EXHIBIT 10.53
OFFICE LEASE
THIS OFFICE LEASE ("Lease") is made between XXXXXXX PROPERTIES, L.P., a
California limited partnership ("Landlord"), and E*Comnetrix, Inc, a California
corporation ("Tenant"), as of June 21, 2001 (the "date of this Lease").
BASIC LEASE INFORMATION
Project: Watergate Office Towers
Building: 0000 Xxxxxx Xxxxxx
Description of Premises: Suite:1205 (the Premises is as outlined in red or as
shown in cross-hatching on Exhibit B)
Rentable Area OF PREMISES: approximately 1,601 rentable square feet
Permitted Use: General office
Scheduled Term Commencement Date: August 1, 2001
Scheduled Initial Term: 60 months SCHEDULED EXPIRATION DATE: July 31, 2006
Base Rent:
(a) Initial Annual Base Rent $54,754.20
(b) Initial Monthly Installment of Base Rent: $4,562.85
(c) Subject to increase pursuant to Paragraph 3.1(b) as follows:
8/1/01 - 7/31/02 $4,562.85 per month
8/1/02 - 7/31/03 $4,699.74 per month
8/1/03 - 7/31/04 $4,840.73 per month
8/1/04 - 7/31/05 $4,985.95 per month
8/1/05 - 7/31/06 $5,135.53 per month
Security Deposit: $ 10,000.00 as provided in Paragraph 5 herein.
Base Year for Operating Expenses: Calendar Year 2001
Tenant's Proportionate Share of Building: 0.004% of Project: N/A%
PARKING DENSITY: Three (3) spaces per 1,000 usable square
feet of the Premises
OCCUPANCY DENSITY: Four (4) persons per 1,000 rentable square feet of the
Premises
TENANT'S NAICS CODE:_________________________
TENANT CONTACT: Name: Xxxx Xxxxx
Telephone Number: (000) 000-0000
FAX: (000) 000-0000
Addresses for Notices : To: Tenant To: Landlord
0000 Xxxxxx Xxxxxx 2200 Xxxxxx Street
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Xxxxxxxxxx, XX 00000 Suite 200
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Attn: President Xxxxxxxxxx, XX 00000
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FAX: (000) 000-0000 Attn: Vice President
FAX: (000) 000-0000
TENANT'S BILLING ADDRESS [If different from Notice Address]:
LANDLORD'S REMITTANCE ADDRESS: XX Xxx 00000 Xxxx. 00000, Xxx Xxxxxxxxx, XX 00000
Guarantor: N/A
IN WITNESS WHEREOF, the parties hereto have executed this Lease, consisting
of the foregoing Basic Lease Information, the following Standard Lease
Provisions consisting of Paragraphs 1 through 21 (the "Standard Lease
Provisions") and Exhibits A, B, C, D and E all of which are incorporated herein
by this reference (collectively, this "Lease"). In the event of any conflict
between the provisions of the Basic Lease Information and the provisions of the
Standard Lease Provisions, the Standard Lease Provisions shall control.
"Landlord" "Tenant"
XXXXXXX PROPERTIES, L.P., E*Comnetrix, Inc,
a California limited partnership, a California corporation
By: Xxxxxxx Properties, Inc.,
a Maryland corporation, its general partner By:_________________________
Xxxx Xxxxx
By: Its:President and Chief
------------------------------ Financial Officer
Xxxx X. Xxxxxxx
Its:Sr. Vice President Date:_______________________
------------------------------
Date:
STANDARD LEASE PROVISIONS
1. Premises. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, subject to all of the terms and conditions set forth herein, those
certain premises (the "Premises") described in the Basic Lease Information and
as outlined in red or as shown in the cross-hatched markings on the floor plan
attached hereto as Exhibit B. The parties agree that for all purposes hereunder
the Premises shall be stipulated to contain the number of square feet of
rentable area described in the Basic Lease Information. The Premises are located
in that certain office building (the "Building") whose street address is as
shown in the Basic Lease Information. The Building is located on that certain
land which is also improved with landscaping, parking facilities and other
improvements and appurtenances. Such land, together with all such improvements
and appurtenances and the Building, are all or part of a project which may
consist of more than one building and additional facilities, as described in the
Basic Lease Information (collectively referred to herein as the "Project").
However, Landlord reserves the right to make such changes, additions and/or
deletions to such land, the Building and the Project and/or the common areas and
parking or other facilities thereof as it shall determine from time to time.
2. Term.
(a) Unless earlier terminated in accordance with the provisions hereof, the
term of this Lease (the "Term") shall be as set forth in the Basic Lease
Information; provided, however, in the event the Term Commencement Date (defined
below) occurs on a date other than the first day of a calendar month, there
shall be added to the Term the partial month ("Partial Lease Month") from the
Term Commencement Date to (but not including) the first day of the calendar
month following the Term Commencement Date.
(b) Subject to the provisions of this Paragraph 2, the Term shall commence
on the date (the "Term Commencement Date") which is the earlier of the date
Landlord delivers the Premises to Tenant or the date Tenant takes possession or
commences use of any portion of the Premises for any business purpose (including
moving in). If this Lease contemplates the construction of tenant improvements
in the Premises by Landlord, Landlord shall be deemed to have delivered the
Premises to Tenant on the date determined by Landlord's space planner to be the
date of substantial completion of the work to be performed by Landlord (as
described in the Improvement Agreement, if any, attached hereto as Exhibit C)
(the "Improvement Agreement"). Notwithstanding the foregoing, in the event that
Landlord is delayed in delivering the Premises by reason of any act or omission
of Tenant, the Term Commencement Date shall be (unless Tenant takes possession
or commences use of the Premises prior thereto) the date the Premises would have
been delivered by Landlord had such Tenant caused delay(s) not occurred. This
Lease shall be a binding contractual obligation effective upon execution hereof
by Landlord and Tenant, notwithstanding the later commencement of the Term.
Tenant acknowledges that Tenant has inspected and accepts the Premises in their
present condition, "as is", except for tenant improvements (if any) to be
constructed by Landlord in the Premises pursuant to the Improvement Agreement,
if any.
(c) In the event the Term Commencement Date is delayed or otherwise does
not occur on the Scheduled Term Commencement Date specified in the Basic Lease
Information, this Lease shall not be void or voidable, the Term shall not be
extended (except as provided in Paragraph 2(a)), and Landlord shall not be
liable to Tenant for any loss or damage resulting therefrom; provided that
Tenant shall not be liable for any Rent (defined below) for any period prior to
the Term Commencement Date except as may otherwise be provided in this Lease.
Landlord may deliver to Tenant Landlord's standard form "Start-Up Letter" for
Tenant's acknowledgment and confirmation of the Term Commencement Date. Tenant
shall execute and deliver such Start-Up Letter to Landlord within five (5) days
after receipt thereof, but Tenant's failure or refusal to do so shall not negate
Tenant's acceptance of the Premises or affect determination of the Term
Commencement Date.
3. Rent and Operating Expenses.
3.1 Base Rent
(a) Subject to the provisions of this Paragraph 3.1, Tenant agrees to pay
during the Term as Base Rent for the Premises the sums specified in the Basic
Lease Information (as increased from time to time as provided in the Basic Lease
Information or as may otherwise be provided in this Lease) ("Base Rent").
(b) Base Rent shall increase as set forth in the Basic Lease Information or
as may otherwise be provided in this Lease.
(c) Except as expressly provided to the contrary herein, Base Rent shall be
payable in equal consecutive monthly installments, in advance, without deduction
or offset, commencing on the Term Commencement Date and continuing on the first
day of each calendar month thereafter. However, the first full monthly
installment of Base Rent shall be payable upon Tenant's execution of this Lease.
If the Term Commencement Date is a day other than the first day of a calendar
month, then the Rent for the Partial Lease Month (the "Partial Lease Month
Rent") shall be prorated based on a month of 30 days. The Partial Lease Month
Rent shall be payable by Tenant on the first day of the calendar month next
succeeding the Term Commencement Date. Base Rent, all forms of additional rent
payable hereunder by Tenant and all other amounts, fees, payments or charges
payable hereunder by Tenant (collectively, "Additional Rent") shall (i) each
constitute rent payable hereunder (and shall sometimes collectively be referred
to herein as "Rent"), (ii) be payable to Landlord in lawful money of the United
States when due without any prior demand therefor, except as may be expressly
provided to the contrary herein, and (iii) be payable to Landlord at Landlord's
Remittance Address set forth in the Basic Lease Information or to such other
person or to such other place as Landlord may from time to time designate in
writing to Tenant. Any Rent or other amounts payable to Landlord by Tenant
hereunder for any fractional month shall be prorated based on a month of 30
days.
3.2 Operating Expenses.
(a) Subject to the provisions of this Lease, Tenant shall pay to Landlord
pursuant to this Paragraph 3.2 as Additional Rent an amount equal to Tenant's
Proportionate Share (defined below) of the excess, if any, of Operating Expenses
(defined below) allocable to each Expense Year (defined below) over Operating
Expenses allocable to the Base Year (the "Base Year") specified in the Basic
Lease Information ("Base Year Operating Expenses"). Base Year Operating Expenses
shall not include market-wide labor-rate increases due to extraordinary
circumstances, including, but not limited to, boycotts and strikes, and utility
rate increases due to extraordinary circumstances including, but not limited to,
conservation surcharges, boycotts, embargoes or other shortages, or amortized
costs relating to capital improvements. "Tenant's Proportionate Share" is,
subject to the provisions of this Paragraph 3.2, the percentage number
(representing the Premises' share of the Building and the Project) set forth in
the Basic Lease Information. An "Expense Year" is any calendar year after the
Base Year any portion of which falls within the Term.
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(b) "Operating Expenses" means all costs, expenses and obligations
incurred or payable by Landlord because of or in connection with the operation,
ownership, repair, replacement, restoration, management or maintenance of the
Project during or allocable to the Base Year or an Expense Year (as applicable)
during the Term (other than costs, expenses or obligations specifically
attributable to Tenant or other tenants of the Building or Project), all as
determined by sound accounting principles reasonably selected by Landlord and
consistently applied, including without limitation the following:
(i) All property taxes, assessments, charges or impositions and
other similar governmental ad valorem or other charges levied on or attributable
to the Project(including personal and real property contained therein) or its
ownership, operation or transfer, and all taxes, charges, assessments or similar
impositions imposed in lieu or substitution (partially or totally) of the same
(collectively, "Taxes"). "Taxes" shall also include (A) all taxes, assessments,
levies, charges or impositions on any interest of Landlord in the Project, the
Premises or in this Lease, or on the occupancy or use of space in the Project or
the Premises; or on the gross or net rentals or income from the Project,
including, without limitation, any gross income tax, excise tax, sales tax or
gross receipts tax levied by any federal, state or local governmental entity
with respect to the receipt of Rent; or (B) any possessory taxes charged or
levied in lieu of real estate taxes; and
(ii) The cost of all utilities,supplies, equipment, tools, materials,
service contracts, janitorial services, waste and refuse disposal, landscaping,
and insurance (with the nature and extent of such insurance to be carried by
Landlord to be determined by Landlord in its sole and absolute discretion);
insurance deductibles; compensation and benefits of all persons who perform
services connected with the operation, management, maintenance or repair of the
Project; personal property taxes on and maintenance and repair of equipment and
other personal property; costs and fees for administration and management of the
Project, whether by Landlord or by an independent contractor, and other
management office operational expenses; rental expenses for or a reasonable
allowance for depreciation of, personal property used in the operation,
management, maintenance or repair of the Project, license, permit and inspection
fees; and all inspections, activities, alterations, improvements or other
matters required by any governmental or quasi-governmental authority or by
Regulations (defined below), for any reason, including, without limitation,
capital improvements, whether capitalized or not; all capital additions,
repairs, replacements and improvements made to the Project or any portion
thereof by Landlord (A) of a personal property nature and related to the
operation, repair, maintenance or replacement of systems, facilities, equipment
or components of (or which service) the Project or portions thereof, (B)
required or provided in connection with any existing or future applicable
municipal, state, federal or other governmental statutes, rules, requirements,
regulations, laws, standards, orders or ordinances including, without
limitation, zoning ordinances and regulations, and covenants, easements and
restrictions of record (collectively, "Regulations"), (C) which are designed to
improve the operating efficiency of the Project, or (D) determined by Landlord
to be required to keep pace or be consistent with safety or health advances or
improvements (with such capital costs to be amortized over such periods as
Landlord shall determine with a return on capital at such rate as would have
been paid by Landlord on funds borrowed for the purpose of constructing such
capital items); common area repair, resurfacing, replacement, operation and
maintenance; security systems or services, if any, deemed appropriate by
Landlord (but without obligation to provide the same); and any other cost or
expense incurred or payable by Landlord in connection with the operation,
ownership, repair, replacement, restoration, management or maintenance of the
Project.
(iii) Notwithstanding anything in this Lease to the contrary,in no
event shall the component of Operating Expenses for any Expense Year consisting
of electrical costs be less than the component of Base Year Operating Expenses
consisting of electrical costs.
(c) Variable items of Operating Expenses (e.g., expenses that are affected
by variations in occupancy levels) for the Base Year and each Expense Year
during which actual occupancy of the Project is less than ninety-five percent
(95%) of the rentable area of the Project shall be appropriately adjusted, in
accordance with sound accounting principles, to reflect ninety-five percent
(95%) occupancy of the existing rentable area of the Project during such period.
(d) Prior to or shortly following the commencement of (and from time to
time during) each Expense Year of the Term following the Term Commencement Date,
Landlord shall have the right to give to Tenant a written estimate of Tenant's
Proportionate Share of the projected excess, if any, of the Operating Expenses
for the Project for such year over the Base Year Operating Expenses. Commencing
with the first day of the calendar month following the month in which such
estimate was delivered to Tenant, Tenant shall pay such estimated amount (less
amounts, if any, previously paid toward such excess for such year) to Landlord
in equal monthly installments over the remainder of such calendar year, in
advance on the first day of each month during such year (or remaining months, if
less than all of the year remains). Subject to the provisions of this Lease,
Landlord shall endeavor to furnish to Tenant within a reasonable period after
the end of each Expense Year, a statement (a "Reconciliation Statement")
indicating in reasonable detail the excess, if any, of Operating Expenses
allocable to such Expense Year over Base Year Operating Expenses and the parties
shall, within thirty (30) days thereafter, make any payment or allowance
necessary to adjust Tenant's estimated payments to Tenant's actual share of such
excess as indicated by such annual Reconciliation Statement.
(e) Tenant shall pay ten (10) days before delinquency all taxes and
assessments levied against any personal property or trade fixtures of Tenant in
or about the Premises. If any such taxes or assessments are levied against
Landlord or Landlord's property or if the assessed value of the Project is
increased by the inclusion therein of a value placed upon such personal property
or trade fixtures, Tenant shall, within ten (10) days of demand, reimburse
Landlord for the taxes and assessments so levied against Landlord, or any such
taxes, levies and assessments resulting from such increase in assessed value.
(f) Any delay or failure of Landlord in (i) delivering any estimate or
statement described in this Paragraph 3.2, or (ii) computing or billing Tenant's
Proportionate Share of excess Operating Expenses shall not (A) constitute a
waiver of its right to subsequently deliver such estimate or statement or
require any increase in Rent contemplated by this Paragraph 3.2, or (B) in any
way waive or impair the continuing obligations of Tenant under this Paragraph
3.2. Provided that Tenant is not then in default under this Lease, subject to
compliance with Landlord's standard procedures for the same, Tenant shall have
the right, upon the condition that Tenant shall first pay to Landlord the amount
in dispute, to have independent certified public accountants of national
standing (who are not compensated on a contingency basis) of Tenant's selection
(and subject to Landlord's reasonable approval) review Landlord's Operating
Expense books and records relating to the Expense Year subject to a particular
Reconciliation Statement during the sixty-day period following delivery to
Tenant of the Reconciliation Statement for such Expense Year. If such review
discloses a liability for a refund in excess of ten percent (10%) of Tenant's
Proportionate Share of Operating Expenses previously reported, the cost of such
review shall be borne by Landlord; otherwise such cost shall be borne by Tenant.
Tenant waives the right to dispute or contest, and shall have no right to
dispute or contest, any matter relating to the calculation of Operating Expenses
or other forms of Rent under this Paragraph 3.2 with respect to each Expense
Year for which a Reconciliation Statement is given to Tenant if no claim or
dispute with respect thereto is asserted by Tenant in writing to Landlord within
sixty (60) days of delivery to Tenant of the original or most recent
Reconciliation Statement with respect thereto.
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4. Delinquent Payment; Handling Charges. In the event Tenant is more than three
(3) days late in paying any amount of Rent or any other payment due under this
Lease, Tenant shall pay Landlord, within ten (10) days of Landlord's written
demand therefor, a late charge equal to five percent (5%) of the delinquent
amount, or $150.00, whichever amount is greater. In addition, any amount due
from Tenant to Landlord hereunder which is not paid within ten (10) days of the
date due shall bear interest at an annual rate (the "Default Rate") equal to
twelve percent (12%).
5. Security Deposit. Contemporaneously with the execution of this Lease, Tenant
shall pay to Landlord the amount of Security Deposit (the "Security Deposit")
specified in the Basic Lease Information, which shall be held by Landlord to
secure Tenant's performance of its obligations under this Lease. Landlord is
hereby granted a security interest in the Security Deposit in accordance with
applicable provisions of the California Commercial Code. The Security Deposit is
not an advance payment of Rent or a measure or limit of Landlord's damages upon
a default by Tenant or an Event of Default (defined below). If Tenant defaults
with respect to any provision of this Lease, Landlord may, but shall not be
required to, use, apply or retain all or any part of the Security Deposit (a)
for the payment of any Rent or any other sum in default, (b) for the payment of
any other amount which Landlord may spend or become obligated to spend by reason
of such default by Tenant, and (c) to compensate Landlord for any other loss or
damage which Landlord may suffer by reason of such default by Tenant. If any
portion of the Security Deposit is so used or applied, Tenant shall, within ten
(10) days after demand therefor by Landlord, deposit with Landlord cash in an
amount sufficient to restore the Security Deposit to the amount required to be
maintained by Tenant hereunder. Within a reasonable period following expiration
or the sooner termination of this Lease, provided that Tenant has performed all
of its obligations hereunder, Landlord shall return to Tenant the remaining
portion of the Security Deposit. The Security Deposit may be commingled by
Landlord with Landlord's other funds, and no interest shall be paid thereon. If
Landlord transfers its interest in the Premises, then Landlord may assign the
Security Deposit to the transferee and thereafter Landlord shall have no further
liability or obligation for the return of the Security Deposit. Tenant hereby
waives the provisions of Section 1950.7 of the California Civil Code, and all
other provisions of any Regulations, now or hereinafter in force, which
restricts the amount or types of claim that a landlord may make upon a security
deposit or imposes upon a landlord (or its successors) any obligation with
respect to the handling or return of security deposits. Provided that Tenant has
not been in Default during the Term of the Lease, at any time after the end of
the thirtieth (30th) month following the Term Commencement Date, Tenant may
request, by providing written notice to Landlord, a reduction in the Security
Deposit to an amount equal to Five thousand and No/100 Dollars ($5,000.00).
6. Landlord's Obligations.
6.1 Services. Subject to the provisions of this Lease, Landlord shall
furnish to Tenant during the Term (a) city or utility company water at those
points of supply provided for general use of the tenants of the Building; (b)
subject to mandatory and voluntary Regulations, heating and air conditioning
during ordinary business hours of generally recognized business days designated
by Landlord (which in any event shall not include Saturdays, Sundays or legal
holidays) ("Business Hours) for the Building at such temperatures and in such
amounts as Landlord reasonably determines is appropriate for normal comfort for
normal office use in the Premises; (c) janitorial services to the Premises on
weekdays, other than on legal holidays, for Building-standard installations; (d)
nonexclusive passenger elevator service; and (e) adequate electrical current
during such Business Hours for equipment that does not require more than 110
volts and whose electrical energy consumption does not exceed normal office
usage in a premises of the size of the Premises, as determined by Landlord. If
Tenant desires any of the services specified in this Paragraph 6.1 at any time
other than during Business Hours, then subject to such nondiscriminatory
conditions and standards as Landlord shall apply to the same, upon the written
request of Tenant, such services shall be supplied to Tenant in accordance with
Landlord's customary procedures for the Building, including such advance request
deadlines as Landlord shall require from time to time, and Tenant shall pay to
Landlord Landlord's then customary charge for such services within ten (10) days
after Landlord has delivered to Tenant an invoice therefor. Landlord reserves
the right to change the supplier or provider of any such service from time to
time. Tenant shall not have the right to obtain any such service for the
Premises directly from a supplier or provider of such service except as provided
in Paragraph 6.4 below.
6.2 Excess Utility Use. Landlord shall not be required to furnish
electrical current for, and Tenant shall not install or use, without Landlord's
prior written consent, any equipment (a) that requires more than 110 volts, (b)
whose operation is in excess of, or inconsistent with, the capacity of the
Building (or existing feeders and risers to, or wiring in, the Premises) or (c)
whose electrical energy consumption exceeds normal office usage of up to three
(3) xxxxx of connected load per usable square foot ("Standard Usage"). Subject
to the provisions of this Paragraph 6.2, if Tenant's consumption of electricity
exceeds the electricity to be provided by Landlord above or Standard Usage
(which shall be determined by separate metering to be installed at Tenant's
expense or by such other method as Landlord shall reasonably select), Tenant
shall pay to Landlord Landlord's then customary charge for such excess
consumption within ten (10) days after Landlord has delivered to Tenant an
invoice therefor.
6.3 Restoration of Services. Following receipt of Tenant's request to
do so, Landlord shall use good faith efforts to restore any service specifically
to be provided under Paragraph 6.1 that becomes unavailable and which is in
Landlord's reasonable control to restore; provided, however, that in no case
shall the unavailability of such services or any other service (or any
diminution in the quality or quantity thereof) or any interference in Tenant's
business operations within the Premises render Landlord liable to Tenant or any
person using or occupying the Premises under or through Tenant (including,
without limitation, any contractor, employee, agent, invitee or visitor of
Tenant) (each, a "Tenant Party") for any damages of any nature whatsoever caused
thereby, constitute a constructive eviction of Tenant, constitute a breach of
any implied warranty by Landlord, or entitle Tenant to any abatement of Tenant's
rental obligations hereunder.
6.4 Telecommunications Services. Tenant may contract separately with
providers of telecommunications or cellular products, systems or services for
the Premises. Even though such products, systems or services may be installed or
provided by such providers in the Building, in consideration for Landlord's
permitting such providers to provide such services to Tenant, Tenant agrees that
Landlord and the Landlord Indemnitees (defined below) shall in no event be
liable to Tenant or any Tenant Party for any damages of any nature whatsoever
arising out of or relating to the products, systems or services provided by such
providers (or any failure, interruption, defect in or loss of the same) or any
acts or omissions of such providers in connection with the same or any
interference in Tenant's business caused thereby. Tenant waives and releases all
rights and remedies against Landlord and the Landlord Indemnitees that are
inconsistent with the foregoing.
7. Improvements, Alterations, Repairs and Maintenance.
7.1 Improvements; Alterations. Any alterations, additions, deletions,
modifications or utility installations in, of or to the improvements contained
within the Premises (collectively, "Alterations") shall be installed at Tenant's
expense and only in accordance with detailed plans and specifications,
construction methods, and all appropriate permits and licenses, all of which
have been previously submitted to and approved in writing by Landlord, and by a
professionally qualified and licensed contractor and subcontractors approved by
Landlord. No Alterations in or to the Premises may be made without (a)
Landlord's prior written consent and (b) compliance with such nondiscriminatory
requirements and construction regulations concerning such Alterations as
Landlord may impose from time to time. Landlord will not be deemed to
unreasonably withhold its consent
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to any Alteration that violates Regulations, may affect or be incompatible with
the Building's structure or its HVAC, plumbing, telecommunications, elevator,
life-safety, electrical, mechanical or other basic systems, or the appearance of
the interior common areas or exterior of the Project, or which may interfere
with the use or occupancy of any other portion of the Project. All Alterations
made in or upon the Premises shall, (i) at Landlord's option, either be removed
by Tenant prior to the end of the Term (and Tenant shall restore the portion of
the Premises affected to its condition existing immediately prior to such
Alteration), or shall remain on the Premises at the end of the Term, (ii) be
constructed, maintained, insured and used by Tenant, at its risk and expense, in
a first-class, good and workmanlike manner, and in accordance with all
Regulations, and (iii) shall be subject to payment of Landlord's standard
alterations supervision fee. If any Alteration made or initiated by Tenant or
the removal thereof shall cause, trigger or result in any portion of the Project
outside of the Premises, any portion of the Building's shell and core
improvements (including restrooms, if any) within the Premises, or any Building
system inside or outside of the Premises being required by any governmental
authority to be altered, improved or removed, or may otherwise potentially
affect such portions of the Project or any other tenants of the Project,
Landlord shall have the option (but not the obligation) of performing the same
at Tenant's expense, in which case Tenant shall pay to Landlord (within ten (10)
days of Landlord's written demand) in advance Landlord's reasonable estimate of
the cost of such work, and any actual costs of such work in excess of Landlord's
estimate, plus an administrative charge of fifteen percent (15%) thereof. At
least ten (10) days before beginning construction of any Alteration, Tenant
shall give Landlord written notice of the expected commencement date of that
construction to permit Landlord to post and record a notice of
non-responsibility. Upon substantial completion of construction, if the law so
provides, Tenant shall cause a timely notice of completion to be recorded in the
office of the recorder of the county in which the Building is located.
7.2 Repairs and Maintenance. Tenant shall maintain at all times during
the Term the Premises and all portions and components of the improvements and
systems contained therein in a first-class, good, clean, safe, and operable
condition, and shall not permit or allow to remain any waste or damage to any
portion of the Premises. Tenant shall repair or replace, as needed, subject to
Landlord's direction and supervision, any damage to the Building or the Project
caused by Tenant or any Tenant Party. If any such damage occurs outside of the
Premises or relates to any Building system, or if Tenant fails to perform
Tenant's obligations under this Paragraph 7.2 or under any other paragraph of
this Lease within ten (10) days' after written notice from Landlord (except in
the case of an emergency, in which case no notice shall be required), then
Landlord may elect to perform such obligations and repair such damage itself at
Tenant's expense. The cost of all repair or replacement work performed by
Landlord under this Paragraph 7.2, plus an administrative charge of fifteen
percent (15%) of such cost, shall be paid by Tenant to Landlord within ten (10)
days of receipt of Landlord's invoice therefor as Additional Rent. Tenant hereby
waives all common law and statutory rights or provisions inconsistent herewith,
whether now or hereinafter in effect (including, without limitation, Sections
1941, 1941.1, and 1941.2 of the California Civil Code, as amended from time to
time). Landlord shall use reasonable efforts to maintain the common areas of the
Project at all times during the Term with the cost thereof constituting an
Operating Expense under Paragraph 3.2.
7.3 Mechanic's Liens. Tenant shall not cause, suffer or permit any
mechanic's or materialman's lien, claim, or stop notice to be filed or asserted
against the Premises, the Building or any funds of Landlord for any work
performed, materials furnished, or obligation incurred by or at the request of
Tenant or any Tenant Party. If any such lien, claim or notice is filed or
asserted, then Tenant shall, within ten (10) days after Landlord has delivered
notice of the same to Tenant, either (a) pay and satisfy in full the amount of
(and eliminate of record) the lien, claim or notice or (b) diligently contest
the same and deliver to Landlord a bond or other security therefor in substance
and amount (and issued by an issuer) satisfactory to Landlord.
8. Use. Tenant shall continuously occupy and use the Premises only for general
office use or uses incidental thereto, all of which shall be consistent with the
standards of a first class office project (the "Permitted Use") and shall
comply, at Tenant's expense, with all Regulations relating to the use,
condition, alteration, improvement, access to, and occupancy of the Premises,
including without limitation, Regulations relating to Hazardous Materials
(defined below). Should any Regulation now or hereafter be imposed on Tenant or
Landlord by any governmental body relating to the use or occupancy of the
Premises or the Project common areas by Tenant or any Tenant Party or concerning
occupational, health or safety standards for employers, employees, or tenants,
then Tenant agrees, at its sole cost and expense, to comply promptly with such
Regulations if such Regulations relate to anything within the Premises or if
compliance with such Regulations is within the control of Tenant and applies to
an area outside of the Premises. Tenant shall conduct its business and shall
cause each Tenant Party to act in such a manner as to (a) not release or permit
the release of any Hazardous Material in, under, on or about the Project in
violation of any Regulations, (b) use or store any Hazardous Materials (other
than incidental amounts of cleaning and office supplies) in or about the
Premises or (c) not create or permit any nuisance or unreasonable interference
with or disturbance of other tenants of the Project or Landlord in its
management of the Project or (d) not create any occupancy density in the
Premises or parking density with respect to Tenant and any Tenant Party at the
Project greater than those specified in the Basic Lease Information. "Hazardous
Material" means any hazardous, explosive, radioactive or toxic substance,
material or waste which is or becomes regulated by any local, state or federal
governmental authority or agency, including, without limitation, any material or
substance which is (i) defined or listed as a "hazardous waste," "extremely
hazardous waste," "restricted hazardous waste," "hazardous substance,"
"hazardous material," "pollutant" or "contaminant" under any Regulation, (ii) a
flammable explosive, (iii) a radioactive material, (iv) a polychlorinated
biphenyl, (v) asbestos or asbestos containing material, or (vi) a carcinogen.
9. Assignment and Subletting.
9.1 Transfers; Consent. Tenant shall not, without the prior written
consent of Landlord, (a) assign, transfer, mortgage, hypothecate, or encumber
this Lease or any estate or interest herein, whether directly, indirectly or by
operation of law, (b) permit any other entity to become a Tenant hereunder by
merger, consolidation, or other reorganization, (c) if Tenant is a corporation,
partnership, limited liability company, limited liability partnership, trust,
association or other business entity (other than a corporation whose stock is
publicly traded), permit, directly or indirectly, the transfer of any ownership
interest in Tenant so as to result in (i) a change in the current control of
Tenant, (ii) a transfer of twenty-five percent (25%) or more in the aggregate in
any twelve (12) month period in the beneficial ownership of such entity or (iii)
a transfer of all or substantially all of the assets of Tenant, (d) sublet any
portion of the Premises, or (e) grant any license, concession, or other right of
occupancy of or with respect to any portion of the Premises, or (f) permit the
use of the Premises by any party other than Tenant or a Tenant Party (each of
the events listed in this Paragraph 9.1 being referred to herein as a
"Transfer"). If Tenant requests Landlord's consent to any Transfer, then at
least twenty (20) business days prior to the effective date of the proposed
Transfer, Tenant shall provide Landlord with a written description of all terms
and conditions of the proposed Transfer and all consideration therefor
(including a calculation of the Transfer Profits described below), copies of the
proposed documentation, and the following information relating to the proposed
transferee: name and address; information reasonably satisfactory to Landlord
concerning the proposed transferee's business and business history; its proposed
use of the Premises; banking, financial, and other credit information; and
general references sufficient to enable Landlord to determine the proposed
transferee's creditworthiness and character. Landlord shall not unreasonably
withhold its consent to any assignment or subletting of the Premises, provided
that the parties agree that it shall be reasonable for Landlord to withhold any
such consent if, without limitation, Landlord determines in good faith that (A)
the proposed transferee is not of a reasonable financial standing or is not
creditworthy, (B) the proposed transferee is a governmental agency, (D) the
proposed Transfer would result in a breach of any obligation of Landlord or
permit any other tenant in the Project to terminate or modify its lease, (E)
there is then in effect an uncured Event of Default, (F) the Transfer would
increase the occupancy density or parking density of the Project or any portion
thereof, (G) the Transfer would result in
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an undesirable tenant mix for the Project, as determined in good faith by
Landlord, (H) the proposed transferee does not enjoy a good reputation, as a
business or as a tenant; or (I) any guarantor of the Lease does not consent to
such Transfer in a form satisfactory to Landlord. Any Transfer made without
Landlord's consent shall be void and, at Landlord's election, shall constitute
an Event of Default by Tenant. Tenant shall also, within ten (10) days of
written demand therefor, pay to Landlord $500 as a review fee for each Transfer
request, and reimburse Landlord for its reasonable attorneys' fees and all other
costs incurred in connection with considering any request for consent to a
proposed Transfer. If Landlord consents to a proposed Transfer, then the
proposed transferee shall deliver to Landlord Landlord's standard form transfer
consent and agreement whereby the proposed transferee expressly assumes the
Tenant's obligations hereunder. Landlord's consent to a Transfer shall not
release Tenant from its obligations under this Lease (or any guarantor of this
Lease of its obligations with respect thereto), but rather Tenant and its
transferee shall be jointly and severally liable for all obligations under this
Lease allocable to the space subject to such Transfer. Landlord's consent to any
Transfer shall not waive Landlord's rights as to any subsequent Transfers. In
the event of any claim by Tenant that Landlord has breached its obligations
under this Paragraph 9.1, Tenant's remedies shall be limited to recovery of its
out-of-pocket damages and injunctive relief.
9.2 Cancellation and Recapture. Notwithstanding Paragraph 9.1, Landlord
may (but shall not be obligated to), within ten (10) business days after
submission of Tenant's written request for Landlord's consent to an assignment
or subletting, cancel this Lease as to the portion of the Premises proposed to
be sublet or subject to an assignment of this Lease ("Transfer Space") as of the
date such proposed Transfer is proposed to be effective and, thereafter,
Landlord may lease such portion of the Premises to the prospective transferee
(or to any other person or entity or not at all) without liability to Tenant. If
Landlord shall not cancel this Lease within such ten (10) business day period
and notwithstanding any Landlord consent to the proposed Transfer, Tenant shall
pay to Landlord, immediately upon receipt thereof, the entire excess ("Transfer
Profits") of all compensation and other consideration paid to or for the benefit
of Tenant (or any affiliate thereof) for the Transfer in excess of Base Rent and
Additional Rent payable by Tenant hereunder (with respect to the Transfer Space)
during the remainder of the Term (after straight-line amortization of any
reasonable brokerage commissions and tenant improvement costs paid by Tenant in
connection with the Transfer over the term of the Transfer). In any assignment
or subletting undertaken by Tenant, Tenant shall diligently seek to obtain the
maximum rental amount available in the marketplace for comparable space
available for primary leasing.
10. Insurance, Waivers, Subrogation and Indemnity.
10.1 Insurance. Tenant shall maintain throughout the Term each of the
insurance policies described on Exhibit D attached hereto and shall otherwise
comply with the obligations and requirements provided on Exhibit D.
10.2 Waiver of Subrogation. Landlord and Tenant each waives any claim,
loss or cost it might have against the other for any injury to or death of any
person or persons, or damage to or theft, destruction, loss, or loss of use of
any property (a "Loss"), to the extent the same is insured against (or is
required to be insured against under the terms hereof) under any "all risk"
property damage insurance policy covering the Building, the Premises, Landlord's
or Tenant's fixtures, personal property, leasehold improvements, or business,
regardless of whether the negligence of the other party caused such Loss.
10.3 Indemnity. Subject to Paragraph 10.2, Tenant shall indemnify,
defend and hold Landlord, Xxxxxxx Properties, Inc., and each of their respective
directors, shareholders, partners, lenders, members, managers, contractors,
affiliates and employees (collectively, "Landlord Indemnitees") from and against
all claims, demands, proceedings, losses, obligations, liabilities, causes of
action, suits, judgments, damages, penalties, costs and expenses (including,
without limitation, reasonable attorneys' fees and court costs) arising from or
asserted in connection with the use or occupancy of the Premises by Tenant or
any Tenant Party, including, without limitation, by reason of any release of any
Hazardous Materials by Tenant or any Tenant Party in, under, on, or about the
Project, or any negligence or misconduct of Tenant or of any Tenant Party in or
about the Premises, or Tenant's breach of any of its covenants under this Lease,
except in each case to the extent arising from the gross negligence or willful
misconduct of Landlord or any Landlord Indemnitee. Except to the extent
expressly provided in this Lease, Tenant hereby waives all claims against and
releases Landlord and each Landlord Indemnitee for any injury to or death of
persons, damage to property or business loss in any manner related to (i)
Tenant's use and occupancy of the Premises, (ii) acts of God, (iii) acts of
third parties, or (iv) any matter outside of the reasonable control of Landlord.
This Paragraph 10.3 shall survive termination or expiration of this Lease.
11. Subordination; Attornment.
11.1 Subordination. This Lease is subject and subordinate to all
present and future ground or master leases of the Project and to the lien of all
mortgages or deeds of trust (collectively, "Security Instruments") now or
hereafter encumbering the Project, if any, and to all renewals, extensions,
modifications, consolidations and replacements thereof, and to all advances made
or hereafter to be made upon the security of any such Security Instruments,
unless the holders of any such mortgages or deeds of trust, or the lessors under
such ground or master leases (such holders and lessors are sometimes
collectively referred to herein as "Holders") require in writing that this Lease
be superior thereto. Notwithstanding any provision of this Paragraph 11 to the
contrary, any Holder of any Security Instrument may at any time subordinate the
lien of its Security Instrument to this Lease without obtaining Tenant's consent
by giving Tenant written notice of such subordination, in which event this Lease
shall be deemed to be senior to the Security Instrument in question. Tenant
shall, within fifteen (15) days of request to do so by Landlord, execute,
acknowledge and deliver to Landlord such further instruments or assurances as
Landlord may deem necessary or appropriate to evidence or confirm the
subordination or superiority of this Lease to any such Security Instrument;
provided, however, that at the request of Tenant made within five (5) days of
any such Landlord request, Landlord shall use commercially reasonable efforts to
obtain for the benefit of Tenant such Holder's standard nondisturbance
agreement. Tenant hereby irrevocably authorizes Landlord to execute and deliver
in the name of Tenant any such instrument or instruments if Tenant fails to do
so within said fifteen (15) day period.
11.2 Attornment. Tenant covenants and agrees that in the event that any
proceedings are brought for the foreclosure of any mortgage or deed of trust, or
if any ground or master lease is terminated, it shall attorn, without any
deductions or set-offs whatsoever, to the purchaser upon any such foreclosure
sale, or to the lessor of such ground or master lease, as the case may be, if so
requested to do so by such purchaser or lessor, and to recognize such purchaser
or lessor as "Landlord" under this Lease. If requested, Tenant shall enter into
a new lease with that successor on the same terms and conditions as are
contained in this Lease (for the unexpired portion of the Term then remaining).
12. Rules and Regulations. Tenant shall comply, and shall cause each Tenant
Party to comply, with the Rules and Regulations of the Building which are
attached hereto as Exhibit A, and all such nondiscriminatory modifications,
additions, deletions and amendments thereto as Landlord shall adopt in good
faith from time to time.
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13. Condemnation. If the entire Project or Premises are taken by right of
eminent domain or conveyed by Landlord in lieu thereof (a "Taking"), this Lease
shall terminate as of the date of the Taking. If any part of the Project becomes
subject to a Taking and such Taking will prevent Tenant from conducting its
business in the Premises in a manner reasonably comparable to that conducted
immediately before such Taking for a period of more than one hundred eighty
(180) days, then Tenant may terminate this Lease as of the date of such Taking
by giving written notice to Landlord within thirty (30) days after the Taking,
and all Rent paid or payable hereunder shall be apportioned between Landlord and
Tenant as of the date of such Taking. If any material portion, but less than
all, of the Project, Building or the Premises becomes subject to a Taking, or if
Landlord is required to pay any of the proceeds received for a Taking to any
Holder of any Security Instrument, then Landlord may terminate this Lease by
delivering written notice thereof to Tenant within thirty (30) days after such
Taking, and all Rent paid or payable hereunder shall be apportioned between
Landlord and Tenant as of the date of such Taking. If this Lease is not so
terminated, then Base Rent thereafter payable hereunder shall be abated for the
duration of the Taking in proportion to that portion of the Premises rendered
untenantable by such Taking. If any Taking occurs, then Landlord shall receive
the entire award or other compensation for the land on which the Project is
situated, the Project, and other improvements taken, and Tenant may separately
pursue a claim (to the extent it will not reduce Landlord's award) against the
condemnor for the value of Tenant's personal property which Tenant is entitled
to remove under this Lease and moving and relocation costs. Landlord and Tenant
agree that the provisions of this Paragraph 13 and the remaining provisions of
this Lease shall exclusively govern the rights and obligations of the parties
with respect to any Taking of any portion of the Premises, the Building, the
Project or the land on which the Building is located, and Landlord and Tenant
hereby waive and release each and all of their respective common law and
statutory rights inconsistent herewith, whether now or hereinafter in effect
(including, without limitation, Section 1265.130 of the California Code of Civil
Procedure, as amended from time to time).
14. Fire or Other Casualty.
14.1 Repair Estimate; Right to Terminate. If all or any portion of the
Premises, the Building or the Project is damaged by fire or other casualty (a
"Casualty"), Landlord shall, within ninety (90) days after Landlord's discovery
of such damage, deliver to Tenant its good faith estimate (the "Damage Notice")
of the time period following such notice needed to repair the damage caused by
such Casualty. Landlord may elect to terminate this Lease in any case where (a)
any portion of the Premises or any material portion of the Project are damaged
and (b) either (i) Landlord estimates in good faith that the repair and
restoration of such damage under Paragraph 14.2 ("Restoration") cannot
reasonably be completed (without the payment of overtime) within two hundred
(200) days of Landlord's actual discovery of such damage, (ii) the Holder of any
Security Instrument requires the application of any insurance proceeds with
respect to such Casualty to be applied to the outstanding balance of the
obligation secured by such Security Instrument, (iii) the cost of such
Restoration is not fully covered by insurance proceeds available to Landlord
and/or payments received by Landlord from tenants, or (iv) Tenant shall be
entitled to an abatement of rent under this Paragraph 14 for any period of time
in excess of thirty-three percent (33%) of the remainder of the Term. Such right
of termination shall be exercisable by Landlord by delivery of written notice to
Tenant at any time following the Casualty until forty-five (45) days following
the later of (A) delivery of the Damage Notice or (B) Landlord's discovery or
determination of any of the events described in clauses (i) through (iv) of the
preceding sentence, and shall be effective upon delivery of such notice of
termination (or if Tenant has not vacated the Premises, upon the expiration of
thirty (30) days thereafter).
14.2 Repair Obligation; Abatement of Rent. Subject to the provisions of
Paragraph 14.1, Landlord shall, within a reasonable time after the discovery by
Landlord of any damage resulting from a Casualty, begin to repair the damage to
the Building and the Premises resulting from such Casualty and shall proceed
with reasonable diligence to restore the Building and Premises to substantially
the same condition as existed immediately before such Casualty, except for
modifications required by Regulations, and modifications to the Building or the
Project reasonably deemed desirable by Landlord; provided, however, that
Landlord shall not be required as part of the Restoration to repair or replace
any of the Alterations, furniture, equipment, fixtures, and other improvements
which may have been placed by, or at the request of, Tenant or other occupants
in the Building or the Premises. Landlord shall have no liability for any
inconvenience or annoyance to Tenant or injury to Tenant's business as a result
of any Casualty, regardless of the cause therefor. Base Rent, and Additional
Rent payable under Paragraph 3.2, shall xxxxx if and to the extent a Casualty
damages the Premises or common areas in the Project required and essential for
access thereto and as a result thereof all or a material portion of the Premises
are rendered unfit for occupancy, and are not occupied by Tenant, for the period
of time commencing on the date Tenant vacates the portion of the Premises
affected on account thereof and continuing until the date the Restoration to be
performed by Landlord with respect to the Premises (and/or required common
areas) is substantially complete, as determined by Landlord's architect.
Landlord and Tenant agree that the provisions of this Paragraph 14 and the
remaining provisions of this Lease shall exclusively govern the rights and
obligations of the parties with respect to any and all damage to, or destruction
of, all or any portion of the Premises or the Project by Casualty, and Landlord
and Tenant hereby waive and release each and all of their respective common law
and statutory rights inconsistent herewith, whether now or hereinafter in effect
(including, without limitation, Sections 1932(2) and 1933(4) of the California
Civil Code, as amended from time to time).
15. Parking. Tenant shall have the right to the nonexclusive use of such portion
of the parking facilities of the Project as are designated by Landlord from time
to time for such purpose for the parking of passenger-size motor vehicles used
by Tenant and Tenant Parties only and are not transferable without Landlord's
approval. The use of such parking facilities shall be subject to the parking
rules and regulations attached hereto as Exhibit E, as such rules and
regulations may be modified by Landlord from time to time, for the use of such
facilities.
16. Events of Default. Each of the following occurrences shall be an "Event of
Default" and shall constitute a material default and breach of this Lease by
Tenant: (a) any failure by Tenant to pay any installment of Base Rent,
Additional Rent or to make any other payment required to be made by Tenant
hereunder when due; (b) the abandonment or vacation of the Premises by Tenant,
provided, however, that unless Tenant is using the Premises for a retail use,
abandonment or vacation of the Premises shall not be an Event of Default so long
as no other Event of Default has occurred hereunder and provided Tenant has
given Landlord five (5) days' prior written notice of its intent to vacate the
Premises; (c) any failure by Tenant to execute and deliver any estoppel
certificate or other document or instrument described in Paragraphs 10
(insurance), 11 (subordination) or 21.2 (estoppel certificates) requested by
Landlord, where such failure continues for five (5) days after delivery of
written notice of such failure by Landlord to Tenant; (d) any failure by Tenant
to fully perform any other obligation of Tenant under this Lease, where such
failure continues for thirty (30) days (except where a shorter period of time is
specified in this Lease, in which case such shorter time period shall apply)
after delivery of written notice of such failure by Landlord to Tenant; (e) the
voluntary or involuntary filing of a petition by or against Tenant or any
general partner of Tenant (i) in any bankruptcy or other insolvency proceeding,
(ii) seeking any relief under any state or federal debtor relief law, (iii) for
the appointment of a liquidator or receiver for all or substantially all of
Tenant's property or for Tenant's interest in this Lease, or (iv) for the
reorganization or modification of Tenant's capital structure (provided, however,
that if such a petition is filed against Tenant, then such filing shall not be
an Event of Default unless Tenant fails to have the proceedings initiated by
such petition dismissed within sixty (60) days after the filing thereof); (f)
the default of any guarantor of Tenant's obligations hereunder under any
guaranty of this Lease, the attempted repudiation or revocation of any such
guaranty, or the participation by any such guarantor in any other event
described in this Paragraph 16 (as if this Paragraph 16 referred to such
guarantor in place of Tenant); or (g) any other event, act or omission which any
other provision of this Lease identifies as an Event of Default. Any notice of
any failure of Tenant required under this Paragraph 16 shall be in lieu of, and
not in addition to, any notice required under Section 1161 et seq. of the
California Code of Civil Procedure.
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17. Remedies. Upon the occurrence of any Event of Default by Tenant, Landlord
shall have, in addition to any other remedies available to Landlord at law or in
equity (all of which remedies shall be distinct, separate, and cumulative), the
option to pursue any one (1) or more of the following remedies, each and all of
which shall be cumulative and nonexclusive, without any notice or demand
whatsoever:
(a) Terminate this Lease, and Landlord may recover from Tenant the
following: (i) the worth at the time of any unpaid rent which has been earned at
the time of such termination; plus (ii) the worth at the time of award of the
amount by which the unpaid rent which would have been earned after termination
until the time of award exceeds the amount of such rental loss that Tenant
proves could have been reasonably avoided; plus (iii) the worth at the time of
award of the amount by which the unpaid rent for the balance of the term after
the time of award exceeds the amount of such rental loss that Tenant proves
could have been reasonably avoided; plus (iv) any other amount necessary to
compensate Landlord for all the detriment proximately caused by Tenant's failure
to perform its obligations under this Lease or which in the ordinary course of
things would be likely to result therefrom (specifically including, without
limitation, brokerage commissions and advertising expenses incurred, expenses of
remodeling the Premises or any portion thereof for a new tenant, whether for the
same or a different use, and any special concessions made to obtain a new
tenant); and (v) at Landlord's election, such other amounts in addition to or in
lieu of the foregoing as may be permitted from time to time by applicable law.
The term "rent" as used in this Paragraph 17(a) shall be deemed to be and to
mean all sums of every nature required to be paid by Tenant pursuant to the
terms of this Lease, whether to Landlord or to others. As used in Paragraphs
17(a)(i) and (ii), above, the "worth at the time of award" shall be computed by
allowing interest at the Default Rate, but in no case greater than the maximum
amount of such interest permitted by law. As used in Paragraph 17(a)(iii) above,
the "worth at the time of award" shall be computed by discounting such amount at
the discount rate of the Federal Reserve Bank of San Francisco at the time of
award plus one percent (1%).
(b) Landlord shall have the remedy described in California Civil Code
Section 1951.4 (lessor may continue lease in effect after lessee's breach and
abandonment and recover rent as it becomes due, if lessee has the right to
sublet or assign, subject only to reasonable limitations). Accordingly, if
Landlord does not elect to terminate this Lease on account of any Event of
Default by Tenant, Landlord may, from time to time, without terminating this
Lease, enforce all of its rights and remedies under this Lease, including the
right to recover all Rent as it becomes due.
(c) Landlord shall at all times have the rights and remedies (which shall
be cumulative with each other and cumulative and in addition to those rights and
remedies available under Paragraphs 17(a) and 17(b) above, or any law or other
provision of this Lease), without prior demand or notice except as required by
applicable law, to seek any declaratory, injunctive, or other equitable relief,
and specifically enforce this Lease, or restrain or enjoin a violation or breach
of any provision hereof.
(d) Following the occurrence of three instances of payment of Rent more
than ten (10) days late in any twelve (12) month period, the late charge set
forth in Paragraph 4 shall apply from the date payment was due and Landlord may,
without prejudice to any other rights or remedies available to it, upon written
notice to Tenant, require that all remaining monthly installments of Rent
payable under this Lease shall be payable by cashier's check or electronic funds
transfer three (3) months in advance, and may require that Tenant increase the
Security Deposit to an amount equal to three times the current month's Rent at
the time of the most recent default. In addition, (i) upon the occurrence of an
Event of Default by Tenant, if the Premises or any portion thereof are sublet,
Landlord may, at its option and in addition and without prejudice to any other
remedies herein provided or provided by law, collect directly from the
sublessee(s) all rentals becoming due to the Tenant and apply such rentals
against other sums due hereunder to Landlord; (ii) without prejudice to any
other right or remedy of Landlord, if Tenant shall be in default under this
Lease, Landlord may cure the same at the expense of Tenant (A) immediately and
without notice in the case (1) of emergency, (2) where such default unreasonably
interferes with any other tenant in the Building, or (3) where such default will
result in the violation of any Regulation or the cancellation of any insurance
policy maintained by Landlord, and (B) in any other case if such default
continues for ten (10) days following the receipt by Tenant of notice of such
default from Landlord and all costs incurred by Landlord in curing such
default(s), including, without limitation, attorneys' fees, shall be
reimbursable by Tenant as Rent hereunder upon demand, together with interest
thereon, from the date such costs were incurred by Landlord, at the Default
Rate; and (iii) Tenant hereby waives for Tenant and for all those claiming under
Tenant all rights now and hereafter existing to redeem by order or judgment of
any court or by any legal process or writ, Tenant's right of occupancy of the
Premises after any termination of this Lease.
18. Surrender of Premises. No act by Landlord shall be deemed an acceptance of a
surrender of the Premises, and no agreement to accept a surrender of the
Premises shall be valid unless it is in writing and signed by Landlord. At the
expiration or earlier termination of this Lease, Tenant shall deliver to
Landlord all keys (including any electronic access devices and the like) to the
Premises, and Tenant shall deliver to Landlord the Premises in the same
condition as existed on the date Tenant originally took possession thereof,
ordinary wear and tear excepted, provided that ordinary wear and tear shall not
include repair and clean up items. By way of example, but without limitation,
repair and clean up items shall include cleaning of all interior walls, carpets
and floors, replacement of damaged or missing ceiling or floor tiles, window
coverings or cover plates, removal of any Tenant-introduced markings, and repair
of all holes and gaps and repainting required thereby, as well as the removal
requirements below. In addition, prior to the expiration of the Term or any
sooner termination thereof, (a) Tenant shall remove such Alterations as Landlord
shall request and shall restore the portion of the Premises affected by such
Alterations and such removal to its condition existing immediately prior to the
making of such Alterations, (b) Tenant shall remove from the Premises all
unattached trade fixtures, furniture, equipment and personal property located in
the Premises, including, without limitation, phone equipment, wiring, cabling
and all garbage, waste and debris, and (c) Tenant shall repair all damage to the
Premises or the Project caused by any such removal including, without
limitation, full restoration of all holes and gaps resulting from any such
removal and repainting required thereby. All personal property and fixtures of
Tenant not so removed shall, to the extent permitted under applicable
Regulations, be deemed to have been abandoned by Tenant and may be appropriated,
sold, stored, destroyed, or otherwise disposed of by Landlord without notice to
Tenant and without any obligation to account for such items.
19. Holding Over. If Tenant holds over after the expiration or earlier
termination of the Term hereof, with or without the express or implied consent
of Landlord, Tenant shall become and be only a tenant at sufferance at a daily
rent equal to one-thirtieth of the greater of (a) the then prevailing monthly
fair market rental rate as determined by Landlord in its sole and absolute
discretion, or (b) two hundred percent (200%) of the monthly installment of Base
Rent (and estimated Additional Rent payable under Paragraph 3.2) payable by
Tenant immediately prior to such expiration or termination, and otherwise upon
the terms, covenants and conditions herein specified, so far as applicable, as
reasonably determined by Landlord. Neither any provision hereof nor any
acceptance by Landlord of any Rent after any such expiration or earlier
termination (including, without limitation, through any "lockbox") shall be
deemed a consent to any holdover hereunder or result in a renewal of this Lease
or an extension of the Term, or any waiver of any of Landlord's rights or
remedies with respect to such holdover. Notwithstanding any provision to the
contrary contained herein, (i) Landlord expressly reserves the right to require
Tenant to surrender possession of the Premises upon the expiration of the Term
or upon the earlier termination hereof or at any time during any holdover, and
the right to assert any remedy at law or in equity to evict Tenant and collect
damages in connection with any such holdover, and (ii) Tenant shall indemnify,
defend and hold Landlord harmless from and against any and all claims, demands,
actions, proceedings, losses, damages, liabilities, obligations, penalties,
costs and expenses, including, without limitation, all lost profits and
7
other consequential damages, attorneys' fees, consultants' fees and court costs
incurred or suffered by or asserted against Landlord by reason of Tenant's
failure to surrender the Premises on the expiration or earlier termination of
this Lease in accordance with the provisions of this Lease.
20. Substitution Space. Upon at least sixty (60) days' prior written notice,
Landlord may relocate Tenant within the Project (or to any other facility owned
by Landlord within the vicinity of the Project) to space which is comparable in
size, utility and condition to the Premises. If Landlord relocates Tenant,
Landlord shall (a) reimburse Tenant for Tenant's reasonable out-of-pocket
expenses for moving Tenant's furniture, equipment and supplies from the Premises
to the relocation space and for reprinting Tenant's stationery of the same
quality and quantity as Tenant's stationery supply on hand immediately before
Landlord's notice to Tenant of the exercise of this relocation right, and (b)
improve the relocation space with improvements substantially similar to those
Landlord is committed to provide or has provided in the Premises under this
Lease. Upon such relocation, the relocation space shall be deemed to be the
Premises and the terms of this Lease shall remain in full force and shall apply
to the relocation space; provided, however, that (i) if the rentable area of the
relocation space is smaller than rentable area of the Premises, then Tenant
shall be entitled (from and after the relocation date) to a reduction in Base
Rent in proportion to the reduction in the rentable area of the Premises, with a
corresponding reduction in Tenant's Proportionate Share and (ii) if the rentable
area of the relocation space is larger than the rentable area of the Premises,
then the Base Rent and Tenant's Proportionate Share shall not be modified in any
way.
21. Miscellaneous.
21.1 Landlord Transfers and Liability. Landlord may, without
restriction, sell, assign or transfer in any manner all or any portion of the
Project, any interest therein or any of Landlord's rights under this Lease. If
Landlord assigns its rights under this Lease, then Landlord shall automatically
be released from any further obligations hereunder, provided that the assignee
thereof assumes in writing all of Landlord's obligations hereunder accruing
after such assignment. The liability of Landlord to Tenant for any default by
Landlord under the terms of this Lease or with respect to any obligation or
liability related to the Premises or the Project shall be recoverable only from
the interest of Landlord in the Project, and neither Landlord nor any affiliate
thereof shall have any personal liability with respect thereto and in no case
shall Landlord be liable to Tenant for any lost profits, damage to business, or
any form of special, indirect or consequential damage on account of any breach
of this Lease.
21.2 Estoppel Certificates; Financial Statements. At any time and from
time to time during the Term, Tenant shall, without charge, execute, acknowledge
and deliver to Landlord within ten (10) days after Landlord's request therefor,
an estoppel certificate in recordable form containing such factual
certifications and other provisions as are found in the estoppel certificate
forms requested by institutional lenders and purchasers. Tenant agrees in any
case that (a) the foregoing certificate may be relied on by anyone holding or
proposing to acquire any interest in the Project from or through Landlord or by
any mortgagee or lessor or prospective mortgagee or lessor of the Project or of
any interest therein and (b) the form of estoppel certificate shall be in the
form of, at Landlord's election, the standard form of such present or
prospective lender, lessor or purchaser (or any form substantially similar
thereto), or any other form that Landlord shall reasonably select. At the
request of Landlord from time to time, Tenant shall provide to Landlord within
ten (10) days of Landlord's request therefor Tenant's and any guarantor's
current financial statements.
21.3 Notices. Notices, requests, consents or other communications
desired or required to be given by or on behalf of Landlord or Tenant under this
Lease shall be effective only if given in writing and sent by (a) registered or
certified United States mail, postage prepaid, (b) nationally recognized express
mail courier that provides written evidence of delivery, fees prepaid, or (c)
facsimile and United States mail, postage prepaid, and addressed as set forth in
the Basic Lease Information, or at such other address in the State of California
as may be specified from time to time, in writing, or, if to Tenant, at the
Premises. Any such notice, request, consent, or other communication shall only
be deemed given (i) if sent by registered or certified United States mail, on
the day it is officially delivered to or refused by the intended recipient, (ii)
if sent by nationally recognized express mail courier, on the date it is
officially recorded by such courier, (iii) if delivered by facsimile, on the
date the sender obtains written telephonic confirmation that the electronic
transmission was received, or (iv) if delivered personally, upon delivery or, if
refused by the intended recipient, upon attempted delivery.
21.4 Payment by Tenant; Non-Waiver. Landlord's acceptance of Rent
(including, without limitation, through any "lockbox") following an Event of
Default shall not waive Landlord's rights regarding such Event of Default. No
waiver by Landlord of any violation or breach of any of the terms contained
herein shall waive Landlord's rights regarding any future violation of such
terms. Landlord's acceptance of any partial payment of Rent shall not waive
Landlord's rights with regard to the remaining portion of the Rent that is due,
regardless of any endorsement or other statement on any instrument delivered in
payment of Rent or any writing delivered in connection therewith; accordingly,
Landlord's acceptance of a partial payment of Rent shall not constitute an
accord and satisfaction of the full amount of the Rent that is due.
21.5 Certain Rights Reserved by Landlord. Landlord hereby reserves and
shall have the following rights with respect to the Premises and the Project:
(a) to decorate and to make inspections, repairs, alterations, additions,
changes, or improvements, whether structural or otherwise, in and about the
Project, the Building, the Premises or any part thereof; to enter upon the
Premises and, during the continuance of any such work, to temporarily close
doors, entryways, public space, and corridors in the Project or the Building; to
interrupt or suspend temporarily Building services and facilities; to change the
name of the Building or the Project; and to change the arrangement and location
of entrances or passageways, doors, and doorways, corridors, elevators, stairs,
restrooms, common areas, or other public parts of the Building or the Project;
(b) to take such measures as Landlord deems advisable in good faith for the
security of the Building and its occupants; to temporarily deny access to the
Building to any person; and to close the Building after ordinary business hours
and on Sundays and Holidays, subject, however, to Tenant's right to enter when
the Building is closed after ordinary business hours under such rules and
regulations as Landlord may reasonably prescribe from time to time during the
Term; and (c) to enter the Premises at reasonable hours (or at any time in an
emergency) to perform repairs, to take any action authorized hereunder, or to
show the Premises to prospective purchasers or lenders, or, during the last six
(6) months of the Term, prospective tenants.
21.6 Miscellaneous. If any clause or provision of this Lease is
illegal, invalid, or unenforceable under present or future laws, then the
remainder of this Lease shall not be affected thereby. This Lease may not be
amended except by instrument in writing signed by Landlord and Tenant. No
provision of this Lease shall be deemed to have been waived by Landlord unless
such waiver is in writing signed by Landlord. The terms and conditions contained
in this Lease shall inure to the benefit of and be binding upon the parties
hereto, and upon their respective successors in interest and legal
representatives, except as otherwise herein expressly provided. This Lease
constitutes the entire agreement between Landlord and Tenant regarding the
subject matter hereof and supersedes all oral statements and prior writings
relating thereto. Tenant and the person or persons signing on behalf of Tenant
represent and warrant that Tenant has full right and authority to enter into
this Lease, and that all persons signing this Lease on its behalf are authorized
to do so. If Tenant is comprised of more than one party, each such party shall
be jointly and severally liable for Tenant's obligations under this Lease. All
exhibits and attachments attached hereto are incorporated herein by this
reference. This Lease shall be governed by and construed in accordance with the
laws of the State of California. In any action which Landlord or Tenant brings
to enforce its respective rights hereunder, the unsuccessful party shall pay all
costs incurred by the prevailing party, including without limitation, reasonable
attorneys' fees and court
8
costs. Tenant shall not record this Lease or any memorandum hereof. TO THE
MAXIMUM EXTENT PERMITTED BY LAW, LANDLORD AND TENANT EACH WAIVE RIGHT TO TRIAL
BY JURY IN ANY LITIGATION ARISING OUT OF OR WITH RESPECT TO THIS LEASE.
Submission of this Lease to Tenant does not constitute an option or offer to
lease and this Lease is not effective otherwise until execution and delivery by
both Landlord and Tenant. This Lease may be executed in any number of
counterparts, each of which shall be deemed an original. Time is of the essence
as to the performance of each covenant hereunder in which time of performance is
a factor.
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9
EXHIBIT A
RULES AND REGULATIONS
EXHIBIT A
Rules and Regulations
1. Driveways, sidewalks, halls, passages, exits, entrances, elevators,
escalators and stairways shall not be obstructed by tenants or used by
tenants for any purpose other than for ingress to and egress from their
respective premises. The driveways, sidewalks, halls, passages, exits,
entrances, elevators and stairways are not for the use of the general
public and Landlord shall in all cases retain the right to control and
prevent access thereto by all persons whose presence, in the judgment of
Landlord, shall be prejudicial to the safety, character, reputation and
interests of the Building, the Project and its tenants, provided that
nothing herein contained shall be construed to prevent such access to
persons with whom any tenant normally deals in the ordinary course of such
tenant's business unless such persons are engaged in illegal activities. No
tenant, and no employees or invitees of any tenant, shall go upon the roof
of any Building, except as authorized by Landlord. No tenant, and no
employees or invitees of any tenant shall move any common area furniture
without Landlord's consent.
2. No sign, placard, banner, picture, name, advertisement or notice, visible
from the exterior of the Premises or the Building or the common areas of
the Building shall be inscribed, painted, affixed, installed or otherwise
displayed by Tenant either on its Premises or any part of the Building or
Project without the prior written consent of Landlord in Landlord's sole
and absolute discretion. Landlord shall have the right to remove any such
sign, placard, banner, picture, name, advertisement, or notice without
notice to and at the expense of Tenant, which were installed or displayed
in violation of this rule. If Landlord shall have given such consent to
Tenant at any time, whether before or after the execution of Tenant's
Lease, such consent shall in no way operate as a waiver or release of any
of the provisions hereof or of the Lease, and shall be deemed to relate
only to the particular sign, placard, banner, picture, name, advertisement
or notice so consented to by Landlord and shall not be construed as
dispensing with the necessity of obtaining the specific written consent of
Landlord with respect to any other such sign, placard, banner, picture,
name, advertisement or notice.
All approved signs or lettering on doors and walls shall be printed,
painted, affixed or inscribed at the expense of Tenant by a person or
vendor approved by Landlord and shall be removed by Tenant at the time of
vacancy at Tenant's expense.
3. The directory of the Building or Project will be provided exclusively for
the display of the name and location of tenants only and Landlord reserves
the right to charge for the use thereof and to exclude any other names
therefrom.
4. No curtains, draperies, blinds, shutters, shades, screens or other
coverings, awnings, hangings or decorations shall be attached to, hung or
placed in, or used in connection with, any window or door on the Premises
without the prior written consent of Landlord. In any event with the prior
written consent of Landlord, all such items shall be installed inboard of
Landlord's standard window covering and shall in no way be visible from the
exterior of the Building. All electrical ceiling fixtures hung in offices
or spaces along the perimeter of the Building must be fluorescent or of a
quality, type, design, and bulb color approved by Landlord. No articles
shall be placed or kept on the window xxxxx so as to be visible from the
exterior of the Building. No articles shall be placed against glass
partitions or doors which Landlord considers unsightly from outside
Tenant's Premises.
5. Landlord reserves the right to exclude from the Building and the Project,
between the hours of 6 p.m. and 8 a.m. and at all hours on Saturdays,
Sundays and legal holidays, all persons who are not tenants or their
accompanied guests in the Building. Each tenant shall be responsible for
all persons for whom it allows to enter the Building or the Project and
shall be liable to Landlord for all acts of such persons.
Landlord and its agents shall not be liable for damages for any error
concerning the admission to, or exclusion from, the Building or the Project
of any person.
During the continuance of any invasion, mob, riot, public excitement or
other circumstance rendering such action advisable in Landlord's opinion,
Landlord reserves the right (but shall not be obligated) to prevent access
to the Building and the Project during the continuance of that event by any
means it considers appropriate for the safety of tenants and protection of
the Building, property in the Building and the Project.
6. All cleaning and janitorial services for the Building and the Premises
shall be provided exclusively through Landlord. Except with the written
consent of Landlord, no person or persons other than those approved by
Landlord shall be permitted to enter the Building for the purpose of
cleaning the same. Tenant shall not cause any unnecessary labor by reason
of Tenant's carelessness or indifference in the preservation of good order
and cleanliness of its Premises. Landlord shall in no way be responsible to
Tenant for any loss of property on the Premises, however occurring, or for
any damage done to Tenant's property by the janitor or any other employee
or any other person.
7. Tenant shall see that all doors of its Premises are closed and securely
locked and must observe strict care and caution that all water faucets or
water apparatus, coffee pots or other heat-generating devices are entirely
shut off before Tenant or its employees leave the Premises, and that all
utilities shall likewise be carefully shut off, so as to prevent waste or
damage. Tenant shall be responsible for any damage or injuries sustained by
other tenants or occupants of the Building or Project or by Landlord for
noncompliance with this rule. On multiple-tenancy floors, all tenants shall
keep the door or doors to the Building corridors closed at all times except
for ingress and egress.
8. Tenant shall not use any method of heating or air-conditioning other than
that supplied by Landlord. As more specifically provided in Tenant's lease
of the Premises, Tenant shall not waste electricity, water or
air-conditioning and agrees to cooperate fully with Landlord to assure the
most effective operation of the Building's heating and air-conditioning,
and shall refrain from attempting to adjust any controls other than room
thermostats installed for Tenant's use.
9. Landlord will furnish Tenant free of charge with two keys to each door in
the Premises. Landlord may make a reasonable charge for any additional
keys, and Tenant shall not make or have made additional keys. Tenant shall
not alter any lock or access device or install a new or additional lock or
access device or bolt on any door of its Premises, without the prior
written consent of Landlord. If Landlord shall give its consent, Tenant
shall in each case furnish Landlord with a key for any such lock. Tenant,
upon the termination of its tenancy, shall deliver to Landlord the keys for
all doors which have been furnished to Tenant, and in the event of loss of
any keys so furnished, shall pay Landlord therefor.
10. The restrooms, 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 into them. The
expense of any breakage, stoppage, or damage resulting from violation of
this rule shall be borne by the tenant who, or whose employees or invitees,
shall have caused the breakage, stoppage, or damage.
11. Tenant shall not use or keep in or on the Premises, the Building or the
Project any kerosene, gasoline, or inflammable or combustible fluid or
material.
12. Tenant shall not use, keep or permit to be used or kept in its Premises any
foul or noxious gas or substance. Tenant shall not 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 and/or vibrations
or interfere in any way with other tenants or those having business
therein, nor shall any animals or birds be brought or kept in or about the
Premises, the Building, or the Project.
13. No cooking shall be done or permitted by any tenant on the Premises, except
that use by the tenant of Underwriters' Laboratory (UL) approved equipment,
refrigerators and microwave ovens may be used in the Premises for the
preparation of coffee, tea, hot chocolate and similar beverages, storing
and heating food for tenants and their employees shall be permitted. All
uses must be in accordance with all applicable federal, state and city
laws, codes, ordinances, rules and regulations and the Lease.
14. Except with the prior written consent of Landlord, Tenant shall not sell,
or permit the sale, at retail, of newspapers, magazines, periodicals,
theater tickets or any other goods or merchandise in or on the Premises,
nor shall Tenant carry on, or permit or allow any employee or other person
to carry on, the business of stenography, typewriting or any similar
business in or from the Premises for the service or accommodation of
occupants of any other portion of the Building, nor shall the Premises be
used for the storage of merchandise or for manufacturing of any kind, or
the business of a public xxxxxx shop, beauty parlor, nor shall the Premises
be used for any illegal, improper, immoral or objectionable purpose, or any
business or activity other than that specifically provided for in such
Tenant's Lease. Tenant shall not accept hairstyling, barbering, shoeshine,
nail, massage or similar services in the Premises or common areas except as
authorized by Landlord.
15. If Tenant requires telegraphic, telephonic, telecommunications, data
processing, burglar alarm or similar services, it shall first obtain, and
comply with, Landlord's instructions in their installation. The cost of
purchasing, installation and maintenance of such services shall be borne
solely by Tenant.
16. Landlord will direct electricians as to where and how telephone, telegraph
and electrical wires are to be introduced or installed. No boring or
cutting for wires will be allowed without the prior written consent of
Landlord. The location of burglar alarms, telephones, call boxes and other
office equipment affixed to the Premises shall be subject to the prior
written approval of Landlord.
17. Tenant shall not install any radio or television antenna, satellite dish,
loudspeaker or any other device on the exterior walls or the roof of the
Building, without Landlord's consent. Tenant shall not interfere with radio
or television broadcasting or reception from or in the Building, the
Project or elsewhere.
18. Tenant shall not xxxx, or drive nails, screws or drill into the partitions,
woodwork or drywall or in any way deface the Premises or any part thereof
without Landlord's consent. Tenant may install nails and screws in areas of
the Premises that have been identified for those purposes to Landlord by
Tenant at the time those walls or partitions were installed in the
Premises. Tenant shall not lay linoleum, tile, carpet or any other floor
covering so that the same shall be affixed to the floor of its Premises in
any manner except as approved in writing by Landlord. The expense of
repairing any damage resulting from a violation of this rule or the removal
of any floor covering shall be borne by the tenant by whom, or by whose
contractors, employees or invitees, the damage shall have been caused.
19. No furniture, freight, equipment, materials, supplies, packages,
merchandise or other property will be received in the Building or carried
up or down the elevators except between such hours and in such elevators as
shall be designated by Landlord.
Tenant shall not place a load upon any floor of its Premises which exceeds
the load per square foot which such floor was designed to carry or which is
allowed by law. Landlord shall have the right to prescribe the weight, size
and position of all safes, furniture or other heavy equipment brought into
the Building. Safes or other heavy objects shall, if considered necessary
by Landlord, stand on wood strips of such thickness as determined by
Landlord to be necessary to properly distribute the weight thereof.
Landlord will not be responsible for loss of or damage to any such safe,
equipment or property from any cause, and all damage done to the Building
by moving or maintaining any such safe, equipment or other property shall
be repaired at the expense of Tenant.
Business machines and mechanical equipment belonging to Tenant which cause
noise or vibration that may be transmitted to the structure of the Building
or to any space therein to such a degree as 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 Building must be acceptable to Landlord.
20. Tenant shall not install, maintain or operate upon its Premises any vending
machine without the written consent of Landlord.
21. There shall not be used in any space, or in the public areas of the Project
either by Tenant or others, any hand trucks except those equipped with
rubber tires and side guards or such other material handling equipment as
Landlord may approve. Tenants using hand trucks shall be required to use
the freight elevator, or such elevator as Landlord shall designate. No
other vehicles of any kind shall be brought by Tenant into or kept in or
about its Premises.
22. Each tenant shall store all its trash and garbage within the interior of
the Premises. Tenant shall not place in the trash boxes or receptacles any
personal trash or any material that may not or cannot be disposed of in the
ordinary and customary manner of removing and disposing of trash and
garbage in the city, without violation of any law or ordinance governing
such disposal. All trash, garbage and refuse disposal shall be made only
through entry-ways and elevators provided for such purposes and at such
times as Landlord shall designate. If the Building has implemented a
building-wide recycling program for tenants, Tenant shall use good faith
efforts to participate in said program.
23. Canvassing, soliciting, distribution of handbills or any other written
material and peddling in the Building and the Project are prohibited and
each tenant shall cooperate to prevent the same. No tenant shall make
room-to-room solicitation of business from other tenants in the Building or
the Project, without the written consent of Landlord.
24. Landlord shall have the right, exercisable without notice and without
liability to any tenant, to change the name and address of the Building and
the Project.
25. Landlord reserves the right to exclude or expel from the Project any person
who, in Landlord's judgment, is under the influence of alcohol or drugs or
who commits any act in violation of any of these Rules and Regulations.
26. Without the prior written consent of Landlord, Tenant shall not use the
name of the Building or the Project or any photograph or other likeness of
the Building or the Project in connection with, or in promoting or
advertising, Tenant's business except that Tenant may include the
Building's or Project's name in 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 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.
29. The requirements of Tenant will be attended to only upon appropriate
application at the office of the Building 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 employees of Landlord will admit any person (tenant or otherwise) to any
office without specific instructions from Landlord.
30. Landlord reserves the right to designate the use of the parking spaces on
the Project. Tenant or Tenant's guests shall park between designated
parking lines only, and shall not occupy two parking spaces with one car.
Parking spaces shall be for passenger vehicles only; no boats, trucks,
trailers,
recreational vehicles or other types of vehicles may be parked in the
parking areas (except that trucks may be loaded and unloaded in designated
loading areas). Vehicles in violation of the above shall be subject to
tow-away, at vehicle owner's expense. Vehicles parked on the Project
overnight without prior written consent of the Landlord shall be deemed
abandoned and shall be subject to tow-away at vehicle owner's expense. No
tenant of the Building shall park in visitor or reserved parking areas. Any
tenant found parking in such designated visitor or reserved parking areas
or unauthorized areas shall be subject to tow-away at vehicle owner's
expense. The parking areas shall not be used to provide car wash, oil
changes, detailing, automotive repair or other services unless otherwise
approved or furnished by Landlord. Tenant will from time to time, upon the
request of Landlord, supply Landlord with a list of license plate numbers
of vehicles owned or operated by its employees or agents.
31. No smoking of any kind shall be permitted anywhere within the Building,
including, without limitation, the Premises and those areas immediately
adjacent to the entrances and exits to the Building, or any other area as
Landlord elects. Smoking in the Project is only permitted in smoking areas
identified by Landlord, which may be relocated from time to time.
32. If the Building furnishes common area conferences rooms for tenant usage,
Landlord shall have the right to control each tenant's usage of the
conference rooms, including limiting tenant usage so that the rooms are
equally available to all tenants in the Building. Any common area amenities
or facilities shall be provided from time to time at Landlord's discretion.
33. Tenant shall not swap or exchange building keys or cardkeys with other
employees or tenants in the Building or the Project.
34. Tenant shall be responsible for the observance of all of the foregoing
Rules and Regulations by Tenant's employees, agents, clients, customers,
invitees and guests.
35. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify, alter or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of any premises in the
Project.
36. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular tenant or tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of
any other tenant or tenants, nor prevent Landlord from thereafter enforcing
any such Rules and Regulations against any or all tenants of the Building.
37. 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 the Project and
for the preservation of good order therein. Tenant agrees to abide by all
such Rules and Regulations herein stated and any additional rules and
regulations which are adopted.
EXHIBIT B
FLOOR PLAN
EXHIBIT C
LEASE IMPROVEMENT AGREEMENT
1. In consideration of the mutual covenants contained in the Lease of which
this Exhibit C is a part, Landlord agrees to perform the following initial
tenant improvement work in the Premises ("Tenant Improvements")
Building standard paint and carpet shall be installed throughout the
Premises. All wall damage shall be repaired. The current interior
conference room shall be demised into two offices.
2. All the Tenant Improvements described above shall be performed by
Landlord at its cost and expense using Building Standard materials and in the
Building Standard manner. As used herein, "Building Standard" shall mean the
standards for a particular item selected from time to time by Landlord for the
Building or such other standards as may be mutually agreed upon between Landlord
and Tenant in writing.
3. Without limiting the "as-is" provisions of the Lease, Tenant accepts the
Premises in its "as-is" condition and acknowledges that Landlord has no
obligation to make any changes or improvements to the Premises or to pay any
costs expended or to be expended in connection with any such changes or
improvements, other than the Tenant Improvements specified in Paragraph 1 of
this Exhibit C.
4. Tenant shall not perform any work in the Premises (including, without
limitation, cabling, wiring, fixturization, painting, carpeting, replacements or
repairs) except in accordance with Paragraphs 7.1 and 7.3 of the Lease.
EXHIBIT D
INSURANCE
Tenant's Insurance. Tenant shall, at Tenant's sole cost and expense, procure and
keep in effect from the date of this Lease and at all times until the end of the
Term, the following insurance coverage:
1. Property Insurance. Insurance on all personal property and fixtures of
Tenant and all improvements made by or for Tenant to the Premises on an
"All Risk" or "Special Form" basis, for the full replacement value of such
property.
2. Liability Insurance. Commercial General Liability insurance written on an
ISO CG 00 01 10 93 or equivalent form, on an occurrence basis, with a per
occurrence limit of at least $2,000,000, and a minimum general aggregate
limit of at least $3,000,000, covering bodily injury and property damage
liability occurring in or about the Premises or arising out of the use and
occupancy of the Premises or the Project by Tenant or any Tenant Party.
Such insurance shall include contractual liability coverage insuring
Tenant's indemnity obligations under this Lease, and shall be endorsed to
name Landlord, any Holder of a Security Instrument and any other party
specified by Landlord as an additional insured with regard to liability
arising out of the ownership, maintenance or use of the Premises.
3. Worker's Compensation and Employer's Liability Insurance. (a) Worker's
Compensation Insurance as required by any Regulation, and (b) Employer's
Liability Insurance in amounts not less than $1,000,000 each accident for
bodily injury by accident and for bodily injury by disease, and for each
employee for bodily injury by disease.
4. Commercial Auto Liability Insurance. Commercial auto liability insurance
with a combined limit of not less than One Million Dollars ($1,000,000) for
bodily injury and property damage for each accident. Such insurance shall
cover liability relating to any auto (including owned, hired and non-owned
autos).
5. Alterations Requirements. In the event Tenant shall desire to perform any
Alterations, Tenant shall deliver to Landlord, prior to commencing such
Alterations (i) evidence satisfactory to Landlord that Tenant carries
"Builder's Risk" insurance covering construction of such Alterations in an
amount and form approved by Landlord, (ii) such other insurance as Landlord
shall nondiscriminatorily require, and (iii) a lien and completion bond or
other security in form and amount satisfactory to Landlord.
6. General Insurance Requirements. All Tenant's coverages described in this
Exhibit D shall be endorsed to (i) provide Landlord with thirty (30) days'
notice of cancellation or change in terms; (ii) waive all rights of
subrogation by the insurance carrier against Landlord; and (iii) be primary
and non-contributing with Landlord's insurance. If at any time during the
Term the amount or coverage of insurance which Tenant is required to carry
under this Exhibit D is, in Landlord's reasonable judgment, materially less
than the amount or type of insurance coverage typically carried by owners
or tenants of properties located in the general area in which the Premises
are located which are similar to and operated for similar purposes as the
Premises or if Tenant's use of the Premises should change with or without
Landlord's consent, Landlord shall have the right to require Tenant to
increase the amount or change the types of insurance coverage required
under this Exhibit D. All insurance policies required to be carried by
Tenant under this Lease shall be written by companies rated AVII or better
in "Best's Insurance Guide" and authorized to do business in the State of
California. Deductible amounts under all insurance policies required to be
carried by Tenant under this Lease shall not exceed $10,000 per occurrence.
Tenant shall deliver to Landlord on or before the Term Commencement Date,
and thereafter at least thirty (30) days before the expiration dates of the
expired policies, certified copies of Tenant's insurance policies, or a
certificate evidencing the same issued by the insurer thereunder, and, if
Tenant shall fail to procure such insurance, or to deliver such policies or
certificates, Landlord may, at Landlord's option and in addition to
Landlord's other remedies in the event of a default by Tenant under the
Lease, procure the same for the account of Tenant, and the cost thereof
(with interest thereon at the Default Rate) shall be paid to Landlord as
Additional Rent.
Landlord's Insurance. All insurance maintained by Landlord shall be for the sole
benefit of Landlord and under Landlord's sole control.
1. Property Insurance. Landlord agrees to maintain property insurance insuring
the Building against damage or destruction due to risk including fire,
vandalism, and malicious mischief in an amount not less than the
replacement cost thereof, in the form and with deductibles and endorsements
as selected by Landlord. At its election, Landlord may instead (but shall
have no obligation to) obtain "All Risk" coverage, and may also obtain
earthquake, pollution, and/or flood insurance in amounts selected by
Landlord.
2. Optional Insurance. Landlord, at Landlord's option, may also (but shall
have no obligation to) carry (i) insurance against loss of rent, in an
amount equal to the amount of Base Rent and Additional Rent that Landlord
could be required to xxxxx to all Building tenants in the event of
condemnation or casualty damage for a period of twelve (12) months; and
(ii) liability insurance and such other insurance as Landlord may deem
prudent or advisable, including, without limitation, liability insurance in
such amounts and on such terms as Landlord shall determine. Landlord shall
not be obligated to insure, and shall have no responsibility whatsoever for
any damage to, any furniture, machinery, goods, inventory or supplies, or
other personal property or fixtures which Tenant may keep or maintain in
the Premises, or any leasehold improvements, additions or alterations
within the Premises.
Exhibit E
PARKING RULES AND REGULATIONS
1. Cars must be parked entirely within painted stall lines.
2. All directional signs and arrows must be observed.
3. All posted speed limits for the parking areas shall be observed. If no
speed limit is posted for an area, the speed limit shall be five (5)
miles per hour.
4. Parking is prohibited:
(a) in areas not striped for parking;
(b) in aisles;
(c) where "no parking" signs are posted;
(d) on ramps;
(e) in cross hatched areas; and
(f) in such other areas as may be designated by Landlord.
5. Handicap and visitor stalls shall be used only by handicapped persons
or visitors, as applicable.
6. Parking stickers or any other device or form of identification supplied
by Landlord from time to time (if any) 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 may not be obliterated. Devices are not
transferable and any device in possession of any unauthorized holder
will be void. There will be a replacement charge payable by the xxxxxx
and such xxxxxx'x appropriate tenant equal to the amount posted from
time to time by Landlord for loss of any magnetic parking card or any
parking sticker.
7. Every xxxxxx is required to park and lock his or her own car.
All responsibility for damage to cars or persons is assumed by the
xxxxxx.
8. Loss or theft of parking identification devices must be reported to
Landlord, and a report of such loss or theft must be filed by the
xxxxxx at that time. 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. Lost or stolen devices
found by the xxxxxx must be reported to Landlord immediately to avoid
confusion.
9. Parking spaces are for the express purpose of parking one automobile
per space. Washing, waxing, cleaning, or servicing of any vehicle by
the xxxxxx and/or such person's agents is prohibited. The parking areas
shall not be used for overnight or other storage for vehicles of any
type.
10. Landlord reserves the right to refuse the issuance of parking
identification or access devices to any tenant and/or such tenant's
employees, agents, visitors or representatives who willfully refuse to
comply with the Parking Rules and Regulations and/or all applicable
governmental ordinances, laws, or agreements.
11. Tenant shall acquaint its employees, agents, visitors or
representatives with the Parking Rules and Regulations, as they may be
in effect from time to time.
12. Any monthly rental for parking shall be paid one month in advance prior
to the first day of such month. Failure to do so will automatically
cancel parking privileges, and a charge of the prevailing daily rate
will be due. No deductions or allowances from the monthly rental for
parking will be made for days a xxxxxx does not use the parking
facilities.
13. Each xxxxxx shall pay a reasonable deposit for any parking card issued
to such a person. Such deposit shall be paid at the time the parking
card is issued and shall be forfeited if the parking card is lost. Such
deposit shall be returned without interest, at the time such person
ceases to utilize the parking facilities, upon surrender of the parking
card. A reasonable replacement charge shall be paid to replace a lost
card and an amount in excess of the initial deposit may be charged as
the replacement fee.
