EXHIBIT 10.19
OFFICE LEASE
000 XXXX XXXXXXXX XXXXXXXXX
XXXXXXXX, XXXXXXXXXX 00000
Lessor:
BPG PASADENA, L.L.C.,
a Delaware Limited Liability Company
and
Lessee:
CITYSEARCH, INC., a Delaware Corporation
Dated: September 30, 1996
XXXXXX PACIFIC GROUP
October 3, 1996
Xx. Xxxx Xxxxxxx
CitySearch, Inc.
0000 Xxxx Xxxxxx
Xxxxx 000
Xx Xxxxxxxxx, XX 00000
Dear Xxxx:
Attached is a fully executed copy of the Lease for your files.
I am assuming that I will continue to coordinate directly with you
concerning the build-out. Please keep me advised relative to the computer
room facility as I do not want to let the ball drop on our end, relative to
special work that needs to be done in that area.
We look forward to having you relocate to the building, and I will be in
touch with your associate, Xxx Xxxxx, concerning the public information
program.
Very truly yours,
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Managing Director
attachment
cc: Xxx Xxxxxxxxxx
Drew Planting
MDB/cer
000 XXXX XXXXXXXX XXXXXXXXX
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SUMMARY OF BASIC LEASE INFORMATION
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The undersigned hereby agree to the following terms of this Summary of Basic
Lease Information (the "Summary"). This Summary is hereby incorporated into
and made a part of the attached Office Lease (this Summary and the Office Lease
to be known collectively as the "Lease") which pertains to the office building
and parking structure the "Project") located at 000 Xxxx Xxxxxxxx Xxxxxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000. Each reference in the Office Lease to any term of
this Summary shall have the meaning as set forth in this Summary for such term.
In the event of a conflict between the terms of this Summary and the Office
Lease, the terms of the Office Lease shall prevail. Any capitalized terms used
herein and not otherwise defined herein shall have the meaning as set forth in
the Office Lease.
TERMS OF LEASE DESCRIPTION
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(References are to the Office Lease)
1. Date: September 30, 1996
2. Lessor: BPG Pasadena, L.L.C.
000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
With copy to:
Attention: Xxxxxxx X.Xxxxxxx
Xxxxxx Pacific Group, Inc.
000 Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
3. Lessee: CITYSEARCH, INC.
0000 Xxxx Xxxxxx, Xxxxx 000
Xx Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
and
000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
(After Lease Commencement Date)
4. a. Premises (Article I): 22.389 rentable square feet of space comprising all of Level 2 and a portion
of Level 3 of the Project as set forth in Exhibit B-I attached hereto.
b. Expansion Premises 5.173 rentable square feet of space located on the 3rd floor of the Project
as set forth in Exhibit B-2, attached hereto.
5. Term (Article 3): Five (5) years, Lessee may terminate the Lease after 36 months, subject to:
5.1 Lease Term: (a) no material default of Lease: (b) nine (9) months prior written notice:
(c) payment of five (5) months Base Rental: and (a) payment of all
unamortized Lessee improvement provided by Lessor and unamortized Lease
commissions paid by Lessor at 12% interest rate.
6 Lease Commencement Date: The earlier of (i) the date Lessee commences business in the Premises, and
(ii) the later of (A) November 1, 1996 or (B) the date of Substantial
Completion of the Premises by Lessor (subject to acceleration pursuant to
Section 5 of Exhibit B attached to the Office Lease). The Lease Commencement
Date is scheduled to be November 1, 1996. Lessor shall endeavor to deliver
to Lessee thirty (30) days' prior written notice of Lessor's estimate of when
the date of Substantial Completion of the Premises shall occur. Lessor shall
xxxxx the Annual Base Rental three (3) days for each day the Lease premises
are not substantially complete by November 20. 1996. Lessor's obligation
hereunder shall be subject to Lessee's compliance with its scheduled
commitments as set forth in the Work Letter (Exhibit D).
7. Lease Expiration Date: The last day of the month in which the 60th month anniversary of the Lease
Commencement Date occurs.
8. Base Rent (Article 4)
Annual
Monthly Rental Rate
Lease Annual Installment per Rentable
Year Base Rent of Base Rent Square Foot
----- --------- ------------ ------------
Months 1-9 416,435.00 34,702.95 $18.60
Months/9-12 512,653.20 42,721.10 $18.60
2 529,190.40 44,099.20 $19.20
3 562,264.80 46,855.40 $21.00
4 578,802.00 48,233.50 $21.00
5 578,802.00 48,233.50 $21.00
9. Additional Rent (Article 4)
9.1 Base Year: Basic costs for Calendar year 1997.
9.2 Lessee's Initial Share 21.10% (based upon a Building rentable area). The percentage share is based
of Direct Expenses: on Lessee's ratio of leased premises to the total rentable area of the
Buildings as defined by the BOMA. The percentage share will be adjusted to
include the Expansion Premises upon commencement of the Lease of the
Expansion Premises.
10. Security Deposit (Article 4.9): One month's rent.
11. a. Parking Passes (Article 20.20): Lessee shall be granted a ratio of four (4) parking passes for each 1.000
square feet of its Premises and expansion premises and right of first offer
space.
Monthly parking passes, based on stipulated ratio of passes, shall be:
Months 1 - 6 No charge
Months 6 - 12 $35.00
Months 13 - 24 $40.00
Months 25 - 36 $45.00
Months 37 - 48 $50.00
Months 49 - 60 $55.00
The above monthly amounts shall not exceed comparable parking charges in
comparable office buildings located in the Lake Street office corridor of
Pasadena.
b. Additional Parking Subject to availability and subject to the prior rights of other lessees at
the Project, Lessee may acquire additional parking passes at the market rate
for such spaces, and shall receive additional parking preferential to those
who are not Building occupants.
12. Brokers (Section 20.16): Lessee Agent:
Drew Planting and Xxxxxx Xxxxxxxxxx
Xxxxxxx & Wakefield of California
000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
and
Lessor Agent:
Xxxxxx Pacific Group, L.L.C.
000 X. Xxxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
The foregoing terms of this Summary are hereby agreed to by Lessor and Lessee.
"LESSOR":
BPG PASADENA, L.L.C.
By:___________________________________
Its: Managing Member
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"LESSEE":
CITYSEARCH, INC.
By: /s/ [SIGNATURE ILLEGIBLE]
-----------------------------------
Its: Chief Financial Officer
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"90 EAST COLORADO BOULEVARD
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OFFICE LEASE
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TABLE OF CONTENTS
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ARTICLE SUBJECT MATTER PAGE
------- -------------- ----
ARTICLE 1 REAL PROPERTY, BUILDING AND PREMISES.................................... 1
ARTICLE 2 PLANS AND CONSTRUCTION.................................................. 4
ARTICLE 3 TERM, USE, COMPLIANCE WITH LAWS......................................... 5
ARTICLE 4 RENTAL.................................................................. 7
ARTICLE 5 SERVICES AND UTILITIES.................................................. 12
ARTICLE 6 REPAIRS................................................................. 13
ARTICLE 7 ADDITIONS AND ALTERATIONS............................................... 14
ARTICLE 8 COVENANT AGAINST LIENS.................................................. 15
ARTICLE 9 INSURANCE............................................................... 15
ARTICLE 10 DAMAGE AND DESTRUCTION.................................................. 17
ARTICLE 11 NON-WAIVER.............................................................. 18
ARTICLE 12 EMINENT DOMAIN.......................................................... 18
ARTICLE 13 ASSIGNMENT AND SUBLETTING............................................... 19
ARTICLE 14 SURRENDER OF PREMISES OWNERSHIP AND REMOVAL OF TRADE FIXTURES........... 21
ARTICLE 15 HOLDING OVER............................................................ 22
ARTICLE 16 ESTOPPEL, ATTORNMENT AND SUBORDINATION.................................. 22
ARTICLE 17 DEFAULTS: REMEDIES...................................................... 23
ARTICLE 18 GRAPHICS................................................................ 25
ARTICLE 19 LESSOR'S RIGHT TO CURE DEFAULT; PAYMENT BY LESSEE....................... 25
ARTICLE 20 MISCELLANEOUS PROVISIONS................................................ 26
EXHIBITS
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A. LEGAL DESCRIPTION
B. OUTLINE OF FLOOR PLAN OF PREMISES
C. LESSEE WORK LETTER
D. LESSEE'S FINAL SPACE PLAN
E. NOTICE OF LEASE TERM DATES
F. RULES AND REGULATIONS
G. FORM OF LESSEE ESTOPPEL CERTIFICATE
H. CLEANING SPECIFICATIONS
INDEX OF MAJOR DEFINED TERMS
----------------------------
DEFINED TERMS LOCATION OF DEFINITION
IN OFFICE LEASE
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Additional Rental............................................ Article 4.6
Adjacent Parking Structure................................... Article 1.1
Base Rent.................................................... Article 8 of Summary
Base Year................................................... Article 9.1 of Summary
Basic Costs.................................................. Article 4.4
Calendar Year................................................ Article 4.3.2
Basic Services............................................... Article 5.1
Commencement Date............................................ Article 3.1
Expense Rental............................................... Article 4.1(b)
Expense Rental Adjustment.................................... Article 4.2(b)
Expense Year................................................. Article 4.3.3
Force Majeure................................................ Article 4.27
Hazardous Material........................................... Article 20.24
Holidays..................................................... Article 5.1
Impositions.................................................. Article 4.4(1)
Scheduled Commencement Date.................................. Article 2.2(c)
Lease Expiration Date........................................ Article 7 of Summary
Lease Term................................................... Article 5 of Summary
Operating Expenses........................................... Article 4.2.5
Preliminary Plans............................................ Article 2.1(a)
Premises..................................................... Article 4 of Summary
Project...................................................... Article 1.1
Rentable Area................................................ Article 1.5
Security Deposit............................................. Article 4.9
Signage...................................................... Article 5.6
Systems and Equipment........................................ Article 5.1
Lessee Work Letter........................................... Article 2.1(b)
Transfer Notice.............................................. Article 13.1
Transfer Premium............................................. Article 13.1
Transferee................................................... Article 13.1
Transfers.................................................... Article 13.1
000 XXXX XXXXXXXX XXXXXXXXX
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OFFICE LEASE
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This Office Lease, which includes the preceding Summary of Basic Lease
Information (the "Summary") attached hereto and incorporated herein by the
reference (the Office Lease and Summary to be known sometimes collectively
hereafter as the "Lease"), dated as of the date set forth in Section 1 of the
Summary, is made by and between BPG PASADENA, L.L.C., a Delaware Limited
Liability Company ("Lessor"), and CITYSEARCH, INC., a Delaware Corporation
("Lessee").
ARTICLE I
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REAL PROPERTY, BUILDING AND PREMISES
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1.1 Real Property, Building and Premises. Upon and subject to the
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terms, covenants and conditions hereinafter set forth in this Lease, Lessor
hereby leases to Lessee and Lessee hereby leases from Lessor the premises set
forth in Section 4 of the Summary (the "Premises"), which Premises are located
in the "Project," as that term is defined in this Section 1.1. The outline of
the floor plan of the Premises is set forth in Exhibit B attached hereto. The
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Premises are a part of the office building (the "Project") located at 000 Xxxx
Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000. The office building, the parking
garage facility located adjacent to the office building ("Adjacent Parking
Structure"), the outside plaza areas, land and other improvements surrounding
the Project which are designated from time to time by Lessor as common areas
appurtenant to or servicing the Project, and the land upon which any of the
foregoing are situated, are herein sometimes collectively referred to as the
"Real Property." Lessee is hereby granted the right to the nonexclusive use of
the common corridors and hallways, stairwells, elevators, rest rooms and other
public or common areas located on the "Real Property," provided, however, that
the manner in which such public and common areas are maintained and operated
shall be at the sole discretion of Lessor and the use thereof shall be subject
to such rules, regulations and restrictions as Lessor may make form time to
time, subject to non-discrimination standards. Lessor reserves the right to make
alterations or additions to or change the location of elements of the Real
Property and the common areas thereof provided however, that Lessor shall not
make any alterations or changes to the Common Areas that would materially
decrease the level of service provided to Lessee. Except when and where Lessee's
right of access is specifically excluded above and elsewhere on this Lease,
Lessee shall have the right of access to the Premises twenty-four (24) hours per
day, seven (7) days per week during the Lease Term.
1.2 Condition of the Premises. Except as specifically set forth
-------------------------
in this Lease and in the Lessee Work Letter attached hereto as Exhibit X. Xxxxxx
shall not be obligated to provide or pay for any improvement work or services
related to the improvement of the Premises. Lessee also acknowledges that Lessor
has made no representation or warranty regarding the condition of the Premises
or the Project except as specifically set forth in this Lease and the Lessee
Work Letter. Lessor shall deliver the Premises free and clear of debris, and
shall thoroughly clean the Premises, following Lessee's move into the Premises.
Lessor thereafter warrants that the Project will be leased, operated and
maintained as an institutional quality office building.
1.3 Common Area. Appurtenant to the Premises and subject to
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reasonable rules and regulations from time to time made by the Lessor of which
Lessee is given notice, Lessee shall have the right to the use of the following
common ("Common Areas"):
(a) Building Common Area. The common stairways, corridors
--------------------
and accessways, vending or mail areas, lobbies and foyers, entrances, stairs,
escalators, elevators, rest rooms, janitorial, telephone, mechanical and
electrical rooms and any passageways thereto, and the common pipes, ducts,
conduits, wires and appurtenant equipment serving the Premises.
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(b) Land Common Area. The common walkways and sidewalks
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necessary for access to the Project. Lessee's acceptance of the Premises shall
constitute an acknowledgment and acceptance of the various temporary
inconveniences that may be associated with the use of the Common Areas.
1.4 Lessor's Reserved Rights in Premises and Common Areas. Lessor
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reserves the right, provided that the exercise of such right does not materially
decrease the level of service provided to Lessee from time to time.
(a) Building Changes. To install, use, maintain, repair and
----------------
replace pipes, ducts, conduits, wires and appurtenant meters and equipment for
service to other parts of the Project above the ceiling surfaces, below the
floor surfaces, within the walls and in the central core areas, and to relocate
any pipes, ducts, conduits, wires and appurtenant meters and equipment in the
Premises which are so located or located elsewhere outside the Premises.
(b) Boundary Changes. To change the lines of the lot on which
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the office building and parking structure stands ("Lot") and to redesign and
restripe the parking facilities in the Garage and make other reasonable changes
and grant others rights thereto, including without limitation the granting of
easements, rights of way and rights of ingress and egress and similar rights to
users of parcels adjacent to the Lot.
(c) Facility Changes. To alter or relocate any other common
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areas of facilities associated with the Project.
(d) Garage Parking and Storage. To grant exclusive use to
--------------------------
portions of the Garage in the Project to other Tenants of the Building and to
impose parking charges from time to time for use of the Garage, except however,
as limited by the parking charges to be paid by Lessee as set forth in the
Summary and per article 20.20 below
1.5 Rentable Area. The term "Rentable Area" shall be deemed to
-------------
include.
(a) in the case of a single tenancy floor the aggregate of (i)
all floor area of the Premises measured from the inside surface of the outer
glass and extensions of the plane thereof in non-glass areas to the inside
surface of the opposite outer glass and extensions of the plane thereof in non-
glass areas and shall include all areas within the outside walls, excluding only
the areas ("Service Areas") used for elevator mechanical rooms, building stairs,
fire towers, elevator shafts, flues, vents, stacks, vertical pipe shafts and
vertical ducts, but including any such Service Arears which are for the specific
use of the particular tenant such as special stairs or elevators, and (ii)
Lessee's Percentage Share (defined in Article 1.6 below of the square footage of
the Project's elevator and main mechanical rooms, fire control stations and
building lobbies ("Building Areas"); and
(b) in the case of a partial tenancy floor, the aggregate of (i)
all floor area of the Premises within the inside surface of the outer glass
and extensions of the plane thereof in non-glass areas to the mid-point of the
demising walls separating the Premises from areas leased by or held for lease to
other tenants or from Project Common Areas located on such floor and other
similar facilities for the use of all tenants on such floor, (ii) Lessee's
allocable portion based upon the ratio which the Rentable Area of the Premises
bears to the Rentable Area of the floor ("Lessee's Floor Share") of the Project
Common Areas located on such floor and other similar facilities for the use of
all tenants on such floor, and (iii) Lessee's Percentage Share of the Project
Areas.
In determining Rentable Area, no deductions shall be made for
columns or projections necessary for the Project. The Rentable Area of the
Premises and the Rentable Area of the Project (which for the purposes of this
Lease is exclusive of retail and storage or basement uses) have been calculated
on the basis of the foregoing definition and shall be consistent with the
standards established by the Building Owners and Management Association, "BOMA",
are hereby stipulated for all purposes hereof to be the approximate amounts
stated in the Basic Lease Information, subject to confirmation by actual
measurement by Lessor's architect, at the request of either party prior to
Lessee's occupancy.
2
1.6 Lessee's Percentage Share. The term "Lessee's Percentage Share"
-------------------------
shall mean the percentage figure specified in the Basic Lease Information which
represents the ratio that the Rentable Area of the Premises bears one hundred
(100%) of the Rentable Area then leased in the Project. In the event Lessee's
Percentage Share is changed during a calendar year by reason of a change in
the Rentable Area of the Premises or a charge in the total Rentable Area of
the Project, Lessee's Percentage Share shall be re-calculated pursuant to the
aforementioned formula and shall be determined on the basis of the number of
days during such calendar year at each such percentage, provided however that
Lessee's financial obligation shall not be increased thereby.
1.7 Right of First Offer. During the term of the Lease, Lessee
--------------------
shall have a right of first offer to lease that portion of the rentable area of
seventh (7th) floor of the Project consisting of approximately 13.896 rentable
square feet, as depicted on Exhibit B, attached hereto, (the First Offer Space)
---------
which becomes available for lease as described hereinbelow, Lessee's right of
first offer shall be on the terms and conditions set forth in this Section 1.7.
Lessee shall not have any such first offer right to lease the First Offer Space
(and/or Initial Space as the case may be) pursuant to this Section 1.7 until (A)
with respect to the First Offer Space, after a Vacant Space Lease has been
executed for such Vacant Space and such First Offer Space becomes available for
lease following the expiration of such Vacant Space Lease (including renewals)
and the Lessee thereunder has vacated such Vacant Space.
1.8 Procedure for Offer. Upon receipt of a written offer from a
-------------------
third party for all or a portion of the subject Space, Lessor shall give Lessee
written notice (the "First Offer Notice") that the First Offer Space requires a
response pursuant to the terms of Lessee's Right of First Offer, as set forth in
this Article 1. Pursuant to such First Offer Notice, Lessor shall offer to lease
to Lessee the First Offer Space for a term coterminous with the Lease Term. The
First Offer Notice shall describe the space so offered to Lessee including
without limitation, Lessor's determination of the rentable square footage
thereof, and shall set forth the "First Offer Rent" as that term 15 defined in
Section 1.10 below, and the other terms upon which Lessor is willing to lease
such space to Lessee.
1.9 Procedure for Acceptance. If Lessee wishes to exercise Lessee's
------------------------
right of first offer with respect to the space described in the First Offer
Notice, then within ten (10) business days of delivery of the First Offer Notice
to Lessee. Lessee shall deliver notice to Lessor of Lessee's exercise of its
Right of First Offer in respect to the space described in the First Offer Notice
at the First Offer Rent and upon the terms contained in such notice. If Lessee
does not wish to exercise its Right of First Offer within such ten (10) business
day period, then Lessor shall be free to lease the space described in the First
Offer Notice to anyone to whom Lessor desires on any terms Lessor desires,
whereupon, Lessee's Right of First Offer shall terminate with respect to such
First Offer Space. Notwithstanding anything to the contrary contained herein,
Lessee must elect to exercise its Right of First Offer, if at all, with respect
to all of the space offered by Lessor to Lessee at any particular time, and
Lessee may not elect to lease only a portion thereof.
1.10 First Offer Space Rent. The rent payable by Lessee for the
----------------------
First Offer Space (the "First Offer Rent") shall be equal to the Fair Market
Rental Rate for the First Offer Space. In the event Lessor and Lessee cannot
mutually agree upon the terms for such space, an Arbitrator will be appointed
consistent with the terms of Article 3.7.
1.11 Construction In First Offer Space. Subject to any improvement
---------------------------------
allowance granted to Lessee or Lessee improvement work to be provided by Lessor
as a component of First Offer Rent, Lessee shall take the First Offer Space in
its "as-is" condition as of the date of delivery of such space, and the
construction of improvements in the First Offer Space shall be Lessee's sole
responsibility (except that Lessor will provide a tenant improvement allowance
equal to the Tenant Improvement Allowance for the Initial Premises reduced pro-
rata by the remaining Lease Term), with any such construction to comply with the
terms of Article 8 of this Lease. Notwithstanding the foregoing, should Tenant
exercise its Right of First Offer within 12 calendar months prior to its
Termination Rights and should Tenant receive a Tenant Improvement Allowance,
then should Tenant exercise its Termination Right, Tenant in addition to paying
the unamortized costs shall also pay on a penalty, equal to one month's Base
Rent as set forth in Section 8 of the Summary of Basic Lease Information. The
parties will consider the condition of the Space to determine the Fair Market
Rental Rate.
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1.12 Amendment to Lease. If Lessee timely exercises Lessee's right
------------------
to lease the First Offer Space, Lessor and Lessee shall within thirty (30) days
thereafter execute an amendment to the Lease memorializing Lessee's lease for
such First Offer Space upon the terms and conditions set forth in this Article
1. Lessee shall commence payment of Rent for the First Offer Space, and the
term of the First Offer Space shall commence upon the date of delivery of the
First Offer Space to Lessee in a condition mutually agreed by the parties (the
"First Offer Commencement Date") and terminate coterminous with the termination
of the Lease Term.
1.13 Suspension of Right of First Offer. Lessee shall not have the
----------------------------------
right to lease any First Offer Space if, as of the date of the attempted
exercise of any right of first offer by Lessee, or as of the scheduled date of
delivery of such First Offer Space to Lessee. Lessee is in material default
under this Lease beyond any applicable notice and cure periods. In addition, the
rights to lease the First Offer Space shall be personal to the Original Lessee,
or any affiliate entity acquiring entity or restructured entity, which is
comprised of Lessee, subject to the creditworthiness of the subject affiliate,
acquiring or restructured entity executing this Lease (the "Original Lessee")
and may only be exercised by the Original Lessee (and not by any assignee or any
sublessee or other, transferee of Lessee's interest in this Lease or the
Premises, or any part thereof) if, at the time of the attempted exercise of any
such right of first offer, the Original Lessee is in physical occupancy and
possession of the entire Premises.
1.14 Expansion Premises. On or before Nine (9) months from the
------------------
Commencement Date, Lessee hereby commits the lease, occupy and use all the
remaining Space not initially leased on Level 3 as depicted in Exhibit B-2. The
terms and conditions of the Expansion Premises shall be the same rental and same
level of tenant improvements, to be provided by Lessor subject to Lessee's
submittal of an Approved Space Plan for the Expansion Premises. The term of the
lease for the Expansion Premises shall terminate on the same date as the lease
covering the Initial Premises and all terms and conditions set forth in this
lease shall be applicable to the Expansion Premises.
ARTICLE 2
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PLANS AND CONSTRUCTION
----------------------
2.1 Plans.
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(a) Preliminary Plans. Lessor and Lessee have approved the
-----------------
preliminary plans and outline specifications identified in Exhibit D for the
construction of the Premises ("Preliminary Plans").
(b) Work Letter. Lessee has delivered to Lessor for Lessor's
-----------
review and approval the Space Plan (and any revisions thereto) and the Working
Drawings (substantially in conformity with the Space Plan), containing the
information required by the Work Letter attached hereto as Exhibit C for the
construction of the Premises (defined more completely in the Work Letter as
"Improvements"). Any changes to the Improvements requested by Lessee shall only
be made in accordance with the terms of the Work Letter.
2.2 Construction of Improvements and Payment.
----------------------------------------
(a) Construction. Lessor shall construct or install the
-------------
Improvements in the Premises substantially in accordance with the Working
Drawings and pursuant to the schedule set forth in the Work Letter.
(b) Payment. Lessor shall determine Lessee's share of the cost
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of constructing or installing the Improvements based on the parties' obligations
as specified in the Work Letter. Lessee shall be solely responsible for the
payment of Lessee Extra Work (as defined in the Work Letter).
(c) Completion. Lessor shall use diligence to construct or
-----------
install the
4
Improvements in a professional workmanlike manner in the Premises so that they
are Substantially Complete (as defined in the Work Letter) by the Scheduled
Commencement Date set forth in the Basic Lease Information; provide, however,
that the Scheduled Commencement Date shall be extended for a period equal to the
period of any delays affecting the construction of the Improvements because of
fire, earthquake, weather, acts of God, acts or the public enemy, riot,
insurrection, governmental authorities (permitting or inspection), governmental
regulations of the sales of materials or supplies or the transportation thereof,
strikes of boycotts, unavailability of material or labor at reasonable and
customary prices, moratoria Lessee Delays (as defined in the Work Letter) at the
time and in the manner described in the Work Letter.
(d) Delays. Except for Lessee delays, if for any reason Lessor
------
cannot deliver possession of the Premises to Lessee on the Scheduled
Commencement Date, this Lease shall not be void or voidable, except however,
Lessee shall be granted three (3) days for each work day the Premises are not
delivered by Lessor in a Substantially Complete form. Should Lessee Delay
contribute to the delay, Lessor shall be granted one additional work day of
delay for each day of delay resulting from Lessee Delays. Notwithstanding the
foregoing, if possession of the Premises has not been delivered to Lessee within
three (3) months following the Scheduled Commencement Date, this Lease shall
automatically terminate. No delay in delivery of possession shall operate to
extend the Lease term.
ARTICLE 3
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TERM: USE: COMPLIANCE WITH LAWS
-------------------------------
3.1 Commencement of Term. Subject to and upon the terms and
--------------------
conditions set forth herein, and receipt by Lessee of a thirty (30) day prior
written notice of Lessor's intent to deliver the Premises, the term shall be for
a period specified in the Summary as Term, commencing upon the earliest of the
following dates ("Commencement Date"):
(a) The date on which the Improvements to the Premises are
Substantially Complete (defined in the Work Letter, Exhibit C);
(b) The date on which the Improvements to the Premises would
have been Substantially Complete had there been no Lessee Delays (defined in the
Work Letter); or
(c) The date upon which Lessee actually commences to do business
in the Premises with Lessor's written consent.
(d) November 20, 1996 (except for the area referred to as the
computer room).
Upon the Commencement Date, Lessor and Lessee shall execute an
amendment to this Lease, as shown in Exhibit E attached herewith and made a
part of this Lease setting forth the Commencement Date and Term Expiration Date.
3.2 General Use and Compliance with Laws. Lessee shall only use the
------------------------------------
Premises for general office, administrative and for any other legally
permissible use comparable with a first class office building but for no other
use without the prior written consent of Lessor. Subject to Article 4.4 (4) (i),
Lessee shall comply with and faithfully observe all of the requirements of
municipal, county, state, federal and other applicable governmental authorities,
or which may hereafter be in force, pertaining to the use and occupancy of the
Premises, Lot. Garage and Project and shall secure any necessary permits
pertaining to Lessee's use and occupancy of the Premises. In Lessee's use and
occupancy of the Premises. Lessee shall not subject the Premises to any use that
would tend to damage any portion thereof or which shall in any way increase
the existing rate of any insurance on the Project or any portion thereof or
cause any cancellation of any insurance policy covering the Project or any
portion thereof. Lessee shall not do or permit anything to be done in or about
the Premises which shall in any way obstruct or interfere with the rights of
other tenants of the Project, or injure or annoy them, or use or allow the
5
Premises to be used for any improper, immoral, unlawful or objectionable
purpose, nor shall Lessee or Lessee's customers cause, maintain, or permit any
nuisance in, on or about the Premises or commit or suffer to be committed any
waste in, on or about the Premises. Lessee shall not bring into the office
building, or keep or arrange in the Premises any furniture, equipment, materials
or other objects which individually or collectively overload Premises or the
office building. Lessor reserves the right to prescribe the weight and position
of all safes, fixtures and heavy installations that Lessee desires to place in
the Premises so as to distribute properly the weight, or to rescure plans
prepared by a qualified structural engineer for such heavy objects at Lessee's
sole cost and expense. Notwithstanding the foregoing Lessor shall have no
liability for damage caused by the installation of such safes and heavy
equipment. Furthermore, business machines and mechanical equipment belonging to
Lessee that cause noise and or vibration that may be transmitted to the
structure of the office building or to any other tenants in the office building
shall be placed and maintained by Lessee, at Lessee's sole cost and expense, in
settings of cork, rubber or spring type noise and or vibration eliminators and
Lessee shall take such other measures directed by Lessor as needed to eliminate
such vibration and/or noise. Lessee recognizes that the Project is maintained by
Lessor as a location for first-class type of office business and retail
occupancy.
3.3 Option Right. In the event Lessee has not elected to exercise
------------
its termination right as set forth in the Summary. Lessor hereby grants to
Lessee one (1) option to extend the Lease Term for a period of five (5) years
(the "Option Term"). The option shall be exercisable only by written notice
delivered by Lessee to Lessor as provided below, provided that, as of the date
of delivery of such notice. Lessee is not in material default under this Lease
beyond any applicable notice and cure periods. Upon the proper exercise of such
option to extend, and provided that, as of the end of the initial Lease Term,
Lessee is not in material default under this Lease beyond any applicable notice
and cure periods, the Lease Term as it applies to the Premises, and any
Expansion Premises or any Premises leased in the Project by Lessee, shall be
extended for the Option Term. The rights contained in this Section 3.3 shall be
personal to the Original Lessee or its permitted assignee such as affiliates,
acquiring entity or restructured entity, but not by any assignee, or any
sublessee or other non-approved transferee of Lessee's interest in this Lease or
the Premises, or any part thereof.
3.4 Option Rent. The rent payable by Lessee during the Option
-----------
Term (the "Option Rent") shall equal ninety-five percent (95%) of the "Fair
Market Rental Rate" for the Premises. The term "Fair Market Rental Rate" for the
Premises during the Option Term and the Fair Market Rental Rate for the First
Offer Space for purposes of determining the First Offer Rent pursuant to Section
1.7) shall mean the annual amount per rentable square foot being charged on a
full service basis by Lessor as of the first day of the Option Term (or the
First Offer Commencement Date for the First Offer Rent, as the case may be) for
unencumbered non-sublease, non-equity space comparable to the Premises (or First
Offer Space as applicable) in the Office Building (defined as those signed
within 6 months of the valuation date) or if not enough comparable transactions
exist in the office building then the annual amount per rentable square foot
being charged on a full service basis for comparable space in Comparable
Buildings (as that term is defined below, giving appropriate consideration to
(appropriate concessions) "Rent Concessions and to all economic terms, such as
annual rental rates per rentable square foot, escalation clauses (such as net,
base year or expense stop), commercial provisions, relocation payments, locating
free rent, if any, length of the lease term, size and location of premises being
leased and other generally acceptable terms and conditions for the tenancy of
the space in question, including Lessee improvements or allowances provided or
to be provided for such comparable space (provided, however, that the amount of
such improvements or allowances shall be reduced, when calculating the Option
Rent for First Offer Rent, as the case may be by deducting the value of the
existing improvements in the Premises (or First Offer Space, as the case may
be), as of the first day of the Option Term, (or First Offer Commencement Date,
as the case may be) with such value to be based upon the age, of the
improvements provided, however, in calculating the Fair Market Rental Rate, no
consideration shall be given in to the fact that (i) any rental abatement is or
is not given such Lessees in connection with the construction of improvements in
such comparable space, or (ii) Lessor is or is not required to pay a real estate
brokerage commission in connection with the Option Term for First Offer Space,
or the fact that comparable deals do or do not involve the payment of real
estate brokerage commissions. If in determining the Fair Market Rental Rent.
Rent Concessions are granted Lessor may at Lessor's sole option, elect any or a
portion of the following:
6
(a) To grant some or all of the Rent Concessions to Lessee in
the form as described above of as free rent and/or an improvement allowance):
or.
(b) To adjust the rental rate component of the Fair Market
Rental Rate to be an effective rental rate which takes into consideration the
total dollar value of such Rent Concessions (in which case the Rent Concessions
evidenced in the effective rental rate shall not be granted to Lessee). The term
"Comparable Building" as used in this Lease shall mean first-class office
buildings located in the Lake Street Corridor of the Xxxxxxx Xxxxxxxx Xxxxxxxx
xx Xxxxxxxx, Xxxxxxxxxx.
3.5 Exercise of Option. The Lease Extension Option shall be
------------------
exercised by Lessee, if at and only in the following manner: (1) Lessee shall
deliver written notice to Lessor not more than fourteen (14) months nor less
than nine (9) months prior to the expiration of the initial Lease Term, stating
that Lessee may be interested in exercising its option: (ii) Lessor, after
receipt of Lessee's notice, shall deliver notice the "Option Rent Notice") to
Lessee not less than thirty (30) days, setting forth the Option Rent and, (iii)
if Lessee wishes to exercise such option, Lessee shall, on or before the date
occurring nine (9) months prior to the expiration of the initial Lease Term,
exercise the option by delivering written notice thereof to Lessor, and upon,
and concurrent with, such, exercise Lessee may, at its option, object to the
Option Rent contained In the Option Rent Notice, in which case the parties shall
follow the procedure, and the Option Rent shall be determined, as set forth in
Section 3.6 below.
3.6 Determination of Option Rent. In the event Lessee timely and
-----------------------------
objects in writing to the Option Rent (or First Offer Rent, as the case may be)
initially determined by Lessor and based on ninety-five percent (95%) of the
then Fair Market Value for comparable space on comparable buildings located in
Pasadena, California, Lessor and Lessee shall attempt to agree upon the Option
Rent (or First Offer Rent, as the case may be), using their best good-faith
efforts. If Lessor and Lessee fail to reach agreement within twenty (b) xxxx
following Lessee's objection to the Option Rent( or First Offer Rent, as the
case may be) (the "Outside Agreement Date"), then each party shall submit to
tine other party a separate written determination of the Option Rent (or First
Offer Rent, as the case may be) within ten (10) business days after the Outside
Agreement Date, and such determinations shall be submitted to arbitration in
accordance with the provisions herein. Failure of Lessee or Lessor to submit a
written determination of the Option Rent (or First Offer Rent, as the case may
be) within such ten (10) business day period shall conclusively be deemed to be
the non-determining party's approval of the Option Rent (or First Offer Rent, as
the case may be) submitted within such ten (10) business day period by the
other party.
3.7 Option Terms - Arbitration. Lessor and Lessee shall each
---------------------------
appoint one arbitrator who shall by profession be an independent real estate
broker who shall have been active over the five (5) year period ending on the
date of such appointment in the leasing of first-class office buildings in
Pasadena, California. The determination of the arbitrators shall be limited
solely to the issue of whether Lessor's or Lessee's submitted Option Rent (or
First Offer Rent, as the case may be) is the closest to the actual Option Rent
(or First Offer Rent, as the case may as determined by the arbitrators, taking
into account the requirements of Section 3.6 of this Lease with respect to the
Option Rent and Section 1.10 of this Lease with respect to the First Offer Rent.
Each such arbitrator shall be appointed within thirty (30) days after the
Outside Agreement Date and adopt procedures as follows:
(a) The two (2) arbitrators so appointed shall within ten (10)
days of the date of the appointment of the last appointed arbitrator agree upon
and appoint a third arbitrator who shall be qualified under the same criteria
set forth hereinabove for qualification of the initial two (2) arbitrators:
(b) The three (3) arbitrators shall with in thirty (30) days
after the appointment of the third arbitrator reach a decision as to whether
the panel shall use Lessor's or Lessee's submitted Option Rent (or First Offer
Rent, as the case may be) and shall notify Lessor and Lessee thereof:
(c) The decision of the majority of the three (3) arbitrators
shall be binding upon Lessor and Lessee:
7
(d) If either Lessor or Lessee fails to appoint an arbitrator
within thirty (30) days after the applicable Outside Agreement Date, the
arbitrator appointed by one of them shall reach a decision, notify Lessor and
Lessee thereof, and such arbitrator's shall be binding upon Lessor and Lessee;
(e) If the two (2) arbitrators fail to agree upon and appoint a
third arbitrator within the time period provided above, then the parties shall
mutually select the third arbitrator. If Lessor and Lessee are unable to agree
upon the third arbitrator within ten (10) days, then either party may upon at
least five (5) days prior written notice to the other party, request the
Presiding judge of the Los Angeles County Superior Court, acting in his her
private and non-judicial capacity, to appoint the third arbitrator. Following
the appointment the third arbitrator the panel, of arbitrators shall within
thirty (30) days thereafter reach a decision as to whether Lessor's or Lessee's
Option Rent (or First Offer Rent, as the case may be shall be used and shall
notify Lessor and Lessee thereof; and
(f) The cost of the arbitrators and the arbitration proceeding
shall be paid by Lessor and Lessee equally, except that each party shall pay for
the cost of its own witnesses, agents and attorneys.
ARTICLE 4
-------
RENTAL
------
4.1 Rent. Lessee shall pay, without notice or demand, to Lessor at
----
such place as Lessor may from time to time designate in writing, in currency or
a check for currency which, at the time of payment, is legal tender for private
or public debts in the United States of America, "Rent" as set forth in Section
8 of the Summary, pay payable in equal monthly installments in advance on or
before the first day of each and every month during the Lease Term, without any
set off or deduction whatsoever. Rental shall collectively mean the following
sums (collectively "Rent").
(a) Base Rental. Base Rental as specified in The Summary of
-----------
Basic Lease information includes a component applicable to Basic Costs (defined
in Article 4.4). The Base Year for the calculation of Basic Costs is 1997, and
the Base Year "shall mean the period set forth in Section 9.1 of the Basic
Lease Information adjusted to reflect 95% building occupancy. The "Expense
Year" shall mean each calendar year in which any portion, of the Lease Term
falls, through and including the calendar year in which the Lease Term expires.
4.2 Calculation and Payment of Additional Rent.
------------------------------------------
(a) Base Rental Adjustment. The Base Rental adjustments for the
----------------------
Term are set forth in the Summary.
(b) Additional Rent Estimate. The amount to be paid initially as
------------------------
Expense Rental has been estimated by Lessor for the calendar year, 1997,
Lessee's first full calendar year of the Term. Thereafter, Lessee's payment of
Basic Costs shall be estimated and adjusted by Lessor as soon as reasonably
possible after the end of each calendar year. The estimates and adjustments
shall be made in accordance with the following procedures.
(c) Calculation of Excess. If for any Expense Year ending or
---------------------
commencing within the Lease Term, Tenant's Share of Direct Expenses for each
Expense Year exceeds Tenant's proportionate share of the amount of Direct
Expenses applicable to the Base Year, then Tenant shall pay to Landlord, in the
manner set forth herein, as Additional Rent an amount equal to the excess. The
foregoing shall be referred to as Lessee's share of Basic Costs.
(d) Statement of Actual Direct Expenses and Payment by Tenant.
---------------------------------------------------------
Within 120 days following the end of each Expense Year, Lessor shall deliver to
Lessee a Statement ("Statement") which Statements should be derived from a
audit conducted by an, independent certified public accountant (which accountant
is a
8
member of a nationally recognized accounting firm) which shall state the Basic
Costs on a line item basis as to the general categories of Basic Costs, incurred
or accrued for each preceding Expense Year and which shall indicate the amount,
if any, of any Excess. Upon receipt of the Statement for each Expense Year
ending during the lease term if an Excess in present, Tenant shall pay with its
next installment of Base Rent due but in no event prior to thirty (30) days
after the receipt of such Statement the full amount of the excess for such
Expense Year, less the amount, if any, paid during such Expense Year as defined.
In the event that a Statement shows that the amount paid by Tenant exceeds
Tenant's Share of the Increase in Basic Cost for the Expense Year in question
("overpayment") Tenant may credit the amount of such overpayment against the
next due installments of Base Rent and Additional Rent provided that even
though the Lease Term has expired and Tenant has vacated the premises, when the
final determination is made to Tenant's Share of the Basic Cost for the Expense
Year in which this Lease expires or earlier terminates taking into
consideration that the Lease expiration date may have occurred prior to the
final day of the applicable Expense Year if (i) any overpayment is present then
Landlord shall concurrent with Landlords delivery to Tenant of the Statement pay
to Tenant the amount of such over payment or (ii) an excess is present. Tenant
shall within thirty (30) days pay to Landlord an amount as calculated pursuant
to the provisions herein.
(e) Prior to the commencement of each calendar year after Base
Year, or as soon thereafter as practicable, Lessor shall give Lessee written
notice of its estimate of Basic Costs for the ensuing twelve (12) month
period; provided that if such notice is not given twenty (20) days prior to the
commencement of the calendar year, Lessee shall continue to pay on the basis of
the then applicable Lessee's Percentage Share of Basic Costs until the month
after such notice is given.
4.3 Basic Costs. The term "Basic Costs" shall consist of all
-----------
operating expenses of the Project including without limitation those specified
below, which shall be computed on a cash basis and shall consist of all
expenditures by Lessor to maintain in quality, first-class condition all
facilities in operation from the beginning of the Term of this Lease and such
additional facilities in subsequent years as may be determined by Lessor to be
necessary or generally beneficial to the Project. The term Basic Costs as used
herein shall mean all expenses, costs and disbursements of every kind and nature
which Lessor shall pay or become obligated to pay because of or in connection
with the ownership, management and operation of the Project, including without
limitation the following:
(a) Wages, salaries, taxes, insurance and related expenses and
benefits of all on-site and off-site employees directly engaged in the
operation, maintenance or access control of the Project.
(b) All supplies, tools, equipment and materials directly used
in the operation and maintenance of the Project, including any lease payments
therefor.
(c) Cost of all utilities for the Project, including the cost of
water, power, sewer, heating, lighting, air conditioning and ventilating for the
Project. Such cost of utilities shall expressly exclude any utility costs paid
by any Lessees in the Project, or reimbursed to Lessor by any Lessees for
separately metered services.
-------
(d) Cost of all maintenance, repair and replacement expenses,
janitorial, building engineering, landscaping, security, legal, other consulting
fees and service agreements for the Project and the equipment therein, excluding
such costs that exceed the amounts as determined by Article 4.4(i), including
without limitation alarm service, window cleaning and elevator maintenance.
(e) Cost of all insurance relating to the Project including
without limitation the cost of casualty, earthquake, rental abatement and
personal injury and property liability insurance applicable to the Project and
Lessor's personal property used in connection therewith.
(f) All real property taxes and assessments levied against the
Project and the various estates therein and the underlying land, all personal
property taxes levied on personal property of Lessor used in the management
operation, maintenance and repair of the Project, all taxes, assessments and
reassessments
9
of every kind and nature whatsoever levied or assessed in lieu of or in
substitution for existing or additional real or personal property taxes and
assessments on the Project or the sale, conveyance, assignment, ground lease or
other transfer thereof, service payment in lieu of taxes, excises, transit
charges and fees, housing, park and child care assessment, development and other
assessments: reassessments, levies, fees or charges, general and special,
ordinary and extraordinary, unforeseen as well as foreseen, of any kind which
are assessed, levied, charged, confirmed, or imposed by any public authority
upon the Project, its operations or the Rent provided for in this Lease, or
amounts necessary to be expended because of governmental orders, whether general
or special, ordinary or extraordinary, unforeseen as well as foreseen, or any
kind and nature for public improvements, services, benefits, or any other
purposes which are assessed, levied, confirmed, imposed or become a lien upon
the Premises or Project or become payable during the Term (hereinafter
collectively "Impositions").
(i) Installment Election. In the case of any Impositions
--------------------
which may be evidenced by improvement or other bonds or which may be paid in
annual or other periodic installments, Lessor shall elect to cause such bonds to
be issued or cause such assessment to be paid in installments over the maximum
period permitted by law.
(ii) Limitation. Nothing contained in this Lease shall
----------
require Lessee to pay any franchise, estate, inheritance or succession transfer
tax of Lessor, or any income, profits or revenue tax or charge, upon the net
income of Lessor from all sources: provided, however, that if at any time during
the Term under the laws of the United States government or the State of
California, or any political subdivision thereof, a tax or excise on Rent, or
any tax however described, is levied or assessed by any such political body
against Lessor on account of Rent, or a portion thereof, Lessee shall pay one
hundred percent (100%) of any such tax or excise as Additional Rent (defined in
Article 4.6).
(iii) Real Property Tax Reassessment. If the Project is
------------------------------
sold, conveyed or title otherwise transferred, and if, as a result thereof, the
taxing authorities increase the real and personal property taxes, assessments,
levies and fees set forth in Article 4.4(f) and other surcharges levied against
the Project ("Property Taxes") in accordance with California Constitution
Article XIIIA (such events together with the dollar amount of increased Property
Taxes is a "Proposition 13 Readjustment"), Basic Costs shall be adjusted so that
Basic Costs include (I) the Lessor of (a) the amount of Property Taxes payable
after the Proposition 13 Readjustment, inclusive of any increase allowed under
Proposition 13 had there been no such transfer, or (b) the Property Taxes as
adjusted in accordance with the actual increase in the Consumer Price Index
("CPI") for All Urban Consumers. All Items for the Los Angeles Long Beach Area,
as published by the Bureau of Labor Statistics of the U.S. Department of Labor
as follows: the Property Taxes shall be adjusted by multiplying the Property
Taxes as of the first full year of operation of the Property by a factor
computed by adding one (1) to a fraction, the numerator of which shall be the
difference between the CPI for the month nearest preceding the Proposition 13
Readjustment ("Adjustment Index") less the CPI for the month nearest preceding
the Commencement Date ("Base Index") and the denominator of which shall be the
Base Index, (II) all increases in Property Taxes which would occur
notwithstanding such Proposition 13 Readjustment, including without limitation
construction assessments, annual notification of new values and supplemental
assessments, and (III) all increases in Property Taxes which occur because of
changes in the laws, ordinances, orders, rules and regulations or because of
voter action relating to Property Taxes.
(g) Repairs, replacements and general maintenance (excluding
repairs and general maintenance paid by proceeds of insurance or by Lessee or
other third parties, and alterations attributable solely to tenants of the
Building other than Lessee).
(h) All maintenance costs relating to public and service areas
of the Project, including without limitation sidewalks, landscaping, service
areas, mechanical rooms and Project exteriors.
(i) Amortization of the useful life of the cost of installation
of capital improvement terms which are primarily for the purpose of reducing
operating costs or which may be required by governmental authority.
Notwithstanding this clause, any costs incurred by Lessor which may be expended
to bring the Building into compliance with the American Disability Act (ADA) or
hazardous material regulations, shall be fully borne by Lessor and shall be
excluded from Base Costs.
10
(j) Lessor's central accounting costs and audit fees
attributable to the Project.
(k) A management cost recovery equal to three percent (3%) of
Rent collections, provided that Lessor operate the Project through a full-time
manager in a first-class efficient and as cost-effective a manner as possible so
as to minimize operating expenses.
(l) All costs and expenses associated with the operation and
maintenance of the Garage.
Except as specifically provided above, Basic Costs shall not include
replacement of capital Improvement items, specific costs billed to and paid by
specific tenants, expenses attributable to retail or commercial tenants, or
expenses attributable to the management or operation of the visitor parking
areas of the Garage.
Notwithstanding any other provision herein to the contrary, it is
agreed that in the event the office building is not at least ninety-five
percent (95%) occupied during any calendar year of the Lease Term, an adjustment
shall be made in computing the Basic Costs for such year so that the Basic
Costs shall be computed for such year as though the office building had been
ninety-five percent (95%) occupied during such year, Lessor and Lessee agree
that Lessee's Percentage Share of Basic Costs shall be paid during the entire
term of this Lease, beginning with the Commencement Date commencement and
continuing to the day of termination.
At its expense, Lessee shall have the right at any time to review and
copy Lessor's books and records relating to the Basic Costs for the previous
year.
Lessor and Lessee acknowledge that certain of the costs of management,
operation and maintenance of the Project are allocated entirely to the office
tenants of the Project. Certain or such costs are allocated entirely to the
retail operations, and certain of such costs are allocated among the office
tenants of the office building and retail operations. The determination of such
costs and their allocation shall be in accordance with generally accepted
accounting principles applied on a consistent basis.
4.5 Monthly Rental Payments. Rental under Article 4.1(a) and (b)
-----------------------
shall be due and payable in twelve (12) equal installments of one-twelfth (1/12)
each on the first day of each calendar month during the Term and any extensions
or renewals thereof without demand, counterclaim or offset. If the Term
commences on a day other than the first day of a calendar month or ends on a
day other than the last day of a calendar month, then the Rental under Article
4.1 (a) and (b) for the first and last fractional months shall be appropriately
prorated. If the Term commences on a day other than the first day of a calendar
year for purposes of calculating Lessee's Percentage Share of Basic Costs, the
Basic Costs and the Expense Factor shall each be reduced by the proportion, that
the number of days of the Term falling within such calendar year bears to three
hundred sixty-five (365) days. Rental under Article 4.l (c) and any other
amounts due under this Lease shall be collected pursuant to written notices
from Lessor and payment shall be due within thirty (30) days of such notice.
4.6 Additional Rental. Lessee shall also pay as additional rental
-----------------
all such other sums of money (including without limitation parking rental
pursuant to Article 20.20) and rental in the initial amount specified in the
Summary for use of storage space which may be subject to its availability,
separately leased by Lessee. The initial rental shall be $1.00 per square foot
per month without services and shall be subject to adjustment in like manner as
provided in Article 4.2. as shall become due and payable by Lessee to Lessor, ("
Additional Rental"). Such Additional Rental shall not be subject to abatement,
set-off or deduction whatsoever, including without limitation all amounts
Lessee shall be responsible for paying pursuant to the terms of Article 7.3 of
this Lease. Except for amounts billed to Lessee under the terms of the Work
Letter (which shall be payable pursuant to the terms of the Work Letter), Lessee
shall pay to Lessor all amounts of Additional Rental within thirty (30) days
of Lessee's receipt of a xxxx therefor. Lessor shall have the same remedies of
default for the payment of Additional Rental as are available to Lessor in the
payment of Rental. All Rental amounts due under Article 4.1 of this Lease and
all amounts of Additional Rental shall be collectively referred to as "Rent".
11
4.7 No Deduction or Offer. Rent shall be paid to Lessor, without
---------------------
deduction or offset, in lawful money of the United States of America at Lessor's
address as set forth in the Summary or to such other person or at such place as
Lessor may from time to time designate in writing. No payment by Lessee or
receipt by Lessor of a lessor amount of Rent shall be other than on account of
the earliest rental or payment due, nor shall any endorsement or statement on
any check or letter accompanying any such check or payment constitute an accord
and satisfaction and Lessor may accept any such check or payment or pursue any
other remedy under this Lease, at law or in equity.
4.8 Late Payment and Interest. If any installment of Rent is not
-------------------------
paid within five (5) days of the date when due, subject to three (3) days
prior written notice, such past due Rent shall bear interest from five (5) days
after the due date until paid at the lesser of (a) three per cent (3%) per
annum over the prime rate of interest announced from time to time by Xxxxx Fargo
National Association, Los Angeles, California. In the event such late charge; is
imposed by Lessor for two (2) consecutive months for whatever reason Lessor
shall have that option to require that, beginning with the first payment of Rent
due following the imposition of the second consecutive late charge. Lessee shall
increase the amount of the Security Deposit required under Article 4.9 by one
hundred percent (100%) which additional Security Deposit shall be retained by
Lessor. This provision shall not relieve Lessee from payment of Rent at the time
and in the manner herein specified. The payment by Lessee and receipt by Lessor
of the payment charges interest is not a release on waiver by the Lessor of a
default by Lessee.
4.9 Security Deposit. Upon execution of this Lease, Lessee shall
----------------
deposit the amount specified in the Summary as a security deposit ("Security
Deposit"), with Lessor. The Security Deposit shall secure Lessee's obligations
under this Lease to pay Rent and other monetary amounts, to maintain the
Premises and repair damages thereto, to surrender the Premises to Lessor in
clean condition and repair upon termination of this Lease and to discharge
Lessee's other obligations hereunder. If Lessee fails to perform Lessee's
obligations hereunder, Lessor may, but without any obligation to do so, apply
all or any portion of the Security Deposit towards fulfillment of Lessee's
unperformed obligations. If Lessor does so apply any potion of the Security
Deposit, Lessee, upon demand by Lessor, shall immediately pay Lessor a
sufficient amount in cash to restore the Security Deposit to the original
amount. Lessee's failure to forthwith remit to Lessor an amount in cash
sufficient to restore the Security Deposit to the original sum deposited within
five (5) days after receipt of such demand shall constitute an Event of Default
defined in Article 17). The Security Deposit shall be held by Lessor with
liability for interest at the annual rate or five and one-half percent (5.5%)
for the time such deposit is held by Lessor. Lessor is entitled to commingle the
security deposits with its own funds and the Lessor is not to be deemed a
trustee of fiduciary for Lessee in respect of the security deposit. Upon
termination of this Lease, if Lessee has then performed all of Lessee's
obligations hereunder, Lessor shall return the Security Deposit to Lessee. If
Lessor sells or otherwise transfers Lessor's right or interest under this Lease,
Lessor may deliver the Security Deposit to the transferee, whereupon Lessor
shall be released from any further liability to Lessee with respect to the
Security Deposit.
ARTICLE 5
---------
SERVICES AND UTILITIES
----------------------
5.1 Basic Services. Lessor shall provide the following Basic
--------------
Services to the Project on all days during the Lease Term, unless otherwise
stated below.
(a) Subject to all governmental rules, regulations and
guidelines applicable thereto, Lessor shall provide heating and air conditioning
for normal comfort for normal office use in the Premises, from Monday through
Friday, during the period from 7:00 a.m. to 6:00 p.m., and on Saturday during
the period from 8:00 a.m. to 1:00 p.m. except for the date of observation of New
Year's Day, Presidents' Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, Christmas Day (collectively the "Holidays"). Lessor will
provide heating and air conditioning during other time periods as requested by
Lessee at a rate not to exceed Lessor's actual cost for Premises.
12
(b) Lessor shall provide adequate electrical wiring and
facilities and power for normal general office use defined as 5 xxxxx per
rentable square foot as depicted in the Preliminary Plan as approved by Lessor
and Lessee. Such electrical capacity excludes twenty-four (24) hour HVAC systems
as may be required for installation in the Premises by Lessee. Lessor shall
replace, as part of Basic Costs, lamps, starters and ballasts for Building
standard lighting fixtures within the Premises.
(c) Lessor shall provide city water from the regular Building
outlets for drinking, lavatory and plumbing requirements within the Premises.
(d) Lessor shall provide janitorial services five (5) days per
week, except the date of observation of the Holidays, in and about the Premises
and window washing services according to the specifications set forth in Exhibit
H.
(e) Lessor shall provide nonexclusive automatic passenger
elevator service at all times.
(f) Lessor shall provide nonexclusive freight elevator service
subject to scheduling by Lessor.
(g) Subject to Lessee's repair obligations set forth in Article
6 below, Lessor shall operate and maintain, as a Basic Cost Expense, the Project
(including the structural components of the Project and the Project's Systems
and Equipment) in a first-class manner and condition.
(h) Lessor shall maintain as a Basic Cost Expense, twenty-four
(24) hours per day, seven (7) days per week, a reasonable security and
supervision program for the Project, which may include, without limitation,
security personnel, cameras, roving patrols, a keyboard system and/or any other
security measures which Lessor deems appropriate.
5.2 Over Standard Use. Lessee shall not, without Lessor's prior
-----------------
written consent, use heat generating machines, machines other than normal
fractional horsepower office machines, or equipment or lighting other than
building standard lights in the Premises, which may affect the temperature
otherwise maintained by the air conditioning system or increase the water
normally furnished for the Premises by Lessor pursuant to the terms of Section
5.1. If such consent is given, Lessor shall have the right to install
supplementary air conditioning units or other facilities in the Premises,
including supplementary or additional metering devices, and the cost thereof
including the cost of installation, operation and maintenance, increased wear
and tear on existing equipment and other similar charges, shall be paid by
Lessee to Lessor upon billing by Lessor. If Lessee uses water or heat or air
conditioning in excess of that supplied by Lessor pursuant to Section 5.1 such
special HVAC units to provide twenty-four (24) hour service to specified areas
within the Premises. Lessee shall pay to Lessor, upon billing, the actual cost
of such excess consumption, the cost of the installation, operation, and
maintenance of equipment which is installed in order to supply such excess
consumption, and the cost of the increased wear and tear on existing equipment
caused by such excess consumption and Lessor may install devices to separately
meter any increased use and in such event Lessee shall pay the increased cost
directly to Lessor, on demand, including the cost of such additional metering
devices.
5.3 Interruption of Use. Lessee agrees that Lessor shall not be
-------------------
liable for damages, by abatement of Rent or otherwise, for failure to furnish or
delay in furnishing any service (including telephone and telecommunication
services), or for any diminution in the quality or quantity thereof, when such
failure or delay or diminution is occasioned, in whole or in part, by repairs,
replacements, or improvements, by any strike, lockout or other labor trouble, by
inability to secure electricity, gas, water or other fuel at the Project after
reasonable effort to do so by any accident or casualty whatsoever by act or
default of Lessee or other panics or by any other cause beyond Lessor's
reasonable control and such failures or delays or diminution shall never be
deemed to constitute an eviction or disturbance of Lessee's use and possession
of the Premises or relieve Lessee from paying Rent or performing any of its
obligations under this Lease. Furthermore, Lessor shall not be liable under any
circumstances for a loss of, or injury to, property or for injury to, or
interference with, Lessee's business, including, without
13
limitation, loss of profits, however occurring, through or in connection with or
incidental to a failure to furnish any of the services or utilities unless
caused by Lessor's negligence or intentional misconduct. If Lessee's use of the
Premises is prevented, either due to an interruption of building services
or otherwise rendering the Premises untenantable (e.g. fire or casualty), for a
consecutive period of three (3) days or more, resulting in the inability of
Lessee to conduct its normal business activities, Lessee's Base Rent. Additional
Rent and parking charges shall be abated for the period of time such
interruption of services occurs.
5.4 Additional Services. Lessor shall also have the exclusive
-------------------
right, but not the obligation, to provide any additional services which may be
requested by Lessee, including, without limitation, locksmithing, lamp
replacement for non-Building standard lamps or fixtures, additional janitorial
service and additional repairs and maintenance, provided that Lessee shall pay
to Lessor upon billing, the actual cost to Lessor of providing such
additional services, plus a reasonable administration fee for any service which
Lessee is required to pay from time to time hereunder, shall be deemed
Additional Rent hereunder and shall be billed on a monthly basis.
5.5 Graphics. Lessor shall provide identification of Lessee's name
--------
and suite numerals at the main entrance door to the Premises. All graphics of
Lessee visible in or from public corridors or the exterior of the Premises, or
Project shall be subject to Lessor's reasonable approval. Special graphics,
logos and other Lessee graphics may be installed within the Premises at
Lessee's expense.
5.6 Signage. Lessee shall be granted the right to non-exclusive
-------
space on the Building's Colorado Boulevard monument sign, and or appropriate
walls and doors within the Premises, identifying Lessee's presence in the
Building. Such signage will be installed at Lessor's expense.
5.7 Keys and Locks. Lessor shall furnish Lessee two (2) keys for
---------------
each corridor door entering the Premises. Additional keys shall be furnished at
a charge by Lessor on an order signed by Lessee. All such keys shall remain the
property of Lessor. No additional locks shall be allowed on any door of the
Premises without Lessor's prior written permission, and Lessee shall not
make or permit to be made any duplicate keys, except those furnished by Lessor.
Upon termination of this Lease, Lessee may surrender to Lessor all keys of the
Premises, and give to Lessor the combination of all locks for safes, safe
cabinets and vault doors, if any, in the Premises.
ARTICLE 6
-------
REPAIRS
-------
6.l Lessee shall, at Lessee's own expense, keep the Premises (for
the purpose of this Article 6.1 Premises shall mean from area below the
suspended ceiling and in front of the walls, excluding special Tenant
installation e.g. separate HVAC units or computer equipment), including all
tenant improvements located within the Premises fixtures and furnishings
therein, in good order, repair and condition at all times during the Lease Term.
In addition, Lessee shall, at Lessee's own expense but under the supervision and
subject to the prior approval of Lessor, and within any reasonable period of
time specified by Lessor, promptly and adequately repair all damage to the
Premises and replace or repair all damaged or broken fixtures and appurtenances;
provided however, that, at Lessor's option, or if Lessee fails to make such
repairs. Lessor may, but need not, make such repairs and replacements, and
Lessee shall pay Lessor the cost thereof, including an additional three percent
(3%) of the cost thereof, as reimbursement to Lessor for all actual overhead,
general conditions, fees and other actual costs or expenses arising from
Lessor's management and coordination of repairs and replacements. Upon being
billed for same, Lessor may, but shall not be required to, enter the Premises at
all reasonable times to make such repairs, alternations, improvements and
additions to the Premises or to the Project or to any equipment located in the
Project as Lessor shall desire or deem necessary or as Lessor may be required to
do by governmental or quasi-governmental authority or court order or decree.
Lessee hereby waives and releases its right to make repairs at Lessor's expense
under sections 1941 and 1942 of the California Civil Code or under any similar
---------------------
law, statute, or ordinance now or hereafter in effect.
14
ARTICLE 7
---------
ADDITIONS AND ALTERNATIONS
--------------------------
7.1 Lessor's Consent to Alternations. Lessee may not make any
--------------------------------
improvements, alterations, additions or changes to the Premises (collectively,
the "Alterations") without first procuring the prior written consent of Lessor
to such Alterations, which consent shall be requested by Lessee not less than
thirty (30) days prior to the commencement thereof, and which consent shall not
be unreasonably withheld, conditioned or delayed, by Lessor. The construction of
the initial improvements to the Premises shall be governed by the terms of the
Lessee Work Letter Exhibit C to this Lease.
7.2 Manner of Construction. Lessor may impose as a condition of its
----------------------
consent to all Alterations or repairs of the Premises or about the Premises,
such requirements as Lessor in its reasonable discretion may deem desirable,
including, but not limited to, the requirement that upon Lessor's request,
Lessee shall, at Lessee's expense, remove such Alterations upon the expiration
or any early termination of the Lease Term, and/or the requirement that Lessee
utilize for such purposes only contractors, materials, mechanics and management
selected by Lessee and approved by Lessor (which approval shall not be
unreasonably withheld, conditioned or delayed): provided, however, that Lessee
shall utilize subcontractors of Lessor's selection to perform all work that may
affect the Systems and Equipment, structural aspects of the Project, the Base,
Xxxxx and Core, or exterior appearance of the Project or common areas, provided
that Lessor shall cause such subcontractors selected by Lessor to charge Lessee
for such work in an amount equal to the cost that comparable first-class
reputable and reliable subcontractors would have charged Lessee if selected
pursuant to competitive bidding procedures. Lessee shall construct such
Alterations and perform such repairs in conformance with any and all applicable
rules and regulations of any federal state, country or municipal code or
ordinance and pursuant to a valid building permit issued by the City of Pasadena
in conformance with Lessor's construction rules and regulations Lessor's
approval of the plans, specifications and working drawings for Lessee's
Alterations shall create no responsibility or liability on the part of Lessor
for their completeness, design sufficiency, or compliance with all laws, rules
and regulations of governmental agencies or authorities. All work with respect
to any Alterations must be done in a good and workmanlike manner and diligently
prosecuted to completion to the end that the Premises shall at all times be a
complete unit except during the period of work. In performing the work of any
such Alterations, Lessee shall have the work performed in such manner is not to
obstruct access to the Project for any other Lessee of the Project, and is not
to obstruct the business of Lessor or other Lesses in the Project, or interfere
with the labor force working in the Project. In the event that Lessee makes any
Alterations, Lessee agrees to carry "Builder's All Risk" insurance in an amount
reasonably approved by Lessor covering the construction of such Alterations, and
such other insurance is Lessor may require, it being understood and agreed that
all of such Alteration shall be insured by Lessee pursuant to Article 9
immediately upon completion thereof. In addition, Lessor may, in its reasonable
discretion, require Lessee to obtain a lien and completion bond or some
alternate form of security satisfactory to Lessor in an amount sufficient to
ensure the lien-free completion of such Alterations and naming Lessor as a co-
obligee. Upon completion of any Alterations, Lessee agrees to cause a Notice of
Completion to be recorded in the Office of the Recorder of the County of Los
Angeles in accordance with section 3093 of the Civil Code of the State of
----------
California or any successor statute and Lessee shall deliver to the Building
management office a reproducible copy of the "as built" drawing of the
Alterations.
7.3 Payment for Improvements. The cost of all Alterations
------------------------
shall be paid Lessee. In the event Lessee orders any Alteration or repair
directly from Lessor, or from the contractor selected by Lessor, the charges for
such work shall be deemed Additional Rent under this Lease, payable upon billing
therefor, either periodically during construction or upon the substantial
completion of such work, at Lessor's option. Upon completion of such work Lessee
shall deliver to Lessor, if payment is made directly to contractors, evidence of
payment, contractors affidavit; and full and final waivers of all liens for
labor, services or materials. If Lessee orders any work directly from Lessor,
Lessee shall pay to Lessor an amount sufficient to reimburse Lessor for all
?????? overhead, general conditions fees and other actual costs and expenses
arising from Lessor's involvement with such work and for all amounts paid to
subcontractors by Lessor. If Lessee does not order any work directly from
Lessor, Lessee shall reimburse Lessor for Lessor's reasonable out-of-pocket
costs and expenses actually incurred in connection with Lessor's review of and
or involvement with such work.
15
7.4 Lessor's Property and Fixtures. All Alternations, improvements,
-------------------------------
fixtures and/or equipment which may be installed or placed in or about the
Premises, and all signs, other than those described in Article 5.6 installed in,
on or about the Premises from time to time, shall be at the sole cost of Lessee
and shall be and become the property of Lessor, except that Lessee may remove
any Alterations, improvements, fixtures and/or equipment which Lessee can
substantiate to Lessor have not been paid for with any Lessee improvement
allowance funds provided to Lessee by Lessor, provided Lessee repairs any damage
to the Premises and Project caused by such removal. Furthermore, if Lessor, as a
condition to Lessor's consent to any Alterations requires that Lessee remove any
Alternations upon the expiration or early termination of the Lease Term. Lessor
may by written notice to Lessee prior to the end of the Lease Term, or
given upon any earlier termination of this Lease require Lessee at Lessee's
expense to remove such, Alterations and to repair any damage to the Premises
and Project caused by such removal. If Lessee fails to complete such removal
and/or to repair any damage caused by the removal of any Alterations. Lessor may
do so and may charge the cost thereof to Lessee. Lessee hereby, indemnifies and
holds Lessor harmless from any liability, cost, obligation, expense or claim of
lien in any mannerr relating to the installation, placement, removal or
financing of any such Alterations, improvements, fixtures and/or equipment in,
on or about the Premises.
ARTICLE 8
-------
COVENANT AGAINST LIENS
----------------------
8.l Lessee has no authority or power to cause or permit any lien or
encumbrance of any kind whatsoever, whether created by act of Lessee, operation
of law or otherwise, to attach to or be placed upon the Real Property, Project
or Premises, and any and all liens and encumbrances created by Lessee shall
attach to Lessee's interest only. Lessor shall have the right at all times to
post and keep posted on the Premises any notice which it deems necessary for
protection from such liens. Lessee covenants and agrees not to suffer or permit
any lien of mechanics or materialmen or others to be placed against the Real
Property to the Premises with respect to work or services claimed to have been
performed for or materials claimed to have been furnished to Lessee or the
Premises, and in case of any such lien attaching or notice of any lien. Lessee
covenants and agrees to cause in to be immediately released and removed of
record. Notwithstanding anything to the contrary set forth in this Lease, in
the event such lien is not released and removed on or before the date notice of
such lien is delivered by Lessor to Lessee. Lessor, at its sole option, may
immediately take all action necessary to release and remove such lien, without
any duty to investigate the validity thereof, and all sums, costs and expenses,
including reasonable attorneys' fee and costs, incurred by Lessor in connection
with such lien shall be deemed. Additional Rent under this Lease and shall
immediately be due and payable by Lessee.
ARTICLE 9
-------
INSURANCE
---------
9.l Lessor Coverage. During the Term. Lessor shall procure and
---------------
maintain in full force and effect with respect to the Project a policy or
policies of commercial and liability insurance including sprinkler, vandalism
and malicious mischief coverage, including earthquake and flood coverage at
Lessee's option, and any other endorsements required by the holder of any fee or
leasehold mortgage) in an amount that is customarily carrieds by first-class
office buildings in Los Angeles. If because of the nature of Lessee's operations
the annual premiums charged Lessor for such insurance exceed the standard
premium rates or result in increased exposure then Lessee, within thirty (30)
days of receipt of appropriate premium invoices, shall reimburse Lessor for such
increased amount.
9.2 Lessee Coverage.
---------------
(a) Commercial Insurance. During the Term and at its own
--------------------
cost and expense, Lessee shall maintain in full force and effect a policy or
policies of special cause of loss form insurance (including
16
sprinkler, vandalism and malicious mischief coverage, including earthquake and
flood coverage at Lessee's option and any other endorsements required by the
holder of any fee or leasehold mortgage) in an amount adequate to cover damage
to the Premises, including without limitation Lessee's Improvements as defined
in Exhibit D. Merchandise fixtures, trade fixtures, furniture, furnishings
equipment goods, inventory and other personal property located on the Premises
or in the Project insuring the full replacement value of such items.
(b) General Liability. During the Term and at its own cost and
-----------------
expense, Lessee shall maintain in full force and effect a policy, or policies of
comprehensive commercial general liability insurance insuring Lessee's
activities with respect to the Premises. Building and/or Project against loss,
damage or liability for personal injury or death of any person or loss or damage
to property occurring in, upon or about the Premises, Building and or Project
with a combined single limit of One Million Dollars ($1,000,000): such
comprehensive commercial general liability insurance shall include broad form
contractual liability insurance coverage which shall insure Lessee's performance
of the indemnity provisions and elsewhere in this Lease.
(c) Workers' Compensation. During the Term and at its own cost
---------------------
and expense. Lessee shall maintain in full force and effect the statutory
amount of workers' compensation insurance required by the State of California
for the benefit of Lessee's employees, and employer's liability insurance with
no less than $1,000,000 per employee per occurence.
Lessee agrees that if Lessee does not procure and maintain such
insurance continuously, Lessor may (but shall not be required to) procure such
insurance on Lessee's behalf and Lessee shall pay to Lessor the cost thereof,
as Additional Rental within thirty (30) days of Lessee's receipt of a xxxx
therefor.
9.3 General Insurance Requirements
------------------------------
(a) All insurance required under this Article 9 shall be issued
by such good and reputable insurance companies qualified to do and doing
business in California and having a rating of not less than "A" or a class
rating of not less than "13" and a financial rating of not less than "X" as rate
in the most current copy to Best's Insurance report in the form customary to the
locality. All such Lessee insurance shall include (i) an endorsement expressly
providing that such policies shall not be cancelable or subject to reduction or
coverage or otherwise by subject to modification except after thirty (30) days
prior written notice to the parties named as insureds in this Article 9, (ii) an
endorsement providing that Lessor, its successors, assigns, and nominees holding
any interest in the Premises, including without limitation any ground lessor and
the holder to any fee or leasehold mortgage, shall be named as additional
insureds under such policy of insurance maintained by Lessee pursuant to this
Lease, (iii) an endorsement providing that such insurance as is afforded under
Lessee's policy in primary as respects lessor and that any other insurance
maintained by Lessor is excess and non-contributing with other insurance
required under this Article 9, (iv) an endorsement deleting any employee
exclusion on personal injury covered, (v) an endorsement including employees as
additional insureds, (vi) an endorsement deleting any liquor liability exclusion
and (vii) an endorsement providing for coverage of employer's automobile
ownership liability. All such insurance shall provide for severability of
interests: shall provide that an act or omission of one of the named insureds;
and shall not reduce or avoid coverage to the other named insured: and shall
afford coverage for all claims based in acts, omissions injury and damage which
claims occurred or arose (or the onset of which occurred or arose) in full or in
part during the policy period. Expiration of Lessee's policy shall not limit
recovery thereunder: "claims made" insurance policies are not acceptable to
satisfy Lessee's insurance requirements under this Article 9. Lessee shall
furnish to Lessor, upon the Commencement Date and thereafter within thirty (30)
days prior to the expiration of each such policy, a Certificate of Insurance and
endorsement(s) affording evidence of the above insurance requirements issued by
the insurance carrier of each policy of insurance carried by Lessee pursuant
hereto.
(b) Lessee's Use. Lessee will not keep, use, sell or
------------
offer for sale in, or upon the Premises any article which may be prohibited by
any insurance policy periodically in force covering the Project. If Lessee is
occupancy or business in or on the Premises, whether or not Lessor has
consented to the same, results in any increase in premiums for the insurance
periodically carried by Lessor with respect to the Project, Lessee shall pay any
such increase in premiums as Additional Rental within ten (10) days after being
billed thereof by Lessor.
17
In determining whether increased premiums are a result of Lessee's use of the
Premises, a schedule issued by the organization computing the insurance rate on
the Project or the Lessee Improvements showing the various components or such
rate, shall be conclusive evidence of the several items and changes which make
up such rate.
(c) Waiver of Subrogation. Any policy or policies of special
---------------------
cause of loss form and comprehensive commercial general liability insurance,
which either party obtains in connection with the Premises, or Lessee's
personal property therein, shall include a clause or endorsement denying the
insurer any rights of subrogation against the other party to the extent rights
have been waived by the insured prior to the occurrence of injury or loss.
Lessor and Lessee hereby waive any rights of recovery against the other for
injury or loss due to hazards covered by insurance containing such a waiver of
subrogation clause or endorsements to the extent of the injury or loss covered
thereby and agree to obtain such a waiver from their respective insurance
carriers and deliver a copy thereof to the other party; each party shall provide
written notice to the other party if such waiver is not obtained and shall
indemnify, defend and hold the other harmless from all liabilities, penalties,
losses, costs, expenses, demands, causes of action, claims, judgments or damages
arising from the indemnifying party's failure to obtain such a waiver from its
insurance company.
ARTICLE 10
----------
DAMAGE AND DESTRUCTION
----------------------
10.1 Repair of Damage to Premises by Lessor. Lessee shall promptly
--------------------------------------
notify Lessor of any damage to the Premises resulting from fire or any other
casualty or condition existing in the Premises as a result of a fire or other
casualty that would give rise to the terms of this Article 10. If the Premises
or any common areas of the Building serving or providing access to the Premises
shall be damaged by fire or other casualty or be subject to a condition existing
as a result of a fire or other casualty. Lessor shall promptly and diligently,
subject to reasonable delays for insurance adjustment or other matters beyond
Lessor's reasonable control, and subject to all other terms of this Article 10,
restore the base, shell, and core of the Premises and such common areas to
substantially the same condition as existed prior to the casualty, expect for
modifications required by zoning and building codes and other laws or by the
holder of a mortgage on the Building or any other modifications to the common
areas deemed desirable by Lessor, provided access to the Premises and any common
restrooms serving the Premises shall not be materially impaired. Notwithstanding
any other provision of this Lease, upon the occurrence of any damage to the
Premises, Lessee may assign to Lessor (or to any party designated by Lessor) all
insurance proceeds payable to Lessee under Lessee's insurance required under
this Lease, and along with the proceeds received by Lessor from the Tenant
Improvement Insurance. Lessor shall repair any injury or damage to the Tenant
Improvements installed in the Premises and shall return such Lessee Improvements
to their original condition. In connection with such repairs and replacements.
Lessee shall, prior to the commencement of construction, submit to Lessor for
Lessor's review and approval, all plans, specifications and working drafts
relating thereto, and Lessor shall reasonably approve the contractors selected
by Lessee to perform such improvement work. Such submittal of plans and
construction of improvements shall be performed in substantial compliance with
the terms of the Work Letter as though such construction of improvements were
the initial construction of the Tenant Improvements. Neither Lessor nor Lessee
shall be liable for any inconvenience or annoyance to Lessee or its visitors, or
injury to Lessee's business resulting in any way from such damage or the repair
thereof: provided however, that if such fire or other casualty shall have
damaged the Premises or common areas necessary to Lessee's occupancy. Lessor
shall allow Lessee a proportionate abatement of Rent, during the time and to the
extent the Premises are unfit for occupancy for the normal conduct of Lessee's
business, and not occupied by Lessee as a result thereof, provided, further, if
the Premises is damaged such that the remaining portion thereof is not
sufficient to allow Lessee to conduct its operations therefrom. Lessor shall
allow Lessee a total abatement of Rent during the time and to the extent the
Premises are unfit for occupancy for the normal conduct of Lessee's business,
and not occupied by Lessee as a result of the subject damage.
10.2 Lessor's Option to Repair. Notwithstanding the terms of
-------------------------
Section 10.1 of this Lease. Lessor may elect not to rebuild and or restore the
Premises and or Project and instead terminate this Lease by notifying Lessee
in writing of such termination within sixty (60) days after the date of
damage, such notice to include a termination date giving Lessee ninety (90)
days to vacate the Premises, but Lessor may so elect only if the Project shall
be damaged by fire or other casualty or cause whether or not the Premises are
affected, and one or
18
more of the following conditions is present: (a) repairs cannot reasonably be
completed withinin one hundred twenty (l20) days of the date of damage (when
such repairs are made without the payment of overtime or other premiums), (b)
the holder of any mortgage on the Building or ground or underlying lessor with
respect to the Real Property and or the Project shall require that the insurance
proceeds or any portion thereof be used to retire the mortgage debt or shall
terminate the ground or underlying lease, as the case may be: or (c) the damage
is nor fully covered, except for deductible amounts, by Lessor's insurance
policies.
l0.3 Damage Near End of Term. In addition, in the event that
-----------------------
the Premises or the Project is destroyed or damaged to any substantial extent
during the last twenty-four (24) months of the Lease Term, Lessor shall have the
option to terminate this Lease by giving written notice to Lessee of the
exercise of such option within thirty (30) days after such damage or
destruction, in which event this Lease shall cease and terminate as of the date
of such notice Upon any such termination of this Lease pursuant to this Section
10.2. Lessee shall pay the Base Rent and Additional Rent, properly apportioned
up to such date of termination, and both parties hereto shall thereafter be
freed and discharged of all further obligations hereunder, except as provided
for in provisions of this Lease which by their terms survive the expiration or
earlier termination of the Lease Term.
10.4 Waiver of Statutory Provisions. The provisions of this
------------------------------
Lease, including this Article l0 constitute an express agreement between Lessor
and Lessee with respect to any and all damage to, or destruction of, all or any
part of the Premises, the Project or any other portion of the Real Property, and
any statute or regulation of the State of California, including, without
limitation, sections 1932(2) and 1933(4) of the California Civil Code, with
---------------------
respect to any rights or obligations concerning damage or destruction in the
absence of an express agreement with respect to any rights or obligations
concerning damage or destruction in the absence of an express agreement between
the parties, and any other statute or regulation, now or hereafter in effect,
shall have no application to this Lease or any damage or destruction to all or
any part of the Premises, the Project or any other portion of the Real Property.
ARTICLE ll
----------
NON-WAIVER
----------
11.1 No waiver of any provision of this Lease shall be implied
by any failure of Lessor to enforce any remedy on account of the violation of
such provision, even if such violation shall continue or be repeated
subsequently, any waiver by Lessor of any provision of this Lease may only be
in writing, and no express waiver shall affect any provision other than the one
specified in such waiver and that one only for the time and in the manner
specifically stated. No receipt of monies by Lessor from Lessee after the
termination of this Lease shall in any way alter the length of the Lease Term
or of Lessee's right of possession hereunder or after the giving of any
notice shall reinstate, continue or extend the Lease Term or affect any notice
given Lessee prior to the receipt of such monies. It being agreed that after the
service of notice or the commencement of a suit or after final judgment for
possession of the Premises. Lessor may receive and collect any Rental due, and
the payment of said Rental shall not waive or affect said notice, suit or
judgment.
ARTICLE 12
----------
EMINENT DOMAIN
--------------
l2.1 Condemnation and Loss or Damage. If the whole or
-------------------------------
any part of the Premises or Project shall be taken by power of eminent domain
or condemned by any competent authority for any public or quasi-public use or
purpose, or if any adjacent property or street shall be so taken or condemned,
or reconfigured or vacated by such authority in such manner as to require the
use, reconstruction or remodeling of any part of the Premises or Project, or if
Lessor shall grant a deed or other instrument in lieu of such taking by eminent
domain or condemnation. Lessor shall have the option to terminate this Lease
upon ninety (90) days notice, provided such notice is given no later than one
hundred eighty (180) days after the date of such taking, condemnation,
reconfiguration, vacation, deed or other instrument. If more than twenty-five
percent (25%) of the rentable square
19
feet of the Premises is taken, or if access to the Premises is substantially
impaired. Lessee shall have the option to terminate this Lease upon ninety (90)
days' notice, provided such notice is given no later than one hundred eighty
(180) days after the date of such taking Lessor shall be entitled to receive the
entire award or payment in connection therewith, except that Lessee shall have
the right to file any separate claim available to Lessee for any taking of
Lessee's personal property and fixtures belonging to Lessee and removable by
Lessee upon expiration of the Lease Term pursuant to the terms of this Lease,
and for moving expenses, so long as such claim does not diminish the award
available to Lessor, its ground lessor with respect to the Real Property or its
mortgagee, and such claim is payable seperately to Lessee. All Rental shall be
apportioned as of the date of such termination, or the date of such taking,
whichever shall first occur.
12.2 Temporary Taking. Notwithstanding anything to the
----------------
contrary contained in this Article 12 in the event of a temporary taking of all
or any portion of the Premises for a period of one hundred and eighty (180)
days or less, then this Lease shall not terminate but the Base Rent and the
Additional Rent shall be abated for the period of such taking in proportion to
the ratio that the amount of rentable square feet of the Premises taken bears to
the total rentable square feet of the Premises. Lessor shall be entitled to
receive the entire award made in connection with any such temporary taking.
12.3 Total Destruction. A total destruction of the Project
-----------------
shall automatically terminate the Lease.
ARTICLE 13
----------
ASSIGNMENT AND SUBLETTING
-------------------------
l3.1 Transfers. Lessee shall not, without the prior written
---------
consent of Lessor, assign, mortgage, pledge, hypothecate, encumber, or permit
any lien to attach to, or otherwise transfer, this Lease or any interest
hereunder or permit any assignment or other such foregoing transfer of this
Lease or any interest hereunder by operation of law, sublet the Premises or any
part thereof, or permit the use of the Premises by any persons other than Lessee
and its employees (all of the foregoing are hereinafter sometimes referred to
collectively as "Transfers" and any person to whom any Transfer is made or
sought to be made is hereinafter sometimes referred to as a "Transferee"). If
Lessee shall desire Lessor's consent to any Transfer, Lessee shall notify Lessor
in writing, which notice (the "Transfer Notice") shall include:
(a) the proposed effective date of the Transfer, which
shall not be less then fifteen (15) days nor more than one hundred eighty (180)
days after the date of delivery of the Transfer Notice:
(b) a description of the portion of the Premises to be
transferred (the "Subject Space");
(c) all of the terms of the proposed Transfer and the
consideration therefor, including a calculation of the "Transfer Premium," as
that term is defined in Section 13.3 below, in connection with such Transfer,
the name and address of the proposed Transferee, and a copy of all existing
and/or proposed documentation pertaining to the proposed Transfer, including all
existing operative documents to be executed to evidence such Transfer or the
agreements incidental or related to such Transfer; and,
(d) current financial statements of the proposed
Transferee certified by an officer, partner or owner thereof, and any other
information required by Lessor, which will enable Lessor to determine the
financial responsibility, character, and reputation of the proposed Transferee,
nature of such Transferee's business and proposed use of the Subject Space.
Lessee shall, thirty (30) days after written request by
Lessor, reimburse Lessor for all reasonable costs and expenses (including
reasonable attorneys' fees) incurred by Lessor in connection with its review of
a proposed Transfer.
13.2 Lessor's Consent. Lessor shall not unreasonably
----------------
withhold, condition or delay its
20
consent to any proposed Transfer of the Subject Space to the Transferee on the
terms specified in the Transfer Notice. The parties hereby agree that it shall
be reasonable under this Lease and under any applicable law for Lessor to
withhold consent to any proposed Transfer where one or more of the following
apply:
(a) The Transferee is of a character or reputation or
engaged in a business which is not consistent with the quality of the
Building, or would be a significantly less prestigious occupant of the Project
than Lessee:
(b) The Transferee intends to use the Subject Space for
purposes which are not permitted hereunder.
(c) The Transferee is either a governmental agency or
instrumentality thereof:
(d) The Transfer will result in more than a reasonable
and safe number of occupants per floor:
(e) The Transferee is not a party of reasonable
financial worth and/or financial stability in light of the responsibilities
involved under the Lease on the date consent is requested:
(f) The proposed Transfer would cause Lessor to be in
violation of another lease or agreement to which Lessor is a party, or would
give an occupant of the Project a right to cancel its lease:
(g) The terms of the proposed Transfer will allow the
Transferee (subject to Transferee qualifying as an affiliate entity, acquiring
entity, related entity, merging entity, or company that has a financial
interest in Lessee) to exercise a right of renewal, right of expansion, right
of first offer, or other similar right held by Lessee (or will allow the
Transferee to occupy space leased by Lessee pursuant to any such right):
13.3 Effect of Transfer. If Lessor consents to a Transfer,
------------------
(i) the terms and conditions of this Lease shall in no way be deemed to have
been waived or modified, (ii) such consent shall not be deemed consent to any
further Transfer by either Lessee or a Transferee, (iii) Lessee shall deliver to
Lessor, promptly after execution, an original executed copy of all documentation
pertaining to the Transfer in form reasonably acceptable to Lessor, (iv) Lessee
shall furnish upon Lessor's request a complete statement, certified by an
independent certified public accountant, or Lessee's chief financial officer,
setting forth in detail the computation of any premium Lessee has derived and
shall derive from such Transfer, and (v) no Transfer relating to this Lease or
agreement entered into with respect thereto, whether with or without Lessor's
consent, shall relieve Lessee or any guarantor of the Lease from liability under
this Lease. Lessor or its authorized representatives shall have the right at all
reasonable times to audit the books, records and papers of Lessee relating to
any Transfer, and shall have the right to make copies thereof if the premium
respecting any Transfer shall be found understated. Lessee shall, within thirty
(30) days after demand, pay the deficiency and Lessor's costs of such audit, and
if understated by more than ten percent (10%), Lessor shall have the right to
cancel this Lease upon thirty (30) days' notice to Lessee.
13.4 Transfer Profits. In the event a sublease of Lessee's
----------------
space results in net rental greater than the Base Rental plus Additional Rental
less the unamortized cost of the Lessee Improvements or the costs of any
Sublease improvements (costs such as Tenant Improvements or Lease Commissions),
such net profits shall be shared fifty percent (50%) by Lessor and fifty percent
(50%) by Lessee.
l3.5 Additional Transfers. For purposes of this Lease, the term
--------------------
"Transfer" shall also include: (i) if Lessee is a partnership, the withdrawal or
change, voluntary, involuntary or by operation of law, of fifty percent (50%) or
more of the partners, or transfer of fifty percent (50%) or more of partnership
interests, within a twelve (l2) month period, or the dissolution of the
partnership without immediate reconstitution thereof.
21
ARTICLE 14
-------
SURRENDER OF PREMISES OWNERSHIP
-------------------------------
AND REMOVAL OF TRADE FIXTURES
-----------------------------
14.1 Surrender of Premises. No act or thing done by Lessor or
---------------------
any agent or employee of Lessor during the Lease Term shall be deemed to
constitute an acceptance by Lessor of a surrender of the Premises unless such
intent is specifically acknowledged in a writing signed by Lessor. The delivery
of keys to the Premises to Lessor or any agent or employee of Lessor shall
not constitute a surrender of the Premises or effect a termination of this
Lease, whether or not the keys are thereafter retained by Lessor, and
notwithstanding such delivery. Lessee shall be entitled to the return of such
keys at any reasonable time upon request until this Lease shall have been
property terminated. The voluntary or other surrender of this Lease by Lessee,
whether accepted by Lessor or not, or a mutual Termination hereof, shall not
work a merger, and at the option of Lessor shall operate as an assignment to
Lessor of all subtenancies or subtenancies affecting the Premises.
14.2 Removal of Tenant Property by Lessee. Upon the
------------------------------------
expiration of the Lease Term, or upon any earlier termination of this Lease,
Lessee shall, quit and surrender possession of the Premises to Lessor in as good
order and condition as when Lessee took possession and as thereafter improved by
Lessor, reasonable wear and tear and repairs which are specifically made the
responsibility of Lessor hereunder excepted. Upon such expiration or
termination, Lessee shall, without expense to Lessor, remove or cause to be
removed from the Premises all debris and rubbish, and such items of furniture,
equipment free-standing cabinet worked other articles of personal property owned
by Lessee or installed or placed by Lessee at its expense in the Premises, and
such similiar articles of any other persons claiming under Lessee, as Lessor
may, in its sole discretion, require to be removed, and Lessee shall repair at
its own expense all damage to the Premises and Project resulting from such
removal.
ARTTCLE 15
----------
HOLDING OVER
------------
If Lessee holds over after the expiration of the Lease Term hereof,
with or without the express or implied consent of Lessor, such tenancy shall be
from month-to-month only, and shall not constitute a renewal hereof or an
extension for any further term, and in such case Base Rent shall be payable at a
monthly rate equal to one hundred thirty percent (130%), of the Base Rent
applicable during the last rental period of the Lease Term under this Lease.
Such month-to-month tenancy shall be subject to every other term, covenant
and agreement contained herein. Nothing contained in this Lease shall be
construed as consent by Lessor to any holding over by Lessee, and Lessor
expressly reserves the right to require Lessee to surrender possession of the
Premises to Lessor as provided in this Lease upon the expiration or other
termination of this Lease. The provisions of this Lease shall not be deemed to
limit or constitute a waiver of any other rights or remedies of Lessor provided
herein or at law. If Lessee fails to surrender the Premises upon thirty (30)
days following the termination or expiration of this Lease, in addition to any
other liabilities to Lessor accruing therefrom, Lessee shall protect, defend,
indemnify and hold Lessor harmless from all loss, costs (including reasonable
attorneys' fees) and liability resulting from such failure, including, without
limiting the generality of the foregoing, any claims made by any succeeding
Lessee founded upon such failure to surrender, and any lost profits to Lessor
resulting therefrom.
ARTTCLE 16
----------
ESTOPPEL ATTORNMENT AND SUBORDINATION
-------------------------------------
16.1 Estoppel Certificate. Within ten (10) days after request
therefor by either Lessee or Lessor, or if on any sale, assignment or
hypothecation by Lessor of Lessor's interest in the Building or the Project, or
any part thereof, an Estoppel Certificate shall be required: Lessee or Lessor,
as the case may be, shall deliver, in
22
recordable form, a certificate to any proposed mortgagee or purchaser, and to
Lessor, certifying (if such be the case) that this Lease is in full force and
effect; the date of Lessee's most recent payment of Rent, and that Lessee has no
defenses or offsets outstanding, or stating those claimed by Lessee and any
other information reasonably requested.
(a) this Lease is in full force and effect without
modification, except as may be represented by Lessor;
(b) there are no uncured defaults in Lessor's
performance and Lessee has no right of offset couterclaim or deduction against
Rent hereunder; and,
(c) no more than one month's Base Rental has been paid
in advance.
16.2 Attornment. In the event any proceedings are brought
----------
for the foreclosure of, or in the event of exercise of the power of sale
under any mortgage or deed of trust made by lessor, its successors or assigns,
encumbering the Premises, or any part thereof, or in the event of termination
of a ground lease, if any, and if so requested. Lessee shall attorn to the
purchaser upon such foreclosure or sale or upon any grant of a deed in lieu of
foreclosure and recognize such purchaser as Lessor under this Lease.
16.3 Lease Superior. The rights of Lessee hereunder are and
--------------
shall superior to the lien of such mortgage securing the Building, or the lien
resulting from any other method of financing or refinancing, now or hereafter in
force against the Project, and to all advances made or hereafter to be made upon
the security. Provided that Lessee is not in default under any of the terms,
covenants and conditions of this Lease, neither this Lease nor any of the rights
of Lessee hereunder shall be terminated or subject to termination by any
trustee's sale, any action to enforce the security or by any proceeding or
action in foreclosure. If requested, Lessor and Lessee agrees to execute
documentation may be required to further effect the provisions of this Articie
16.
ARTICLE l7
----------
DEFAULTS REMEDIES
-----------------
17.1 Events of Default. The occurrence of any or the
-----------------
following events shall constitute an "Event of Default" on the part of Lessee
without notice from Lessor unless otherwise provided:
(a) Vacation or Abandonment. Vacation or abandonment
-----------------------
of the Premises;
(b) Payment. Failure to pay any installment of
-------
Base Rental. Additional Rental or other monies due and payable hereunder upon
the date when said payment is due, the failure continuing for a period of five
(5) days;
(c) Performance. Default in the performance of any of
-----------
Lessee's covenants, agreements or obligations hereunder (except default in the
payment of Rent), the default continuing for thirty (30) days after written
notice thereof from Lessor (provided that Lessee shall continuously and
diligently pursue the remedy of such default at all times until such default is
cured);
(d) Assignment. A general assignment by Lessee for the
----------
benefit of creditors;
(e) Bankruptcy. The filing of a voluntary petition by
----------
Lessee, or the filing of an involuntary petition by any of Lessee's creditors
seeking the rehabilitation, liquidation or reorganization of Lessee under any
law relating to bankruptcy, insolvency or other relief of debtors:
(f) Receivership The appointment of a receiver or other
------------
custodian to take possession of substantially all of Lessee's assets or of the
Premises or any interest of Lessee therein.
23
(g) Insolvency or Dissolution. Lessee shall become insolvent or
-------------------------
unable to pay its debts, or shall fail generally to pay its debts as they become
due; or any court shall enter a decree or order directing the winding up or
liquidation of Lessee or of substantially all of its assets; or Lessee shall
take any action toward the dissolution or winding up of its affairs or the
cessation or suspension of its use of the Premises; and.
(h) Attachment. Attachment, execution or other judicial
----------
seizure of substantially all of Lessee's assets or the Premises or any interest
of Lessee under this Lease.
l7.2 Lessor's Remedies. If an Event of Default shall occur, at any
-----------------
time thereafter and without limiting Lessor in the exercise of any other right
or remedy at law or in equity, Lessor may elect any of the following remedies:
(a) Continuation of Lease. Notwithstanding Lessee's breach
---------------------
of the Lease and abandonment of the Premises, Lessor may continue the Lease in
full force and effect and enforce all of the Lessor's rights and remedies under
the Lease, as provided by California Civil Code section 1951.4. including the
----------
right to recover rents as it becomes due, so long as Lessor does not terminate
Lessee's right to possession. Acts of maintenance or preservation or efforts to
relet the Premises or the appointment of a receiver upon initiative of Lessor to
protect Lessor's interest under this Lease shall not constitute a termination of
Lessee's right to possession. At any time subsequent to vacation or abandonment
of the Premises by Lessee, Lessor may give notice of termination and shall
thereafter have all of the rights set forth in Article 17. ??(b) below.
(b) Termination. So long as the default continues Lessor shall
-----------
have the right to terminate this Lease by written notice to Lessee setting
forth: (i) the default: (ii) the requirements to cure it and (iii) a demand for
possession, which shall be effective upon the later of three (3) days after it
is given or the expiration of the times specified in Article 17.l hereinabove.
(c) Possession. Following termination of the Lease under
----------
Article 17.2(b) and without prejudice to any other remedies Lessor may have by
reason of Lessee's default or of such termination. Lessor may then or at anytime
thereafter: (i) peaceably re-enter the Premises or any part thereof upon
voluntary surrender by Lessee or expel or remove Lessee therefrom and any other
persons occupying them, using such legal proceedings as are then available: (ii)
repossess and enjoy the Premises, or relet the Premises or any part thereof for
such term or terms (which may be for a term extending beyond the Term) at such
rental or rentals and upon such other terms and conditions as Lessor in its sole
discretion shall determine, with the right to make reasonable alterations and
repairs to the Premises: and (iii) remove all personal property therefrom, store
such personal property at Lessee's expense and sell property and apply the
proceeds therefrom pursuant to applicable California law, all as attorney-in-
fact for Lessee. Lessee shall not be entitled to any reimbursement for the
unamortized cost of Lessee Extra Work.
(d) Recovery. Following termination under Article 17 2(b) above
--------
Lessor shall have all the rights and remedies to recover from Lessee damages as
provided by California Civil Code section 1951.2 (or any successor law)
----------
including without limitation: (i) the worth at the time of the award of the
unpaid Rent and other amounts which had been earned at the time of termination:
(ii) the worth at the time of the award of the amount by which the unpaid Rent
which would have been earned after termination until the time of the award
exceeds the amount of such Rent loss that Lessee proves could have been
reasonably avoided: (iii) the worth at the time of the award of the amount by
which the unpaid Rent loss Lessee proves could be reasonably avoided: and (iv)
any other amount necessary to compensate Lessor for all detriment approximately
caused by Lessee's failure to perform its obligations under this Lease or which
in the ordinary course of things would be likely to result therefrom. The "worth
at the time of the award" of the amounts referred to in (i) and (ii) are
computed by allowing interest at the rate of three percent (3%) per annum
over the prime rate of interest announced by Xxxxx Fargo Bank, National
Association Los Angeles, California applicable to the time of award, but not to
exceed the highest rate legally permissible at the time of the award. The
"worth at the time of the award" of the amount referred to in (iii) above 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%).
24
(e) Receivership. Upon application by Lessor, Lessor may have a
------------
receiver appointed for Lessee to take possession of the Premises and to apply
all rental collected from the Premises and to exercise all other rights and
remedies granted to Lessor as attorney-in-fact for Lessee pursuant to Article
17.2(c) above.
(f) Additional Remedies. In addition to the foregoing remedies
-------------------
so long as this Lease is not terminated, Lessor shall have the right to remedy
any default of Lessee, to maintain or improve the Premises without terminating
the Lease, to incur expenses on behalf of Lessee in seeking a new subtenant or
to cause a receiver to be appointed to administer the Premises and new or
existing subleases, and to add to the Rent payable hereunder all of Lessor's
reasonable costs in doing so, with interest at the maximum rate set by statute.
Lessor may pursue any and all other remedies available to Lessor at law or in
equity, by statute or otherwise.
(g) Other Breaches. If Lessee causes or threatens a breach of
--------------
any of the covenants, agreements, terms or conditions contained in this Lease,
Lessor shall be entitled to retain all sums held by Lessor for Lessee's account
or in any account provide for herein to enjoin such breach or threatened breach,
and to invoke any right and remedy allowed at law or in equity or by statute or
otherwise as though re-entry, summary proceedings and other remedies were
not provided for in this Lease.
(h) Cumulative. Each right and remedy of Lessor provided for in
----------
this Lease shall be cumulative and shall be in addition to every other right or
remedy provided for in this Lease or now or hereafter existing at law or in
equity or by statute or otherwise. The exercise or beginning of the exercise
by Lessor of any one or more of the rights or remedies provided for in this
Lease, or nor or hereafter existing at law or in equity or by, statute or
otherwise, shall not preclude the simultaneous or later exercise by Lessor of
any or all other rights or remedies provided for in this Lease or now or
hereafter existing at law or in equity or statute or otherwise.
(i) No Waiver. Notwithstanding, no failure by Lessor to insist
--------
upon the strict performance of any term hereof or to exercise any right or
remedy consequent upon a breach thereof and no acceptance of full or partial
payment of Rent during the continuance of any such breach shall constitute a
waiver of any such breach or of any such term. Efforts by Lessor to mitigate the
damages caused by Lessee's breach of this Lease shall not be construed to be a
waiver of Lessor's right to recover damages under this Article l7. Nothing in
this Article 17 affects the right of Lessor to be indemnified and/or held
harmless by Lessee in accordance with the provisions of this Lease for
liability arising prior to the termination of this Lease for personal injuries
or property damage.
ARTICLE 18
----------
GRAPHICS
--------
18.1 In General. Lessee shall be entitled, at Lessor's cost,
----------
building standard to identification signage outside of Lessee's Premises on the
floor on which Lessee's Premises are located. The location, quality, design,
style, lighting and size of such signage shall be consistent with the Lessor's
Building standard signage program and shall be subject to Lessor's prior written
approval, in its sole discretion. Upon the expiration or earlier termination of
this Lease, Lessee shall be responsible, at its sole cost and expense, for the
removal of such signage and the repair of all damage to the Building caused by
such removal.
l8.2 Building Directory. At Lessor's cost Lessee shall be
-------------------
entitled to utilize up to tyventy (20) lines on the office building directory to
display Lessee's name and location in the Project.
l8.3 Prohibited Signage and Other Items. Any signs, notices, logos,
----------------------------------
pictures, names or advertisements which are installed and that have not been
individually approved by Lessor may be removed without notice by Lessor at the
sole expense of Lessee. Lessee may not install any signs on the exterior or roof
of the office building or the common areas of the Project. Any signs, window
coverings, or blinds (even if the same are located
25
behind the Lessor approved window coverings for the office building), or
other items visible from the exterior of the Premises are subject to the prior
approval of Lessor, in its sole discretion.
ARTICLE 19
-------
LESSOR'S RIGHT TO CURE DEFAULT PAYMENTS BY LESSEE
-------------------------------------------------
l9.l Lessor's Cure. All covenants and agreements to be kept or
-------------
performed by Lessee under this Lease shall be performed by Lessee at Lessee's
sole cost and expense and without any reduction of Rent. If Lessee shall fail to
perform any of its obligations under this Lease within a reasonable time
after such performance is required by the terms of this Lease. Lessor may, but
shall not be obligated to, after reasonable prior notice to Lessee make any
such payment or perform any such act on Lessee's part without waiving its right
based upon any default of Lessee and without releasing Lessee from any
obligations hereunder.
19.2 Lessee's Reimbursement. Except as may be specifically provided
----------------------
to the contrary in this Lease, Lessee shall pay to Lessor, within fifteen (15)
days after delivery by Lessor to Lessee of statements therefor:(i) sums equal to
expenditures reasonably made and obligations incurred by Lessor in connection
with the remedying by Lessor of Lessee's defaults pursuant to the provisions
of Section 17.1; (ii) sums equal to all losses, costs, liabilities, damages and
expenses referred to in Article 9 of this Lease: and (iii) sums equal to all
expenditures made and obligations incurred by Lessor in collecting or attempting
to collect the Rent or in enforcing or attempting to enforce any rights of
Lessor under this Lease or pursuant to law, including, without limitation all
legal fees and other amounts so expended. Lessee's obligations under this
Section 19.2 shall survive the expiration or sooner termination of the Lease
Term.
ARTICLE 2O
-------
MISCELLANEOUS PROVISIONS
------------------------
20.1 Terms. The necessary grammatical changes required to make the
-----
provisions hereof apply either to corporations or partnerships or individuals,
men or women, as the case may require shall in all cases be assumed as though
in each case fully expressed.
20.2 Binding Effect. Each of the provisions of this Lease shall
--------------
extend to and shall, as the case may require, bind or inure to the benefit not
only of Lessor and of Lessee, but also of their respective successors or
assigns.
20.3 Easements. Lessor reserves the right to: (i) alter the
---------
boundaries of the Lot: and, (ii) grant easements on the Lot and dedicate for
public use portions thereof without Lessee's consent: provided, however, that
no such grant or dedication shall materially interfere with Lessee's use of the
Premises.
20.4 No Light Air or View Easement. Any diminution or shutting off
-----------------------------
of light, air or view by any structure which may be erected on lands adjacent
to or in the vicinity of the Project shall in no way affect this Lease or impose
any liability on Lessor.
20.5 Authorization. If Lessee executes this Lease as a corporation
-------------
or partnership, then Lessee and the persons executing this Lease on behalf of
Lessee, represent and warrant that such entity is duly qualified to do business
in California and that the individuals executing this Lease on Lessee's behalf
are duly authorized to execute and deliver this Lease on its behalf. In the case
of a corporation, in accordance with a duly adopted resolution of the board of
directors of the Lessee, a copy of which is to be delivered to Lessor on
execution hereof, and in accordance with the by-laws of Lessee and that this
Lease is binding upon Lessee in accordance with its terms, and in the case of
a partnership agreement and the most current amendment thereto, if any, copies
of which are to be delivered to Lessor with the execution hereof.
26
20.6 Accord and Satisfaction. No payment by Lessee or receipt by
-----------------------
Lessor of a lesser amount than the Rent herein stipulated shall be deemed to be
other than on account of the Rent, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as Rent be deemed an
accord and satisfaction, and Lessor may accept such check or payment without
prejudice to Lessor's right to recover the balance of such Rent or pursue any
other remedy provided in this Lease.
20.7 Peaceful Enjoyment. Subject to the other terms hereof. Lessee
------------------
shall and may peacefully have hold and enjoy the Premises, provided that Lessee
pays the Rent and other sums herein to be paid by Lessee and performs all of
Lessee's covenants and agreements contained herein. It is understood and agreed
that this covenant and any and all other covenants of Lessor contained in this
Lease shall be binding upon Lessor and its successors only with respect to
breaches occurring when Lessor has an ownership interest in the Project, and
shall be binding on Lessor's successors only with respect to breaches occurring
when such successors have an ownership interest in the Project. Lessor will
provide, upon execution of the Lease, a commercially reasonable non-disturbance
agreement from the Project lender recognizing Lessee's rights to the leased
premises.
20.8 Limitation of Lessor's Liability. The obligations of Lessor
--------------------------------
under this Lease shall not constitute personal obligations of the partners,
directors, officers or shareholders of Lessor, and Lessee shall look solely to
the real estate that is the subject of this Lease and to no other assets of
Lessor for satisfaction of any liability in respect of this Lease and shall not
seek recourse against the partners, directors, officers or shareholders of
Lessor or any of their personal assets for such satisfaction.
20.9 Time, Calendar Year: Calendar Days. Time is of the essence in
----------------------------------
the performance of all obligations under this Lease. As used in this Lease, the
term "calendar year" shall mean January l through December 3l. Except as
otherwise expressly provided herein, all references to days in this Lease shall
mean calender days, not working or business days: provided, however, that if a
certain date falls on a weekend or holiday, the next business day shall be
substituted for the applicable date.
20.10 Professional Fees. In any action or proceeding which Lessor or
-----------------
Lessee may be required to prosecute to enforce its respective rights
hereunder,the unsuccessful parties therein shall pay all costs and expenses
incurred by the prevailing party therein, including without limitation actual
professional fees such as appraisers, accountants and reasonable attorneys' fees
and expenses, to be fixed by the court, and such costs and attorneys' fees and
expenses shall be made a part of the judgment in such action. In any situation
in which a dispute is settled other than by action or proceeding, including a
default by Lessee, Lessee shall pay all Lessor's costs and, attorney's fees and
expenses relating thereto.
20.11 Severability. If any term or provisions of this Lease, or the
------------
application thereof to any person or circumstance, the deletion of which shall
not adversely affect the receipt of any material benefit of Lessor or Lessee,
shall be invalid, void or unenforceable to any extent, the remainder of this
Lease, and the application of such terms or provisions to other persons or
circumstances, shall not be affected, impaired or invalidated thereby and shall
be enforced to the greatest extent permitted by law.
20.12 Applicable Law. This Lease, and the rights and obligations of
--------------
the parties hereto, shall be construed and enforced in accordance with the laws
of the State of California.
20.13 Submission of Lease. The submission of this document for
-------------------
examination and negotiation neither constitutes an offer to lease, nor a
reservation of, nor option for leasing the Premises. This document shall become
effective and binding only upon execution and delivery by Lessor. No act or
omission of any employee or agent of Lessor or of Lessor's broker or managing
agent shall alter, change or modify any of the provisions hereof.
20.14 Rules and Regulations At all times during the Term. Lessee
---------------------
shall comply with rules and regulations (and such amendments as Lessor may
reasonably adopt) for the Project as set forth in Exhibit F attached hereto and
by this reference made a part hereof ("Rules and Regulations").
27
20.15 No Nuisance. Lessee shall conduct it's business and control
-----------
its agents, employees, invitees and visitors in such a manner as not to
create any nuisance or interfere with, annoy or disturb any other tenant or
Lessor in its operation of the Building.
20.16 Broker. Lessee warrants that it has had no dealings with any
------
real estate broker or agent other than Lessee's Broker set forth in the Summary
("Broker") in connection with the negotiation of this Lease, and that it knows
of no other real estate broker or agent other than Lessee's Broker, who may be
entitled to any commission or finder's fee in connection with this Lease. Lessee
hereby indemnifies, defends, protects and holds Lessor harmless from and against
any and all claims, demands, losses, liabilities, lawsuits, judgements, costs
and expenses with respect to any leasing commission or equivalent compensation
alleged to be owing on account of Lessee's dealings with any real estate broker
or agent other than Broker as set forth in Broker's separate agreement with
Lessor.
20.17 Lessor's Right to Perform. Upon Lessee's failure to perform
-------------------------
any obligation of Lessee hereunder, subject to notice and reasonable period of
time, including without limitation, payment of Lessee's insurance premiums or
charges of contractors who have supplied materials or labor to the Premises.
Lessor shall have the right to perform such obligation of Lessee on behalf of
Lessee and, or to make payment on behalf of Lessee to such parties. Lessee shall
reimburse Lessor the reasonable cost of Lessor's performing such obligation on
Lessee's behalf, including any amounts that may be expended by Lessor, plus
interest at the rate set forth in Article 4.6 for past due installments of
Rent, as Additional Rental.
20.18 Modification for Lender. If, in connection with obtaining
-----------------------
construction interim or permanent financing for the Project, the lender or any
ground lessor shall request reasonable modifications in this Lease as a
condition to such financing. Lessee will not unreasonably withhold, delay or
defer its consent thereto, provided that such modifications do not increase the
obligations of Lessee hereunder or materially adversely affect the leasehold
interest hereby created or Lessee's rights hereunder.
20.19 Recording. Neither Lessor nor Lessee shall record this Lease
----------
nor a short form memorandum thereof without the written consent of the other.
20.20 Parking Facilities
------------------
(a) The Garage is available for the use of tenants of the
Project and their visitors and customers. All parking rights are subject to the
rules, regulations, charges, rates, validation and identification systems set
forth by Lessor from time to time. Lessor may restrict certain portions of the
Garage for the exclusive use of one or more tenants of the Project and may
designate other areas to be used at large only by customers and visitors of
tenants of the Project. Lessor reserves the right to delegate the operation of
the Garage to a parking operator which shall be entitled to all of the
obligations and benefits of Lessor.
(b) During the Lease Term Lessee shall have the right in
common with other tenants of the Project to rent use the number of undesignated
spaces in the Garage specified in the Summary Information: additional parking
spaces for Lessee's customers and visitors may be allowed at Lessor's option,
and as further provided in the Summary, subject to availability. Lessee shall
pay to Lessor as Additional Rental the parking space rental specified in the
Summary Information, which amount is the charge currently in effect for the
rental use of such parking facilities. Notwithstanding the foregoing. Lessor
reserves the right, from time to time, to make reasonable changes in, additions
to and deletions from the parking facilities and the purposes to which the same
may be devoted, provided that Lessor does not permanently reduce the number of
Lessee's parking spaces specified above. Furthermore, Lessor reserves the right,
from time to time, to make changes in the rental for such parking facilities
based upon the fair market value of such parking facilities as determined solely
by Lessor or governmental authorities.
(c) Lessor shall have the right to cause to be removed any
vehicles of Lessee, its customers or visitors that are parked in violation of
this Lease or in violation of the Rules and Regulations of the
28
Building without liability of any kind to Lessor and Lessee agrees to indemnify,
defend, protect and hold Lessor harmless from and against any and all claims,
losses, damages, demands, costs and expenses (including without limitation
reasonable attorney's fees and expenses) asserted or arising with respect to or
in connection with the removal of any such automobile(s) as aforesaid. Lessor
shall not be liable for any claims, losses, damages, expenses or demands with
respect to any vehicles of Lessee, its customers or visitors that are parked in
the Garage, except for such loss or damage as may be caused by Lessor's gross
negligence or willful misconduct, and Lessee agrees to indemnify, defend,
protect and hold Lessor harmless from and against any such claim, loss, damage,
demand, cost or expense (including without limitation reasonable attorneys' fees
and expenses). From time to time, upon request of Lessor, Lessee shall supply
Lessor with a list of license plate numbers of all automobiles owned by its
employees and agents granted parking privileges.
20.2l No Merger. The voluntary' or other surrender of this
---------
Lease by Lessee, or a mutual cancellation thereof, shall not work a merger, and
at the option of Lessor shall terminate all or any existing assignments,
sublessees, or subtenancies, or at the option of Lessor may operate as an
assignment to it of any or all such assignments, subleases or subtenancies.
20.22 Amendment. Except as otherwise provided herein,
---------
no subsequent alteration, amendment, change or addition to this Lease shall be
binding upon Lessor or Lessee unless in writing and executed by Lessor and
Lessee.
20.23 Financial Statements. No more often than once per annum.
--------------------
Lessee shall upon twenty (20) days prior written notice from Lessor provide
Lessor with a most recent annual financial statement. Such statements shall be
prepared in accordance with generally accepted accounting principles.
20.24 Hazardous Substances: Indemnification.
-------------------------------------
(a) Except for general offices supplies typically used in an
office area in the ordinary course of business, such as copier toner, liquid
paper, glue, ink, and cleaning solvents, for use in the manner for which they
were designed, in such amounts as may be normal for the office business
operations conducted by Lessee in the Premises, neither Lessee nor its agents,
employees, contractors, licensees, sublesses, assignees, concessionaires or
invitees shall use, handle, store or dispose of any Hazardous Substances in, on,
under or about the Premises or the Project. Except for Hazardous Substances
customarily used in connection with general office uses. Lessee shall not cause
or permit any Hazardous Substance to be used, stored, generated or disposed of
on or in the Building or the Premises by Lessee. Lessee's agents, employees,
contractors, or invitees without first obtaining Lessor's written consent. If
any Hazardous Substances are used, stored, generated, or disposed of on or in
the Premises including those customarily used in connection with general office
uses, or if the Premises become affected by any release or discharge of a
Hazardous Substance. Lessee shall, if caused by a violation of the above,
indemnify, defend and hold harmless the Lessor from and against any and all
claims, damages, fines, judgments, penalties, costs, liabilities, or losses
(including, without limitation, a decrease in value of the Premises, damages
caused by loss or restriction of rentable or usable space, or any damages caused
by a diverse impact on marketing of the space, and any and all sums paid for
settlement of claims, attorneys' fees, consultant, and expert fees) arising
during or after the term of this Lease and arising as a result of such
contamination, release or discharge. This indemnification includes, without
limitation, any and all costs incurred because of any investigation of the site
or any clean-up, remediation, removal, or restoration mandated by federal, state
or local agency or political subdivision. Without limitation of the foregoing,
if Lessee causes or permits the presence of any Hazardous Substance on the
Premises and the same results in any contamination, release or discharge. Lessee
shall promptly, at its sole expense, take any and all necessary actions to
return the Premises to the conditions existing prior to the presence of any such
Hazardous Substance on the Premises. Lessee shall first obtain Lessor's approval
for any such remedial action. Furthermore, Lessee shall immediately notify
Lessor of any inquiry, test, investigation or enforcement proceeding by or
against Lessee or the Property concerning the presence of any Hazardous
Substance. Lessee acknowledges that Lessor, at Lessor's election, shall have the
sole right, at Lessee's expense, to negotiate, defend, approve and appeal any
action taken or order issued by any governmental authority with regard to any
Hazardous Substance contamination which Lessee is obligated hereunder to
remediate.
29
(b) Lessor represents and warrants that Lessor has nor
knowingly used or permitted the use of any portion of Lessee's Premises, the
Project or Garage to be used in violation of any governmental law ordinances,
regulations or orders relating to environmental conditions including but not
limited to asbestos, soil and ground water conditions and Hazardous Materials.
(c) As used herein. "Hazardous Substance" means asbestos,
any petroleum fuel, polychorobiphenyls ("PCBs") and any hazardous or toxic
substance, material or waste which is or becomes regulated by any local
governmental authority, the State of California or the United States government,
including, but not limited to, any material or substance defined as a "hazardous
waste", "extremely" hazardous waste", "restricted hazardous waste", "hazardous
substances", "hazardous material" or "toxic pollutant" under the California
Health and Safety Code and/or under the Comprehensive Environmental Response,
Compensation and Liability Act. 42. U.S.C. section T9901, et. seq.
20.25 No Warranty. In executing and delivering this Lease,
-----------
Lessee has not relied on any representation including, but not limited to, any
representation whatsoever as to the amount of any item comprising Additional
Rent or the amount of the Additional Rent in the aggregate or that Lessor is
furnishing the same services to other Lessees, at all, on the same level or on
the same basis or any warranty or any statement of Lessor which is not set forth
herein or in one or more of the exhibits attached hereto.
20.26 Entire Agreement. It is understood and acknowledged that
----------------
there are no oral agreements between the parties hereto affecting this Lease and
this Lease supersedes and cancels any and all previous negotiations,
arrangements, brochures, agreements and understandings, if any, between the
parties hereto or displayed by Lessor to Lessee with respect to the subject
matter thereof, and none thereof shall be used to interpret or construe this
Lease. This Lease and any side letter or separate agreement executed by Lessor
and Lessee in connection with this Lease and dated of even date herewith contain
all of the terms, covenants, conditions, warranties and agreements of the
parties relating in any manner to the rental, use and occupancy of the Premises,
shall be considered to be the only agreement between the parties hereto and
their representatives and agents, and none of the terms, covenants, conditions
or provisions of this Lease can be modified, deleted or added to except in
writing signed by the parties hereto. All negotiations and oral agreements
acceptable to both parties have been merged into and are included herein. There
are no other representations or warranties between the parties, and all reliance
with respect to representations is based totally upon the representations and
agreements contained in this Lease.
20.27 Force Majeure. Any prevention, delay or stoppage due to
-------------
strikes, lockouts, labor disputes, Acts of God, inability to obtain services,
labor, or materials or reasonable substitutes therefor, governmental actions,
civil commotions, fire or other casualty, and other causes beyond the reasonable
control of the party obligated to perform, except with respect to the
obligations imposed with regard to Rent and other charges to be paid by Lessee
pursuant to this Lease (collectively, the "Force Majeure"), notwithstanding
anything to the contrary contained in this Lease, shall excuse the performance
of such party for a period equal to any such prevention, delay or stoppage and,
therefore, if this Lease specifies a time period for performance of an
obligation of either party, that time period shall be extended by the period of
any delay in such party's performance caused by a Force Majeure.
20.28 Waiver of Redemption. Lessor hereby waives for Lessee and
--------------------
for all those claiming under Lessee all right now or hereafter existing to
redeem by order or judgment of any court or by any legal process or writ.
Lessee's right of occupancy of the Premises after any termination of this Lease.
20.29 Joint and Several. If there is more than one Lessee, the
-----------------
obligations imposed upon Lessee under this Lease shall be joint and several.
20.30 Attorneys' Fees. If either party commences litigation
---------------
against the other for the specific performance of this Lease, for damages for
the breach hereof or otherwise for enforcement of any remedy hereunder. In the
event of any such commencement of litigation, the prevailing party shall be
entitled to recover
30
from the other party such costs and reasonable attorneys' fees as may have been
incurred, including any and all costs incurred in enforcing, perfecting and
executing such judgment.
20.31 Independent Covenants. This Lease shall be construed as
---------------------
though the covenants herein between Lessor and Lessee are independent and not
dependent and Lessee hereby expressly waives the benefit of any statute to
the contrary and agrees that if Lessor fails to perform its obligations set
forth herein, Lessee shall not be entitled to make any repairs or perform any
acts hereunder at Lessor's expense or to any set-off of the Rent or other
amounts owing hereunder against Lessor: provided, however, that the foregoing
shall in no way impair the right of Lessee to commence a separate action against
Lessor for any violation by Lessor of the provisions hereof so long as notice is
first given to Lessor and any holder of a mortgage or deed of trust covering the
Building. Real Property or any portion thereof, of whose address Lessee has
therefore been notified, and an opportunity is granted to Lessor and such
holder to correct such violations as provided above.
20.32 Project Name and Signage. Lessor shall have the right at
------------------------
any time to change the name of the Project and to install, affix and maintain
any and all signs on the exterior and on the interior of the Project as Lessor
may, in Lessor's sole discretion, desire.
20.33 Transportation Management. Lessee shall fully comply with
-------------------------
all present or future programs intended to manage parking, transportation or
traffic in and around the Project, and in connection therewith. Lessee shall
take responsible action for the transportation, planning and management of all
employees located at the Premises by working directly with Lessor, any
governmental transportation management organization or any other
transportation-related committees or entities. Such programs may include,
without limitation: (i) restrictions on the number of peak-hour vehicle trips
generated by Lessee. (ii) increased vehicle occupancy; (iii) implementation of
an in-house ride-sharing program and an employee transportation coordinator:
(iv) working with employees and any Project or area-wide ride-sharing program
manager: (v) instituting employer-sponsored incentives (financial or in-kind) to
encourage employees to ride-share: and (vi) utilizing flexible work shifts for
employees.
20.34 No Discrimination. Lessee covenants by and for itself,
-----------------
its heirs, executors, administrators and assigns, and all persons claiming under
or through Lessee, and this Lease is made and accepted upon and subject to the
following conditions: that there shall be no discrimination against or
segregation of any person or group of persons, on account of race, color, creed,
sex, religion, marital status, ancestry, or national origin in the leasing,
subleasing, transferring, use or employment of the Premises, nor shall Lessee
itself, or any person, use claiming under or through Lessee, establish or permit
such practice or practices of discrimination or segregation with reference to
the selection, location, number, use or occupancy of tenants, lessees,
sublessees, subtenants or vendees in the Premises.
31
IN WITNESS WHEREOF, Lessor and Lessee have caused this Lease to be executed the
day and date first above written.
"Lessor":
BPG PASADENA, L.L.C.,
a Delaware Limited Liability Company
[SIGNATURE ILLEGIBLE]
-----------------------------------
Its: Managing Member
--------------------------
"Lessee":
CITY SEARCH, INC.,
a Delaware Corporation
[SIGNATURE ILLEGIBLE]
By:----------------------------------
Its: ??????????????????
----------------------------
32
EXHIBIT A
---------
000 XXXX XXXXXXXX XXXXXXXXX
---------------------------
LEGAL DESCRIPTION
-----------------
All the certain real property located in the County of Los Angeles. State of
California, described as follows:
APN 0000-000-000
PARCEL l OF THE PARCEL MAP NO.12432. IN THE CITY OF PASADENA, COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA. AS PER MAP RECORDED IN BOOK 138, PAGES 66 AND 67
OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXHIBIT A - PAGE 1
EXHIBIT B
---------
000 XXXX XXXXXXXX XXXXXXXXX
---------------------------
OUTLINE OF FLOOR PLAN OF PREMISES
---------------------------------
(TO BE PROVIDED BY LESSOR)
EXHIBIT B - PAGE 1
EXHIBIT B
---------
000 X. XXXXXXXX XXXX.
[SECOND FLOOR PLAN APPEARS HERE]
EXHIBIT C
---------
000 XXXX XXXXXXXX XXXXXXXXX
---------------------------
WORK LETTER
-----------
This Work Letter shall set forth the terms and conditions relating to the
construction of the Lessee improvements in the Premises. This Work Letter is
essentially organized chronologically and addresses the issues of the
construction of the Premises, in sequence, as such issues will arise during the
actual construction of the Premises. All capitalized terms used but not defined
herein shall have the meanings given such terms in this Lease. All references in
this Work Letter to Articles or Sections of "this Lease" shall mean the relevant
portion of Articles 1 through 20 of this Lease to and of which this Work Letter
forms a part. All references in this Work Letter to Sections of "this Work
Letter" shall mean the relevant portion of Sections 1 through 6 of this Work
Letter.
AGREEMENT
---------
SECTION l
---------
DESIGN AND CONSTRUCTION OF LESSEE IMPROVEMENTS
----------------------------------------------
1.l Construction Drawings for Lessee Improvements. Prior to the
---------------------------------------------
execution of this Lease, Lessor and Lessee have approved a detailed space plan
and supplemental specifications for the construction of certain improvements in
the Premises a copy of which is included as Exhibit D to the Lease (the "Final
Space Plan"). Based upon and in conformity with the Final Space Plan. Lessor
shall cause its architect and engineers to prepare and deliver to Lessee, for
Lessee's reasonable approval, detailed specifications and engineered working
drawings for the Lessee improvements shown on the Final Space Plan (the "Working
Drawings"). To the extent that the finishes and specifications are not
completely set forth in the Final Space Plan for any portion of the Lessee
improvements depicted thereon, the actual specifications and finish work shall
be in accordance with the specifications for the building's standard improvement
package items, as determined by Lessor. Within three (3) days after Lessee's
receipt of the Working Drawings. Lessee shall approve or disapprove the same,
which approval shall not be unreasonably withheld; provided, however, that
Lessee may only disapprove the Working Drawings to the extent such Working Draw
ings are inconsistent with the Final Space Plan and only if Lessee delivers to
Lessor, within such thirty (30) day period, specific changes proposed by Lessee
which are consistent with the Final Space Plan and do not constitute changes
which would result in any of the circumstances described in items (i) through
the below. If any such revisions are timely and properly proposed by Lessee,
Lessor shall cause its architect and engineers to revise the Working Drawings to
incorporate such revisions and submit the same for Lessee's approval in
accordance with the foregoing provisions and the parties shall follow the
foregoing procedures for approving the Working Drawings until the same are
finally approved by Lessor and Lessee. Upon Lessor's and Lessee's approval of
the Working Drawings, the same shall be known as the "Approved Working
Drawings". Once the Approved Working Drawings have been approved by Lessor
and Lessee. Lessee shall make no changes or modifications thereto without the
prior written consent of Lessor, which consent may be withheld in Lessor's sole
discretion if such change or modification would: (i) directly or indirectly
delay the "Substantial Completion", as that term is in defined section 5 below,
of the Premises: (ii) increase the cost of designing or constructing the Lessee
Improvements above the cost of the Lessee Improvements depicted in the Final
Space Plan: (iii) be of a quality lower than the quality of the standard
improvement package items for the office building; and or (iv) require any
changes to the Base, Shell and Core of the Project. The Lessee improvements
shown on the Approved Working Drawings, excluding any of Lessee's furniture,
computer systems, telephone systems, equipment or other personal property
which may be depicted thereon, shall be referred to herein as the "Lessee
Improvements".
1.2 Limitation on Lessor's Liability. Lessor's submittal and/or approval
--------------------------------
of the Final Space Plan. Working Drawings and Approved Working Drawings
(collectively, the "Construction Drawings") as set forth in this Section 5 shall
not imply Lessor review of the same, or obligate Lessor to review the same for
quality, design, compliance with codes or other like matters.
EXHIBIT B
---------
[790 E. COLORADO BLVD. -- THIRD FLOOR PLAN]
SECTION 2
---------
CONSTRUCTION COSTS AND OVER-ALLOWANCE AMOUNT
--------------------------------------------
Lessor and Lessee hereby agree that Lessor shall at Lessor's sole cost and
expense, improve Lessee's Premises consistent with the space plan developed by
City Spaces and approved by CitySearch. The intention of the parties herein is
to develop at Landlord expense, standard professional office space in all areas
of Lessee's Premises except for the Computer Room. Specifically, Lessor shall at
Lessor's sole cost and expense provide all necessary improvements to the
Premises, including but not limited to, suspended ceilings, lighting, walls,
doors, floor coverings, furniture low wall partition systems,
telecommunications, cabling, fourplex electrical outlets (as required), a
men's & women's shower facility, and breakroom including sink coffee and
storage area. Lessor shall also build the demised area for the Computer Room
consistent with buildings standards for the Premises. Lessee, at Lessee's sole
cost and expense shall be responsible for the development of the Computer Room
beyond building standard including any additional air conditioning units, fire
suppression systems, floor support system, etc.
SECTION 3
---------
CONTRACTOR'S WARRANTIES AND GUARANTIES
--------------------------------------
Lessor will, upon completion of the Lessee Improvements and Lessee's
acceptance of the Premises, assign to Lessee all warranties and guaranties by
the contractor who constructs the Lessee Improvements (the "Contractor")
relating to the Lessee Improvements, and Lessee hereby waives all claims against
Lessor relating to, or arising out of the construction of the Lessee
Improvements except to extent of Lessor's cross negligence or willful
misconduct.
SECTION 4
---------
LESSEE'S COVENANTS
------------------
Lessee shall use its good faith efforts to cooperate with Lessor to
cause a Notice of Completion to be recorded in the Office of the Recorder
of the County of Los Angeles in accordance with section 3093 of the Civil Code
----------
of the State of California or any successor statute, including the execution of
any appropriate documents if necessary; provided, however, Lessor may itself
execute and file the same on behalf of Lessee as Lessee's agent for such purpose
SECTION 5
---------
COMPLETION OF THE LESSEE IMPROVEMENTS:
--------------------------------------
LEASE COMMENCEMENT DATE
-----------------------
Except as provided in this Section 5, the Lease Commencement Date shall
occur as set forth in the Summary and Article 3 of this Lease. For purposes of
this Lease "Substantial Completion" of the Premises shall occur upon the
completion of construction of the Lessee Improvements in the Premises pursuant
to the Approved Working Drawings, with the exception of any punch list items
and any Lessee fixtures, work-stations, built-in furniture, or equipment to
be installed by Lessee or under the supervision of a Contractor. If there shall
be a delay or there are delays in the Substantial Completion of the Premises or
in the occurrence of any of the other conditions precedent to the Lease
Commencement Date as set forth in the Summary of this Lease as a result of:
5.1 Lessee's failure to timely approve any matter requiring Lessee's
approval:
5.2 A breach by Lessee of the terms of this Work Letter or this Lease;
EXHIBIT C - PAGE 2
5.4 Lessee's request for changes in any of the Construction Drawings, the
changes of which result in added time to the construction schedule:
5.5 Lessee's requirement for materials, components, finishes or
improvements which are not available in a commercially reasonable time (given
the anticipated Lease Commencement Date as set forth in this Lease) or which
are different than Lessor's standard improvement package items for the office
building:
5.6 Any other acts or omissions of Lessee, or its agents, or employees
except for computer room; then, notwithstanding anything to the contrary set
forth in this Lease or this Work Letter and regardless of the actual date of the
Substantial Completion of the Premises, the Lease Commencement Date shall be
deemed to be the date the Lease Commencement Date would have occurred pursuant
to the Summary if no Lessee Delay or delays, as set forth above had occurred.
SECTION 6
---------
MISCELLANEOUS
-------------
6.1 Lessee's Entry Into the Premises Prior to Substantial Completion.
----------------------------------------------------------------
Provided that Lessee and its agents do not interfere with Contractor's work in
the Project and the Premises. Contractor shall allow Lessee access to the
Premises prior to the Substantial Completion of the Premises for the purpose of
Lessee installing over-standard equipment or fixtures ( including Lessee's data
and telephone equipment, wall and floor coverings, security systems and
millwork) in the Premises. Prior to Lessee's entry into the Premises as
permitted by the terms of this Section 6.1. Lessee shall submit a schedule to
Lessor and Contractor, for their approval, which schedule shall detail the
timing and purpose of Lessee's entry. Lessee shall hold Lessor harmless from and
indemnity, protect and defend Lessor against any loss or damage to the Project
or Premises and against injury to any persons caused by Lessee's actions
pursuant to this Section 6.1.
6.2 Freight Elevators. Lessor shall, consistent with its obligations to
-----------------
other tenants of the Project, and subject to the needs of Lessor with respect to
Lessor's construction work in the Project, make the freight elevator reasonably
available to Lessee in connection with initial decorating, furnishing and
moving into the Premises.
6.3 Lessee's Representative. Lessee has designated Xxxxxxx Xxxxxxx as its
-----------------------
sole representative with respect to the matters set forth in this Work Letter,
who, until further notice to Lessor, shall have full authority and
responsibility to act on behalf of the Lessee as required in this Work Letter.
6.4 Lessor's Representative. Lessor has designated Xxxxxxx X. Xxxxxx as
-----------------------
its sole representative with respect to the matters set forth in this Work
Letter, who, until further notice to Lessee, shall have full authority and
responsibility to act on behalf of the Lessor as required in this Work Letter.
6.6 Time of the Essence in This Work Letter. Unless otherwise indicated,
---------------------------------------
all references herein to a " number of days" shall mean and refer to calendar
days. In all instances where Lessee is required to approve or deliver an item,
if no written notice of approval is given or the item is not delivered within
the stated time period, at Lessor's sole option, at the end of such period the
item shall automatically be deemed approved or delivered by Lessee and the next
succeeding time period shall commence.
6 7. Lessee's Material Default. Notwithstanding any provision to the
-------------------------
contrary contained in this Lease, if an event of default as described in
Article 17 of this Lease, or a default by Lessee under this Work Letter, has
occurred at any time on or before the Substantial Completion of the Premises,
then (i) in addition to all other rights and remedies granted to Lessor pursuant
to this Lease, Lessor shall have the right to cause Contractor to cease the
construction of the Premises (in which case, Lessee shall be responsible for
any delay in the Substantial Completion of the Premises caused by such work
stoppage as set forth in Section 5 of this Work Letter), and (ii) all other
obligations of Lessor under the terms of this Work Letter shall be forgiven
until such time as such default is cured pursuant to the terms of this Lease.
EXHIBIT C - PAGE 3
EXHIBIT D
---------
000 XXXX XXXXXXXX XXXXXXXXX
----------------------------
LESSEE'S FINAL SPACE PLAN
-------------------------
EXHIBIT E
---------
000 XXXX XXXXXXXX XXXXXXXXX
---------------------------
NOTICE OF LEASE TERM DATES
--------------------------
To: City Search, Inc. Date: September ____, 1996
0000 Xxxx Xxxxxx, Xxxxx 000
Xx Xxxxxxxxx, XX 00000
Re: Office Lease dated ____________________, 19___, between BPG Pasadena,
L.L.C., Lessor, and, CitySearch. Inc., Lessee. concerning Xxxxx 000,
located at 000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000.
In accordance with the subject Lease, we wish to advise you and/or confirm as
follows:
l. The Premises have been accepted by the Tenant as being substantially
complete in accordance with the Lease and there is no deficiency in
construction.
2. Tenant has possession of the Premises and acknowledges that under the
provisions of the Lease, the term of said Lease shall commence as of
November 1, 1996 for a term of five (5) years, ending on October 31, 2001.
3. In accordance with the Lease, Rent commenced to accrue on ________________.
4. If the commencement date of the Lease is other than the first day of the
month, the first billing will contain a pro rata adjustment. Each billing
thereafter shall be for the full amount of the monthly installment as
provided for in the Lease.
5. Rent is due and payable in advance on the first day of each and every
month. Rent checks should be made payable to BPG Pasadena, L.L.C. and
delivered to:
6. Nationwide Remittance Centers - California, Inc.
Department 66099
Xx Xxxxx, XX 00000-0000
7. The number of rentable square feet in the Premises is ___________.
EXHIBIT E - PAGE
8. Tenant's Percentage Share is _________________%.
AGREED AND ACCEPTED:
Lessor: Lessee:
BPG Pasadena. L.L.C., City, Search, Inc.,
a Delaware Limited Liability Company a Delaware Corporation
000 Xxxx Xxxxxxxx Xxxxxxxxx 0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000 Xx Xxxxxxxxx, XX 00000
By:__________________________________ By:_____________________________________
Managing Member
_____________________________________ ________________________________________
[Print Name] [Print Name]
EXHIBIT E - PAGE
EXHIBIT F
---------
000 XXXX XXXXXXXX XXXXXXXXX
---------------------------
RULES AND REGULATIONS
---------------------
Lessee shall faithfully observe and comply with the following Rules and
Regulations. Lessor shall not be responsible to Lessee for the non-performance
of any of said Rules and Regulations by or otherwise with respect to he acts or
omissions of any other tenants or occupants of the Project.
1. Lessee shall not alter any lock or install any new or additional
locks or bolts on any doors or windows of the Premises without obtaining
Lessor's prior written consent. Lessee shall bear the cost of any lock changes
or repairs required by Lessee. Two keys will be furnished by Lessor for the
Premises, and any additional keys required by Lessee must be obtained from
Lessor at a reasonable cost to be established by Lessor.
2. All doors opening to public corridors shall be kept closed at all
times except for normal ingress and agrees to the Premises, unless electrical
hold-backs have been installed.
3. Lessor reserves the right to close and keep locked all entrance and
exit doors of the office building during such hours as are customary for
comparable buildings in the vicinity of the Project. Lessee, its employees and
agents must be sure that the doors to the office building are securely closed
and locked when the leaving Premises if it is after the normal hours of
business for the Project. Any Lessee, its employees, agents persons entering
or leaving the Project at any time when it is so locked, or any time when it
is considered to be after normal business hours for the Project, may be
required to sign the security register when so doing. Access to the Project
may be refused unless the person seeking access has proper identification or
has made a previous arrangement with regard to the admission to or exclusion
from the Project of any person. In case of invasion, mob, riot, public
excitement, or other commotion, Lessor reserves the right to prevent access to
the Project during the continuance of same by any means it deems appropriate
for the safety and protection of life and property.
4. Lessor shall have the right to prescribe the weight, size and
position of all safes and other heavy property brought into the Project. Safes
and other heavy objects shall, if considered necessary by Lessor, stand on
supports of such thickness as is necessary to properly distribute the weight.
Lessor shall not be responsible for loss or damage to any such safe or property
in any case. All damage done to any part of the Building, its contents,
occupants or visitors by moving or maintaining any such safe or other property
shall be the sole responsibility of Lessee and any expense of said damage or
injury shall be borne by Lessee.
5. No furniture, freight, packages, supplies, equipment or merchandise
will be brought into or removed from the Building or carried up or down in the
elevators, except upon prior notice to Lessor, and in such manner, in such
specific elevator, and between such hours as shall be designated by Lessor.
Lessee shall provide Lessor with not less than 24 hours prior notice of the need
to utilize an elevator for any such purpose, so as to provide Lessor with a
reasonable period to schedule such use and to install such padding or take such
other actions or prescribe such procedures as are appropriate to protect against
damage to the elevators or other parts of the Building. In no event shall
Lessee's use of the elevators for any such purpose be permitted during the hours
of 7:00 a.m. - 9:00 a.m., 11:30 a.m. - 1:30 p.m. and 4:30 p.m. - 6:30 p.m.
6. Lessor shall have the right to control and operate the public portions
of the Building, the public facilities, the heating and air conditioning, and
any other facilities furnished for the common use of tenants, in such manner as
is customary for comparable buildings in the vicinity of the Building.
7. The requirements of Lessee will be attended to only upon application
at the Office of the Building or at such office location designated by Lessor.
Employees of Lessor shall not perform any work or do anything outside their
regular duties unless under special instructions from Lessor.
EXHIBIT F - PAGE
8. Lessee shall not disturb, solicit, or canvass any occupant of the
Building and shall cooperate with Lessor or Lessor's agents to prevent same.
9. The toilet rooms, urinals, wash bowls and other apparatus shall not be
used for any purpose other than that for which they were constructed, and no
foreign substance of any kind whatsoever shall be thrown therein. The expense
or any breakage, stoppage or damage resulting from the violation of this rule
shall be borne by the Lessee who, or whose employees or agents, shall have
caused it.
10. Lessee shall not overload the floor of the Premises, nor xxxx, drive
nails or screws, or drill into the partitions, woodwork or plaster or in any
way deface the Premises or any part thereof without Lessor's consent first had
and obtained, which consent shall not be unreasonably withheld or delayed;
provided, however, that Lessee may without Lessor's prior consent, place
pictures and normal wall hangings on the Premises so long as Lessee repairs any
damage resulting therefrom and Lessee restores the Premises to its condition
prior to the placement of such items.
11. Except for vending machines rented for the sole use of Lessee's
employees and invitees, no vending machine or machines of any description other
than fractional horsepower office machines, shall be installed, maintained or
operated upon the Premises without the written consent of Lessor.
12. Lessee shall not use or keep in or on the Premises or the Building any
kerosene, gasoline or other inflammable or combustible fluid or material.
13. Lessee shall not use any method of heating or air conditioning other
than that which may be supplied by Lessor without the prior written consent of
Lessor.
14. Lessee shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in or on the Premises, or permit or allow the Premises
to be occupied or used in a manner offensive or objectionable to Lessor or other
occupants of the Building by reason of noise, odors, or vibrations, or interfere
in any way with other tenants or those having business therein.
15. Lessee shall not bring into or keep within the Building or the
Premises any animals, birds, bicycles or other vehicles.
16. No cooking shall be done or permitted by any Lessee on the Premises,
nor shall the Premises be used for the storage of merchandise, for lodging or
for any improper, objectionable or immoral purposes. Notwithstanding the
foregoing. Underwriters' laboratory-approved equipment and microwave ovens may
be used in the Premises for heating food and brewing coffee, tea, hot chocolate
and similar beverages, provided that such use is in accordance with all
applicable federal, state and city laws, codes, ordinances, rules and
regulations, and does not cause odors which are objectionable to Lessor and
other tenants.
17. Lessor will approve where and how telephone and telegraph wires are
to be introduced to the Premises. No boring or cutting for wires shall be
allowed without the consent of Lessor. The location of telephone, call boxes
and other office equipment affixed to the Premises shall be subject to the
approval of Lessor.
18. Lessor reserves the right to exclude or expel from the Building any
person who, in the judgment of Lessor, is intoxicated or under the influence of
liquor or drugs, or who shall in any manner do any act in violation of any of
these Rules and Regulations.
19. Lessee, its employees and agents shall not loiter in the entrances or
corridors, nor in any way obstruct the sidewalks, lobby, halls, stairways or
elevators, and shall use the same only as a means of ingress and egress for the
Premises.
EXHIBIT F - PAGE
20. Lessee shall not waste electricity, water or air conditioning and
agrees to cooperate fully with Lessor to ensure the most effective operation of
the Building's heating and air conditioning system, and shall refrain from
attempting to adjust any controls. This includes the closing of exterior blinds,
disallowing the sun rays to shine directly into areas adjacent to exterior
windows.
21. Lessee shall store all its trash and garbage within the interior of
the Premises. No material shall be placed in the trash boxes or receptacles if
such material is of such nature that it may not be disposed of in the ordinary
and customary manner of removing and disposing of trash and garbage in Los
Angeles County 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 at such times as Lessor
shall designate.
22. Lessee shall comply with all safety, fire protection and evacuation
procedures and regulations established by Lessor or any governmental agency.
23. Lessee shall assume any and all responsibility for protecting the
Premises from robbery and pilferage, which includes keeping doors locked and
other means of entry to the Premises closed when the Premises are not occupied.
24. Lessor 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 Lessor
shall be construed as a waiver of such Rules and Regulations in favor of any
other tenant or tenants, nor prevent Lessor from thereafter enforcing any such
Rules or Regulations against any or all tenants of the Building.
25. No awnings or other projection shall be attached to the outside walls
of the Building without the prior written consent of Lessor. No curtains,
blinds, shades or screens shall be attached to or hung in or used in connection
with any window or door of the Premises without the prior written consent of
Lessor. All electrical ceiling fixtures hung in offices or spaces along the
perimeter of the Building must be fluorescent and or of a quality, tape, design
and bulb color approved by Lessor.
26. The sashes, sash doors, skylights, windows and doors that reflect or
admit light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed by Lessee, nor shall any bottles,
parcels or other articles be placed on the window xxxxx.
27. The washing and or detailing of, or the installation of windshields,
radios, telephones in or general worK on automobiles shall not be allowed on
the Real Property.
28. Food vendors shall be allowed in the Building upon receipt of a
written request from the Lessee. Food vendor shall service only those tenants
which have a written request on file in the Building Management Office. Under
no circumstance shall the food vendor display their products in the public or
common area of the Building, including corridors and elevator lobbies. Any
failure to comply with this rule shall result in immediate, permanent
withdrawal of the vendor from the Building.
29. Lessees must comply with requests made by the Lessor relative to
informing Lessee's employees of any items of importance affecting them as so
deemed by the Lessor.
30. Lessee shall comply with any non-smoking ordinance adopted by any
applicable governmental authority.
3l. Lessor reserves the right at any time to change or rescind any one or
more of these Rules and Regulations, or to make such other and further
reasonable Rules and Regulations as in Lessor's judgment may, from time to time
be necessary for the management, safety, care and cleanliness of the Premises
and Building, and for the preservation of good order therein, as well as for the
convenience of other occupants and tenants. Lessor shall not be responsible to
Lessee or to any other person for the non-observance of said Rules Regulations
by another
EXHIBIT F - PAGE
Lessee or other person. Lessee shall be deemed to have read these Rules and
Regulations and to have agreed to abide by them as a condition of its occupancy
of the Premises.
EXHIBIT F - PAGE
EXHIBIT G
-------
000 XXXX XXXXXXXX XXXXXXXXX
---------------------------
FORM OF LESSEE'S ESTOPPEL CERTIFICATE
-------------------------------------
The undersigned as Lessee under that certain Office Lease (the "Lease") made and
entered into as of 19__ and between BPG Pasadena L.L.C., a Delaware Limited
Liability Company, and the undersigned as Lessee for Premises on the floor(s)
of the Office Building located at 000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000 certifies as follows:
1 . Attached hereto as Exhibit A is a true and correct copy of the Lease
and all amendments and modifications thereto. The documents contained in Exhibit
A represent the entire agreement between the parties as to the Premises.
2. The undersigned has commenced occupancy of the Premises described in
the Lease currently occupies the Premises, and the Lease Term commenced on
November 1, 1996.
3. The Lease is in full force and effect and has not been modified,
supplemented or amended in any way.
4. Lessee has not transferred, assigned or sublet any portion of the
Premises nor entered into any license or concession agreements with respect
thereto, except as follows:
5. Lessee shall not modify the Lease document or prepay any amounts owing
under the Lease to Lessor in excess of thirty (30) days without the prior
written consent of Lessor's mortgagee.
6. Base Rent became payable on November 1, 1996.
7. The Lease Term expires on October 31, 2001.
8. All conditions of the Lease to be performed by Lessor necessary to the
enforceability of the Lease have been satisfied and Lessor is not in default
thereunder.
9 No rental has been paid in advance and no security has been deposited
with Lessor except as provided in the Lease.
10. As of the date hereof, there are no existing defenses or offsets that
the undersigned has, which preclude enforcement of the Lease by Lessor.
11. All monthly installments of Base Rent, all Additional Rent and all
monthly installments of estimated Additional Rent have been paid when due
through. The current monthly installment of Base Rent is $___________________.
12. The undersigned acknowledges that this Estoppel Certificate may be
delivered to Lessor's prospective mortgagee, or a prospective purchaser, and
acknowledges that it recognizes that if the same is done, said mortgagee,
prospective mortgagee, or prospective purchaser will be relying upon the
statements contained herein in making the loan or acquiring the property of
which the Premises are a part, and in accepting an assignment of the Lease as
collateral security, and that receipt by it of this certificate is a condition
of making of the loan or acquisition of such property.
EXHIBIT G - PAGE
13. If Lessee is a corporation or partnership each individual executing
this Estoppel Certificate on behalf of Lessee hereby represents and warrants
that Lessee is a duly formed and existing entity qualified to do business in
California and that Lessee has full right and authority to execute and deliver
this Estoppel Certificate and that each person signing on behalf of Lessee is
authorized to do so.
Executed at ________________ on the _________ day of _____________, 19____.
" Lessee":
CitySearch, Inc.,
a Delaware Corporation________________________
By:___________________________
Its:__________________________
BY:___________________________
ITS:__________________________
EXHIBIT G - PAGE
EXHIBIT H
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CLEANING SPECIFICATIONS
-----------------------
JANITORIAL SPECIFICATIONS
GENERAL SERVICES
Daily Services
Clean Entry Glass Doors.
Sweep with Chemically-Treated Dust Mop or Vacuum all Floors.
Spot Clean Composition Floors and Carpets
Dust Desk, Chairs and all other Office Furniture.
Clean all Ash Trays and Sand Urns.
Properly Position Furniture in Offices.
Empty all Waste Baskets and Carry Trash to Pick Up Area.
Spot Clean Door, Door Frames and Counters.
Spot Clean Partition and Door Glass.
Spot Clean around Wall Switches.
Clean and Polish Drinking Fountains.
Clean Elevator and Elevator Tracks.
Leave on Designated Lights.
Police Stairway Entries.
Weekly Services
Dust Ledges and Window Xxxxx.
Perform Los Dusting.
Dust the Baseboards.
Sweep Vacuum Stairways Dust Rails.
Remove Fingerprints form Woodwork, Walls and Partitions.
Monthly Services
Perform High Dusting, i.e.. Door Sashes and Tops of Partitions.
RESTROOM SERVICES
Daily Services
Empty and Wipe Out all Waste Paper receptacles.
Empty Sanitary Napkin Containers and Replace Insert.
Polish all Metal and Mirrors.
Clean and Polish all Dispensers.
Clean and Disinfect Wash Basins, Toilet Bowls and Urinals.
Disinfect Underside and Tops of Toilet Seats.
Spot Clean Tile Walls and Toilet Partitions.
Spot Clean Walls Around Wash Basins.
Clean Floors with a Germicidal Solution.
Refill Soap, Towel, Tissue and Seat Cover Dispensers.
Weekly Services
Wash Down Ceramic Tile Walls and Toilet Compartment Partitions.
Perform High Dusting.
Monthly Services
Brush Down Vents.
Machine Scrub Floors.
EXHIBIT H - PAGE
