Exhibit 10.23
OFFICE LEASE
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Urban West Business Park
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COLONY MB PARTNERS, L.P.
as Landlord,
and
TIER CORPORATION,
a California Corporation
as Tenant.
URBAN WEST BUSINESS PARK
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SUMMARY OF BASIC LEASE INFORMATION
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The undersigned hereby agree to the following terms of this Summary of
Basic Lease Information (the "Summary"). This Summary is hereby incorporated
into and made a part of the attached Office Lease (this Summary and the Office
Lease to be known collectively as the "Lease") which pertains to the office
building (the "Building") which is located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇. Each reference in the Office Lease to any term of this
Summary shall have the meaning as set forth in this Summary for such term. In
the event of a conflict between the terms of this Summary and the Office Lease,
the terms of the Office Lease shall prevail. Any capitalized terms used herein
and not otherwise defined herein shall have the meaning as set forth in the
Office Lease.
TERMS OF LEASE DESCRIPTION
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(References are to the Office Lease)
1. Date: June 3, 1995
2. Landlord: Colony MB Partners, L.P.
By: Colony Advisors, Inc., its agent
3. Address of Landlord Colony Advisors, Inc.
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Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Transamerica Real Estate Management Co.
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Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and
Allen, Matkins, ▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
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4. Tenant: Tier Corporation, Inc., a California Corporation
5. Address of Tenant Tier Corporation, Inc.
(Section 29.19): ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(Prior to Lease Commencement Date)
and
Urban West Business Park
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Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(After Lease Commencement Date)
6. Premises, Expansion Space, First Offer
Space (Article 1):
6.1 Premises: Approximately 6,715 rentable (5,990
usable) square feet of space.
6.2 Expansion Space: N/A
6.3 First Offer Space: Approximately 1,206 rentable square
feet (1,076 usable square feet)
located on the second floor, as set
forth in Exhibit A attached hereto.
First offer space is located
directly to the east of the initial
premises. See Article 15.1 of this
Summary.
7. Term
(Article 2).
7.1 Lease Term: Five (5) years and no months.
7.2 Lease Commencement Date: The earlier of (i) the date Tenant
commences business in the Premises,
and (ii) the date the Premises are
Ready for Occupancy, which Lease
Commencement Date is anticipated to
be July 1, 1995.
7.3 Lease Expiration Date: The last day of the month in which
the fifth anniversary of the Lease
Commencement Date occurs.
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7.4 Option Term(s): One (1) options to extend the Lease Term
for a period of five (5) years each. See
Article 15.2 of this summary.
8. Base Rent The Base Rent shall be payable as
(Article 3): follows:
Annual Rental Rate
Monthly Installment per Rentable Square
Lease Year Annual Base Rent of Base Rent Foot
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Premises: One (1) $145,044.00 $12,087.00 $ 1.80
through five (5)
Parking Rent: $ 3,300.00 $ 275.00 $12.50/space/mo.
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$148,344.00 $12,362.00
9. Additional Rent
(Article 4).
9.1 Base Year: Calendar year 1995. The Tenant's
first adjustment will take place
twelve (12) months after initial
occupancy.
9.2 Tenant's Share of Direct Approximately 5.62%
Expenses:
10. Permitted Use General office and training
(Article 5) purposes consistent with the
character of the Building as a first
class office building.
11. Security Deposit $12,362.00
(Article 21):
12. Parking Pass Ratio Twenty-two (22) parking non-
(Article 28): assigned spaces at a cost of $12.50
per month, per space. See Article 8
above, Parking Rent.
Visitor Parking: Visitor parking
charges are based on market rate and
are currently $.50 per one-half
(1/2) hour. Market rates are
subject to change from time to time.
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13. Brokers LANDLORD'S BROKER
(Section 29.25): CB Commercial Real Estate Group, Inc.
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(▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
TENANT'S BROKER
R & D Commercial Properties
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(▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
14. Tenant Improvements LANDLORD IS TO CONSTRUCT THE
(Tenant Work Letter attached as TENANT IMPROVEMENTS AND THE AMOUNT
Exhibit B) OF THE ESTIMATED COST OF THE
IMPROVEMENTS IS:
$39,139.00 const. and permits
$ 8,394.00 architectural ($1.25 PSF)
$ 1,957.00 management (5)
$ 1,957.00 contingency (5%)
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$51,447.00
15. Additional Significant Provisions:
15.1 Terms for Right of First Offer Tenant shall be granted a one-time
Space Right of First Offer to lease the
contiguous approximately 1,206
rentable square feet (1,076 usable
square feet) located immediately to
the east of the leased premises,
subject to terms accepted by a bona
fide third party. Tenant shall have
ten (10) business days to accept the
same terms and notify Landlord in
writing. In the event Tenant expands
into this space or other space in
the building within the initial
twelve (12) months of their lease
term, a leasing commission will be
paid per the leasing contract for
vacant, marketed premises.
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15.2 Terms for Option Term Tenant, by providing nine (9) month's advance
written notice to Landlord, shall have one (1)
Option to Renew the lease for a term of five
(5) years at ninety-five percent (95%) of the
then current market rate for comparable
premises in the building and/or submarket area.
The foregoing terms of this Summary are hereby agreed to by Landlord and Tenant.
"Landlord": "Tenant":
Colony MB Partners, L.P. Tier Corporation
By: Colony Advisors, Inc. a California Corporation
Its: Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
President Its: President
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Date: June 19, 1995 Date: 6/7/95
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The foregoing terms of this Summary are hereby agreed to by Landlord and Tenant:
"Landlord": "Tenant":
Colony MB Partners, L.P. Tier Corporation
By: Colony Advisors, Inc. a California Corporation
Its: Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President Its: President
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Date: June 19, 1995 Date: 6/16/95
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URBAN WEST BUSINESS PARK
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TABLE OF CONTENTS
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Page
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ARTICLE 1 REAL PROPERTY, BUILDING AND PREMISES................................1
ARTICLE 2 LEASE TERM..........................................................2
ARTICLE 3 BASE RENT...........................................................2
ARTICLE 4 ADDITIONAL RENT.....................................................2
ARTICLE 5 USE OF PREMISES.....................................................8
ARTICLE 6 SERVICES AND UTILITIES..............................................8
ARTICLE 7 REPAIRS............................................................10
ARTICLE 8 ADDITIONS AND ALTERATIONS..........................................11
ARTICLE 9 COVENANT AGAINST LIENS.............................................13
ARTICLE 10 INSURANCE..........................................................13
ARTICLE 11 DAMAGE AND DESTRUCTION.............................................16
ARTICLE 12 NONWAIVER..........................................................17
ARTICLE 13 CONDEMNATION.......................................................18
ARTICLE 14 ASSIGNMENT AND SUBLETTING..........................................18
ARTICLE 15 SURRENDER OF PREMISES; OWNERSHIP AND REMOVAL OF TRADE FIXTURES.....22
ARTICLE 16 HOLDING OVER.......................................................22
ARTICLE 17 ESTOPPEL CERTIFICATES..............................................23
ARTICLE 18 SUBORDINATION......................................................23
ARTICLE 19 DEFAULTS; REMEDIES.................................................24
ARTICLE 20 COVENANT OF QUIET ENJOYMENT........................................26
ARTICLE 21 SECURITY DEPOSIT...................................................26
ARTICLE 22 SUBSTITUTION OF OTHER PREMISES.....................................27
ARTICLE 23 SIGNS..............................................................27
ARTICLE 24 COMPLIANCE WITH LAW................................................28
ARTICLE 25 LATE CHARGES.......................................................28
ARTICLE 26 LANDLORD'S RIGHT TO CURE DEFAULT; PAYMENTS BY TENANT...............28
ARTICLE 27 ENTRY BY LANDLORD..................................................29
ARTICLE 28 TENANT PARKING.....................................................29
ARTICLE 29 MISCELLANEOUS PROVISIONS...........................................30
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URBAN WEST BUSINESS PARK
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OFFICE LEASE
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This Office Lease, which includes the preceding Summary of Basic Lease
Information (the "Summary") attached hereto and incorporated herein by this
reference (the Office Lease and Summary to be known sometimes collectively
hereafter as the "Lease"), dated as of the date set forth in Section I of the
Summary, is made by and between Colony MB Partners, L.P., By: Colony Advisors,
Inc. its Agent ("Landlord'), and Tier Corporation, Inc., a California
corporation ("Tenant").
ARTICLE 1
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REAL PROPERTY, BUILDING AND PREMISES
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1.1 Real Property, Building and Premises. Upon and subject to the terms,
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covenants and conditions hereinafter set forth in this Lease, Landlord hereby
leases to Tenant and Tenant hereby leases from Landlord the premises set forth
in Section 6.1 of the Summary (the "Premises"), which Premises are located in
the "Building," as that term is defined in this Section 1.1. The outline of the
floor plan of the Premises is set forth in Exhibit A attached hereto. The
Premises are a part of the building (the "Building") located at [INSERT BUILDING
ADDRESS]. The Building, the Building's parking facility ("Building Parking
Facility"), 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." Tenant is hereby granted the right to the nonexclusive use of
the common corridors and hallways, stairwells, elevators, restrooms and other
public or common areas located on the Real Property; provided, however, that the
manner in which such public and common areas are maintained and operated shall
be at the sole discretion of Landlord and the use thereof shall be subject to
such reasonable/non-discriminatory rules, regulations and restrictions as
Landlord may make from time to time. Landlord reserves the right to make
alterations or additions to or to change the location of elements of the Real
Property and the common areas thereof as long as it does not materially affect
Tenant's access.
1.2 Condition of the Premises. Except as specifically set forth in this
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Lease and in the Tenant Work Letter attached hereto as Exhibit B, Landlord shall
not be obligated to provide or pay for any improvement work or services related
to the improvement of the Premises. Tenant also acknowledges that Landlord has
made no representation or warranty regarding the condition of the Premises or
the Building except as specifically set forth in this Lease and the Tenant Work
Letter. See Work Letter: "Punch List" items Article 5.1.
ARTICLE 2
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1
LEASE TERM
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The terms and provisions of this Lease shall be effective as of the date of
this Lease except for the provisions of this Lease relating to the payment of
Rent. The term of this Lease (the "Lease Term") shall be as set forth in
Section 7.1 of the Summary and shall commence on the date (the "Lease
Commencement Date") set forth in Section 7.2 of the Summary (subject, however,
to the terms of the Tenant Work Letter), and shall terminate on the date (the
"Lease Expiration Date") set forth in Section 7.3 of the Summary, unless this
Lease is sooner terminated as hereinafter provided. For purposes of this Lease,
the term "Lease Year" shall mean each consecutive twelve (12) month period
during the Lease Term; provided, however, that the first Lease Year shall
commence on the Lease Commencement Date and end on the last day of the eleventh
month thereafter and the second and each succeeding Lease Year shall commence on
the first day of the next calendar month; and further provided that the last
Lease Year shall end on the Lease Expiration Date. At any time during the Lease
Term, Landlord may deliver to Tenant a notice of Lease Term dates in the form as
set forth in Exhibit C, attached hereto, which notice Tenant shall execute and
return to Landlord within five (5) days of receipt thereof.
ARTICLE 3
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BASE RENT
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Tenant shall pay, without notice or demand, to Landlord or Landlord's agent
at the management office of the Building, or at such other place as Landlord may
from time to time designate in writing, in currency or a check for currency
which, at the time of payment, is legal tender for private or public debts in
the United States of America, base rent ("Base Rent") as set forth in Section 8
of the Summary, payable in equal monthly installments as set forth in Section 8
of the Summary in advance on or before the first day of each and every month
during the Lease Term, without any set-off or deduction whatsoever. The Base
Rent for the first full month of the Lease Term, which occurs after the
expiration of any free rent period, shall be paid at the time of Tenant's
execution of this Lease. If any rental payment date (including the Lease
Commencement Date) falls on a day of the month other than the first day of such
month or if any rental payment is for a period which is shorter than one month,
then the rental for any such fractional month shall be a proportionate amount of
a full calendar month's rental based on the proportion that the number of days
in such fractional month bears to the number of days in the calendar month
during which such fractional month occurs. All other payments or adjustments
required to be made under the terms of this Lease that require proration on a
time basis shall be prorated on the same basis.
ARTICLE 4
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ADDITIONAL RENT
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4.1 Additional Rent. In addition to paying the Base Rent specified in
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Article 3 of this Lease, Tenant shall pay as additional rent "Tenant's Share" of
the annual "Direct Expenses," as those terms are defined in Sections 4.2.8 and
4.2.3 of this Lease, respectively, which are in excess of the amount of Direct
Expenses applicable to the "Base Year," as that term is defined in
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Section 4.2.1 of this Lease. Such additional rent, together with any and all
other amounts payable by Tenant to Landlord pursuant to the terms of this Lease,
shall be hereinafter collectively referred to as the "Additional Rent." The
Base Rent and Additional Rent are herein collectively referred to as the "Rent."
All amounts due under this Article 4 as Additional Rent shall be payable for the
same periods and in the same manner, time and place as the Base Rent. Without
limitation on other obligations of Tenant which shall survive the expiration of
the Lease Term, the obligations of Tenant to pay the Additional Rent provided
for in this Article 4 shall survive the expiration of the Lease Term.
4.2 Definitions. As used in this Article 4, the following terms shall
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have the meanings hereinafter set forth:
4.2.1 "Base Year" shall mean the year set forth in Section 9.1 of the
Summary.
4.2.2 "Calendar Year" shall mean each calendar year in which any
portion of the Lease Term falls, through and including the calendar year in
which the Lease Term expires.
4.2.3 "Direct Expenses" shall mean "Operating Expenses" and "Tax
Expenses."
4.2.4 "Expense Year" shall mean each Calendar Year, provided that
Landlord, upon notice to Tenant, may change the Expense Year from time to time
to any other twelve (12) consecutive-month period, and, in the event of any such
change, Tenant's Share of Direct Expenses shall be equitably adjusted for any
Expense Year involved in any such change.
4.2.5 "Operating Expenses" shall mean all expenses, costs and amounts
of every kind and nature which Landlord shall pay during any Expense Year
because of or in connection with the ownership, management, maintenance, repair,
replacement, restoration or operation of the Real Property, including, without
limitation, any amounts paid for (i) the cost of supplying all utilities, the
cost of operating, maintaining, repairing and managing the utility systems,
mechanical systems, sanitary and storm drainage systems, and any escalator
and/or elevator systems, and the cost of supplies and equipment other than any
capital improvements and maintenance and service contracts in connection
therewith; (ii) the cost of licenses, certificates, permits, other than any
tenant improvement work and inspections and the reasonable cost of contesting
the validity or applicability of any governmental enactments which may affect
Operating Expenses, and the costs incurred in connection with the implementation
and operation of a transportation system management program or similar program;
(iii) the cost of insurance carried by Landlord, in such amounts as Landlord may
reasonably determine or as may be required by any mortgagees or the lessor of
any underlying or ground lease affecting the Real Property and/or the Building;
(iv) the cost of landscaping, relamping, and all supplies, tools, equipment
other than any capital improvements and materials used in the operation, repair
and maintenance of the Building; (v) the cost of parking area repair,
restoration, and maintenance, including, but not limited to, resurfacing,
repainting, restriping, and cleaning; (vi) fees, charges and other costs,
including consulting fees, legal fees and accounting fees, of all contractors
engaged by Landlord or otherwise reasonably incurred by Landlord in connection
with the management, operation, maintenance and repair of the Building and Real
Property; (vii) any equipment rental agreements or management agreements
(including the cost of any management
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fee not to exceed five percent (5%) and the fair rental value of any office
space provided thereunder); (viii) reasonable industry standard wages, salaries
and other compensation and benefits of all persons engaged in the operation,
management, maintenance or security of the Building, and employer's Social
Security taxes, unemployment taxes or insurance, and any other taxes which may
be levied on such wages, salaries, compensation and benefits; provided, that if
any employees of Landlord provide services for more than one building of
Landlord, then a prorated portion of such employees' wages, benefits and taxes
shall be included in Operating Expenses based on the portion of their working
time devoted to the Building; (ix) payments under any easement, license,
operating agreement, declaration, restrictive covenant, underlying or ground
lease (excluding rent), or instrument pertaining to the sharing of costs by the
Building; (x) operation, repair, maintenance and of all "Systems and Equipment,"
as that term is defined in Section 4.2.6 of this Lease, and components thereof;
(xi) the cost of janitorial service, alarm and security service, window
cleaning, trash removal, replacement of wall and floor coverings, ceiling tiles
and fixtures in lobbies, corridors, restrooms and other common or public areas
or facilities, maintenance and replacement of curbs and walkways, repair to
roofs; (xii) amortization (including interest on the unamortized cost) of the
cost of acquiring or the rental expense of personal property used in the
maintenance, operation and repair of the Building and Real Property; and (xiii)
the cost of any capital improvements or other costs (I) which are reasonably and
objectively intended as a labor-saving device or to effect other economies in
the operation or maintenance of the Building, or (II) made to the Building after
the Lease Commencement Date that are required under any governmental law or
regulation, except for capital improvements or costs to remedy a condition
existing as of the date of construction of the Building which a federal, state
or municipal governmental authority, if it had knowledge of such condition as of
the date of construction of the Building, would have then required to be
remedied pursuant to governmental laws or regulations in their form existing as
of the date of construction of the Building; provided, however, that if any such
cost described in (I) or (II) above is a capital expenditure, such cost shall be
amortized (including interest on the unamortized cost) over its useful life as
Landlord shall reasonably determine. If Landlord is not furnishing any
particular work or service (the cost of which, if performed by Landlord, would
be included in Operating Expenses) to a tenant who has undertaken to perform
such work or service in lieu of the performance thereof by Landlord, Operating
Expenses shall be deemed to be increased by an amount equal to the additional
Operating Expenses which would reasonably have been incurred during such period
by Landlord if it had at its own expense furnished such work or service to such
tenant. If the Building is not fully occupied during all or a portion of any
Expense Year, Landlord shall make an appropriate adjustment to the variable
components of the actual Operating Expenses for such year or applicable portion
thereof, employing sound accounting and management principles, to determine the
amount of Operating Expenses that would have been paid had the Building been
fully occupied; and the amount so determined shall be deemed to have been the
amount of Operating Expenses for such year, or applicable portion thereof. Such
adjustment, however, shall not result in Landlord receiving from Tenant and
other tenants more than 100% of the actual cost of such variable components.
Landlord shall have the right, from time to time, to equitably allocate some or
all of the Operating Expenses among different tenants of the Building (the "Cost
Pools"). Such Cost Pools may include, but shall not be limited to, the office
space tenants of the Building and the retail space tenants of the Building.
Notwithstanding anything to the contrary set forth in this Article 4, when
calculating Direct Expenses for the Base
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Year, Operating Expenses shall exclude market-wide labor-rate increases due to
extraordinary circumstances, including but not limited to, boycotts and strikes,
and utility rate increases due to extraordinary circumstances including, but not
limited to, conservation surcharges, boycotts, embargoes or other shortages.
4.2.6 "Systems and Equipment" shall mean any plant, machinery,
transformers, duct work, cable, wires, and other equipment, facilities, and
systems designed to supply heat, ventilation, air conditioning and humidity or
any other services or utilities, or comprising or serving as any component or
portion of the electrical, gas, steam, plumbing, sprinkler, communications,
alarm, security, or fire/life safety systems or equipment, or any other
mechanical, electrical, electronic, computer or other systems or equipment which
serve the Building in whole or in part.
4.2.7 "Tax Expenses" shall mean all federal, state, county, or local
governmental or municipal taxes, fees, charges or other impositions of every
kind and nature, whether general, special, ordinary or extraordinary,
(including, without limitation, real estate taxes, general and special
assessments, transit taxes, leasehold taxes or taxes based upon the receipt of
rent, including gross receipts or sales taxes applicable to the receipt of rent,
unless required to be paid by Tenant, personal property taxes imposed upon the
fixtures, machinery, equipment, apparatus, systems and equipment, appurtenances,
furniture and other personal property used in connection with the Building),
which Landlord shall pay during any Expense Year because of or in connection
with the ownership, leasing and operation of the Real Property or Landlord's
interest therein. For purposes of this Lease, ________.
4.2.7.1 Tax Expenses shall include, without limitation:
(i) Any tax on Landlord's rent, right to rent or other income from
the Real Property or as against Landlord's business of leasing any of the Real
Property;
(ii) Any assessment, tax, fee, levy or charge in addition to, or in
substitution, partially or totally, of any assessment, tax, fee, levy or charge
previously included within the definition of real property tax, it being
acknowledged by Tenant and Landlord that Proposition 13 was adopted by the
voters of the State of California in the June 1978 election ("Proposition 13")
and that assessments, taxes, fees, levies and charges may be imposed by
governmental agencies for such services as fire protection, street, sidewalk and
road maintenance, refuse removal and for other governmental services formerly
provided without charge to property owners or occupants. It is the intention of
Tenant and Landlord that all such new and increased assessments, taxes, fees,
levies and charges and all similar assessments, taxes, fees, levies and charges
be included within the definition of Tax Expenses for purposes of this Lease;
(iii) Any assessment, tax, fee, levy, or charge allocable to or
measured by the area of the Premises or the rent payable hereunder, including,
without limitation, any gross income tax with respect to the receipt of such
rent, or 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; and
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(iv) Any assessment, tax, fee, levy or charge, upon this transaction
or any document to which Tenant is a party, creating or transferring an interest
or an estate in the Premises.
4.2.7.2 In no event shall Tax Expenses for any Expense Year be less
than the component of Tax Expenses comprising a portion of the Base Year.
4.2.7.3 Any expenses incurred by Landlord in attempting to protest,
reduce or minimize Tax Expenses shall be included in Tax Expenses in the Expense
Year such expenses are paid. Tax refunds shall be deducted from Tax Expenses in
the Expense Year they are received by Landlord. If Tax Expenses for any period
during the Lease Term or any extension thereof are increased after payment
thereof by Landlord for any reason, including, without limitation, error or
reassessment by applicable governmental or municipal authorities, Tenant shall
pay Landlord upon demand Tenant's Share of such increased Tax Expenses.
4.2.7.4 Notwithstanding anything to the contrary contained in this
Section 4.2.7 (except as set forth in Sections 4.2.7.1 and 4.2.7.2, above),
there shall be excluded from Tax Expenses (i) all excess profits taxes,
franchise taxes, gift taxes, capital stock taxes, inheritance and succession
taxes, estate taxes, federal and state income taxes, and other taxes to the
extent applicable to Landlord's general or net income (as opposed to rents,
receipts or income attributable to operations at the Building), (ii) any items
included as Operating Expenses, and (iii) any items paid by Tenant under Section
4.4 of this Lease.
4.2.7.5 Notwithstanding anything to the contrary set forth in this
Article 4, when calculating Direct Expenses for the Base Year, such Direct
Expenses shall not include any increase in Tax Expenses attributable to special
assessments, charges, costs, or fees, or due to modifications or changes in
governmental laws or regulations, including, but not limited to, the institution
of a split tax roll.
4.2.8 "Tenant's Share" shall mean the percentage set forth in Section
9.2 of the Summary. Tenant's Share was calculated by multiplying the number of
rentable square feet of the Premises by 100 and dividing the product by the
total rentable square feet in the Building. In the event either the rentable
square feet of the Premises and/or the total rentable square feet of the
Building is changed, Tenant's Share shall be appropriately adjusted, and, as to
the Expense Year in which such change occurs, Tenant's Share for such year shall
be determined on the basis of the number of days during such Expense Year that
each such Tenant's Share was in effect.
4.3 Calculation and Payment of Additional Rent.
------------------------------------------
4.3.1 Calculation of Excess. If for any Expense Year ending or
---------------------
commencing within the Lease Term, Tenant's Share of Direct Expenses for such
Expense Year exceeds Tenant's Share of Direct Expenses for the Base Year, then
Tenant shall pay to Landlord, in the manner set forth in Section 4.3.2, below,
and as Additional Rent, an amount equal to the excess (the "Excess").
6
4.3.2 Statement of Actual Direct Expenses and Payment by Tenant.
---------------------------------------------------------
Landlord shall endeavor to give to Tenant on or before the first day of April
following the end of each Expense Year, a statement (the "Statement") which
shall state the Direct Expenses incurred or accrued for such preceding Expense
Year, and which shall indicate the amount, if any, of any Excess. Upon receipt
of the Statement for each Expense Year ending during the Lease Term, if an
Excess is present, Tenant shall pay, with its next installment of Base Rent due,
the full amount of the Excess for such Expense Year, less the amounts, if any,
paid during such Expense Year as "Estimated Excess," as that term is defined in
Section 4.3.3 of this Lease. The failure of Landlord to timely furnish the
Statement for any Expense Year shall not prejudice Landlord from enforcing its
rights under this Article 4. Even though the Lease Term has expired and Tenant
has vacated the Premises, when the final determination is made of Tenant's Share
of the Direct Expenses for the Expense Year in which this Lease terminates, if
an Excess is present, Tenant shall immediately pay to Landlord an amount as
calculated pursuant to the provisions of Section 4.3.1 of this Lease. The
provisions of this Section 4.3.2 shall survive the expiration or earlier
termination of the Lease Term, however, not longer than one (1) year.
4.3.3 Statement of Estimated Direct Expenses. In addition, Landlord
--------------------------------------
shall endeavor to give Tenant a yearly expense estimate statement (the "Estimate
Statement") which shall set forth Landlord's reasonable estimate (the
"Estimate") of what the total amount of Direct Expenses for the then-current
Expense Year shall be and the estimated Excess (the "Estimated Excess") as
calculated by comparing Tenant's Share of Direct Expenses, which shall be based
upon the Estimate, to Tenant's Share of Direct Expenses for the Base Year. The
failure of Landlord to timely furnish the Estimate Statement for any Expense
Year shall not preclude Landlord from enforcing its rights to collect any
Estimated Excess under this Article 4. If pursuant to the Estimate Statement an
Estimated Excess is calculated for the then-current Expense Year, Tenant shall
pay, with its next installment of Base Rent due, a fraction of the Estimated
Excess for the then-current Expense Year (reduced by any amounts paid pursuant
to the last sentence of this Section 4.3.3). Such fraction shall have as its
numerator the number of months which have elapsed in such current Expense Year
to the month of such payment, both months inclusive, and shall have twelve (12)
as its denominator. Until a new Estimate Statement is furnished, Tenant shall
pay monthly, with the monthly Base Rent installments, an amount equal to one-
twelfth (1/12) of the total Estimated Excess set forth in the previous Estimate
Statement delivered by Landlord to Tenant.
4.4 Taxes and Other Charges for Which Tenant Is Directly Responsible.
----------------------------------------------------------------
Tenant shall reimburse Landlord within thirty (30) days for any and all taxes or
assessments required to be paid by Landlord (except to the extent included in
Tax Expenses by Landlord), excluding state, local and federal personal or
corporate income taxes measured by the net income of Landlord from all sources
and estate and inheritance taxes, whether or not now customary or within the
contemplation of the parties hereto, when:
4.4.1 Said taxes are measured by or reasonably attributable to the
cost or value of Tenant's equipment, furniture, fixtures and other personal
property located in the Premises, or by the cost or value of any leasehold
improvements made in or to the Premises by or for Tenant, to the extent the cost
or value of such leasehold improvements exceeds the cost or value of a
7
building standard build-out as determined by Landlord regardless of whether
title to such improvements shall be vested in Tenant or Landlord;
4.4.2 Said taxes are assessed upon or with respect to the possession,
leasing, operation, management, maintenance, alteration, repair, use or
occupancy by Tenant of the Premises or any portion of the Real Property
(including the Building Parking Facility);
4.4.3 Said taxes are assessed upon this transaction or any document
to which Tenant is a party creating or transferring an interest or an estate in
the Premises; or
4.4.4 Said assessments are levied or assessed upon the Real Property
or any part thereof or upon Landlord and/or by any governmental authority or
entity, and relate to the construction, operation, management, use, alteration
or repair of mass transit improvements.
ARTICLE 5
---------
USE OF PREMISES
---------------
Tenant shall use the Premises solely for the Permitted Use set forth in
Section 10 of the Summary and Tenant shall not use or permit the Premises to be
used for any other purpose or purposes whatsoever. Tenant further covenants and
agrees that it shall not use, or suffer or permit any person or persons to use,
the Premises or any part thereof for any use or purpose contrary to the
provisions of Exhibit D, attached hereto, or in violation of the laws of the
United States of America, the state in which the Building is located or the
ordinances, regulations or requirements of the local municipal or county
governing body or other lawful authorities having jurisdiction over the
Building. Tenant shall comply with all recorded covenants, conditions, and
restrictions, and the provisions of all ground or underlying leases, now or
hereafter affecting the Real Property. Tenant shall not use or allow another
person or entity to use any part of the Premises for the storage, use,
treatment, manufacture or sale of "Hazardous Material," as that term is defined
in Section 29.29 of this Lease.
ARTICLE 6
---------
SERVICES AND UTILITIES
----------------------
6.1 Standard Tenant Services. Landlord shall provide the following
------------------------
services on all days during the Lease Term, unless otherwise stated below.
6.1.1 Subject to all governmental rules, regulations and guidelines
applicable thereto, Landlord shall provide heating and air conditioning for
normal comfort for normal office use in the Premises, from Monday through
Friday, during the period from 7:00 a.m. to 6:00 p.m., and on Saturday during
the period from 7:00 a.m. to 6:00 p.m., except for the date of observation of
New Year's Day, Presidents' Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, Christmas Day and other locally or nationally recognized
holidays (collectively, the "Holidays").
8
6.1.2 Landlord shall provide adequate electrical wiring and
facilities and power for normal general office use as determined by Landlord.
Tenant shall bear the cost of replacement of lamps, starters and ballasts for
lighting fixtures within the Premises.
6.1.3 Landlord shall provide city water from the regular Building
outlets for drinking, lavatory and toilet purposes.
6.1.4 Landlord shall provide janitorial services five (5) days per
week, except the date of observation of the Holidays, in and about the Premises
and window washing services in a manner consistent with other comparable
buildings in the vicinity of the Building.
6.1.5 Landlord shall provide nonexclusive automatic passenger
elevator service at all times.
6.1.6 Landlord shall provide nonexclusive freight elevator service
subject to scheduling by Landlord.
6.2 Overstandard Tenant Use. Tenant shall not, without Landlord's prior
-----------------------
written consent, use heat-generating machines, machines other than normal
fractional horsepower office machines, or equipment or lighting other than
building standard lights in the Premises, which may affect the temperature
otherwise maintained by the air conditioning system or increase the water
normally furnished for the Premises by Landlord pursuant to the terms of Section
6.1 of this Lease. If such consent is given, Landlord shall have the right to
install supplementary air conditioning units or other facilities in the
Premises, including supplementary or additional metering devices, and the cost
thereof, including the cost of installation, operation and maintenance,
increased wear and tear on existing equipment and other similar charges, shall
be paid by Tenant to Landlord upon billing by Landlord. If Tenant uses water or
heat or air conditioning in excess of that supplied by Landlord pursuant to
Section 6.1 of this Lease, above, Tenant shall pay to Landlord, upon billing,
the cost of such excess consumption, the cost of the installation, operation,
and maintenance of equipment which is installed in order to supply such excess
consumption, and the cost of the increased wear and tear on existing equipment
caused by such excess consumption; and Landlord may install devices to
separately meter any increased use and in such event Tenant shall pay the
increased cost directly to Landlord, on demand, including the cost of such
additional metering devices. If Tenant desires to use heat, ventilation or air
conditioning during hours other than those for which Landlord is obligated to
supply such utilities pursuant to the terms of Section 6.1 of this Lease, Tenant
shall give Landlord such prior notice, as Landlord shall from time to time
establish as appropriate, of Tenant's desired use and Landlord shall supply such
utilities to Tenant at such hourly cost to Tenant as Landlord shall from time to
time establish. Amounts payable by Tenant to Landlord for such use of
additional utilities shall be deemed Additional Rent hereunder and shall be
billed on a monthly basis. Landlord may increase the hours or days during which
air conditioning, heating and ventilation are provided to the Premises and the
Building to accommodate the usage by tenants occupying two-thirds or more of the
rentable square feet of the Building or to conform to practices of other
buildings in the area comparable to the Building.
9
6.3 Interruption of Use. Tenant agrees that Landlord shall not be liable
-------------------
for damages, by abatement of Rent or otherwise, for failure to furnish or delay
in furnishing any service (including telephone and telecommunication services),
or for any diminution in the quality or quantity thereof, when such failure or
delay or diminution is occasioned, in whole or in part, by repairs,
replacements, or improvements, by any strike, lockout or other labor trouble, by
inability to secure electricity, gas, water, or other fuel at the Building after
reasonable effort to do so, by any accident or casualty whatsoever, by act or
default of Tenant or other parties, or by any other cause beyond Landlord's
reasonable control; and such failures or delays or diminution shall never be
deemed to constitute an eviction or disturbance of Tenant's use and possession
of the Premises or relieve Tenant from paying Rent or performing any of its
obligations under this Lease. Furthermore, Landlord shall not be liable under
any circumstances for a loss of, or injury to, property or for injury to, or
interference with, Tenant's business, including, without limitation, loss of
profits, however occurring, through or in connection with or incidental to a
failure to furnish any of the services or utilities as set forth in this Article
6.
6.4 Additional Services. Landlord shall also have the exclusive right,
-------------------
but not the obligation, to provide any additional services which may be required
by Tenant, including, without limitation, locksmithing, lamp replacement,
additional janitorial service, and additional repairs and maintenance, provided
that Tenant shall pay to Landlord upon billing, the sum of all costs to Landlord
of such additional services plus an administration fee. Charges for any service
for which Tenant is required to pay from time to time hereunder, shall be deemed
Additional Rent hereunder and shall be billed on a monthly basis.
6.5 After Hours Lighting and Heating, Air Conditioning, and Ventilation.
-------------------------------------------------------------------
After hours service is defined as any service after 6:00 p.m. and before 7:00
a.m., Monday through Friday and twenty-four hours per day on weekdays and
Landlord recognized legal holidays. After-hours charges are $2.00 per hour for
lighting and $30.00 per hour for HVAC. Hourly rates are subject to adjustment
per changes in actual utility rate adjustments.
ARTICLE 7
---------
REPAIRS
-------
Tenant shall, at Tenant's own expense, keep the Premises, including all
improvements, fixtures and furnishings therein, in good order, repair and
condition at all times during the Lease Term. In addition, Tenant shall, at
Tenant's own expense but under the supervision and subject to the prior approval
of Landlord, and within any reasonable period of time specified by Landlord,
promptly and adequately repair all damage to the Premises and replace or repair
all damaged or broken fixtures and appurtenances; provided however, that, at
Landlord's option, or if Tenant fails to make such repairs, Landlord may, but
need not, make such repairs and replacements, and Tenant shall pay Landlord the
cost thereof, including a percentage of the cost thereof (to be uniformly
established for the Building) sufficient to reimburse Landlord for all overhead,
general conditions, fees and other costs or expenses arising from Landlord's
involvement with such repairs and replacements forthwith upon being billed for
same. Landlord may, but shall not be required to, enter the Premises at all
reasonable times to make such repairs, alterations, improvements and additions
to the Premises or to the Building or to any equipment
10
located in the Building as Landlord shall desire or deem necessary or as
Landlord may be required to do by governmental or quasi-governmental authority
or court order or decree. Tenant hereby waives and releases its right to make
repairs at Landlord's expense under Sections 1941 and 1942 of the California
Civil Code; or under any similar law, statute, or ordinance now or hereafter in
effect.
ARTICLE 8
---------
ADDITIONS AND ALTERATIONS
-------------------------
8.1 Landlord's Consent to Alterations. Tenant may not make any
---------------------------------
improvements, alterations, additions or changes to the Premises (collectively,
the "Alterations") without first procuring the prior written consent of Landlord
to such Alterations, which consent shall be requested by Tenant not less than
thirty (30) days prior to the commencement thereof, and which consent shall not
be unreasonably withheld by Landlord. The construction of the initial
improvements to the Premises shall be governed by the terms of the Tenant Work
Letter and not the terms of this Article 8.
8.2 Manner of Construction. Landlord may impose, as a condition of its
----------------------
consent to all Alterations or repairs of the Premises or about the Premises,
such requirements as Landlord in its sole discretion may deem desirable,
including, but not limited to, the requirement that upon Landlord's request,
Tenant shall, at Tenant's expense, remove such Alterations upon the expiration
or any early termination of the Lease Term, and/or the requirement that Tenant
utilize for such purposes only contractors, materials, mechanics and materialmen
selected by Landlord. In any event, a contractor of Landlord's selection shall
perform all mechanical, electrical, plumbing, structural, and heating,
ventilation and air conditioning work, and such work shall be performed at
Tenant's cost. Tenant shall construct such Alterations and perform such repairs
in conformance with any and all applicable rules and regulations of any federal,
state, county or municipal code or ordinance and pursuant to a valid building
permit, issued by the city in which the Building is located, in conformance with
Landlord's construction rules and regulations. Landlord's approval of the
plans, specifications and working drawings for Tenant's Alterations shall create
no responsibility or liability on the part of Landlord for their completeness,
design sufficiency, or compliance with all laws, rules and regulations of
governmental agencies or authorities. All work with respect to any Alterations
must be done in a good and workmanlike manner and diligently prosecuted to
completion to the end that the Premises shall at all times be a complete unit
except during the period of work. In performing the work of any such
Alterations, Tenant shall have the work performed in such manner as not to
obstruct access to the Building or the common areas for any other tenant of the
Building, and as not to obstruct the business of Landlord or other tenants in
the Building, or interfere with the labor force working in the Building. In the
event that Tenant makes any Alterations, Tenant agrees to carry "Builder's All
Risk" insurance in an amount approved by Landlord covering the construction of
such Alterations, and such other insurance as Landlord may require, it being
understood and agreed that all of such Alterations shall be insured by Tenant
pursuant to Article 10 of this Lease immediately upon completion thereof. In
addition, Landlord may, in its discretion, require Tenant to obtain a lien and
completion bond or some alternate form of security satisfactory to Landlord in
an amount sufficient to ensure the lien-free completion of such Alterations and
11
naming Landlord as a co-obligee. Upon completion of any Alterations, Tenant
agrees to cause a Notice of Completion to be recorded in the office of the
Recorder of the county in which the Building is located in accordance with
Section 3093 of the Civil Code of the State of California or any successor
statute, and Tenant shall deliver to the Building management office a
reproducible copy of the "as built" drawings of the Alterations.
8.3 Payment for Improvements. In the event Tenant orders any Alteration
------------------------
or repair work directly from Landlord, or from the contractor selected by
Landlord, the charges for such work shall be deemed Additional Rent under this
Lease, payable upon billing therefor, either periodically during construction or
upon the substantial completion of such work, at Landlord's option. Upon
completion of such work, Tenant shall deliver to Landlord, if payment is made
directly to contractors, evidence of payment, contractors' affidavits and full
and final waivers of all liens for labor, services or materials. Whether or not
Tenant orders any work directly from Landlord, Tenant shall pay to Landlord a
percentage of the cost of such work (such percentage, which shall vary depending
upon whether or not Tenant orders the work directly from Landlord, to be
established on a uniform basis for the Building) sufficient to compensate
Landlord for all overhead, general conditions, fees and other costs and expenses
arising from Landlord's involvement with such work.
8.4 Landlord's Property. All Alterations, improvements, fixtures and/or
-------------------
equipment which may be installed or placed in or about the Premises, and all
signs installed in, on or about the Premises, from time to time, shall be at the
sole cost of Tenant and shall be and become the property of Landlord, except
that Tenant may remove any Alterations, improvements, fixtures and/or equipment
which Tenant can substantiate to Landlord have not been paid for with any tenant
improvement allowance funds provided to Tenant by Landlord, provided Tenant
repairs any damage to the Premises and Building caused by such removal.
Furthermore, if Landlord, as a condition to Landlord's consent to any
Alteration, requires that Tenant remove any Alteration upon the expiration or
early termination of the Lease Term, Landlord may, by written notice to Tenant
prior to the end of the Lease Term, or given upon any earlier termination of
this Lease, require Tenant at Tenant's expense to remove such Alterations and to
repair any damage to the Premises and Building caused by such removal. If
Tenant fails to complete such removal and/or to repair any damage caused by the
removal of any Alterations, Landlord may do so and may charge the cost thereof
to Tenant. Tenant hereby indemnifies and holds Landlord harmless from any
liability, cost, obligation, expense or claim of lien in any manner relating to
the installation, placement, removal or financing of any such Alterations,
improvements, fixtures and/or equipment in, on or about the premises.
12
ARTICLE 9
---------
COVENANT AGAINST LIENS
----------------------
Tenant has no authority or power to cause or permit any lien or encumbrance
of any kind whatsoever, whether created by act of Tenant, operation of law or
otherwise, to attach to or be placed upon the Real Property, Building or
Premises, and any and all liens and encumbrances created by Tenant shall attach
to Tenant's interest only. Landlord shall have the right at all times to post
and keep posted on the Premises any notice which it deems necessary for
protection from such liens. Tenant covenants and agrees not to suffer or permit
any lien of mechanics or materialmen or others to be placed against the Real
Property, the Building or the Premises with respect to work or services claimed
to have been performed for or materials claimed to have been furnished to Tenant
or the Premises, and, in case of any such lien attaching or notice of any lien,
Tenant covenants and agrees to cause it to be immediately released and removed
of record. Notwithstanding anything to the contrary set forth in this Lease, in
the event that such lien is not released and removed on or before the date
notice of such lien is delivered by Landlord to Tenant, Landlord, at its sole
option, may immediately take all action necessary to release and remove such
lien, without any duty to investigate the validity thereof, and all sums, costs
and expenses, including reasonable attorneys' fees and costs, incurred by
Landlord in connection with such lien shall be deemed Additional Rent under this
Lease and shall immediately be due and payable by Tenant.
ARTICLE 10
----------
INSURANCE
---------
10.1 Indemnification and Waiver. To the extent not prohibited by law, and
--------------------------
except to the extent caused by the negligence or wilful misconduct of "Landlord
Parties," as that term is defined below, or a breach of the Lease by Landlord
parties, Landlord, its partners, trustees, ancillary trustees and their
respective officers, directors, shareholders, beneficiaries, agents, servants,
employees, and independent contractors (collectively, the "Landlord Parties")
shall not be liable for any damage either to person or property or resulting
from the lose of use thereof, which damage is sustained by Tenant or the "Tenant
Parties" as the term is defined below. To the extent not prohibited by law, and
except to the extent caused by the negligence or wilful misconduct of Tenant
Parties or a breach of the Lease by Tenant Parties, Tenant, its officers,
directors, shareholders, agents, servants, employees, and independent
contractors (collectively, the "Tenant Parties") shall not be liable for any
damage either to person or property or resulting from the loss of use thereof,
which damage is sustained by Landlord or the Landlord Parties. Tenant shall
indemnify, defend, protect, and hold harmless Landlord Parties from any and all
loss, cost, damage, expense and liability (including without limitation court
costs and reasonable attorneys' fees) (collectively, "Claims") incurred in
connection with or arising from any cause in, on or about the Premises or any
acts, omissions or negligence of Tenant Parties, in, on or about the Real
Property, or a breach of this Lease by the Tenant Parties, either prior to,
during, or after the expiration of the Lease Term, provided that the terms of
the foregoing indemnity shall not apply to the negligence, gross negligence or
wilful misconduct of Landlord or the Landlord Parties. Landlord shall
indemnify, defend, protect, and hold harmless Tenant and the Tenant
13
Parties from any and all Claims arising from any act or omission or negligence
of the Landlord Parties in, on or about the Real Property, or a breach of this
Lease by the Landlord Parties, except to the extent caused by the negligence,
gross negligence or wilful misconduct of the Tenant Parties or a breach of this
Lease by the Tenant Parties. Notwithstanding anything to the contrary set forth
in this Lease, either party's agreement to indemnify the other party as set
forth in this Article 10, above, shall be ineffective to the extent the matters
for which such party agreed to indemnify the other party are covered by
insurance required to be carried by the other party pursuant to this lease.
Further, Tenant's agreement to indemnify Landlord and Landlord's agreement to
indemnify Tenant pursuant to this Article 10 are not intended and shall not
relieve any insurance carrier of its obligations under policies required
pursuant to the provisions of this Lease, to the extent such policies cover the
matters subject to the parties' respective indemnification obligations; nor
shall they supersede any inconsistent agreement of the parties set forth in any
other provision of this Lease. Should Landlord or Tenant be named as a
defendant in any suit brought against Landlord or Tenant in connection with or
arising out of an event covered by one of the party's indemnity obligations set
forth above, the indemnifying party shall pay to the other party its costs and
expenses incurred in such suit, including without limitation, its actual
professional fees such as appraisers', accountants' and attorneys' fees. The
provision of this Section 10.1 shall survive the expiration or sooner
------------
termination of this Lease with respect to any claims or liability occurring
prior to such expiration or termination.
10.2 Tenant's Compliance with Landlord's Fire and Casualty Insurance.
---------------------------------------------------------------
Tenant shall, at Tenant's expense, comply as to the Premises with all insurance
company requirements pertaining to the use of the Premises. If Tenant's conduct
or use of the Premises causes any increase in the premium for such insurance
policies, then Tenant shall reimburse Landlord for any such increase. Tenant,
at Tenant's expense, shall comply with all rules, orders, regulations or
requirements of the American Insurance Association (formerly the National Board
of Fire Underwriters) and with any similar body.
10.3 Tenant's Insurance. Tenant shall maintain the following coverages in
-------------------
the following amounts.
10.3.1 Commercial General Liability Insurance covering the insured
against claims of bodily injury, personal injury and property damage arising out
of Tenant's operations, assumed liabilities or use of the Premises, including a
Broad Form Commercial General Liability endorsement covering the insuring
provisions of this Lease and the performance by Tenant of the indemnity
agreements set forth in Section 10.1 of this Lease, for limits of liability not
less than:
Bodily Injury and $2,000,000 each occurrence
Property Damage Liability $1,000,000 annual aggregate
Personal Injury Liability $2,000,000 each occurrence
$1,000,000 annual aggregate
0% Insured's participation
10.3.2 Physical Damage Insurance covering (i) all office furniture,
trade fixtures, office equipment, merchandise and all other items of Tenant's
property on the Premises
14
installed by, for, or at the expense of Tenant, (ii) the Tenant Improvements,
including any Tenant Improvements which Landlord permits to be installed above
the ceiling of the Premises or below the floor of the Premises, and (iii) all
other improvements, alterations and additions to the Premises, including any
improvements, alterations or additions installed at Tenant's request above the
ceiling of the Premises or below the floor of the Premises. Such insurance
shall be written on an "all risks" of physical loss or damage basis, for the
full replacement cost value new without deduction for depreciation of the
covered items and in amounts that meet any co-insurance clauses of the policies
of insurance and shall include a vandalism and malicious mischief endorsement,
sprinkler leakage coverage and earthquake sprinkler leakage coverage.
10.3.3 Form of Policies. The minimum limits of policies of insurance
----------------
required of Tenant under this Lease shall in no event limit the liability of
Tenant under this Lease. Such insurance shall (i) name Landlord, and any other
party it so specifies, as an additional insured; (ii) specifically cover the
liability assumed by Tenant under this Lease, including, but not limited to,
Tenant's obligations under Section 10.1 of this Lease; (iii) be issued by an
insurance company having a rating of not less than A-X in Best's Insurance Guide
or which is otherwise acceptable to Landlord and licensed to do business in the
state in which the Building is located; (iv) be primary insurance as to all
claims thereunder and provide that any insurance carried by Landlord is excess
and is non-contributing with any insurance requirement of Tenant; (v) provide
that said insurance shall not be canceled or coverage changed unless thirty (30)
days' prior written notice shall have been given to Landlord and any mortgagee
or ground or underlying lessor of Landlord; and (vi) contain a cross-liability
endorsement or severability of interest clause acceptable to Landlord. Tenant
shall deliver said policy or policies or certificates thereof to Landlord on or
before the Lease Commencement Date and at least thirty (30) days before the
expiration dates thereof. In the event Tenant shall fail to procure such
insurance, or to deliver such policies or certificate, Landlord may, at its
option, procure such policies for the account of Tenant, and the cost thereof
shall be paid to Landlord as Additional Rent within five (5) days after delivery
to Tenant of bills therefor.
10.4 Subrogation. Landlord and Tenant agree to have their respective
-----------
insurance companies issuing property damage insurance waive any rights of
subrogation that such companies may have against Landlord or Tenant as the case
may be, so long as the insurance carried by Landlord and Tenant, respectively,
is not invalidated thereby. As long as such waivers of subrogation are
contained in their respective insurance policies, Landlord and Tenant hereby
waive any right that either may have against the other on account of any loss or
damage to their respective property to the extent such loss or damage is
insurable under policies of insurance for fire and all risk coverage, theft,
public liability, or other similar insurance.
10.5 Additional Insurance Obligations. Tenant shall carry and maintain
--------------------------------
during the entire Lease Term, at Tenant's sole cost and expense, increased
amounts of the insurance required to be carried by Tenant pursuant to this
Article 10, and such other reasonable types of insurance coverage and in such
reasonable amounts covering the Premises and Tenant's operations therein, as may
be reasonably requested by Landlord.
ARTICLE 11
----------
15
DAMAGE AND DESTRUCTION
----------------------
11.1 Repair of Damage to Premises by Landlord. Tenant shall promptly
----------------------------------------
notify Landlord of any damage to the Premises resulting from fire or any other
casualty. If the Premises or any common areas of the Building serving or
providing access to the Premises shall be damaged by fire or other casualty,
Landlord shall promptly and diligently, subject to reasonable delays for
insurance adjustment or other matters beyond Landlord's reasonable control, and
subject to all other terms of this Article 11, restore the Base, Shell, and Core
of the Premises and such common areas. Such restoration shall be to
substantially the same condition of the Base, Shell, and Core of the Premises
and common areas prior to the casualty, except for modifications required by
zoning and building codes and other laws or by the holder of a mortgage on the
Building, or the lessor of a ground or underlying lease with respect to the Real
Property and/or the Building, or any other modifications to the common areas
deemed desirable by Landlord, provided access to the Premises and any common
restrooms serving the Premises shall not be materially impaired.
Notwithstanding any other provision of this Lease, upon the occurrence of any
damage to the Premises, Tenant shall assign to Landlord (or to any party
designated by Landlord) all insurance proceeds payable to Tenant under Tenant's
insurance required under Section 10.3 of this Lease, and Landlord shall repair
any injury or damage to the Tenant Improvements installed in the Premises and
shall return such Tenant Improvements to their original condition; provided that
if the cost of such repair by Landlord exceeds the amount of insurance proceeds
received by Landlord from Tenant's insurance carrier, as assigned by Tenant, the
cost of such repairs shall be paid by Tenant to Landlord prior to Landlord's
repair of the damage. In connection with such repairs and replacements, Tenant
shall, prior to the commencement of construction, submit to Landlord, for
Landlord's review and approval, all plans, specifications and working drawings
relating thereto, and Landlord shall select the contractors to perform such
improvement work. Such submittal of plans and construction of improvements
shall be performed in substantial compliance with the terms of the Tenant Work
Letter as though such construction of improvements were the initial construction
of the Tenant Improvements. Landlord shall not be liable for any inconvenience
or annoyance to Tenant or its visitors, or injury to Tenant's business resulting
in any way from such damage or the repair thereof, provided however, that if
such fire or other casualty shall have damaged the Premises or common areas
necessary to Tenant's occupancy, and if such damage is not the result of the
negligence or wilful misconduct of Tenant or Tenant's employees, contractors,
licensees, or invitees, Landlord shall allow Tenant a proportionate abatement of
Rent to the extent Landlord is reimbursed from the proceeds of rental
interruption insurance purchased by Landlord as part of Operating Expenses,
during the time and to the extent the Premises are unfit for occupancy for the
purposes permitted under this Lease, and not occupied by Tenant as a result
thereof.
11.2 Landlord's Option to Repair. Notwithstanding the terms of Section
---------------------------
11.1 of this Lease, Landlord may elect not to rebuild and/or restore the
Premises and/or Building and instead terminate this Lease by notifying Tenant in
writing of such termination within sixty (60) days after the date of damage,
such notice to include a termination date giving Tenant ninety (90) days to
vacate the Premises, but Landlord may so elect only if the Building shall be
damaged by fire or other casualty or cause, whether or not the Premises are
affected, and one or more of the following conditions is present: (i) repairs
cannot reasonably be completed within one hundred twenty (120) days of the date
of damage (when such repairs are made without the payment of
16
overtime or other premiums); (ii) 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 the insurance proceeds or any portion thereof be
used to retire the mortgage debt, or shall terminate the ground or underlying
lease, as the case may be; or (iii) the damage is not fully covered, except for
deductible amounts, by Landlord's insurance policies. In addition, in the event
that the Premises or the Building is destroyed or damaged to any substantial
extent during the last twenty-four (24) months of the Lease Term, then
notwithstanding anything contained in this Article 11, Landlord shall have the
option to terminate this Lease by giving written notice to Tenant of the
exercise of such option within thirty (30) days after such damage or
destruction, in which event this Lease shall cease and terminate as of the date
of such notice. Upon any such termination of this Lease pursuant to this
Section 11.2, Tenant shall pay the Base Rent and Additional Rent properly
apportioned up to such date of termination, and both parties hereto shall
thereafter be freed and discharged of all further obligations hereunder, except
as provided for in provisions of this Lease which by their terms survive the
expiration or earlier termination of the Lease Tenn.
11.3 Waiver of Statutory Provisions. The provisions of this Lease,
------------------------------
including this Article 11, constitute an express agreement between Landlord and
Tenant with respect to any and all damage to, or destruction of, all or any part
of the Premises, the Building or any other portion of the Real Property, and any
statute or regulation of the state in which the Building is located, including,
without limitation, Sections 1932(2) and 1933(4) of the California Civil Code,
with respect to any rights or obligations concerning damage or destruction in
the absence of an express agreement between the parties, and any other statute
or regulation, now or hereafter in effect, shall have no application to this
Lease or any damage or destruction to all or any part of the Premises, the
Building or any other portion of the Real Property.
ARTICLE 12
----------
NONWAIVER
---------
No waiver of any provision of this Lease shall be implied by any failure of
Landlord to enforce any remedy on account of the violation of such provision,
even if such violation shall continue or be repeated subsequently, any waiver by
Landlord of any provision of this Lease may only be in writing, and no express
waiver shall affect any provision other than the one specified in such waiver
and that one only for the time and in the manner specifically stated. No
receipt of monies by Landlord from Tenant after the termination of this Lease
shall in any way alter the length of the Lease Term or of Tenant's right of
possession hereunder or after the giving of any notice shall reinstate, continue
or extend the Lease Term or affect any notice given Tenant prior to the receipt
of such monies, it being agreed that after the service of notice or the
commencement of a suit or after final judgment for possession of the Premises,
Landlord may receive and collect any Rent due, and the payment of said Rent
shall not waive or affect said notice, suit or judgment.
ARTICLE 13
----------
CONDEMNATION
------------
17
13.1 Permanent Taking. If the whole or any part of the Premises or
----------------
Building shall be taken by power of eminent domain or condemned by any competent
authority for any public or quasi-public use or purpose, or if any adjacent
property or street shall be so taken or condemned, or reconfigured or vacated by
such authority in such manner as to require the use, reconstruction or
remodeling of any part of the Premises or Building, or if Landlord shall grant a
deed or other instrument in lieu of such taking by eminent domain or
condemnation, Landlord shall have the option to terminate this Lease upon ninety
(90) days' notice, provided such notice is given no later than one hundred
eighty (180) days after the date of such taking, condemnation, reconfiguration,
vacation, deed or other instrument. If more than twenty-five percent (25%) of
the rentable square feet of the Premises is taken, or if access to the Premises
is substantially impaired, Tenant shall have the option to terminate this Lease
upon ninety (90) days' notice, provided such notice is given no later than one
hundred eighty (180) days after the date of such taking. Landlord shall be
entitled to receive the entire award or payment in connection therewith, except
that Tenant shall have the right to file any separate claim available to Tenant
for any taking of Tenant's property and such claim is payable separately to
Tenant. All Rent shall be apportioned as of the date of such termination, or
the date of such taking, whichever shall first occur. If any part of the
Premises shall be taken, and this Lease shall not be so terminated, the Rent
shall be proportionately abated. Tenant hereby waives any and all rights it
might otherwise have pursuant to Section 1265.130 of The California Code of
Civil Procedure.
13.2 Temporary Taking. Notwithstanding anything to the contrary contained
----------------
in this Article 13, in the event of a temporary taking of all or any portion of
the Premises for a period of one hundred and eighty (180) days or less, then
this Lease shall not terminate but the Base Rent and the Additional Rent shall
be abated for the period of such taking in proportion to the ratio that the
amount of rentable square feet of the Premises taken bears to the total rentable
square feet of the Premises. Landlord shall be entitled to receive the entire
award made in connection with any such temporary taking.
ARTICLE 14
----------
ASSIGNMENT AND SUBLETTING
-------------------------
14.1 Transfers. Tenant shall not, without the prior written consent of
---------
Landlord, assign, mortgage, pledge, hypothecate, encumber, or permit any lien to
attach to, or otherwise transfer, this Lease or any interest hereunder, permit
any assignment or other such foregoing transfer of this Lease or any interest
hereunder by operation of law, sublet the Premises or any part thereof, or
permit the use of the Premises by any persons other than Tenant and its
employees (all of the foregoing are hereinafter sometimes referred to
collectively as "Transfers" and any person to whom any Transfer is made or
sought to be made is hereinafter sometimes referred to as a "Transferee"). If
Tenant shall desire Landlord's consent to any Transfer, Tenant shall notify
Landlord in writing, which notice (the "Transfer Notice") shall include (i) the
proposed effective date of the Transfer, which shall not be less than forty-five
(45) days nor more than one hundred eighty (180) days after the date of delivery
of the Transfer Notice, (ii) a description of the portion of the Premises to be
transferred (the "Subject Space"), (iii) all of the terms of the proposed
Transfer and the consideration therefor, including a calculation of the
"Transfer Premium," as that term is defined in Section 14.3 below, in connection
with such Transfer, the name and
18
address of the proposed Transferee, and a copy of all existing and/or proposed
documentation pertaining to the proposed Transfer, including all existing
operative documents to be executed to evidence such Transfer or the agreements
incidental or related to such Transfer, and (iv) current financial statements of
the proposed Transferee certified by an officer, partner or owner thereof, and
any other information required by Landlord, which will enable Landlord to
determine the financial responsibility, character, and reputation of the
proposed Transferee, nature of such Transferee's business and proposed use of
the Subject Space, and such other information as Landlord may reasonably
require. Any Transfer made without Landlord's prior written consent shall, at
Landlord's option, be null, void and of no effect, and shall, at Landlord's
option, constitute a default by Tenant under this Lease. Whether or not
Landlord shall grant consent, Tenant shall pay Landlord's review and processing
fees, as well as any reasonable legal fees incurred by Landlord, within thirty
(30) days after written request by Landlord.
14.2 Landlord's Consent. Landlord shall not unreasonably withhold its
------------------
consent to any proposed Transfer of the Subject Space to the Transferee on the
terms specified in the Transfer Notice. The parties hereby agree that it shall
be reasonable under this Lease and under any applicable law for Landlord to
withhold consent to any proposed Transfer where one or more of the following
apply, without limitation as to other reasonable grounds for withholding
consent:
14.2.1 The Transferee is of a character or reputation or engaged in a
business which is not consistent with the quality of the Building, or would be a
significantly less prestigious occupant of the Building than Tenant;
14.2.2 The Transferee intends to use the Subject Space for purposes
which are not permitted under this Lease;
14.2.3 The Transferee is either a governmental agency or
instrumentality thereof;
14.2.4 The Transfer will result in more than a reasonable and safe
number of occupants per floor within the Subject Space;
14.2.5 The Transferee is not a party of reasonable financial worth
and/or financial stability in light of the responsibilities involved under the
Lease on the date consent is requested;
14.2.6 The proposed Transfer would cause Landlord to be in violation
of another lease or agreement to which Landlord is a party, or would give an
occupant of the Building a right to cancel its lease;
14.2.7 The terms of the proposed Transfer will allow the Transferee
to exercise a right of renewal, right of expansion, right of first offer, or
other similar right held by Tenant (or will allow the Transferee to occupy space
leased by Tenant pursuant to any such right);
14.2.8 Either the proposed Transferee, or any person or entity which
directly or indirectly, controls, is controlled by, or is under common control
with, the proposed Transferee, (i) occupies space in the Building at the time of
the request for consent, (ii) is negotiating with
19
Landlord to lease space in the Building at such time, or (iii) has negotiated
with Landlord during the twelve (12)-month period immediately preceding the
Transfer Notice; or
If Landlord consents to any Transfer pursuant to the terms of this Section
14.2 (and does not exercise any recapture rights Landlord may have under Section
14.4 of this Lease), Tenant may within six (6) months after Landlord's consent,
but not later than the expiration of said six-month period, enter into such
Transfer of the Premises or portion thereof, upon substantially the same terms
and conditions as are set forth in the Transfer Notice furnished by Tenant to
Landlord pursuant to Section 14.1 of this Lease, provided that if there are any
changes in the terms and conditions from those specified in the Transfer Notice
(i) such that Landlord would initially have been entitled to refuse its consent
to such Transfer under this Section 14.2, or (ii) which would cause the proposed
Transfer to be more favorable to the Transferee than the terms set forth in
Tenant's original Transfer Notice, Tenant shall again submit the Transfer to
Landlord for its approval and other action under this Article 14 (including
Landlord's right of recapture, if any, under Section 14.4 of this Lease).
14.3 Transfer Premium. If Landlord consents to a Transfer, as a condition
----------------
thereto which the parties hereby agree is reasonable, Tenant shall pay to
Landlord any "Transfer Premium," as that term is defined in this Section 14.3,
received by Tenant from such Transferee. "Transfer Premium" shall mean all
rent, additional rent or other consideration payable by such Transferee in
excess of the Rent and Additional Rent payable by Tenant under this Lease on a
per rentable square foot basis if less than all of the Premises is transferred,
after deducting the reasonable expenses incurred by Tenant for (i) any changes,
alterations and improvements to the Premises in connection with the Transfer,
and (ii) any brokerage commissions in connection with the Transfer
(collectively, the "Subleasing Costs"). "Transfer Premium" shall also include,
but not be limited to, key money and bonus money paid by Transferee to Tenant in
connection with such Transfer, and any payment in excess of fair market value
for services rendered by Tenant to Transferee or for assets, fixtures,
inventory, equipment or furniture transferred by Tenant to Transferee in
connection with such Transfer.
14.4 Landlord's Option as to Subject Space. Notwithstanding anything to
-------------------------------------
the contrary contained in this Article 14, Landlord shall have the option, by
giving written notice to Tenant within thirty (30) days after receipt of any
Transfer Notice, to (i) recapture the Subject Space, or (ii) take an assignment
or sublease of the Subject Space from Tenant. Such recapture, or sublease or
assignment notice shall cancel and terminate this Lease, or create a sublease or
assignment, as the case may be, with respect to the Subject Space as of the date
stated in the Transfer Notice as the effective date of the proposed Transfer
until the last day of the term of the Transfer as set forth in the Transfer
Notice. In the event of a recapture by Landlord, if this Lease shall be
canceled with respect to less than the entire Premises, the Rent reserved herein
shall be prorated on the basis of the number of rentable square feet retained by
Tenant in proportion to the number of rentable square feet contained in the
Premises, and this Lease as so amended shall continue thereafter in full force
and effect, and upon request of either party, the parties shall execute written
confirmation of the same. If the Subject Space shall be assigned or subleased
by Tenant to Landlord, the rent for the Subject Space payable by Landlord to
Tenant shall be the lesser of (i) the effective Base Rent plus the Additional
Rent payable by Tenant under this Lease for the Subject Space on a prorated
basis based upon the number of rentable square feet in the
20
Subject Space, or (ii) the effective rent (taking into account all concessions
made by Tenant to the Transferee) set forth in the Transfer Notice, and all
other provisions of this Lease shall remain in full force and effect, and upon
request of either party, the parties shall execute a written confirmation of the
same. If Landlord declines, or fails to elect in a timely manner to recapture,
sublease or take an assignment of the Subject Space under this Section 14.4,
then, provided Landlord has consented to the proposed Transfer, Tenant shall be
entitled to proceed to transfer the Subject Space to the proposed Transferee,
subject to provisions of the last paragraph of Section 14.2 of this Lease.
14.5 Effect of Transfer. If Landlord consents to a Transfer, (i) the
------------------
terms and conditions of this Lease shall in no way be deemed to have been waived
or modified, (ii) such consent shall not be deemed consent to any further
Transfer by either Tenant or a Transferee, (iii) Tenant shall deliver to
Landlord, promptly after execution, an original executed copy of all
documentation pertaining to the Transfer in form reasonably acceptable to
Landlord, (iv) Tenant shall furnish upon Landlord's request a complete
statement, certified by an independent certified public accountant, or Tenant's
chief financial officer, setting forth in detail the computation of any Transfer
Premium Tenant has derived and shall derive from such Transfer, and (v) no
Transfer relating to this Lease or agreement entered into with respect thereto,
whether with or without Landlord's consent, shall relieve Tenant or any
guarantor of the Lease from liability under this Lease. Landlord or its
authorized representatives shall have the right at all reasonable times to audit
the books, records and papers of Tenant relating to any Transfer, and shall have
the right to make copies thereof. If the Transfer Premium respecting any
Transfer shall be found understated, Tenant shall, within thirty (30) days after
demand, pay the deficiency and Landlord's costs of such audit, and if
understated by more than ten percent (10%), Landlord shall have the right to
cancel this Lease upon thirty (30) days' notice to Tenant.
14.6 Additional Transfers. For purposes of this Lease, the term
--------------------
"Transfer" shall also include (i) if Tenant is a partnership, the withdrawal or
change, voluntary, involuntary or by operation of law, of twenty-five percent
(25%) or more of the partners, or transfer of twenty-five percent or more of
partnership interests, within a twelve (12)-month period, or the dissolution of
the partnership without immediate reconstitution thereof, and (ii) if Tenant is
a closely held corporation (i.e., whose stock is not publicly held and not
traded through an exchange or over the counter), (A) the dissolution, merger,
consolidation or other reorganization of Tenant, the sale or other transfer of
more than an aggregate of twenty-five percent (25%) of the voting shares of
Tenant (other than to immediate family members by reason of gift or death),
within a twelve (12)-month period, or (C) the sale, mortgage, hypothecation or
pledge of more than an aggregate of twenty-five percent (25%) of the value of
the unencumbered assets of Tenant within a twelve (12) month period.
ARTICLE 15
----------
SURRENDER OF PREMISES; OWNERSHIP AND REMOVAL OF TRADE FIXTURES
--------------------------------------------------------------
15.1 Surrender of Premises. No act or thing done by Landlord or any agent
---------------------
or employee of Landlord during the Lease Term shall be deemed to constitute an
acceptance by Landlord of a surrender of the Premises unless such intent is
specifically acknowledged in a
21
writing signed by Landlord. The delivery of keys to the Premises to Landlord or
any agent or employee of Landlord shall not constitute a surrender of the
Premises or effect a termination of this Lease, whether or not the keys are
thereafter retained by Landlord, and notwithstanding such delivery Tenant shall
be entitled to the return of such keys at any reasonable time upon request until
this Lease shall have been properly terminated. The voluntary or other
surrender of this Lease by Tenant, whether accepted by Landlord or not, or a
mutual termination hereof, shall not work a merger, and at the option of
Landlord shall operate as an assignment to Landlord of all subleases or
subtenancies affecting the Premises.
15.2 Removal of Tenant Property by Tenant. Upon the expiration of the
------------------------------------
Lease Term, or upon any earlier termination of this Lease, Tenant shall, subject
to the provisions of this Article 15, quit and surrender possession of the
Premises to Landlord in as good order and condition as when Tenant took
possession and as thereafter improved by Landlord and/or Tenant, reasonable wear
and tear and repairs which are specifically made the responsibility of Landlord
hereunder excepted. Upon such expiration or termination, Tenant shall, without
expense to Landlord, remove or cause to be removed from the Premises all debris
and rubbish, and such items of furniture, equipment, free-standing cabinet work,
and other articles of personal property owned by Tenant or installed or placed
by Tenant at its expense in the Premises, and such similar articles of any other
persons claiming under Tenant, as Landlord may, in its sole discretion, require
to be removed, and Tenant shall repair at its own expense all damage to the
Premises and Building resulting from such removal.
ARTICLE 16
----------
HOLDING OVER
------------
If Tenant holds over after the expiration of the Lease Term hereof, with or
without the express or implied consent of Landlord, such tenancy shall be from
month-to-month only, and shall not constitute a renewal hereof or an extension
for any further term, and in such case Base Rent shall be payable at a monthly
rate equal to one hundred twenty-five percent (125%) of the Base Rent applicable
during the last rental period of the Lease Term under this Lease. Such month-
to-month tenancy shall be subject to every other term, covenant and agreement
contained herein. Nothing contained in this Article 16 shall be construed as
consent by Landlord to any holding over by Tenant, and Landlord expressly
reserves the right to require Tenant to surrender possession of the Premises to
Landlord as provided in this Lease upon the expiration or other termination of
this Lease. The provisions of this Article 16 shall not be deemed to limit or
constitute a waiver of any other rights or remedies of Landlord provided herein
or at law. If Tenant fails to surrender the Premises upon the termination or
expiration of this Lease, in addition to any other liabilities to Landlord
accruing therefrom, Tenant shall protect, defend, indemnify and hold Landlord
harmless from all loss, costs (including reasonable attorneys' fees) and
liability resulting from such failure, including, without limiting the
generality of the foregoing, any claims made by any succeeding tenant founded
upon such failure to surrender, and any lost profits to Landlord resulting
therefrom.
ARTICLE 17
----------
22
ESTOPPEL CERTIFICATES
---------------------
Within ten (10) days following a request in writing by Landlord, Tenant
shall execute and deliver to Landlord an estoppel certificate, which, as
submitted by Landlord, shall be substantially in the form of Exhibit E, attached
hereto, (or such other form as may be required by any prospective mortgagee or
purchaser of the Project, or any portion thereof), indicating therein any
exceptions thereto that may exist at that time, and shall also contain any other
information reasonably requested by Landlord or Landlord's mortgagee or
prospective mortgagee, Tenant shall execute and deliver whatever other
instruments may be reasonably required for such purposes. Failure of Tenant to
timely execute and deliver such estoppel certificate or other instruments shall
constitute an acceptance of the Premises and an acknowledgment by Tenant that
statements included in the estoppel certificate are true and correct, without
exception.
ARTICLE 18
----------
SUBORDINATION
-------------
This Lease is subject and subordinate to all present and future ground or
underlying leases of the Real Property and to the lien of any mortgages or trust
deeds, now or hereafter in force against the Real Property and the Building, if
any, and to all renewals, extensions, modifications, consolidations and
replacements thereof, and to all advances made or hereafter to be made upon the
security of such mortgages or trust deeds, unless the holders of such mortgages
of trust deeds, or the lessors under such ground lease or underlying leases,
require in writing that this Lease be superior thereto. Tenant covenants and
agrees in the event any proceeding are brought for the foreclosure of any such
mortgage, or if any ground or underlying lease is terminated, to attorn, without
any deductions or set-offs whatsoever, to the purchaser upon any such
foreclosure sale, or to the lessor of such ground or underlying lease, as the
case may be, if so requested to do so by such purchaser or lessor, and to
recognize such purchaser or lessor as the lessor under this Lease. Tenant
shall, within five (5) days of request by Landlord, execute such further
instruments or assurances as Landlord may reasonably deem necessary to evidence
or confirm the subordination or superiority of this Lease to any such mortgages,
trust deeds, ground leases or underlying leases. Tenant hereby irrevocably
authorizes Landlord to execute and deliver in the name of Tenant any such
instrument or instruments if Tenant fails to do so, provided that such
authorization shall in no way relieve Tenant from the obligation of executing
such instruments of subordination or superiority. Tenant waives the provisions
of any current or future statute, rule or law which may give or purport to give
Tenant any right or election to terminate or otherwise adversely affect this
Lease and the obligations of the Tenant hereunder in the event of any
foreclosure proceeding or sale.
ARTICLE 19
----------
DEFAULTS; REMEDIES
------------------
19.1 Events of Default. The occurrence of any of the following shall
-----------------
constitute a default of this Lease by Tenant:
23
19.1.1 Any failure by Tenant to pay any Rent or any other charge
required to be paid under this Lease, or any part thereof, when due; or
19.1.2 Any failure by Tenant to observe or perform any other
provision, covenant or condition of this Lease to be observed or performed by
Tenant where such failure continues for fifteen (15) days after written notice
thereof from Landlord to Tenant; provided however, that any such notice shall be
in lieu of, and not in addition to, any notice required under California Code of
Civil Procedure Section 1161 or any similar or successor law; and provided
further that if the nature of such default is such that the same cannot
reasonably be cured within a fifteen (15)-day period, Tenant shall not be deemed
to be in default if it diligently commences such cure within such period and
thereafter diligently proceeds to rectify and cure said default as soon as
possible; or
19.1.3 Abandonment or vacation of the Premises by Tenant.
Abandonment is herein defined to include, but is not limited to, any absence by
Tenant from the Premises for three (3) business days or longer while in default
of any provision of this Lease.
19.2 Remedies Upon Default. Upon the occurrence of any event of default
---------------------
by Tenant, Landlord shall have, in addition to any other remedies available to
Landlord at law or in equity, the option to pursue any one or more of the
following remedies, each and all of which shall be cumulative and nonexclusive,
without any notice or demand whatsoever.
19.2.1 Terminate this Lease, in which event Tenant shall
immediately surrender the Premises to Landlord, and if Tenant fails to do so,
Landlord may, without prejudice to any other remedy which it may have for
possession or arrearages in rent, enter upon and take possession of the Premises
and expel or remove Tenant and any other person who may be occupying the
Premises or any part thereof, without being liable for prosecution or any claim
or damages therefor; and Landlord may recover from Tenant the following:
(i) The worth at the time of award of any unpaid rent
which has been earned at the time of such termination; plus
(ii) The worth at the time of award of the amount by which
the unpaid rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided; plus
(iii) The worth at the time of award of the amount by which
the unpaid rent for the balance of the Lease Term after the time of award
exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided; plus
(iv) Any other amount necessary to compensate Landlord for
all the detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which in the ordinary course of things would be
likely to result therefrom, specifically including but not limited to, brokerage
commissions and advertising expenses incurred, expenses of remodeling the
Premises or any portion thereof for a new tenant, whether for the same or a
different use, and any special concessions made to obtain a new tenant; and
24
(v) At Landlord's election, such other amounts in
addition to or in lieu of the foregoing as may be permitted from time to time by
applicable law.
The term "rent" as used in this Section 19.2 shall be deemed to be and to mean
all sums of every nature required to be paid by Tenant pursuant to the terms of
this Lease, whether to Landlord or to others. As used in Paragraphs 19.2.1(i)
and (ii), above, the "worth at the time of award" shall be computed by allowing
interest at the rate set forth in Article 25 of this Lease, but in no case
greater than the maximum amount of such interest permitted by law. As used in
Paragraph 19.2.1(iii) above, the "worth at the time of award" shall be computed
by discounting such amount at the discount rate of the Federal Reserve Bank of
San Francisco at the time of award plus one percent (1%).
19.2.2 Landlord shall have the remedy described in California Civil
Code Section 1951.4 (lessor may continue lease in effect after lessee's breach
and abandonment and recover rent as it becomes due, if lessee has the right to
sublet or assign, subject only to reasonable limitations). Accordingly, if
Landlord does not elect to terminate this Lease on account of any default by
Tenant, Landlord may, from time to time, without terminating this Lease, enforce
all of its rights and remedies under this Lease, including the right to recover
all rent as it becomes due.
19.3 Sublessees of Tenant. Whether or not Landlord elects to terminate
--------------------
this Lease on account of any default by Tenant as set forth in this Article 19,
Landlord shall have the right to terminate any and all subleases, licenses,
concessions or other consensual arrangements for possession entered into by
Tenant and affecting the Premises or may, in Landlord's sole discretion, succeed
to Tenant's interest in such subleases, licenses, concessions or arrangements.
In the event of Landlord's election to succeed to Tenant's interest in any such
subleases, licenses, concessions or arrangements, Tenant shall, as of the date
of notice by Landlord of such election, have no further right to or interest in
the rent or other consideration receivable thereunder.
19.4 Form of Payment After Default. Following the occurrence of an event
-----------------------------
of default by Tenant, Landlord shall have the right to require that any or all
subsequent amounts paid by Tenant to Landlord hereunder, whether in the cure of
the default in question or otherwise, be paid in the form of cash, money order,
cashier's or certified check drawn on an institution acceptable to Landlord. or
by other means approved by Landlord, notwithstanding any prior practice of
accepting payments in any different form.
19.5 Waiver of Default. No waiver by Landlord or Tenant of any violation
-----------------
or breach of any of the terms, provisions and covenants herein contained shall
be deemed or construed to constitute a waiver of any other or later violation or
breach of the same or any other of the terms, provisions, and covenants herein
contained. Forbearance by Landlord in enforcement of one or more of the
remedies herein provided upon an event of default shall not be deemed or
construed to constitute a waiver of such default. The acceptance of any Rent
hereunder by Landlord following the occurrence of any default, whether or not
known to Landlord, shall not be deemed a waiver of any such default, except only
a default in the payment of the Rent so accepted.
25
19.6 Efforts to Relet. For the purposes of this Article 19, Tenant's
----------------
right to possession shall not be deemed to have been terminated by efforts of
Landlord to relet the Premises, by its acts of maintenance or preservation with
respect to the Premises, or by appointment of a receiver to protect Landlord's
interests hereunder. The foregoing enumeration is not exhaustive, but merely
illustrative of acts which may be performed by Landlord without terminating
Tenant's right to possession.
ARTICLE 20
----------
COVENANT OF QUIET ENJOYMENT
---------------------------
Landlord covenants that Tenant, on paying the Rent, charges for services
and other payments herein reserved and on keeping, observing and performing all
the other terms, covenants, conditions, provisions and agreements herein
contained on the part of Tenant to be kept, observed and performed, shall,
during the Lease Term, peaceably and quietly have, hold and enjoy the Premises
subject to the terms, covenants, conditions, provisions and agreements hereof
without interference by any persons lawfully claiming by or through Landlord.
The foregoing covenant is in lieu of any other covenant express or implied.
ARTICLE 21
----------
SECURITY DEPOSIT
----------------
Concurrent with Tenant's execution of this Lease, Tenant shall deposit with
Landlord a security deposit (the "Security Deposit") in the amount set forth in
Section II of the Summary. The Security Deposit shall be held by Landlord as
security for the faithful performance by Tenant of all the terms, covenants, and
conditions of this Lease to be kept and performed by Tenant during the Lease
Term. If Tenant defaults with respect to any provisions of this Lease,
including, but not limited to, the provisions relating to the payment of Rent,
Landlord may, but shall not be required to, use, apply or retain all or any part
of the Security Deposit for the payment of any Rent or any other sum in default,
or for the payment of any amount that Landlord may spend or become obligated to
spend by reason of Tenant's default, or to compensate Landlord for any other
loss or damage that Landlord may suffer by reason of Tenant's default. If any
portion of the Security Deposit is so used or applied, Tenant shall, within five
(5) days after written demand therefor, deposit cash with Landlord in an amount
sufficient to restore the Security Deposit to its original amount, and Tenant's
failure to do so shall be a default under this Lease. If Tenant shall fully and
faithfully perform every provision of this Lease to be performed by it, the
Security Deposit, or any balance thereof, shall be returned to Tenant, or, at
Landlord's option, to the last assignee of Tenant's interest hereunder, within
sixty (60) days following the expiration of the Lease Term. Tenant shall not be
entitled to any interest on the Security Deposit.
ARTICLE 22
----------
SUBSTITUTION OF OTHER PREMISES
------------------------------
Landlord shall have the right to move Tenant to other space in the Building
comparable to the Premises, and all terms hereof shall apply to the new space
with equal force. In such event,
26
Landlord shall give Tenant sixty (60) days' prior notice, shall provide Tenant,
at Landlord's sole cost and expense, with tenant improvements at lease equal in
quality to those in the Premises and comparable elevator identity signage, and
shall move Tenant's effects to the new space at Landlord's sole cost and expense
at such time and in such manner as to inconvenience Tenant as little as
practicable. Landlord agrees that any such relocation shall be to space with
substantially similar views as the current Premises. In addition, Landlord
shall pay for Tenant's reasonable costs to reprint Tenant's stationary
containing its new premises' address and to reconnect Tenant's telephone and
computer systems. In the event that the rentable square footage of the new
space varies from the square footage (in the Premises, the Base Rent and
Tenant's Share shall be equitably adjusted. Simultaneously with such relocation
of the Premises, the parties shall immediately execute an amendment to this
Lease stating the relocation of the Premises. In the event Tenant chooses not
to accept such relocation, Tenant may, at Tenant's sole discretion terminate
this Lease by providing notice in writing to Landlord within ten (10) business
days from receipt of initial notice from Landlord. Tenant shall vacate Premises
within ninety (90) days of receipt of initial notice from the Landlord.
ARTICLE 23
----------
SIGNS
-----
23.1 In General. Tenant shall be entitled, at Landlord's sole cost and
----------
expense, to identification signage outside of Tenant's Premises on the floor on
which Tenant's Premises are located. The location, quality, design, style,
lighting and size of such signage shall be consistent with the Landlord's
Building standard signage program and shall be subject to Landlord's prior
written approval, in its sole discretion. Upon the expiration or earlier
termination of this Lease, Tenant shall be responsible, at its sole cost and
expense, for the removal of such signage and the repair of all damage to the
Building caused by such removal.
23.2 Building Directory. Tenant shall be entitled to one (1) line on the
------------------
Building directory to display Tenant's name and location in the Building [MUST
BE CONFIRMED].
23.3 Prohibited Signage and Other Items. Any signs, notices, logos,
----------------------------------
pictures, names or advertisements which are installed and that have not been
individually approved by Landlord may be removed without notice by Landlord at
the sole expense of Tenant. Tenant may not install any signs on the exterior or
roof of the Building or the common areas of the Building or the Real Property.
Any signs, window coverings, or blinds (even if the same are located behind the
Landlord approved window coverings for the Building), or other items visible
from the exterior of the Premises or Building are subject to the prior approval
of Landlord, in its sole discretion.
ARTICLE 24
----------
COMPLIANCE WITH LAW
-------------------
Tenant shall not do anything or suffer anything to be done in or about the
Premises which will in any way conflict with any law, statute, ordinance or
other governmental rule, regulation or
27
requirement now in force or which may hereafter be enacted or promulgated. At
its sole cost and expense, Tenant shall promptly comply with all such
governmental measures, other than the making of structural changes or changes to
the Building's life safety system. Should any standard or regulation now or
hereafter be imposed on Landlord or Tenant by a state, federal or local
governmental body charged with the establishment, regulation and enforcement of
occupational, health or safety standards for employers, employees, landlords or
tenants, then Tenant agrees, at its sole cost and expense, to comply promptly
with such standards or regulations. The judgment of any court of competent
jurisdiction or the admission of Tenant in any judicial action, regardless of
whether Landlord is a party thereto, that Tenant has violated any of said
governmental measures, shall be conclusive of that fact as between Landlord and
Tenant.
ARTICLE 25
----------
LATE CHARGES
------------
If any installment of Rent or any other sum due from Tenant shall not be
received by Landlord or Landlord's designee within five (5) days after said
amount is due, then Tenant shall pay to Landlord a late charge equal to five
percent (5%) of the amount due plus any attorneys' fees incurred by Landlord by
reason of Tenant's failure to pay Rent and/or other charges when due hereunder.
The late charge shall be deemed Additional Rent and the right to require it
shall be in addition to all of Landlord's other rights and remedies hereunder or
at law and shall not be construed as liquidated damages or as limiting
Landlord's remedies in any manner. In addition to the late charge described
above, any Rent or other amounts owing hereunder which are not paid within three
(3) days after the date they are due shall thereafter bear interest until paid
at a rate equal to eighteen percent (18%) per annum, provided that in no case
shall such rate be higher than the highest rate permitted by applicable law.
ARTICLE 26
----------
LANDLORD'S RIGHT TO CURE DEFAULT; PAYMENTS BY TENANT
----------------------------------------------------
26.1 Landlord's Cure. All covenants and agreements to be kept or
---------------
performed by Tenant under this Lease shall be performed by Tenant at Tenant's
sole cost and expense and without any reduction of Rent. If Tenant shall fail
to perform any of its obligations under this Lease, within a reasonable time
after such performance is required by the terms of this Lease, Landlord may, but
shall not be obligated to, after reasonable prior notice to Tenant, make any
such payment or perform any such act on Tenant's part without waiving its right
based upon any default of Tenant and without releasing Tenant from any
obligations hereunder.
26.2 Tenant's Reimbursement. Except as may be specifically provided to
----------------------
the contrary in this Lease, Tenant shall pay to Landlord, within fifteen (15)
days after delivery by Landlord to Tenant of statements therefor: (i) sums equal
to expenditures reasonably made and obligations incurred by Landlord in
connection with the remedying by Landlord of Tenant's defaults pursuant to the
provisions of Section 26.1; (ii) sums equal to all losses, costs, liabilities,
damages and expenses referred to in Article 10 of this Lease; and (iii) sums
equal to all expenditures made and obligations incurred by Landlord in
collecting or attempting to collect the Rent or in
28
enforcing or attempting to enforce any rights of Landlord under this Lease or
pursuant to law, including, without limitation, all legal fees and other amounts
so expended. Tenant's obligations under this Section 26.2 shall survive the
expiration or sooner termination of the Lease Term.
ARTICLE 27
----------
ENTRY BY LANDLORD
-----------------
Landlord reserves the right at all reasonable times and upon reasonable
notice to the Tenant to enter the Premises to (i) inspect them; (ii) show the
Premises to prospective purchasers, mortgagees or tenants, or to the ground or
underlying lessors; (iii) post notices of nonresponsibility; or (iv) alter,
improve or repair the Premises or the Building if necessary to comply with
current building codes or other applicable laws, or for structural alterations,
repairs or improvements to the Building. Notwithstanding anything to the
contrary contained in this Article 27, Landlord may enter the Premises at any
time to (A) perform services required of Landlord; (B) take possession due to
any breach of this Lease in the manner provided herein; and (C) perform any
covenants of Tenant which Tenant fails to perform. Any such entries shall be
without the abatement of Rent and shall include the right to take such
reasonable steps as required to accomplish the stated purposes. Tenant hereby
waives any claims for damages or for any injuries or inconvenience to or
interference with Tenant's business, lost profits, any loss of occupancy or
quiet enjoyment of the Premises, and any other loss occasioned thereby. For
each of the above purposes, Landlord shall at all times have a key with which to
unlock all the doors in the Premises, excluding Tenant's vaults, safes and
special security areas designated in advance by Tenant. In an emergency,
Landlord shall have the right to use any means that Landlord may deem proper to
open the doors in and to the Premises. Any entry into the Premises in the
manner hereinbefore described shall not be deemed to be a forcible or unlawful
entry into, or a detainer of, the Premises, or an actual or constructive
eviction of Tenant from any portion of the Premises.
ARTICLE 28
----------
TENANT PARKING
--------------
Tenant shall rent parking passes on a monthly basis throughout the Lease
Term in the amount set forth in Section 12 of the Summary to park in the
Building Parking Facility. Tenant shall pay to Landlord for automobile parking
passes on a monthly basis the prevailing rate charged for parking passes at the
location of such passes. Tenant's continued right to use the parking passes is
conditioned upon Tenant abiding by all rules and regulations which are
prescribed from time to time for the orderly operation and use of the Building
Parking Facility and upon Tenant's cooperation in seeing that Tenant's employees
and visitors also comply with such rules and regulations. Landlord specifically
reserves the right to change the size, configuration, design, layout, location
and all other aspects of the Building Parking Facility and Tenant acknowledges
and agrees that Landlord may, without incurring any liability to Tenant and
without any abatement of Rent under this Lease, from time to time, close-off or
restrict access to the Building Parking Facility, or relocate Tenant's parking
passes to other parking structures and/or surface parking areas within a
reasonable distance of the Premises, for purposes of permitting or facilitating
any such construction, alteration or improvements with respect to the
29
Building Parking Facility or to accommodate or facilitate renovation,
alteration, construction or other modification of other improvements or
structures located on the Real Property. Landlord may delegate its
responsibilities hereunder to a parking operator in which case such parking
operator shall have all the rights of control attributed hereby to the Landlord
and such owner. The parking rates charged by Landlord for Tenant's parking
passes shall be exclusive of any parking tax or other charges imposed by
governmental authorities in connection with the use of such parking, which taxes
and/or charges shall be paid directly by Tenant or the parking users, or, if
directly imposed against Landlord, Tenant shall reimburse Landlord for all such
taxes and/or charges concurrent with its payment of the parking rates described
herein.
ARTICLE 29
----------
MISCELLANEOUS PROVISIONS
------------------------
29.1 Terms. The necessary grammatical changes required to make the
-----
provisions hereof apply either to corporations or partnerships or individuals,
men or women, as the case may require, shall in all cases be assumed as though
in each case fully expressed.
29.2 Binding Effect. Each of the provisions of this Lease shall extend to
--------------
and shall, as the case may require, bind or inure to the benefit not only of
Landlord and of Tenant, but also of their respective successors or assigns,
provided this clause shall not permit any assignment by Tenant contrary to the
provisions of Article 14 of this Lease.
29.3 No Air Rights. No rights to any view or to light or air over any
-------------
property, whether belonging to Landlord or any other person, are granted to
Tenant by this Lease. If at any time any windows of the Premises are
temporarily darkened or the light or view therefrom is obstructed by reason of
any repairs, improvements, maintenance or cleaning in or about the Building, the
same shall be without liability to Landlord and without any reduction or
diminution of Tenant's obligations under this Lease.
29.4 Modification of Lease. Should any current or prospective mortgagee
---------------------
or ground lessor for the Building require a modification or modifications of
this Lease, which modification or modifications will not cause an increased cost
or expense to Tenant or in any other way materially and adversely change the
rights and obligations of Tenant hereunder, then and in such event, Tenant
agrees that this Lease may be so modified and agrees to execute whatever
documents are required therefor and deliver the same to Landlord within ten (10)
days following the request therefor. Should Landlord or any such current or
prospective mortgagee or ground lessor require execution of a short form of
Lease for recording, containing, among other customary provisions, the names of
the parties, a description of the Premises and the Lease Term, Tenant agrees to
execute such short form of Lease and to deliver the same to Landlord within ten
(10) days following the request therefor.
29.5 Transfer of Landlord's Interest. Tenant acknowledges that Landlord
-------------------------------
has the right to transfer all or any portion of its interest in the Real
Property and Building and in this Lease, and Tenant agrees that in the event of
any such transfer, Landlord shall automatically be released from all liability
under this Lease and Tenant agrees to look solely to such transferee for the
30
performance of Landlord's obligations hereunder after the date of transfer. The
liability of any transferee of Landlord shall be limited to the interest of such
transferee in the Real Property and Building and such transferee shall be
without personal liability under this Lease, and Tenant hereby expressly waives
and releases such personal liability on behalf of itself and all persons
claiming by, through or under Tenant. Tenant further acknowledges that Landlord
may assign its interest in this Lease to a mortgage lender as additional
security and agrees that such an assignment shall not release Landlord from its
obligations hereunder and that Tenant shall continue to look to Landlord for the
performance of its obligations hereunder.
29.6 Prohibition Against Recording. Except as provided in Section 29.4 of
-----------------------------
this Lease, neither this Lease, nor any memorandum, affidavit or other writing
with respect thereto, shall be recorded by Tenant or by anyone acting through,
under or on behalf of Tenant, and the recording thereof in violation of this
provision shall make this Lease null and void at Landlord's election.
29.7 Landlord's Title. Landlord's title is and always shall be paramount
----------------
to the title of Tenant. Nothing herein contained shall empower Tenant to do any
act which can, shall or may encumber the title of Landlord.
29.8 Captions. The captions of Articles and Sections are for convenience
--------
only and shall not be deemed to limit, construe, affect or alter the meaning of
such Articles and Sections.
29.9 Relationship of Parties. Nothing contained in this Lease shall be
-----------------------
deemed or construed by the parties hereto or by any third party to create the
relationship of principal and agent, partnership, joint venturer or any
association between Landlord and Tenant, it being expressly understood and
agreed that neither the method of computation of Rent nor any act of the parties
hereto shall be deemed to create any relationship between Landlord and Tenant
other than the relationship of landlord and tenant.
29.10 Application of Payments. Landlord shall have the right to apply
-----------------------
payments received from Tenant pursuant to this Lease, regardless of Tenant's
designation of such payments, to satisfy any obligations of Tenant hereunder, in
such order and amounts as Landlord, in its sole discretion, may elect.
29.11 Time of Essence. Time is of the essence of this Lease and each of
---------------
its provisions.
29.12 Partial Invalidity. If any term, provision or condition contained
------------------
in this Lease shall, to any extent, be invalid or unenforceable, the remainder
of this Lease, or the application of such term, provision or condition to
persons or circumstances other than those with respect to which it is invalid or
unenforceable, shall not be affected thereby, and each and every other term,
provision and condition of this Lease shall be valid and enforceable to the
fullest extent possible permitted by law.
29.13 No Warranty. In executing and delivering this Lease, Tenant has not
-----------
relied on any representation, including, but not limited to, any representation
whatsoever as to the amount of any item comprising Additional Rent or the amount
of the Additional Rent in the aggregate or that Landlord is furnishing the same
services to other tenants, at all, on the same level or on the
31
same basis, or any warranty or any statement of Landlord which is not set forth
herein or in one or more of the exhibits attached hereto.
29.14 Landlord Exculpation. It is expressly understood and agreed that
--------------------
notwithstanding anything in this Lease to the contrary, and notwithstanding any
applicable law to the contrary, the liability of Landlord and the Landlord
Parties hereunder (including any successor landlord) and any recourse by Tenant
against Landlord or the Landlord Parties shall be limited solely and exclusively
to an amount which is equal to the interest of Landlord in the Building and
neither Landlord, nor any of the Landlord Parties shall have any personal
liability therefor, and Tenant hereby expressly waives and releases such
personal liability on behalf of itself and all persons claiming by, through or
under Tenant.
29.15 Entire Agreement. It is understood and acknowledged that there are
----------------
no oral agreements between the parties hereto affecting this Lease and this
Lease supersedes and cancels any and all previous negotiations, arrangements,
brochures, agreements and understandings, if any, between the parties hereto or
displayed by Landlord to Tenant with respect to the subject matter thereof, and
none thereof shall be used to interpret or construe this Lease. This Lease and
any side letter or separate agreement executed by Landlord and Tenant in
connection with this Lease and dated of even date herewith contain all of the
terms, covenants, conditions, warranties and agreements of the parties relating
in any manner to the rental, use and occupancy of the Premises, shall be
considered to be the only agreement between the parties hereto and their
representatives and agents, and none of the terms, covenants, conditions or
provisions of this Lease can be modified, deleted or added to except in writing
signed by the parties hereto. All negotiations and oral agreements acceptable
to both parties have been merged into and are included herein. There are no
other representations or warranties between the parties, and all reliance with
respect to representations is based totally upon the representations and
agreements contained in this Lease.
29.16 Right to Lease. Landlord reserves the absolute right to effect such
--------------
other tenancies in the Building as Landlord in the exercise of its sole business
judgment shall determine to best promote the interests of the Building. Tenant
does not rely on the fact, nor does Landlord represent, that any specific tenant
or type or number of tenants shall, during the Lease Term, occupy any space in
the Building.
29.17 Force Majeure. Any prevention, delay or stoppage due to strikes,
-------------
lockouts, labor disputes, acts of God, inability to obtain services, labor, or
materials or reasonable substitutes therefor, governmental actions, civil
commotions, fire or other casualty, and other causes beyond the reasonable
control of the party obligated to perform, except with respect to the
obligations imposed with regard to Rent and other charges to be paid by Tenant
pursuant to this Lease (collectively, the "Force Majeure"), notwithstanding
anything to the contrary contained in this Lease, shall excuse the performance
of such party for a period equal to any such prevention, delay or stoppage and,
therefore, if this Lease specifies a time period for performance of an
obligation of either party, that time period shall be extended by the period of
any delay in such party's performance caused by a Force Majeure.
32
29.18 Waiver of Redemption by Tenant. Tenant hereby waives for Tenant and
------------------------------
for all those claiming under Tenant all right now or hereafter existing to
redeem by order or judgment of any court or by any legal process or writ,
Tenant's right of occupancy of the Premises after any termination of this Lease.
29.19 Notices. All notices, demands, statements or communications
-------
(collectively, "Notices") given or required to be given by either party to the
other hereunder shall be in writing, shall be sent by United States certified or
registered mail, postage prepaid, return receipt requested, or delivered
personally (i) to Tenant at the appropriate address set forth in Section 5 of
the Summary, or to such other place as Tenant may from time to time designate in
a Notice to Landlord; or (ii) to Landlord at the addresses set forth in Section
3 of the Summary, or to such other firm or to such other place as Landlord may
from time to time designate in a Notice to Tenant. Any Notice will be deemed
given on the date it is mailed as provided in this Section 29.19 or upon the
date personal delivery is made. If Tenant is notified of the identity and
address of Landlord's mortgagee or ground or underlying lessor, Tenant shall
give to such mortgagee or ground or underlying lessor written notice of any
default by Landlord under the terms of this Lease by registered or certified
mail, and such mortgagee or ground or underlying lessor shall be given a
reasonable opportunity to cure such default prior to Tenant's exercising any
remedy available to Tenant.
29.20 Joint and Several. If there is more than one Tenant, the
-----------------
obligations imposed upon Tenant under this Lease shall be joint and several.
29.21 Authority. If Tenant is a corporation or partnership, each
---------
individual executing this Lease on behalf of Tenant hereby represents and
warrants that Tenant is a duly formed and existing entity qualified to do
business in the state in which the Building is located and that Tenant has full
right and authority to execute and deliver this Lease and that each person
signing on behalf of Tenant is authorized to do so.
29.22 Attorneys' Fees. If either party commences litigation against the
---------------
other for the specific performance of this Lease, for damages for the breach
hereof or otherwise for enforcement of any remedy hereunder, the parties hereto
agree to and hereby do waive any right to a trial by jury and, in the event of
any such commencement of litigation, the prevailing party shall be entitled to
recover from the other party such costs and reasonable attorneys' fees as may
have been incurred, including any and all costs incurred in enforcing,
perfecting and executing such judgment.
29.23 Governing Law. This Lease shall be construed and enforced in
-------------
accordance with the laws of the state in which the Building is located.
29.24 Submission of Lease. Submission of this instrument for examination
-------------------
or signature by Tenant does not constitute a reservation of or an option for
lease, and it is not effective as a lease or otherwise until execution and
delivery by both Landlord and Tenant.
29.25 Brokers. Landlord and Tenant hereby warrant to each other that they
-------
have had no dealings with any real estate broker or agent in connection with the
negotiation of this Lease,
33
excepting only the real estate brokers or agents specified in Section 13 of the
Summary (the "Brokers"), and that they know of no other real estate broker or
agent who is entitled to a commission in connection with this Lease. Each party
agrees to indemnify and defend the other party against and hold the other party
harmless from any and all claims, demands, losses, liabilities, lawsuits,
judgments, and costs and expenses (including without limitation reasonable
attorneys' fees) with respect to any leasing commission or equivalent
compensation alleged to be owing on account of the indemnifying party's dealings
with any real estate broker or agent other than the Brokers.
29.26 Independent Covenants. This Lease shall be construed as though the
---------------------
covenants herein between Landlord and Tenant are independent and not dependent
and Tenant hereby expressly waives the benefit of any statute to the contrary
and agrees that if Landlord fails to perform its obligations set forth herein,
Tenant shall not be entitled to make any repairs or perform any acts hereunder
at Landlord's expense or to any set-off of the Rent or other amounts owing
hereunder against Landlord; provided, however, that the foregoing shall in no
way impair the right of Tenant to commence a separate action against Landlord
for any violation by Landlord of the provisions hereof so long as notice is
first given to Landlord and 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.
29.27 Building Name and Signage. Landlord shall have the right at any
-------------------------
time to change the name of the Building and to install, affix and maintain any
and all signs on the exterior and on the interior of the Building as Landlord
may, in Landlord's sole discretion, desire. Tenant shall not use the name of
the Building or use pictures or illustrations of the Building in advertising or
other publicity, without the prior written consent of Landlord.
29.28 Transportation Management. Tenant shall fully comply with all
-------------------------
present or future programs intended to manage parking, transportation or traffic
in and around the Building, and in connection therewith, Tenant shall take
responsible action for the transportation planning and management of all
employees located at the Premises by working directly with Landlord, any
governmental transportation management organization or any other transportation-
related committees or entities. Such programs may include, without limitation:
(i) restrictions on the number of peak-hour vehicle trips generated by Tenant;
(ii) increased vehicle occupancy; (iii) implementation of an in-house
ridesharing program and an employee transportation coordinator; (iv) working
with employees and any Building or area-wide ridesharing program manager; (v)
instituting employer-sponsored incentives (financial or in-kind) to encourage
employees to rideshare; and (vi) utilizing flexible work shifts for employees.
29.29 Hazardous Material. As used herein, the term "Hazardous Material"
------------------
means any hazardous or toxic substance, material or waste which is or becomes
regulated by any local governmental authority, the state in which the Building
is located or the United States Government. Tenant acknowledges that Landlord
may incur costs (A) for complying with laws, codes, regulations or ordinances
relating to Hazardous Material, or (B) otherwise in connection with Hazardous
Material, including, without limitation, the following: (i) Hazardous Material
present in soil or ground water; (ii) Hazardous Material that migrates, flows,
percolates, diffuses
34
or in any way moves onto or under the Real Property; (iii) Hazardous Material
present on or under the Real Property as a result of any discharge, dumping or
spilling (whether accidental or otherwise) on the Real Property by other tenants
of the Real Property or their agents, employees, contractors or invitees, or by
others; and (iv) material which becomes Hazardous Material due to a change in
laws, codes, regulations or ordinances which relate to hazardous or toxic
material, substances or waste. Tenant agrees that the costs incurred by
Landlord with respect to, or in connection with, complying with laws, codes,
regulations or ordinances relating to Hazardous Material shall be an Operating
Expense, unless the cost of such compliance, as between Landlord and Tenant, is
made the responsibility of Tenant under this Lease. To the extent any such
Operating Expense relating to Hazardous Material is subsequently recovered or
reimbursed through insurance, or recovery from responsible third parties, or
other action, Tenant shall be entitled to a proportionate share of such
Operating Expense to which such recovery or reimbursement relates.
29.30 Confidentiality. Tenant acknowledges that the content of this Lease
---------------
and any related documents are confidential information. Tenant shall keep such
confidential information strictly confidential and shall not disclose such
confidential information to any person or entity other than Tenant's financial,
legal, and space planning consultants.
29.31 Landlord Renovations. It is specifically understood and agreed that
--------------------
Landlord has no obligation and has made no promises to alter, remodel, improve,
renovate, repair or decorate the Premises, Building, or any part thereof and
that no representations respecting the condition of the Premises or the Building
have been made by Landlord to Tenant except as specifically set forth herein or
in the Tenant Work Letter. However, Tenant acknowledges that Landlord is
currently renovating or may during the Lease Term renovate, improve, alter, or
modify (collectively, the "Renovations") the Building, Premises, and/or Real
Property, including without limitation the Building Parking Facility, common
areas, systems and equipment, roof, and structural portions of the same, which
Renovations may include, without limitation, (i) modifying the common areas and
tenant spaces to comply with applicable laws and regulations, including
regulations relating to the physically disabled, seismic conditions, and
building safety and security, and (ii) installing new carpeting, lighting, and
wall coverings in the Building common areas, and in connection with such
Renovations, Landlord may, among other things, erect scaffolding or other
necessary structures in the Building, limit or eliminate access to portions of
the Real Property, including portions of the common areas, or perform work in
the Building, which work may create noise, dust or leave debris in the Building.
Tenant hereby agrees that such Renovations and Landlord's actions in connection
with such Renovations shall in no way constitute a constructive eviction of
Tenant nor entitle Tenant to any abatement of Rent. Landlord shall have no
responsibility or for any reason be liable to Tenant for any direct or indirect
injury to or interference with Tenant's business arising from the Renovations,
nor shall Tenant be entitled to any compensation or damages from Landlord for
loss of the use of the whole or any part of the Premises or of Tenant's personal
property or improvements resulting from the Renovations or Landlord's actions in
connection with such Renovations, or for any inconvenience or annoyance
occasioned by such Renovations or Landlord's actions in connection with such
Renovations.
35
29.32 No Discrimination. Tenant covenants by and for itself, its heirs,
-----------------
executors, administrators and assigns, and all persons claiming under or through
Tenant, and this Lease is made and accepted upon and subject to the following
conditions: that there shall be no discrimination against or segregation of any
person or group of persons, on account of race, color, creed, sex, religion,
marital status, ancestry or national origin in the leasing, subleasing,
transferring, use, or enjoyment of the Premises, nor shall Tenant itself, or any
person claiming under or through Tenant, establish or permit such practice or
practices of discrimination or segregation with reference to the selection,
location, number, use or occupancy, of tenants, lessees, sublessees, subtenants
or vendees in the Premises.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed the day and date first above written.
"Landlord":
Colony MB Partners, L.P.
By: Colony Advisors, Inc.
Its: Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
------------------------------
Its: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
President
-----------------------
Date: June 19, 1995
-----------------------
"Tenant":
Tier Corporation
a California Corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: President
36
EXHIBIT A
---------
URBAN WEST BUSINESS PARK
------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TIER CORPORATION, INC. PREMISES
-------------------------------
6,175 RSF (5,508 USF)
OUTLINE OF FLOOR PLAN OF PREMISES
---------------------------------
/Sketch of Floor Plan/
1
EXHIBIT B
---------
URBAN WEST BUSINESS PARK
------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TENANT WORK LETTER
------------------
This Tenant Work Letter shall set forth the terms and conditions relating
to the construction of the tenant improvements in the Premises. This Tenant
Work Letter is essentially organized chronologically and addresses the issues of
the construction of the Premises, in sequence, as such issues will arise during
the actual construction of the Premises. All references in this Tenant Work
Letter to Articles or Sections of "this Lease" shall mean the relevant portion
of Articles 1 through 29 of the Office Lease to which this Tenant Work Letter is
attached as Exhibit B and of which this Tenant Work Letter forms a part, and all
references in this Tenant Work Letter to Sections of "this Tenant Work Letter"
shall mean the relevant portion of Sections 1 through 6 of this Tenant Work
Letter.
SECTION 1
---------
CONSTRUCTION DRAWINGS FOR THE PREMISES
--------------------------------------
Landlord shall construct the improvements in the Premises (the "Tenant
Improvements") pursuant to that certain (collectively, the "Approved Working
Drawings"). Tenant shall make no changes or modifications to the Approved
Working Drawings without the prior written consent of Landlord, which consent
may be withheld in Landlord's sole discretion if such change or modification
would directly or indirectly delay the "Substantial Completion," as that term is
defined in Section 5.1 of this Tenant Work Letter, of the Premises or increase
-----------
the cost of designing or constructing the Tenant Improvements.
SECTION 5
---------
COMPLETION OF THE TENANT IMPROVEMENTS;
--------------------------------------
LEASE COMMENCEMENT DATE
-----------------------
5.1 Ready for Occupancy. The Premises shall be deemed "Ready for
-------------------
Occupancy" upon the Substantial Completion of the Premises. For purposes of
this Lease, "Substantial Completion" of the Premises shall occur upon the
completion of construction of the Tenant Improvements in the Premises pursuant
to the Approved Working Drawings, with the exception of any punch list items and
any tenant fixtures, work-stations, built-in furniture, or equipment to be
installed by Tenant or under the supervision of Contractor.
5.2 Delay of the Substantial Completion of the Premises. Except as
---------------------------------------------------
provided in this Section 5.2, the Lease Commencement Date shall occur as set
-----------
forth in the Lease and Section 5.1,
-----------
1
above. If there shall be a delay or there are delays in the Substantial
Completion of the Premises or in the occurrence of any of the other conditions
precedent to the Commencement Date, as set forth in of the Lease, as a direct,
indirect, partial, or total result of:
5.2.1 Tenant's failure to timely approve any matter requiring
Tenant's approval;
5.2.2 A breach by Tenant of the terms of this Tenant Work Letter or
the Lease;
5.2.3 Tenant's request for changes in the Approved Working Drawings;
5.2.4 Changes in any of the Approved Working Drawings because the
same do not comply with applicable laws;
5.2.5 Tenant's requirement for materials, components, finishes or
improvements which are not available in a commercially reasonable time given the
anticipated date of Substantial Completion of the Premises, as set forth in the
Lease, or which are different from, or not included in, Landlord's standard
improvement package items for the Building;
5.2.6 Changes to the base, shell and core work of the Building
required by the Approved Working Drawings; or
5.2.7 Any other acts or omissions of Tenant, or its agents, or
employees;
then, notwithstanding anything to the contrary set forth in the Lease or this
Tenant Work Letter and regardless of the actual date of the Substantial
Completion of the Premises, the Lease Commencement Date shall be deemed to be
the date the Lease Commencement Date would have occurred if no Tenant delay or
delays, as set forth above, had occurred.
SECTION 6
---------
MISCELLANEOUS
-------------
6.1 Tenant's Entry Into the Premises Prior to Substantial Completion.
----------------------------------------------------------------
Provided that Tenant and its agents do not interfere with Contractor's work in
the Building and the Premises, Contractor shall allow Tenant access to the
Premises prior to the Substantial Completion of the Premises for the purpose of
Tenant installing overstandard equipment or fixtures (including Tenant's data
and telephone equipment) in the Premises. Prior to Tenant's entry into the
Premises as permitted by the terms of this Section 6.1, Tenant shall submit a
-----------
schedule to Landlord and Contractor, for their approval, which schedule shall
detail the timing and purpose of Tenant's entry. Tenant shall hold Landlord
harmless from and indemnify, protect and defend Landlord against any loss or
damage to the Building or Premises and against injury to any persons caused by
Tenant's actions pursuant to this Section 6.1.
-----------
6.2 Freight Elevators. Landlord shall, consistent with its obligations to
-----------------
other tenants of the Building, make the freight elevator reasonably available to
Tenant in connection with initial decorating, furnishing and moving into the
Premises.
2
6.3 Tenant's Representative. Tenant has designated
-----------------------
__________________________ as its sole representative with respect to the
matters set forth in this Tenant Work Letter, who, until further notice to
Landlord, shall have full authority and responsibility to act on behalf of the
Tenant as required in this Tenant Work Letter.
6.4 Landlord's Representative. Landlord has designated ▇▇▇▇▇ ▇▇▇▇▇▇▇ as
-------------------------
its sole representative with respect to the matters set forth in this Tenant
Work Letter who, until further notice to Tenant, shall have full authority and
responsibility to act on behalf of the Landlord as required in this Tenant Work
Letter.
6.5 Tenant's Agents. All subcontractors, laborers, materialmen, and
---------------
suppliers retained directly by Tenant shall all be union labor in compliance
with the then existing master labor agreements.
6.6 Time of the Essence in This Tenant Work Letter. Unless otherwise
----------------------------------------------
indicated, all references herein to a "number of days" shall mean and refer to
calendar days. In all instances where Tenant is required to approve or deliver
an item, if no written notice of approval is given or the item is not delivered
within the stated time period, at Landlord's sole option, at the end of such
period the item shall automatically be deemed approved or delivered by Tenant
and the next succeeding time period shall commence.
6.7 Tenant's Lease Default. Notwithstanding any provision to the contrary
----------------------
contained in this Lease, if an event of default as described in the Lease, or a
default by Tenant under this Tenant Work Letter, has occurred at any time on or
before the Substantial Completion of the Premises, then (i) in addition to all
other rights and remedies granted to Landlord pursuant to the Lease, Landlord
shall have the right to cause Contractor to cease the construction of the
Premises (in which case, Tenant shall be responsible for any delay in the
Substantial Completion of the Premises caused by such work stoppage as set forth
in Section 5 of this Tenant Work Letter), and (ii) all other obligations of
---------
Landlord under the terms of this Tenant Work Letter shall be forgiven until such
time as such default is cured pursuant to the terms of the Lease.
3
EXHIBIT C
---------
URBAN WEST BUSINESS PARK
------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
NOTICE OF LEASE TERM DATES
--------------------------
To: Mr. ▇▇▇▇ ▇▇▇▇▇▇
Tier Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Office Lease dated June 3, ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ PARTNERS, L.P., By:
Colony Advisors, Inc. its Agent ("Landlord"), and Tier Corporation, Inc., a
California corporation ("Tenant") concerning Suite 250 on floor two (2) of the
Office Building located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
Gentlemen:
In accordance with the Office Lease (the "Lease"), we wish to advise you
and/or confirm as follows:
1. That the Premises are Ready for Occupancy, and that the Lease Term
shall commence as of _______________ for a term of _______________ ending on
_______________.
2. That in accordance with the Lease, Rent commenced to accrue on
_______________.
3. If the Lease Commencement Date is other than the first day of the
month, the first billing will contain a pro rata adjustment. Each billing
thereafter, with the exception of the final billing, shall be for the full
amount of the monthly installment as provided for in the Lease.
4. Rent is due and payable in advance on the first day of each and every
month during the Lease Term. Your rent checks should be made payable to
_______________ at _______________.
5. The exact number of rentable square feet within the Premises is
_______________ square feet.
6. Tenant's Share as adjusted based upon the exact number of rentable
square feet within the Premises is __________%.
1
"Landlord":
COLONY MB PARTNERS, L.P.
By:
Its:
Agreed to and Accepted as of _______________, 19__
"Tenant":
TIER CORPORATION, INC.
By:
Its:
2
EXHIBIT D
---------
URBAN WEST BUSINESS PARK
------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RULES AND REGULATIONS
---------------------
Tenant shall faithfully observe and comply with the following Rules and
Regulations. Landlord shall not be responsible to Tenant for the nonperformance
of any of said Rules and Regulations by or otherwise with respect to the acts or
omissions of any other tenants or occupants of the Building.
1. Tenant shall not alter any lock or install any new or additional locks
or bolts on any doors or windows of the Premises without obtaining Landlord's
prior written consent. Tenant shall bear the cost of any lock changes or
repairs required by Tenant other than the original lock/key changes. Thirty
(30) keys to access premises and building will be furnished by Landlord for the
Premises, and any additional keys required by Tenant must be obtained from
Landlord at a reasonable cost to be established by Landlord.
2. All doors opening to public corridors shall be kept closed at all times
except for normal ingress and egress to the Premises, unless electrical hold
backs have been installed.
3. Landlord reserves the right to close and keep locked all entrance and
exit doors of the Building during such hours as are customary for comparable
buildings in the vicinity of the Building. Tenant, its employees and agents
shall use their best effort to ensure that the doors to the Building are
securely closed and locked when leaving the Premises if it is after the normal
hours of business for the Building. Any tenant, its employees, agents or any
other persons entering or leaving the Building at any time when it is so locked,
or any time when it is considered to be after normal business hours for the
Building, may be required to sign the Building register when so doing. Access
to the Building may be refused unless the person seeking access has proper
identification or has a previously arranged pass for access to the Building.
The Landlord and his agents shall in no case be liable for damages for any error
with regard to the admission to or exclusion from the Building of any person.
In case of invasion, mob, riot, public excitement or other commotion, Landlord
reserves the right to prevent access to the Building during the continuance of
same by any means it deems appropriate for the safety and protection of life and
property.
4. Landlord shall have the right to prescribe the weight, size and
position of all safes and other heavy property brought into the Building. Safes
and other heavy objects shall, if considered necessary by Landlord, stand on
supports of such thickness as is necessary to properly distribute the weight.
Landlord will not be responsible for loss of or damage to any such safe or
property in any case. All damage done to any part of the Building, its
contents, occupants or
1
visitors by moving or maintaining any such safe or other property shall be the
sole responsibility of Tenant and any expense of said damage or injury shall be
borne by Tenant.
5. No furniture, freight, packages, supplies, equipment or merchandise
will be brought into or removed from the Building or carried up or down in the
elevators, except upon prior notice to Landlord, and in such manner, in such
specific elevator, and between such hours as shall be designated by Landlord.
Tenant shall provide Landlord with not less than 24 hours prior notice of the
need to utilize an elevator for any such purpose, so as to provide Landlord with
a reasonable period to schedule such use and to install such padding or take
such other actions or prescribe such procedures as are appropriate to protect
against damage to the elevators or other parts of the Building. In no event
shall Tenant's use of the elevators for any such purpose be permitted during the
hours of 7:00 a.m. - 9:00 a.m., 11:30 a.m.-1:30 p.m. and 4:30 p.m. - 6:30 p.m.,
Monday through Friday.
6. Landlord shall have the right to control and operate the public
portions of the Building, the public facilities, the heating and air
conditioning, and any other facilities furnished for the common use of tenants,
in such manner as is customary for comparable buildings in the vicinity of the
Building.
7. The requirements of Tenant will be attended to only upon application at
the Office of the Building or at such office location designated by Landlord.
Employees of Landlord shall not perform any work or do anything outside their
regular duties unless under special instructions from Landlord.
8. Tenant shall not disturb, solicit, or canvass any occupant of the
Building and shall cooperate with Landlord or Landlord's agents to prevent same.
9. The toilet rooms, urinals, wash bowls and other apparatus shall not be
used for any purpose other than that for which they were constructed, and no
foreign substance of any kind whatsoever shall be thrown therein. The expense
of any breakage, stoppage or damage resulting from the violation of this rule
shall be borne by the tenant who, or whose employees or agents, shall have
caused it.
10. Tenant shall not overload the floor of the Premises, nor ▇▇▇▇, drive
nails or screws, or drill into the partitions, woodwork or plaster or in any way
deface the Premises or any part thereof without Landlord's consent first had and
obtained. The Tenant may hang reasonable weight pictures and artifacts that
will not cause any permanent damage to wall surfaces.
11. Except for vending machines intended for the sole use of Tenant's
employees and invitees, no vending machine or machines of any description other
than fractional horsepower office machines shall be installed, maintained or
operated upon the Premises without the written consent of Landlord.
12. Tenant shall not use or keep in or on the Premises or the Building any
kerosene, gasoline or other inflammable or combustible fluid or material.
2
13. Tenant shall not use any method of heating or air conditioning other
than that which may be supplied by Landlord, without the prior written consent
of Landlord.
14. Tenant shall not use, keep or permit to be used or kept, any foul or
noxious gas or substance in or on the Premises, or permit or allow the Premises
to be occupied or used in a manner offensive or objectionable to Landlord or
other occupants of the Building by reason of noise, odors, or vibrations, or
interfere in any way with other Tenants or those having business therein.
15. Tenant shall not bring into or keep within the Building or the
Premises any animals, birds, bicycles or other vehicles.
16. No cooking shall be done or permitted by any tenant on the Premises,
nor shall the Premises be used for the storage of merchandise, for lodging or
for any improper, objectionable or immoral purposes. Notwithstanding the
foregoing, Underwriters' laboratory-approved equipment and microwave ovens may
be used in the Premises for heating food and brewing coffee, tea, hot chocolate
and similar beverages, provided that such use is in accordance with all
applicable federal, state and city laws, codes, ordinances, rules and
regulations, and does not cause odors which are objectionable to Landlord and
other Tenants.
17. Landlord will approve where and how telephone and telegraph wires are
to be introduced to the Premises. No boring or cutting for wires shall be
allowed without the consent of Landlord. The location of telephone, call boxes
and other office equipment affixed to the Premises shall be subject to the
approval of Landlord.
18. Landlord reserves the right to exclude or expel from the Building any
person who, in the judgment of Landlord, is intoxicated or under the influence
of liquor or drugs, or who shall in any manner do any act in violation of any of
these Rules and Regulations.
19. Tenant, its employees and agents shall not loiter in the entrances or
corridors, nor in any way obstruct the sidewalks, lobby, halls, stairways or
elevators, and shall use the same only as a means ingress and egress for the
Premises.
20. Tenant shall not waste electricity, water or air conditioning and
agrees to cooperate fully with Landlord to ensure the most effective operation
of the Building's heating and air conditioning system, and shall refrain from
attempting to adjust any controls. This includes the closing of exterior
blinds, disallowing the sun rays to shine directly into areas adjacent to
exterior windows.
21. Tenant shall store all its trash and garbage within the interior of
the Premises. No material shall be placed in the trash boxes or receptacles if
such material is of such nature that it may not be disposed of in the ordinary
and customary manner of removing and disposing of trash and garbage in the city
in which the Building is located without violation of any law or ordinance
governing such disposal. All trash, garbage and refuse disposal shall be made
only through entry-ways and elevators provide for such purposes at such times as
Landlord shall designate.
3
22. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
23. Tenant shall assume any and all responsibility for protecting the
Premises from theft, robbery and pilferage, which includes keeping doors locked
and other means of entry to the Premises closed, when the Premises are not
occupied.
24. Landlord may waive any one or more of these Rules and Regulations for
the benefit of any particular tenant or tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of any
other tenant or tenants, nor prevent Landlord from thereafter enforcing any such
Rules or Regulations against any or all tenants of the Building.
25. No awnings or other projection shall be attached to the outside walls
of the Building without the prior written consent of Landlord. No curtains,
blinds, shades or screens shall be attached to or hung in, or used in connection
with, any window or door of the Premises without the prior written consent of
Landlord. All electrical ceiling fixtures hung in offices or spaces along the
perimeter of the Building must be fluorescent and/or of a quality, type, design
and bulb color approved by Landlord.
26. The sashes, sash doors, skylights, windows, and doors that reflect or
admit light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed by Tenant, nor shall any bottles,
parcels or other articles be placed on the windowsills.
27. The washing and/or detailing of or, the installation of windshields,
radios, telephones in or general work on, automobiles shall not be allowed on
the Real Property.
28. Food vendors shall be allowed in the Building upon receipt of a
written request from the Tenant. The food vendor shall service only the tenants
that have a written request on file in the Building Management Office, Under no
circumstance shall the food vendor display their products in a public or common
area including corridors and elevator lobbies. Any failure to comply with this
rule shall result in immediate permanent withdrawal of the vendor from the
Building.
29. Tenant must comply with requests by the Landlord concerning the
informing of their employees of items of importance to the Landlord.
30. Tenant shall comply with any non-smoking ordinance adopted by any
applicable governmental authority.
31. Landlord reserves the right at any time to reasonably and non-
discriminately change or rescind any one or more of these Rules and Regulations,
or to make such other and further reasonable Rules and Regulations as in
Landlord's judgment may from time to time be necessary for the management,
safety, care and cleanliness of the Premises and Building, and for the
preservation of good order therein, as well as for the convenience of other
occupants and tenants therein. Landlord shall not be responsible to Tenant or
to any other person for the nonobservance of the Rules and Regulations by
another tenant or other person so long as such
4
action does not persist and effect Tenant's business. Tenant shall be deemed to
have read these Rules and Regulations and to have agreed to abide by them as a
condition of its occupancy of the Premises.
5
EXHIBIT E
---------
URBAN WEST BUSINESS PARK
------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FORM OF TENANT'S ESTOPPEL CERTIFICATE
-------------------------------------
The undersigned as Tenant under that certain Office Lease (the "Lease")
made and entered into as of _______________, 19__ and between Colony MB
Partners, L.P. as Landlord, and the undersigned as Tenant, for Premises on the
_______________ floor(s) of the Office Building located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ certifies as follows:
1. Attached hereto as Exhibit A is a true and correct copy of the Lease
and all amendments and modifications thereto. The documents contained in
Exhibit A represent the entire agreement between the parties as to the Premises.
2. The undersigned has commenced occupancy of the Premises described in
the Lease, currently occupies the Premises, and the Lease Term commenced on
________________.
3. The Lease is in full force and effect and has not been modified,
supplemented or amended in any way except as provided in Exhibit A.
4. Tenant has not transferred, assigned, or sublet any portion of the
Premises nor entered into any license or concession agreements with respect
thereto except as follows:
5. Tenant shall not modify the documents contained in Exhibit A or prepay
any amounts owing under the Lease to Landlord in excess of thirty (30) days
without the prior written consent of Landlord's mortgagee.
6. Base Rent became payable on _________________________________________.
7. The Lease Term expires on ___________________________________________.
8. All conditions of the Lease to be performed by Landlord necessary to
the enforceability of the Lease have been satisfied and Landlord is not in
default thereunder.
9. No rental has been paid in advance and no security has been deposited
with Landlord except as provided in the Lease.
10. As of the date hereof, there are no existing defenses or offsets that
the undersigned has, which preclude enforcement of the Lease by Landlord.
1
11. All monthly installments of Base Rent, all Additional Rent and all
monthly installments of estimated Additional Rent have been paid when due
through ________________. The current monthly installment of Base Rent is
$_______________.
12. The undersigned acknowledges that this Estoppel certificate may be
delivered to Landlord's prospective mortgagee, or a prospective purchaser, and
acknowledges that it recognizes that if same is done, said mortgagee,
prospective mortgagee, or prospective purchaser will be relying upon the
statements contained herein in making the loan or acquiring the property of
which the Premises are a part, and in accepting an assignment of the Lease as
collateral security, and that receipt by it of this certificate is a condition
of making of the loan or acquisition of such property.
13. If Tenant is a corporation or partnership, each individual executing
this Estoppel Certificate on behalf of Tenant hereby represents and warrants
that Tenant is a duly formed and existing entity qualified to do business in the
state in which the Building is located and that Tenant has full right and
authority to execute and deliver this Estoppel Certificate and that each person
signing on behalf of Tenant is authorized to do so.
Executed at _______________ the _____ day of _______________, 19__.
"Tenant":
_______________________________________,
a _____________________________________
By: ___________________________________
Its: __________________________________
By: ___________________________________
Its: __________________________________
2
FIRST AMENDMENT TO OFFICE LEASE
-------------------------------
THIS FIRST AMENDMENT TO OFFICE LEASE (this "Amendment"), made as of October
7, 1996, by and between TIER CORPORATION, a California corporation ("Tenant")
-
and PERA URBAN WEST CORP., a Delaware corporation ("Landlord").
WHEREAS, Landlord's predecessor-in-interest and Tenant entered into that
certain Lease, dated as of June 3, 1995 (the "Lease"), with respect to certain
premises described in the Lease (the "Original Premises") in an office building
located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ in Walnut Creek, California, known as Urban West
Business Park; and
WHEREAS, Section 15.1 of Article 1 of the Lease provides Tenant with a
right of first offer to lease approximately 1,206 rentable square feet
contiguous to the Original Premises, as shown on the floor plan attached hereto
as Exhibit A (the "Expansion Premises").
---------
WHEREAS, Tenant desires to exercise its right of first offer with respect
to the Expansion Premises and Landlord and Tenant desire to extend the term of
the Lease for the Original Premises and otherwise amend the Lease as hereinafter
set forth.
NOW, THEREFORE, in consideration of the premises and the respective
undertakings of the parties hereinafter set forth, it is hereby agreed that the
Lease shall be amended as follows:
A. Capitalized Terms. Capitalized terms used herein and not otherwise
-----------------
defined shall have the meanings given to such terms in the Lease.
B. Notices. Effective as of the date of this Amendment, Section 3 of
-------
Article 1 of the Lease is hereby amended in full as follows:
"3. Address of Landlord LaSalle Advisors Limited
(Section 29.19) ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With copy to: LaSalle Partners Management Limited
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇"
C. Leasing of Expansion Premises. Landlord hereby leases to Tenant and
-----------------------------
Tenant hereby hires from Landlord the Expansion Premises for the term, at the
rental and upon all of the conditions and agreements described herein. Unless
otherwise provided in this Amendment or required by the context of the Lease as
amended hereby, from and after the date Landlord delivers the Expansion Premises
to Tenant (the "Expansion Premises Commencement Date"), Tenant shall observe or
perform, with respect to the Expansion Premises, all obligations of Tenant
pursuant to the Lease with respect to the Original Premises. Effective as of
the Expansion Premises Commencement Date, the following Sections of the Summary
of Basic Lease Information of the Lease are hereby amended in full as follows:
1
"6.1 Premises: Approximately 7,921 rentable
square feet of space
"6.3 First Offer Space: N/A
"7.1 Lease Term: Five (5) years and no months commencing
on the Expansion Premises Commencement
Date.
"7.3 Lease Expiration Date: The last day of the month in which the
fifth anniversary of the Expansion
Premises Commencement Date occurs.
"8. Base Rent (Article 3): The Base Rent shall be payable as
follows:
Monthly Installment
of Base Rent Monthly Rental Rate
------------------- -------------------
Expansion Premises $14,378.40 $1.80/rsf for 6,715 rsf
Commencement Date through
August 4, 2000 $1.90/rsf for 1,206 rsf
August 5, 2000 through $15,049.90 $1.90/rsf for 7,921 rsf
Lease Expiration Date
"9.1 Base Year: Calendar year 1995 for the Original
Premises;
Calendar year 1996 for the Expansion
Premises
"9.2 Tenant's Share Approximately 5.62% for the Original
of Direct Expenses Premises; Approximately 1.005% for the
Expansion Premises
"12. Number of Parking Passes Twenty-five (25) non-assigned spaces at
a cost of $12.50 per month, per space.
"15.1 Terms for Right of N/A"
First Offer Space
D. Free Rent. Notwithstanding anything to the contrary in Section 8 of
---------
the Summary of Basic Lease Information of the Lease, as amended in Paragraph C
above, Base Rent shall be abated on the Expansion Premises only for the first
two (2) months after the Expansion Premises Commencement Date.
E. Expansion Premises Commencement Date. At any time during the Lease
------------------------------------
Term, Landlord may deliver to Tenant a notice identifying the Expansion Premises
Commencement Date and the Lease Expiration Date in the form as set forth in
Exhibit B attached hereto, which notice Tenant shall execute and return to
---------
Landlord within five (5) days of receipt thereof. All references in the Lease
(including the Exhibits thereto) to the "Lease Commencement Date" shall, with
respect to the Expansion Premises, be deemed to refer to the Expansion Premises
Commencement Date.
2
F. Tenant Improvements. Landlord agrees to construct in the Expansion
-------------------
Premises building standard tenant improvements in accordance with the working
drawings (the "Working Drawings') prepared by Interform, Inc. dated
______________, 1996, which have been approved by Landlord and Tenant
("Landlord's Work"). Landlord shall have no responsibility, either as to
performance or payment of costs, to perform any other work in, or remodel or
renovate, the Expansion Premises for Tenant's use. In all other respects, the
terms and conditions set forth in Exhibit B to the Lease shall apply to
Landlord's Work, except that the term "Approved Working Drawings" therein shall
be deemed to refer to the Working Drawings, the term "Tenant Improvements"
therein shall be deemed to refer to Landlord's Work, the term "Premises" therein
shall be deemed to refer to the Expansion Premises, and the references to
Tenant's representative and Landlord's representative shall be deemed deleted.
G. Corrections.
-----------
(i) The third sentence of Section 1.1 of the Lease is hereby amended in
full to read as follows: "The Premises are part of the Building (the
"Building") located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇."
(ii) Section 23.2 of the Lease is hereby amended in full to read as
follows: "23.2 Building Directory. Tenant shall be entitled to one (1)
------------------
line on the Building directory to display Tenant's name and location in the
Building."
H. Floor Plan. Exhibit A to the Lease shall be amended to include
---------- ---------
therein the depiction of the Expansion Premises attached to this Amendment as
Exhibit A.
---------
I. Counterparts. This Amendment may be executed in several counterparts,
------------
each of which shall be deemed an original, but all of which shall constitute one
and the same document.
J. Effectiveness. This Amendment shall be effective as of the date of
-------------
this Amendment. Except as amended by this Amendment, the Lease shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the day
and year first above written.
3
"Tenant": "Landlord":
TIER CORPORATION PERA URBAN WEST CORP.,
a California corporation a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: LaSALLE ADVISORS LIMITED,
------------------------- a Delaware limited partnership, Advisor
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ to Public Employees' Retirement
---------------- Association of Colorado, the sole
Its: Chairman & CEO stockholder of PERA URBAN WEST CORP.
-----------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------
Its: Principal
---------
4
Exhibit A
---------
/Map/
1
EXHIBIT B
---------
VERIFICATION OF TERM AND BASE RENT
----------------------------------
RE: Lease dated ____________, as amended ______________, between PERA URBAN WEST
CORP., ("Landlord") and _______________, a ____________ ("Tenant"), for Premises
located at _________________, Suite _____, City of Walnut Creek, California.
Tenant hereby verifies that the dates and amounts stated below are correct and
further acknowledges and accepts possession of the Premises.
Premises:
_______________ square feet, more or less
Expansion Premises Commencement Date: ______________________________
Lease Expiration Date: ______________________________
Base Rent as of Expansion Premises ______________________________
Commencement Date:
TENANT LANDLORD:
PERA URBAN WEST CORP.,
By:_________________________ a Delaware corporation
Name:_______________________
Its:________________________ By: LaSALLE ADVISORS LIMITED,
a Delaware limited partnership,
Employees' Retirement Association of
Colorado, the sole stockholder of PERA
URBAN WEST CORP.
By:___________________________
Name:_________________________
Its:__________________________
Executed this __ day of Executed this __ day of
___________________, 199_ ___________________, 199_
1
SECOND AMENDMENT TO OFFICE LEASE
--------------------------------
THIS SECOND AMENDMENT TO OFFICE LEASE (this "Amendment"), made as of
July 29, 1997, by and between a California corporation ("Tenant") and PERA URBAN
WEST CORP., a Delaware corporation ("Landlord").
WHEREAS, Landlord's predecessor-in-interest and Tenant entered into that
certain Lease, dated as of June 3, 1995 as amended by that certain First
Amendment to Lease, dated October 7, 1996 (as so amended, the "Lease"), with
respect to certain premises described in the Lease (the "Original Premises") in
an office building located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ in Walnut Creek, California,
known as Urban West Business Park; and
WHEREAS, Tenant desires to further expand the Original Premises to include
approximately 1,824 rentable square feet contiguous to the Original Premises, as
shown on the floor plan attached hereto as Exhibit A (the "Additional Premises")
---------
and Landlord and Tenant desire to otherwise amend the Lease as hereinafter set
forth.
NOW, THEREFORE, in consideration of the premises and the respective
undertakings of the parties hereinafter set forth, it is hereby agreed that the
Lease shall be amended as follows:
A. Capitalized Terms. Capitalized terms used herein and not otherwise
-----------------
defined shall have the meanings given to such terms in the Lease.
B. Leasing of Additional Premises. Landlord hereby leases to Tenant and
------------------------------
Tenant hereby hires from Landlord the Additional Premises for the term, at the
rental and upon all of the conditions and agreements described herein. Unless
otherwise provided in this Amendment or required by the context of the Lease as
amended hereby, from and after the first to occur of September 1, 1997 or the
date Landlord delivers the Additional Premises to Tenant (the "Additional
Premises Commencement Date"), Tenant shall observe or perform, with respect to
the Additional Premises, all obligations of Tenant pursuant to the Lease with
respect to the Original Premises. All references in the Lease (including the
Exhibits thereto) to the "Lease Commencement Date" shall, with respect to the
Additional Premises, be deemed to refer to the Additional Premises Commencement
Date.
C. Summary of Basic Lease Information. Effective as of the Additional
----------------------------------
Premises Commencement Date, the following Sections of the Summary of Basic Lease
Information of the Lease are hereby amended in full as follows:
"6.1 Premises: Approximately 9,745 rentable square feet of space
"7.3 Lease Expiration Date: November 30, 2001
"8. Base Rent (Article 3): The Base Rent shall be payable as follows:
Monthly Installment of Base Rent Monthly Rental Rate
-------------------------------- -------------------
Additional Premises $18,026.40 $1.80/rsf for 6,715 rsf
Commencement Date $1.90/rsf for 1,206 rsf
through August 4, 2000 $2.00/rsf for 1,824 rsf
August 5, 2000 through $18,697.90 $1.90/rsf for 7,921 rsf
Lease Expiration Date $2.00/rsf for 1,824 rsf
"9.1 Base Year: Calendar year 1995 for the Original Premises
Calendar year 1996 for the Expansion Premises
Calendar year 1997 for the Additional Premises
"9.2 Tenant's Share Approximately 5.62% for the Original Premises
of Direct Expenses Approximately 1.005% for the Expansion Premises
Approximately 1.53% for the Additional Premises
"12. Number of Parking Passes Twenty-five (25) non-assigned spaces at a cost
of $12.50 per month, per space; Five (5) non-
assigned spaces at a cost of $25.00 per month,
per space
D. Remodeling of Additional Premises. Landlord shall cause to be
---------------------------------
performed remodeling work in the Additional Premises in accordance with a space
plan for the Additional Premises acceptable to Landlord and Tenant (the
"Additional Premises Remodeling"). The terms and conditions set forth in
Exhibit B to the Lease shall apply to the Additional Premises Remodeling, except
---------
that the term "Approved Working Drawings" therein shall be deemed to refer to
the space plan and any related drawings specifying the Additional Premises
Remodeling, the term "Tenant Improvements" therein shall be deemed to refer to
Additional Premises Remodeling, the term "Premises" therein shall be deemed to
refer to the Additional Premises, and the references to Tenant's representative
and Landlord's representative shall be deemed deleted. Landlord shall pay up to
$3,648.00 in respect of the Additional Premises Remodeling. Other than such
remodeling, the Additional Premises shall be delivered to Tenant in their "AS-
IS" condition, and Landlord shall have no obligation to alter or remodel the
same for occupancy by Tenant.
E. Responsibilities of Tenant. Tenant shall pay or reimburse Landlord,
--------------------------
as additional rental under the Lease, for the excess over $3,648.00 of the costs
and expenses incurred in connection with the Additional Premises Remodeling,
including the fees and costs incurred in connection with space planning
therefor. Tenant shall, at Landlord's request, advance to Landlord the amount
of any anticipated costs and expenses in excess of such amount, prior to
commencement of the Additional Premises Remodeling.
F. Floor Plan. Exhibit A to the Lease shall be amended to include
---------- ---------
therein the depiction of the Additional Premises attached to this Amendment as
Exhibit A.
---------
2
G. Counterparts. This Amendment may be executed in several counterparts,
------------
each of which shall be deemed an original, but all of which shall constitute one
and the same document.
H. Effectiveness. This Amendment shall be effective as of the date of
-------------
this Amendment. Except as amended by this Amendment, the Lease shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the day
and year first above written.
"Tenant": "Landlord":
TIER CORPORATION, PERA URBAN WEST CORP.,
a California corporation a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: LaSALLE ADVISORS LIMITED,
------------------------------ a Delaware limited partnership,
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Employees' Retirement Association of
---------------------------- Colorado, the sole stockholder of
Its: V.P. Human Resources PERA URBAN WEST CORP.
----------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Its: Vice President
------------------------------------
3
EXHIBIT A
---------
FLOOR PLAN FOR SECOND FLOOR
URBAN WEST BUSINESS PARK
------------------------
[MAP OF FLOOR PLAN]
4
