1
EXHIBIT 10.15
STANDARD OFFICE LEASE
FOR
CALABASAS COMMERCE CENTER - BUILDING NO. 3
BY AND BETWEEN
ARDEN REALTY LIMITED PARTNERSHIP,
A MARYLAND LIMITED PARTNERSHIP,
AS LANDLORD,
AND
ON'VILLAGE COMMUNICATIONS, INC.
A CALIFORNIA CORPORATION,
AS TENANT
SUITE 100
2
TABLE OF CONTENTS
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PAGES
ARTICLE 1 BASIC LEASE PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2 TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 3 RENTAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(a) Basic Rental . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(b) Increase in Direct Cost . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(c) Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(d) Determination of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 4 SECURITY DEPOSIT/LETTER OF CREDIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 5 HOLDING OVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 6 PERSONAL PROPERTY TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 7 USE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 8 CONDITION OF PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 9 REPAIRS AND ALTERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 10 LIENS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE 11 PROJECT SERVICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE 12 RIGHTS OF LANDLORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 13 INDEMNITY; EXEMPTION OF LANDLORD FROM LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . 11
(a) Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(b) Exemption of Landlord from Liability . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 14 INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(a) Tenant's Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(b) Form of Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(c) Landlord's Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(d) Waiver of Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(e) Compliance with Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE 15 ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 16 DAMAGE OR DESTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 17 SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 18 EMINENT DOMAIN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 19 DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 20 REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 21 TRANSFER OF LANDLORD'S INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE 22 BROKER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 23 PARKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
-i-
Initials: _____
_____
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ARTICLE 24 WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 25 ESTOPPEL CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 26 LIABILITY OF LANDLORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 27 INABILITY TO PERFORM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 28 HAZARDOUS WASTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 29 SURRENDER OF PREMISES; REMOVAL OF PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 30 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(a) Severability; Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(b) Attorneys' Fees; Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(c) Time of Essence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(d) Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(e) Reserved Area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(f) No Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(g) Use of Project Name; Improvements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(h) Rules and Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(i) Quiet Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(j) Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(k) Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(l) Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(m) Persistent Delinquencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(n) Right of Landlord to Perform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(o) Access, Changes in Project, Facilities, Name . . . . . . . . . . . . . . . . . . . . . . . 25
(p) Corporate Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(q) Identification of Tenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(r) Exhibits and Addendum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE 31 OPTION TO RENEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(a) Option Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(b) Option Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(c) Exercise of Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(d) Determination of Market Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE 32 SIGNAGE/DIRECTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Addendum [ ] Yes X No
Exhibit "A" Premises
Exhibit "B" Rules and Regulations
Exhibit "C" Notice of Lease Term Dates and Tenant's Proportionate Share
Exhibit "D" Tenant Work Letter
Exhibit "E" Letter of Credit
Exhibit "F" Nondisturbance and Attornment Agreement (City of Calabasas)
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Initials: _____
_____
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INDEX OF DEFINED TERMS
----------------------
DEFINED TERMS PAGE
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Additional Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Applicant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exhibit E
Approved Working Drawings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exhibit D
Architect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exhibit D
Base Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Basic Rental . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exhibit E
Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commencement Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Contractor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exhibit D
Direct Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exhibit D
Estimate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Estimate Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Estimated Excess . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Excess . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Expiration Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
First Month's Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Force Majeure Delays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exhibit D
Hazardous Material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Interest Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Landlord . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Lease Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Letter of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Letter of Credit Expiration Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Market Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Operating Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Option Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Option Rent Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Option Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Original Tenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Outside Agreement Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Outside Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exhibit D
Outside Date Termination Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exhibit D
Over-Allowance Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exhibit D
Parking Passes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Partnership Tenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Permitted Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exhibit D
Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Project . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Representative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Review Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Security Deposit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Square Footage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Stated Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Tax Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Tenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Tenant's Acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Tenant's Signage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Tenant Delays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exhibit D
Tenant Improvements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exhibit D
Tenant's Proportionate Share . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Transfer Premium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Transferee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Working Drawings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exhibit D
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Initials: _____
_____
5
STANDARD OFFICE LEASE
This Standard Office Lease ("LEASE") is made and entered into as of
this 7th day of April, 1997, by and between ARDEN REALTY LIMITED PARTNERSHIP, a
Maryland limited partnership ("LANDLORD"), and ON'VILLAGE COMMUNICATIONS, INC.,
a California corporation ("TENANT").
Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the premises described as Suite No. 100, as designated on the plan
attached hereto and incorporated herein as Exhibit "A" ("PREMISES"), of the
project ("PROJECT") now known as Calabasas Commerce Center whose address is
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (Building No. 3) for the Term and upon
the terms and conditions hereinafter set forth, and Landlord and Tenant hereby
agree as follows:
ARTICLE 1
BASIC LEASE PROVISIONS
A. TERM: Five (5) years.
COMMENCEMENT DATE: The earlier of (i) the date Tenant first commences to
conduct business in the Premises, or (ii) the date of
Substantial Completion of Tenant Improvements in the
Premises. Upon Tenant's occupancy of the Premises,
Landlord and Tenant agree to execute and deliver a
Commencement Letter in a form substantially similar to
that attached hereto as Exhibit "C". The anticipated
Commencement Date is June 1, 1997.
EXPIRATION DATE: The last day of the month which is sixty (60) months
after the month in which the Commencement Date falls,
unless extended or earlier terminated pursuant to this
Lease.
B. SQUARE FOOTAGE: Approximately 6,316 rentable square feet.
C. BASIC RENTAL:
Annual Monthly Monthly Basic Rental
Lease Year Basic Rental Basic Rental Per Rentable Square Foot
---------- ------------ ------------ ------------------------
1 $106,108.80* $ 8,842.40* $1.75*
2-5 $132,636.00 $11,053.00 $1.75
*Based on 5,052.8 rentable square feet, however, Landlord and Tenant
acknowledge that Tenant shall be entitled to utilize the entire
Premises throughout the Lease Term.
D. BASE YEAR: 1997
E. TENANT'S PROPORTIONATE SHARE: 34.38%
F. SECURITY DEPOSIT / LETTER OF CREDIT: Upon Tenant's execution of this Lease, Tenant shall
deliver to Landlord a Letter of Credit in favor of
Landlord in the amount of $78,000.00 as security for
Tenant's Lease obligations, pursuant to Article 4 hereof.
6
G. PERMITTED USE: General office use
H. BROKERS: ▇▇▇▇▇ & ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Inc.
I. PARKING PASSES: Tenant shall have the use of three point seven (3.7)
unreserved parking passes for each 1,000 rentable square
feet contained in the Premises, which equals twenty-three
(23) passes, at the rate provided in Article 23 hereof.
J. FIRST MONTH'S RENT: The first full month's rent of $8,842.40 shall be due and
payable by Tenant to Landlord upon Tenant's execution of
this Lease.
ARTICLE 2
TERM
The Term of this Lease shall commence on the Commencement Date as set
forth in Article 1.A. of the Basic Lease Provisions and shall end on the
Expiration Date set forth in Article 1.A. of the Basic Lease Provisions. For
purposes of this Lease, the term "LEASE YEAR" shall mean each consecutive
twelve (12) month period during the Lease Term, with the first Lease Year
commencing on the Commencement Date; however, (a) if the Commencement Date
falls on a day other than the first day of a calendar month, the first Lease
Year shall end on the last day of the eleventh (11th) month after the
Commencement Date and the second (2nd) and each succeeding Lease Year shall
commence on the first day of the next calendar month, and (b) the last Lease
Year shall end on the Expiration Date. If Landlord is unable to deliver
possession of the Premises to Tenant on or before the anticipated Commencement
Date, Landlord shall not be subject to any liability for its failure to do so,
and such failure shall not affect the validity of this Lease nor the
obligations of Tenant hereunder.
ARTICLE 3
RENTAL
(a) Basic Rental. Tenant agrees to pay to Landlord during the
Term hereof, at Landlord's office or to such other person or at such other
place as directed from time to time by written notice to Tenant from Landlord,
the initial monthly and annual sums as set forth in Article 1.C of the Basic
Lease Provisions, payable in advance on the first day of each calendar month,
without demand, setoff or deduction, and in the event this Lease commences or
the date of expiration of this Lease occurs other than on the first day or last
day of a calendar month, the rent for such month shall be prorated.
Notwithstanding the foregoing, the first full month's rent shall be paid to
Landlord in accordance with Article 1.J. of the Basic Lease Provisions.
(b) Increase in Direct Costs. The term "BASE YEAR" means the
calendar year set forth in Article 1.D. of the Basic Lease Provisions. If, in
any calendar year during the Term of this Lease, the "Direct Costs" (as
hereinafter defined) paid or incurred by Landlord shall be higher than the
Direct Costs for the Base Year, Tenant shall pay an additional sum for such and
each subsequent calendar year equal to the product of the amount set forth in
Article 1.E. of the Basic Lease Provisions multiplied by such increased amount
of "Direct Costs." In the event either the Premises and/or the Project is
expanded or reduced, then Tenant's Proportionate Share shall be appropriately
adjusted, and as to the calendar year in which such change occurs, Tenant's
Proportionate Share for such year shall be determined on the basis of the
number of days during that particular calendar year that such Tenant's
Proportionate Share was in effect. In the event this Lease shall terminate on
any date other than the last day of a calendar year, the additional sum payable
hereunder by Tenant during the calendar year in which this Lease terminates
shall be prorated on the basis of the relationship which the number of days
which have elapsed from the commencement of said calendar year to and including
said date on which this Lease terminates bears to three hundred sixty (360).
Any and all amounts due and payable by Tenant
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pursuant to Article 3(b),(c) and (d) hereof shall be deemed "ADDITIONAL RENT"
and Landlord shall be entitled to exercise the same rights and remedies upon
default in these payments as Landlord is entitled to exercise with respect to
defaults in monthly Basic Rental payments.
(c) Definitions. As used herein the term "DIRECT COSTS" shall
mean the sum of the following:
(i) "TAX COSTS", which shall mean any and all real estate
taxes and other similar charges on real property or improvements, assessments,
water and sewer charges, and all other charges assessed, reassessed or levied
upon the Project and appurtenances thereto and the parking or other facilities
thereof, or the real property thereunder (collectively the "REAL PROPERTY") or
attributable thereto or on the rents, issues, profits or income received or
derived therefrom which are assessed, reassessed or levied by the United
States, the State of California or any local government authority or agency or
any political subdivision thereof, and shall include Landlord's reasonable
legal fees, costs and disbursements incurred in connection with proceedings for
reduction of Tax Costs or any part thereof; provided, however, if at any time
after the date of this Lease the methods of taxation now prevailing shall be
altered so that in lieu of or as a supplement to or a substitute for the whole
or any part of any Tax Costs, there shall be assessed, reassessed or levied (a)
a tax, assessment, reassessment, levy, imposition or charge wholly or partially
as a net income, capital or franchise levy or otherwise on the rents, issues,
profits or income derived therefrom, or (b) a tax, assessment, reassessment,
levy (including but not limited to any municipal, state or federal levy),
imposition or charge measured by or based in whole or in part upon the Real
Property and imposed upon Landlord, or (c) a license fee measured by the rent
payable under this Lease, then all such taxes, assessments, reassessments or
levies or the part thereof so measured or based, shall be deemed to be included
in the term "Direct Costs." In no event shall Tax Costs included in Direct
Costs for any year subsequent to the Base Year be less than the amount of Tax
Costs included in Direct Costs for the Base Year. In addition, when
calculating Tax Costs for the Base Year, special assessments shall only be
deemed included in Tax Costs for the Base Year to the extent that such special
assessments are included in Tax Costs for the applicable subsequent calendar
year during the Term.
(ii) "OPERATING COSTS", which shall mean all costs and
expenses incurred by Landlord in connection with the maintenance, operation,
replacement, ownership and repair of the Project, the equipment, the
intrabuilding network cable, adjacent walks, malls and landscaped and common
areas and the parking structure, areas and facilities of the Project,
including, but not limited to, salaries, wages, medical, surgical and general
welfare benefits and pension payments, payroll taxes, fringe benefits,
employment taxes, workers' compensation, uniforms and dry cleaning thereof for
all persons who perform duties connected with the operation, maintenance and
repair of the Project, its equipment, the intrabuilding network cable and the
adjacent walks and landscaped areas, including janitorial, gardening, security,
parking, operating engineer, elevator, painting, plumbing, electrical,
carpentry, heating, ventilation, air conditioning, window washing, hired
services, a reasonable allowance for depreciation of the cost of acquiring or
the rental expense of personal property used in the maintenance, operation and
repair of the Project, accountant's fees incurred in the preparation of rent
adjustment statements, legal fees, real estate tax consulting fees, personal
property taxes on property used in the maintenance and operation of the
Project, capital expenditures incurred to effect economies of operation and
capital expenditures required by government regulations, laws, or ordinances
including, but not limited to the American with Disabilities Act; the cost of
all charges for electricity, gas, water and other utilities furnished to the
Project, including any taxes thereon; the cost of all charges for fire and
extended coverage, liability and all other insurance for the Project carried by
Landlord; the cost of all building and cleaning supplies and materials; the
cost of all charges for cleaning, maintenance and service contracts and other
services with independent contractors and administration fees; a property
management fee (which fee may be imputed if Landlord has internalized
management or otherwise acts as its own property manager) and license, permit
and inspection fees relating to the Project. In the event, during any calendar
year, the Project is less than ninety-five percent (95%) occupied at all times,
Operating Costs shall be adjusted to reflect the Operating Costs of the Project
as though ninety-five percent (95%) were occupied at all times, and the
increase or decrease in the sums owed hereunder shall be based upon such
Operating Costs as so adjusted. Notwithstanding anything to the contrary set
forth in this
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Article 3, when calculating Operating Costs for the Base Year, Operating Costs
shall exclude (a) market-wide labor-rate increases due to extraordinary
circumstances including, but not limited to, boycotts and strikes, (b) utility
rate increases due to extraordinary circumstances including, but not limited
to, conservation surcharges, boycotts, embargoes or other shortages, and (c)
amortization of any capital items including, but not limited to, capital
improvements, capital repairs and capital replacements (including such
amortized costs where the actual improvement, repair or replacement was made in
prior years).
Notwithstanding anything above to the contrary, Operating
Costs shall not include (1) the cost of providing any service directly to and
paid directly by any tenant (outside of such tenant's Direct Cost payments);
(2) the cost of any items for which Landlord is reimbursed by insurance
proceeds, condemnation awards, a tenant of the Project, or otherwise to the
extent so reimbursed; (3) any real estate brokerage commissions or other costs
incurred in procuring tenants, or any fee in lieu of commission; (4)
depreciation, amortization of principal and interest on mortgages or ground
lease payments (if any); (5) costs of items considered capital repairs,
replacements, improvements and equipment under generally accepted accounting
principles consistently applied except as expressly included in Operating Costs
pursuant to the definition above; (6) costs incurred by Landlord due to the
violation by Landlord or any tenant of the terms and conditions of any lease of
space in the Project or any law, code, regulation, ordinance or the like; (7)
Landlord's general corporate overhead and general and administrative expenses;
(8) any compensation paid to clerks, attendants or other persons in commercial
concessions operated by Landlord (other than in the parking facility for the
Project); (9) costs incurred in connection with upgrading the Project to comply
with disability, life, seismic, fire and safety codes, ordinances, statutes, or
other laws in effect prior to the Commencement Date, including, without
limitation, the ADA, including penalties or damages incurred due to such
non-compliance; and (10) costs incurred to (i) comply with laws relating to the
removal of any "Hazardous Material," as that term is defined in Article 28 of
this Lease, which was in existence on the Project prior to the Commencement
Date, and was of such a nature that a federal, state or municipal governmental
authority, if it had then had knowledge of the presence of such Hazardous
Material, in the state, and under the conditions that it then existed on the
Project, would have then required the removal of such Hazardous Material or
other remedial or containment action with respect thereto, and (ii) to remove,
remedy, contain, or treat any Hazardous Material, which Hazardous Material is
brought onto the Project after the date hereof by Landlord or any other tenant
of the Project and is of such a nature, at that time, that a federal, state or
municipal governmental authority, if it had then had knowledge of the presence
of such Hazardous Material, in the state, and under the conditions, that it
then exists on the Project, would have then required the removal of such
Hazardous Material or other remedial or containment action with respect
thereto.
(d) Determination of Payment.
(i) If for any calendar year ending or commencing within
the Term, Tenant's Proportionate Share of Direct Costs for such calendar year
exceeds Tenant's Proportionate Share of Direct Costs for the Base Year, then
Tenant shall pay to Landlord, in the manner set forth in Sections 3(d)(ii) and
(iii), below, and as additional rent, an amount equal to the excess (the
"EXCESS").
(ii) Landlord shall give Tenant a yearly expense estimate
statement (the "ESTIMATE STATEMENT") which shall set forth Landlord's
reasonable estimate (the "ESTIMATE") of what the total amount of Direct Costs
for the then-current calendar year shall be and the estimated Excess (the
"ESTIMATED EXCESS") as calculated by comparing Tenant's Proportionate Share of
Direct Costs for such calendar year, which shall be based upon the Estimate, to
Tenant's Proportionate Share of Direct Costs for the Base Year. The failure of
Landlord to timely furnish the Estimate Statement for any calendar year shall
not preclude Landlord from enforcing its rights to collect any Estimated Excess
under this Article 3. If pursuant to the Estimate Statement an Estimated
Excess is calculated for the then-current calendar year, Tenant shall pay, with
its next installment of Monthly Basic Rental due, a fraction of the Estimated
Excess for the then-current calendar year (reduced by any amounts paid pursuant
to the last sentence of this Section 3(d)(ii)). Such fraction shall have as
its numerator the number of months which have elapsed in such current calendar
year to the month of such payment, both months inclusive, and shall have twelve
(12) as its denominator. Until a new Estimate Statement is furnished, Tenant
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shall pay monthly, with the Monthly Basic Rental installments, an amount equal
to one-twelfth (1/12th) of the total Estimated Excess set forth in the previous
Estimate Statement delivered by Landlord to Tenant.
(iii) In addition, Landlord shall endeavor to give to
Tenant on or before the first day of April following the end of each calendar
year, a statement (the "STATEMENT") which shall state the Direct Costs incurred
or accrued for such preceding calendar year, and which shall indicate the
amount, if any, of the Excess. Upon receipt of the Statement for each calendar
year during the Term, if amounts paid by Tenant as Estimated Excess are less
than the actual Excess as specified on the Statement, Tenant shall pay, with
its next installment of Monthly Basic Rental due, the full amount of the Excess
for such calendar year, less the amounts, if any, paid during such calendar
year as Estimated Excess. If, however, the Statement indicates that amounts
paid by Tenant as Estimated Excess are greater than the actual Excess as
specified on the Statement, such overpayment shall be credited against Tenant's
next installments of Estimated Excess. The failure of Landlord to timely
furnish the Statement for any calendar year shall not prejudice Landlord from
enforcing its rights under this Article 3. Even though the Term has expired
and Tenant has vacated the Premises, when the final determination is made of
Tenant's Proportionate Share of the Direct Costs for the calendar year in which
this Lease terminates, if an Excess is present, Tenant shall immediately pay to
Landlord an amount as calculated pursuant to the provisions of this Article
3(d). The provisions of this Section 3(d)(iii) shall survive the expiration or
earlier termination of the Term.
(iv) Within one hundred twenty (120) days after receipt of
a Statement by Tenant ("REVIEW PERIOD"), if Tenant disputes the amount set
forth in the Statement, Tenant's employees or an independent certified public
accountant (which accountant is a member of a reputable accounting firm not
compensated on a contingency basis), designated by Tenant, may, after
reasonable notice to Landlord and at reasonable times, inspect Landlord's
records at Landlord's offices, provided that Tenant is not then in default
after expiration of all applicable cure periods and provided further that
Tenant and such accountant or representative shall, and each of them shall use
their commercially reasonable efforts to cause their respective agents and
employees to, maintain all information contained in Landlord's records in
strict confidence. Notwithstanding the foregoing, Tenant shall only have the
right to review Landlord's records one (1) time during any twelve (12) month
period. Tenant's failure to dispute the amounts set forth in any Statement
within the Review Period shall be deemed to be Tenant's approval of such
Statement and Tenant, thereafter, waives the right or ability to dispute the
amounts set forth in such Statement. If after such inspection, but within
thirty (30) days after the Review Period, Tenant notifies Landlord in writing
that Tenant still disputes such amounts, a certification as to the proper
amount shall be made, at Tenant's expense, by an independent certified public
accountant selected by Landlord and who is a member of a nationally or
regionally recognized accounting firm. Landlord shall cooperate in good faith
with Tenant and the accountant to show Tenant and the accountant the
information upon which the certification is to be based. However, if such
certification by the accountant proves that the Direct Costs set forth in the
Statement were overstated by more than five percent (5%), then the cost of the
accountant and the cost of such certification shall be paid for by Landlord.
Promptly following the parties receipt of such certification, the parties shall
make such appropriate payments or reimbursements, as the case may be, to each
other, as are determined to be owing pursuant to such certification.
(v) If the Project is a part of a multi-building
development, those Direct Costs attributable to such development as a whole
(and not attributable solely to any individual building therein) shall be
allocated by Landlord to the Project and to the other buildings within such
development on an equitable basis.
ARTICLE 4
SECURITY DEPOSIT/LETTER OF CREDIT
Concurrently with Tenant's execution of this Lease, Tenant shall
deliver to Landlord an unconditional, irrevocable and renewable letter of
credit ("LETTER OF CREDIT") in favor of Landlord in a form substantially
similar to Exhibit "E" attached hereto, and issued by a bank located in Los
Angeles County, California, reasonably satisfactory to Landlord, in the
principal
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amount ("STATED AMOUNT") specified below, as security for the faithful
performance and observance by Tenant of the terms, provisions and conditions of
this Lease. Tenant shall pay all expenses, points and/or fees incurred by
Tenant in obtaining the Letter of Credit. The Stated Amount shall be Seventy
Eight Thousand Dollars ($78,000.00) and the Letter of Credit shall remain in
effect until the date ("LETTER OF CREDIT EXPIRATION DATE") which is the last
day of the month that is twenty-four (24) months after the month in which the
Lease Commencement Date falls. The Letter of Credit shall state that an
authorized officer or other representative of Landlord may make demand on
Landlord's behalf for the principal amount of the Letter of Credit, or any
portion thereof, and that the issuing bank must immediately honor such demand,
without qualification or satisfaction of any conditions, except the proper
identification of the party making such demand. In addition, the Letter of
Credit shall indicate that it is transferable in its entirety by Landlord as
beneficiary and that upon receiving written notice of transfer, and upon
presentation to the issuer of the original Letter of Credit, the issuer will
reissue the Letter of Credit naming such transferee as the beneficiary. If the
term of the Letter of Credit held by Landlord will expire prior to the Letter
of Credit Expiration Date and it is not extended, or a new Letter of Credit for
an extended period of time is not substituted, within thirty (30) days prior to
the expiration of the Letter of Credit, then Landlord shall be entitled to make
demand for the principal amount of said Letter of Credit and, thereafter, to
hold such funds in accordance with this Article 4. The Letter of Credit shall
be held by Landlord as security for the faithful performance by Tenant of all
of the terms, covenants and conditions of this Lease. If Tenant commits a
default with respect to any provision of this Lease or if the term of the
Letter of Credit held by Landlord expires prior to the Letter of Credit
Expiration Date, and the term of the Letter of Credit is not extended at least
thirty (30) days prior to the expiration of the Letter of Credit, Landlord may
(but shall not be required to) draw upon the entire principal amount of the
Letter of Credit, and Landlord may then use, apply or retain all or any part of
the proceeds for the payment of any sum which is in default, or for the payment
of any other amount which Landlord may spend or become obligated to spend by
reason of Tenant's default or to compensate Landlord for any loss or damage
which Landlord may suffer by reason of Tenant's default. If any portion of the
Letter of Credit proceeds are so used or applied, Tenant shall, within ten (10)
days after demand therefor, post an additional Letter of Credit in an amount to
cause the aggregate amount of the unused proceeds and such new Letter of Credit
to equal the principal amount required in this Article 4 above. Landlord shall
not be required to keep any proceeds from the Letter of Credit separate from
its general funds. Should Landlord sell its interest in the Premises during
the Lease Term and if Landlord deposits with the purchaser thereof the Letter
of Credit or any proceeds of the Letter of Credit, thereupon Landlord shall be
discharged from any further liability with respect to the Letter of Credit and
said proceeds. Notwithstanding anything to the contrary contained herein, if at
any time before the Letter of Credit Expiration Date, Tenant completes an
initial public offering of Tenant's securities, then Landlord shall, promptly
after Landlord's receipt of reasonable documentation that Tenant has completed
such initial public offering and a certification from Tenant's chief financial
officer that Tenant has completed such initial public offering and provided
that an uncured event of default does not then exist, return the Letter of
Credit (or any remaining proceeds thereof) to Tenant, and deliver to the
issuing bank such documents as may be required to terminate the issuing bank's
liability under the Letter of Credit.
ARTICLE 5
HOLDING OVER
Should Tenant, without Landlord's written consent, hold over after
termination of this Lease, Tenant shall become a tenant from month to month,
only upon each and all of the terms herein provided as may be applicable to a
month to month tenancy and any such holding over shall not constitute an
extension of this Lease. During such holding over, Tenant shall pay in
advance, monthly, rent at one hundred fifty percent (150%) of the rate in
effect for the last month of the Term of this Lease, in addition to, and not in
lieu of, all other payments required to be made by Tenant hereunder including
but not limited to Tenant's Proportionate Share of any increase in Direct
Costs. Nothing contained in this Article 5 shall be construed as consent by
Landlord to any holding over of the Premises by Tenant, and Landlord expressly
reserves the right to require Tenant to surrender possession of the Premises to
Landlord as provided in this
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Lease upon the expiration or earlier termination of the Term. If Tenant fails
to surrender the Premises upon the expiration or termination of this Lease,
Tenant agrees to indemnify, defend and hold Landlord harmless from all costs,
loss, expense or liability, including without limitation, claims made by any
succeeding tenant and real estate brokers claims and attorney's fees.
ARTICLE 6
PERSONAL PROPERTY TAXES
Tenant shall pay, prior to delinquency, all taxes assessed against or
levied upon trade fixtures, furnishings, equipment and all other personal
property of Tenant located in the Premises. In the event any or all of
Tenant's trade fixtures, furnishings, equipment and other personal property
shall be assessed and taxed with property of Landlord, or if the cost or value
of any leasehold improvements in the Premises exceeds the cost or value of a
Project-standard buildout as determined by Landlord and, as a result, real
property taxes for the Project are increased, Tenant shall pay to Landlord its
share of such taxes within ten (10) days after delivery to Tenant by Landlord
of a statement in writing setting forth the amount of such taxes applicable to
Tenant's property or above-standard improvements. Tenant shall assume and pay
to Landlord at the time of paying Basic Rental any excise, sales, use, rent,
occupancy, garage, parking, gross receipts or other taxes (other than net
income taxes) which may be imposed on or on account of letting of the Premises
or the payment of Basic Rental or any other sums due or payable hereunder, and
which Landlord may be required to pay or collect under any law now in effect or
hereafter enacted. Tenant shall pay directly to the party or entity entitled
thereto all business license fees, gross receipts taxes and similar taxes and
impositions which may from time to time be assessed against or levied upon
Tenant, as and when the same become due and before delinquency.
Notwithstanding anything to the contrary contained herein, any sums payable by
Tenant under this Article 6 shall not be included in the computation of "Tax
Costs."
ARTICLE 7
USE
Tenant shall use and occupy the Premises only for the use set forth in
Article 1.G. of the Basic Lease Provisions and shall not use or occupy the
premises or permit the same to be used or occupied for any other purpose
without the prior written consent of Landlord, which consent may be given or
withheld in Landlord's sole and absolute discretion, and Tenant agrees that it
will use the Premises in such a manner so as not to interfere with or infringe
the rights of other tenants in the Project. Tenant shall, at its sole cost and
expense, promptly comply with all laws, statutes, ordinances and governmental
regulations or requirements now in force or which may hereafter be in force
relating to or affecting (i) the condition, use or occupancy of the Premises or
the Project excluding structural changes to the Project not related to Tenant's
particular use of the Premises and excluding the Tenant Improvements to be
constructed by Landlord pursuant to the Tenant Work Letter, and (ii)
improvements installed or constructed in the Premises by or for the benefit of
Tenant. Tenant shall not do or permit to be done anything which would
invalidate or increase the cost of any fire and extended coverage insurance
policy covering the Project and/or the property located therein and Tenant
shall comply with all rules, orders, regulations and requirements of any
organization which sets out standards, requirements or recommendations commonly
referred to by major fire insurance underwriters. Tenant shall promptly upon
demand reimburse Landlord for any additional premium charges for any such
insurance policy assessed or increased by reason of Tenant's failure to comply
with the provisions of this Article.
ARTICLE 8
CONDITION OF PREMISES
The Premises shall be initially improved as provided in, and subject
to, the Tenant Work Letter attached hereto as Exhibit "D" and made a part
hereof. The taking of possession of the Premises by Tenant shall conclusively
establish that the Premises and the Project were at such
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time in satisfactory condition. Tenant hereby waives Sections 1941 and 1942 of
the Civil Code of California or any successor provision of law.
Landlord reserves the right from time to time, but subject to payment
by and/or reimbursement from Tenant as otherwise provided herein: (i) to
install, use, maintain, repair, replace and relocate for service to the
Premises and/or other parts of the Project pipes, ducts, conduits, wires,
appurtenant fixtures, and mechanical systems, wherever located in the Premises
or the Project, (ii) to alter, close or relocate any facility in the Premises
or the Common Areas or otherwise conduct any of the above activities for the
purpose of complying with a general plan for fire/life safety for the Project
or otherwise and (iii) to comply with any federal, state or local law, rule or
order with respect thereto or the regulation thereof not currently in effect.
Landlord shall use commercially reasonable efforts to perform any such work
with the least inconvenience to Tenant as possible, but in no event shall
Tenant be permitted to withhold or reduce Basic Rental or other charges due
hereunder as a result of same or otherwise make claim against Landlord for
interruption or interference with Tenant's business and/or operations.
ARTICLE 9
REPAIRS AND ALTERATIONS
Landlord shall maintain the structural portions of the Project
including the foundation, floor/ceiling slabs, roof, curtain wall, exterior
glass, columns, beams, shafts, stairs, stairwells, elevator cabs and common
areas and shall also maintain and repair the basic mechanical, electrical,
lifesafety, plumbing, sprinkler systems and heating, ventilating and
air-conditioning systems (provided, however, that Landlord's obligation with
respect to any such systems shall be to repair and maintain those portions of
the systems located in the core of the Project or in other areas outside of the
Premises, but Tenant shall be responsible to repair and maintain any
distribution of such systems throughout the Premises). Except as expressly
provided as Landlord's obligation in this Article 9, Tenant shall keep the
Premises in good condition and repair. All damage or injury to the Premises or
the Project caused by the act or negligence of Tenant, its employees, agents or
visitors, guests, invitees or licensees or by the use of the Premises shall be
promptly repaired by Tenant, at its sole cost and expense, to the satisfaction
of Landlord; provided, however, that for damage to the Project as a result of
casualty, Landlord shall have the right (but not the obligation) to select the
contractor and oversee all such repairs. Landlord may make any repairs which
are not promptly made by Tenant after Tenant's receipt of written notice and
the reasonable opportunity of Tenant to make said repair within five (5)
business days from receipt of said written notice, and charge Tenant for the
cost thereof, which cost shall be paid by Tenant within ten (10) days from
invoice from Landlord. Tenant shall be responsible for the design and function
of all non-standard improvements of the Premises, whether or not installed by
Landlord at Tenant's request. Tenant waives all rights to make repairs at the
expense of Landlord, or to deduct the cost thereof from the rent. Tenant shall
make no alterations, changes or additions in or to the Premises without
Landlord's prior written consent, and then only by contractors or mechanics
approved by Landlord in writing and upon the approval by Landlord in writing of
fully detailed and dimensioned plans and specifications pertaining to the work
in question, to be prepared and submitted by Tenant at its sole cost and
expense. Notwithstanding anything to the contrary contained herein, Landlord
agrees that Tenant shall be permitted to, at Tenant's sole cost and expense and
subject to the provisions of this Article 9, install a security system for the
Premises, provided, however, that (i) Tenant shall obtain Landlord's prior
approval of any plans and specifications for such security system; (ii) Tenant
shall be responsible, at its sole cost and expense, for all repair and
maintenance of such security system; and (iii) such security system shall be
compatible with the Project's systems and equipment. Tenant shall at its sole
cost and expense obtain all necessary approvals and permits pertaining to any
work approved by Landlord. If Landlord, in approving any work, specifies a
commencement date therefor, Tenant shall not commence any work prior to such
date. Tenant hereby indemnifies and agrees to hold Landlord free and harmless
from all liens and claims of lien, and all other liability, claims and demands
arising out of any work done or material supplied to the Premises by or at the
request of Tenant. If permitted alterations, changes, or additions are made,
they shall be made at Tenant's sole cost and expense and shall be and become
the property of Landlord, except that Landlord may, by written notice to Tenant
given at least thirty (30) days
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prior to the end of the Term, require Tenant at Tenant's expense to remove all
partitions, counters, railings and the like installed by Tenant, and to repair
any damages to the Premises caused by such removal. Any and all costs
attributable to or related to the applicable building codes of the city in
which the Project is located (or any other authority having jurisdiction over
the Project) arising from Tenants plans, specifications, improvements,
alterations or otherwise shall be paid by Tenant at its sole cost and expense.
With regard to repairs, alterations or any other work arising from or related
to this Article 9, Landlord shall be entitled to receive an
administrative/supervision fee (which fee shall vary depending upon whether or
not Tenant orders the work directly from Landlord) sufficient to compensate
Landlord for all overhead, general conditions, fees and other costs and
expenses arising from Landlord's involvement with such work, but which fee
shall not in any event exceed five percent (5%) of the cost of such work. The
construction of initial improvements to the Premises shall be governed by the
terms of the Tenant Work Letter and not the terms of this Article 9.
ARTICLE 10
LIENS
Tenant shall keep the Premises and the Project free from any
mechanics' liens, vendors liens or any other liens arising out of any work
performed, materials furnished or obligations incurred by Tenant, and agrees to
defend, indemnify and hold harmless Landlord from and against any such lien or
claim or action thereon, together with costs of suit and reasonable attorneys'
fees incurred by Landlord in connection with any such claim or action. Before
commencing any work of alteration, addition or improvement to the Premises,
Tenant shall give Landlord at least ten (10) business days' written notice of
the proposed commencement of such work (to afford Landlord an opportunity to
post appropriate notices of non-responsibility). In the event that there shall
be recorded against the Premises or the Project or the property of which the
Premises is a part any claim or lien arising out of any such work performed,
materials furnished or obligations incurred by Tenant and such claim or lien
shall not be removed or discharged within ten (10) days of filing, Landlord
shall have the right but not the obligation to pay and discharge said lien
without regard to whether such lien shall be lawful or correct or to require
that Tenant deposit with Landlord in cash, lawful money of the United States,
one hundred fifty percent (150%) of the amount of such claim, which sum may be
retained by Landlord until such claim shall have been removed of record or
until judgment shall have been rendered on such claim and such judgment shall
have become final, at which time Landlord shall have the right to apply such
deposit in discharge of the judgment on said claim and any costs, including
attorneys' fees incurred by Landlord, and shall remit the balance thereof to
Tenant.
ARTICLE 11
PROJECT SERVICES
(a) Landlord agrees to furnish to the Premises, at a cost to be
included in Operating Costs, from 8:00 a.m. to 6:00 p.m. Mondays through
Fridays and 9:00 a.m. to 1:00 p.m. on Saturdays, excepting local and national
holidays, air conditioning and heat all in such reasonable quantities as in the
judgment of Landlord is reasonably necessary for the comfortable occupancy of
the Premises. In addition, Landlord shall provide electric current for normal
lighting and normal office machines, elevator service and water on the same
floor as the Premises for lavatory and drinking purposes in such reasonable
quantities as in the judgment of Landlord is reasonably necessary for general
office use. Janitorial and maintenance services shall be furnished five (5)
days per week, excepting local and national holidays. Tenant shall comply with
all rules and regulations which Landlord may reasonably establish for the
proper functioning and protection of the common area air conditioning, heating,
elevator, electrical intrabuilding network cable and plumbing systems.
Landlord shall not be liable for, and there shall be no rent abatement as a
result of, any stoppage, reduction or interruption of any such services caused
by governmental rules, regulations or ordinances, riot, strike, labor disputes,
breakdowns, accidents, necessary repairs or other cause. Except as
specifically provided in this Article 11, Tenant agrees to pay for all
utilities and other services utilized by Tenant and additional building
services furnished to Tenant not uniformly furnished to all tenants of the
Project at the rate generally charged by Landlord to tenants of the Project.
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(b) Tenant will not, without the prior written consent of
Landlord, use any apparatus or device in the Premises which will in any way
increase the amount of electricity or water usually furnished or supplied for
use of the Premises as general office space; nor connect any apparatus, machine
or device with water pipes or electric current (except through existing
electrical outlets in the Premises), for the purpose of using electric current
or water.
(c) If Tenant shall require electric current in excess of that
which Landlord is obligated to furnish under Article 11(b) above, Tenant shall
first obtain the written consent of Landlord, which Landlord may refuse in its
sole and absolute discretion, to the use thereof and Landlord may cause an
electric current meter or submeter to be installed in the Premises to measure
the amount of such excess electric current consumed by Tenant in the Premises.
The cost of any such meter and of installation, maintenance and repair thereof
shall be paid for by Tenant and Tenant agrees to pay to Landlord, promptly upon
demand therefor by Landlord, for all such excess electric current consumed by
any such use as shown by said meter at the rates charged for such service by
the city in which the Project is located or the local public utility, as the
case may be, furnishing the same, plus any additional expense incurred by
Landlord in keeping account of the electric current so consumed.
(d) If any lights, machines or equipment (including but not
limited to computers) are used by Tenant in the Premises which materially
affect the temperature otherwise maintained by the air conditioning system, or
generate substantially more heat in the Premises than would be generated by the
building standard lights and usual office equipment, Landlord shall have the
right to install any machinery and equipment which Landlord reasonably deems
necessary to restore temperature balance, including but not limited to
modifications to the standard air conditioning equipment, and the cost thereof,
including the cost of installation and any additional cost of operation and
maintenance occasioned thereby, shall be paid by Tenant to Landlord upon demand
by Landlord. Landlord shall not be liable under any circumstances for loss of
or injury to property, however occurring, through or in connection with or
incidental to failure to furnish any of the foregoing.
(e) If Tenant requires heating, ventilation and/or air
conditioning during times other than the times provided in Article 11(a) above,
Tenant shall give Landlord such advance notice as Landlord shall reasonably
require and shall pay Landlord's direct costs, as reasonably determined by
Landlord, for such after-hours use.
(f) Landlord may impose a reasonable charge for any utilities or
services (other than electric current and heating, ventilation and/or air
conditioning which shall be governed by Articles 11(c) and (e) above) utilized
by Tenant in excess of the amount or type that Landlord reasonably determines
is typical for general office use.
ARTICLE 12
RIGHTS OF LANDLORD
Landlord and its agents shall have the right, upon reasonable advance
notice (except in the case of emergency or regularly scheduled maintenance), to
enter the Premises at all reasonable times for the purpose of cleaning the
Premises, examining or inspecting the same, serving or posting and keeping
posted thereon notices as provided by law, or which Landlord deems necessary
for the protection of Landlord or the Property, showing the same to prospective
tenants or purchasers of the Project, in the case of an emergency, and for
making such alterations, repairs, improvements or additions to the Premises or
to the Project as Landlord may deem necessary or desirable. If Tenant shall
not be personally present to open and permit an entry into the Premises at any
time when such an entry by Landlord is necessary or permitted hereunder,
Landlord may enter by means of a master key or may enter forcibly, only in the
case of an emergency, without liability to Tenant and without affecting this
Lease.
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ARTICLE 13
INDEMNITY; EXEMPTION OF LANDLORD FROM LIABILITY
(a) Indemnity. Tenant shall indemnify, defend and hold Landlord
harmless from any and all claims arising from Tenant's use of the Premises or
the Project including Tenant's Signage rights set forth in Article 32 or from
the conduct of its business or from any activity, work or thing which may be
permitted or suffered by Tenant in or about the Premises or the Project and
shall further indemnify, defend and hold Landlord harmless from and against any
and all claims arising from any breach or default in the performance of any
obligation on Tenant's part to be performed under this Lease or arising from
any negligence of Tenant or any of its agents, contractors, employees or
invitees, patrons, customers or members in or about the Project and from any
and all costs, attorneys' fees, expenses and liabilities incurred in the
defense of any claim or any action or proceeding brought thereon, including
negotiations in connection therewith. Tenant hereby assumes all risk of damage
to property or injury to persons in or about the Premises from any cause, and
Tenant hereby waives all claims in respect thereof against Landlord, excepting
where the damage is caused solely by the gross negligence or willful misconduct
of Landlord.
(b) Exemption of Landlord from Liability. Landlord shall not be
liable for injury to Tenant's business, or loss of income therefrom, or for
damage that may be sustained by the person, goods, wares, merchandise or
property of Tenant, its employees, invitees, customers, agents, or contractors,
or any other person in, on or about the Premises directly or indirectly caused
by or resulting from fire, steam, electricity, gas, water, or rain which may
leak or flow from or into any part of the Premises, or from the breakage,
leakage, obstruction or other defects of the pipes, sprinklers, wires,
appliances, plumbing, air conditioning, light fixtures, or mechanical or
electrical systems or from intrabuilding network cable, whether such damage or
injury results from conditions arising upon the Premises or upon other portions
of the Project or from other sources or places and regardless of whether the
cause of such damage or injury or the means or repairing the same is
inaccessible to Tenant, except in connection with damage or injury resulting
from the gross negligence or willful misconduct of Landlord, or its authorized
agents. Landlord shall not be liable to Tenant for any damages arising from
any act or neglect of any other tenant of the building.
Tenant acknowledges that Landlord's election to provide mechanical
surveillance or to post security personnel in the Project is solely within
Landlord's discretion; Landlord shall have no liability in connection with the
decision whether or not to provide such services and Tenant hereby waives all
claims based thereon. Landlord shall not be liable for losses due to theft,
vandalism, or like causes. Tenant shall defend, indemnify, and hold Landlord
harmless from any such claims made by any employee, licensee, invitee,
contractor, agent or, other person whose presence in, on or about the Premises
or the Project is attendant to the business of Tenant.
ARTICLE 14
INSURANCE
(a) Tenant's Insurance. Tenant, shall at all times during the
Term of this Lease, and at its own cost and expense, procure and continue in
force the following insurance coverage: (i) Commercial General Liability
Insurance with a combined single limit for bodily injury and property damages
of not less than One Million Dollars ($1,000,000) per occurrence and Two
Million Dollars ($2,000,000) in the annual aggregate, including products
liability coverage if applicable, covering the insuring provisions of this
Lease and the performance of Tenant of the indemnity and exemption of Landlord
from liability agreements set forth in Article 13 hereof; (ii) a policy of
standard fire, extended coverage and special extended coverage insurance (all
risks), including a vandalism and malicious mischief endorsement, sprinkler
leakage coverage and earthquake sprinkler leakage where sprinklers are provided
in an amount equal to the full replacement value new without deduction for
depreciation of all (A) Tenant Improvements, alterations, fixtures and other
improvements in the Premises and (B) trade fixtures, furniture, equipment and
other personal property installed by or at the expense of Tenant; (iii)
Worker's Compensation coverage as required by law; and (iv) business
interruption, loss of income and
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extra expense insurance covering failure of Tenant's telecommunications
equipment and covering all other perils, failures or interruptions. Tenant
shall carry and maintain during the entire Lease Term (including any option
periods, if applicable), at Tenant's sole cost and expense, increased amounts
of the insurance required to be carried by Tenant pursuant to this Article 14
and such other reasonable types of insurance coverage and in such reasonable
amounts covering the Premises and Tenant's operations therein, as may be
reasonably required by Landlord. Notwithstanding anything to the contrary
contained herein, Tenant shall be entitled to self-insure the coverage
described in Section 14(a)(iv) above, in which case a deemed waiver of
subrogation shall apply so that Landlord shall be in the same position it would
have been in had Tenant actually purchased such insurance from a third party.
(b) Form of Policies. The aforementioned minimum limits of
policies and Tenant's procurement and maintenance thereof shall in no event
limit the liability of Tenant hereunder. The Commercial General Liability
Insurance policy shall name Landlord, Landlord's property manager, Landlord's
lender(s) and such other persons or firms as Landlord specifies from time to
time, as additional insureds' with an appropriate endorsement to the policy(s).
All such insurance policies carried by Tenant shall be with companies having a
rating of not less than A-VIII in Best's Insurance Guide. Tenant shall furnish
to Landlord, from the insurance companies, or cause the insurance companies to
furnish, certificates of coverage. No such policy shall be cancelable or
subject to reduction of coverage or other modification or cancellation except
after thirty (30) days prior written notice to Landlord by the insurer. All
such policies shall be endorsed to agree that Tenant's policy is primary and
that any insurance covered by Landlord is excess and not contributing with any
Tenant insurance requirement hereunder. Tenant shall, at least twenty (20)
days prior to the expiration of such policies, furnish Landlord with renewals
or binders. Tenant agrees that if Tenant does not take out and maintain such
insurance or furnish Landlord with renewals or binders, Landlord may (but shall
not be required to) procure said insurance on Tenant's behalf and charge Tenant
the cost thereof, which amount shall be payable by Tenant upon demand with
interest from the date such sums are extended. Tenant shall have the right to
provide such insurance coverage pursuant to blanket policies obtained by
Tenant, provided such blanket policies expressly afford coverage to the
Premises and to Tenant as required by this Lease.
(c) Landlord's Insurance. Landlord shall, as a cost to be
included in Operating Costs, procure and maintain at all times during the Term
of this Lease, a policy or policies of insurance covering loss or damage to the
Project in the amount of the full replacement costs without deduction for
depreciation thereof (exclusive of Tenant's trade fixtures, inventory, personal
property and equipment), providing protection against all perils included
within the classification of fire and extended coverage, vandalism coverage and
malicious mischief, sprinkler leakage, water damage, and special extended
coverage on building. Additionally, Landlord may (but shall not be required
to) carry: (i) Bodily Injury and Property Damage Liability Insurance and/or
Excess Liability Coverage Insurance; and (ii) Earthquake and/or Flood Damage
Insurance; and (iii) Rental Income Insurance at its election or if required by
its lender from time to time during the Term hereof, in such amounts and with
such limits as Landlord or its lender may deem appropriate. The costs of such
insurance shall be included in Operating Costs.
(d) Waiver of Subrogation. Landlord and Tenant each agree to have
their respective insurers issuing the insurance described in Sections
14(a)(ii), 14(a)(iv) and the first sentence of Section 14(c) waive any rights
of subrogation that such companies may have against the other party. Tenant
hereby waives any right that Tenant may have against Landlord and Landlord
hereby waives any right that Landlord may have against Tenant as a result of
any loss or damage to the extent such loss or damage is insurable under such
policies.
(e) Compliance with Law. Tenant agrees that it will not, at any
time, during the Term of this Lease, carry any stock of goods or do anything in
or about the Premises that will in any way tend to increase the insurance rates
upon the Project. Tenant agrees to pay Landlord forthwith upon demand the
amount of any increase in premiums for insurance against loss by fire that may
be charged during the Term of this Lease on the amount of insurance to be
carried by Landlord on the Project resulting from the foregoing, or from Tenant
doing any act in or about said Premises that does so increase the insurance
rates, whether or not Landlord shall have consented to such act on the part of
Tenant. If Tenant installs upon the Premises any electrical
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equipment which constitutes an overload of electrical lines of the Premises,
Tenant shall at its own cost and expense in accordance with all other Lease
provisions, and subject to the provisions of Article 9, 10 and 11, hereof, make
whatever changes are necessary to comply with requirements of the insurance
underwriters and any governmental authority having jurisdiction thereover, but
nothing herein contained shall be deemed to constitute Landlord's consent to
such overloading. Tenant shall, at its own expense, comply with all
requirements of the insurance authority having jurisdiction over the Project
necessary for the maintenance of reasonable fire and extended coverage
insurance for the Premises, including without limitation thereto, the
installation of fire extinguishers or an automatic dry chemical extinguishing
system.
ARTICLE 15
ASSIGNMENT AND SUBLETTING
Tenant shall have no power to, during the initial Lease Term or Option
Term (if applicable), either voluntarily, involuntarily, by operation of law or
otherwise, sell, assign, transfer or hypothecate this Lease, or sublet the
Premises or any part thereof, or permit the Premises or any part thereof to be
used or occupied by anyone other than Tenant or Tenant's employees without the
prior written consent of Landlord which shall not be unreasonably withheld or
delayed. Tenant may transfer its interest pursuant to this Lease only upon the
following express conditions, which conditions are agreed by Landlord and
Tenant to be reasonable:
(a) That the proposed transferee shall be subject to the prior
written consent of Landlord, which consent will not be unreasonably withheld or
delayed but, without limiting the generality of the foregoing, it shall be
reasonable for Landlord to deny such consent if:
(i) The use to be made of the Premises by the proposed
transferee is (a) not generally consistent with the character and nature of all
other tenancies in the Project, or (b) a use which conflicts with any so-called
"exclusive" then in favor of, or for any use which is the same as that stated
in any percentage rent lease to, another tenant of the Project or any other
buildings which are in the same complex as the Project, or (c) a use which
would be prohibited by any other portion of this Lease (including but not
limited to any Rules and Regulations then in effect); or
(ii) The financial responsibility of the proposed
transferee is not reasonably satisfactory to Landlord or in any event not at
least equal to those which were possessed by Tenant as of the date of execution
of this Lease;
(b) Whether or not Landlord consents to any such transfer, Tenant
shall pay to Landlord Landlord's then standard processing fee and reasonable
attorneys' fees incurred in connection with the proposed transfer up to the
aggregate sum of $1,000.00;
(c) That the proposed transferee shall execute an agreement
pursuant to which it shall agree to perform faithfully and be bound by all of
the terms, covenants, conditions, provisions and agreements of this Lease
applicable to that portion of the Premises so transferred; and
(d) That an executed duplicate original of said assignment and
assumption agreement or other transfer on a form reasonably approved by
Landlord, shall be delivered to Landlord within five (5) days after the
execution thereof, and that such transfer shall not be binding upon Landlord
until the delivery thereof to Landlord and the execution and delivery of
Landlord's consent thereto. It shall be a condition to Landlord's consent to
any subleasing, assignment or other transfer of part or all of Tenant's
interest in the Premises (hereinafter referred to as a "TRANSFER") that (i)
upon Landlord's consent to any Transfer, Tenant shall pay and continue to pay
fifty percent (50%) of any "Transfer Premium" (defined below), received by
Tenant from the transferee; (ii) any sublessee of part or all of Tenant's
interest in the Premises shall agree that in the event Landlord gives such
sublessee notice that Tenant is in default under this Lease, such sublessee
shall thereafter make all sublease or other payments directly to Landlord,
which will be received by Landlord without any liability whether to honor the
sublease or otherwise (except to credit such payments against sums due under
this Lease), and any sublessee shall agree to attorn
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to Landlord or its successors and assigns at their request should this Lease be
terminated for any reason, except that in no event shall Landlord or its
successors or assigns be obligated to accept such attornment; (iii) any such
Transfer and consent shall be effected on forms supplied by Landlord and/or its
legal counsel; (iv) Landlord may require that Tenant not then be in default
hereunder in any respect; and (v) Tenant or the proposed subtenant or assignee
(collectively, "TRANSFEREE") shall agree to pay Landlord, upon demand, as
additional rent, a sum equal to the additional costs, if any, incurred by
Landlord for maintenance and repair as a result of any change in the nature of
occupancy caused by such subletting or assignment. "TRANSFER PREMIUM" shall
mean all rent, additional rent or other consideration payable by a Transferee
in connection with a Transfer in excess of (i) the rent and Additional Rent
payable by Tenant under this Lease during the term of the Transfer, and (ii)
any improvement allowance or other economic concession (such as but not limited
to space plans, moving expenses, etc.) paid by Tenant to the sublessee or
assignee, marketing costs, brokers' commissions, attorneys' fees, and lease
takeover payments paid by Tenant in connection with the sublease or assignment
and the unamortized cost of any initial or subsequent improvements constructed
by Tenant at Tenant's expense, and if such Transfer is less than all of the
Premises, the Transfer Premium shall be calculated on a rentable square foot
basis. "Transfer Premium" shall also include, but not be limited to, key
money, bonus money or other cash consideration paid by a transferee to Tenant
in connection with such Transfer, and any payment in excess of fair market
value for services rendered by Tenant to the Transferee and any payment in
excess of fair market value for assets, fixtures, inventory, equipment, or
furniture transferred by Tenant to the Transferee in connection with such
Transfer. Any sale assignment, hypothecation, transfer or subletting of this
Lease which is not in compliance with the provisions of this Article 15 shall
be void and shall, at the option of Landlord, terminate this Lease. In no
event shall the consent by Landlord to an assignment or subletting be construed
as relieving Tenant, any assignee, or sublessee from obtaining the express
written consent of Landlord to any further assignment or subletting, or as
releasing Tenant from any liability or obligation hereunder whether or not then
accrued and Tenant shall continue to be fully liable therefor. No collection
or acceptance of rent by Landlord from any person other than Tenant shall be
deemed a waiver of any provision of this Article 15 or the acceptance of any
assignee or subtenant hereunder, or a release of Tenant (or of any successor of
Tenant or any subtenant). Notwithstanding anything to the contrary in this
Lease, if Tenant or any proposed Transferee claims that Landlord has
unreasonably withheld or delayed its consent under this Article 15 or otherwise
has breached or acted unreasonably under this Article 15, their sole remedies
shall be a declaratory judgment and an injunction for the relief sought without
any monetary damages, and Tenant hereby waives all other remedies, including,
without limitation, any right at law or equity to terminate this Lease, on its
own behalf and, to the extent permitted under all applicable laws, on behalf of
the proposed Transferee.
Notwithstanding anything to the contrary contained in this Article 15,
Landlord shall have the option, by giving written notice to Tenant within
thirty (30) days after Landlord's receipt of a request for consent to a
proposed Transfer, to terminate this Lease as to the portion of the Premises
that is the subject of the Transfer. If this Lease is so terminated with
respect to less than the entire Premises, the Basic Rental and Tenant's
Proportionate Share shall be prorated based on the number of rentable square
feet retained by Tenant as compared to the total number of rentable square feet
contained in the original Premises, and this Lease as so amended shall continue
thereafter in full force and effect, and upon the request of either party, the
parties shall execute written confirmation of the same.
ARTICLE 16
DAMAGE OR DESCTRUCTION
If the Project is damaged by fire or other insured casualty and the
insurance proceeds have been made available therefor by the holder or holders
of any mortgages or deeds of trust covering the Premises or the Project, the
damage shall be repaired by Landlord to the extent such insurance proceeds are
available therefor and provided such repairs can, in Landlord's sole opinion,
be completed within one hundred eighty (180) days after the necessity for
repairs as a result of such damage becomes known to Landlord without the
payment of overtime or other premiums, and until such repairs are completed
rent shall be abated in proportion to the part of
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the Premises which is unusable by Tenant in the conduct of its business (but
there shall be no abatement of rent by reason of any portion of the Premises
being unusable for a period equal to one (1) day or less). However, if the
damage is due to the fault or neglect of Tenant, its employees, agents,
contractors, guests, invitees and the like, there shall be no abatement of
rent. Upon the occurrence of any damage to the Premises, Tenant shall assign
to Landlord (or to any party designated by Landlord) all insurance proceeds
payable to Tenant under Section 14(a)(ii)(A) above; provided, however, that if
the cost of repair of improvements within the Premises by Landlord exceeds the
amount of insurance proceeds received by Landlord from Tenant's insurance
carrier, as so assigned by Tenant, such excess costs shall be paid by Tenant to
Landlord prior to Landlord's repair of such damage. If repairs cannot, in
Landlord's opinion, be completed within one hundred eighty (180) days after the
necessity for repairs as a result of such damage becomes known to Landlord
without the payment of overtime or other premiums, Landlord may, at its option,
either (i) make them in a reasonable time and in such event this Lease shall
continue in effect and the rent shall be abated, if at all, in the manner
provided in this Article 16, or (ii) elect not to effect such repairs and
instead terminate this Lease, by notifying Tenant in writing of such
termination within sixty (60) days after Landlord learns of the necessity for
repairs as a result of damage, such notice to include a termination date giving
Tenant thirty (30) days to vacate the Premises. In addition, Landlord may
elect to terminate this Lease if the Project shall be damaged by fire or other
casualty or cause, whether or not the Premises are affected, and the damage is
not fully covered, except for deductible amounts, by Landlord's insurance
policies. Finally, if the Premises or the Project is damaged to any
substantial extent during the last twelve (12) months of the Term, then
notwithstanding anything contained in this Article 16 to the contrary, Landlord
shall have the option to terminate this Lease by giving written notice to
Tenant of the exercise of such option within sixty (60) days after Landlord
learns of the necessity for repairs as the result of such damage. A total
destruction of the Project shall automatically terminate this Lease. Except as
provided in this Article 16, there shall be no abatement of rent and no
liability of Landlord by reason of any injury to or interference with Tenant's
business or property arising from such damage or destruction or the making of
any repairs, alterations or improvements in or to any portion of the Project or
the Premises or in or to fixtures, appurtenances and equipment therein. Tenant
understands that Landlord will not carry insurance of any kind on Tenant's
furniture, furnishings, trade fixtures or equipment, and that Landlord shall
not be obligated to repair any damage thereto or replace the same. Except for
proceeds relating to Tenant's furniture, furnishings, trade fixtures and
equipment, Tenant acknowledges that Tenant shall have no right to any proceeds
of insurance relating to property damage. With respect to any damage which
Landlord is obligated to repair or elects to repair, Tenant, as a material
inducement to Landlord entering into this Lease, irrevocably waives and
releases its rights under the provisions of Sections 1932 and 1933 of the
California Civil Code.
ARTICLE 17
SUBORDINATION
This Lease is subject and subordinate to all ground or underlying
leases, mortgages and deeds of trust which affect the property or the Project,
including all renewals, modifications, consolidations, replacements and
extensions thereof; provided, however, if the lessor under any such lease or
the holder or holders of any such mortgage or deed of trust shall advise
Landlord that they desire or require this Lease to be prior and superior
thereto, upon written request of Landlord to Tenant, Tenant agrees to promptly
execute, acknowledge and deliver any and all documents or instruments which
Landlord or such lessor, holder or holders deem necessary or desirable for
purposes thereof. Landlord shall have the right to cause this Lease to be and
become and remain subject and subordinate to any and all ground or underlying
leases, mortgages or deeds of trust which may hereafter be executed covering
the Premises, the Project or the property or any renewals, modifications,
consolidations, replacements or extensions thereof, for the full amount of all
advances made or to be made thereunder and without regard to the time or
character of such advances, together with interest thereon and subject to all
the terms and provisions thereof; provided, however, that Landlord obtains from
the lender or other party in question a written undertaking in favor of Tenant
to the effect that such lender or other party will not disturb Tenant's right
of possession under this Lease if Tenant is not then or thereafter in
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breach of any covenant or provision of this Lease. Tenant agrees, within ten
(10) days after Landlord's written request therefor, to execute, acknowledge
and deliver upon request any and all documents or instruments requested by
Landlord or necessary or proper to assure the subordination of this Lease to
any such mortgages, deed of trust, or leasehold estates. Tenant agrees that in
the event any proceedings are brought for the foreclosure of any mortgage or
deed of trust or any deed in lieu thereof, to attorn to the purchaser or any
successors thereto upon any such foreclosure sale or deed in lieu thereof as so
requested to do so by such purchaser and to recognize such purchaser as the
lessor under this Lease; Tenant shall, within five (5) days after request
execute such further instruments or assurances as such purchaser may reasonably
deem necessary to evidence or confirm such attornment. Tenant agrees to
provide copies of any notices of Landlord's default under this Lease to any
mortgagee or deed of trust beneficiary whose address has been provided to
Tenant and Tenant shall provide such mortgagee or deed of trust beneficiary a
commercially reasonable time after receipt of such notice within which to cure
any such default. Tenant waives the provisions of any current or future
statute, rule or law which may give or purport to give Tenant any right or
election to terminate or otherwise adversely affect this Lease and the
obligations of the Tenant hereunder in the event of any foreclosure proceeding
or sale.
ARTICLE 18
EMINENT DOMAIN
If the whole of the Premises or the Project or so much thereof as to
render the balance unusable by Tenant shall be taken under power of eminent
domain, or is sold, transferred or conveyed in lieu thereof, this Lease shall
automatically terminate as of the date of such condemnation, or as of the date
possession is taken by the condemning authority, at Landlord's option. No
award for any partial or entire taking shall be apportioned, and Tenant hereby
assigns to Landlord any award which may be made in such taking or condemnation,
together with any and all rights of Tenant now or hereafter arising in or to
the same or any part thereof; provided, however, that nothing contained herein
shall be deemed to give Landlord any interest in or to require Tenant to assign
to Landlord any award made to Tenant for the taking of personal property and
trade fixtures belonging to Tenant and removable by Tenant at the expiration of
the Term hereof as provided hereunder or for the interruption of, or damage to,
Tenant's business. In the event of a partial taking described in this Article
18, or a sale, transfer or conveyance in lieu thereof, which does not result in
a termination of this Lease, the rent shall be apportioned according to the
ratio that the part of the Premises remaining useable by Tenant bears to the
total area of the Premises. Tenant hereby waives any and all rights it might
otherwise have pursuant to Section 1265.130 of the California Code of Civil
Procedure. Landlord and Tenant hereby agree to use commercially reasonable
efforts to cause to be signed the Nondisturbance and Attornment Agreement by
and between Landlord, Tenant and the City of Calabasas, in a form substantially
similar to Exhibit "F" attached hereto.
ARTICLE 19
DEFAULT
Each of the following acts or omissions of Tenant or of any guarantor
of Tenant's performance hereunder, or occurrences, shall constitute an "EVENT
OF DEFAULT":
(a) Failure or refusal to pay Basic Rental, Additional Rent or any
other amount to be paid by Tenant to Landlord hereunder within five (5)
calendar days after notice that the same is due or payable hereunder; said five
(5) day period shall be in lieu of, and not in addition to, the notice
requirements of Section 1161 of the California Code of Civil Procedure or any
similar or successor law;
(b) Except as set forth in items (a) above and (c) through and
including (g) below, failure to perform or observe any other covenant or
condition of this Lease to be performed or observed within thirty (30) days
following written notice to Tenant of such failure. Such thirty (30) day
notice shall be in lieu of, and not in addition to, any required under Section
1161 of the California Code of Civil Procedure or any similar or successor law;
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(c) Abandonment or vacating or failure to accept tender of
possession of the Premises or any significant portion thereof, provided,
however, that if Basic Rental, Additional Rent or any other amount to be paid
by Tenant to Landlord hereunder is paid and not outstanding and Tenant is not
otherwise in default under this Lease, such abandonment or vacating or failure
to accept tender of possession of the Premises or any significant portion
thereof shall not constitute an Event of Default under this Section 19(c);
(d) The taking in execution or by similar process or law (other
than by eminent domain) of the estate hereby created;
(e) The filing by Tenant or any guarantor hereunder in any court
pursuant to any statute of a petition in bankruptcy or insolvency or for
reorganization or arrangement for the appointment of a receiver of all or a
portion of Tenant's property; the filing against Tenant or any guarantor
hereunder of any such petition, or the commencement of a proceeding for the
appointment of a trustee, receiver or liquidator for Tenant, or for any
guarantor hereunder, or of any of the property of either, or a proceeding by
any governmental authority for the dissolution or liquidation of Tenant or any
guarantor hereunder, if such proceeding shall not be dismissed or trusteeship
discontinued within thirty (30) days after commencement of such proceeding or
the appointment of such trustee or receiver; or the making by Tenant or any
guarantor hereunder of an assignment for the benefit of creditors. Tenant
hereby stipulates to the lifting of the automatic stay in effect and relief
from such stay for Landlord in the event Tenant files a petition under the
United States Bankruptcy laws, for the purpose of Landlord pursuing its rights
and remedies against Tenant and/or a guarantor of this Lease;
(f) Tenant's failure to cause to be released any mechanics liens
filed against the Premises or the Project within twenty (20) days after the
date the same shall have been filed or recorded; or
(g) Tenant's failure to observe or perform according to the
provisions of Articles 17 or 25 within five (5) business days after notice from
Landlord.
All defaults by Tenant of any covenant or condition of this Lease
shall be deemed by the parties hereto to be material.
ARTICLE 20
REMEDIES
(a) Upon the occurrence of an Event of Default under this Lease as
provided in Article 19 hereof, Landlord may exercise all of its remedies as may
be permitted by law, including but not limited to the remedy provided by
Section 1951.4 of the California Civil Code, and including without limitation,
terminating this Lease, reentering the Premises and removing all persons and
property therefrom, which property may be stored by Landlord at a warehouse or
elsewhere at the risk, expense and for the account of Tenant. If Landlord
elects to terminate this Lease, Landlord shall be entitled to recover from
Tenant the aggregate of all amounts permitted by law, including but not limited
to (i) the worth at the time of the amount of any unpaid rent which had been
earned at the time of such termination; plus (ii) the worth at the time of
award of the amount by which the unpaid rent which would have been earned after
termination until the time of award exceeds the amount of such rental loss that
Tenant proves could have been reasonably avoided; plus (iii) the worth at the
time of award of the amount by which the unpaid rent for the balance of the
Lease Term after the time of award exceeds the amount of such rental loss that
Tenant proves could have been reasonably avoided; plus (iv) any other amount
necessary to compensate Landlord for all the detriment proximately caused by
Tenant's failure to perform its obligations under this Lease or which in the
ordinary course of things would be likely to result therefrom, specifically
including but not limited to, brokerage commissions and advertising expenses
incurred, expenses of remodeling the Premises or any portion thereof for a new
tenant, whether for the same or a different use, and any special concessions
made to obtain a new tenant; and (v) at Landlord's election, such other amounts
in addition to or in lieu of the foregoing as may be permitted from time to
time by applicable law. The term "rent" as used in this Article 20(a) shall be
deemed to be and to mean all sums of every nature required to be paid
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by Tenant pursuant to the terms of this Lease, whether to Landlord or to
others. As used in items (i) and (ii), above, the "worth at the time of award"
shall be computed by allowing interest at the rate set forth in item (e),
below, but in no case greater than the maximum amount of such interest
permitted by law. As used in item (iii), above, the "worth at the time of
award" shall be computed by discounting such amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of award plus one percent
(1%).
(b) Nothing in this Article 20 shall be deemed to affect
Landlord's right to indemnification for liability or liabilities arising prior
to the termination of this Lease for personal injuries or property damage under
the indemnification clause or clauses contained in this Lease.
(c) Notwithstanding anything to the contrary set forth herein,
Landlord's re-entry to perform acts of maintenance or preservation of or in
connection with efforts to relet the Premises or any portion thereof, or the
appointment of a receiver upon Landlord's initiative to protect Landlord's
interest under this Lease shall not terminate Tenant's right to possession of
the Premises or any portion thereof and, until Landlord does elect to terminate
this Lease, this Lease shall continue in full force and effect and Landlord may
enforce all of Landlord's rights and remedies hereunder including, without
limitation, the remedy described in California Civil Code Section 1951.4
(lessor may continue lease in effect after lessee's breach and abandonment and
recover rent as it becomes due, if Lessee has the right to sublet or assign,
subject only to reasonable limitations). Accordingly, if Landlord does not
elect to terminate this Lease on account of any default by Tenant, Landlord
may, from time to time, without terminating this Lease, enforce all of its
rights and remedies under this Lease, including the right to recover all rent
as it becomes due.
(d) All rights, powers and remedies of Landlord hereunder and
under any other agreement now or hereafter in force between Landlord and Tenant
shall be cumulative and not alternative and shall be in addition to all rights,
powers and remedies given to Landlord by law, and the exercise of one or more
rights or remedies shall not impair Landlord's right to exercise any other
right or remedy.
(e) Any amount due from Tenant to Landlord hereunder which is not
paid when due shall bear interest at the lower of twelve percent (12%) per
annum or the maximum lawful rate of interest from the due date until paid,
unless otherwise specifically provided herein, but the payment of such interest
shall not excuse or cure any default by Tenant under this Lease. In addition
to such interest: (a) if Basic Rental is not paid within ten (10) days after
the same is due, a late charge equal to five percent (5%) of the amount overdue
or $100, whichever is greater, shall be assessed and shall accrue for each
calendar month or part thereof until such rental, including the late charge, is
paid in full, which late charge Tenant hereby agrees is a reasonable estimate
of the damages Landlord shall suffer as a result of Tenant's late payment and
(b) an additional charge of $25 shall be assessed for any check given to
Landlord by or on behalf of Tenant which is not honored by the drawee thereof;
which damages include Landlord's additional administrative and other costs
associated with such late payment and unsatisfied checks and the parties agree
that it would be impracticable or extremely difficult to fix Landlord's actual
damage in such event. Such charges for interest and late payments and
unsatisfied checks are separate and cumulative and are in addition to and shall
not diminish or represent a substitute for any or all of Landlord's rights or
remedies under any other provision of this Lease.
ARTICLE 21
TRANSFER OF LANDLORD'S INTEREST
In the event of any transfer or termination of Landlord's interest in
the Premises or the Project by sale, assignment, transfer, foreclosure,
deed-in-lieu of foreclosure or otherwise whether voluntary or involuntary,
Landlord shall be automatically relieved of any and all obligations and
liabilities on the part of Landlord from and after the date of such transfer or
termination, including furthermore without limitation, the obligation of
Landlord under Article 4 and California Civil Code 1950.7 above to return the
security deposit, provided said security
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deposit is transferred to said transferee. Tenant agrees to attorn to the
transferee upon any such transfer and to recognize such transferee as the
lessor under this Lease and Tenant shall, within five (5) days after request,
execute such further instruments or assurances as such transferee may
reasonably deem necessary to evidence or confirm such attornment.
ARTICLE 22
BROKER
In connection with this Lease, Tenant warrants and represents that it
has had dealings only with firm(s) set forth in Article 1.H. of the Basic Lease
Provisions and that it knows of no other person or entity who is or might be
entitled to a commission, finder's fee or other like payment in connection
herewith and does hereby indemnify and agree to hold Landlord, its agents,
members, partners, representatives, officers, affiliates, shareholders,
employees, successors and assigns harmless from and against any and all loss,
liability and expenses that Landlord may incur should such warranty and
representation prove incorrect, inaccurate or false.
ARTICLE 23
PARKING
Tenant shall rent from Landlord, commencing on the Commencement Date,
the number of unreserved parking passes set forth in Section 1(I) of the Basic
Lease Provisions, which parking passes shall pertain to the Project parking
facility. During the Initial Lease Term only, Tenant shall not be obligated to
pay to Landlord for automobile parking passes the prevailing rate charged from
time to time at the location of such parking passes. During any Option Term
(if applicable), any parking charges shall be determined as a component of
Option Rent. Tenant shall be responsible for the full amount of taxes (if any)
imposed by any governmental authority in connection with the renting of such
parking passes by Tenant or the use of the parking facility by Tenant.
Tenant's continued right to use the parking passes is conditioned upon Tenant
abiding by all rules and regulations which are prescribed from time to time for
the orderly operation and use of the parking facility where the parking passes
are located, including any sticker or other identification system established
by Landlord, Tenant's cooperation in seeing that Tenant's employees and
visitors also comply with such rules and regulations, and Tenant not being in
default under this Lease. Landlord specifically reserves the right to change
the size, configuration, design, layout and all other aspects of the Project
parking facility at any time and Tenant acknowledges and agrees that Landlord
may, without incurring any liability to Tenant and without any abatement of
rent under this Lease, from time to time, close-off or restrict access to the
Project parking facility for purposes of permitting or facilitating any such
construction, alteration or improvements. Landlord may delegate its
responsibilities hereunder to a parking operator or a lessee of the parking
facility in which case such parking operator or lessee shall have all the
rights of control attributed hereby to the Landlord. The parking passes rented
by Tenant pursuant to this Article 23 are provided to Tenant solely for use by
Tenant's own personnel and such passes may not be transferred, assigned,
subleased or otherwise alienated by Tenant without Landlord's prior approval,
which shall not be unreasonably withheld or delayed. Tenant may validate
visitor parking by such method or methods as the Landlord may establish, at the
validation rate from time to time generally applicable to visitor parking.
ARTICLE 24
WAIVER
No waiver by Landlord of any provision of this Lease shall be deemed
to be a waiver of any other provision hereof or of any subsequent breach by
Tenant of the same or any other provision. No provision of this Lease may be
waived by Landlord, except by an instrument in writing executed by Landlord.
Landlord's consent to or approval of any act by Tenant requiring Landlord's
consent or approval shall not be deemed to render unnecessary the obtaining of
Landlord's consent to or approval of any subsequent act of Tenant, whether or
not similar to the act so consented to or approved. No act or thing done by
Landlord or Landlord's agents during the Term of this Lease shall be deemed an
acceptance of a surrender of the Premises, and no
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agreement to accept such surrender shall be valid unless in writing and signed
by Landlord. Any payment by Tenant or receipt by Landlord of an amount less
than the total amount then due hereunder shall be deemed to be in partial
payment only thereof and not a waiver of the balance due or an accord and
satisfaction, notwithstanding any statement or endorsement to the contrary on
any check or any other instrument delivered concurrently therewith or in
reference thereto. Accordingly, Landlord may accept any such amount and
negotiate any such check without prejudice to Landlord's right to recover all
balances due and owing and to pursue its other rights against Tenant under this
Lease, regardless of whether Landlord makes any notation on such instrument of
payment or otherwise notifies Tenant that such acceptance or negotiation is
without prejudice to Landlord's rights.
ARTICLE 25
ESTOPPEL CERTIFICATE
Tenant shall, at any time and from time to time, upon not less than
ten (10) days' prior written notice from Landlord, execute, acknowledge and
deliver to Landlord a statement in writing certifying the following
information, (but not limited to the following information in the event further
information is requested by Landlord): (i) that this Lease is unmodified and in
full force and effect (or, if modified, stating the nature of such modification
and certifying that this Lease, as modified, is in full force and effect); (ii)
the dates to which the rental and other charges are paid in advance, if any;
(iii) the amount of Tenant's security deposit, if any; and (iv) acknowledging
that there are not, to Tenant's knowledge, any uncured defaults on the part of
Landlord hereunder, and no events or conditions then in existence which, with
the passage of time or notice or both, would constitute a default on the part
of Landlord hereunder, or specifying such defaults, events or conditions, if
any are claimed. It is expressly understood and agreed that any such statement
may be relied upon by any prospective purchaser or encumbrancer of all or any
portion of the Real Property. Tenant's failure to deliver such statement
within such time shall constitute an admission by Tenant that all statements
contained therein are true and correct. Tenant agrees to execute all documents
required in accordance with this Article 25 within ten (10) days after delivery
of said documents.
ARTICLE 26
LIABILITY OF LANDLORD
Notwithstanding anything in this Lease to the contrary, any remedy of
Tenant for the collection of a judgment (or other judicial process) requiring
the payment of money by Landlord in the event of any default by Landlord
hereunder or any claim, cause of action or obligation, contractual, statutory
or otherwise by Tenant against Landlord concerning, arising out of or relating
to any matter relating to this Lease and all of the covenants and conditions or
any obligations, contractual, statutory, or otherwise set forth herein, shall
be limited solely and exclusively to an amount which is equal to the lesser of
(i) the interest of Landlord in and to the Project, and (ii) the interest
Landlord would have in the Project if the Project were encumbered by third
party debt in an amount equal to ninety percent (90%) of the then current value
of the Project (as such value is reasonably determined by Landlord). No other
property or assets of Landlord, or any member, officer, director, shareholder,
partner, trustee, agent, servant or employee of Landlord (the "REPRESENTATIVE")
shall be subject to levy, execution or other enforcement procedure for the
satisfaction of Tenant's remedies under or with respect to this Lease,
Landlord's obligations to Tenant, whether contractual, statutory or otherwise,
the relationship of Landlord and Tenant hereunder, or Tenant's use or occupancy
of the Premises. Tenant further understands that any liability, duty or
obligation of Landlord to Tenant, shall automatically cease and terminate as of
the date that Landlord or any of Landlord's Representatives no longer have any
right, title or interest in or to the Project.
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ARTICLE 27
INABILITY TO PERFORM
This Lease and the obligations of Tenant hereunder shall not be
affected or impaired because Landlord is unable to fulfill any of its
obligations hereunder or is delayed in doing so, if such inability or delay is
caused by reason of any prevention, delay, stoppage due to strikes, lockouts,
acts of God, or any other cause previously, or at such time, beyond the
reasonable control or anticipation of Landlord (collectively, a "FORCE
MAJEURE") and Landlord's obligations under this Lease shall be forgiven and
suspended by any such Force Majeure.
ARTICLE 28
HAZARDOUS WASTE
(a) Tenant shall not cause or permit any Hazardous Material (as
defined in Article 28(d) below) to be brought, kept or used in or about the
Project by Tenant, its agents, employee, contractors, or invitees. Tenant
indemnifies Landlord from and against any breach by Tenant of the obligations
stated in the preceding sentence, and agrees to defend and hold Landlord
harmless from and against any and all claims, judgments, damages, penalties,
fines, costs, liabilities, or losses (including, without limitation, diminution
in value of the Project, damages for the loss or restriction or use of rentable
or usable space or of any amenity of the Project, damages arising from any
adverse impact or marketing of space in the Project, and sums paid in
settlement of claims, attorneys' fees, consultant fees, and expert fees) which
arise during or after the Term of this Lease as a result of such breach. This
indemnification of Landlord by Tenant includes, without limitation, costs
incurred in connection with any investigation of site conditions or any
cleanup, remedial, removal, or restoration work required by any federal, state,
or local governmental agency or political subdivision because of Hazardous
Material present in the soil or ground water on or under the Project. Without
limiting the foregoing, if the presence of any Hazardous Material on the
Project caused or permitted by Tenant results in any contamination of the
Project and subject to the provisions of Articles 9, 10 and 11, hereof, Tenant
shall promptly take all actions at its sole expense as are necessary to return
the Project to the condition existing prior to the introduction of any such
Hazardous Material and the contractors to be used by Tenant for such work must
be approved by Landlord, which approval shall not be unreasonably withheld so
long as such actions would not potentially have any material adverse long-term
or short-term effect on the Project and so long as such actions do not
materially interfere with the use and enjoyment of the Project by the other
tenants thereof.
(b) Landlord and Tenant acknowledge that Landlord may become
legally liable for the costs of complying with Laws (as defined in Article
28(e) (below) relating to Hazardous Material which are not the responsibility
of Landlord or the responsibility of Tenant, including the following: (i)
Hazardous Material present in the soil or ground water on the Project of which
Landlord has no knowledge as of the effective date of this Lease; (ii) a change
in Laws which relate to Hazardous Material which make that Hazardous Material
which is present on the Real Property as of the effective date of his Lease,
whether known or unknown to Landlord, a violation of such new Laws; (iii)
Hazardous Material that migrates, flows, percolates, diffuses, or in any way
moves on to, or under, the Project after the effective date of this Lease; or
Hazardous Material present on or under the Project as a result of any
discharge, dumping or spilling (whether accidental or otherwise) on the Project
by other lessees of the Project or their agents, employees, contractors, or
invitees, or by others.
(c) It shall not be unreasonable for Landlord to withhold its
consent to any proposed Transfer if (i) the proposed transferee's anticipated
use of the Premises involves the generation, storage, use, treatment, or
disposal of Hazardous Material; (ii) the proposed Transferee has been required
by any prior landlord, lender, or governmental authority to take remedial
action in connection with Hazardous Material contaminating a property if the
contamination resulted from such Transferee's actions or use of the property in
question; or (iii) the proposed Transferee is subject to an enforcement order
issued by any governmental authority in connection with the use, disposal, or
storage of a Hazardous Material.
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(d) As used herein, the term "HAZARDOUS MATERIAL" means any
hazardous or toxic substance, material, or waste which is or becomes regulated
by any local governmental authority, the State of California or the United
States Government. The term "Hazardous Material" includes, without limitation,
any material or substance which is (i) defined as "Hazardous Waste," "Extremely
Hazardous Waste," or "Restricted Hazardous Waste" under Sections 25115, 25117
or 25122.7, or listed pursuant to Section 25140, of the California Health and
Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii)
defined as a "Hazardous Substance" under Section 25316 of the California Health
and Safety Code, Division 20, Chapter 6.8 (▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇-▇▇▇▇▇▇ Hazardous
Substance Account Act), (iii) defined as a "Hazardous Material," "Hazardous
Substance," or "Hazardous Waste" under Section 25501 of the California Health
and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release
Response Plans and Inventory), (iv) defined as a "Hazardous Substance" under
Section 25281 of the California Health and Safety Code, Division 20, Chapter
6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi)
asbestos, (vii) listed under Article 9 or defined as Hazardous or extremely
hazardous pursuant to Article 11 of Title 22 of the California Administrative
Code, Division 4, Chapter 20, (viii) designated as a "Hazardous Substance"
pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C.
Section 1317), (ix) defined as a "Hazardous Waste" pursuant to Section 1004 of
the Federal Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et
seq. (42 U.S.C. Section 6903), or (x) defined as a "Hazardous Substance"
pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. (42 U.S.C.
Section 9601).
(e) As used herein, the term "LAWS" mean any applicable federal,
state or local laws, ordinances, or regulations relating to any Hazardous
Material affecting the Project, including, without limitation, the laws,
ordinances, and regulations referred to in Article 28 (d) above.
ARTICLE 29
SURRENDER OF PREMISES; REMOVAL OF PROPERTY
(a) The voluntary or other surrender of this Lease by Tenant to
Landlord, or a mutual termination hereof, shall not work a merger, and shall at
the option of Landlord, operate as an assignment to it of any or all subleases
or subtenancies affecting the Premises.
(b) Upon the expiration of the Term of this Lease, or upon any
earlier termination of this Lease, Tenant shall quit and surrender possession
of the Premises to Landlord in as good order and condition as the same are now
and hereafter may be improved by Landlord or Tenant, reasonable wear and tear
and repairs which are Landlord's obligation excepted, and shall, without
expense to Landlord, remove or cause to be removed from the Premises all debris
and rubbish, all furniture, equipment, business and trade fixtures,
free-standing cabinet work, moveable partitioning and other articles of
personal property owned by Tenant or installed or placed by Tenant at its own
expense in the Premises, and all similar articles of any other persons claiming
under Tenant unless Landlord exercises its option to have any subleases or
subtenancies assigned to it, and Tenant shall repair all damage to the Premises
resulting from the installation and removal of such items to be removed.
(c) Whenever Landlord shall reenter the Premises as provided in
Article 12 hereof, or as otherwise provided in this Lease, any property of
Tenant not removed by Tenant upon the expiration of the Term of this Lease (or
within forty-eight (48) hours after a termination by reason of Tenant's
default), as provided in this Lease, shall be considered abandoned and Landlord
may remove any or all of such items and dispose of the same in any manner or
store the same in a public warehouse or elsewhere for the account and at the
expense and risk of Tenant, and if Tenant shall fail to pay the cost of storing
any such property after it has been stored for a period of ninety (90) days or
more, Landlord may sell any or all of such property at public or private sale,
in such manner and at such times and places as Landlord, in its sole
discretion, may deem proper, without notice or to demand upon Tenant, for the
payment of all or any part of such charges or the removal of any such property,
and shall apply the proceeds of such sale: first, to the cost and expense of
such sale, including reasonable attorneys' fees for services rendered; second,
to the payment of the cost of or charges for storing any such property; third,
to the
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payment of any other sums of money which may then or thereafter be due to
Landlord from Tenant under any of the terms hereof; and fourth, the balance, if
any, to Tenant.
(d) All fixtures, equipment, alterations, additions, improvements
and/or appurtenances attached to or built into the Premises prior to or during
the Term, whether by Landlord or Tenant and whether at the expense of Landlord
or Tenant, or of both, shall be and remain part of the Premises and shall not
be removed by Tenant at the end of the Term unless otherwise expressly provided
for in this Lease or unless such removal is required by Landlord pursuant to
the provisions of Article 9, above. Such fixtures, equipment, alterations,
additions, improvements and/or appurtenances shall include but not be limited
to: all floor coverings, drapes, paneling, built-in cabinetry, molding, doors,
vaults (including vault doors), plumbing systems, electrical systems, lighting
systems, silencing equipment, communication systems, all fixtures and outlets
for the systems mentioned above and for all telephone, radio, telegraph and
television purposes, and any special flooring or ceiling installations.
ARTICLE 30
MISCELLANEOUS
(a) Severability; Entire Agreement. Any provision of this Lease
which shall prove to be invalid, void, or illegal shall in no way affect,
impair or invalidate any other provision hereof any such other provisions shall
remain in full force and effect. This Lease and the Exhibits and any Addendum
attached hereto constitute the entire agreement between the parties hereto with
respect to the subject matter hereof, and no prior agreement or understanding
pertaining to any such matter shall be effective for any purpose. No provision
of this Lease may be amended or supplemented except by an agreement in writing
signed by the parties hereto or their successor in interest. This Lease shall
be governed by and construed in accordance with the laws of the State of
California.
(b) Attorneys' Fees; Waiver of Jury Trial.
(i) In any action to enforce the terms of this Lease,
including any suit by Landlord for the recovery of rent or possession of the
Premises, the losing party shall pay the successful party a reasonable sum for
attorneys' fees in such suit and such attorneys' fees shall be deemed to have
accrued prior to the commencement of such action and shall be paid whether or
not such action is prosecuted to judgment.
(ii) Should Landlord, without fault on Landlord's part, be
made a party to any litigation instituted by Tenant or by any third party
against Tenant, or by or against any person holding under or using the Premises
by license of Tenant, or for the foreclosure of any lien for labor or material
furnished to or for Tenant or any such other person or otherwise arising out of
or resulting from any act or transaction of Tenant or of any such other person,
Tenant covenants to save and hold Landlord harmless from any judgment rendered
against Landlord or the Premises or any part thereof and from all costs and
expenses, including reasonable attorneys' fees incurred by Landlord in
connection with such litigation.
(iii) When legal services are rendered by an attorney at
law who is an employee of a party, attorneys' fees incurred by that party shall
be deemed to include an amount based upon the number of hours spent by such
employee on such matters multiplied by an appropriate billing rate determined
by taking into consideration the same factors, including but not limited by,
the importance of the matter, time applied, difficulty and results, as are
considered when an attorney not in the employ of a party is engaged to render
such service.
(iv) EACH PARTY HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY
IN ANY ACTION SEEKING SPECIFIC PERFORMANCE OF ANY PROVISION OF THIS LEASE, FOR
DAMAGES FOR ANY BREACH UNDER THIS LEASE, OR OTHERWISE FOR ENFORCEMENT OF ANY
RIGHT OR REMEDY HEREUNDER.
(c) Time of Essence. Each of Tenant's covenants herein is a
condition and time is of the essence with respect to the performance of every
provision of this Lease.
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(d) Headings. The article headings contained in this Lease are
for convenience only and do not in any way limit or amplify any term or
provision hereof. The terms "Landlord" and "Tenant" as used herein shall
include the plural as well as the singular, the neuter shall include the
masculine and feminine genders and the obligations herein imposed upon Tenant
shall be joint and several as to each of the persons, firms or corporations of
which Tenant may be composed.
(e) Reserved Area. Tenant hereby acknowledges and agrees that the
exterior walls of the Premises and the area between the finished ceiling of the
Premises and the slab of the floor of the project thereabove have not been
demised hereby and the use thereof together with the right to install,
maintain, use, repair and replace pipes, ducts, conduits and wires leading
through, under or above the Premises in locations which will not materially
interfere with Tenant's use of the Premises and serving other parts of the
Project are hereby excepted and reserved unto Landlord.
(f) No Option. The submission of this Lease by Landlord, its
agent or representative for examination or execution by Tenant does not
constitute an option or offer to lease the Premises upon the terms and
conditions contained herein or a reservation of the Premises in favor of
Tenant, it being intended hereby that this Lease shall only become effective
upon the execution hereof by Landlord and delivery of a fully executed Lease to
Tenant.
(g) Use of Project Name; Improvements. Tenant shall not be
allowed to use the name, picture or representation of the Project, or words to
that effect, in connection with any business carried on in the Premises or
otherwise (except as Tenant's address) without the prior written consent of
Landlord. In the event that Landlord undertakes any additional improvements on
the Real Property including but not limited to new construction or renovation
or additions to the existing improvements, Landlord shall not be liable to
Tenant for any noise, dust, vibration or interference with access to the
Premises or disruption in Tenant's business caused thereby.
(h) Rules and Regulations. Tenant shall observe faithfully and
comply strictly with the Rules and Regulations attached to this Lease and made
a part hereof, and such other Rules and Regulations as Landlord may from time
to time reasonably adopt for the safety, care and cleanliness of the Project,
the facilities thereof, or the preservation of good order therein. Landlord
shall not be liable to Tenant for violation of any such Rules and Regulations,
or for the breach of any covenant or condition in any lease by any other tenant
in the Project. A waiver by Landlord of any Rule or Regulation for any other
tenant shall not constitute nor be deemed a waiver of the Rule or Regulation
for this Tenant.
(i) Quiet Possession. Upon Tenant's paying the Basic Rent,
Additional Rent and other sums provided hereunder and observing and performing
all of the covenants, conditions and provisions on Tenant's part to be observed
and performed hereunder, Tenant shall have quiet possession of the Premises for
the entire Term hereof, subject to all of the provisions of this Lease.
(j) Rent. All payments required to be made hereunder to Landlord
shall be deemed to be rent, whether or not described as such.
(k) Successors and Assigns. Subject to the provisions of Article
15 hereof, all of the covenants, conditions and provisions of this Lease shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns.
(l) Notices. Any notice required or permitted to be given
hereunder shall be in writing and may be given by personal service evidenced by
a signed receipt or sent by registered or certified mail, return receipt
requested, addressed to Tenant at the Premises or to Landlord at the address of
the place from time to time established for the payment of rent and which shall
be effective upon proof of delivery. Either party may by notice to the other
specify a different address for notice purposes except that, upon Tenant's
taking possession of the Premises, the Premises shall constitute Tenant's
address for notice purposes. A copy of all notices to be given to Landlord
hereunder shall be concurrently transmitted by Tenant to such party hereafter
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designated by notice from Landlord to Tenant. Any notices sent by Landlord
regarding or relating to eviction procedures, including without limitation
three day notices to pay or quit, may be sent by regular mail.
(m) Persistent Delinquencies. In the event that Tenant shall be
delinquent by more than fifteen (15) days in the payment of rent on three (3)
separate occasions in any twelve (12) month period, Landlord shall have the
right to terminate this Lease by thirty (30) days written notice given by
Landlord to Tenant within thirty (30) days of the last such delinquency.
(n) Right of Landlord to Perform. All covenants and agreements to
be performed by Tenant under any of the terms of this Lease shall be performed
by Tenant at Tenant's sole cost and expense and without any abatement of rent.
If Tenant shall fail to pay any sum of money, other than rent, required to be
paid by it hereunder or shall fail to perform any other act on its part to be
performed hereunder, and such failure shall continue beyond any applicable cure
period set forth in this Lease, Landlord may, but shall not be obligated to,
without waiving or releasing Tenant from any obligations of Tenant, make any
such payment or perform any such other act on Tenant's part to be made or
performed as is in this Lease provided. All sums so paid by Landlord and all
reasonable incidental costs, together with interest thereon at the rate of ten
percent (10%) per annum from the date of such payment by Landlord, shall be
payable to Landlord on demand and Tenant covenants to pay any such sums, and
Landlord shall have (in addition to any other right or remedy of Landlord) the
same rights and remedies in the event of the nonpayment thereof by Tenant as in
the case of default by Tenant in the payment of the rent.
(o) Access, Changes in Project, Facilities, Name.
(i) Every part of the Project except the areas of the
Premises inside the interior surfaces of all walls, windows and doors bounding
the Premises (including exterior building walls, core corridor walls and doors
and any core corridor entrance), and any space in or adjacent to the Premises
used for shafts, stacks, pipes, conduits, fan rooms, ducts, electric or other
utilities, sinks or other building facilities, and the use thereof, as well as
access thereto through the Premises for the purposes of operation, maintenance,
decoration and repair, are reserved to Landlord.
(ii) Tenant shall permit Landlord to install, use and
maintain pipes, ducts and conduits within the walls, columns and ceilings of
the Premises.
(iii) Landlord reserves the right, without incurring any
liability to Tenant therefor, to make such changes in or to the Project and the
fixtures and equipment thereof, as well as in or to the street entrances,
halls, passages, elevators, stairways and other improvements thereof, as it may
deem necessary or desirable.
(iv) Landlord may adopt any name for the Project and
Landlord reserves the right to change the name or address of the Project at any
time. In the event Landlord voluntarily changes the address of the Project,
Landlord shall reimburse Tenant for Tenant's reasonable cost of replacing
Tenant's stationery (limited to quantities reasonably estimated to be on hand
as of the date of such address change and only to the extent necessitated by
such change of address of the Project).
(p) Corporate Authority. If Tenant is a corporation, each
individual executing this Lease on behalf of said corporation represents and
warrants that he or she is duly authorized to execute and deliver this Lease on
behalf of said corporation in accordance with a duly adopted resolution of the
Board of Directors of said corporation or in accordance with the By-laws of
said corporation, and that this Lease is binding upon said corporation in
accordance with its terms. If Tenant is a corporation, said corporation and
each individual executing this Lease on behalf of said corporation covenants
that Tenant shall provide to Landlord a copy of such resolution of the Board of
Directors authorizing the execution of this Lease on behalf of such
corporation, which copy of resolution shall be duly certified by the secretary
or an assistant secretary of the corporation to be a true copy of a resolution
duly adopted by the Board of Directors of said corporation. In the event
Tenant fails to comply with the requirements set forth in this
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subparagraph (p), then each individual executing this Lease shall be personally
liable for all of Tenant's obligations in this Lease.
(q) Identification of Tenant.
(i) If Tenant constitutes more than one person or entity,
(A) each of them shall be jointly and severally liable for the keeping,
observing and performing of all of the terms, covenants, conditions and
provisions of this Lease to be kept, observed and performed by Tenant, (B) the
term "Tenant" as used in this Lease shall mean and include each of them jointly
and severally, and (C) the act of or notice from, or notice or refund to, or
the signature of, any one or more of them, with respect to the tenancy of this
Lease, including, but not limited to, any renewal, extension, expiration,
termination or modification of this Lease, shall be binding upon each and all
of the persons or entities executing this Lease as Tenant with the same force
and effect as if each and all of them had so acted or so given or received such
notice or refund or so signed.
(ii) If Tenant is a partnership (or is comprised of two or
more persons, individually and as co-partners of a partnership) or if Tenant's
interest in this Lease shall be assigned to a partnership (or to two or more
persons, individually and as co-partners of a partnership) pursuant to Article
15 hereof (any such partnership and such persons hereinafter referred to in
this Article 30(q)(ii) as "PARTNERSHIP TENANT"), the following provisions of
this Lease shall apply to such Partnership Tenant:
(A) The liability of each of the parties
comprising Partnership Tenant shall be joint and several.
(B) Each of the parties comprising Partnership
Tenant hereby consents in advance to, and agrees to be bound by, any written
instrument which may hereafter be executed, changing, modifying or discharging
this Lease, in whole or in part, or surrendering all or any part of the
Premises to the Landlord, and by notices, demands, requests or other
communication which may hereafter be given, by Partnership Tenant or any of the
parties comprising Partnership Tenant.
(C) Any bills, statements, notices, demands,
requests or other communications given or rendered to Partnership Tenant or to
any of the parties comprising Partnership Tenant shall be deemed given or
rendered to Partnership Tenant and to all such parties and shall be binding
upon Partnership Tenant and all such parties.
(D) If Partnership Tenant admits new partners,
all of such new partners shall, by their admission to Partnership Tenant, be
deemed to have assumed performance of all of the terms, covenants and
conditions of this Lease on Tenant's part to be observed and performed.
(E) Partnership Tenant shall give prompt notice
to Landlord of the admission of any such new partners, and, upon demand of
Landlord, shall cause each such new partner to execute and deliver to Landlord
an agreement in form satisfactory to Landlord, wherein each such new partner
shall assume performance of all of the terms, covenants and conditions of this
Lease on Partnership Tenant's part to be observed and performed (but neither
Landlord's failure to request any such agreement nor the failure of any such
new partner to execute or deliver any such agreement to Landlord shall
terminate the provisions of clause (D) of this Article 30(q)(ii) or relieve any
such new partner of its obligations thereunder).
(r) Exhibits and Addendum. The Exhibits and Addendum, if
applicable, attached hereto are incorporated herein by this reference as if
fully set forth herein.
ARTICLE 31
OPTION TO REVIEW
(a) Option Right. Landlord hereby grants the Tenant named in this
Lease (the "ORIGINAL TENANT") one (1) option ("OPTION") to extend the Lease
Term for a period of three (3) years ("OPTION TERM"), which option shall be
exercisable only by written notice delivered by
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Tenant to Landlord set forth below. The rights contained in this Article 31
shall be personal to the Original Tenant and may only be exercised by the
Original Tenant (and not any assignee, sublessee or other transferee of the
Original Tenant's interest in this Lease) if the Original Tenant occupies the
entire Premises as of the date of Tenant's Acceptance (as defined in Section
31(c) below).
(b) Option Rent. The rent payable by Tenant during the Option
Term ("OPTION RENT") shall be equal to ninety-five percent (95%) of the "Market
Rent" (defined below). "MARKET RENT" shall mean the applicable Monthly Basic
Rental, including all escalations, Direct Costs, additional rent and other
charges at which tenants, as of the commencement of the Option Term, are
leasing non-sublease, non-encumbered, non-equity, space comparable in size,
location and quality to the Premises in renewal transactions for a term
comparable to the Option Term which comparable space is located in office
buildings comparable to the Project in Calabasas, California.
(c) Exercise of Options. The Option shall be exercised by Tenant
only in the following manner: (i) Tenant shall not be in default, and shall
not have been in default under this Lease more than once, on the delivery date
of the Interest Notice and Tenant's Acceptance; (ii) Tenant shall deliver
written notice ("INTEREST NOTICE") to Landlord no less than nine (9) months
prior to the expiration of the Lease Term, stating that Tenant is interested in
exercising the Option, (iii) within fifteen (15) business days of Landlord's
receipt of Tenant's written notice, Landlord shall deliver notice ("OPTION RENT
NOTICE") to Tenant setting forth the Option Rent; and (iv) if Tenant desires to
exercise such Option, Tenant shall provide Landlord written notice within five
(5) business days after receipt of the Option Rent Notice ("TENANT'S
ACCEPTANCE") and upon, and concurrent with such exercise, Tenant 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 31(d) below. Tenant's failure to deliver
the Interest Notice or Tenant's Acceptance on or before the dates specified
above shall be deemed to constitute Tenant's election not to exercise the
Option.
(d) Determination of Market Rent. If Tenant timely and
appropriately objects to the Market Rent in Tenant's Acceptance, Landlord and
Tenant shall attempt to agree upon the Market Rent using their best good-faith
efforts. If Landlord and Tenant fail to reach agreement within twenty-one (21)
days following Tenant's Acceptance ("OUTSIDE AGREEMENT DATE"), then each party
shall make a separate determination of the Market Rent which shall be submitted
to each other and to arbitration in accordance with the following items (i)
through (vii):
(i) Landlord and Tenant shall each appoint, within ten
(10) days of the Outside Agreement Date, one arbitrator who shall by profession
be a current real estate broker or appraiser of commercial high-rise properties
in the immediate vicinity of the Project, and who has been active in such field
over the last five (5) years. The determination of the arbitrators shall be
limited solely to the issue of whether Landlord's or Tenant's submitted Market
Rent is the closest to the actual Market Rent as determined by the arbitrators,
taking into account the requirements of item (b), above.
(ii) The two arbitrators so appointed shall within five
(5) business 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 arbitrators.
(iii) The three arbitrators shall within fifteen (15) days
of the appointment of the third arbitrator reach a decision as to whether the
parties shall use Landlord's or Tenant's submitted Market Rent, and shall
notify Landlord and Tenant thereof.
(iv) The decision of the majority of the three arbitrators
shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an
arbitrator within ten (10) days after the applicable Outside Agreement Date,
the arbitrator appointed by one of them shall
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reach a decision, notify Landlord and Tenant thereof, and such arbitrator's
decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint
a third arbitrator, or both parties fail to appoint an arbitrator, then the
appointment of the third arbitrator or any arbitrator shall be dismissed and
the matter to be decided shall be forthwith submitted to arbitration under the
provisions of the American Arbitration Association, but subject to the
instruction set forth in this item (d).
(vii) The cost of arbitration shall be paid by Landlord and
Tenant equally.
ARTICLE 32
SIGNAGE/DIRECTORY
Provided Tenant is not in default hereunder, Tenant, at Tenant's sole
cost and expense, shall have the right to one (l) line in the lobby directory
during the Lease Term. Provided Tenant is not in default hereunder, Tenant
shall have the right, at Tenant's sole cost and expense, to install a strip on
the Project's "monument" sign ("TENANT'S SIGNAGE"). Tenant's Signage shall be
subject to Landlord's approval as to size, design, location, graphics,
materials, colors and similar specifications and shall be consistent with the
exterior design, materials and appearance of the Project and the Project's
signage program and shall be further subject to all applicable local
governmental laws, rules, regulations, codes and other approvals. Tenant's
signage shall be personal to the original Tenant and may not be assigned to any
assignee or sublessee, or any other person or entity. Landlord has the right,
but not the obligation, to oversee the installation of Tenant's Signage. The
cost to operate, if any, Tenant's Signage shall be paid for by Tenant. Upon
the expiration of the Lease Term, or other earlier termination of this Lease,
Tenant shall be responsible for any and all costs associated with the removal
of Tenant's Signage, including, but not limited to, the cost to repair and
restore the Project to its original condition, normal wear and tear excepted.
IN WITNESS WHEREOF, the parties have executed this Lease, consisting
of the foregoing provisions and Articles, including all exhibits and other
attachments referenced therein, as of the date first above written.
"LANDLORD" ARDEN REALTY LIMITED PARTNERSHIP, a
Maryland limited partnership
By: ARDEN REALTY, INC., a Maryland
corporation, Its sole general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: President and COO
By:
--------------------------------
Its: Executive Vice President
"TENANT" ON'VILLAGE COMMUNICATIONS, INC.
a California corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Print Name: ▇▇▇▇ ▇▇▇▇▇▇
Its: CEO
By: /s/ ▇▇▇▇▇▇
--------------------------------------
Print Name: ▇▇▇▇▇▇
Its: _____________________________
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EXHIBIT "A"
PREMISES
EXHIBIT "A"
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EXHIBIT "B"
RULES AND REGULATIONS
1. No sign, advertisement or notice shall be displayed, printed
or affixed on or to the Premises or to the outside or inside of the Project or
so as to be visible from outside the Premises or Project without Landlord's
prior written consent. Landlord shall have the right to remove any
non-approved sign, advertisement or notice, without notice to and at the
expense of Tenant, and Landlord shall not be liable in damages for such
removal. All approved signs or lettering on doors and walls shall be printed,
painted, affixed or inscribed at the expense of Tenant by Landlord or by a
person selected by Landlord and in a manner and style acceptable to Landlord.
2. Tenant shall not obtain for use on the Premises ice, drinking
water, waxing, cleaning, interior glass polishing, rubbish removal, towel or
other similar services, or accept barbering or bootblackening, or coffee cart
services, milk, soft drinks or other like services on the Premises, except from
persons authorized by Landlord and at the hours and under regulations fixed by
Landlord. No vending machines or machines of any description shall be
installed, maintained or operated upon the Premises without Landlord's prior
written consent.
3. The sidewalks, halls, passages, exits, entrances, elevators
and stairways shall not be obstructed by Tenant or used for any purpose other
than for ingress and egress from Tenant's Premises.
4. Toilet rooms, toilets, urinals, wash bowls and other apparatus
shall not be used for any purpose other than for which they were constructed
and no foreign substance of any kind whatsoever shall be thrown therein.
5. Tenant shall not overload the floor of the Premises or ▇▇▇▇,
drive nails, screw or drill into the partitions, ceilings or floor or in any
way deface the Premises.
6. In no event shall Tenant place a load upon any floor of the
Premises or portion of any such flooring exceeding the floor load per square
foot of area for which such floor is designed to carry and which is allowed by
law, or any machinery or equipment which shall cause excessive vibration to the
Premises or noticeable vibration to any other part of the Project. Prior to
bringing any heavy safes, vaults, large computers or similarly heavy equipment
into the Project, Tenant shall inform Landlord in writing of the dimensions and
weights thereof and shall obtain Landlord's consent thereto. Such consent
shall not constitute a representation or warranty by Landlord that the safe,
vault or other equipment complies, with regard to distribution of weight and/or
vibration, with the provisions of this Rule 6 nor relieve Tenant from
responsibility for the consequences of such noncompliance, and any such safe,
vault or other equipment which Landlord determines to constitute a danger of
damage to the Project or a nuisance to other tenants, either alone or in
combination with other heavy and/or vibrating objects and equipment, shall be
promptly removed by Tenant upon Landlord's written notice of such determination
and demand for removal thereof.
7. Tenant shall not use or keep in the Premises or Project any
kerosene, gasoline or inflammable, explosive or combustible fluid or material,
or use any method of heating or air-conditioning other than that supplied by
Landlord.
8. Tenant shall not lay linoleum, tile, carpet or other similar
floor covering so that the same shall be affixed to the floor of the Premises
in any manner except as approved by Landlord.
9. Without Landlord's prior written approval, Tenant shall not
install or use any blinds, shades, awnings or screens in connection with any
window or door of the Premises and shall not use any drape or window covering
facing any exterior glass surface other than the standard drapes, blinds or
other window covering established by Landlord.
EXHIBIT "B"
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10. Tenant shall cooperate with Landlord in obtaining maximum
effectiveness of the cooling system by closing drapes when the sun's rays fall
directly on windows of the Premises. Tenant shall not obstruct, alter, or in
any way impair the efficient operation of Landlord's heating, ventilating and
air-conditioning system. Tenant shall not tamper with or change the setting of
any thermostats or control valves.
11. The Premises shall not be used for manufacturing or for the
storage of merchandise except as such storage may be incidental to the
permitted use of the Premises. Tenant shall not, without Landlord's prior
written consent, occupy or permit any portion of the Premises to be occupied or
used for the manufacture or sale of liquor or tobacco in any form, or a ▇▇▇▇▇▇
or manicure shop, or as an employment bureau. The Premises shall not be used
for lodging or sleeping or for any improper, objectionable or immoral purpose.
No auction shall be conducted on the Premises.
12. Tenant shall not make, or permit to be made, any unseemly or
disturbing noises, or disturb or interfere with occupants of Project or
neighboring buildings or premises or those having business with it by the use
of any musical instrument, radio, phonographs or unusual noise, or in any other
way.
13. No bicycles, vehicles or animals of any kind shall be brought
into or kept in or about the Premises, and no cooking shall be done or
permitted by any tenant in the Premises, except that the preparation of coffee,
tea, hot chocolate and similar items for tenants, their employees and visitors
shall be permitted. No tenant shall cause or permit any unusual or
objectionable odors to be produced in or permeate from or throughout the
Premises.
14. 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 Project shall not be covered or obstructed by any tenant, nor
shall any bottles, parcels or other articles be placed on the window ▇▇▇▇▇.
15. No additional locks or bolts of any kind shall be placed upon
any of the doors or windows by any tenant, nor shall any changes be made in
existing locks or the mechanisms thereof unless Landlord is first notified
thereof, gives written approval, and is furnished a key therefor. Each tenant
must, upon the termination of his tenancy, give to Landlord all keys of stores,
offices, or toilets or toilet rooms, either furnished to, or otherwise procured
by, such tenant, and in the event of the loss of any keys so furnished, such
tenant shall pay Landlord the cost of replacing the same or of changing the
lock or locks opened by such lost key if Landlord shall deem it necessary to
make such change.
16. Landlord shall have the right to prohibit any advertising by
any tenant which, in Landlord's opinion, tends to impair the reputation of the
Project or its desirability as an office building and upon written notice from
Landlord any tenant shall refrain from and discontinue such advertising.
17. Landlord reserves the right to control access to the Project
by all persons after reasonable hours of generally recognized business days and
at all hours on Sundays and legal holidays. Each tenant shall be responsible
for all persons for whom it requests after hours access and shall be liable to
Landlord for all acts of such persons. Landlord shall have the right from time
to time to establish reasonable rules pertaining to freight elevator usage,
including the allocation and reservation of such usage for tenants' initial
move-in to their premises, and final departure therefrom.
18. Any person employed by any tenant to do janitorial work shall,
while in the Project and outside of the Premises, be subject to and under the
control and direction of the Office of the Project (but not as an agent or
servant of Landlord, and the tenant shall be responsible for all acts of such
persons).
19. All doors opening on to public corridors shall be kept closed,
except when being used for ingress and egress.
EXHIBIT "B"
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20. The requirements of tenants will be attended to only upon
application to the Office of the Project.
21. Canvassing, soliciting and peddling in the Project are
prohibited and each tenant shall cooperate to prevent the same.
22. All office equipment of any electrical or mechanical nature
shall be placed by tenants in the Premises in settings approved by Landlord, to
absorb or prevent any vibration, noise or annoyance.
23. No air-conditioning unit or other similar apparatus shall be
installed or used by any tenant without the prior written consent of Landlord.
Tenant shall pay the cost of all electricity used for air-conditioning in the
Premises if such electrical consumption exceeds normal office requirements,
regardless of whether additional apparatus is installed pursuant to the
preceding sentence.
24. There shall not be used in any space, or in the public halls
of the Project, either by any tenant or others, any hand trucks except those
equipped with rubber tires and side guards.
25. All electrical ceiling fixtures hung in offices or spaces
along the perimeter of the Project must be fluorescent and/or of a quality,
type, design and bulb color approved by Landlord. Tenant shall not permit the
consumption in the Premises of more than 2-1/2 ▇▇▇▇▇ per net usable square foot
in the Premises in respect of office lighting nor shall Tenant permit the
consumption in the Premises of more than 1-1/2 ▇▇▇▇▇ per net usable square foot
of space in the Premises in respect of the power outlets therein, at any one
time. In the event that such limits are exceeded, Landlord shall have the
right to require Tenant to remove lighting fixtures and equipment and/or to
charge Tenant for the cost of the additional electricity consumed.
26. Parking.
(a) [Intentionally omitted.]
(b) Automobiles must be parked entirely within the stall
lines on the floor.
(c) All directional signs and arrows must be observed.
(d) The speed limit shall be 5 miles per hour.
(e) Parking is prohibited in areas not striped for
parking.
(f) Parking cards or any other device or form of
identification supplied by Landlord (or its operator) shall remain the property
of Landlord (or its operator). Such parking identification device must be
displayed as requested and may not be mutilated in any manner. The serial
number of the parking identification device may not be obliterated. Devices
are not transferable or assignable and any device in the possession of an
unauthorized holder will be void. There will be a replacement charge to the
Tenant or person designated by Tenant of $25.00 for loss of any parking card.
(g) The monthly rate for parking is payable one (1) month
in advance and must be paid by the third business day of each month. Failure
to do so will automatically cancel parking privileges and a charge at the
prevailing daily rate will be due. No deductions or allowances from the
monthly rate will be made for days ▇▇▇▇▇▇ does not use Parking Facilities.
(h) Tenant may validate visitor parking by such method or
methods as the Landlord may approve, at the validation rate from time to time
generally applicable to visitor parking.
(i) Landlord (and its operator) may refuse to permit any
person who violates the within rules to park in the parking lot, and any
violation of the rules shall subject the automobile to removal from the parking
lot at the ▇▇▇▇▇▇'▇ expense. In either of said events, Landlord (or its
operator) shall refund a prorata portion of the current monthly parking rate
and the sticker or any other form of identification supplied by Landlord (or
its operator) will be returned to Landlord (or its operator).
(j) The Building manager or parking attendants, if any,
are not authorized to make or allow any exceptions to these Rules and
Regulations.
EXHIBIT "B"
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(k) Every ▇▇▇▇▇▇ is required to park and lock their own
automobile. All responsibility for any loss or damage to automobiles or any
personal property therein is assumed by the ▇▇▇▇▇▇.
(l) Loss or theft of parking identification devices from
automobiles must be reported to the Building manager immediately, and a lost or
stolen report must be filed by the ▇▇▇▇▇▇ at that time.
(m) The Parking facilities are for the sole purpose of
parking one automobile per space. Washing, waxing, cleaning or servicing of
any vehicles by the ▇▇▇▇▇▇ or his agents is prohibited.
(n) Landlord (and its operator) reserves the right to
refuse the issuance of monthly stickers or other parking identification devices
to any Tenant and/or its employees who refuse to comply with the above Rules
and Regulations and all City, State or Federal ordinances, laws or agreements.
(o) Tenant agrees to acquaint all employees with these
Rules and Regulations.
(p) No vehicle shall be stored in the parking lot for a
period of more than one (1) week.
EXHIBIT "B"
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Initials: ______
______
38
EXHIBIT "C"
NOTICE OF LEASE TERM DATES
AND TENANTS PROPORTIONATE SHARE
TO: _______________________________ DATE: ___________________________________
_______________________________ ___________________________________
_______________________________
RE: Lease dated ________________, 19__, between _______________________________
__________________________________ ("LANDLORD"), and ______________________
__________________________________ ("TENANT"), concerning Suite __________,
located at _______________________________________________.
Ladies and Gentlemen:
In accordance with the Lease, Landlord wishes to advise and/or confirm
the following:
1. That the Premises have been accepted herewith by the
Tenant as being substantially complete in accordance with the Lease and that
there is no deficiency in construction.
2. That the Tenant has taken possession of the Premises
and acknowledges that under the provisions of the Lease the Term of said Lease
shall commence as of ____________ for a term of ________________________ ending
on ________________________.
3. That in accordance with the Lease, Basic Rental
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 prorata
adjustment. Each billing thereafter shall be for the full amount of the
monthly installment as provided for in said Lease.
5. Rent is due and payable in advance on the first day
of each and every month during the Term of said Lease. Your rent checks should
be made payable to ________________________ at ________________________________.
6. The exact number of rentable square feet within the
Premises is __________ square feet.
7. Tenant's Proportionate Share, as adjusted based upon
the exact number of rentable square feet within the Premises is _______%.
AGREED AND ACCEPTED:
TENANT:
__________________________________________________,
a ________________________________________________
By: _____________________________________________
Its:_________________________________________
▇▇▇▇▇▇▇ "▇"
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Initials: ______
______
39
EXHIBIT "D"
This Tenant Work Letter shall set forth the terms and conditions
relating to the renovation of the tenant improvements in the Premises. This
Tenant Work Letter is essentially organized chronologically and addresses the
issues of the construction of the Premises, in sequence, as such issues will
arise.
SECTION 1
CONSTRUCTION DRAWINGS FOR THE PREMISES
LANDLORD SHALL CONSTRUCT THE IMPROVEMENTS IN THE PREMISES (THE "TENANT
IMPROVEMENTS") pursuant to that certain plan dated March 19, 1997 and revised
on March 21, 1997 and prepared by ▇▇▇▇▇, ▇▇▇▇ & Associates (collectively, the
"PLANS"). Unless specifically noted to the contrary on the Plans, the Tenant
Improvements shall be constructed using Building-standard specifications and
materials as determined by Landlord. Based upon the Plans, Landlord shall
cause the Architect to prepare detailed plans and specifications for the Tenant
Improvements ("WORKING DRAWINGS"). Landlord shall then forward the Working
Drawings to Tenant for Tenant's approval. Tenant shall approve or reasonably
disapprove any draft of the Working Drawings within three (3) business days
after Tenant's receipt thereof; provided, however, that (i) Tenant shall not be
entitled to disapprove any portion, component or aspect of the Working Drawings
which are consistent with the Plans unless Tenant agrees to pay for the
additional cost resulting from such change in the Plans as part of the
Over-Allowance Amount pursuant to Section 2 below, and (ii) any disapproval of
the Working Drawings by Tenant shall be accompanied by a detailed written
explanation of the reasons for Tenant's disapproval. Failure of Tenant to
reasonably disapprove any draft of the Working Drawings within said three (3)
business day period shall be deemed to constitute Tenant's approval thereof.
The Working Drawings, as approved by Landlord and Tenant, may be referred to
herein as the "APPROVED WORKING DRAWINGS." Tenant shall make no changes or
modifications to the Plans or the Approved Working Drawings without the prior
written consent of Landlord, which consent may be withheld in Landlord's sole
discretion if such change or modification would directly or indirectly delay
the "Substantial Completion," as that term is defined in Section 5.1 of this
Tenant Work Letter, of the Tenant Improvements in the Premises or increase the
cost of designing or constructing the Tenant Improvements.
SECTION 2
OVER-ALLOWANCE AMOUNT
In the event that after Tenant's execution of the Lease, any
revisions, changes, or substitutions shall be made to the Plans or the Approved
Working Drawings or the Tenant Improvements, any additional costs which arise
in connection with such revisions, changes or substitutions shall be considered
to be an "OVER-ALLOWANCE AMOUNT." The Over-Allowance Amount shall be paid by
Tenant to Landlord, as Additional Rent, within ten (10) days after Tenant's
receipt of invoice therefor. The Over-Allowance Amount shall be disbursed by
Landlord prior to the disbursement of any portion of Landlord's contribution to
the construction of the Tenant Improvements.
SECTION 3
RETENTION OF CONTRACTOR;
WARRANTIES AND GUARANTIES
Landlord hereby assigns to Tenant all warranties and guaranties by the
contractor who constructs the Tenant Improvements (the "CONTRACTOR") relating
to the Tenant Improvements, and Tenant hereby waives all claims against
Landlord relating to, or arising out of the
EXHIBIT "D"
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Initials: ______
______
40
construction of, the Tenant Improvements. The Contractor shall be designated
and retained by Landlord to construct the Tenant Improvements.
SECTION 4
TENANT'S COVENANTS
Tenant shall, at no cost to Tenant, cooperate with Landlord and the
space planner or architect retained by Landlord ("ARCHITECT") 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 upon completion of construction of the
Tenant Improvements.
SECTION 5
COMPLETION OF THE TENANT IMPROVEMENTS
5.1 Substantial Completion. For purposes of this Lease,
"SUBSTANTIAL COMPLETION" of the Tenant Improvements in the Premises shall occur
upon the completion of construction of the Tenant Improvements in the Premises
pursuant to the Approved Working Drawings, with the exception of any punch list
items and any tenant fixtures, work-stations, built-in furniture, or equipment
to be installed by Tenant.
5.2 Delay of the Substantial Completion of the Premises. Except
as provided in this Section 5.2, the Commencement Date shall occur as set forth
in the Lease. If there shall be a delay or there are delays in the Substantial
Completion of the Tenant Improvements in the Premises as a result of the
following (collectively, "TENANT DELAYS"):
5.2.1 Tenant's failure to timely approve any matter
requiring Tenant's approval;
5.2.2 A breach by Tenant of the terms of this Tenant Work
Letter or the Lease;
5.2.3 Tenant's request for changes in the Plans, Working
Drawings or Approved Working Drawings;
5.2.4 Changes in any of the Plans, Working Drawings or
Approved Working Drawings because the same do not comply with applicable laws;
5.2.5 Tenant's requirement for materials, components,
finishes or improvements which are not available in a commercially reasonable
time given the anticipated date of Substantial Completion of the Tenant
Improvements in the Premises, or which are different from, or not included in,
Landlord's standard improvement package items for the Building;
5.2.6 Changes to the base, shell and core work of the
Building required by the Approved Working Drawings or any changes thereto; or
5.2.7 Any other acts or omissions of Tenant, or its agents,
or employees;
then, notwithstanding anything to the contrary set forth in the Lease or this
Tenant Work Letter and regardless of the actual date of the Substantial
Completion of the Tenant Improvements in the Premises, the date of Substantial
Completion thereof shall be deemed to be the date that Substantial Completion
would have occurred if no Tenant Delay or Delays, as set forth above, had
occurred.
5.3 Outside Date. In the event that the Substantial Completion of
the Premises has not occurred by the "OUTSIDE DATE," which shall be September
1, 1997, as such September 1, 1997 date may be extended by the number of days
of Tenant Delays and by the number of days of "Force Majeure Delays" (as
defined below), then the sole remedy of Tenant shall be the right to deliver a
notice to Landlord (the "OUTSIDE DATE TERMINATION NOTICE") electing to
terminate this Lease effective upon receipt of the Outside Date Termination
Notice by Landlord (the
EXHIBIT "D"
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Initials: ______
______
41
"EFFECTIVE DATE"). Except as provided hereinbelow, the Outside Date
Termination Notice must be delivered by Tenant to Landlord, if at all, not
earlier than the Outside Date and not later than five (5) business days after
the Outside Date. If Tenant delivers the Outside Date Termination Notice to
Landlord, then Landlord shall have the right to suspend the Effective Date for
a period ending thirty (30) days after the original Effective Date. In order
to suspend the Effective Date, Landlord must deliver to Tenant, within five (5)
business days after receipt of the Outside Date Termination Notice, a
certificate of the Contractor certifying that it is such Contractor's best good
faith judgment that Substantial Completion of the Premises will occur within
thirty (30) days after the original Effective Date. If Substantial Completion
of the Premises occurs within said thirty (30) day suspension period, then the
Outside Date Termination Notice shall be of no further force and effect; if,
however, Substantial Completion of the Premises does not occur within said
thirty (30) day suspension period, then this Lease shall terminate as of the
date of expiration of such thirty (30) day period. If prior to the Outside
Date Landlord determines that Substantial Completion of the Premises will not
occur by the Outside Date, Landlord shall have the right to deliver a written
notice to Tenant stating Landlord's opinion as to the date by which Substantial
Completion of the Premises shall occur and Tenant shall be required, within
five (5) business days after receipt of such notice, to either deliver the
Outside Date Termination Notice (which will mean that this Lease shall
thereupon terminate and shall be of no further force and effect) or agree to
extend the Outside Date to that date which is set by Landlord. Failure of
Tenant to so respond in writing within said five (5) business day period shall
be deemed to constitute Tenant's agreement to extend the Outside Date to that
date which is set by Landlord. If the Outside Date is so extended, Landlord's
right to request Tenant to elect to either terminate or further extend the
Outside Date shall remain and shall continue to remain, with each of the notice
periods and response periods set forth above, until the Substantial Completion
of the Premises or until this Lease is terminated. For purposes of this
Section 5.3, "FORCE MAJEURE DELAYS" shall mean and refer to a period of delay
or delays encountered by Landlord affecting the work of construction of the
Tenant Improvements because of delays due to excess time in obtaining
governmental permits or approvals beyond the time period normally required to
obtain such permits or approvals for similar space, similarly improved, in
comparable office buildings in Calabasas, California; fire, earthquake or other
acts of God; acts of the public enemy; riot; public unrest; insurrection;
governmental regulations of the sales of materials or supplies or the
transportation thereof; strikes or boycotts; shortages of material or labor or
any other cause beyond the reasonable control of Landlord.
SECTION 6
MISCELLANEOUS
6.1 Tenant's Representative. Tenant has designated ▇▇. ▇▇▇▇ ▇▇▇▇▇
as its sole representative with respect to the matters set forth in this Tenant
Work Letter, who, until further notice to Landlord, shall have full authority
and responsibility to act on behalf of the Tenant as required in this Tenant
Work Letter.
6.2 Landlord's Representative. Prior to commencement of
construction of the Tenant Improvements, Landlord shall designate a
representative with respect to the matters set forth in this Tenant Work
Letter, who, until further notice to Tenant, shall have full authority and
responsibility to act on behalf of the Landlord as required in this Tenant Work
Letter.
6.3 Time of the Essence in This Tenant Work Letter. Unless
otherwise indicated, all references herein to a "number of days" shall mean and
refer to calendar days.
EXHIBIT "D"
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Initials: ______
______
42
EXHIBIT "E"
FORM OF LETTER OF CREDIT
Arden Realty Limited Partnership
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We hereby establish in your favor, for the account of On'Village
Communications, Inc., a California corporation ("APPLICANT"), our Irrevocable
Letter of Credit and authorize you to draw on us at sight, the aggregate amount
of Seventy Eight Thousand Dollars ($78,000.00) ("STATED AMOUNT").
Funds under this Letter of Credit are available to Arden Realty
Limited Partnership, a Maryland limited partnership ("BENEFICIARY") as follows:
Any and all of the sums hereunder may be drawn down at any time and
from time to time from and after the date hereof by Beneficiary when
accompanied by this Letter of Credit and a written statement signed by an
authorized signatory of Beneficiary, certifying that such moneys are due and
owing to Beneficiary as a result of a default by Applicant with respect to any
provision of that certain Standard Office Lease dated April 7, 1997 ("LEASE")
by and between Beneficiary, as Landlord, and Applicant, as Tenant, together
with a notarized certification by any such individual representing that such
individual is authorized by Beneficiary to take such action on behalf of
Beneficiary. The sums drawn by Beneficiary under this Letter of Credit shall
be payable upon demand without necessity of notice.
This Letter of Credit is transferable by Beneficiary in its entirety.
Should a transfer be desired, such transfer will be subject to the return to us
of this Letter of Credit, together with written instructions.
The amount of each draft must be endorsed on the reverse hereof by the
negotiating bank. We hereby agree that this Letter of Credit shall be duly
honored upon presentation and delivery of the certification specified above.
This Letter of Credit shall expire on May 31, 1999.
Notwithstanding the above expiration of this Letter of Credit, the
term of this Letter of Credit shall be automatically renewed for successive,
additional one (1) year periods unless, at least thirty (30) days prior to any
such date of expiration, the undersigned shall give written notice to
Beneficiary, by certified mail, return receipt requested and at the address set
forth above or at such other address as may be given to the undersigned by
Beneficiary, that this Letter of Credit will not be renewed.
This Letter of Credit is governed by the Uniform Customs and Practice
for Documentary Credits (1993 Revision), International Chamber of Commerce
Publication 500.
Very truly yours,
▇▇▇▇▇ FARGO BANK, N.A.
By:_________________________________
Its:_____________________________
EXHIBIT "E"
43
EXHIBIT "F"
NONDISTURBANCE AND ATTORNMENT AGREEMENT
(CITY OF CALABASAS)
EXHIBIT "F"
44
RECORDING REQUESTED BY:
▇▇▇▇▇ ▇. ▇▇▇▇, ESQ.
WHEN RECORDED, RETURN TO:
▇▇▇▇▇ ▇. ▇▇▇▇, ESQ.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
NONDISTURBANCE AND ATTORNMENT AGREEMENT
This Nondisturbance and Attornment Agreement ("Agreement") is entered
into as of April 8, 1997, by and among the CITY OF CALABASAS, a California
municipal corporation ("City"), ARDEN REALTY LIMITED PARTNERSHIP, a Maryland
limited partnership ("Landlord") and ON'VILLAGE COMMUNICATIONS, INC., a
California corporation ("Tenant").
R E C I T A L S :
A. Landlord and Tenant have entered into an Office Lease dated
April 7, 1997 ("Lease"), covering certain premises ("Demised Premises"),
situated in the City of Calabasas, Los Angeles County, State of California
being part of an office building commonly known as ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ("Property"). The Property is more particularly
described in attached Exhibit A, incorporated by reference.
B. City has stated intentions of exercising its power of eminent
domain and acquiring ownership of the Property and the City Council has adopted
a Resolution of Necessity for such acquisition.
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C. On the terms and conditions in this Agreement, the parties
desire to assure Tenant possession of the Demised Premises for the entire term
of the Lease, even though City may acquire ownership of the Property by or
under the threat of eminent domain before the expiration of the Lease.
Therefore, in consideration of the mutual covenants and agreements
contained in this Agreement, the parties agree as follows:
1. NONDISTURBANCE.
So long as Tenant is not in default, beyond any period given to Tenant
to cure a default, in the payment of rent or in the performance of any of the
terms, covenants, or conditions of the Lease, City will not act in a capacity
as landlord or through the eminent domain action to terminate or otherwise
affect Tenant's interest under the Lease. Tenant expressly acknowledges that
Tenant is aware of the City's probable acquisition of the Subject Property and
agrees that Tenant shall not be entitled to relocation benefits, or claims for
goodwill or bonus value, arising out of or related to City's subsequent
acquisition of the Premises and Tenant's occupancy of the Premises in
accordance with the Lease. Tenant, therefore, waives, releases and forever
discharges any and all rights, claims or actions for relocation benefits
pursuant to Government Code Section 7260 et. seq. Tenant further waives,
releases and forever discharges all rights, claims or action for goodwill or
bonus value against City unless the Lease of Tenant is terminated other than as
may be allowed pursuant to the terms of the Lease between Landlord and Tenant.
Landlord and City hereby agree that this Agreement and the terms
hereof, and any action taken consistent with the terms thereof, cannot be used
in any manner or in any way or as evidence in any subsequent action at law or
in equity involving the City's acquisition of the Property.
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2. ATTORNMENT.
If the Landlord's interest is transferred to and owned by City because
of City's exercise of its power of eminent domain or by purchase or other
method of acquisition, or by any other manner and City succeeds to Landlord's
interest under the Lease, Tenant shall be bound to the City, and City shall be
bound to Tenant under all of the terms, covenants, and conditions of the Lease
for the balance of the remaining term, including any extensions or renewals,
with the same effect as if City were Landlord under the Lease and had waived
its power of eminent domain as provided herein. Tenant agrees to attorn to
City as the Landlord, with the attornment being effective and self-operable
immediately upon City succeeding to the interest of Landlord under the Lease,
all without the execution by the parties of any further instruments. However,
Tenant shall not be obligated to pay rent to City until Tenant receives written
notice from City notifying Tenant that City has succeeded to Landlord's
interest under the Lease and directing where rent should be mailed. The
respective rights and obligations of Tenant and City upon attornment, to the
extent of the then remaining balance of the term of the Lease, shall be the
same as in the Lease, which is incorporated by reference in this Agreement. If
City succeeds to Landlord's interest in the Lease, City shall be bound to
Tenant under all the terms, covenants, and conditions of the Lease, and Tenant
shall, after City's succession to Landlord's interest, have the same remedies
against City for the breach of any agreement in the Lease that Tenant might
have had against Landlord.
3. NEW LEASE AND FURTHER INSTRUMENTS.
Immediately upon request by the City, Tenant and City shall enter into
a new written lease for the remainder of the original Term of the Lease on the
same terms and conditions as the Lease, except for any changes made necessary
because of the substitution of the City in place of Landlord.
4. DEFINITIONS.
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The term Landlord shall include Landlord and the successors, assigns,
and sublessees of Landlord. The term Tenant shall include Tenant and the
successors, assigns, and sublessees of Tenant. This Agreement shall inure to
the benefit of and be binding upon all successors, assigns, and sublessees.
The term Lease shall include the Lease and all amendments, addenda, extensions,
and renewals.
5. NO CHANGE IN LEASE.
Landlord and Tenant agree not to change, alter, amend, or otherwise
modify the Lease without the prior written consent of City. Any change,
alteration, amendment, or other modification to the Lease without the prior
written consent of City shall be void as to City.
6. MODIFICATION.
This Agreement may not be modified other than by an agreement in
writing signed by the parties or by their respective successors in interest.
7. ATTORNEY FEES.
If any party commences any action against any other party based on
this Agreement, the prevailing party shall be entitled to recover reasonable
attorney fees, expenses, and costs of suit.
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8. NOTICES.
In this Agreement, wherever it is required or permitted that notice
and demand be given by any party to another party, that notice or demand shall
be given in writing and forwarded by certified mail, addressed as follows:
For Landlord: Arden Realty Limited Partnership
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
For Tenant: On'Village Communications, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
For City: ▇▇▇▇▇▇▇ ▇▇▇▇, City Manager
City of Calabasas
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Any party may change an address given for notice by giving written
notice of that change by certified mail to all other parties.
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9. SUCCESSORS.
This Agreement shall be binding on and inure to the benefit of the
parties and their respective heirs, successors, and assigns.
10. AUTHORITY.
(a) If any party is a corporation or a partnership, all
individuals executing this Agreement on behalf of a corporation or partnership
represent and warrant that they are authorized to execute and deliver this
Agreement on behalf of the corporation or partnership and that this Agreement
is binding upon the corporation or partnership.
(b) The Mayor of the City of Calabasas is hereby authorized to
execute this Agreement pursuant to California Government Code Section 40602.
11. HEADINGS.
The headings of this Agreement are for reference only and shall not
limit or define any meaning of this Agreement.
12. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which is an original, but all of which shall constitute one and the same
instrument.
13. GOVERNING LAW.
This Agreement shall be construed in accordance with and governed by
California law.
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The parties have duly executed this Agreement as of the date first
above written.
ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: Arden Realty, Inc., a Maryland corporation,
Its sole general partner
By: _______________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: President and COO
ON'VILLAGE COMMUNICATIONS, INC.,
a California corporation
By: _______________________________________
Typed Name:
Title:
CITY OF CALABASAS
By: _______________________________________
Mayor
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ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
-8-
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STATE OF _________________)
) ss.
COUNTY OF LOS ANGELES )
On _______________, 1997, before me, ________________________, a Notary Public
in and for said state, personally appeared _______________________, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to the within instrument and acknowledged to me
that he/she executed the same in his/her authorized capacity, and that by
his/her signature on the instrument, the person, or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal.
______________________________________
Notary Public in and for said State
STATE OF _________________)
) ss.
COUNTY OF LOS ANGELES )
On _______________, 1997, before me, ________________________, a Notary Public
in and for said state, personally appeared _______________________, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to the within instrument and acknowledged to me
that he/she executed the same in his/her
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53
authorized capacity, and that by his/her signature on the instrument, the
person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
______________________________________
Notary Public in and for said State
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STATE OF _________________)
) ss.
COUNTY OF LOS ANGELES )
On _______________, 1997, before me, ________________________, a Notary Public
in and for said state, personally appeared _______________________, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to the within instrument and acknowledged to me
that he/she executed the same in his/her authorized capacity, and that by
his/her signature on the instrument, the person, or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal.
______________________________________
Notary Public in and for said State
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