Exhibit 10.11
SIGNATURE CENTER
OFFICE LEASE
BETWEEN
PRINCIPAL LIFE INSURANCE COMPANY
an Iowa corporation
("LANDLORD")
AND
SHADRACK FILMS, INC.,
A CALIFORNIA CORPORATION
("TENANT")
MARCH 11, 2004
TABLE OF CONTENTS
ARTICLE PAGE
------- ----
1.......TERM 1
2.......POSSESSION 2
3.......BASIC RENT 2
4.......RENTAL ADJUSTMENT 3
5.......SECURITY DEPOSIT 4
6.......USE 5
7.......NOTICES 6
8.......BROKERS 6
9.......HOLDING OVER 6
10......TAXES ON TENANT'S PROPERTY 7
11......CONDITION OF PREMISES 7
12......ALTERATIONS 8
13..... REPAIRS 9
14..... LIENS 9
15..... ENTRY BY LANDLORD 10
16..... UTILITIES AND SERVICES 10
17..... BANKRUPTCY 11
18..... INDEMNIFICATION 11
19..... DAMAGE TO TENANT'S PROPERTY 12
20..... TENANT'S INSURANCE 12
21......DAMAGE OR DESTRUCTION 13
22......EMINENT DOMAIN 14
23......DEFAULTS AND REMEDIES 15
24..... ASSIGNMENT AND SUBLETTING 17
25......SUBORDINATION 18
26......ESTOPPEL CERTIFICATE 19
27......SIGNAGE 20
28......RULES AND REGULATIONS 20
29......CONFLICT OF LAWS 20
30......SUCCESSORS AND ASSIGNS 20
31......SURRENDER OF PREMISES 21
32......ATTORNEY'S FEES 21
33......PERFORMANCE BY TENANT 21
34......MORTGAGEE PROTECTION 21
35......DEFINITION OF LANDLORD 22
36......WAIVER 22
37......IDENTIFICATION OF TENANT 22
38......PARKING 23
39......TERMS AND HEADINGS 23
40......EXAMINATION OF LEASE 23
41......TIME 23
42......PRIOR AGREEMENT: AMENDMENTS 23
43......SEPARABILITY 24
44......RECORDING 24
45......CONSENTS 24
46......LIMITATION ON LIABILITY 24
47......RIDERS 25
48......EXHIBITS 25
49......MODIFICATION FOR LENDER 25
50......PROJECT PLANNING 25
51......OPTION TO RENEW 25
LIST OF EXHIBITS
EXHIBIT A The Premises
EXHIBIT A-1 The Building
EXHIBIT B Tenant Improvements
EXHIBIT C Standards for Utilities and Services
EXHIBIT D Rules and Regulations
EXHIBIT E Parking Rules and Regulations
SIGNATURE CENTER
THIS LEASE is made as of the 11TH day of MARCH 2004, by and between
PRINCIPAL LIFE INSURANCE COMPANY, AN IOWA CORPORATION ("Landlord"), and SHADRACK
FILMS, INC., A CALIFORNIA CORPORATION ("Tenant").
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
SUITE NUMBER 320 (the "Premises") outlined on the floor plan attached hereto and
marked EXHIBIT A, the Premises being agreed, for the purposes of this Lease, to
have an area of approximately 2,059 RENTABLE SQUARE FEET and being situated on
the THIRD FLOOR of that certain office building located at 0000 XXXXXXX XXXX,
XXXXXXXXXX, XXXXXXXXXX (the "Building"), and part of a two building complex (the
"Project") more particularly described in EXHIBIT A-1 attached hereto. The
building contains approximately ONE HUNDRED FIFTY NINE THOUSAND AND SIXTY
(159,060) rentable square feet of space. Tenant acknowledges that Landlord may
elect to sell one or more of the buildings within the Project and that upon any
such sale Tenant's pro-rata share of those Direct Expenses allocated to the
outside areas of the Project may be adjusted accordingly.
The parties hereto agree that said letting and hiring is upon and
subject to the terms, covenants and conditions herein set forth. Tenant
covenants, as a material part of the consideration for this Lease to keep and
perform each and all of said terms, covenants and conditions for which Tenant is
liable and that this Lease is made upon the condition of such performance.
Prior to the commencing of the term of this Lease the Premises shall be
improved by the Tenant Improvements described in the Work Letter marked EXHIBIT
B attached hereto.
ARTICLE 1
TERM
The term of this Lease shall be for 37 MONTHS, unless sooner terminated
as hereinafter provided, commencing upon the earlier of:
(i) Substantial completion of the Tenant Improvements described in the
Work Letter (subject to the provisions of Paragraph 7 of the Work Letter) and
the tender of possession of the Premises to Tenant or
(ii) The date that Tenant opened for business in the Premises, and
ending on the last day of the last month in the term of this Lease, unless such
term shall be sooner terminated as hereinafter provided. As soon as the
commencement date is determined, the parties shall enter into an amendment of
this Lease setting forth the precise commencement and termination dates of this
Lease. Failure to enter into such an amendment, however, shall not affect
Tenant's liability hereunder. Reference in this Lease to a "Lease Year" shall
mean each successive twelve month period commencing with the commencement date.
Landlord and Tenant estimate that the commencement date shall be APRIL 1, 2004.
1
ARTICLE 2
POSSESSION
Tenant agrees that, if Landlord is unable to deliver possession of the
Premises to Tenant on the scheduled commencement of the term of this Lease, this
Lease shall not be void or voidable, nor shall Landlord be liable to Tenant for
any loss or damage resulting therefrom, but in such event the Term of this Lease
shall not commence until Landlord tenders possession of the Premises to Tenant
with the Tenant Improvements substantially completed. If Landlord completes
construction of the Tenant Improvements prior to the date scheduled in the Work
Letter, Landlord shall deliver possession of the Premises to Tenant upon such
completion and the term of this Lease shall thereupon commence.
ARTICLE 3
BASIC RENT
(a) Tenant agrees to pay Landlord Basic Rent for the Premises
(subject to adjustment as hereinafter provided) as follows:
MONTHS OF TERM BASIC RENT/PER MONTH
-------------- --------------------
01 $0.00
02 - 13 $3,603.25
14 - 25 $3,706.20
26 - 37 $3,809.15
The Basic Rent shall be paid monthly, in advance on the first (1st) day of each
calendar month during the term, commencing on the first (1st) month of the Lease
term and continuing on the first day of each month thereafter, except that the
first (1st) month's rent shall be paid on execution hereof. If Tenant's
obligation to pay rent commences or ends on a day other than the first day of a
calendar month, then the rental for such period shall be prorated in the
proportion that the number of days this Lease is in effect during such period
bears to thirty. In addition to the Basic Rent, Tenant agrees to pay as
additional rental the amount of rental adjustments and other charges required by
this Lease. All rental shall be paid to Landlord, without prior demand and
without any deduction or offset, in lawful money of the United States of
America, at the address of Landlord designated on the signature page of this
Lease or to such other person or at such other place as Landlord may from time
to time designate in writing. Tenant agrees that if Tenant's right to possession
is terminated by Landlord because of Tenant's breach of the Lease, Landlord may,
at its option, (1) void the initial _______________________ (__) month free rent
period ("Free Rent Period"),: (2) recover from Tenant, in addition to any
damages due Landlord under the terms and conditions of this Lease, rent for the
term of this Lease at the rental rate provided above and rent for the Free Rent
Period at a rental rate of ______________ Dollars ($___) per month.
(b) LATE CHARGES. In the event Tenant fails to pay any installment of
rent when due or in the event Tenant fails to make any other payment for which
Tenant is obligated under this Lease when due, then Tenant shall pay to Landlord
a late charge equal to 5% of the amount due to compensate Landlord for the extra
costs incurred as a result of such late payment.
2
ARTICLE 4
RENTAL ADJUSTMENT
(a) For the purpose of this Article 4, the following terms are defined
as follows:
(i) TENANT'S PERCENTAGE. That portion of the Building occupied
by Tenant divided by the total rentable square footage of the Building, which
result is the following 1.294%.
(ii) DIRECT EXPENSES BASE. The amount of the annual Direct
Expenses which Landlord has included in Basic Rent, which amount is $ per square
foot, for a total of $ per year. THE AMOUNT OF ANNUAL DIRECT EXPENSES WHICH
LANDLORD HAS INCLUDED IN ANNUAL BASIC RENT IS THE AMOUNT OF TENANT'S PERCENTAGE
OF THE ACTUAL DIRECT EXPENSES FOR 2004. IF THE PROJECT IS LESS THAN NINETY-FIVE
PERCENT (95%) OCCUPIED DURING ANY CALENDAR YEAR OF THE TERM, AN ADJUSTMENT SHALL
BE MADE IN COMPUTING THE DIRECT EXPENSES FOR SUCH YEAR SO THAT DIRECT EXPENSES
SHALL BE COMPUTED AS THOUGH THE PROJECT WERE NINETY-FIVE PERCENT (95%) OCCUPIED.
(iii) DIRECT EXPENSES. The term "Direct Expenses" shall include:
(A) All real and personal property taxes and assessments
imposed by any governmental authority or agency on the Building and the land on
which the Building is located (including a pro-rata portion of any taxes levied
on any common areas); any assessments levied in lieu of taxes; any
non-progressive tax on or measured by gross rentals received from the rental of
space in the Building; and any other costs levied or assessed by, or at the
direction of, any federal, state, or local government authority in connection
with the use or occupancy of the Premises or the parking facilities serving the
Premises; any tax on this transaction or any document to which Tenant is a party
creating or transferring an interest in the Premises, and any expenses,
including cost of attorneys or experts, reasonably incurred by Landlord in
seeking reduction by the taxing authority of the above-referenced taxes, less
tax refunds obtained as a result of an application for review thereof; but shall
not include any net income, franchise, capital stock, estate or inheritance
taxes.
(B) Operating costs consisting of costs incurred by
Landlord in maintaining and operating the Building, exclusive of costs required
to be capitalized for federal income tax purposes, and including (without
limiting the generality of the foregoing) the following: costs of utilities,
supplies and insurance, cost of services of independent contractors, managers
and other suppliers, the fair rental value of the management office, cost of
compensation (including employment taxes and fringe benefits) of all persons who
perform regular and recurring duties connected with the management, operation,
maintenance, and repair of the Building, its equipment, parking facilities and
the common areas, including, without limitation, engineers, janitors, foremen,
floor waxers, window washers, watchmen and gardeners, but excluding persons
performing services not uniformly available to or performed for substantially
all Building tenants; cost of maintaining, repairing and replacing landscaping,
sprinkler systems, concrete walkways, paved parking areas, signs, and site
lighting.
3
(C) Amortization of such capital improvements as Landlord
may have installed: (a) for the purpose of reducing operating costs, (b) to
comply with governmental rules and regulations promulgated after completion of
the Building, (c) for the purpose of replacing existing capital items and
improvements, and (d) any costs required by the CC&R's, as defined in Article 6,
affecting the Premises or by any corporation, committee or association formed in
connection therewith, provided that such cost together with interest at the
maximum rate allowed by law shall be amortized over such reasonable period as
Landlord shall determine, and only the monthly amortized cost shall be included
in Direct Expenses.
(b) PAYMENT OF DIRECT EXPENSES.
(i) If Tenant's Percentage of the Direct Expenses paid or
incurred by Landlord for any calendar year exceeds the Direct Expenses Base
included in Tenant's rent, then Tenant shall pay such excess as additional rent.
(ii) In addition, for each year after the first calendar year,
or portion thereof, Tenant shall pay Tenant's Percentage of Landlord's estimate
of the amount by which Direct Expenses for that year shall exceed the Direct
Expenses Base ("Landlord's Estimate"). This estimated amount shall be divided
into twelve equal monthly installments. Tenant shall pay to Landlord,
concurrently with the regular monthly rent payment next due following the
receipt of such statement, an amount equal to one monthly installment multiplied
by the number of months from January in the calendar year in which said
statement is submitted to the month of such payment, both months inclusive.
Subsequent installments shall be payable concurrently with the regular monthly
rent payments for the balance of that calendar year and shall continue until the
next calendar year's statement is rendered.
(iii) As soon as possible after the end of each calendar year,
Landlord shall provide Tenant with a statement showing the amount of Tenant's
Percentage of Direct Expenses, the amount of Landlord's Estimate actually paid
by Tenant and the amount of the Direct Expenses Base. Thereafter, Landlord shall
reconcile the above amounts and shall either xxxx Tenant for the balance due
(payable on demand by Landlord) or credit any overpayment by Tenant towards the
next monthly installment of Landlord's Estimate falling due, as the case may be.
For purposes of making these calculations, in no event shall Tenant's Percentage
of the Direct Expenses be deemed to be less than the Direct Expenses Base.
(c) Even though the term has expired and Tenant has vacated the
Premises, when the final determination is made of Tenant's Percentage of Direct
Expenses for the year in which this Lease terminates, Tenant shall immediately
pay any increase due over the estimated expenses paid and, conversely, any
overpayment made in the event said expenses decrease shall be rebated by
Landlord to Tenant.
ARTICLE 5
SECURITY DEPOSIT
Upon Tenant's execution of the Lease, Tenant shall deposit with Landlord
the sum of $11,118.60. Said sum shall be held by Landlord as security for the
faithful performance by
4
Tenant of all of Tenant's obligations hereunder. If Tenant defaults with respect
to any provision 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 this security deposit for the payment of
any rent or any other sum in default, or for the payment of any other amount
which Landlord may spend or become obligated to spend by reason of Tenant's
default or to compensate Landlord for any other loss or damage which Landlord
may suffer by reason of Tenant's default. If any portion of the deposit is so
used or applied, Tenant shall, upon demand, deposit cash with Landlord in an
amount sufficient to restore the security deposit to its original amount.
Tenant's failure to do so shall be a material breach of this Lease. Landlord
shall not be required to keep this security deposit separate from its general
funds, and Tenant shall not be entitled to interest on such deposit. If Tenant
shall fully and faithfully perform all of its obligations under this Lease, the
security deposit or any balance thereof shall be returned to Tenant (or, at
Landlord's option, to the last assignee of Tenant's interests hereunder) at the
expiration of the Lease term, provided that Landlord may retain the security
deposit until such time as any amount due from Tenant in accordance with Article
4 hereof has been determined and paid in full. PROVIDED THAT TENANT IS NOT IN
DEFAULT UNDER THIS LEASE, THE SECURITY DEPOSIT SHALL BE REDUCED BY APPLYING
AMOUNTS TO BASIC RENT DUE FOR THE 13TH AND 25TH MONTHS OF THE LEASE.
ARTICLE 6
USE
Tenant shall use the Premises for GENERAL OFFICE USE shall not use or
permit the Premises to be used for any other purpose without the prior written
consent of Landlord. Nothing contained herein shall be deemed to give Tenant any
exclusive right to such use in the Building. Tenant shall not use or occupy the
Premises in violation of law or of the certificate of occupancy issued for the
Building or Project, and shall, upon written notice from Landlord, discontinue
any use of the Premises which is declared by any governmental authority having
jurisdiction to be a violation of law or of said certificate of occupancy.
Tenant shall comply with any direction of any governmental authority having
jurisdiction which shall, by reason of the nature of Tenant's use or occupancy
of the Premises, impose any duty upon Tenant or Landlord with respect to the
Premises or with respect to the use or occupation thereof. Tenant's shall not do
or permit to be done anything which will invalidate or increase the cost of any
fire, extended coverage or any other insurance policy covering the Building
and/or Project and/or property located therein and shall comply with all rules,
orders, regulations and requirements of the Insurance Service Offices, formerly
known as the Pacific Fire Rating Bureau or any other organization performing a
similar function. Tenant shall promptly, upon demand, reimburse Landlord for any
additional premium charged for such policy by reason of Tenant's failure to
comply with the provisions of this Article. Tenant shall not do or permit
anything to be done in or about the Premises which will in any way obstruct or
interfere with the rights of other tenants or occupants of the Building, or
injure or annoy them, or use or allow the Premises to be used for any improper,
immoral, unlawful or objectionable purpose, nor shall Tenant cause, maintain or
permit any nuisance in, on or about the Premises. Tenant shall not commit or
suffer to be committed any waste in or upon the Premises. Tenant acknowledges
that Landlord has recorded covenants, conditions and restrictions against the
Premises on June 30, 1983 as Instrument Number 83/115477 in the Official Records
of Alameda County (the "CC&Rs"), and further amended via Certification of
Amendment dated April 18, 1985 Instrument Number 85/07539 and Second
Certification of Amendment dated October 11, 1989 Instrument Number 89/277713.
Tenant's use of the Premises shall be subject to and Tenant shall comply with
the
5
CC&R's, as the same may be amended from time to time. Tenant acknowledges that
there have been and may be from time to time recorded easements and/or
declarations granting or declaring easements for parking, utilities, fire or
emergency access, and other matters. Tenant's use of the Premises shall be
subject to and Tenant shall comply with any and all such easements and
declarations. Tenant's use of the Premises shall be subject to such guidelines
as may from time to time be prepared by Landlord or the Xxxxx Center- Pleasanton
Owner's Association in their sole discretion. Tenant acknowledges that
governmental entities with jurisdiction over the Premises may, from time to time
promulgate laws, rules, plans and regulations affecting the use of the Premises,
including, but not limited to, traffic management plans and energy conservation
plans. Tenant's use of the Premises shall be subject to and Tenant shall comply
with any and all such laws, rules, plans, and regulations. Tenant, at its sole
cost, shall comply with all laws relating to the storage, use and disposal of
hazardous, toxic or radioactive matter, including those materials identified in
Sections 66680 through 66685 of Title 33 of the California Administrative Code,
Division 4, Chapter 30 ("Title 22") as they may be amended from time to time
(collectively "Toxic Materials"). If Tenant does store, use or dispose of any
Toxic Materials, Tenant shall notify Landlord in writing at least ten (10) days
prior to their first appearance on the Premises.
ARTICLE 7
NOTICES
Any notice required or permitted to be given hereunder must be in
writing and may be given by personal delivery or by mail, and if given by mail
shall be deemed sufficiently given if sent by registered or certified mail
addressed to Tenant at the Building, or to Landlord at its address set forth at
the end of this Lease. Either party may specify a different address for notice
purposes by written notice to the other except that the Landlord may in any
event use the Premises as Tenant's address for notice purposes.
ARTICLE 8
BROKERS
Tenant warrants that it has had no dealings with any real estate broker
or agent in connection with the negotiation of this Lease, except XXX XXXXXXX
WITH XXX & ASSOCIATES, whose commission shall be payable by Landlord, and that
it knows of no other real estate broker or agent who is or might be entitled to
a commission in connection with the Lease. If Tenant has dealt with any other
person or real estate broker with respect to leasing or renting space in the
Building, Tenant shall be solely responsible for the payment of any fee due said
person or firm and Tenant shall hold Landlord free and harmless against any
liability in respect thereto, including attorneys' fees and costs.
ARTICLE 9
HOLDING OVER
If Tenant holds over after the expiration or earlier termination of the
term hereof without the express written consent of Landlord, Tenant shall become
a Tenant at sufferance only, at a rental rate equal to one hundred fifty percent
(150%) of the rent in effect upon the date of such expiration (subject to
adjustment as provided in Paragraph 4 hereof and prorated on a daily basis), and
otherwise subject to the terms, covenants and conditions herein specified, so
far as applicable.
6
Acceptance by Landlord of rent after such expiration or earlier termination
shall not result in a renewal of this Lease. The foregoing provisions of this
Article 9 are in addition to and do not affect Landlord's right of re-entry or
any rights of Landlord hereunder or as otherwise provided by law. If Tenant
fails to surrender the Premises upon the expiration of this Lease despite demand
to do so by Landlord, Tenant shall indemnify and hold Landlord harmless from all
loss or liability, including without limitation, any claim made by any
succeeding tenant founded on or resulting from such failure to surrender and any
attorneys' fees and costs.
ARTICLE 10
TAXES ON TENANT'S PROPERTY
(a) Tenant shall be liable for and shall pay, at least ten days before
delinquency, all taxes levied against any personal property or trade fixtures
placed by Tenant in or about the Premises. If any such taxes on Tenant's
personal property or trade fixtures are levied against Landlord or Landlord's
property or if the assessed value of the Premises is increased by the inclusion
therein of a value placed upon such personal property or trade fixtures of
Tenant and if Landlord, after written notice to Tenant, pays the taxes based
upon such increased assessment, which Landlord shall have the right to do
regardless of the validity thereof, but only under proper protest if requested
by Tenant, Tenant shall, upon demand, repay to Landlord the taxes so levied
against Landlord, or the portion of such taxes resulting from such increase in
the assessment.
(b) If the Tenant Improvements in the Premises, whether installed,
and/or paid for by Landlord or Tenant and whether or not affixed to the real
property so as to become a part thereof, are assessed for real property tax
purposes at a valuation higher than the valuation at which Tenant Improvements
conforming to Landlord's "Building Standard," in other space in the Building are
assessed, then the real property taxes and assessment levied against the
Building by reason of such excess assessed valuation shall be deemed to be taxes
levied against personal property of Tenant and shall be governed by the
provisions of Paragraph 10(a), above. If the records of the County Assessor are
available and sufficiently detailed to serve as a basis for determining whether
said Tenant Improvements are assessed at a higher valuation than Landlord's
Building Standard, such records shall be binding on both the Landlord and the
Tenant. If the records of the County Assessor are not available or sufficiently
detailed to serve as a basis for making said determination, the actual cost of
construction shall be used.
ARTICLE 11
CONDITION OF PREMISES
Tenant acknowledges that neither Landlord nor any agent of Landlord has
made any representation or warranty with respect to the Premises or the Building
or with respect to the suitability of either for the conduct of Tenant's
business. The taking of possession of the Premises by Tenant shall conclusively
establish that the Premises and the Building were in satisfactory condition at
such time.
7
ARTICLE 12
ALTERATIONS
(a) Tenant shall make no alterations, additions or improvements in or
to the Premises without Landlord's prior written consent, and then only by
contractors or mechanics approved by Landlord. Tenant agrees that there shall be
no construction or partitions or other obstructions which might interfere with
Landlord's free access to mechanical installations or service facilities of the
Building or interfere with the moving of Landlord's equipment to or from the
enclosures containing said installations or facilities. All such work shall be
done at such times and in such manner as Landlord may from time to time
designate. Tenant covenants and agrees that all work done by Tenant shall be
performed in full compliance with all laws, rules, orders, ordinances,
regulations and requirements of all governmental agencies, offices, and boards
having jurisdiction, and in full compliance with the rules, regulations and
requirements of the Insurance Service Offices formerly known as the Pacific Fire
Rating Bureau, and of any similar body. Before commencing any work, Tenant shall
give Landlord at least ten days written notice of the proposed commencement of
such work and shall, if required by Landlord, secure at Tenant's own cost and
expense, a completion and lien indemnity bond, satisfactory to Landlord, for
said work. Tenant further covenants and agrees that any mechanic's lien filed
against the Premises or against the Building for work claimed to have been done
for, or materials claimed to have been furnished to, Tenant will be discharged
by Tenant, by bond or otherwise, within ten days after the filing thereof, at
the cost and expense of Tenant. All alterations, additions or improvements upon
the Premises made by either party, including (without limiting the generality of
the foregoing) all wallcovering, built-in cabinet work, paneling and the like,
shall, unless Landlord elects otherwise, become the property of Landlord, and
shall remain upon, and be surrendered with the Premises, as a part thereof, at
the end of the term hereof, except that Landlord may, by written notice to
Tenant, require Tenant to remove all partitions, counters, railings and the like
installed by Tenant, and Tenant shall repair all damage resulting from such
removal or, at Landlord's option, shall pay to Landlord all costs arising from
such removal.
(b) All articles of personal property and all business and trade
fixtures, machinery and equipment, furniture and movable partitions owned by
Tenant or installed by Tenant at its expense in the Premises shall be and remain
the property of Tenant and may be removed by Tenant at any time during the lease
term when Tenant is not in default hereunder. If Tenant shall fail to remove all
of its effects from the Premises upon termination of this Lease for any cause
whatsoever, Landlord may, at its option, remove the same in any manner that
Landlord shall choose, and store said effects without liability to Tenant for
loss thereof. In such event, Tenant agrees to pay Landlord upon demand any and
all expenses incurred in such removal, including court costs and attorneys' fees
and storage charges on such effects for any length of time that the same shall
be in Landlord's possession. Landlord may, at its option, without notice, sell
said effects, or any of the same, at private sale and without legal process, for
such price as Landlord may obtain and apply the proceeds of such sale upon any
amounts due under this Lease from Tenant to Landlord and upon the expense
incident to the removal and sale of said effects.
8
ARTICLE 13
REPAIRS
(a) By entry hereunder, Tenant accepts the Premises as being in good
and sanitary order, condition and repair. Tenant shall keep, maintain and
preserve the Premises in first class condition and repair, and shall, when and
if needed, at Tenant's sole cost and expense, make all repairs to the Premises
and every part thereof. Tenant shall, upon the expiration or sooner termination
of the term hereof, surrender the Premises to Landlord in the same condition as
when received, usual and ordinary wear and tear excepted. Landlord shall have no
obligation to alter, remodel, improve, repair, decorate or paint the Premises or
any part thereof. The parties hereto affirm that Landlord has made no
representations to Tenant respecting the condition of the Premises or the
Building except as specifically herein set forth.
(b) Anything contained in Paragraph 13(a) above to the contrary
notwithstanding, Landlord shall repair and maintain the structural portions of
the Building, including the foundations, building shell, and roof structure, all
at Landlord's expense. At Tenant's expense to be prorated through operating
costs, Landlord shall repair and maintain the basic plumbing, elevators, life
safety systems and other building systems, heating, ventilating, air
conditioning and electrical systems installed or furnished by Landlord, and
perform roof repair and maintenance to the Premises. Landlord shall not be
liable for any failure to make any such repairs or to perform any maintenance
unless such failure shall persist for an unreasonable time after written notice
of the need of such repairs or maintenance is given to Landlord by Tenant.
Except as provided in Article 21 hereof, there shall be no abatement of rent and
no liability of Landlord by reason of any injury to or interference with
Tenant's business arising from the making of any repairs, alterations or
improvements in or to any portion of the Building or the Premises or in or to
fixtures, appurtenances and equipment therein.
Tenant waives the right to make repairs at Landlord's expense under any law,
statute or ordinance now or hereafter in effect.
ARTICLE 14
LIENS
Tenant shall not permit any mechanic's, materialmen's or other liens to
be filed against the Building or Project, nor against Tenant's leasehold
interest in the Premises. Landlord shall have the right at all reasonable times
to post and keep posted on the Premises any notices which it deems necessary for
protection from such liens. If any such liens are filed, Landlord may, without
waiving its rights and remedies based on such breach of Tenant and without
releasing Tenant from any of its obligations, cause such liens to be released by
any means it shall deem proper, including payments in satisfaction of the claim
giving rise to such lien. Tenant shall pay to Landlord at once, upon notice by
Landlord, any sum paid by Landlord to remove such liens, together with interest
at the maximum rate per annum permitted by law from the date of such payment by
Landlord.
9
ARTICLE 15
ENTRY BY LANDLORD
Landlord reserves and shall at any and all times have the right to enter
the Premises to inspect the same, to supply janitorial service and any service
to be provided by Landlord to Tenant hereunder, to show the Premises to
prospective purchasers or tenants, to post notices of nonresponsibility, to
alter, improve or repair the Premises or any other portion of the Building or
Project, all without being deemed guilty of any eviction of Tenant and without
abatement of rent. Landlord may, in order to carry out such purposes, erect
scaffolding and other necessary structures where reasonably required by the
character of the work to be performed, provided that the business of Tenant
shall be interfered with as little as is reasonably practicable. Tenant hereby
waives any claim for damages for any injury or inconvenience to or interference
with Tenant's business, any loss of occupancy or quiet enjoyment of the
Premises, and any other loss in, upon and about the Premises. Landlord shall at
all times have and retain a key with which to unlock all doors in the Premises,
excluding Tenant's vaults and safes. Landlord shall have the right to use any
and all means which Landlord may deem proper to open said doors in an emergency
in order to obtain entry to the Premises. Any entry to the Premises obtained by
Landlord by any of said means, or otherwise, shall not be construed or deemed to
be a forcible or unlawful entry into the Premises, or any eviction of Tenant
from the Premises or any portion thereof, and any damages caused on account
thereof shall be paid by Tenant. It is understood and agreed that no provision
of this Lease shall be construed as obligating Landlord to perform any repairs,
alterations or decorations except as otherwise expressly agreed herein by
Landlord.
ARTICLE 16
UTILITIES AND SERVICES
Provided that Tenant is not in default under this Lease, Landlord agrees
to furnish or cause to be furnished to the Premises the utilities and services
described in the Standards for Utilities and Services, attached hereto as
EXHIBIT C, subject to the conditions and in accordance with the standards set
forth therein. Landlord's failure to furnish any of the foregoing items when
such failure is caused by:
(i) Accident, breakage, or repairs,
(ii) Strikes, lockouts or other labor disturbance or labor dispute of
any character,
(iii) Governmental regulation, moratorium or other governmental action,
(iv) Inability despite the exercise of reasonable diligence to obtain
electricity, water or fuel, or by
(v) Any other cause beyond Landlord's reasonable control shall not
result in any liability to Landlord. In addition, Tenant shall not be entitled
to any abatement or reduction of rent by reason of such failure, no eviction of
Tenant shall result from such failure and Tenant shall not be relieved from the
performance of any covenant or agreement in this Lease because of such
10
failure. In the event of any failure, stoppage or interruption thereof, Landlord
shall diligently attempt to resume service promptly.
ARTICLE 17
BANKRUPTCY
If Tenant shall file a petition in bankruptcy under any provision of the
Bankruptcy Code as then in effect, or if Tenant shall be adjudicated a bankrupt
in involuntary bankruptcy proceedings and such adjudication shall not have been
vacated within thirty days from the date thereof, or if a receiver or trustee
shall be appointed of Tenant's property and the order appointing such receiver
or trustee shall not be set aside or vacated within thirty days after the entry
thereof, or if Tenant shall assign Tenant's estate or effects for the benefit of
creditors, or if this Lease shall, by operation of law or otherwise, pass to any
person or persons other than Tenant, then in any such event Landlord may
terminate this Lease, if Landlord so elects, with or without notice of such
election and with or without entry or action by Landlord. In such case,
notwithstanding any other provisions of this Lease, Landlord, in addition to any
and all rights and remedies allowed by law or equity, shall, upon such
termination, be entitled to recover damages in the amount provided in Paragraph
23(b) hereof. Neither Tenant nor any person claiming through or under Tenant or
by virtue of any statute or order of any court shall be entitled to possession
of the Premises but shall surrender the Premises to landlord. Nothing contained
herein shall limit or prejudice the right of Landlord to recover damages by
reason of any such termination equal to the maximum allowed by any statute or
rule of law in effect at the time when, and governing the proceedings in which,
such damages are to be proved; whether or not such amount is greater, equal to,
or less than the amount of damages recoverable under the provisions of this
Article 17.
ARTICLE 18
INDEMNIFICATION
Tenant shall indemnify, defend and hold Landlord harmless from all
claims arising from Tenant's use of the Premises or the conduct of its business
or from any activity, work, or thing done, permitted or suffered by Tenant in or
about the Premises. Tenant shall further indemnify, defend and hold Landlord
harmless from all claims arising from any breach or default in the performance
of any obligation to be performed by Tenant under the terms of this Lease, or
arising from any act, neglect, fault or omission of Tenant or of its agents or
employees, and from and against all costs, attorneys' fees, expenses and
liabilities incurred in or about such claim or any action or proceeding brought
thereon. In case any action or proceeding shall be brought against Landlord by
reason of any such claim, Tenant upon notice from Landlord shall defend the same
at Tenant's expense by counsel approved in writing by Landlord. Tenant, as a
material part of the consideration to Landlord, hereby assumes all risk of
damage to property or injury to person in, upon or about the Premises from any
cause whatsoever except that which is caused by the failure of Landlord to
observe any of the terms and conditions of this Lease where such failure has
persisted for an unreasonable period of time after written notice of such
failure. Tenant hereby waives all its claims in respect thereof against
Landlord.
11
ARTICLE 19
DAMAGE TO TENANT'S PROPERTY
Notwithstanding the provisions of Article 18 to the contrary, Landlord
or its agents shall not be liable for (i) any damage to any property entrusted
to employees of the Building, (ii) loss or damage to any property by theft or
otherwise, (iii) any injury or damage to persons or property resulting from
fire, explosion, falling plaster, steam, gas, electricity, water or rain which
may leak from any part of the Building or from the pipes, appliances or plumbing
work therein or from the roof, street or sub-surface or from any other place or
resulting from dampness or (iv) any other cause whatsoever. Landlord or its
agents shall not be liable for interference with light or other incorporeal
hereditaments, nor shall Landlord be liable for any latent defect in the
Premises or in the Building. Tenant shall give prompt notice to Landlord in case
of fire or accidents in the Premises or in the Building or of defects therein or
in the fixtures or equipment.
ARTICLE 20
TENANT'S INSURANCE
(a) Tenant shall, during the term hereof and any other period of
occupancy, at its sole cost and expense, keep in full force and effect the
following insurance:
(i) Standard form property insurance insuring against the perils
of fire, extended coverage, vandalism, malicious mischief, special extended
coverage ("All-Risk") and sprinkler leakage. This insurance policy shall be upon
all property owned by Tenant, for which Tenant is legally liable or that was
installed at Tenant's expense, and which is located in the Project including,
without limitation, furniture, fittings, installations, fixtures (other than
Tenant improvements installed by Landlord), and any other personal property in
an amount not less than ninety percent of the full replacement cost thereof. In
the event that there shall be a dispute as to the amount which comprises full
replacement cost, the decision of Landlord or any mortgagees of Landlord shall
be conclusive. This insurance policy shall also be upon direct or indirect loss
of Tenant's earnings attributable to Tenant's inability to use fully or obtain
access to the Premises or Building in an amount as will properly reimburse
Tenant. Such policy shall name Landlord and any mortgagees of Landlord as
insured parties, as their respective interests may appear.
(ii) Comprehensive General Liability Insurance insuring Tenant
against any liability arising out of the lease, use, occupancy or maintenance of
the Premises and all areas appurtenant thereto. Such insurance shall be in the
amount of $2,000,000 Combined Single Limit for injury to, or death of one or
more persons in an occurrence, and for damage to tangible property (including
loss of use) in an occurrence, with such liability amount to be adjusted from
year to year to reflect increases in the Consumer Price Index. The policy shall
insure the hazards of premises and operation, independent contractors,
contractual liability (covering the Indemnity contained in Paragraph 18 hereof)
and shall (1) name Landlord as an additional insured, and (2) contain a cross
liability provision, and (3) contain a provision that "the insurance provided
the Landlord hereunder shall be primary and non-contributing with any other
insurance available to the Landlord."
(iii) Workers' Compensation and Employer's Liability insurance
(as required by state law).
12
(iv) Any other form or forms of insurance as Tenant or Landlord
or any mortgagees of Landlord may reasonably require from time to time in form,
in amounts and for insurance risks against which a prudent tenant would protect
itself.
(b) All policies shall be written in a form satisfactory to Landlord
and shall be taken out with insurance companies holding a General Policyholders
Rating of "A" and a Financial Rating of "X" or better, as set forth in the most
current issue of Bests Insurance Guide. Within ten days after the execution of
this Lease, Tenant shall deliver to Landlord copies of policies or certificates
evidencing the existence of the amounts and forms of coverage satisfactory to
Landlord. No such policy shall be cancelable or reducible in coverage except
after thirty days prior written notice to Landlord. Tenant shall, within ten
days prior to the expiration of such policies, furnish Landlord with renewals or
"binders" thereof, or Landlord may order such insurance and charge the cost
thereof to Tenant as additional rent. If Landlord obtains any insurance that is
the responsibility of Tenant under this section, Landlord shall deliver to
Tenant a written statement setting forth the cost of any such insurance and
showing in reasonable detail the manner in which it has been computed.
ARTICLE 21
DAMAGE OR DESTRUCTION
(a) In the event the Building and/or the Premises is damaged by fire
or other perils covered by Landlord's insurance, Landlord shall have the
following rights and obligations:
(i) In the event of total destruction, at Landlord's option, as
soon as reasonably possible thereafter, commence repair, reconstruction and
restoration of the Building and/or the Premises and prosecute the same
diligently to completion, in which event this Lease shall remain in full force
and effect; or within ninety days after such damage, elect not to so repair,
reconstruct or restore the Building and/or the Premises, in which event this
Lease shall terminate. In either event, Landlord shall give Tenant written
notice of its intention within said ninety day period. In the event Landlord
elects not to restore the Building and/or the Premises, this Lease shall be
deemed to have terminated as of the date of such total destruction.
(ii) In the event of a partial destruction of the Building
and/or the Premises, to an extent not exceeding twenty-five percent of the full
insurable value thereof, and if the damage thereto is such that the Building
and/or the Premises may be repaired, reconstructed or restored within a period
of ninety days from the date of the happening of such casualty and if Landlord
will receive insurance proceeds sufficient to cover the cost of such repairs,
then Landlord shall commence and proceed diligently with the work of repair,
reconstruction and restoration and this Lease shall continue in full force and
effect. If such work of repair, reconstruction and restoration shall require a
period longer than ninety days or exceeds twenty-five percent of the full
insurable value thereof, or if said insurance proceeds will not be sufficient to
cover the cost of such repairs, then Landlord either may elect to so repair,
reconstruct or restore and the Lease shall continue in full force and effect or
Landlord may elect not to repair, reconstruct or restore and the Lease shall
then terminate. Under any of the conditions of this Subparagraph 21(a)(ii),
Landlord shall give written notice to Tenant of its intention within said ninety
day period. In the event
13
Landlord elects not to restore the Building and/or the Premises, this Lease
shall be deemed to have terminated as of the date of such partial destruction.
(b) Upon any termination of this Lease under any of the provisions of
this Article 21, the parties shall be released without further obligation to the
other from the date possession of the Premises is surrendered to Landlord except
for items which have therefore accrued and are then unpaid.
(c) In the event of repair, reconstruction and restoration by Landlord
as herein provided, the rental payable under this Lease shall be abated
proportionately with the degree to which Tenant's use of the Premises is
impaired during the period of such repair, reconstruction or restoration. Tenant
shall not be entitled to any compensation or damages for loss in the use of the
whole or any part of the Premises and/or any inconvenience or annoyance
occasioned by such damage, repair, reconstruction or restoration.
(d) Tenant shall not be released from any of its obligations under
this Lease except to the extent and upon the conditions expressly stated in this
Article 21. Notwithstanding anything to the contrary contained in this Article
21, if Landlord is delayed or prevented from repairing or restoring the damaged
Premises within one year after the occurrence of such damage or destruction by
reason of acts of God, war, governmental restrictions, inability to procure the
necessary labor or materials, or other cause beyond the control of Landlord,
Landlord shall be relieved of its obligation to make such repairs or restoration
and Tenant shall be released from its obligation under this Lease as of the end
of said one year period.
(e) If damage is due to any cause other than fire or other peril
covered by extended coverage insurance, Landlord may elect to terminate this
Lease.
(f) If Landlord is obligated to or elects to repair or restore as
herein provided, Landlord shall be obligated to make repair or restoration only
of those portions of the Building and the Premises which were originally
provided at Landlord's expense, and the repair and restoration of items not
provided at Landlord's expense shall be the obligation of Tenant.
(g) Notwithstanding anything to the contrary contained in this Article
21, Landlord shall not have any obligation whatsoever to repair, reconstruct or
restore the Premises when the damage resulting from any casualty covered under
this Article 21 occurs during the last twelve months of the term of this Lease
or any extension hereof.
(h) The provisions of California Civil Code 1932, Subsection 2, and
1933, Subsection 4, which permit termination of a lease upon destruction of the
Leased Premises, are hereby waived by Tenant; and the provisions of this Article
shall govern in case of such destruction.
ARTICLE 22
EMINENT DOMAIN
In case all of the Premises, or such part thereof as shall substantially
interfere with Tenant's use and occupancy thereof, shall be taken for any public
or quasi-public purpose by any lawful power or authority by exercise of the
right of appropriation, condemnation or eminent domain, or sold to prevent such
taking, either party shall have the right to terminate this Lease
14
effective as of the date possession is required to be surrendered to said
authority. Tenant shall not assert any claim against Landlord or the taking
authority for any compensation because of such taking, and Landlord shall be
entitled to receive the entire amount of any award without deduction for any
estate or interest of Tenant. In the event the amount of property or the type of
estate taken shall not substantially interfere with the conduct of Tenant's
business, Landlord shall be entitled to the entire amount of the award without
deduction for any estate or interest of Tenant, Landlord shall restore the
Premises to substantially their same condition prior to such partial taking, and
a proportionate allowance shall be made to Tenant for the rent corresponding to
the time during which, and to the part of the Premises of which, Tenant shall be
so deprived on account of such taking and restoration. Nothing contained in this
Paragraph shall be deemed to give Landlord any interest in any award made to
Tenant for the taking of personal property and fixtures belonging to Tenant.
ARTICLE 23
DEFAULTS AND REMEDIES
(a) The occurrence of any one or more of the following events shall
constitute a default hereunder by Tenant:
(i) The vacation or abandonment of the Premises by Tenant.
Abandonment is herein defined to include, but is not limited to, any absence by
Tenant from the Premises for five business days or longer while in default of
any provision of this Lease.
(ii) The failure by Tenant to make any payment of rent or
additional rent or any other payment required to be made by Tenant hereunder, as
and when due, where such failure shall continue for a period of three 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 regarding unlawful detainer
actions.
(iii) The failure by Tenant to observe or perform any of the
express or implied covenants or provisions of this Lease to be observed or
performed by Tenant, other than as specified in Subparagraph 23(a)(i) or (ii)
above, where such failure shall continue for a period of ten days after written
notice thereof from Landlord to Tenant. Any such notice shall be in lieu of, and
not in addition to, any notice required under California Code of Civil Procedure
Section 1161 regarding unlawful detainer actions. If the nature of Tenant's
default is such that more than ten days are reasonably required for its cure,
then Tenant shall not be deemed to be in default if Tenant shall commence such
cure within said ten-day period and thereafter diligently prosecute such cure to
completion, which completion shall occur not later than sixty days from the date
of such notice from Landlord.
(iv) (1) The making by Tenant of any general assignment for the
benefit of creditors; (2) the filing by or against Tenant of a petition to have
Tenant adjudged a bankrupt or a petition for reorganization or arrangement under
any law relating to bankruptcy (unless, in the case of a petition filed against
Tenant, the same is dismissed within thirty days); (3) the appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where possession
is not restored to
15
Tenant within thirty days; or (4) the attachment, execution or other judicial
seizure of substantially all of Tenant's assets located at the Premises or of
Tenant's interest in this Lease where such seizure is not discharged within
thirty days.
(b) In the event of any such default by Tenant, in addition to any
other remedies available to Landlord at law or in equity, Landlord shall have
the immediate option to terminate this Lease and all rights of Tenant hereunder.
In the event that Landlord shall elect to so terminate this Lease then Landlord
may recover from Tenant:
(i) the worth at the time of award of any unpaid rent which had
been earned at the time of such termination; plus
(ii) the worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided; plus
(iii) the worth at the time of award of the amount by which the
unpaid rent for the balance of the term after the time of award exceeds the
amount of such rental loss that Tenant proves could be reasonably avoided; plus
(iv) any other amount necessary to compensate Landlord for all
the detriment proximately caused by Tenant's failure to perform Tenant's
obligations under this Lease or which in the ordinary course of things would be
likely to result therefrom. As used in Subparagraph 23(b)(i) and (ii) above, the
"worth at the time of award" is computed by allowing interest at the maximum
rate permitted by law. As used in Subparagraph 23(b)(iii) above, the "worth at
the time of award" is 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.
(c) In the event of any such default by Tenant, Landlord shall also
have the right, with or without terminating this Lease, to re-enter the Premises
and remove all persons and property from the Premises; such property may be
removed and stored in a public warehouse or elsewhere at the cost of and for the
account of Tenant. No re-entry or taking possession of the Premises by Landlord
pursuant to this Paragraph 23(c) shall be construed as an election to terminate
this Lease unless a written notice of such intention is given to Tenant or
unless the termination thereof is decreed by a court of competent jurisdiction.
(d) All rights, options and remedies of Landlord contained in this
Lease shall be constructed and held to be cumulative, and no one of them shall
be exclusive of the other, and Landlord shall have the right to pursue any one
or all of such remedies or any other remedy or relief which may be provided by
law, whether or not stated in this Lease. No waiver of any default of Tenant
hereunder shall be implied from any acceptance by Landlord of any rent or other
payments due hereunder or any omission by Landlord to take any action on account
of such default if such default persists or is repeated, and no express waiver
shall affect defaults other than as specified in said waiver. The consent or
approval of Landlord to or of any act by Tenant requiring Landlord's consent or
approval shall not be deemed to waive or render unnecessary Landlord's consent
or approval to or of any subsequent similar acts by Tenant.
16
(e) The chronic delinquency by Tenant in the payment of Basic Rent or
any other payments required to be paid by Tenant under this Lease shall
constitute a default hereunder by Tenant. "Chronic delinquency" shall mean
failure by Tenant to pay Basic Rent, or any other payments required to be paid
by Tenant under this Lease within three (3) days after written notice thereof
for any three (3) occasions (consecutive or non-consecutive) during any twelve
(12) month period. In the event of a chronic delinquency, Landlord shall have
the right, at Landlord's option, to require that Basic Rent be paid by Tenant
quarterly, in advance.
ARTICLE 24
ASSIGNMENT AND SUBLETTING
(a) Tenant shall not voluntarily assign or encumber its interest in
this Lease or in the Premises, or sublease all or any part of the Premises, or
allow any other person or entity to occupy or use all or any part of the
Premises, without first obtaining Landlord's prior written consent. Any
assignment, encumbrance or sublease without Landlord's prior written consent
shall be voidable, at Landlord's election, and shall constitute a default and at
the option of the Landlord shall result in a termination of this Lease. No
consent to assignment, encumbrance, or sublease shall constitute a further
waiver of the provisions of this paragraph. Tenant shall notify Landlord in
writing of Tenant's intent to sublease, encumber or assign this Lease and
Landlord shall, within thirty days of receipt of such written notice, elect one
of the following:
(i) Consent to such proposed assignment, encumbrance or
sublease;
(ii) Refuse such consent, which refusal shall be on reasonable
grounds; or
(iii) Elect to terminate this Lease.
(b) As a condition for granting its consent to any assignment,
encumbrance or sublease, sixty days prior to any anticipated assignment or
sublease Tenant shall give Landlord written notice (the "Assignment Notice"),
which shall set forth the name, address and business of the proposed assignee or
sublessee, information (including references) concerning the character,
ownership, and financial condition of the proposed assignee or sublessee, and
the Assignment Date, any ownership or commercial relationship between Tenant and
the proposed assignee or sublessee, and the consideration of all other material
terms and conditions of the proposed assignment or sublease, all in such detail
as Landlord shall reasonably require. If Landlord requests additional detail,
the Assignment Notice shall not be deemed to have been received until Landlord
receives such additional detail, and Landlord may withhold consent to any
assignment or sublease until such additional detail is provided to it. Further,
Landlord may require that the sublessee or assignee remit directly to Landlord
on a monthly basis, all monies due to Tenant by said assignee or sublessee.
(c) The consent by Landlord to any assignment or subletting shall not
be construed as relieving Tenant or any assignee of this Lease or sublessee of
the Premises from obtaining the express written consent of Landlord to any
further assignment or subletting or as releasing Tenant or any assignee or
sublessee of Tenant from any liability or obligation hereunder
17
whether or not then accrued. In the event Landlord shall consent to an
assignment or sublease, Tenant shall pay Landlord as Additional Rent a
reasonable attorneys' and administrative fee not to exceed $500 for costs
incurred in connection with evaluating the Assignment Notice. This section shall
be fully applicable to all further sales, hypothecations, transfers, assignments
and subleases of any portion of the Premises by any successor or assignee of
Tenant, or any sublessee of the Premises.
(d) As used in this section, the subletting of substantially all of
the Premises for substantially all of the remaining term of this Lease shall be
deemed an assignment rather than a sublease. Notwithstanding the foregoing,
Landlord shall consent to the assignment, sale or transfer if the Assignment
Notice states that Tenant desires to assign the Lease to any entity into which
Tenant is merged, with which Tenant is consolidated or which acquires all or
substantially all of the assets of Tenant, provided that the assignee first
executes, acknowledges and delivers to Landlord an agreement whereby the
assignee agrees to be bound by all of the covenants and agreements in this Lease
which Tenant has agreed to keep, observe or perform, that the assignee agrees
that the provisions of this section shall be binding upon it as if it were the
original Tenant hereunder and that the assignee shall have a net worth
(determined in accordance with generally accepted accounting principles
consistently applied) immediately after such assignment which is at least equal
to the net worth (as so determined) of Tenant at the commencement of this Lease.
(e) Except as provided above, Landlord's consent to any sublease shall
not be unreasonably withheld. A condition to such consent shall be delivery by
Tenant to Landlord of a true copy of any such sublease. If for any proposed
assignment or sublease Tenant receives rent or other consideration, either
initially or over the term of the assignment or sublease, in excess of the rent
called for hereunder, or, in case of the sublease of a portion of the Premises,
in excess of such rent fairly allocable to such portion, after appropriate
adjustments to assure that all other payments called for hereunder are taken
into account, Tenant shall pay to Landlord as additional rent hereunder
three-quarters (3/4) of the excess of each such payment of rent or other
consideration received by Tenant promptly after its receipt. Landlord's waiver
or consent to any assignment or subletting shall not relieve Tenant from any
obligation under this lease. The parties intend that the preceding sentence
shall not apply to any sublease rentals respecting a portion of the Premises
that during the entire term of this Lease was not occupied by Tenant for its own
use, but was always subleased by Tenant and/or kept vacant. For the purpose of
this section, the rent for each square foot of floor space in the Premises shall
be deemed equal.
ARTICLE 25
SUBORDINATION
Without the necessity of any additional document being executed by
Tenant for the purpose of effecting a subordination, and at the election of
Landlord or any mortgagee with a lien on the Building or any ground lessor with
respect to the Building, this Lease shall be subject and subordinate at all
times to:
(i) All ground leases or underlying leases which may now exist
or hereafter be executed affecting the Building or the land upon which the
Building is situated or both,
18
(ii) The lien of any mortgage or deed of trust which may now
exist or hereafter be executed in any amount for which the Building, land,
ground leases or underlying leases, or Landlord's interest or estate in any of
said items is specified as security. Notwithstanding the foregoing, Landlord
shall have the right to subordinate or cause to be subordinated any such ground
leases or underlying leases or any such liens to the Lease. In the event that
any ground lease or underlying lease terminates for any reason or any mortgage
or deed of trust is foreclosed or a conveyance in lieu of foreclosure is made
for any reason, Tenant shall, notwithstanding any subordination, attorn to and
become the Tenant of the successor in interest to Landlord, at the option of
such successor in interest. Tenant covenants and agrees to execute and deliver,
upon demand by Landlord and in the form requested by Landlord, any additional
documents evidencing the priority or subordination of this Lease with respect to
any such ground leases or underlying leases or the lien of any such mortgage or
deed of trust. Tenant hereby irrevocably appoints Landlord as attorney-in-fact
of Tenant to execute, deliver and record any such document in the name and on
behalf of Tenant, and
(iii) The CC&R's as described in Article 6.
ARTICLE 26
ESTOPPEL CERTIFICATE
(a) Within ten days following any written request which Landlord may
make from time to time, Tenant shall execute and deliver to Landlord a statement
certifying:
(i) The date of commencement of this Lease;
(ii) The fact that this Lease is unmodified and in full force
and effect (or, if there have been modifications hereto, that this Lease is in
full force and effect, and stating the date and nature of such modifications);
(iii) The date to which the rental and other sums payable under
this Lease have been paid;
(iv) That there are no current defaults under this Lease by
either Landlord or Tenant except as specified in Tenant's statement; and
(v) Such other matters requested by Landlord. Landlord and
Tenant intend that any statement delivered pursuant to this Article 26 may be
relied upon by any mortgagee, beneficiary, purchaser or prospective purchaser of
the Building or any interest therein.
(b) Tenant's failure to deliver such statement within such time shall
be conclusive upon Tenant:
(i) That this Lease is in full force and effect, without
modification except as may be represented by Landlord,
(ii) That there are no uncured defaults in Landlord's
performance, and
19
(iii) That not more than one month's rental has been paid in
advance.
ARTICLE 27
SIGNAGE
Landlord shall provide for Tenant the opportunity to have Tenant's name
placed upon the Building lobby directory sign, and at Tenant's entrance to the
Premises. Tenant shall have no other right to maintain a Tenant identification
sign in any other location in, on or about the Premises, the Building, or
Signature Center and shall not display or erect any Tenant identification sign,
display or other advertising material that is visible from the exterior of the
Building. The size, design, color and other physical aspects of the Tenant
identification sign shall be subject to Landlord's written reasonable approval
prior to installation. The cost of the installation of the sign, and its
maintenance and removal expense, shall be at Tenant's sole expense. If Tenant
fails to maintain its sign or if Tenant fails to remove its sign upon
termination of this Lease, Landlord may do so at Tenant's expense and Tenant's
reimbursement to Landlord for such amounts shall be deemed additional rent. All
signs shall comply with rules and regulations set for by Landlord as may be
modified from time to time.
ARTICLE 28
RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the "Rules and
Regulations," a copy of which is attached hereto and marked EXHIBIT D, and all
reasonable and nondiscriminatory modifications thereof and additions thereto
from time to time put into effect by Landlord. Landlord shall not be responsible
to Tenant for the violation or non-performance by any other tenant or occupant
of the Building of any of said Rules and Regulations.
ARTICLE 29
CONFLICT OF LAWS
This Lease shall be governed by and construed pursuant to the laws of
the State of California.
ARTICLE 30
SUCCESSORS AND ASSIGNS
Except as otherwise provided in this Lease, all of the covenants,
conditions and provisions of this Lease shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns.
20
ARTICLE 31
SURRENDER OF PREMISES
The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of
Landlord, operate as an assignment to it of any or all subleases and
subtenancies.
ARTICLE 32
ATTORNEYS' FEES
(a) If Landlord should bring suit for possession of the Premises, for
the recovery of any sum due under this Lease, or because of the breach of any
provisions of this Lease, or for any other relief against Tenant hereunder, or
in the event of any other litigation between the parties with respect to this
Lease, then all costs and expenses, including reasonable attorneys' fees,
incurred by the prevailing party therein shall be paid by the other party, which
obligation on the part of the other party shall be deemed to have accrued on the
date of the commencement of such action and shall be enforceable whether or not
the action is prosecuted to judgment.
(b) If Landlord is named as a defendant in any suit brought against
Tenant in connection with or arising out of Tenant's occupancy hereunder, Tenant
shall pay to Landlord its costs and expenses incurred in such suit, including
reasonable attorneys' fees.
ARTICLE 33
PERFORMANCE BY TENANT
All covenants and agreements to be performed by Tenant under any of the
terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of rent. If Tenant shall fail to pay any sum
of money owed to any party other than Landlord, for which it is liable hereunder
or if Tenant shall fail to perform any other act on its part to be performed
hereunder and such failure shall continue for ten days after notice thereof by
Landlord, Landlord may, without waiving or releasing Tenant from obligations of
Tenant, but shall not be obligated to, make any such payment or perform any such
other act to be made or performed by Tenant. All sums so paid by Landlord and
all necessary incidental costs together with interest thereon at the maximum
rate permissible by law, from the date of such payment by Landlord, shall be
payable to Landlord on demand. Tenant covenants to pay any such sums and
Landlord shall have (in addition to any other right or remedy of Landlord) all
rights and remedies in the event of the non-payment thereof by Tenant as are set
forth in Article 23 hereof.
ARTICLE 34
MORTGAGEE PROTECTION
In the event of any default on the part of Landlord, Tenant will give
notice by registered or certified mail to any beneficiary of a deed of trust or
mortgage covering the Premises whose address shall have been furnished to
Tenant, and shall offer such beneficiary or mortgagee a reasonable opportunity
to cure the default, including time to obtain possession of the Premises by
power of sale or a judicial foreclosure, if such should prove necessary to
effect a cure.
21
ARTICLE 35
DEFINITION OF LANDLORD
The term "Landlord", as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean and
include only the owner or owners, at the time in question, of the fee title of
the Premises or the lessees under any ground lease, if any. In the event of any
transfer, assignment or other conveyance or transfers of any such title,
Landlord herein named (and in case of any subsequent transfers or conveyances,
the then grantor) shall be automatically freed and relieved from and after the
date of such transfer, assignment or conveyance of all liability as respects the
performance of any covenants or obligations on the part of Landlord contained in
this Lease thereafter to be performed. Without further agreement, the transferee
of such title shall be deemed to have assumed and agreed to observe and perform
any and all obligations of Landlord hereunder, during its ownership of the
Premises. Landlord may transfer its interest in the Premises without the consent
of Tenant and such transfer or subsequent transfer shall not be deemed a
violation on Landlord's part of any of the terms and conditions of this Lease.
ARTICLE 36
WAIVER
The waiver by Landlord of any breach of any term, covenant or condition
herein contained shall not be deemed to be a waiver of any subsequent breach of
the same or any other term, covenant or condition herein contained, nor shall
any custom or practice which may grow up between the parties in the
administration of the terms hereof be deemed a waiver of or in any way affect
the right of Landlord to insist upon the performance by Tenant in strict
accordance with said terms. The subsequent acceptance of rent hereunder by
Landlord shall not be deemed to be a waiver of any preceding breach by Tenant or
any term, covenant or condition of this Lease, other than the failure of Tenant
to pay the particular rent so accepted, regardless of Landlord's knowledge of
such preceding breach at the time of acceptance of such rent.
ARTICLE 37
IDENTIFICATION OF TENANT
If more than one person executes this Lease as Tenant:
(i) Each of them is jointly and severally liable for the
keeping, observing and performing of all of the terms, covenants, conditions,
provisions and agreements of this Lease to be kept, observed and performed by
Tenant, and
(ii) The term "Tenant" as used in this Lease shall mean and
include each of them jointly and severally. The act of or notice from, or notice
to refund to, or the signature of any one or more of them, with respect to the
tenancy of this Lease, including, but not limited to any renewal, extension,
expiration, termination or modification of this Lease, shall be binding upon
each and all of the persons executing this Lease as Tenant with the same force
and effect as if each and all of them had so acted or so given or received such
notice or refund or so signed.
22
ARTICLE 38
PARKING
The use by Tenant, its employees and invitees, of the parking facilities
of the Building shall be on the terms and conditions set forth in EXHIBIT E
attached hereto and by this reference incorporated herein and shall be subject
to such other agreement between Landlord and Tenant as may hereinafter be
established. Tenant, its employees and invitees shall use no more than four (4)
non-exclusive parking spaces per one thousand (1,000) square feet of leased
space. Tenant's use of the parking spaces shall be confined to the Building. If,
in Landlord's reasonable business judgment, it becomes necessary, Landlord shall
exercise due diligence to cause the creation of cross-parking easements and such
other agreements as are necessary to permit Tenant, its employees and invitees
to use parking spaces on the properties and buildings of Signature Center, which
are separate legal parcels from the Building. Tenant acknowledges that other
tenants of the Building and the tenants of the other buildings, their employees
and invitees, may be given the right to park at the Building.
ARTICLE 39
TERMS AND HEADINGS
The words "Landlord" and "Tenant" as used herein shall include the
plural as well as the singular. Words used in any gender include other genders.
The paragraph headings of this Lease are not a part of this Lease and shall have
no effect upon the construction or interpretation of any part hereof.
ARTICLE 40
EXAMINATION OF LEASE
Submission of this instrument for examination or signature by Tenant
does not constitute a reservation of or option for lease, and it is not
effective as a lease or otherwise until execution by and delivery to both
Landlord and Tenant.
ARTICLE 41
TIME
Time is of the essence with respect to the performance of every
provision of this Lease in which time or performance is a factor.
ARTICLE 42
PRIOR AGREEMENT: AMENDMENTS
This Lease contains all of the agreements of the parties hereto with
respect to any matter covered or mentioned in this Lease, and no prior agreement
or understanding pertaining to any such matter shall be effective for any
purpose. No provisions of this Lease may be amended or added to except by an
agreement in writing signed by the parties hereto or their respective successors
in interest.
23
ARTICLE 43
SEPARABILITY
Any provision of this Lease which shall prove to be invalid, void or
illegal in no way affects, impairs or invalidates any other provision hereof,
any such other provisions shall remain in full force and effect.
ARTICLE 44
RECORDING
Neither Landlord nor Tenant shall record this Lease nor a short form
memorandum thereof without the consent of the other.
ARTICLE 45
CONSENTS
Whenever the consent of either party is required hereunder such consent
shall not be unreasonably withheld.
ARTICLE 46
LIMITATION ON LIABILITY
In consideration of the benefits accruing hereunder, Tenant and all
successors and assigns covenant and agree that, in the event of any actual or
alleged failure, breach or default hereunder by Landlord:
(a) The sole and exclusive remedy shall be against the Landlord's
interest in the Building;
(b) No partner, officer, agent or employee of Landlord shall be sued
or named as a party in any suit or action (except as may be necessary to secure
jurisdiction of Landlord);
(c) No service or process shall be made against any partner, officer,
agent or employee of Landlord (except as may be necessary to secure jurisdiction
of Landlord);
(d) No partner, officer, agent or employee of Landlord shall be
required to answer or otherwise plead to any service of process;
(e) No judgment will be taken against any partner, officer, agent or
employee of Landlord;
(f) Any judgment taken against any partner, officer, agent or employee
of Landlord may be vacated and set aside at any time nunc pro nunc;
(g) No writ of execution will ever be levied against the assets of any
partner, officer, agent or employee of Landlord;
24
(h) These covenants and agreements are enforceable both by Landlord
and also by any partner, officer, agent or employee of Landlord.
ARTICLE 47
RIDERS
Clauses, plats and riders, if any, signed by Landlord and Tenant and
affixed to this Lease are a part hereof.
ARTICLE 48
EXHIBITS
All Exhibits attached hereto are incorporated into this Lease.
ARTICLE 49
MODIFICATION FOR LENDER
If, in connection with obtaining construction, interim or permanent
financing for the Building the lender shall request reasonable modifications in
this Lease as a condition to such financing, Tenant will not unreasonably
withhold, delay or defer its consent thereto, provided that such modifications
do not increase the obligations of Tenant hereunder or materially adversely
affect the leasehold interest hereby created or Tenant's rights hereunder.
ARTICLE 50
PROJECT PLANNING
If Landlord requires the Premises for use in conjunction with another
suite or for other reasons connected with the Project planning program, upon
notifying Tenant in writing, Landlord shall have the right to relocate Tenant to
other space in the Project, at Landlord's sole cost and expense, and the terms
and conditions of the original Lease shall remain in full force and effect,
except that a revised EXHIBIT A reflecting the location of the new space shall
be attached to and become a part of this Lease. However, if the new space does
not meet with Tenant's approval, Tenant shall have the right to terminate this
Lease effective thirty (30) days after written notice to Landlord, which notice
shall be given within ten (10) days after receipt of Landlord's notification.
ARTICLE 51
OPTION TO RENEW
Provided that Tenant is not in default under the terms and conditions of
the Lease at the time of its exercise of their Option to Renew, or at the time
of renewal of the Lease, Tenant shall have the right to renew this Lease for one
(1) twelve (12) month term at the then prevailing fair market rent with a
minimum of one hundred eighty (180) days and a maximum two hundred seventy (270)
days written notice to Landlord. This option is personal to Shadrack Films
Incorporated and may not be assigned or transferred to any third party.
25
IN WITNESS WHEREOF, the parties have executed this Lease as of the date first
above written.
LANDLORD: ADDRESS:
PRINCIPAL LIFE INSURANCE COMPANY, c/o PARKWAY PROPERTIES, INC.
an Iowa corporation, for its Real Estate 0000 Xxxxxxx Xxxx
Separate Account Xxxxx 000
Xxxxxxxxxx, XX 00000
By: PRINCIPAL REAL ESTATE
INVESTORS, LLC, a Delaware limited
liability company, its authorized
signatory
By: /S/ XXXXXX X XXXXXX, XX.
---------------------------------
By: Senior Asset Manager
---------------------------------
TENANT: ADDRESS:
SHADRACK FILMS, INC., 0000 XXXX XXXXXX XX., XXXXX 000
A CALIFORNIA CORPORATION XXX XXXXX, XX 00000
By: /S/ XXXXXX XXXXXXXX
---------------------------------
Its: President
--------------------------------
26
EXHIBIT A-1
THE BUILDING
REAL PROPERTY in the City of Pleasanton, County of Alameda, State of California,
described as follows:
PARCEL THREE:
Parcel A, Parcel Map 3972, filed June 27, 1983, in Map Book 138, at Page 65,
Alameda County Records.
Excepting from the above-described parcel of land all oil, gas, minerals and
other hydrocarbon substances in and under or that may be produced from a depth
below 500 feet from the surface of said land, without right of entry upon the
surface of said land for the purpose of mining, drilling, exploring or
extracting such oil, gas minerals and other hydrocarbon substances or other use
of or rights in or to any portion of the surface of said land to a depth of 500
feet below the surface thereof, as reserved in the Deed from Xxxx-XxXxxx
Communities, Inc., to Qualified Investments, Inc., dated June 25, 1967, recorded
June 27, 1967, Series No. AZ/60836, Alameda County Records.
A.P. No. 000-0000-000
PARCEL FOUR:
Parcel B, Parcel Map 3972, filed June 27, 1983, Map Book 138, Page 65, Alameda
County Records, and a portion of Parcel C of said Parcel Map as deeded to Xxxxxx
X. Xxxxx by Independence Savings and Loan Association for the purpose of Lot
Line Adjustment recorded September 19, 1984, Series No. 84-189967, Official
Records, the portion of Lot C described as follows:
Beginning on the East line of Xxxxxxx Drive on the boundary line between Parcel
B and C, as shown on said Parcel Map 3972; thence from said point of beginning,
South 88"21'09" East along said boundary line of 314.37 feet to the Northeast
corner of Parcel B; thence North 01"38'51" East along the direct production
North of the East line of said Parcel B, 31.50 feet; thence North 88" 21' 09",
West, 321.55 feet to the East line of said Xxxxxxx Drive, along an acre of a
curve to the left with a radius 426.50 feet, through a central angle of 4"20'29"
an arc distance of 32.32 feet to the point of beginning.
Excepting therefrom
All oil, gas, minerals and other hydrocarbon substances in and under or that may
be produced from a depth below 500 feet from the surface of said land without
right of entry upon the surface of said land, for the purpose of mining,
drilling, exploring, or extraction such oil, gas, minerals, and other
hydrocarbon substances or other use of or rights in or to any portion of the
surface of said land to a depth of 500 feet below the surface thereof, as
reserved in the Deed from Xxxx-XxXxxx Communities, Inc., to Qualified
Investments, Inc., recorded June 27, 1967, Reel 1988, Image 207, Series No.
AZ/60836, Official Records.
A.P. No. 941-1301-060-01
EXHIBIT A-1
PAGE 1 OF 1
EXHIBIT B
TENANT IMPROVEMENTS
TENANT WILL LEASE PREMISES IN "AS-IS" CONDITION.
IN WITNESS WHEREOF, this Tenant Improvement Agreement is executed as of the date
first above written.
LANDLORD: ADDRESS:
PRINCIPAL LIFE INSURANCE COMPANY, c/o PARKWAY PROPERTIES, INC.
an Iowa corporation, for its Real Estate 0000 Xxxxxxx Xxxx
Separate Account Xxxxx 000
Xxxxxxxxxx, XX 00000
By: PRINCIPAL REAL ESTATE
INVESTORS, LLC, a Delaware limited
liability company, its authorized
signatory
By: /S/ XXXXXX X XXXXXX, XX.
-----------------------------------------
By: Senior Asset Manager
-----------------------------------------
TENANT: ADDRESS:
SHADRACK FILMS, INC., 0000 XXXX XXXXXX XX., XXXXX 000
A CALIFORNIA CORPORATION XXX XXXXX, XX 00000
By: /S/ XXXXXX XXXXXXXX
-----------------------------------------
Its: President
----------------------------------------
EXHIBIT B
PAGE 1 OF 1
EXHIBIT C
STANDARDS FOR UTILITIES AND SERVICES
The following Standards for Utilities and Services are in
effect. Landlord reserves the right to adopt nondiscriminatory modifications and
additions hereto:
As long as Tenant is not in default under any of the terms,
covenants, conditions, provisions, or agreements of this Lease, Landlord shall:
(a)i On Monday through Friday, except holidays, from 7
A.M. to 6 P.M. (and other times for a reasonable additional charge to be fixed
by Landlord), ventilate the Premises and furnish air conditioning or heating on
such days and hours, when in the judgment of Landlord it may be required for the
comfortable occupancy of the Premises. The air conditioning system achieves
maximum cooling when the window coverings are closed. Landlord shall not be
responsible for room temperatures if Tenant does not keep all window coverings
in the Premises closed whenever the system is in operation. Tenant agrees to
co-operate fully at all times with Landlord, and to abide by all regulations and
requirements which Landlord may prescribe for the proper function and protection
of said air conditioning system. Tenant agrees not to connect any apparatus,
device, conduit or pipe to the Building chilled and hot water air conditioning
supply lines. Tenant further agrees that neither Tenant nor its servants,
employees, agents, visitors, licensees or contractors shall at any time enter
mechanical installations or facilities of the Building or adjust, tamper with,
touch or otherwise in any manner affect said installations or facilities. The
cost of maintenance and service calls to adjust and regulate the air
conditioning system shall be charged to Tenant if the need for maintenance work
results from either Tenant's adjustment of room thermostats or Tenant's failure
to comply with its obligations under this section, including keeping window
coverings closed as needed. Such work shall be charged at hourly rates equal to
then current journeymen's wages for air conditioning mechanics.
(a)ii Landlord shall operate and maintain the heating,
cooling and ventilation (HVAC) system for the Premises in a manner sufficient to
maintain an indoor air quality within the limits required by the American
Society of Heating, Air Conditioning and Refrigeration Engineers (ASHRAE)
standard 62-1999.
Tenant shall notify Landlord and its Manager within
two (2) days after Tenant first has knowledge of any of the following conditions
at, in, on or within the Premises: standing water, water leaks, water stains,
humidity, mold growth, or any unusual odors (including, but not limited, musty,
moldy or mildewy odors).
EXHIBIT C
PAGE 1 OF 3
(b) Landlord shall furnish to Tenant after-hours
heating and air conditioning at the rate of $25.00 per hour (two-hour minimum
charge) for such after-hours use. If the actual cost to Landlord of providing
such after-hours heating and air-conditioning increases at any time during the
term of this Lease, Landlord shall have the right to increase the hourly rate
charged by Landlord for such after-hours usage upon at least 10 days prior
notice to Tenant. Landlord shall xxxx Tenant monthly for such after-hours usage
and Tenant shall pay such charges to Landlord, as additional rent, within 20
days after receipt of Landlord's statement of such charges.
(c) Landlord shall furnish to the Premises, during the
usual business hours on business days, electric current sufficient for normal
office use. Tenant agrees, should its electrical installation or electrical
consumption be in excess of the aforesaid quantity or extend beyond normal
business hours, to reimburse Landlord monthly for the measured consumption at
the average cost per kilowatt hour charged to the Building during the period. If
a separate meter is not installed at Tenant's cost, such excess cost will be
established by an estimate agreed upon by Landlord and Tenant, and if the
parties fail to agree, as established by an independent licensed engineer. Said
estimates to be reviewed and adjusted quarterly. Tenant agrees not to use any
apparatus or device in, or upon, or about the premises which may in any way
increase the amount of such services usually furnished or supplied to said
Premises, and Tenant further agrees not to connect any apparatus or device with
wires, conduits or pipes, or other means by which such services are supplied,
for the purpose of using additional or unusual amounts of such services without
written consent of Landlord. Should Tenant use the same to excess, the refusal
on the part of Tenant to pay upon demand of Landlord the amount established by
Landlord for such excess charge shall constitute a breach of the obligation to
pay rent under this Lease and shall entitle Landlord to the rights therein
granted for such breach. At all times Tenant's use of electric current shall
never exceed the capacity of the feeders to the Building or the risers or wiring
installation and Tenants shall not install or use or permit the installation or
use of any computer, larger than personal computer, or electronic data
processing equipment in the Premises, without the prior written consent of
Landlord.
(d) Water will be available in public areas for
drinking and lavatory purposes only, but if Tenant requires, uses or consumes
water for any purposes in addition to ordinary drinking and lavatory purposes of
which fact Tenant constitutes Landlord to be the sole judge, Landlord may
install a water meter and thereby measure Tenant's water consumption for all
purposes. Tenant shall pay Landlord for the cost of the meter and the cost of
the installation thereof and throughout the duration of Tenant's occupancy,
Tenant shall keep said meter and installation equipment in good working order
and repair at Tenant's own cost and expense, in default of which Landlord may
cause such meter and equipment to be replaced or repaired and collect the cost
thereof from Tenant. Tenant agrees to pay for water consumed, as shown on said
meter, as and when bills are rendered, and on default in making such payment,
Landlord may pay such charges and collect the same from Tenant. Any such costs
or expenses incurred, or payments made by Landlord for any of the reasons or
purposes hereinabove stated shall be deemed to be additional rent payable by
Tenant and collectible by Landlord as such.
EXHIBIT C
PAGE 2 OF 3
(e) Provide janitor service to the Premises, provided
the same are kept reasonably in order by Tenant, and if to be kept clean by
Tenant, no one other than persons approved by Landlord shall be permitted to
enter the Premises for such purposes. If the Premises are not used exclusively
as offices, they shall be kept clean and in order by Tenant, at Tenant's
expense, and to the satisfaction of Landlord, and by persons approved by
Landlord. Tenant shall pay to Landlord the cost of removal of any of Tenant's
refuse and rubbish, to the extent that the same exceeds the refuse and rubbish
usually attendant upon the use of the Premises as offices.
(f) Landlord reserves the right to stop service of the
elevator, plumbing, ventilation, air conditioning and electric systems, when
necessary, by reason of accident or emergency or for repairs, alterations or
improvements, in the judgment of Landlord desirable or necessary to be made,
until said repairs, alterations or improvements shall have been completed, and
shall further have no responsibility or liability for failure to supply elevator
facilities, plumbing, ventilating, air conditioning or electric service, when
prevented from so doing by strike or accident or by any cause beyond Landlord's
reasonable control, or by laws, rules, orders, ordinances, directions,
regulations or requirements of any federal, state, county or municipal authority
or failure of gas, oil or other suitable fuel supply or inability by exercise of
reasonable diligence to obtain gas, oil or other suitable fuel. It is expressly
understood and agreed that any covenants on Landlord's part to furnish any
service pursuant to any of the terms, covenants, conditions, provisions or
agreements of this Lease, or to perform any act or thing for the benefit of
Tenant, shall not be deemed breached if Landlord is unable to furnish or perform
the same by virtue of a strike or labor trouble or any other cause whatsoever
beyond Landlord's control.
(g) Landlord shall maintain and repair the riser
closet on the ground floor of the Building and shall maintain or cause the
appropriate telecommunications service company to maintain the
telecommunications cabling and wiring to the Building. The cost of such
maintenance and repair shall be included in Direct Expenses. Tenant shall be
responsible for the installation, maintenance and repair at its expense of the
telecommunications cabling and wiring from the riser closet to the Premises and
shall use only SBC for such purposes. Tenant shall also be responsible for the
installation, maintenance and repair of any telecommunications cabling and
wiring within the Premises but may use any telecommunications service company to
perform such work.
EXHIBIT C
PAGE 3 OF 3
EXHIBIT D
RULES AND REGULATIONS
Signature Center
1. Except as specifically provided in the Lease to which these Rules
and Regulations are attached, no sign, placard, picture, advertisement, name or
notice shall be installed or displayed on any part of the outside or inside of
the Building without the prior written consent of Landlord. Landlord shall have
the right to remove, at Tenant's expense and without notice, any sign installed
or displayed in violation of this rule. All approved signs or lettering on doors
and walls shall be printed, painted, affixed or inscribed at the expense of
Tenant by a person approved by Landlord.
2. If Landlord objects in writing to any curtains, blinds, shades,
screens or hanging plants or other similar objects attached to or used in
connection with any window or door of the Premises, or placed on any windowsill,
which is visible from the exterior of the Premises, Tenant shall immediately
discontinue such use. Tenant shall not place anything against or near glass
partitions or doors or windows which may appear unsightly from outside the
Premises.
3. Tenant shall not obstruct any sidewalks, halls, passages, exits,
entrances, elevators, escalators, or stairways of the Building. The halls,
passages, exits, entrances, elevators, and stairways are not open to the general
public, but are open, subject to reasonable regulation, to Tenant's business
invitees. Landlord shall in all cases retain the right to control and prevent
access thereto of all persons whose presence in the judgment of Landlord would
be prejudicial to the safety, character, reputation and interest of the Building
and its tenants; provided that nothing herein contained shall be construed to
prevent such access to persons with whom any tenant normally deals in the
ordinary course of its business, unless such persons are engaged in illegal or
unlawful activities. No tenant and no employee or invitee of any tenant shall go
upon the roof of any building of the Project.
4. The directory of the building will be provided exclusively for the
display of the name and location of tenants only, and Landlord reserves the
right to exclude any other names therefrom.
5. All cleaning and janitorial services for the Building and the
Premises shall be provided exclusively through Landlord, and except with the
written consent of Landlord, no person or persons other than those approved by
Landlord shall be employed by Tenant or permitted to enter the Building for the
purpose of cleaning the same. Tenant shall not cause any unnecessary labor by
carelessness or indifference to the good order and cleanliness of the Premises.
EXHIBIT D
PAGE 1 OF 5
6. Landlord will furnish Tenant, free of charge, with two keys to
each door lock in the Premises. Landlord may make a reasonable charge for any
additional keys. Tenant shall not make or have made additional keys, and Tenant
shall not alter any lock or install a new additional lock or bolt on any door of
its Premises. Tenant, upon the termination of its tenancy, shall deliver to
Landlord the keys of all doors which have been furnished to Tenant, and in the
event of loss of any keys so furnished, shall pay Landlord therefor.
7. If Tenant requires telegraphic, telephonic, burglar alarm or
similar services, it shall first obtain, and comply with, Landlord's
instructions in their installation.
8. Tenant shall not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to carry and
which is allowed by law. Landlord shall have the right to prescribe the weight,
size and position of all equipment, materials, furniture or other property
brought into the Building. Heavy objects shall, if considered necessary by
Landlord, stand on such platforms as determined by Landlord to be necessary to
properly distribute the weight, which platforms shall be provided at Tenant's
expense. Business machines and mechanical equipment belonging to Tenant, which
cause noise or vibration that may be transmitted to the structure of the
Premises or to any space therein to such a degree to be objectionable to
Landlord or to any tenants in the Building, shall be placed and maintained by
Tenant, at Tenant's expense, on vibration eliminators or other devices
sufficient to eliminate noise or vibration. The persons employed to move such
equipment in or out of the Premises must be acceptable to Landlord. Landlord
will not be responsible for loss of, or damage to, any such equipment or other
property from any cause, and all damage done to the Premises, by maintaining or
moving such equipment or other property shall be repaired at the expense of
Tenant.
9. Tenant shall not use or keep in the Premises any kerosene,
gasoline or inflammable or combustible fluid or material other than those
limited quantities necessary for the operation or maintenance of office
equipment. Tenant shall not use or permit to be used in the Premises any foul or
noxious gas or substance, 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, nor shall Tenant bring into or
keep in or about the Premises any birds or animals.
10. Tenant shall not use any method of heating or air-conditioning
other than that supplied by Landlord.
11. Tenant shall not waste electricity, water or air-conditioning
and agrees to cooperate fully with Landlord to assure the most effective
operation of the Premises' heating and air-conditioning and to comply with any
governmental energy-saving rules, laws or regulations of which Tenant has actual
notice, and shall refrain from attempting to adjust controls. Tenant shall keep
corridor doors closed, and shall close window coverings at the end of each
business day.
EXHIBIT D
PAGE 2 OF 5
12. Landlord reserves the right, exercisable without notice and
without liability to Tenant, to change the name and street address of the
Premises.
13. Landlord reserves the right to exclude from the Building between
the hours of 6 p.m. and 7 a.m. the following day, or such other hours as may be
established from time to time by Landlord, and on Sundays and legal holidays,
any person unless that person is known to the person or employee in charge of
the Building and has a pass or is properly identified. Tenant shall be
responsible for all persons for whom it requests passes and shall be liable to
Landlord for all acts of such persons. Landlord shall not be liable for damages
for any error with regard to the admission to or exclusion from the Building of
any person. Landlord reserves the right to prevent access to the Building in
case of invasion, mob, riot, public excitement or other commotion by closing the
doors or by other appropriate action.
14. Tenant shall close and lock the doors of its Premises and
entirely shut off all water faucets or other water apparatus, and electricity,
gas or air outlets before tenant and its employees leave the Premises. Tenant
shall be responsible for any damage or injuries sustained by other tenants or
occupants of the Building or by Landlord for noncompliance with this rule.
15. Tenant shall not obtain for use on the Premises ice, drinking
water, food beverages, towel or other similar services upon the Premises, except
at such hours and under such regulations as may be fixed by Landlord.
16. The toilet rooms, toilets, urinals, wash bowls and other
apparatus shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be thrown
therein. The expense of any breakage, stoppage of damage resulting from the
violation of this rule shall be borne by the tenant who, or whose employees or
invitees, shall have caused it.
17. Tenant shall not sell, or permit the sale at retail, of
newspapers, magazines, periodicals, theater tickets or any other goods or
merchandise to the general public in or on the Premises. Tenant shall not make
any room-to-room solicitation of business from other tenants in the Building.
Tenant shall not use the Premises for any business or activity other than that
specifically provided for in Tenant's Lease.
18. Tenant shall not install any radio or television antenna,
loudspeaker or other devices on the roof or exterior walls of the Premises.
Tenant shall not interfere with radio or television broadcasting or reception
from or in the Building or elsewhere.
EXHIBIT D
PAGE 3 OF 5
19. Tenant shall not xxxx, drive nails, screw or drill into the
partitions, woodwork or plaster or in any way deface the Premises or any part
thereof, except in accordance with the provisions of the Lease pertaining to
alterations. Landlord reserves the right to direct electricians as to where and
how telephone and telegraph wires are to be introduced to the Premises. Tenant
shall not cut or bore holes for wires. Tenant shall not affix any floor covering
to the floor of the Premises in any manner except as approved by Landlord.
Tenant shall repair any damage resulting from noncompliance with this rule.
20. Tenant shall not install, maintain or operate upon the Premises
any vending machines without the written consent of Landlord.
21. Canvassing, soliciting and distributing of handbills or any
other written material, and peddling in the Building are prohibited, and Tenant
shall cooperate to prevent such activities.
22. Landlord reserves the right to exclude or expel from the
Building any person who, in Landlord's judgment, is intoxicated or under the
influence of liquor or drugs or who is in violation of any of the Rules and
Regulations of the Building.
23. Tenant shall store all its trash and garbage within its Premises
or in other facilities provided by Landlord. Tenant shall not place in any trash
box or receptacle any material which cannot be disposed of in the ordinary and
customary manner of trash and garbage disposal. All garbage and refuse disposal
shall be made in accordance with directions issued from time to time by
Landlord.
24. The Premises shall not be used for the storage of merchandise
held for sale to the general public, or for lodging or for manufacturing of any
kind, nor shall the Premises be used for any improper, immoral or objectionable
purpose. No cooking shall be done or permitted on the Premises without
Landlord's consent, except that use by Tenant of Underwriter's Laboratory
approved equipment for brewing coffee, tea, hot chocolate and similar beverages
or use of microwave ovens for employee use shall be permitted, provided that
such equipment and use is in accordance with all applicable federal, state,
county and city laws, codes, ordinances, rules and regulations.
25. Tenant shall not use in the Premises any hand truck except
those equipped with rubber tires and side guards or such other material-handling
equipment as Landlord may approve. Tenant shall not bring any other vehicles of
any kind into the Premises.
EXHIBIT D
PAGE 4 OF 5
26. Without the written consent of Landlord, Tenant shall not use
the name of the Building in connection with or in promoting or advertising the
business of Tenant except as Tenant's address.
27. Tenant shall comply with all safety, fire protection and
evacuation procedures and regulations established by Landlord or any
governmental agency.
28. Tenant and its employees, guests and invitees shall not enter
into the waterways located in the Building. No object of any kind may be floated
or submerged in the waterways, and no foreign substance of any kind may be
thrown in the waterways. The expense of any breakage or damage to any mechanical
equipment related to the waterways resulting from violation of this rule or any
expense incurred restoring the waterways to their normal condition shall be
borne by the tenant who, or whose employees or invitees, shall have caused such
damage.
29. Tenant assumes any and all responsibility for protecting its
Premises from theft, robbery and pilferage, which includes keeping doors locked
and other means of entry to the Premises closed.
30. Tenant's requirements will be attended to only upon
appropriate application to the Building management office by an authorized
individual. Employees of Landlord shall not perform any work or do anything
outside of their regular duties unless under special instructions from Landlord,
and no employee of Landlord will admit any person (Tenant or otherwise) to any
office without specific instructions from Landlord.
31. Landlord may waive any one or more of these Rules and
Regulations for the benefit of Tenant or any other tenant, but no such waiver by
Landlord shall be construed as a waiver of such Rules and Regulations in favor
of Tenant or any other tenant, nor prevent Landlord from thereafter enforcing
any such Rules and Regulations against any or all of the tenants of the
Building.
32. These Rules and Regulations are in addition to, and shall not
be construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of Tenant's lease of its Premises in the
Building.
33. Landlord reserves the right to make such other and reasonable
Rules and Regulations as, in its judgment, may from time to time be needed for
safety and security, for care and cleanliness of the Building and for the
preservation of good order therein. Tenant agrees to abide by all such Rules and
Regulations hereinabove stated and any additional rules and regulations which
are adopted.
34. Tenant shall be responsible for the observance of all of the
foregoing rules by Tenant's employees, agents, clients, customers, invitees and
guests.
EXHIBIT D
PAGE 5 OF 5
EXHIBIT E
PARKING RULES AND REGULATIONS
The following rules and regulations shall govern use of the parking facilities
which are appurtenant to the Building.
1. All claimed damage or loss must be reported and itemized in
writing delivered to the Landlord within ten business days after
any claimed damage or loss occurs. Any claim not so made is
waived. Landlord has the option to make repairs at its expense of
any claimed damage within two business days after filing of any
claim. In all court actions the burden of proof to establish a
claim remains with Tenant. Court actions by Tenant for any claim
must be filed in the court of jurisdiction where a claimed loss
occurred within ninety days after date of damage or loss. Landlord
is not responsible for damage by water, fire, or defective brakes,
or parts, or for the act of omissions of others, or for articles
left in the car. The total liability of Landlord is limited to
$250.00 for all damages or loss to any car. Landlord is not
responsible for loss of use.
2. Tenant shall not park or permit the parking of any vehicle under
its control in any parking areas designated by Landlord as areas
for parking by visitors to the Building. Tenant shall not leave
vehicles in the parking areas overnight nor park any vehicles in
the parking areas other than automobiles, motorcycles, motor
driven or non-motor driven bicycles or four-wheeled trucks.
3. Parking stickers or any other device or form of identification
supplied by Landlord as a condition of use of the Parking
Facilities shall remain the property of Landlord. Such parking
identification device must be displayed as requested and may not
be mutilated in any manner. The serial number of the parking
identification device may not be obliterated. Devices are not
transferable and any device in the possession of an unauthorized
holder will be void.
4. No overnight or extended term storage of vehicles shall be
permitted.
5. Vehicles must be parked entirely within the painted stall lines of
a single parking stall.
6. All directional signs and arrows must be observed.
7. The speed limit within all parking areas shall be 5 miles per
hour.
EXHIBIT E
PAGE 1 OF 2
8. Parking is prohibited:
(a) in areas not striped for parking;
(b) in aisles;
(c) where "no parking" signs are posed;
(d) on ramps;
(e) in cross hatched areas; and
(f) in such other areas as may be designated by Landlord or
Landlord's Parking Operator.
9. Every xxxxxx is required to park and lock his own vehicle. All
responsibility for damage to vehicles is assumed by the xxxxxx.
10. Loss of theft of parking identification devices from automobiles
must be reported immediately, and a lost or stole report must be
filed by the customer at that time. Landlord has the right to
exclude any car from the parking facilities that does not have an
identification.
11. Any parking identification devices reported lost or stolen found
on any unauthorized car will be confiscated and the illegal holder
will be subject to prosecution.
12. Lost or stolen devices found by the purchaser must be reported
immediately to avoid confusion.
13. Washing, waxing, cleaning or servicing of any vehicle in any area
not specifically reserved for such purpose is prohibited.
14. Landlord reserves the right to refuse the sale of monthly stickers
or other parking identification devices to any tenant or person
and/or his agents or representatives who willfully refuse to
comply with these Rules and Regulations and all unposted City,
State or Federal ordinances, laws or agreements.
15. Landlord reserves the right to modify and/or adopt such other
reasonable and non-discriminatory rules and regulations for the
parking facilities, as it deems necessary for the operation of the
parking facilities. Landlord may refuse to permit any person who
violates these rules to park in the parking facilities, and any
violation of the rules shall subject the car to removal.
EXHIBIT E
PAGE 2 OF 2