the liability of one party for
non-performance of its obligations or for loss or damage for which
such
party is responsible, except as provided in Section 19.4.
The aforementioned minimum limits of policies shall in no event limit
the
liability of either party
hereunder.
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|
h)
|
Tenant
may, at its option, satisfy its insurance obligations hereunder by
policies of so-called blanket insurance carried by Tenant provided
that
the same shall, in all respects, comply with the provisions hereof
In such
event, Tenant shall not be deemed to have complied with its obligations
hereunder until Tenant shall have obtained and delivered to Landlord
a
copy of each such policy together with an appropriate endorsement
or
certificate applicable to and evidencing full compliance with the
specific
requirements of the Lease (irrespective of any claim which may be
made
with respect to any other property or liability covered under such
policy), and until the same shall have been approved by Landlord
in
writing.
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Section
19.3.Compliance
with Building Insurance Requirements. After Tenant takes
occupancy of the Premises, Tenant shall not violate or permit in, on
or upon the Premises the violation of any condition imposed by such
standard fire insurance policies as are normally issued for office buildings
in
the City or County in which the Building is located. Tenant shall not do, suffer
or permit anything to he clone, or keep, suffer or permit anything to be kept,
in the Premises which would, increase the risk ratings or premium calculation
factors on the Building or property therein (collectively an `Increased Risk"),
or which would result in insurance companies of good standing refusing to insure
the Building or any property appurtenant thereto in such amounts and against
such risks as Landlord may reasonably deterniirie from time to time are
appropriate.
27
Notwithstanding
the above, if additional insurance is available to cover such Increased Risk,
Tenant shall not be in default hereunder if:
|
a)
|
Tenant
authorizes Landlord in writing to obtain such additional insurance;
and
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|
b)
|
prepays
the annual cost thereof to Landlord for such additional coverage,
as well
as the additional Costs, if any of any increase in Landlord's other
insurance premiums resulting from the existence or continuance of
such
Increased Risk.
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Section
00.0.Xxxxxx VVaiver of Subrogation. Landlord and
Tenant intend that their respective property loss risks shall be borne by
reasonable insurance carriers to the extent above provided, and Landlord and
Tenant hereby agree to look solely to and seek recovery only from their
respective insurance carriers in the event of a property loss to the extent
that
such coverage is agreed to be provided hereunder. The parties each hereby waive
all rights and claims against each other for such losses, and waive all rights
of subrogation of their respective insurers, provided such waiver of subrogation
shall not affect the right to the insured to recover thereunder. The parties
agree that their respective insurance poliCies are now or shall be endorsed
such
that the waiver of subrogation shall not affect the right of the insured to
recover thereunder.
Section
19.5.Failure to Secure. If at any time during the
Term, and after expiration of three (3) business days' prior written demand
therefore from Landlord, Tenant fails to:
|
a)
|
Provide Landlord with access to a registered
insurance
broker of record that can verify Tenant's compliance with the requirement
contained in this Article 19; or
|
| b) | provide documentation reasonably acceptable to Landlord that Tenant has secured and maintained the insurance coverage required hereunder, |
then
such
failure shall be considered a material default under the Lease, and Landlord
shall have the option, but not the obligation, upon prior written notice to
obtain such insurance onbehalf of or as the agent of Tenant and in Tenant's
name.
Tenant
shall pay Landlord's billing for the premiums associated with such insurance
policy or policies within five (5) days after receipt of Landlord's billing,
as
well as such other reasonable costs and fees arising out of such default
together with interest on the entire amount so advanced by Landlord, at the
rate
of ten percent (10%) per annum, computed from the date of such advance. Such
advances, if made by Landlord, shall be construed as, and considered Additional
Rent under this Lease.
ARTICLE
20
MISCELLANEOUS
Section
20.1.Entire Agreement. This Lease, including the
exhibits and guaranty of lease, if any, annexed hereto, contains all of the
agrecinents and understandings relating to the leasing of the Premises and
the
obligations of Landlord and Tenant in connection therewith and neither party
and
no agent or representative
thereof has made or is making, and neither party in executing and delivering
this Lease is relying upon, any warranties or representations, except to the
extent set forth in this Lease. All understandings and agreements heretofore
had
between Landlord and Tenant relating to the leasing of the Premises are merged
in this Lease, which alone fully and completely expresses their agreement.
The
Riders (if any) and Exhibits annexed to this Lease and the Construction
Agreement are hereby incorporated herein and made a part hereof.
Section
20.2. NoWaiver or Modification. The failure of
Landlord or Tenant to insist in any instance uponithe strict keeping, observance
or performance of any
covenant or agreement contained in this Lease or to exercise any election herein
contained shall not be construed as a waiver or relinquishment for the future
of
such covenant or agreement, but the same shall continue and remain in full
force
and effect. No Waiver or modification by either Landlord or Tenant of any
covenant or agreement contained in this Lease shall be deemed to have been
made
unless the same is in writing executed by the party whose rights are being
waived or modified. No surrender of possession of any part of the Premises
shall
release Tenant from any of its obligations hereunder unless accepted in writing
by Landlord. The receipt and retention by Landlord, and the payment by Tenant,
of Fixed Monthly Rent or Additional Rent with knowledge of the breach of any
covenant or agreement contained in this Lease shall not be deemed a waiver
of
such breach by either Landlord or Tenant.
Section
20.3.Time of the Essence. Time is of the essence of
this Lease and of all provisions hereof.
Section
20.4. Force Majeure. For the purposes of this Lease, "Force Majeure"
shall be defined as any or all prevention, delays or stoppages and/or the
inability to obtain services, labor, materials or reasonable substitutes
therefor, when such prevention, delay, stoppage or failure is due to strikes,
lockohts, labor disputes, terrorist acts, acts of God, governmental actions,
civil commotion, tire or other casualty, and/or other causes beyond the
reasonable control of the party obligated to perform, except that ForcelMajeure
may not be raised as a defense (except as provided in a specific rent abatement
provision of thiS Lease) for Tenant's non-performance of any obligations imposed
by the Lease with regard to the payment of Fixed Monthly Rent and/or Additional
Rent or Landlord's payment obligations.
28
Notwithstanding
anything to the contrary contained in this Lease, Force Majeure shall excuse
the
performance of such party for a period equal to any suite prevention, delay,
stoppage or inability. Therefore, if this Lease specifies a time period for
performance of an obligation by either party, that time peribd shall be extended
by the period of any delay in such party's performance caused by a Force Mal,e
u
re.
Section
20.5. Broker. Landlord and Tenant represent to one another that each
has dealt with no broker or agent in connection with this Lease or its
negotiations other than Xxxxxxx,
Xxxxxx and Company andBeitler
Commercial Realty. Landlord and Tenant shall hold one another
harmless from and against any and all liability, loss, damage, expense, claim,
action, demand, suit or obligation arising out of olr relating
to a
breach by the indemnifying party of such representation. Landlord agrees to
pay
all commissions due to the brokers listed above created by Tenant's execution
of
this Lease.
Section
20.6. Governing Law. This'Lease shall be governed by and
construed in accordance with the laws of the State of California.
Section
20.7. Submission of Lease. Whether or not rental deposits have
been received by Landlord from Tenant, and whether or not Landlord has delivered
to Tenant an unexecuted draft version of this Lease for Tenant's review and/or
signature, no contractual or other rights shall exist between Landlord and
Tenant with respect to the Premises, nor shall this Lease be valid and/or in
effect until this Lease has been fully executed and a duplicate original of
said
fully-executed Lease has been delivered to both Landlord and
Tenant.
The
submission of this Lease to Tenant shall be for examination purposes only and
does not and shall not constitute a reservation of or an option for Tenant
to
lease, or otherwise create any interest by Tenant in the Premises or any other
offices or space situated in the Building. Execution of ibis Lease by Tenant
and
its return to Landlord shall not be binding upon Landlord, notwithstanding
any
time interval, until Landlord has in fact executed and delivered a
fully-executed duplicate original of this Lease to Tentint. Landlord and Tenant
agree hereby to authorize transmission of all or portions of documents,
inchiding'signature lines thereon, by facsimile machines, and further authorize
the other party to rely conclusively upon such facsimile transmissions as if
the
original had been received.
Section
20.8. Captions. The captions in this Lease are for`convenience only and
shall not in any wily limit or be deemed to construe or interpret the terms
and
provisions hereof.
Section
20.9. Singularand
Plural, Etc. The words "Landlord" and "Tenant", as used herein,
shall inchide the plural as well as the singular. Words used in the masculine
gender include the feminine and neuter. If there be more than one. Landlord
or Tenant
the obligations hereunder imposed upon Landlord and Tenant shall be joint,
and
several.
Section
20.10.Independent
Covenants. Except where the covenants contained in one Article
of this Lease are clearly affected by or contingent upon fulfillment by either
party of another Article or paragraph of this Lease, this Lease shall be
construed as though, the covenants herein between Landlord and Tenant are
independent and not dependent and Tenant hereby expressly waives the benefit
of
any statute to the contrary and agrees that if Landlord fails to peribrm its
obligations set forth herein, Tenant shall' not be entitled to make any repairs
or perform any actions hereunder at
Landlord's expense or to any set-off of the Rent or other amounts owing
hereunder against Landlord, except as otherwise provided herein; provided,
however, that the foregoing shall in no way impair the right of Tenant to
commence -a separate action against Landlord for the violation by Landlord
of
the provisions hereof so long as notice is first given to Landlord and any
holder of a mortgage or deed of trust covering the Building, Real Property
or
any portion thereof of whose address Tenant has theretofore been notified,
and
an opportunity is granted to Landlord and such holder to correct such violations
as provided above.
Section
20.11. Severability. If any covenant or agreement of this Lease or the
application thereof to any person or circumstance shall be held to be invalid
or
unenforceable, then and in each such event the remainder of this Lease or the
application of such covenant or agreement to any other person or any other
circumstance shall not be thereby affected, and each covenant and agreement
hereof shall remMo valid;and enforceable to the fullest extent permitted by
law.
Section
20.12. Warrantyof
Authority. If Landlord or Tenant signs as a corporation, limited
liability company or a partnership, each of the persons executing this Lease
on
behalf of Landlord or Tenant hereby covenant and warrant that each is a duly
authorized and existing entity, that each has and is qualified to do business
in
California, that the persons signing on behalf of Landlord or Tenant have full
right and authority to enter into this Lease, and that each and every person
signing on behalf of either Landlord or Tenant are authorized to do
so.
Section
20.13.NoRepresentations
or Warranties. Neither Landlord nor Landlord's agents or
attorneys have made any representations or warranties with respect to the
Premises, the Building or this Lease, except as expressly set forth herein,
and
no rights, easements or licenses are or shall be acquired by Tenant by
implication or otherwise.
Section
20.14. No Joint Venture
or Partnership. This Lease shall not be deemed or construed to
create or establish any relationship of partnership or joint venture or similar
relationship or arrangement between Landlord and Tenant hereunder.
Section
20.15. Tenant's
Obligations At Its Sole Expense. Notwithstanding the net that
certain references in this Lease to acts required to be performed by Tenant
hereunder, or to breaches or defaults of thiS Lease by Tenant, omit to state
that such acts shall be performed at Tenant's sole expense, or omit to state
that such breaches or defaults by Tenant are material, unless the context
clearly implies to the contrary each and every act to be performed or obligation
to be fulfilled by Tenant pursuant to this Lease shall; be performed or
fulfilled at Tenant's sole expense, and all breaches or defaults by Tenant
hereunder shdll be deemed material.
29
Section
20.16. Attorneys' Fees. If litigation is instituted between Landlord
and Tenant, the cause for which arises out of or in relation to this Lease,
the
prevailing party in such litigation shall be entitled to receive its
costs (not Limited to court costs), expenses and reasonable attorneys'
fees from the non-prevailing party as the same may be awarded by the
court.
Setion
20.17.Waiver of Trial by Jury. In the interest of saving time
and expense, Landlord and Tenant hereby consent to trial without a jury in
any
action, proceeding or counterclaim brought by either of the parties hereto
against the other or their successor-in-interest in respect to any matters
arising out of or relating to this Lease.
Section
20.18. NoMerger. The voluntary or other surrender of
this Lease by Tenant, or a mutual cancellation thereof, shall not
work a merger, and shall, at the option of Landlord terminate all or
any
exiting subleases or subtenancies, or may, at the option of Landlord, operate
as
an assignment to it of anylor all such subleases or subtenancies.
Section
20.19. Prohibition Against Recording. Except as provided in Section
14.3 of this Lease, neither this Lease, nor any memorandum, affidavit or other
writing with respect thereto, shall be recorded by Tenant or by anyone acting
through, under or on behalf of Tenant, and the recording thereof in violation
of
this provision shall make this Lease null and void at Landlord's
election.
Section
20.20. Hazardous Waste. Tenant specifically agrees that, except for
such limited quantities of office materials and supplies as are customarily
used
in Tenant's normal business operations, Tenant shall not engage or permit at
any
time, any operations or, activities upon, or any use or occupancy of the
Premises, or any portion thereof, for the putpose of or in any way involving
the
handling, manufacturing, treatment, storage, use, transportation, spillage,
leakage, dumping, discharge or disposal (whether legal or illegal, accidental
or
intentional) of any hazardous substances, materials or wastes, or any wastes
regulated under any local, state or federal law.
Tenant
shall, during the Term, remain in full compliance with all applicable laws
governing its use and occupancy of the Premises, including, without limitation,
the handling, manufacturing, treatment, storage, disposal, discharge, use,
and
transportation of hazardous substances, materials or wastes, and any wastes
regulated under any local, state or federal law. Tenant will remain in full
compliance with the terms and conditions of all permits and licenses issued
to
it by any governmental authority on account of any or all Of its activities
on
the Premises.
Nothing
in this Lease shall impose any obligation or liability upon Tenant with respect
to hazardous waste that was in the Premises and or Building before Tenant first
took occupancy of each portion of the PreMises and or Building or which was
placed in the Premises and or Building at any time by anyone other than
Tenant.
Section
20.21. Transportation Management. Tenant shall, at Tenant's sole
expense, fully comply with all present or future progams intended to manage
parking, transportation or traffic in and around the Building, when the same
have been mandated by an outside governmental authority having jurisdiction
therefor and not when required for the convenience of Landlord.
In connection
therewith, Tenant shall be responsible for the transportation planning and
management for all of Tenant's employees while located at the Premises, by
working directly with Landlord, any governmental transportation management
organization or any other transportation-related committees or entities
reasonably designated by Landlord. Such programs may include, without
limitation: restrictions
on the number of peak-hour vehicle trips generated by Tenant; requirements
for
increased vehicle occupancy; implementing
an in-house ride-sharing program and/or appointing an employee transportation
coordinator; working
with employees of any Building (or area-wide) ridesharing program manager;
instituting
employer-sponsored incentives (financial or in-kind) to encourage employees
to
ridesharing; and utilizing
flexible work shifts for employees.
|
a)
|
restrictions on the number of
peak-hour
vehicle trips generated by Tenant;
|
|
b)
|
requirements for increased vehicle
occupancy;
|
|
c)
|
implementing an in-house ride-sharing
program and/or appointing an employee transportation
cordinator;
|
|
d)
|
working with employees of any
Building (or
area-wide) ridesharing program
manager;
|
|
e)
|
instituting employer-sponsered
incentives
(financial or in-kind) to encourage employees to ridesharing;
and
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|
f)
|
utilizing flexible work shifts
for
employees.
|
Section
20.22.Signage. Tenant may not install, inscribe, paint
or affix any awning, shade, sign. advertisement or notice on or to any part
of
the outside or inside of the Building, or in any portion of the PremiSes visible
to the outside of the Building or common areas without Landlord's prior written
consent, which shall not
be unreasonably withheld, conditioned or delayed.
All
signage and/or directory listings installed on behalf of Tenant, whether
installed in, on or upon the public corridors, doorways, Building directory
and/or parking directory (if any), or in any other location whatsoever visible
outside of the Premises, shall be installed by Landlord, at Tenant's sole
expense.
Tenant's
identification on or in any common area of the
Building shall be limited to Tenant's name and suite designation, and
in
no event shall Tenant be entitled to the installation of Tenant's logo in any
portion of the Building or common areas. Furthermore, the size, style, and
placement of letters to be used in any of Tenant's signage shall be determined
by Landlord, in Landlord's sole discretion, in full conformance with
previously-established signage program for the Building.
30
Except
as
specified hereinbelow, Tenant shall only be entitled to one (1) listing on
the
Building directory, or any parking directory ancillary thereto, which shall
only
show Tenant's business name and suite designation. Tenant shall also be entitled
to a maximum of twenty (20) additional listings on said Building and/or parking
directory, which listings shall be limited solely to Tenant's officers,
employees, subSidiaries, affiliates and/or sublessees, if any. All of said
Iidtings shall be subject to Landlord's prior written approval, which shall
not
be unreasonably withheld, conditioned or delayed.
Section
20.23. Disclosure. Landlord and Tenant acknowledge that principals of
Landlord have a financial interest in Xxxxxxx Xxxxxx Realty Advisors and P.L.E.
Builders.
Section
20.24.Confidentiality. Landlord and Tenant agree that
the covenants and provisions of this LeaSe shall not be divulged to anyone
not
directly involved in the management, administration, ownership, lending against,
or subleasing of the Prerriises, which permitted disclosure shall include,
but
not be limited to, the board members, legal counsel and/or accountants of either
Landlord or Tenant.
Section
20.25. Guaranty. Concurrently with Tenant's execution of this Lease and
as a condition prededent to the effectiveness of this Lease, Tenant shall cause
Xxxxx Xxxxxxxx Xxxxxxxxx, an individual and (Xxxxx X. Xxxxxxxxx, an individual,
jointly and severally,
to execute and deliver to Landlord a Guaranty of Lease in the form of
the
Guaranty of Lease attached to this Lease as Exhibit E.
Section
20.25.1. Substitution of Letter of Credit in place of the Guaranty.
Landlord and Tenant agree that within the first sixty (60) days
following the full execution of this Lease, Tenant shall replace the Guaranty
with a "Letter of Credit" (as defined below iris Article
23) and only upon Landlord's acknowledged receipt of the Letter of Credit,
shall
the Guaranty deemed null and void. The Letter of Credit shall be delivered
to
Xxxx Silver, Controller at (Landlord's corporate offices located at 000 Xxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxxxxx 00000 via courier or overnight
mail, no later than the expiration of the sixtieth (60th ) calendar day
following the full execution of this Lease (the "Substitution
Date").
ARTICLE
21
PARKING
Section
21.1.Parking. Throughout the Term, Tenant shall have
the right, but not the obligation to purchase and assign to its employees the
number of parking pennits set forth in
Section
21.1 of the Basic Lease Information (`BLI"). Except as othenvise permitted
by
Landlord's management agent in its reasonable discretion, and based on the
availability thereof, in no event shall Tenant be entitled to purchase more
than
the number of parking permits listed in the BLI. If additional parking permits
are available on a month-to-month basis, which determination shall be in the
sole discretion of
Landlord's parkingagent, Tenant shall be permitted to purchase one or
more of said permits on a first-come, frst- serveebasis.
Said
parking permits shall allow Tenant to park in the Building parking facility
at
the posted monthly parking rates and charges then in effect, plus any and all
applicable taxes, provided that such rates may be changed from time to time,
in
Landlord's sole discretion. Landlord shall retain sole discretion to designate
the location of each parking space, and whether it shall be assigned, or
unassigned, unless specifically agreed to otherwise in writing between Landlord
and Tenant.
Guests
and invitees of Tenant shall have the right to use, in common with guests and
invitees of other; tenants of the Building, the transient parking facilities
of
the Building at the then-posted parking rates and charges, or at such other
rate
or rates and charges as may be agreed upon from time to time between Landlord
and Tenant in writing. Such rate(s) or charges maybe changed by Landlord from
time to time in Landlord's sole discretion, and shall include, without
limitation, any and all fees or taxes relating to parking assessed to Landlord
for such parking facilities.
Tenant
or
Tenant's agents, clients, contractors, directors, employees, invitees,
licensees, officers, partners or shareholders continued use of said transient,
as well as monthly parking, shall be contingent upon Tenant and Tenant's agents,
clients, contractors, directors, employees, invitees, licensees, officers,
partners or shareholders continued compliance with the reasonable and
non-discriminatory rules and regultions adopted by Landlord, which rules and
regulations may change at any time or from time to time during the Term hereof
in Landlord's sole discretion.
ARTICLE
22
CONCIERGE
SERVICES
Section
22.1.Provision of Services. Landlord and Tenant
acknowledge and understand that Landlord may, from time to time, make it
possible for Tenant to use or purchase a variety of personal services which
may
include, but not be limited to, personal shopping, assistance with choosing
or
obtaining travel reservations, accommodations and/or tickets; tickets to
performances, recommendations to eating establishments; and the like
(collectively "Concierge Services").
Tenant
acknowledges that said Concierge Services are provided by Landlord solely as
an
accommodation to and for the convenience of Tenant and Tenant's agents,
contractors, directors, employees, licensees, officers, partners or
shareholders, and Landlord does not make any representation, warranty or
guarantee, express or implied, as to the quality, value, accuracy, or
completeness of said Concierge Services, or whether or not Tenant shall be
satisfied with the services and/or goods so provided and/or recommended.
Landlord hereby disclaims any control over the variety or sufficiency of such
srvices to be provided.
31
Tenant
acknowledges that Tenant is not required to use such Concierge Services as
a
condition precedent to compliance with the Lease that Tenant's use of such
Concierge Services is strictly voluntary, and at the sole discretion and control
of Tenant. Tenant shall independently make such financial arrangements for
payment of the services provided as Tenant deems reasonable and of
value.
ARTICLE
23
LETTER'OF
CREDIT
Prior
to
the Substitution Date (as defined above on Section 20.25.1), Tenant shall
deliver to Landlord, as collateral for the full and faithful performance by
Tenant of all of its obligations under this Lease, an irrevocable and
unconditional negotiable letter of credit (the "Letter of Credit"),
substantially in the form attached as Exhibit G hereto and made;a part hereof,
and containing the terms required heren, payable in the County of Los Angeles,
California, running in favor of Landlord, issued by a solvent bank reasonably
approved by Landlord under the supervision of the Superintendent of Banks or
the
State of California, or a National Banking Association, in the amount of
5336,000.00 ("LC Amount''). The LC Amount shall be subject to reduction annually
during the initial Lease Temi, per Section 23.2 below. Further, the Letter
of
Credit shall be:
|
a)
|
at
sight and irrevocable;
|
|
b)
|
maintained
in effect for the entire period from the date of execution of this
Lease
through the date (`Lease Expiration Date) which is sixty (60) days
following the expiration of the Term of this Lease, provide that
the
expiration date thereof shall be no earlier than the Lease Expiration
Date
or Provide for automatic, renewal thereof at least through the Lease
Expiration Date, unless the issuing xxxx provides at least sixty
(60) days
prior written notice to Landlord of such non-renewal by certified
mail,
return receipt requested at the address set forth on the form of
Letter of
Credit attached as Exhibit G, and Tenant shall deliver a new Letter
of
Credit to Landlord at least sixty (60) days prior to the expiration
of the
Letter of Credit without any action whatsoever on the part of
Landlord;
|
|
c)
|
subject
to the Uniform Customs and Practices for Documentary Credits (1993-Rev)
International Chamber of Commerce Publication #500;
and
|
|
d)
|
fully
assignable by Landlord in connection with only the first of any number
of
transfers during the Lease Term of Landlord's interest in this Lease
(with
Tenant bearing any fees, costs or expenses in connection with any
such
transfer), and permit partial
draws.
|
In
addition to the foregoing, the form and terms of the Letter of Credit (and
the
bank issuing the same) shall be acceptable to Landlord, in Landlord's reasonable
discretion, and shall provide, among other things, in effect that:
|
i)
|
Landlord,
or its then managing agent, shall have the right to draw down an
amount up
to the face amount of the Letter of Credit upon the presentation
to the
issuing bank of Landlord's (or Landlord's then managing agent's)
written
statement that Landlord is entitled to make such drawing under this
Lease,
it being understood that if Landlord or its managing agent be a
corporation, partnership or other entity, then such statement shall
be
signed by an officer (if a corporation), a general partner (if a
partnership), or any authorized party (if another
entity);
|
|
ii)
|
the
Letter of Credit will be honored by the issuing bank without inquiry
as to
the accuracythereof and regardless of whether the Tenant disputes
the
content of such statement; and
|
|
iii)
|
in
the event of a transfer of Landlord's interest in the Building, Landlord
shall transfer the Letter of Credit, in whole or in part (or cause
a
substitute letter of credit to be delivered, as aPplicable) to the
transferee and thereupon the Landlord shall, without any further
agreement
between the parties, be released by Tenant from all liability therefor,
and it is agreed that the provisions hereof shall apply to every
transfer
or assignment of the whole or any portion of said Letter of Credit
to a
new landlord.
|
If
as a
result of any application or use by Landlord of all or any part of the Letter
of
Credit, the amount of the Letter of Credit shall be less than the LC Amount,
Tenant shall, within five (5) business days hereafter, provide Landlord with
an
additional letter(s) of credit in an amount equal to the deficiency (or a
replacement letter of credit in the total amount of the LC Amount) and any
such
additional (or replacement) letter of credit shall comply with all of the
provisions of this Article 23, and if Tenant fails to comply with the foregoing,
the same shall constitute an uncurable default by Tenant.
Temmt
further covenants and warrants that it will neither assign nor encumber the
Letter of Credit, or any part thereof and that neither Landlord nor its
successors or assigns will be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance. Without limiting the generality
of the foregoing, if the Letter of Credit expires earlier than the Lease
Expiration Date, LandlOrd will accept a renewal letter of credit or substitute
letter of credit (such renewal or substitute letter of credit to be in effect
and delivered to Landlord, as applicable, not later than thirty (30) days prior
to the expiration of the Letter of Credit), which shall be irrevocable and
automatically renewable as above Iprovided through the Lease Expiration Date
upon the same terms as the expiring Letter of Credit or such other terms as
may
be acceptable to Landlord in its reasonable discretion. However, if the Letter
of Credit is not timely renewed or a substitute letter of credit is not timely
received, or if Tenant fails to maintain the Letter of Credit in the amount
and
in accordance with the terms set forth in this Article 23, Landlord shall have
the right to present the Letter of Credit to the issuing bank in accordance
with
the terms of this Article 23, and the entire sum evidenced thereby shall be
paid
to and held by Landlord as cash (the "Cash Collateral") to be held as collateral
for performance of all of Tenant's obligations under this
Lease and for all losses and damages Landlord may suffer as a result of any
default by Tenant under this Lease pending Tenant's delivery to Landlord of
the
required replacement letter of credit in the LC Ambunt and otherwise complying
with all of the provisions of this Article 23. Upon delivery of such replacement
letter of credit, any Cash Collateral held by Landlord shall be returned to
Tenant. Landlord shall have the right to hold Cash Collateral in a deposit
account in the name of Landlord and commingle the Cash Collateral with its,
general assets and Tenant hereby grants Landlord a security interest in the
Cash
Collateral. Tenant shall not be entitled to any interest earned on the Cash
Collateral.
32
If
there
is an Event of Default under the Lease beyond any applicable grace period,
Landlord may, but without obligation to do so, draw upon the Letter of Credit
and/or utilize the Cash Collateral, in part or in whole, to cure any default
of
Tenant and/or to compensate Landlord for any and all damages of any kind or
nature sustained or which may be sustained by Landlord resulting from Tenant's
default. Tenant agrees not to interfere in any way with payment to Landlord
of
the proceeds of the Letter of Credit, either prior to or following a "draw"
by
Landlord of any portion of the Letter of Credit, regardless of whether any
dispute exists between Tenant and Landlord as to Landlord's right to draw from
the Letter of Credit. No condition or term of this Lease shall be deemed to
render the Letter of Credit conditional to justify the issuer of the Letter
of
Credit in failing to honor a drawing upon such Letter of
Credit in a timely manner.
Landlord
and Tenant acknowledge and agree that in no event or circumstance shall the
Letter of Credit or any renewal thereof or substitute therefor or Cash
Collateral be:
|
a)
|
deemed to be or treated as a "security
deposit" within the meaning of California Civil Code Section
1950.7;
|
|
b)
|
subject
to the terms of such Section 1950.7;
or
|
|
c)
|
intended
to serve as a "security deposit" whitin the mening of such Section
1950.7.
|
The
parties hereto:
|
i)
|
recite
that the Letter of Credit and/or Cash Collateral, as the case may
be, is
not intended to serve as a security deposit and such Section 1950.7
and
any and all other laws, rules and regulations applicable to security
deposits in the commercial context ("Security Deposit Laws") shall
have no
applicability or relevancy thereto;
and
|
|
ii)
|
waive any and all rights, duties
and
obligations either party may now or, in the future, will have relating
or
arising from the Security Deposit
Laws.
|
Section
23.1Burn-off
of LC Amount. Notwithstanding the foregoing provisions of
Article 23 to
the contrary, the LC Amount shall be reduced at the end of
the:
|
(i)
|
the
twenty-fourth (24th) calendar month of the initial Lease Term
(the "First Reduction Date") from $336,000.00 to
$252,000.00;
|
|
(ii)
|
thirty-sixth
(36th)
calendar month of the initial Lease Term from $252,000.00 to
$168,000.00;
|
|
(iii)
|
the
forty-eighth (48th) month of the initial Lease Term from $168,000.00
to
$84,000.00; and
|
[INTENTIONALLY
LEFT BLANK]
33
|
(iv)
|
the
sixtieth (60th) calendar day following the sixtieth
(60th) calendar month of the initial Lease Term from $84,000.00
to $0.00.
|
There
shall be no reduction in the LC Amount if there is an Event of Default of any
of
its
Obligations under
this Lease as of the First Reduction Date.
IN
WITNESS WHEREOF, Landlord and
Tenn the date(s) written below.
| LANDLORD:
XXXXXXX
XXXXXX 1995, LLC,
a
Delaware limited liability company
|
TENANT:
PLATINUM STUDIOS, LLC,
a California limited liability
company
|
|
By:
|
XXXXXXX,
XXXXXX AND COMPANY,
a
California corporation,
its
agent
|
|
|
| By: |
/s/ Xxxxxxx
X. Means
|
By:
|
/s/
Xxxxx Xxxxxxxx Xxxxxxxxx
|
| Xxxxxxx J. Means |
Xxxxx
Xxxxxxxx Xxxxxxxxx
|
||
| Vice President |
By:
|
/s/ Xxxxx X. Xxxxxxxxx | |
| Dated: |
7/13/06
|
Center Operating Officer | |
| Dated: | 7/11/06 |
|
GUARANTOR:
By executing below, Guarantor acknowledges receipt
of
the foregoing Lease, including Exhibits Athrough C, E, G and
H.
|
| By: | /s/ Xxxxx Xxxxxxxx Xxxxxxxxx | ||
| Xxxxx Xxxxxxx Xxxxxxxxx, an individual | |||
|
|
By:
|
/s/ Xxxxx X. Xxxxxxxxx | |
| Xxxxx X. Xxxxxxxxx, an individual | |||
| Dated: | 7/11/06 | ||
| Jointly and severally |
34
EXHIBIT
A — PREMISES PLAN
Suite
1400 at
00000
Xxxx Xxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx
00000
Rentable
Area approximately 12,493 square feet
Usable
Area approximately 11,357 square feet
(Measured
pursuant to the provisions of Section 1.4 of the
Lease)
35
EXHIBIT
B
IMPROVEMENT
CONSTRUCTION AGREEMENT
CONSTRUCTION PERFORMED BY TENANT
CONSTRUCTION PERFORMED BY TENANT
Section
1. Tenant to Complete Construction.Concurrent with Tenant's
occupancy of the Premises. whidb shall not entitle Tenant to any set-off or
rent
abatemei Teront's general contractor ("Contractor-) shalll
furnish and
install Within
the Premises those items or general construction (the "Improvements-'),
shown on the
final Plans and Specifications approved by Landlordl and in compliance with
all
applicable codes and regulations. The definition of Improvemets shall include
all costs
associated with completing the
Tenant Improvements, including but not limited to epace planning, design,
architectural, and
!engineering fees, contracting, labor and material costs, municipal fees
and permit costs, and docurnent development and/or reproduction. All approvals
shall not be unreasonably withheld, conditioned or delayed hereunder, and the
parties shall act in good faith, to finalize the Tenant
Improvements.
All
Tenant selections of fiMshes shall'be indicated in the Plans and Specifications
and shall be equal to or better than the minimum Building stonclards and
xxxxx'ications.
Any
work not shown in final construction PL;ns and Specifications or included
in the Improvements such as, but not limited to telephone service, furnishings,
or cabinetry, for vhich Tenant contracts separately shall be subject to
Landlord's policies and shall
be conducted in such a w ay as to not unreasonably hinder or delay the
walk of Improvements.
Section
2. Tenant'sPayment of Costs.
Subject to Landlords reimbursement as specified liereinbelmv, Tenaht
shall bear all costs of the Improvements, and shall timely pay said costs
directly to the Contractor. From time to time, Tenant shall provide Landlord
with such evidence as Landlord may reasonably request that the Contractor has
been paid in full for the work completed to-date.
In
addition, Tenant shall reimburse Landlord for any and all of Landlord's out
of
pocket co.ts incurred in reviewing Tenant's PIaes and Specificatioes by engaging
any third party engineers, contractors, consultants or design specialistsor
for
any other "peer review:" work associated xxxxx Landlord's review of Tenant's
Plans and Specifications. Tenant shall pay such costs (not to exceed three
percent (3%) of the actual cost of work) to Landlord wintin five (5) business
days after Landlord's delivery to Tenant of a copy of the invoice(s) for such
work.
Tenant
shall also pay the cost of any renovations or revisions which Landlord is
required to make to any common area or portion of the Building, which such
revisions and repairs or revisions arise out of or are required in connection
with Tenant's completion of the Improvements contemplated herein.
Sectfon
3. LienReleases. Contractor shall provide
Landlord with lien releases as requested by Landlord and confirmation that
no
liens have been filed a;e:tinst the Premises or the Building. If any Inns larise
against the Premises or the Building as a result of Tenant's Improvements,
Tenent shall immedicitely, at Tenant's sole expense, remove such liens at,
.t
provide Landlord evidence that the title to the Bbilding and Premises have
been
cleared of such liens.
Section
4. Performance Bonds.Intentionally Omitted
Section
5. Landlord's Reimbursemet for Costs. Landlord's reimbursement
to Tenant for the Improvements in Paraaraph 1 above, shall be as set forth
xxxxx.
Section
5.1 Remaining Allowance.Provided Tzeant has substituted the
Letter of Credit in place of the Guaranty per Section 20.25.1, and subject
to
Section 5.2 below, Tenant shall be eligible to be reimbursed by Landlord up
to
$10.00 per square feet of Usable Area contained in Premises, winch amount
is approximately the sum of $113,570.00 based on $10.00 times approximately
11,357 usl) (the "Allowance"),
towards
the costs of Tenant's design, permitting and c impletion of linprovemems to
the
Premises; it being understood that in no event shall any portion of the
Allowance be used for cabling, moving
expenses or furniture and equipment.
Section
5.2Reimbursement Conditions. Landlord shall,
upon Tenant's submission to Landlord of (i) copies of checks paying for the
completed tenant improvements to the Premises, and (ii) unconditional lien
releases from the contractor andier t:ub-contractors providing the services
therefor, reimburse Tenant up to an amount equal a 11 Allowance within thirty
(30) days of receipt
of a Written
request for payment from Tenant. and so
long as Landlord receives the items described in (i) and (ii) above
no
later than the last eelerelar day of the twelfth (12th) calendar
month of
the initial Lease Term..
Section
6. Pre-Construction
Requirements.Prior to Tenant
or
Contractor commencing
any work:
|
a)
|
Contractor,
and its subcontractors and suppliers, shill be approved in wiriting
by
Landlord, which approval shall not be unreasonably withheld, conditteeard
or delayed. As a condition of such approval, so long as the same
are
reasonably cost co:epetitive, Contractor shall use
Landlord's heating, venting, air-conditioning. plumbing, and
electric.:d subcontractors for such
work;
|
|
b)
|
Tenant
or Tenant's Contractor shall submit all Plans and specifications to
Landlord, and no woik on the Premises shall be commenced before Tenant
h:n
received Landlord's final written approval thereof; which shall not
be
tun-eesonably withheld, delLy xi or
conditioned;
|
36
EXHIBIT
B
IMPROVEMENT
CONSTRUCTION AGREEMENT (continued)
|
c)
|
Contractor
shall concurrently submit to Landlord and Tenant a written bid for
completion of the Improvements. Said bid shall include Contractor's
overhead, profit, and fees, and an administration fee of five percent
(5%)
of the construction budget, which Contractor shall pay directly to
Landlord's managing agent to defray said agent's costs for supervision
of
the construction, except, to the extent Tenant hires Landlord's contractor
to perform any tenant improvement work beyond painting the interior
walls
of the Premises, and/or installing new carpet throughout the Premises
(the
"Landlord Built Improvements"), then Landlord shall not charge Tenant
any
administrative fee in connection wiith
the
Landlord Built Improvements;
|
|
d)
|
Contractor
shall complete all architectural and planning review and obtain all
permits including signage, required by the city, state or county
in which
the Premises are located; and
|
|
e)
|
Contractor
shall submit to Landlord verification of public liability and workmen's
compensation insurance adequate to fully protect Landlord and Tenant
from
and against any and all Ih.tbility
for
death or injury to persons or damage to property caused in, on or
about
the Premises or the Building from any cause whatsoever arising out
completion of the hnprovements or any other work done by
Contractor.
|
|
f)
|
Landlord
and Tenant agree that if the hnprovements are actually constructed
by
Tenant's Contractor at a cost which is less than the Allowance, 'there
shall be no monetary adjustment between Landlord and Tenant and the
entire
cost savings shall accrue to the benefit of
Landlord.
|
Section
7. Landlord'sAdministration
of Construction. Tenant's Contractor and its subcontractors and
suppliers shall be subject to Landlord's reasonable administrative control
and
supervision. Landlord shall provide the Contractor and its subcontractors
reasonable access to the Premises so as to timely complete the Improvements;
reasonable use of the freight elevators at no cost for the movement of
Conttactoes and its subcontractoes materials and laborers; and use of parking
spaces in the parking facilities serving the Building at no cost so long as
the
same are available therefor without disturbing the quiet enjoyment or reasonable
access of any other occupant of the Building.
Section
8. Fixed Date for Commencement Date.
Tenant acknowledges and agrees that whether or not Tenant has
completed construction' of the Improvements, the Conmiencement Date shall be
as
stated in Section 2.1 of the Lease.
Section
9. Compliance with ConstructionPolicies.
During construction of the Improvements, Tenant's Contractor
shall adhere to the Construction Policies specified hereinbelow, which represent
Landlord's minimum requirements for completion of the Improvements.
CONSTRUCTION
POLICY
The
following policies outlined are the construction procedures for the Building.
As
a material consideration to Landlord for granting Landlord's pemdssion to Tenant
to complete the construction conteinplated hereunder, Tenant agrees to be bound
by and follow the
provisions, contained hereinbelow:
Section
10. Administration.
|
a)
|
Contractors to notify Building
Office
prior to starting any work. No exceptions. All jobs must be scheduled
by
the general contractor or sub-contractor when no general contractor
is
being used.
|
|
b)
|
The
general contractor is to provide the Building Manager with a copy
of the
projected work schedule for the suite, prior to the start of
construction.
|
|
c)
|
Chntractor
will make sure that at least one set of drawings 1.7,111 have the
Building
Manager's initials approving the plans and a copy delivered to the
Building Office.
|
|
d)
|
AS-built
construction, including mechanical drawings and air balancing reports
will
be submitted at the end of each
project.
|
|
e)
|
The
HVAC contractor is to provide the following items to the Building
Manager
upon being awarded the contract from the general
contractor:
|
|
i)
|
A
plan showing the new ducting layout, all supply and return air grille
locations and all thermostat
locations. The plan sheet should also include the location of any
fire
dampers.
|
|
ii)
|
An
Air Balance Report reflecting the supply air capacity throughout
the
suite, which is to be given to the Chief Building Engineer at the
finish
of the HVAC installation.
|
|
f)
|
All
paint bids should reflect a one-time touch-up paint on all suites.
This is
to be completed approximately five (5) days after move-in
date.
|
|
g)
|
The
general contractor must provide for the removal of all trash, and
debris
arising during the course of construction. At no time are the building's
trash compactors and/or dumpsters to be used by the general contractor's
clean-up crews for the disposal of any trash or debris accumulated
during
construction. The Building Office assumes no responsibility for bins.
Contractor is to monitor and resolve any problems with bin usage
without
involving the Building Office. Bins are to be emptied on
a regular basis and never allowed to overflow. Trash is to
be
placed in the bin.
|
|
h)
|
Centractors
will include in their proposals all costs to include: parking, elevator
service, additional security (if required), restoration of carpets,
etc.
Parking will be validated only if contractor is ‘working directly for the
Building Office.
|
37
EXHIBIT
B
IMPROVEMENT
CONSTRUCTION AGREEMENT (continued)
|
i)
|
Any
problems with construction per the plan, will be brought to the attention
of and documented to the
Building Manager. Any changes that need additional work not described
in
the bid will be approved
in writing by the Building Manager. All contractors doing work on
this
project should first verify
the scope of work (as stated on the plans) before submitting bids;
not
after the job has started,
|
Section
11. Building Facilities Coordination.
|
a)
|
All
deliveries of material will be made through the parking lot
entrance.
|
|
b)
|
Construction
materials and equipment will not be stored in any area without prior
approval of the Building Manager.
|
|
c)
|
Only
the freight elevator is to be used by construction personnel and
equipment. Under no circumstances are construction personnel with
materials andior tools to use the "passenger"
elevators.
|
Section
12. Housekeeping.
|
a)
|
Xxxxx
entrance doors are to remain closed at all times, except when hauling
or
delivering construction materials.
|
|
b)
|
All
construction done on the property that requires the use of lobbies
or
common area corridors will have carpet or other floor protection.
The
following are the only prescribed methods
allowed:
|
|
i)
|
Mylar -- Extra heavy-duty to be taped from the freight elevator to the suite under construction. |
|
ii)
|
Masonite—1/4
inch Panel, Taped to floor and adjoining areas. All corners, edges
and
joints to have adequate anchoring to provide safe and "trip-free"
transitions. Materials to be extra heavy-duty and installed frond
freight
elevator to the suite under
construction.
|
|
c)
|
Restroom
wash basins will not be used to fill buckets, make pastes, wash brushes,
etc. If facilities are required, arrangement for utility closets
will be
made with the Building Office.
|
|
d)
|
Food
and related lunch debris arc not to be left in the suite under
construction.
|
|
e)
|
All areas
the general contractor or their sub-contractors work in must be kept
clean. All suites the general contractor works in will have construction
debris removed prior to completion
inspection.
|
This includes
dusting of' all window xxxxx, light diffusers, cleaning of cabinets and sinks.
All common
areas are to be kept clean of
building materials at all times so as to allow tenants access to
their
suites or the building.
Section
13. Construction Requirements..
|
a)
|
All
Life and Safety and applicable Building Codes will be strictly enforced
(i.e., tempered glass. fire dampers, exit signs, smoke detectors,
alarms,
etc,). Prior coordination with the Buildine. Manager is
required.
|
|
b)
|
Electric
panel schedules must be brought up to date identifying all new circuits
added.
|
|
c)
|
All
electrical outlets and lighting circuits are to be properly identified.
Outlets will be labeled on backside of each cover
plate.
|
|
d)
|
All
electrical and phone closets being used must have panels replaced
and
doors shut at the end of each day's work. Any electrical closet that
is
opened with the panel exposed must have a work person
present.
|
|
e)
|
All
electricians, telephone, personnel, etc. will, upon completion of
their
respective projects, pick up and discard their trash leaving the
telephone
and electrical rooms clean. If this is not complied with, a clean-up
will
be conducted by the building janitors and the general contractor
will be
back-charged fqr this service.
|
|
f)
|
Welding or
burning with an open flame will not be done without prior approval
of the
Building Manager. Fire extinguishers must be on hand at all
times.
|
|
g)
|
All
"anchoring" of walls or supports to the concrete are not to be done
during
normal working hours (7:30 AM - 6:00 PM, Monday through Friday).
This work
must be scheduled before or after these hours during the week or
on the
weekend.
|
|
h)
|
All
core drilling is not to be done during normal working hours (7:30
AM -
6:00 PM, Monday through Friday). This work must be scheduled before
or
after these hours during the week or on the
weekend.
|
|
i)
|
All
HVAC work must be inspected by the Building Engineer. The following
procedures will be followed by the general
contractor:
|
|
i)
|
A
preliminary inspection of the HVAC work in progress will be scheduled
through the Building Office prior to the reinstallation of the ceiling
grid.
|
|
ii)
|
A second inspection of the HVAC
operation
will aslo be scheduled through the Building Offcies and will take
place
with the attendance of the HVAC contractors Air Balance Enineer.
This
inspection will take place when the suite in question is ready to
be
air-balanced.
|
|
iii)
|
The
Building Engineer will inspect the construction on a periodic basis
as
well.
|
|
j)
|
All
existing thermostats, ceiling tiles, lighting fixtures and air
conditioning grilles shall be saved and turned over to the Building
Engineer.
|
38
EXHIBIT
B
IMPROVMENT CONSTRUCTION
AGREEMENT
(continued)
Good
housekeeping rules and regulations will be strictly enforced. The building
office and engineering department will do everything possible to make your
job
easier. However, contractors who do not observe the construction policy will
not
be allowed to perform within this building. The cost of repairing any damages
that are caused by Tenant or Tenant's contractor during the course of
construction shall'be deducted from Tenant's Allowance or Tenant's Security
Deposit, as appropriate.
|
LANDLORD:
XXXXXXX
XXXXXX 1995, LLC,
a
Delaware limited liability company
|
TENANT:
PLATINUM
STUDIOS, LLC,
a
California limited liability
company
|
|
By:
|
XXXXXXX,
XXXXXX AND COMPANY,
a
California corporation,
its
agent
|
||
|
By:
|
/s/
Xxxxxxx X. Means
|
By:
|
/s/
Xxxxx Xxxxxxxx Xxxxxxxxx
|
|
Xxxxxxx
J. Means
|
Xxxxx
Xxxxxxxx Xxxxxxxxx
|
||
|
Vice
President
|
By:
|
/s/
Xxxxx X. Xxxxxxxxx
|
|
|
Dated:
|
7/13/06
|
Center
Operating Officer
|
|
|
Dated:
|
7/11/06
|
39
EXHIBIT
B-1
CONSTRUCTION
BY TENANT DURING TERM
1. Exhibit
B
governs the performance of the initial Improvements contemplated by Tenant,
and
among other things entitles Tenant to a reimbursement for the costs of the
initial Improvements from proceeds of the Allowance. If, after the
completion of the initial Improvements per Exhibit B, Tenant then wishes
to make a Tenant Change, as specified in Section 12.12 of the Lease, such Tenant
Change shall be completed pursuant to the provisions of Section 12.12 of the
Lease and this Exhibit B-I. Tenant shall bear all costs of said Tenant Change,
which shall be paid directly to Tenant's general contractor
("Contractor").
2. Contractor
shall complete construction to the Premises pursuant to the final Plans and
Specifications approved in writing by Landlord and Tenant (the "Tenant Change"),
in compliance with all applicable codes and regulations. Tenant's selections
of
finishes and materials shall be indicated on the Plans and Specifications,
and
shall be equal to or better than the minimum Building standards and
specifications. All Work not shown on the final Plans and Specifications, but
which is to be included in the Tenant Change, including but not limited to,
telephone service installation, furnishings or cabinetry, shall be installed
pursuant to Landlord's reasonable directives.
3. Prior
to
commencing any work:
|
a)
|
Tenant's
proposed Contractor and the Contractor's proposed subcontractors
and
suppliers shall be alproved in writing by Landlord, which approval
shall
not be unreasonably withheld, conditioned or delayed. As a condition
of
such approval, so long as the same are reasonably cost competitive,
then
Contractor shall use Landlord's Heating, Venting, and Air-conditioning,
plumbing, and electrical stibcontractors for such
work.
|
|
b)
|
During
completion of any Tenant Change, neither Tenant or Contractor shall
permit
any subcontractors, workmen, laborers, material or equipment to come
into or upon the Building if the use thereof, in Landlord's reasonable
judgment, would violate Landlord's agreement with any union ilicividing
work, labor or services in or about the
Building.
|
|
c)
|
Cbntractor
shall submit to Landlord and Tenant a written bid for completion
of the
Tenant Change. Said bid shall include Contractor's overhead, profit,
and
fees, and, if the proposed Tenant Change is fOr cosmetic work in
excess of
$20,000 in aggregate value per occurrence or for structural work
of any
kind, Contractor shall:
|
|
i
|
pre-pay
to Landlord's managing agent $250.00 as partial payment of said managing
agent's
construction administration fee, as specified hereinbelow,
and
|
|
ii
|
upon
completion of said Tenant Change, pay an administration fee for
supervision of said Tenant Change equal to fifty dollars ($50.00)
per
hour, to a maximum of five percent (5%) of the total 1 cost of the
Tenant
Change, to defray said agent's costs for supervision of the
construction;
|
4. Tenant
or
Contractor shall submit all Plans and Specifications to Landlord, and no work
on
the Premises shall be commenced before Tenant has received Landlord's final
written approval thereof, which shall not be unreasonably withheld, delayed
or
conditioned. In addition, Tenant shall reimburse Landlord for any and all of
Landlord's out of pocket costs incurred in reviewing Tenant's plans for any
Tenant Change by engaging any third party engineers, contractors, consultants
or
design specialists or for any Other "peer review" work associated with
Landlord's review of Tenant's plans for any Tenant Change. Tenant shall pay
such
costs to Landlord within five (5) business days after Landlord's delivery to
Tenant of a copy of the invoice(s) for such work.
5. Contractor
shall complete all architectural and planning review and obtain all permits,
including signage, required by the city, state or county in which the Premises
arc located; and
6. Contractor
shall submit to Landlord verification of public liability and worker's
compensation insurance adequate to fully protect Landlord and Tenant from and
against any and all liability for death or injury to persons or damaae to
property caused in or about or by reason of the construction of any work done
by
Contractor or Contractor's subcontractors or suppliers.
7. Intentionally
Omitted.
8. Contractor
and Contractor's subcontractors and suppliers shall be subject to Landlord's
reasonable administrative control and supervision. Landlord shall provide
Contractor and Contractor's subcontractors and suppliers with reasonable access
to the Premises.
9. During
construction of the Tenant Change, Contractor shall adhere to the procedures
contained hereinbelow, which represent Landlord's minimum requirements for
completion of the Tenant Change.
10. Upon
completion of the Tenant Change, Tenant shall provide Landlord with such
evidence as Landlord may reasonably request that the Contractor has been paid
in
full, and Contractor shall provide Landlord with hen releases as requested
by
Landlord, confirmation that no liens have been filed against the POmises or
the
Building. If any liens arise against the Premises or the Building as a result
of
the Tenant Change, Tenant shall immediately, at Tenant's sole expense, remove
such liens and provide Landlerd evidence that the title to the Building and
Premises have been cleared of such liens.
11. Whether
or not Tenant or Contractor timely complete the Tenant Change, unless the Lease
is otherWise terminated pursuant to the provisions contained therein, Tenant
acknowledges and agrees that Tenant's obligations under the Lease to pay Fixed
Month/y Rent and/or Additional Rent shall continue unabated.
40
CONSTRUCTION
BY TENANT DURING
TERM
(continued)
CONSTRUCTION
POLICY
The
following policies outlined are the construction procedures for the Building.
As
a material consideration to Landlord for granting Landlord's permission
to Tenant to complete the construction contemplated hereunder, Tenant
agrees to be bound by and follow the provisions contained
hereinbelow:
1.
Administration
|
a)
|
Contractors
to notify the management office for the Building prior to starting
any
work. All jobs must be scheduled by the general contractor or
sub-contractor when no general contractor is being
used
|
|
b)
|
The
general contractor is to provide the Building Manager with a copy
of the
projected work schedule for the suite, prior:to the start of
construction.
|
|
c)
|
Contractor
will make sure that at least one set of drawings will have the Building
Manager's initials approving the plans and a copy delivered to the
Building Office.
|
|
d)
|
As-built
construction, including mechanical drawings and air balancing reports
will
be submitted at the end of each
project.
|
|
e)
|
The
HVAC contractor is to provide the following items to the Building
Manager
upon being awarded the contract from the general
contractor:
|
|
i)
|
A
plan showing the new ducting layout, all supply and return air grille
locations and all thermostat locations. The plan sheet should also
include
the location of any fire dampers.
|
|
ii)
|
An
Air Balance Report reflecting the supply air capacity throughout
the
suite, which is to be given to the Chief Building Engineer at the
finish
of the HVAC installation.
|
|
f)
|
All
paint bids should reflect a one-time touch-up paint on all suites.
This is
to be completed approximately five (5) days after move-in
date.
|
|
g)
|
The
general contractor must provide for the removal of all trash and
debris
arising during the course of construction. At no time are the building's
trash compactors and/or dumpsters to be used by the general contractor's
clean-up crews for the disposal of any trash or debris accumulated
during
construction. The Building Office assumes no responsibility for bins.
Contractor is to monitor and resolve any problems with bin usage
without
involving the Building Office. Bins are to be emptied on a regular
basis
and never allowed to overflow. Trash is to be placed in the
bin.
|
|
h)
|
contractors
will include in their proposals all costs to include parking,
elevator service, additional security (if required), restoration
of
carpets, etc. Parking will be validated only if contractor is Working
directly for the Building Office.
|
|
i)
|
Any
problems with construction per the plan, will be brought to the attention
of and documented to the Building Manager. Any changes that need
additional work not described in the bid will be approved in writing
by
the Building Manager. All contractors doing work on this project
should
first verify the scope of work (as stated on the plans) before submitting
bids; not after the job has
started.
|
2.
Building Facilities Coordination
|
a)
|
All
deliveries of material will be made through the parking lot
entrance.
|
|
b)
|
Construction
materials and equipment will not be stored in any area without prior
approval of
the Building Manager.
|
|
c)
|
Only
the freight elevator is to be used by construction personnel and
equipment. Under no circumstances are construction personnel with
materials and/or tools to use the "passenger"
clbvators.
|
3.
Housekeeping
|
a)
|
Suite
entrance doors are to remain closed at all times, except when hauling
or
delivering construction materials.
|
|
b)
|
All
construction done on the property that requires the use of lobbies
or
common area corridors will have carpet or other floor protection.
The
following are the only prescribed methods
allowed:
|
|
i)
|
Mylar:
Extra heavy-duty to be taped from the freight elevator to the suite
under
construction.
|
|
ii)
|
Masonite
1/4 inch Panel, Taped to floor and adjoining areas. All corners,
edges and
joints to have adequate anchoring to provide safe and "trip-free"
transitions. Materials to be extra heavy-duty and installed from
freight
elevator to the suite under
construction.
|
|
c)
|
Restroom
wash basins will not be used to fill buckets, make pastes, wash brushes,
etc. If facilities are required, arrangements for utility closets
will be
made with the Building Office.
|
|
d)
|
Food
and related lunch debris are not to be left in the suite under
construction.
|
|
e)
|
All
areas the general contractor or their sub-contractors work in must
be kept
clean. All suites the general contractor works in will have construction
debris removed prior to completion inspection. This includes dusting
of
all window xxxxx, light diffusers, cleaning of cabinets and sinks.
All
common areas are to be kept clean of building materials at all times
so as
to allow tenants access to their suites or the
building.
|
41
EXHIBIT
B-1
CONSTRUCTION
BY TENANT DURING TERM
(continued)
4. Construction Requirements
|
a)
|
All
Life and Safety and applicable Building Codes will be strictly enforced
(i.e. tempered glass, fire dampers, exit signs, smoke detectors,
alarms,
etc). Prior coordination with the Building Manager is
required.
|
|
b)
|
Electric
panel schedules must be brought up to date identifying all new circuits
added.
|
|
c)
|
All
electrical outlets and lighting circuits are to be properly identified.
Outlets will be labeled on blick side of each cover
plate.
|
|
d)
|
All
electrical and phone closets being used must have panels replaced
and
doors shut at the end of each days work. Any electrical closet that
is
opened with the panel exposed must have a work pOrson
present.
|
|
e)
|
All
electricians, telephone personnel, etc. will upon completion of their
respective projects, pick up and discard their trash leaving the
telephone
and electrical rooms clean. If this is not complied with, a clean-up
will
be conducted by the building janitors and the general contractor
will be
back-charged for this service.
|
|
f)
|
Welding
or burning with an open flame will not be done without prior approval
of
the Building Manager. Fire extinguishers must be on hand at all
times.
|
|
g)
|
All "anchoring" of walls or supports to the concrete
are
not to be done during normal working hours (7-30 AM - 6:00 PM,
Monday
through Friday). This work must be scheduled before or after these
hours
during the week or on the weekend.
|
|
h)
|
2611
core
drilling is not to be done during normal working hours (7:30 AM -
6:00 PM,
Monday through Friday). This work must be scheduled before or after
these
hours during the week or on the
weekend.
|
|
i)
|
All
HVAC work must be inspected by the Building Engineer. The following
procedures will be fdllowed by the general
contractor:
|
|
i)
|
A
preliminary inspection of the HVAC work in progress will be scheduled
through the Building Office prior to the reinstallation of the ceiling
grid.
|
|
ii)
|
A
second inspection of the HVAC operation will also be scheduled through
the
Building Office and will take place with the attendance of the HVAC
contractor's Air Balance Engineer. This inspection will take place
when
the suite in, question is ready to be
air-balanced.
|
|
iii)
|
The
Building Engineer will inspect the construction on a periodic basis
as
well.
|
|
j)
|
All
existing thermostats, ceiling tiles, lighting fixtures and air
conditioning grilles shall be saved and turned over to the Building
Engineer.
|
Good
housekeeping rules
and
regulations will be strictly enforced. The building office and
engineering
department will do
everything possible to make your job easier. However, contractors who do not
observe the
construction policy will not be allowed to perform within this building. The cost of
repairing any
damages that are caused by Tenant or Tenant's contractor during the course of
construction
shall be deducted from Tenant's Allowance or Tenant's Security Deposit,
as appropriate.
|
LANDLORD:
XXXXXXX
XXXXXX 1995, LLC,
a
Delaware limited liability company
|
TENANT:
PLATINUM
STUDIOS, LLC,
a
California limited liability
company
|
|
By:
|
XXXXXXX,
XXXXXX AND COMPANY,
a
California corporation,
its
agent
|
||
|
By:
|
/s/
Xxxxxxx X. Means
|
By:
|
/s/
Xxxxx Xxxxxxxx Xxxxxxxxx
|
|
Xxxxxxx
J. Means
|
Xxxxx
Xxxxxxxx Xxxxxxxxx
|
||
|
Vice
President
|
By:
|
/s/
Xxxxx X. Xxxxxxxxx
|
|
|
Dated:
|
7/13/06
|
Center
Operating Officer
|
|
|
Dated:
|
7/11/06
|
42
EXHIBIT
C
RULES
AND REGULATIONS
BUILDING
RULES AND REGULATIONS
1. Access.
Tenant and/or Tenant's agents, clients, contractors, directors, employees,
invitees, licensees, officers, partners or shareholders shall only use the
sidewalks, entrances, lobby(ies), garage(s), elevators, stairways, and public
corridors as a means of ingress and egress, and shall take such actions as
may
reasonably be necessary to ensure that the same remain unobstructed at all
times.
The
entrance and exit doors to the Premises are to be kept closed at all times
except as required for orderly passage to and from the Premises. Except on
balconies available for the joint or exclusive use of Tenant as otherwise
specified hereinabove, Tenant shall not permit its agents, clients, contractors,
dircctors, employees, invitees, licensees, officers, partners or shareholders
to
loiter in any part of the Building or obstruct any means of ingressor egress.
Tenant shall not cover any doors, and shall not cover, any window,
other
than with vertical or mini-blinds pre-approved in writing by Landlord. Landlord
specifically disapproves the installation of any film or foil covering
whatsoever on the windbws of the Premises.
Neither
Tenant, nor its agents, clients, contractors, directors, employees, invitees,
licensees, officers, partners or shareholders shall, go up on the roof or onto
any balcony serving the Building, except upon such roof, portion thereof, or
balcony as may be contiguous to the Premises and is designated in writing by
Lndlord as a roof-deck, roof-garden area, or exclusive use balcony
area.
2. Restroom
Facilities. The toilet rooms, toilets, urinals, wash bowls and other
apparatus (the "Restroom Facilities"), whether contained in the common areas
of
the Building and/or the interior of the Premises, shall not be used for any
puipose other than that for which they were designed. Tenant shall not permit
its agents, clients, contractors, directors, employees, invitees, licensees,
officers, partners or shareholders to throw foreign substances of any kind
whatsoever or papers not specifically designated for use in the Restroom
facilities down any toilet, or to dispose of the same in any way not in keeping
with the instructions provided to Tenant by the management of the Building
regarding same, and Tenant hereby specifically agrees to reimburse Landlord
directly for the expense of any breakage, stoppage or damage resulting from
Tenant's violation of this rule.
3. Heavy
Equipment. Landlord reserves the right, in Landlord's sole discretion,
to decline, limit or designate the location for installation of any safes,
other
unusually heavy, or unusually large objects to be used or brought into the
Premises or the Building. In each case where Tenant requests installation of
one
Or more such unusually heavy item(s), which request shall be conclusively
evidenced by Tenant's effort', to bring such item(s) into the Building or
Premises, Tenant shall reimburse Landlord for the costs of any engineering
or
structural analysis required by Landlord in connection therewith. In all cases,
each such heavy object shall be placed on a metal stand or metal plates or
such
other mounting detail of such size as shall be prescribed by
Landlord.
Tenant
hereby indemnifies Landlord against any damage or injury done to persons,
places, things or the Building or its common areas when such damage or injury
primarily arises out of Tenant's installation or use of one or more unusually
heavy objects. Tenant further agrees to reimburse Landlord for th'e costs of
repair of any damage done to the Building or property therein by putting in.
taking out, or maintaining such safes or other unusually heavy
objects.
4. 'Transportation
of Freight. Except as otherwise agreed to by Landlord in writing,
Tenant or Tenant's agents, clients, contractors, directors, employees, invitees,
licensees, officers, partners or shareholders shall only.carry freight,
furniture or bulky materials in or out of the Building before or after Normal
Business Hours, (as that term is defined in Section 8.1 of the Lease). Tenant
may only install and/or move such freight, furniture or bulky material after
previous written notice of its intention to complete such a move, given to
the
Office of the Building. The persons and/or company employed by Tenant for such
work must be professional movers, reasonably acceptable to Landlord, and said
movers must provide Landlord with a certificate of insurance evidencing the
existence of worker's compensation and all risk liability coverage in a
minimum•amount of 52 000 000.
Tenant
may, subject to the provisions of the immediately preceding paragraph, move
freight. furniture,, bulky matter and other material in or out of the Premises
on Saturdays between the hours of 8:00 and 6:00 P.M., provided that Tenant
pays
in advance for Landlord's reasonably anticipated additional costs, if any,
for
elevator operators, security guards and other expenses arising by reason of
such
move by Tenant.
5. Flammable
Materials. Except for such limited quantities of office materials and
supplies as are custoniarily utilized in Tenant's normal business operations,
Tenant shall not use or keep in the Premises or the Building any kerosene,
gasoline, flammable or combustible fluid or material, other than those limited
quantities of normal business operating materials as may reasonably be necessary
for the operation or maintenance of office equipment. Nor shall Tenant keep
or
bring into the Premises or the Building any other toxic or hazardous material
specifically disallowed pursuant to California state law.
6. Cooking
/Odors / Nuisances. Tenant shall not permit its
agents, clients, contractors, directors, employees, invitees,
licensees, officers, partners or sharehblders to engage in the preparation
and/or serving of foods unless the Premises includes a self-contained kitchen
area. Nor shall Tenant permit the odors arising from such cooking, or any other
improper noises, vibrations, or odors to be emanate from the Premises. Tenant
shall not obtain for use in the Premises, ice, drinking water, food, beverage,
towel or othbr similar services except at such reasonable hours and under such
reasonable regulations as may be specified by Landlord.
43
EXHIBT
C
RULES
AND REGULATIONS
(continued)
Tenant
hereby agrees to instruct all persons entering the Premises to comply with
the
requirements of the 13uilding, by advising all
persons entering the Premises that smoking of any tobacco or other
substance is prohibited at all times, except in such common areas located
outside the Building as may be
designated by the Building management.
Tenant
shall not permit Tenant's agents, clients, contractors, directors, employees,
invitees, licensees, officers, partners or shareholders to interfere in any way
with other tenants of the Building or withithose having
business with them.
Tenant
shall not pennit its agents, clients, contractors, directors, employees,
invitees, licensees, officiers, partners
or
shareholders to bring or keep, within the Building any animal, bird or bicycle,
except such seeing-eye dog or other disability assistance type animal as may
comply with the requirements of any handicapped ordinances having jurisdiction
therefor.
Tenant
shall store its trash and garbage within the Premises. No material shall be
placed in the trash boxes or receptacles if such material is a hazardous waste
or toxic substance or is of such a nature that its disposal in Landlord's
ordinary and customary manner of removing and disposing of trash and garbage
would be a violation of any law, ordinance or company regulation governing
such
disposal. All garbage and refuse disposal shall be made only through entry
ways
and elevators provided for such purposes and at, such times as Landlord shall
designate. As and when directed by Landlord and/or if required by any
governmental agency having jurisdiction therelbr, Tenant shall comply with
all
directives for recycling and separation of trash.
Tenant
shall not employ any person to do janitorial work in any part of the Premises
without the priorliwritten
consent of
Landlord, which consent may be withheld in Landlord's sole
discretion.
Landlord
reserves the right,to exclude or expel from the Building any person who in
Landlord's sole discretion is intoxicated or under the influence of liquor
or
drugs or who, in any manner, engages in any act in violation of the Rules and
Regulations of the Building.
Tenant
shall not conduct any public or private auction, fire sale or other sale of
Tenant's personal property, furniture, fixtures or equipment or any other
property located in or upon the Premises, without Landlord's prior written
consent, which consent shall be in Landlord's sole discretion.
7. Storage.Tenant
may only store goods, wares, or merchandise on or in the Premises in areas
specifically
designated by Landlord for such storage.
8. Directives
to Management.Tenant's requirements, other than those Landlord
specifically agrees to perform elsewhere in this Leas; shall only be attended
to
upon the Building management's receipt of Tenant's written request therefor.
Landlord's employees shall not perform any work or do anything outside of their
regular duties unless under special instruction from the Building management.
No
security guard, janitor or engineer or other employee of the Building management
shall admit any person (Tenant or otherwise) to the Premises without specific
instructions from the Office of the Building and written authorization for
such
admittance from Tenant.
9. Keys,
and
Locks.Landlord
shall furnish Tenant with two keys to each door lock existing in the Premises.
Tenant shall reimburse Landlord a reasonable charge for these and any additional
keys. Tenant shall not be permitted to have keys mad; nor shall Tenant alter
any
lock or install a new or additional lock or bolts on any door of
the
Premises without Landlord's prior written consent. Tenant shall,in each
case, furnish Landlord with a key for any additional lock installed or changed
by Tenant or Tenant's agent(s). Tenant, upon the expiration or earlier
termination of this Lease, shall deliver to Landlord all keys in the possession
of Tenant or Tenant's agents, clients, contractors, directors, empleyees,
invitees, licensees, officers, partners or shareholders, for doors in the
Building, whether or not furnished to Tenant by Landlord. If Tenant, or Tenant's
agents, clients, contractors, directors, employees, invitees, licensees;
officers, partners or shareholders, lose or misplace any key(s) to the Building,
Landlord shall, in Landlord's sole discretion, either replace said key(s) or
re-key such locks as may be affected thereby, and Tenant shall reimburse
Landlord for all such costs of such re-keying and/or replacement.
10. Solicitation.Tenant
and/or its agents, clients, contractors, directors, employees, invitees,
licensees, officers, partners or shareholders shall not permit any canvassing,
peddling, soliciting and/or distribution of handbills or any other written
materials to occur in the Premises and/or the Building, nor shall Tenant or
Tcnant's agents, clients, contractors, directors, employees, invitees,
licensees, officers. partners or shareholders engage in such solicitation or
distribution activities.
11. Retail.Sales,
Services and Manufacturing Prohibited. Except with the prior
written consent of Landlord, Tenant shall not sell, or permit the retail sale
of
newspapers, magazines, periodicals, theater tickets or any other goods or
merchandise to the general public in or on the Premises, nor shall Tenant carry
On or permit or allow any employee or other person to carry on the independent
business of stenography, typewriting or any similar business in or from the
Premises for the service or accommodation of other occupants of any other
portion of the Building. Tenant shall not pennit the PremiSes to be used for
manufacturing or for any illegal activity of any kind, or for any business
or
activitY other than for Tenant's specific use.
12. Changein
Name or Address. Landlord shall have the right, exercisable
without notice and without liability to Tenant, to change the name and street
address of the Building.
44
EXHIBIT
C
RULES
AND REGULATIONS
(continued)
13. Projections
from Premises. Tenant shall not install any radio or television
antenna, loudspeaker or °their device
on the roof
or the exterior walls of the Building or in any area projecting outside the
interior wall/s
of the Premises. Tenant shall not install
or permit to be installed any awnings, air conditioning units or other
projections, without the prior written consent of Landlord.
14. Superiority
of Lease. These Rules and Regulations are in addition to, and shall not
be construed to in any way modify or amend, in whole or in part, the covenants,
agreements or provisions of this Lease. If a lconflict
or
disagreement between the Lease and these Rules becomes apparent, this Lease
shall prevail.
15.
Changes to Rules and Regulations. Provided such changes do not
materially harm Tenant's ability to conduct its normal business operations,
Landlord shall retain the right to change, add or rescind any rule or regulation
contained herein, or to make such other and further reasonable and
non-discriminatory Rules and Regulations as in Landlord's sole judgment
may, from time to time, become necessary for the management, safety,
care
and cleanliness of the Premises, the Building or the Parking Facilities, or
for
the preservation of good order therein, or for the convenience of other
occupants and tenants therein, so longlas such rescission, addition, deletion
or
change is thereafter reasonably applied to all occupants of the Building
affected thereby.
PARKING
RULES AND REGULATIONS
|
A.
|
Tenantshall
strictly comply with all posted speed limits, directional signs,
yield
signs, stops signs and all other signs within or about the parking
facilities.
|
|
B.
|
Tenant
shall register all vehicle license plate numbers with the Building
management.
|
0 0
|
C.
|
Tenantshall
be responsible for the cost of repairing any damage to the parking
facilities or cleaning any debris created or left by Tenant, including,
without limitation, oil leakage from motor vehicles parked in the
parking
facilities under its auspices.
|
|
D.
|
Landlord,
in addition to reserving the right to designate one or more areas
solely
for visitor parking, wItch areas may be changed by Landlord from
time to
time with or without prior notice to Tenant, reserves the right to
allocate additional visitor spaces on any floor of the parking facilities.
Tenant stiall not park any vehicles in any spaces designated as visitor
only spaces or customer spaces within the parking
facilities.
|
|
E.
|
Tenant
shall strictly comply with all rules, regulations, ordinances, speed
limits, and statutes affecting handicapped parking andior access,
and
shall not park any vehicles within the fire lanes, along, parking
curbs or
in striped areas.
|
|
F.
|
Tenant
shall only use the number of parking permits allocated to it and
shall not
permit more than one of its employees to utilize the same parking
permit.
Landlord reserves the right to assign or reaSsign parking spaces
within the Parking facilities to Tenant from time to time, and provided
Landlord is required to do so by reason of any action arising out
of a
governmental mandate imposed on Landlord, Landlord further reserves
the
right at any time to substitute an equivalent number of parking
spaces in a parking facilities or subterranean or surface
parking
facility within a reasonable distance of the
Premises.
|
|
G.
|
Except
with Landlord's managing agent(s)' prior written consent, Tenant
shall not
leave vehicles in the parking facilities overnight, nor park any
vehicles
in the parking, facilities other than automobiles, Motorcycles,
motor-driven'-or non-motor-driven bicycles or four-wheeled trucks
or vans.
Landlord may, in its sole discretion, designate separate areas for
bicycles and motorcycles. Tenant shall ensure that vehicles parking
in the
parking facilities by using the parking permits assigned to Tenant
shall
be parked entirely within the striped lines designating "a single
space
and are not so situated or of such a width or length as to impede
access
to or egress from vehicles parked in adjacent areas or doors or loading
docks. Further, all vehicles utilizing Tenant's parking permits shall
not
be higher than any height limitation that may be posted, or of such
a
size, weight or dimension so that entry of such vehicle into the
parking
facilities would cause any damage or injury
thereto.
|
|
H.
|
Tenant
shall not allow any of the vehicles parked using Tenant's permits,
or the
vehicles of any of Tenant's suppliers, shippers, customers or invitees
to
be loaded or unloaded in any area other than those specifically designated
by Landlord for loading.
|
|
I.
|
Tenant
shall not use or occupy the parking'facilities in any manner which
will
unreasonably interfere with the use of the parking facilities by
other
tenants or occupants of the Building. Without limitation, Tenant
agrees to
promptly turn off any vehicle alarm system activated and sounding
an alarm
in the parking facilities. In the event said alarm system fails to
turn
off and no longer sound an intruder alert fifteen (15) minutes after
commencing such an alarm, Landlord shall reserve the right tolremove
the
vehicle from the parking facilities at Tenant's sole
expense.
|
|
J.
|
Tenant
acknowledges that the Rules and Regulations as posted herein shall
be in
effect twenty-four hOurs per day, seven days per week, without
exception.
|
|
K.
|
Tenant
acknowledges that the uniformed guard officers and parking attendants
serving the parking faeilities are authorized to issue verbal and
written
warnings of Tenant's violations of any of the rules and regulations
contained herein. Except in the case, of a car alarm continuing to
sound
in excess of a maximum of fifteen minutes, in which case no further
notice
by Landlord shall be required. If Tenant or Tenant's agents,
contractors, directors, employees, officers, partners or shareholders
continue to materially breach these rules and regulations after expiration
of written notice
and the opportunity to cure has been given to Tenant, then in addition
to
such other remedies and request for injunctive relief it may have
Landlord
shall have the right, without additional notice, to remove or tow
away the
vehicle involved and store the same, all costs of which shall be
borne
exclusively by Tenant and/or revoke Tenant's parking
privileges and rights under the
Lease.
|
45
EXHIBIT
RULES
AND REGULATIONS
(continued)
|
LANDLORD:
XXXXXXX
XXXXXX 1995, LLC,
a
Delaware limited liability company
|
TENANT:
PLATINUM
STUDIOS, LLC,
a
California limited liability
company
|
|
By:
|
XXXXXXX,
XXXXXX AND COMPANY,
a
California corporation,
its
agent
|
||
|
By:
|
/s/
Xxxxxxx X. Means
|
By:
|
/s/
Xxxxx Xxxxxxxx Xxxxxxxxx
|
|
Xxxxxxx
J. Means
|
Xxxxx
Xxxxxxxx Xxxxxxxxx
|
||
|
Vice
President
|
By:
|
/s/
Xxxxx X. Xxxxxxxxx
|
|
|
Dated:
|
7/13/06
|
Center
Operating Officer
|
|
|
Dated:
|
7/11/06
|
46
EXHIBIT
E
GUARANTY
OF LEASE
THIS
GUARANTY OF LEASE ("Guaranty") is made by Xxxxx Xxxxxxxx Xxxxxxxxx, an
individual and Xxxxx X. Xxxxxxxxx, an individual (jointly and severally,
"Guarantor") in favor of XXXXXXX XXXXXX 1995, LLC, a Delaware limited liability
company ("Landlord") in connection with that certain lease dated July 10, 2006,
(the "Lease") pursuant to which Landlord leases to PLATINUM STUDIOS, LLC, a
California limited liability company ("Tenant") those premises generally located
at 00000 Xxxx XxxXxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000
(the
"Premises") and more particularly described in the Lease. As a material
inducement to and in consideration of Landlord entering into the LeaSe, Landlord
having indicated that it would not enter into the Lease without the execution
of
this Gua'ranty, Guarantor does hereby agree with Landlord as
follows:
|
1.
|
Guarantor
does hereby, jointly, severally, unconditionally and irrevocably
guarantee
and be liable fur any and all obligations and liabilities of Tenant
under
the terms of the Lease, subject to the limitation set forth in Paraaraph
20 below. Upon Tenant's delivery- of the Letter of Credit in accordance
with Article 23 of the Lease, this Guaranty shall be void and of
no
further force or effect.
|
|
2.
|
Guarantor
does hereby agree that, without the consent of or notice to Guarantor
and
without affecting any of the obligations of Guarantor hereunder:
(a) any
term, covenant or condition of the Lease may be amended, compromised,
released or otherwise altered by Landlord and Tenant, and Guarantor
does
guarantee and promise to perform all the obligations of Tenant under
the
Lease as so amended, compromised, released or altered; (b) any guarantor
of or party to the Lease may be released, substituted or added; (c)
any
right or remedy under the Lease may be exercised, not exercised,
iMpaired,
modified, limited, destroyed or suspended; (d) Landlord or any other
person acting on Landlord's behalf may deal in any manner with Tenant,
any
guarantor, any party to the Lease or any Other person; and (e) all
or any
part of the Premises or of Tenant's rights or liabilities under the
Lease
maybe sublet, assigned or assumed.
|
|
3.
|
The
obligations of Guarantor hereunder are in addition to and independent
of
the obligations of Tenant. A separate action or actions may be brought
and
prosecuted against Guarantor whether action is brought against Tenant
or
whether Tenant is joined in any such action or actions. Guarantor
hereby
waives and agrees not to assert or take advantage of: (a) any right
to
require Landlord to proceed against or exhaust any security held
from
Tenant or any other person; (b) any right to require Landlord to
proceed
against Tenant or any other person or to pursue any other remedy
before
proceeding against Guarantor; (c) the defense of any statute of
limitations in any action under or related to this Guaranty or the
Lease;
(d) any right or defense that may arise by reason of the incapacity,
lack
of authority, death or disability of Tenant or any other person;
and (e)
any right or defense arising by reason of the absence, impairment,
modification, limitation, destruction or cessation (ill banla-uptcy,
by an
election of remedies, or othenvise) of the liability of Tenant, of
the
sUbrogation rights of Guarantor or of the right of Guarantor to proceed
against Tenant for reimbursement. Without in any manner limiting
the
generality of the foregoing, Guarantor hereby waives the benefits
of the
provisions of Sections 2809, 2810, 2819, 2845, 2847, 2848, 2849,
2850,
2899 and 3433, the second sentence of Section 2822(a) and all rights
that
are waivable pursuant to Section 2856, all of the California Civil
Code,
and any similar or analogous statutes of California or any other
jurisdiction.
|
|
4.
|
Guarantor
hereby waives and agrees not to assert or take advantage of any right
or
defense based on the absence of any or all presentments, demands
(including demands for performance), notices (including notices of
adverse
change in the financial status of Tenant or other facts which increase
the
risk to Guarantor, notices of non-performance and notices of acceptance
of
this Guaranty) and protests of each and every
kind.
|
|
5.
|
Until
all Tenant's obligations under the Lease are fully performed, Guarantor:
(a) shall have no right of subrogation against the Tenant by reason
of any
payments or acts of performance by Guarantor under this Guaranty,
and (b)
subordinates any liability or indebtedness of Tenant now or hereafter
held
by Guarantor to the obligations of Tenant under, arising out of or
related
to the Lease or Tenant's use or occupancy of the
Premises.
|
|
6.
|
The
liability of Guarantor and all rights, powers and remedies of Landlord
hereunder and under any other agreement now or at any time hereafter
in
force between Landlord and Guarantor relating to the Lease shall
be
cumulative and not alternative and such, rights, powers and remedies
shall
be in addition to all rights, powers and remedies given to Landlord
by
law.
|
|
7.
|
This
Guaranty applies to, inures to the benefit:of and binds all parties
hereto, their heirs, devisees, legatees, executors, administrators,
representatives, successors and assigns (including any purchaser
at' a
judicial foreclosure or trustee's sale or a holder of a deed in lieu
thereof). This Guaranty may be assigned by Landlord voluntarily or
by
operation of law.
|
|
8.
|
Guarantor
agrees from'time to time upon Landlord's request, but not more than
once
in any 12 month period, to deliver to Landlord Guarantor's financial
statement. All financial statements heretofore delivered to Landlord
by
Guarantor are, and all financial statements hereafter delivered to
Landlord by Guarantor will be, true and correct in all material respects
and fair presentations of the financial condition of Guarantor as
of the
date thereof, prepared in accordance with generally accepted accounting
practices. No material adverse change has occurred in the financial
condition of Guarantor since the date of the financial statements
heretofore delivered to Landlord.
|
47
EXHIBIT
E
GUARANTY
OF LEASE
(continued)
|
9.
|
Guarantor
shall not, without the prior written consent of Landlord, commence,
or
join with any other person in commencing, any bankruptcy, reorganization
or insolvency proceeding against Tenant. The obligations of Guarantor
under this Guaranty shall not be altered, limited or affected by
any
proceeding, voluntary or involuntary, involving the bankruptcy,
insolvency, receivership, eorganization, liquidation or arrangement
of
Tenant, or by any defense which Tenant may have by reason of any
order,
decree or decision of any court or administrative body resulting
from any
such proceeding. Guarantor shall file in any bankruptcy or other
proceeding in which the filing of claims is required or permitted
by law
all claims which Guarantor may have against Tenant relating to any
indebtedness of Tenant to Guarantor and will assign to Landlord all
rights
of Guarantor thereunder. Landlord shall have the sole right to accept
or
reject any plan proposed in such proceeding and to take any other
action
which a party filing a claim is entitled to do. In all such cases,
whether
in administration, bankruptcy or otherwise, the person or persons
authorized to pay such claim shall pay to Landlord the amount payable
on
such claim and, to the full extent necessary for that purpose, Guarantor
hereby assigns to Landlord all of Guarantor's rights to any such
payments
or distributions to which Guarantor would othenvise be entitled;
provided,
however, that Guarantor's obligations hereunder shall not be satisfied
except to the extent that Landlord receives cash by reason of any
Such
payment or distribution. If Landlord receives anything hereunder
other
than cash, the same Shall be held as collateral for amounts due under
this
Guaranty.
|
|
10.
|
This
Guaranty shall constitute the entire ageement between Guarantor and
the
Landlord with respect to
the subject matter hereof. No provision of this Guaranty or
right
of Landlord hereunder may be waived nor may any Guarantor be released
from
any obligation hereunder except by a writing duly executed by an
authorized officer or director of
Landlord.
|
|
11.
|
If
more than one person signs this Guaranty, each such person shall
be deemed
a Guarantor and the obligation of all such Guarantors shall be joint
and
several. When the context and construction so requires, all words
used in
the singular herein shall be deemed to have been used in the plural.
The
Word "person" as used herein shall include an individual, company,
firm,
association, partnersh:p, corporation, trust or other legal entity
of any
kind whatsoever.
|
|
12.
|
Should
any one or more provisions of this Guaranty be determined to be illegal
or
unenforceable, all Other provisions shall nevertheless be
effective.
|
|
13.
|
The
waiver or failure to enforce any provision of this Guaranty shall
not
operate as a waiver of any other brcach of such provision or any
other
provisions hereof.
|
|
14.
|
If
either party hereto participates in an action against the other party
arising out of or in connection with this Guaranty, the prevailing
party
shall be entitled to have and recover from the other party actual
attorneys' fees, collection costs and other costs incurred in and
in
preparation for the action. in addition to the foregoing award of
attorneys' fees, the ultimately successful party shall be entitled
to its
actual attorneys' fees incurred in any post: judgment proceedings
to
collect or enforce the jUdgment. This provision is separate and several
and shall survive the merger of this Guaranty into any judgment on
this
Guaranty. In any action or proceeding arising under this Guaranty,
Guarantor consents to trial without a
jury.
|
|
15.
|
Time
is strictly of the essence under this Guaranty and any amendment,
modification or revision hereof.
|
|
16.
|
If
Guarantor is a corporation, each individual executing this Guaranty
on
behalf of said corporation rePresents and warrants that he is duly
authorized to execute and, deliver this Guaranty on behalf of said
corporation, in accordance with a duly adopted resolution of the
board of
directors of said corporation or in accordance with the bylaws of
said
corporation, and that this Guaranty is binding upon said corporation
in
accordance with its terms. If Guarantor is a corporation. Landlord,
at its
option, may require Guarantor to concurrently, with the execution
of this
Guaranty, deliver to Landlord a certified copy of a resolution of
the
board of directors of said corporation authorizing or ratifying the
execution of this Guaranty.
|
|
17.
|
The
term "Landlord" whenever hereinabove used refers to and means the
Landlord
in the foregoing Lease specifically named and also any assignee of
said
Landlord, whether by outright assignment or by assignment for security,
and also any successor to the interest of said Landlord or of any
assignee
of such Lease or any part thereof, whether by assignment or otherwise.
The
term "Tenant" whenever hereinahove used refers to and means the Tenant
in
the foregoing Lease specifically named and also any assignee or subtenant
of said Lease and also any successor to the interests of said Tenant,
assignee or sublessee of such Lease or any part thereof, whether
by
assignment, sublease or otherwise.
|
|
18.
|
Any
notice, request, demand, or other communication hereunder shall be
in
writing and shall be considered duly given or furnished
when:
|
|
a.
|
delivered
personally or by messenger or overnight delivery service, with signature
evidencing such delivery;
|
|
b.
|
upon
the date of delivery, after being mailed in a postpaid envelope,
sent
certified mail, return receipt requested, when addressed to Landlord
as
set forth below and to Guarantor as set forth below; or to such other
address or addressee as either party may designate by a written notice
given pursuant hereto; or
|
48
EXHIBIT
E
1c.
upon confirmation of good shall have been provided in transmission
if sent via faeSimile machine to such phone number as writing by Landlord or
Guarantor, one to the other:
|
GUARANTOR:
Xxxxx
Xxxxxxxx Xxxxxxxxx
0000
Xxxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Xxxxx
X. Xxxxxxxxx
0000
Xxxxx Xxx Xxxxxxx
Xxx;
Xxxxxxx, XX 00000
|
LANDLORD:
c/o
Douglas Xxxxxx and Company
000
Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn:
Director of Property Management
|
|
19.
|
As
a further material part of the consideration to Landlord to enter
into the
Lease with Tenant, Guarantor
agrees:
|
|
a.
|
The
law of the State of California shall govern all questions with, respect
to
the Guaranty;
|
|
b.
|
Any
suit, action or proceeding arising directly or indirectly from the
Guaranty, the Lease or the subject matter thereof shall be litigated
only
in courts located within the County of Los Angeles and the State
of
California
|
|
c.
|
Guarantor
'hereby irrevocably consents to the jurisdiction of any local, state
or
federal court located within the County of Los Angeles and the State
of
California;
|
|
d.
|
Guarantor
hereby waives personal service of any and all process upon it and
consents
to all such service of process in the manner and at the address set
forth
in Paragraph 18 above; and
|
|
e.
|
Without
limiting the generality of the foregoing, Guarantor hereby waives
and
auees not to assert by way of motion, defense or otherwise in'any
suit,
action or proceeding any claim that Guarantor is not personally subject
to
the jurisdiction of
the above-named courts, that such suits, action or proceeding
is
brought in an inconvenient forum or that the venue of such action,
suit or
proceeding is improper.
|
|
20.
|
Maximum
Liability Amount. Notwithstanding any other provisions herein to
the
contrary, the aggregate liability of the undersigned for obligations
and
liabilities of Tenant under the Lease shall not exceed the Maximum
Liability Amount (as defined below) in effect at the time the liability
arises or is incurred, plus costs of enforcement of this Guaranty.
The
term "Maximum Liability Amount." means the amount of
$336,000.00.
|
| Executed on this day 11th of June, 2006 | |||
| Guarantor | |||
|
|
By:
|
/s/ Xxxxx Xxxxxxxx Xxxxxxxxx | |
| Xxxxx Xxxxxxx Xxxxxxxxx, an individual | |||
| By: | /s/ Xxxxx X. Xxxxxxxxx | ||
| Xxxxx X. Xxxxxxxxx an individual | |||
| Dated: | 7/11/06 | ||
49
STATE
OF
CALIFORNIA)
) SS:
COUNTY
OF
LOS ANGELES)
On July
11, 2006 , before me, Xxxx Xxxx, a Notary Public, personally
appeared Xxxxx Xxxxxxxx Xxxxxxxxx, personally known to me (or proved to me
on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
|
|
By:
|
/s/ Xxxx Xxxx | |
| Xxxx Xxxx | |||
| Notary public |
On,
before me, Xxxx Xxxx, a Notary Public, personally
appeared Xxxxx X. Xxxxxxxxx, personally known to me (or proved to me on the
basis or satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acicnowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their simiature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
|
|
By:
|
/s/ Xxxx Xxxx | |
| Xxxx Xxxx | |||
| Notary Public |
50
EXHIBIT G
FORM
OF LETTER OF CREDIT
[BANK
LETTERHEAD]
| Attention: Xxxx Silver, Controller | |
| XXXXXXX XXXXXX 1995, LLC | |
| c/o Xxxxxxx, Xxxxxx and Company | |
| 000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000 | |
| Xxxxx Xxxxxx. Xxxxxxxxxx 00000 | |
| Letter of Credit No. |
Ladies
and Gentlemen:
1
We
hereby establish our Irrevocable Letter of Credit and authorize you to draw
on
us at sight for the abcount of PLATINUM STUDIOS, LLC, a California limited
liability company ("Applicant") the aggregate amount of THREE HUNDRED AND
THIRTY-Sa. THOUSAND DOLLARS (S336,000.00).
Funds
under this Letter of Credit are available to the beneficiary hereof as
follows:
Any
and
all of the sums hereunder may be drawn down at any time and from time to time
from and after the date hereof by XXXXXXX XXXXXX 1995, LLC, a Delaware limited
liability company ("Belieficiary") when accompanied by this Letter of Credit
and
a written statement signed by an authorized signatory of Beneficiary, certifying
that Beneficiary is entitled to make such drawing pursuant to the Lease,
together with a notarized certification by any such individual representing
that
such individual is authorized by Beneficiary to take such action on behalf
of
Beneficiary, and a sight draft executed and endorsed by such individual. The
sums drawn by Beneficiary under this Letter of Credit shall be payable upon
demand without necessity of notice.
This
Letter of Credit is transferable in its entirety, without any limitation on
the
number of such transfers. Should a transfer be desired, such transfer will
be
subject to the return to use of this advice, touether with written
instructions.
1
The
amount of each draft must be endorsed on the reverse hereof by the negotiating
bank. We herebY agree that this Letter of Credit shall be duly honored upon
presentation and delivery of the certification specified above.
This
Letter of Credit is effective immediately and shall expire at 5:00 P.M., Pacific
Standard Time on(the "Expiration Date").
I
Notwithstanding the above expiration of this Letter of Credit, the term of
this
Letter of Credit shall be automatically renewed for successive, additional
one
(1) year periods (with the last such one (1) year period expiring no earlier
than sixty (60) days after the expiration date of that certain Office Lease
dated , (the "Lease') by and between Applicant, as Tenant, and Beneficiary,
as
Landlord),
unless, at least thirty (30) days prior to any such date of expiration, the
undersigned shall give written notice to Beneficiary, by certified mail, return
receipt requested and at the address set forth above or at such other address
as
may be given to the undersigned by Beneficiary, that this Letter of Credit
will
not be renewed; it being understood that if the Applicant fails to maintain
the
Letter of Credit in the amount and in accordance with the terms of the Lease,
Beneficiary shall have the right to present the Letter of Credit to us for
payment.
Our
obligation under this Letter of Credit shall not be affected by any
circumstances, claim or defense, real or personal, of any party as to the
enforceability of the Lease between Beneficiary and AppliOnt or the validity
of
Beneficiary's claim, it being understood that our obligation shall be that
of a
primary obligor and not that of a surety, guarantor or accommodation
maker.
Applicant
shall pay all costs of or in connection with this Letter of Credit, including
without limitation, any fees associated with only the first transfer or
assignment of this Letter of Credit by the Beneficiary during the Lease
Term.
This
Letter of Credit is governed by the Uniform Customs and Practice for Documentary
Credits (1993) Revision), International Chamber of Commerce publication
500.
This
Letter of Credit sets forth in full the terms of our undertaking, and such
terms
shall not in any way be modified, amended, limited, discharged, or terminated
except by a writing signed by authorized representatives of Beneficiary and
the
undersigned on or before the Expiration Date.
| Very truly yours, | |||
| Company Name | |||
|
Date
|
By:
|
||
| Name | |||
| Title | |||
51
EXHIBIT
H
| RECORDING REQUESTED | |
| BY AND WHEN RECORDED RETURN TO: | |
| EUROHYPO AG | |
| 1114 Avenue of the Americas | |
| 00xx Xxxxx | |
| Xxxx Xxxx, Xxx Xxxx 00000 | |
| Attention: Xxxxx Xx |
SUBORDINATION,
NON-DISTURBANCE
AND
ATTORNMENT AGREEMENT
(Lease)
THIS
AGREEMENT made July 10, 2006,
between EUROHYPO AG, New York Branch, as Adrriinistrative Agent
on behalf of a
syndicate of lenders (collectively, the "Lenders"),
having an office
at 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (the "Mortgagee"),
and PLATINUM
STUDIOS,
LLC, a California
limited liability company having an office at (the "Tenant");
WITNESSETH:
WHEREAS
the Mortgagee (on behalf of the
Lenders) is the present owner and holder of a certain mortgage, mortgages,
deed of trust or
deeds of trust (the "Mortgage)
encumbering the
premises located in, the
County of Los Angeles, City and State of Los Angeles, CA, known as 11400 Xxxx
Xxxxxxx Xxxxxxxxx, Xxxxx
0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 the "Premises")
which Premises
are
more fully described in
the attached Exhibit
A;
WHEREAS
the Tenant is the holder of a leasehold estate in a portion of the Premises
under and pursuant to the provisions of a certain lease (the "Lease")
dated July 10, 2006 by and between Tenant and XXXXXXX
XXXXXX 1995, LLC, a Delaware limited liability company (the "Landlord');
and
WHEREAS
the Tenant has agreed to subordinate the Lease to the Mortgage and to the lien
thereof and the Mortgagee has agreed to grant non-disturbance to the Tenant
under the Lease on the tennS and conditions hereinafter set forth;
NOW
THEREFORE, in consideration of good and valuable consideration, the receipt
of
which is hereby acknowledged, the Mortgagee and the Tenant hereby covenant
and
agree as follows:
1:
The
Tenant agrees that the Lease and all of the terms, covenants and provisions
thereof and all right, remedies and options of the Tenant thereunder are and
shall at all times continue to be subject and subordinate in all respects to
the
Mortgage and all of the terms, covenants and provisions thereof and to the
lien
thereof and to any and all increases, renewals, modifications, spreaders,
consolidations, replacements and extensions thereof and to any and all sums
secured thereby, with the same force and effect; as if the Mortgage had been
executed, delivered and recorded prior to the execution and delivery of the
Lease.
2.,
The
Mortgagee agrees that if any action or proceeding is commenced by the Mortgagee
to foreclose the Mortgage or to sell the Premises, the Tenant shall not be
named
as a party in any such action nor shall the Tenant be named a party in
connection with any sale of the Premises, provided that at theltime of the
commencement of any such action or proceeding or at the time of any such sale
(i) the term of the Lease shall have commenced pursuant to the provisions
thereof, (ii) the Lease shall be in full force and effect, and (iii) the
Tenant
shall not be in default under any of the terms, covenants or conditions of
the
Lease or of this Agreement on the part of the Tenant to be observed or performed
thereunder or hereunder after the expiration of any applicable notice or cure
period, unless applicable law requires the Tenant to be made a party thereto
as
a condition to proceeding against the Landlord or protecting such rights and
remedies. In the latter case, the Mortgagee may join the Tenant as a defendant
in such action only for such purposes and not to terminate the
Lease.
3.
The
Tenant aurees that if the Mortgagee or any successors in interest to the
Mortgagee shall become the owner of the Premises by reason of the foreclosure
of
the Mortgage or the acceptance of a deed Or assignment in lieu of foreclosure
or
otherwise, the Lease shall not be terminated or affected thereby
but shall continue in full force and effect as a direct lease between the
Mortgagee and the Tenant uponlall of the terms, covenants and conditions set
forth in the Lease and in that event the Tenant agrees to adorn to the Mortgagee
and the Mortgagee agrees to accept such attornment, provided, however, that
the
Mortgagee shall not be (i) liable for any accrued obligation of the Landlord,
or
for any act or omission of the Landlord, except to the extent the same pertains
to a failure to repair or maintain and then only to the extent such failure
continues for more than thirty (30) days, after Mortgage obtains possession
and
control over the Premises, (ii) subject to any offsets, claims or counterclaims
which shall have accrued to the Tenant against the Landlord prior to the date
on
which the Mortgagee or its successor in interest shall become the owner of
the
Premises or (iii) liable for any security deposit or otherlmonies not actually
received by the Mortgagee.
52
EXHIBIT
H
SUBORDINATION,
NON-DISTURBANCE
AND
ATTORNMENT AGREEMENT (continued)
4.
Without the prior written consent of Mortgagee, Mortgagee shall not be bound
by
(i) any agreement amending, or modifying the Lease unless executed to document
the exercise of a specific right (other than a lease termination) under the
Lease; or (ii) terminating the Lease or (ii) by any prepayment of the rents,
additional rents or other sums due under the Lease'for more than one (1) month
in adVance of the due date thereof
5.
The
Tenant hereby represents and warrants to the Mortgagee that as of the date
hereof (i) the Tenant is
the owner and holder of the tenant's interest under the Lease, (ii) the Lease
has not been modified or amended, (iii) the Lease is in full force and effect
and the term thereof is due to commence on September 1, 2006 pursuant to the
provisions thereof, (iv) neither the Tenant nor the Landlord is in default
under
any of the terms, covenants or provisions of the Lease and the Tenant to the
best of its knowledge knows of no event which but for the passage of time or
the
giving of notice or both would constitute an event of default by the Tenant
or
the Landlord under the Lease, (v) neither the Tenant nor the Landlord has
commenced any action or given or received any notice for the purpose of
terminating the Lease, (vi) all rents, additional rents and other sums due
and
payable under the Lease have been paid in full and no rents, additional rents
or
other sums payable under the Lease have been paid for more than one (1) month
in
advance of the due dates thereof, (vii) there are no offsets or defenses to
the
payment of the rents, additional rents, or other sums payable under the Lease
and (viii) Tenant has received no notice of a prior assignment, hypothecation
or
pledge of the Lease or the rents, income, deposits or profits arising
thereunder, other than in connection with the Mortgage.
6.
Notwithstanding anything to the contrary in the Lease, Tenant shall not commence
any action against Landlord or otherwise pursue any right or remedy against
Landlord in consequence of a default by Landlord under the terms and provisions
of the Lease unless written notice by Tenant specifying such default is
delivered to Mortgagee at its address set forth below. Tenant further agrees
that Mortgagee shall have the right, but shall not be obligated, to
cure such
default on behalf of Landlord within thirty (30) days after receipt of such
notice, or if such default cannot reasonably be cured in such 30-day period,
Mortgagee shall have the right to commence the cure of such default in such
30-day period and thereafter diligently pursue such cure until completed. Tenant
further agrees not to invoke any of its remedies either express or implied,
under the Lease (except in the case of emergency repairs) unless such default
shall remain uncured at the expiration of the 30-day period after receipt of
such notice of default, or if such default cannot reasonably be cured in such
30-day period, unless the cure of such default shall not be commenced within
such 30-day period and thereafter prosecuted diligently to
completion..
7.
Anything
herein or in the Lease to the contrary notwithstanding, in the event that the
Mortgagee shall
acquire title to the Premises, or shall otherwise become liable for any
obligations of the Landlord under; the Lease, the Mortgagee shall have ano
obligation, nor incur any liability, beyond the Mortgagee's then interest,
if
any, in the Premises and the Tenant shall look exclusively to such interest
of
the Mortgagee, if any, in the Premises for the payment and discharge of any
obligations imposed upon the Mortgagee hereunder or under the Lease and the
Mortgagee is hereby released or relieved of any other liability hereunder
and-under the Lease. The Tenant agrees that with respect to any money judgment
which may be obtained or secured by the Tenant against the Mortgagee, the Tenant
shall look solely to the estate or interest owned by the Mortgagee in the
Premises and the Tenant will not collect or attempt to collect any such judgment
out of any other assets of the Mortgagee.
8.
Tenant
shall neither suffer nor itself manufacture, store, handle, transport, dispose
of, spill, leak or duMp any toxic or hazardous waste, waste products or
substance (as they may be defined in any fedend or state statute, rule or
regulation pertaining to or governing such wastes, waste products or substdnces)
on the Premises at any time during the term, or extended term, of the Lease,
except as are used in the ordinary course of Tenant's business as conducted
on
the Premises and in full compliance with environmental laws.
53
EXHIBIT
H
SUBORDINATION,
NON-DISTURBANCE
AND
ATTORNMENT AGREEMENT (continued)
9.
In connection with the assignment to Mortgagee pursuant to the Mortgage
and/or the loan documents referred to therein of Landlord's interest in the
Lease, Tenant agrees that after receipt of written notice from Mortgagee that
Mortgagee is exercising its right under such assignment to have all rents and other sums
due
under the Lease paid directly to Mortgagee, Tenant shall pay to Mortgagee all
rent and other sums due to Landlord under the Lease. By its signature below,
the
Landlord under the Lease hereby authorizes and directs Tenant to so pay such
rents and other sums due under the Lease directly to Mortgagee and agrees that
the Tenant shall be fully protected in doing so.
10.
Any
notice, request, demand, statement, authorization, approval or consent made
hereunder shall be in writing and shall be sent by Federal Express, or other
reputable courier service, or by postage pre-paid registered or certified mail,
return receipt requested, and shall be deemed given when received or refused
(as
indicated on the receipt) and addressed as follows:
| If to the Mortgagee: |
| Eurohypo AG, New York Branch, | ||
| as Administrative Agent | ||
| 1114 Avenue of the Xxxxxxxx, 00xx | ||
| Xxxxx Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Legal Director | ||
| Facsimile: (000) 000-0000 |
|
With
a copy to:
|
|
Xxxxxxxx
& Xxxxxxxx LLP
|
||
|
000
Xxxx Xxxxx Xxxxxx
|
||
|
Xxx
Xxxxxxx, Xxxxxxxxxx
|
||
|
Attention:
Xxxxxx X. Xxxxxx, Esq.
|
||
|
Facsimile:
(000) 000-0000
|
|
If
to the Tenant:
|
|
Platinum
Studios, LLC,
|
||
|
0000
Xxxxxxxx Xxxxxxxxx, Xxxxx 000
|
||
|
Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000
|
||
|
Attention:
Xxxxx Xxxxxxxx Xxxxxxxxx
|
it
being
understood and agreed that each party will use reasonable efforts to send copies
of any notices to the addresses marked With a copy to heremabove set forth;
provided, however, that failure to deliver such copy or copies shall have no
consequence whatsoever to the effectiveness of any notice made to the Tenant
or
the Mortgagee. Each party may designate a change of address by notice given,
as
hereinabove provided, to the other party, at least fifteen (15) days prior
to
the date such change of address is to become effective.
1.1
This
Agreement shall be binding upon and inure to the benefit of the Mortgagee and
the Tenant and their respective successors and assigns.
1.2 The
term ‘`Mortgagee"
as
used herein shall include the successors and assigns of the Mortgagee and any
person, party or entity which shall become the owner of the Premises by reason
of a foreclosure of the Mortgage or the acceptance of a deed or assignment
in
lieu of foreclosure or otherwise. The term "Landlord" as used herein shall
mean
and include the present landlord under the Lease and such landlord's
predecessors and successors in interest under the Lease. The term "Premises"
as
used herein shall mean the Premises, the improvements now or hereafter located
thereon and the estates therein encumbered by the Mortgage.
1.3
This
Agreement may not be modified in any manner or terminated except by an
instrument in writing executed by the parties hereto.
[INTENTIONALLY
LEFT BLANK]
54
EXHIBIT
H
SUBORDINATION,
NON-DISTURBANCE
AND
ATTORNMENT AGREEMENT (continued)
14.
This
Agreement shall be governed by and construed under the laws of the State in
which the Premises are located.
IN
WITNESS WHEREOF, the Mortgagee and the Tenant have duly executed this Agreement
as of the date first above written.
| Mortgagee: | |||
|
EUROHYPO
AG,
New York Branch,
as Administrative Agent
|
|||
|
|
By:
|
/s/ | |
| Name | |||
| Title | |||
| Tenant: | |||
|
PLATINUM STUDIOS,
LLC,
a California limited liability company
|
|||
|
|
By:
|
/s/ Xxxxx Xxxxxxxx Xxxxxxxxx | |
| Name Xxxxx Xxxxxxxx Xxxxxxxxx | |||
| Title | |||
|
|
By:
|
/s/ Xxxxx X. Xxxxxxxxx | |
| Name Xxxxx X. Xxxxxxxxx | |||
| Title | |||
| Lanlord: | |||
| XXXXXXX XXXXXX 1995, LLC | |||
|
|
By:
|
/s/ | |
| Name | |||
| Title | |||
00
XXXXXXXXXXXXXXX
XXXXX
XX
XXXXXXXXXX
XXXXXX
XX XXX XXXXXXX ss:
On
200
before me, . a Notary Public in and for said
County
and State, personally appeared , personally
known
to
me (or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are sttbscribed to the within instrument and acknowledged
to me
that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or
the
entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS
my hand and official seal.
Notary
Public
STATE
OF
CALIFORNIA
ss:
COUNTY
OF
LOS ANGELES
On
200/, before me, a Notary Public in and for said
County
and State, personally appeared Xxxxx
Xxxxxxxx Xxxxxxxxx, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS
my hand and official seal.
|
.
XXXX
XXXX
|
|
SS:
|
Xxxxxx
Xxxxxx
XXXXXX
XX
XXX XXXXXXX
Xx ,
000. before me,, a Notary Public in and for said
County
and State, personally appeared Xxxxx
X. Xxxxxxxxx, personally known to me (or proved to me on the baSis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed
to
the within instrument and acknowledged to me that he/she/they executed the
same
in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf:of
which
the person(s) acted, executed the instrument.
WITNESS
my hand and official seal.
Notary
Public
56
DESCRIPTION
OF THE PREMISES:
PARCEL
1:
LOTS
60,
61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72 AND 76 OF TRACT NO. 8369,
TOGETHER WITH THE NORTHEASTERLY ONE-HALF OF THAT CERTAIN ALLEY 20 FEET WIDE
LYING NORTHWESTERLY OF THE SOUTHWESTERLY PROLONGATION OF THE SOUTHEASTERLY
LINE
OF LOT 72 OF TRACT NO 8369 AND SOUTHEASTERLY OF THE SOUTHWESTERLY PROLONGATION
OF THE NORTHWESTERLY LINE OF XXX 00 XX XXXXX XX 0000, XX THE CITY OF LOS
ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP-RECORDED
IN BOOK 94
PAGES 24 AND 25 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
PARCEL
2:
NON-EXCLUSIVE
EASEMENT APPURTENANT TO PARCEL ,1 FOR INGRESS AND EGRESS, FOR THE PASSAGE AND
PARKING OF VEHICLES, AND FOR PASSAGE AND ACCOMMODATION OF PEDESTRIANS ON SUCH
RESPECTIVE PORTIONS OF THE ALLEY AS ARE SET ASIDE MAINTAINED AND AUTHORIZED
FOR
SUCH USE AS DISCLOSED IN A RECIPROCAL EASEMENT AGREEMENT, RECORDED OCTOBER
26,
1959 AS INSTRUMENT NO 89-1732036 OF LOS ANGELES COUNTY, CALIFORNIA.
EXECUTIVE
TWR. \PLATINUM STUDIOS, LLCALO July 10,2006
57
