Exhibit 10.10
*** CERTAIN CONFIDENTIAL INFORMATION
CONTAINED IN THIS DOCUMENT
(INDICATED BY ASTERISKS) HAS BEEN
OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT UNDER 17
C.F.R. SECTIONS 200.80(B)(4),
200.803
AND 230.406
STANDARD OFFICE LEASE
BY AND BETWEEN
ARDEN REALTY FINANCE V, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY,
AS LANDLORD,
AND
▇▇▇▇▇▇▇.▇▇▇, INC.,
A DELAWARE CORPORATION DBA DELAWARE ▇▇▇▇▇▇▇.▇▇▇, INC.,
AS TENANT
SUITES 250 AND 300
GENESEE EXECUTIVE PLAZA
TABLE OF CONTENTS
PAGE
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ARTICLE 1 BASIC LEASE PROVISIONS...................................... 1
ARTICLE 2 TERM/PREMISES............................................... 1
ARTICLE 3 RENTAL...................................................... 2
(a) Basic Rental................................................ 2
(b) Increase in Direct Costs.................................... 2
(c) Definitions................................................. 3
(d) Determination of Payment.................................... 5
ARTICLE 4 INTENTIONALLY OMITTED....................................... 6
ARTICLE 5 HOLDING OVER................................................ 6
ARTICLE 6 OTHER TAXES................................................. 7
ARTICLE 7 USE......................................................... 7
ARTICLE 8 CONDITION OF PREMISES....................................... 8
ARTICLE 9 REPAIRS AND ALTERATIONS..................................... 8
(a) Landlord's Obligation....................................... 8
(b) Tenant's Obligation......................................... 8
(c) Alterations................................................. 9
(d) Insurance: Liens............................................ 9
(e) Costs and Fees; Removal..................................... 9
ARTICLE 10 LIENS....................................................... 10
ARTICLE 11 PROJECT SERVICES............................................ 10
(a) Basic Services.............................................. 10
(b) Excess Usage................................................ 11
(c) Additional Electrical Service............................... 11
(d) HVAC Balance................................................ 11
(e) Telecommunications.......................................... 11
(f) After-hours Use............................................. 11
(g) Reasonable Charges.......................................... 11
(h) Sole Electrical Representative.............................. 12
(i) Abatement Event............................................. 12
(j) Card Key Access............................................. 12
ARTICLE 12 RIGHTS OF LANDLORD.......................................... 12
(a) Right of Entity............................................. 12
(b) Maintenance Work............................................ 13
(c) Rooftop..................................................... 13
ARTICLE 13 INDEMNITY; EXEMPTION OF LANDLORD FROM LIABILITY............. 13
(a) Indemnity................................................... 13
(b) Exemption of Landlord from Liability........................ 14
(c) Security.................................................... 14
ARTICLE 14 INSURANCE................................................... 14
(a) Tenant's Insurance.......................................... 14
(b) Form of Policies............................................ 15
(c) Landlord's Insurance........................................ 15
(d) Waiver of Subrogation....................................... 15
(e) Compliance with Law......................................... 16
ARTICLE 15 ASSIGNMENT AND SUBLETTING................................... 16
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TABLE OF CONTENTS
(continued)
PAGE
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ARTICLE 16 DAMAGE OR DESTRUCTION....................................... 18
ARTICLE 17 SUBORDINATION............................................... 19
ARTICLE 18 EMINENT DOMAIN.............................................. 20
ARTICLE 19 DEFAULT..................................................... 20
(a) Tenant's Default............................................ 20
(b) Landlord's Default.......................................... 21
ARTICLE 20 REMEDIES.................................................... 21
ARTICLE 21 TRANSFER OF LANDLORD'S INTEREST............................. 22
ARTICLE 22 BROKER...................................................... 23
ARTICLE 23 PARKING..................................................... 23
ARTICLE 24 WAIVER...................................................... 23
ARTICLE 25 ESTOPPEL CERTIFICATE........................................ 24
ARTICLE 26 LIABILITY OF LANDLORD....................................... 24
ARTICLE 27 INABILITY TO PERFORM........................................ 25
ARTICLE 28 HAZARDOUS WASTE............................................. 25
ARTICLE 29 SURRENDER OF PREMISES; REMOVAL OF PROPERTY.................. 26
ARTICLE 30 MISCELLANEOUS............................................... 27
(a) SEVERABILITY; ENTIRE AGREEMENT.............................. 27
(b) Attorneys' Fees Waiver of Jury Trial........................ 28
(c) Time of Essence............................................. 28
(d) Pleadings; Joint and Several................................ 28
(e) Reserved Area............................................... 28
(f) NO OPTION................................................... 28
(g) Use of Project Name; Improvements........................... 28
(h) Rules and Regulations....................................... 28
(i) Quiet Possession............................................ 29
(j) Rent........................................................ 29
(k) Successors and Assigns...................................... 29
(l) Notices..................................................... 29
(m) Intentionally Omitted....................................... 29
(n) Right of Landlord to Perform................................ 29
(o) Access, Changes in Protect Facilities, Name................. 29
(p) Signing Authority........................................... 30
(q) Identification of Tenant.................................... 30
(r) Intentionally Omitted....................................... 31
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INDEX
PAGE(S)
-------
Abatement Event......................................................... 10
Abatement Notice........................................................ 10
ADA..................................................................... 4
Additional Rent......................................................... 2
Alterations............................................................. 8
Base Year............................................................... 1
Basic Rental............................................................ l
Brokers................................................................. l
Claims.................................................................. 11
Commencement Date....................................................... l
Cosmetic Alterations.................................................... 8
Damage Repair Estimate.................................................. 16
Direct Costs............................................................ 2
Eligibility Period...................................................... 11
Estimate ............................................................... 5
Estimate Statement...................................................... 5
Estimated Excess........................................................ 5
Event of Default........................................................ 18
Excess.................................................................. 5
Expiration Date......................................................... 1
Force Majeure........................................................... 21
Hazardous Material...................................................... 22
Initial Installment of Basic Rental..................................... l
Landlord................................................................ l
Landlord Parties........................................................ 11
Laws.................................................................... 23
Lease................................................................... 1
Parking Passes.......................................................... 1
Permitted Use........................................................... 1
Premises................................................................ 1
Project................................................................. 1
Real Property........................................................... 2
Security Deposit........................................................ 1
Square Footage.......................................................... 1
Statement............................................................... 5
Tenant.................................................................. 1
Tenant Improvements..................................................... 7
Tenant's Proportionate Share............................................ 1
Tenant's Signage........................................................ 27
Term.................................................................... l
Transfer Premium........................................................ 15
Transferee.............................................................. 15
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STANDARD OFFICE LEASE
This Standard Office Lease ("LEASE") is made and entered into as of this
30th day of September, 2003, by and between ARDEN REALTY FINANCE V, L.L.C., a
Delaware limited liability company ("LANDLORD"), and ▇▇▇▇▇▇▇.▇▇▇, INC., a
Delaware corporation dba Delaware ▇▇▇▇▇▇▇.▇▇▇, Inc. ("TENANT").
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
the premises described as Suite Nos. 250 and 300, as designated on the plan
attached hereto and incorporated herein as Exhibit "A" ("PREMISES"), of the
project ("PROJECT") now known as Genesee Executive Plaza whose address is ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ 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: Three (3) years.
COMMENCEMENT DATE: October 1, 2003.
EXPIRATION DATE: September 30, 2006.
26,281 rentable square feet (comprised of
B. SQUARE FOOTAGE: 1,506 rentable square feet for Suite 250 and
24,775 rentable square feet for Suite 300).
C. BASIC RENTAL:
Period Annual Basic Rental Monthly Monthly Basic Rental Per
------ ------ Basic Rental Rentable Square Foot
------------ --------------------
10/01/03 - 04/30/04 $491,980.32 $40,998.36 $1.56
05/01/04 - 04/30/05 $514,056.36 $42,838.03 $1.63
05/01/05 - 04/30/06 $536,132.40 $44,677.70 $1.70
05/01/06 - 09/30/06 $555,054.72 $46,254.56 $1.76
D. BASE YEAR: 2003.
E. TENANT'S PROPORTIONATE SHARE: 16.30%
F. SECURITY DEPOSIT: Waived.
G. PERMITTED USE: General office use.
H. BROKERS The ▇▇▇▇▇▇ ▇▇▇▇▇▇ Group, Inc. for Tenant.
I. PARKING PASSES: Tenant shall rent eighty-two (82) unreserved
parking passes at the rate provided in
Article 23 hereof.
J. INITIAL INSTALLMENT OF BASIC
RENTAL: Not applicable.
ARTICLE 2
TERM/PREMISES
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 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. Landlord and Tenant hereby
stipulate that the Premises contains the number of square feet specified in
Article I.B of the Basic Lease Provisions, except that the rentable and usable
square feet of the Premises and the Project are subject to verification from
time to time by Landlord's architect/space planner. In the event that Landlord's
architect/space planner determines that the amounts thereof shall be different
from those set forth in this Lease, all amounts, percentages and figures
appearing or referred to in this Lease based upon such incorrect amount
(including, without limitation, the amount of the Basic Rental and Tenant's
Proportionate Share) shall be modified in accordance with such determination. If
such determination is made, it will be confirmed in writing by Landlord to
Tenant. Landlord may deliver to Tenant a Commencement Letter in a form
substantially similar to that attached hereto as Exhibit "C", which Tenant shall
execute and return to Landlord within five (5) days of receipt thereof. Failure
of Tenant to timely execute and deliver the Commencement Letter shall constitute
acknowledgment by Tenant that the statements included in such notice are true
and correct, without exception.
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, except as otherwise expressly provided in this Lease 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.
(b) Increase in Direct Costs. The term "BASE YEAR" means the calendar year
set forth in Article I.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 each such subsequent calendar year equal
to the product of the amount set forth in Article I.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 calendar 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-five (365). Any and all amounts due and payable by Tenant
pursuant to this Lease (other than Basic Rental) 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.
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(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
on the rents, 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, then except to the extent such items are payable by Tenant under
Article 6 below, 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.
Notwithstanding anything to the contrary contained in this Section 3(c)(i),
there shall be excluded from Tax Costs (i) all excess profits taxes, franchise
taxes, gift taxes, capital stock taxes, inheritance and succession taxes, estate
taxes, federal and state income taxes, and other taxes to the extent applicable
to Landlord's general or net income (as opposed to rents or receipts
attributable to operations at the Project), (ii) any items included as Operating
Costs, and (iii) any items paid by Tenant under Article 6 of this Lease.
(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 cabling
and wiring, 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 fixes, 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 cabling and wiring 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, fees, costs, expenses or
dues payable pursuant to the terms of any covenants, conditions or restrictions
or owners' association pertaining to the Project, capital expenditures incurred
to effect economies of operation of, or stability of services to, the Project
and capital expenditures required by government regulations, laws, or ordinances
not in effect as of the Commencement Date; 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 in connection
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with 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. In no event shall costs for any
item of utilities included in Direct Costs for any year subsequent to the Base
Year be less than the amount included in Direct Costs for the Base Year for such
utility item. Notwithstanding anything to the contrary set forth in this 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) including, without
limitation, the cost of electricity, to a tenant's premises; (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 Americans with
Disabilities Act ("ADA"), including penalties or damages incurred due to such
non-compliance; (10) bad debt expenses and interest, principal, points and fees
on debts (except in connection with the financing of items which may be included
in Operating Costs) or amortization on any ground lease, mortgage or mortgages
or any other debt instrument encumbering the Project (including the land on
which the Project is situated); (11) marketing costs, including leasing
commissions, attorneys' fees in connection with the negotiation and preparation
of letters, deal memos, letters of intent, leases, subleases and/or assignments,
space planning costs, and other costs and expenses incurred in connection with
lease, sublease and/or assignment negotiations and transactions with present or
prospective tenants or other occupants of the Project, including attorneys' fees
and other costs and expenditures incurred in connection with disputes with
present or prospective tenants or other occupants of the Project; (12) real
estate brokers' leasing commissions; (13) costs, including permit, license and
inspection costs, incurred with respect to the installation of other tenants' or
occupants' improvements made for tenants or other occupants in the Project or
incurred in renovating or otherwise improving, decorating, painting or
redecorating vacant space for tenants or other occupants in the Project; (14)
any costs expressly excluded from Operating Costs elsewhere in this Lease; (15)
costs of any items (including, but not limited to, costs incurred by Landlord
for the repair of damage to the Project) to the extent Landlord receives
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reimbursement from insurance proceeds or from a third party (except that any
deductible amount under any insurance policy shall be included within Operating
Costs); (16) rentals and other related expenses for leasing an HVAC system,
elevators, or other items (except when needed in connection with normal repairs
and maintenance of the Project) which if purchased, rather than rented, would
constitute a capital improvement not included in Operating Costs pursuant to
this Lease; (17) depreciation, amortization and interest payments, except as
specifically included in Operating Costs pursuant to the terms of this Lease and
except on materials, tools, supplies and vendor-type equipment purchased by
Landlord to enable Landlord to supply services Landlord might otherwise contract
for with a third party, where such depreciation, amortization and interest
payments would otherwise have been included in the charge for such third party's
services, all as determined in accordance with generally accepted accounting
principles, consistently applied, and when depreciation or amortization is
permitted or required, the item shall be amortized over its reasonably
anticipated useful life; (18) costs incurred by Landlord for alterations
(including structural additions), repairs, equipment and tools which are of a
capital nature and/or which are considered capital improvements or replacements
under generally accepted accounting principles, consistently applied, except as
specifically included in Operating Costs pursuant to the terms of this Lease;
(19) expenses in connection with services or other benefits which are not
offered to Tenant or for which Tenant is charged for directly but which are
provided to another tenant or occupant of the Project, without charge; (20)
electric power costs or other utility costs for which any tenant directly
contracts with the local public service company (but Landlord shall have the
right to "gross up" as if such space was vacant); (21) costs incurred in
connection with the operation of retail stores selling merchandise and
restaurants in the Project to the extent such costs are in excess of the costs
Landlord reasonably estimates would have been incurred had such space been used
for general office use; (22) costs (including in connection therewith all
attorneys' fees and costs of settlement, judgments and/or payments in lieu
thereof) arising from claims, disputes or potential disputes in connection with
potential or actual claims litigation or arbitrations pertaining to Landlord
and/or the Project, other than such claims or disputes respecting any services
or equipment used in the operation of the Project by Landlord-, (23) costs
associated with the operation of the business of the partnership which
constitutes Landlord as the same are distinguished from the costs of operation
of the Project; (24) costs incurred in connection with the original construction
of the Project; (25) costs of correcting defects in or inadequacy of the initial
design or construction of the Project; and (26) costs incurred to (1) 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").
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(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 subsequently enforcing its rights to collect any Estimated Excess under
this Article 3, once such Estimated Excess has been determined by Landlord. 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 shall pay
monthly, with the monthly Basic Rental installments, an amount equal to
one-twelfth (1/12) of the total Estimated Excess set forth in the previous
Estimate Statement delivered by Landlord to Tenant.
(iii) In addition, Landlord shall endeavor to give to Tenant as soon
as reasonably practicable 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, once such Statement has been delivered. 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) 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
INTENTIONALLY OMITTED
ARTICLE 5
HOLDING OVER
Should Tenant, without Landlord's written consent, hold over after
termination of this Lease, Tenant shall become a tenant at sufferance upon each
and all of the terms herein provided as may be applicable to such a tenancy and
any such holding over shall not constitute an extension of this Lease. During
such holding over, Tenant shall pay in advance, monthly, Basic
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Rental at a rate equal to [***] 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 Lease
upon the expiration or earlier termination of the Term. If Landlord provides
Tenant with at least thirty (30) days prior written notice that Landlord has a
signed proposal or lease from a succeeding tenant to lease the Premises, and if
Tenant fails to surrender the Premises upon the later of (i) the date of
expiration of such thirty (30) day period, or (ii) the date of 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 and costs.
ARTICLE 6
OTHER 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,
within ten (10) days after delivery to Tenant by Landlord of a written statement
setting forth such amount the amount of such taxes applicable to Tenant's
property or above-standard improvements. Tenant shall assume and pay to Landlord
at the time Basic Rental next becomes due (or if assessed after the expiration
of the Term, then within ten (10) days), 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 the 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 upon the
rights of other tenants or occupants in the Project. Tenant shall, at its sole
cost and expense, promptly comply with all laws, statutes, ordinances,
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 (ii) improvements installed or
constructed in the Premises by-or for the benefit of Tenant. Tenant shall not
permit more than six (6) people per one thousand
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(1,000) rentable square feet of the Premises to occupy the Premises at any time.
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, and 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. Landlord represents that Landlord has taken or shall take the necessary
steps to comply with what Landlord reasonably believes are the requirements of
the ADA in effect as of the date of this Lease as it pertains to the common
areas within the Project. Operating Costs shall not include any cost incurred by
Landlord in connection with upgrading the Project to comply with the
requirements of the ADA that are in effect as of the date of this Lease,
including penalties or damages incurred due to such noncompliance.
ARTICLE 8
CONDITION OF PREMISES
Tenant hereby agrees that the Premises shall be taken "as is", "with all
faults", "without any representations or warranties", and Tenant hereby agrees
and warrants that it has investigated and inspected the condition of the
Premises and the suitability of same for Tenant's purposes, and Tenant does
hereby waive and disclaim any objection to, cause of action based upon, or claim
that its obligations hereunder should be reduced or limited because of the
condition of the Premises or the Project or the suitability of same for Tenant's
purposes. Tenant acknowledges that neither Landlord nor any agent nor any
employee of Landlord has made any representations or warranty with respect to
the Premises or the Project or with respect to the suitability of either for the
conduct of Tenant's business and Tenant expressly warrants and represents that
Tenant has relied solely on its own investigation and inspection of the Premises
and the Project in its decision to enter into this Lease and let the Premises in
the above-described condition. The existing leasehold improvements in the
Premises as of the date of this Lease may be collectively referred to herein as
the "TENANT IMPROVEMENTS". The taking of possession of the Premises by Tenant
shall conclusively establish that the Premises and the Project were at such time
in satisfactory condition. Tenant hereby waives subsection 1 of Section 1932 and
Sections 1941 and 1942 of the Civil Code of California or any successor
provision of law.
ARTICLE 9
REPAIRS AND ALTERATIONS
(a) Landlord's Obligation. 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, life safety, plumbing, sprinkler systems and heating, ventilating
and air-conditioning systems.
(b) Tenant's Obligation. 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 resulting from
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 or for
any repairs that may impact the mechanical, electrical, plumbing, heating,
ventilation or air-conditioning systems of the
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Project, 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 five (5) 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.
(c) Alterations. Tenant shall make no alterations, installations, changes
or additions in or to the Premises or the Project (collectively, "ALTERATIONS")
without Landlord's prior written consent. Any Alterations approved by Landlord
must be performed in accordance with the terms hereof, using only 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 Alterations in question, to be prepared and submitted by Tenant at its sole
cost and expense. Tenant shall at its sole cost and expense obtain all necessary
approvals and permits pertaining to any Alterations. Tenant shall cause all
Alterations to be performed in a good and workmanlike manner, in conformance
with all applicable federal, state, county and municipal laws, rules and
regulations, pursuant to a valid building permit, and in conformance with
Landlord's construction rules and regulations. If Landlord, in approving any
Alterations, specifies a commencement date therefor, Tenant shall not commence
any work with respect to such Alterations prior to such date. Notwithstanding
anything to the contrary contained herein, Tenant may make strictly cosmetic
changes to the finish work in the Premises (the "COSMETIC ALTERATIONS") without
Landlord's consent, provided that the aggregate cost of any such alterations
does not exceed [***], and further provided that such alterations do not (i)
require any structural or other substantial modifications to the Premises, (ii)
require any changes to, nor adversely affect, the systems and equipment of the
Project, and (iii) affect the exterior appearance of the Project. Tenant shall
give Landlord at least fifteen (15) days prior notice of such Cosmetic
Alterations, which notice shall be accompanied by reasonably adequate evidence
that such changes meet the criteria contained in this Article 9. Tenant hereby
agrees to indemnify, defend, and 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 in connection with any Alterations.
(d) Insurance: Liens. Prior to the commencement of any Alterations, Tenant
shall provide Landlord with evidence that Tenant carries "Builder's All Risk"
insurance in an amount approved by Landlord covering the construction of such
Alterations, and such other insurance as Landlord may reasonably require, it
being understood that all such Alterations shall be insured by Tenant pursuant
to Article 14 of this Lease immediately upon completion thereof. In addition,
Landlord may, in its discretion, require Tenant to obtain a lien and completion
bond or some alternate form of security satisfactory to Landlord in an amount
sufficient to ensure the lien free completion of such Alterations and naming
Landlord as a co-obligee.
(e) Costs and Fees; Removal. If permitted Alterations 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 prior
to the end of the Term, require Tenant at Tenant's expense to remove all
partitions, counters, railings, cabling and other Alterations installed by
Tenant, and to repair any damage to the Premises and the Project 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 Tenant's 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
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administrative/coordination 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.
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 Tenant agrees to defend,
indemnify and hold Landlord harmless 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 promptly deposit with Landlord in cash, lawful money of the United
States, [***] 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 and costs
incurred by Landlord, and shall remit the balance thereof to Tenant.
ARTICLE 11
PROJECT SERVICES
(a) Basic Services. 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 and in compliance with applicable codes. 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
establish for the proper functioning and protection of the common area air
conditioning, heating, elevator, electrical intrabuilding cabling and wiring and
plumbing systems. Except as provided in Section 11(i) below, 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 any additional building services furnished to Tenant
which are not uniformly furnished to all tenants of the Project, at the rate
generally charged by Landlord to tenants of the Project for such utilities or
services.
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(b) Excess Usage. 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) Additional Electrical Service. If Tenant shall require electric
current in excess of that which Landlord is obligated to furnish under Article
11(a) above, Tenant shall first obtain the written consent of Landlord, which
Landlord may refuse in its sole and absolute discretion.
(d) HVAC Balance. If any lights, machines or equipment (including but not
limited to computers and computer systems and appurtenances) 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. (e) Telecommunications. Upon
request from Tenant from time to time, Landlord will provide Tenant with a
listing of telecommunications and media service providers serving the Project,
and Tenant shall have the right to contract directly with the providers of its
choice. If Tenant wishes to contract with or obtain service from any provider
which does not currently serve the Project or wishes to obtain from an existing
carrier services which will require the installation of additional equipment,
such provider must, prior to providing service, enter into a written agreement
with Landlord setting forth the terms and conditions of the access to be granted
to such provider. In considering the installation of any new or additional
telecommunications cabling or equipment at the Project, Landlord will consider
all relevant factors in a reasonable and non-discriminatory manner, including,
without limitation, the existing availability of services at the Project, the
impact of the proposed installations upon the Project and its operations and the
available space and capacity for the proposed installations. Landlord may also
consider whether the proposed service may result in interference with or
interruption of other services at the Project or the business operations of
other tenants or occupants of the Project. In no event shall Landlord be
obligated to incur any costs or liabilities in connection with the installation
or delivery of telecommunication services or facilities at the Project. All such
installations shall be subject to Landlord's prior approval and shall be
performed in accordance with the terms of Article 9. If Landlord approves the
proposed installations in accordance with the foregoing, Landlord will deliver
its standard form agreement upon request and will use commercially reasonable
efforts to promptly enter into an agreement on reasonable and non-discriminatory
terms with a qualified, licensed and reputable carrier confirming the terms of
installation and operation of telecommunications equipment consistent with the
foregoing.
(f) After-hours Use. If Tenant requires heating, ventilation and/or air
conditioning during times other than the times provided in Article 11 (a) above,
Tenant shall pay Landlord's standard charge for such after-hours use, which rate
is currently [***]
(g) Reasonable Charges. Landlord -ray 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(a) and (d) above)
utilized by Tenant in excess of the amount or type that Landlord reasonably
determines is typical for general office use.
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(h) Sole Electrical Representative. Tenant agrees that Landlord shall be
the sole and exclusive representative with respect to, and shall maintain
exclusive control over, the reception, utilization and distribution of
electrical power, regardless of point or means of origin, use or generation.
Tenant shall not have the right to contract directly with any provider of
electrical power or services.
(i) Abatement Event. An "ABATEMENT EVENT" shall be defined as an event
that prevents Tenant from using the Premises or any portion thereof, as a result
of any failure to provide services or access to the Premises, where (i) Tenant
does not actually use the Premises or such portion thereof, and (ii) such event
is not caused by the negligence or willful misconduct of Tenant, its agents,
employees or contractors. Tenant shall give Landlord notice ("Abatement Notice")
of any such Abatement Event, and if such Abatement Event continues beyond the
"Eligibility Period" (as that term is defined below), then the Basic Rental and
Tenant's Proportionate Share of Direct Costs and Tenant's obligation to pay for
parking shall be abated entirely or reduced, as the case may be, after
expiration of the Eligibility Period for such time that Tenant continues to be
so prevented from using, and does not use, the Premises or a portion thereof, in
the proportion that the rentable area of the portion of the Premises that Tenant
is prevented from using, and does not use, bears to the total rentable area of
the Premises; provided, however, in the event that Tenant is prevented from
using, and does not use, a portion of the Premises for a period of time in
excess of the Eligibility Period and the remaining portion of the Premises is
not sufficient to allow Tenant to effectively conduct its business therein, and
if Tenant does not conduct its business from such remaining portion, then for
such time after expiration of the Eligibility Period during which Tenant is so
prevented from effectively conducting its business therein, the Basic Rental and
Tenant's Proportionate Share of Direct Costs and Tenant's obligation to pay for
parking for the entire Premises shall be abated entirely for such time as Tenant
continues to be so prevented from using, and does not use, the Premises. If,
however, Tenant reoccupies any portion of the Premises during such period, the
Basic Rental and Tenant's Proportionate Share of Direct Costs allocable to such
reoccupied portion, based on the proportion that the rentable area of such
reoccupied portion of the Premises bears to the total rentable area of the
Premises, shall be payable by Tenant from the date Tenant reoccupies such
portion of the Premises. The term "ELIGIBILITY PERIOD" shall mean a period of
five (5) consecutive business days after Landlord's receipt of any Abatement
Notice(s).
(j) Card Key Access. In the event the Project currently has, or Landlord
later elects to install, a card key access system, Tenant agrees to pay $10.00
for the replacement of lost, damaged, or misplaced card keys.
ARTICLE 12
RIGHTS OF LANDLORD
(a) Right of Entity. Landlord and its agents shall have the right 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 Project, showing the same to prospective tenants, lenders 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 forcibly enter, in the case of an
emergency, in each event without liability to Tenant and without affecting this
Lease.
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(b) Maintenance Work. 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, relocate and control for
service to the Premises and/or other parts of the Project pipes, ducts,
conduits, wires, cabling, appurtenant fixtures, equipment spaces 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. Landlord shall attempt to
perform any such work with the least inconvenience to Tenant as is reasonably
practicable, but in no event shall Tenant be permitted to withhold or reduce
Basic Rental or other charges due hereunder as a result of same, make any claim
for constructive eviction or otherwise make any claim against Landlord for
interruption or interference with Tenant's business and/or operations.
(c) Rooftop. If Tenant desires to use the rooftop of the Project for any
purpose, including the installation of communication equipment to be used from
the Premises, such rights will be granted in Landlord's sole discretion and
Tenant must negotiate the terms of any rooftop access with Landlord or the
rooftop management company or lessee holding rights to the rooftop from time to
time. Any rooftop access granted to Tenant will be at prevailing rates and will
be governed by the terms of a separate written agreement or an amendment to this
Lease.
ARTICLE 13
INDEMNITY; EXEMPTION OF LANDLORD FROM LIABILITY
(a) Indemnity. Tenant shall indemnify, defend and hold Landlord, Arden
Realty, Inc., Arden Realty Limited Partnership, their subsidiaries, partners,
affiliates and their respective officers, directors, employees and contractors
(collectively, "LANDLORD PARTIES") harmless from any and all claims arising from
Tenant's use of the Premises or the Projector 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 and the Landlord Parties 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
or willful misconduct 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 and costs, expenses and liabilities incurred in the
defense of any claim or any action or proceeding brought thereon, including
negotiations in connection therewith. However, notwithstanding the foregoing,
Tenant shall not be required to indemnify and/or hold Landlord harmless from any
loss, cost, liability, damage or expense, including, but not limited to,
penalties, fines, attorneys' fees or costs (collectively, "CLAIMS"), to any
person, property or entity to the extent resulting from the negligence or
willful misconduct of Landlord or its agents, contractors, or employees (except
for damage to the Tenant Improvements and Tenant's personal property, fixtures,
furniture and equipment in the Premises in which case Tenant shall be
responsible to the extent Tenant is required to obtain the requisite insurance
coverage pursuant to this Lease). Landlord hereby indemnifies Tenant and holds
Tenant harmless from any Claims to the extent resulting from the negligence or
willful misconduct of Landlord or its agents, contractors or employees;
provided, however, that because Landlord maintains insurance on the Project and
Tenant compensates Landlord for such insurance as part of Tenant's Proportionate
Share of Direct Costs and because of the existence of waivers of subrogation set
forth in Article 14 of this Lease, Landlord hereby indemnifies and holds Tenant
harmless from any Claims to any property outside of the Premises to the extent
such Claim is covered by such insurance, even if resulting from the negligent
acts, omissions, or willful misconduct of Tenant or those of its agents,
contractors, or employees. Similarly, since Tenant must carry insurance pursuant
to Article 14 to cover its personal property within the Premises and the Tenant
Improvements,
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Tenant hereby indemnifies and holds Landlord harmless from any Claim to any
property within the Premises, to the extent such Claim is covered by such
insurance, even if resulting from the negligent acts, omissions or willful
misconduct of Landlord or those of its agents, contractors, or employees. 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 and the Landlord Parties, excepting where the damage is
caused solely by the gross negligence or willful misconduct of Landlord or of
Landlord Parties.
(b) Exemption of Landlord from Liability. Landlord and the Landlord
Parties shall not be liable for injury to Tenant's business, or loss of income
therefrom, however occurring (including, without limitation, from any failure or
interruption of services or utilities) or, except in connection with damage or
injury resulting from the gross negligence or willful misconduct of Landlord or
the Landlord Parties, 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 any cause whatsoever,
including, but not limited to, 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 cabling or wiring, whether such damage
or injury results from conditions arising upon the Premises or upon other
portions of the Project or four other sources or places and regardless of
whether the cause of such damage or injury or the means of repairing the same is
inaccessible to Tenant. Landlord and the Landlord Parties shall not be liable to
Tenant for any damages arising from any willful or negligent action or inaction
of any other tenant of the Project.
(c) Security. Tenant acknowledges that Landlord's election whether or not
to provide any type of mechanical surveillance or security personnel whatsoever
in the Project is solely within Landlord's discretion. Except in the event
Landlord or the Landlord Parties are grossly negligent, Landlord and the
Landlord Parties shall not be liable for losses due to theft, vandalism, or like
causes.
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,
written on an occurrence basis, with a combined single limit for bodily injury
and property damages of not less than [***] per occurrence and [***] in the
annual aggregate, including products liability coverage if applicable, owners
and contractors protective coverage, blanket contractual coverage including both
oral and written contracts, and personal injury coverage, 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, including but not limited to all mechanical,
plumbing, heating, ventilating, air conditioning, electrical, telecommunication
and other equipment, systems and facilities, 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 extra expense insurance covering any failure or
interruption of Tenant's business equipment
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(including, without limitation, telecommunications equipment) and covering all
other perils, failures or interruptions sufficient to cover a period of
interruption of not less than twelve (12) months. Tenant shall carry and
maintain during the entire 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, so
long as such increased amounts and/or other types of insurance coverage are then
generally required by comparable landlords of comparable first-class,
institutional quality buildings in the vicinity of the Project.
(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, the Landlord Parties, 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 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 as to Claims
arising within the Premises and that any insurance carried 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 in a timely manner, Landlord may (but shall not be required to), upon
prior notice to Tenant and the expiration of a five (5) day cure period, procure
said insurance on Tenant's behalf and charge Tenant the cost thereof, which
amount shall be payable by Tenant upon demand with interest (at the rate set
forth in Section 20(e) below) 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 may, 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, 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 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; and
(iv) any other forms of insurance Landlord may deem appropriate or any lender
may require. The costs of all insurance carried by Landlord shall be included in
Operating Costs.
(d) Waiver of Subrogation. Landlord and Tenant each agree to require 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.
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(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 that may be carried 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 the
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 equipment which causes an overload of electrical
lines of the Premises, Tenant shall at its own cost and expense in accordance
with all other Lease provisions(specifically including, but not limited 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 insurance requirements applicable to the
Premises, including without limitation, the installation of fire extinguishers
or an automatic dry chemical extinguishing system.
ARTICLE 15
ASSIGNMENT AND SUBLETTING
Tenant shall have no power to, 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 consent shall not be
unreasonably withheld. 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" (as hereafter defined) shall be subject
to the prior written consent of Landlord, which consent will not be unreasonably
withheld 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 might reasonably be expected
to diminish the rent payable pursuant to any percentage rent lease with 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);
(ii) The financial responsibility of the proposed Transferee is not
reasonably satisfactory to Landlord;
(iii) The proposed Transferee is either a governmental agency or
instrumentality thereof;
(iv) Either the proposed Transferee or any person or entity which
directly or indirectly controls, is controlled by or is under common control
with the proposed Transferee (A) occupies space in the Project at the time of
the request for consent and Landlord has space in the Project available for
lease to such party of comparable size as the proposed space to be assigned or
sublet, or (B) is negotiating with Landlord to lease space in the Project; or
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(v) The rent charged by Tenant to such Transferee during the term of
such Transfer, calculated using a present value analysis, is less than the rent
being quoted by Landlord at the time of such Transfer for comparable space in
the Project for a comparable term, calculated using a present value analysis.
(b) Upon Tenant's submission of a request for Landlord's consent to any
such Transfer, Tenant shall pay to Landlord Landlord's then standard processing
fee and reasonable attorneys' fees and costs incurred in connection with the
proposed Transfer, which the parties hereby stipulate to be [***], unless
Landlord provides to Tenant evidence that Landlord has incurred greater costs in
connection with the proposed Transfer;
(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 ("TRANSFER") that
(i) upon Landlord's consent to any Transfer, Tenant shall pay and continue to
pay [***] 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 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 the Basic
Rental and Direct Costs payable by Tenant under this Lease during the term of
the Transfer and if such Transfer is for less than all of the Premises, the
Transfer Premium shall be calculated on a rentable square foot basis. In any
event, the Transfer Premium shall be calculated after deducting the reasonable
expenses incurred by Tenant for (1) any changes, alterations and improvements to
the Premises paid for by Tenant in connection with the Transfer, (2) any other
out-of-pocket monetary concessions provided by Tenant to the Transferee, and (3)
any brokerage commissions paid for by Tenant in connection with the Transfer.
"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 Transfer of this
Lease which is not in compliance with the provisions of this Article 15 shall be
voidable by written notice from Landlord and shall, at the option of Landlord,
terminate this Lease. In no event shall the consent by Landlord to any Transfer
be construed as relieving Tenant, or any Transferee from obtaining
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the express written consent of Landlord to any further Transfer, 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 Transferee
hereunder, or a release of Tenant (or of any Transferee of Tenant).
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, an injunction for the relief sought and/or monetary damages, and
Tenant hereby waives all other remedies, including, without limitation, any
right at law or equity to terminate this Lease.
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 proposed 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 previously contained in
the 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 DESTRUCTION
Within sixty (60) days after the date Landlord learns of the necessity for
repairs as a result of damage, Landlord shall notify Tenant ("DAMAGE REPAIR
ESTIMATE") of Landlord's estimated assessment of the period of time in which the
repairs will be completed. 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 the Damage Repair
Estimate indicates that repairs can 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 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, unless and
to the extent Landlord receives rental income insurance proceeds. 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, however, the Damage Repair Estimate
indicates that repairs cannot 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 such repairs 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 sixty
(60)
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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, if the damage is not fully covered,
except for deductible amounts, by Landlord's insurance policies. However, if
Landlord does not elect to terminate this Lease pursuant to Landlord's
termination right as provided above, and the Damage Repair Estimate indicates
that repairs cannot be completed within one hundred eighty (180) days after
being commenced, Tenant may elect, not later than thirty (30) days after
Tenant's receipt of the Damage Repair Estimate, to terminate this Lease by
written notice to Landlord effective as of the date specified in Tenant's
notice. 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. In the event that the
Premises or the Project is destroyed or damaged to any substantial extent during
the last twelve (12) months of the Term and if the Damage Repair Estimate
indicates that such damage shall take longer than sixty (60) days to repair and
if such damage is not the result of the negligence or willful misconduct of
Tenant or Tenant's employees, licensees, invitees or agents, then
notwithstanding anything in this Article 16 to the contrary, Tenant shall have
the option to terminate this Lease by written notice to Landlord of the exercise
of such option within sixty (60) days after Tenant 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. Tenant acknowledges that Tenant shall have no right
to any proceeds of insurance carried by Landlord 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 a condition precedent to such subordination
shall be that Landlord obtains from the lender or other party in question a
commercially reasonable non-disturbance agreement in favor of Tenant. Subject to
the foregoing, Tenant agrees, within ten (10) business days after Landlord's
written request therefor, to execute, acknowledge and deliver
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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 ten (10) 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.
ARTICLE 19
DEFAULT
(a) Tenant's 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":
(i) 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;
(ii) Except as set forth in items (i) above and (iii) below, failure
to perform or observe any other covenant or condition of this Lease to be
performed or observed within
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thirty (30) days following written notice to Tenant of such failure; however, if
the nature of such default is such that the same cannot be reasonably cured
within a thirty (30) day period, Tenant shall not be deemed to be in default if
Tenant diligently commences such cure within such period and thereafter
diligently proceeds to rectify and cure said default. 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;
or
(iii) Tenant's failure to observe or perform according to the
provisions of Articles 7, 17 or 25 within five (5) business days after notice
from Landlord.
(b) Landlord's Default. Notwithstanding anything to the contrary set forth
in this Lease, Landlord shall be in default in the performance of any obligation
required to be performed by Landlord pursuant to this Lease if Landlord fails to
perform such obligation within thirty (30) days after the receipt of notice from
Tenant specifying in detail Landlord's failure to perform; provided, however, if
the nature of Landlord's obligation is such that more than thirty (30) days are
required for its performance, then Landlord shall not be in default under this
Lease if it shall commence such performance within such thirty (30) day period
and thereafter diligently pursue the same to completion. Upon any such default
by Landlord under this Lease, Tenant may, except as otherwise specifically
provided in this Lease to the contrary, exercise any of its rights provided at
law or in equity.
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 award 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 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
coarse of things would be likely to result therefrom; 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 tern "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 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
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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 [***] 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: (i) if Basic Rental is
not paid on or before the fifth (5th) day of the calendar month for which the
same is due, a late charge equal to [***] of the amount overdue shall be
immediately due and owing 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 (ii) an
additional charge of [***] 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. 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.
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ARTICLE 22
BROKER
In connection with this Lease, Tenant warrants and represents that it has
had dealings only with, term(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.
Tenant shall pay to Landlord for automobile parking passes [***]. In addition,
Tenant shall be responsible for the full amount of any taxes 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, from time to time, relocate any reserved parking
spaces (if any) rented by Tenant to another location in the Project parking
facility. 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. 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 or Tenant of any provision of this Lease shall be deemed
to be a waiver of any other provision hereof or of any subsequent breach of the
same or any other provision. No provision of this Lease may be waived by
Landlord or Tenant, except by an instrument in writing executed by the waiving
party. 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
-23-
the Term of this Lease shall be deemed an acceptance of a surrender of the
Premises, and no agreement to accept such surrender shall be valid unless in
writing and signed by Landlord. The subsequent acceptance of rent hereunder by
Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of
any term, covenant or condition of this Lease, other than the failure of Tenant
to pay the particular rent so accepted, regardless of Landlord's knowledge of
such preceding breach at the time of acceptance of such rent. 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; and (iii)
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.
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 or the Landlord Parties 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. No other property or assets of Landlord or
any Landlord Party 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.
-24-
ARTICLE 27
INABILITY TO PERFORM
This Lease and the obligations of both parties hereunder shall not be
affected or impaired because such party 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, a- any other cause previously, or at such time, beyond the
reasonable control or anticipation of such party (collectively, a "FORCE
MAJEURE") and both parties' obligations under this Lease shall be forgiven and
suspended by any such Force Majeure; provided, however, that this Article 27 is
not intended to, and shall not, extend the time period for the payment of any
monetary amounts due (including, without limitation, rent payments from Tenant)
from either party to the other under this Lease nor relieve either party from
their monetary obligations to the other under this Lease.
ARTICLE 28
HAZARDOUS WASTE
(a) Tenant shall not cause or permit any Hazardous Material (as defined in
Article 28(b) below) to be brought, kept or used in or about the Project by
Tenant, its agents, employees, contractors, or invitees. Tenant indemnifies
Landlord and the Landlord Parties from and against any breach by Tenant of the
obligations stated in the preceding sentence, and agrees to defend and hold
Landlord and the Landlord Parties 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 and costs, 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 and the Landlord Parties
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, then 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, provided however, Landlord shall also have
the right, by written notice to Tenant, to directly undertake any such
mitigation efforts with regard to Hazardous Materials in or about the Project
due to Tenant's breach of its obligations pursuant to this Section 28(a), and to
charge Tenant, as Additional Rent, for the costs thereof.
(b) 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
-25-
subject to an enforcement order issued by any governmental authority in
connection with the use, disposal, or storage of a Hazardous Material.
(c) 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).
(d) As used herein, the term "LAWS" means any applicable federal, state or
local law, ordinance, or regulation relating to any Hazardous Material affecting
the Project, including, without limitation, the laws, ordinances, and
regulations referred to in Article 28(c) 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 good order and condition , 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, telephone and data cabling 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 removal of such items from the Premises.
(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
-26-
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 thirty (30) 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 to or 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 as follows: 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 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, leasehold improvements, Alterations 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. Such fixtures,
equipment, leasehold improvements, 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, security 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 AND 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 REGARD TO
TENANT'S OCCUPANCY OR USE OF ALL OR ANY PORTION OF THE PROJECT, 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. THE PARTIES AGREE THAT ANY DELETION OF LANGUAGE FROM THIS LEASE PRIOR
TO ITS MUTUAL "EXECUTION BY LANDLORD AND TENANT SHALL NOT BE CONSTRUED TO HAVE
ANY PARTICULAR MEANING OR TO RAISE ANY PRESUMPTION, CANON OF CONSTRUCTION OR
IMPLICATION INCLUDING, WITHOUT LIMITATION, ANY IMPLICATION THAT THE PARTIES
INTENDED THEREBY TO STATE THE CONVERSE, OBVERSE OR OPPOSITE OF THE DELETED
LANGUAGE.
(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
and costs in such suit and such attorneys'
-27-
fees and costs 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) 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. Time is of the essence with respect to the
performance of every provision of this Lease.
(d) Pleadings; Joint and Several. 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, wiring and cabling leading
through, under or above the Premises or throughout the Project 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 TENANT 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 as Exhibit "B"
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.
-28-
(i) Quiet Possession. Upon Tenant's paying the Basic Rental, 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, or via
overnight courier, and shall be effective upon proof of delivery, addressed to
Tenant at the Premises or to Landlord at the management office for the Project,
with a copy to Landlord, c/o Arden Realty, Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Legal Department. 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 designated by notice from Landlord to Tenant. Any notices sent
by Landlord regarding or relating to eviction procedures, including without
limitation three day notices, may be sent by regular mail.
(m) Intentionally Omitted.
(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 [***]
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 Protect Facilities, Name.
(i) Every part of the Project except the inside surfaces of all
walls, windows and doors bounding the Premises (including exterior building
walls, the rooftop, core corridor walls and doors and any core corridor
entrance), and any space in or adjacent to the Premises or within the Project
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.
-29-
(ii) Tenant shall permit Landlord to install, use and maintain
pipes, ducts and conduits within the walls, columns and ceilings of the Premises
and throughout the Project.
(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, from time to time, to change the name and/or address of the
Project.
(p) Signing Authority. Concurrently with Tenant's execution of this Lease,
Tenant shall provide to Landlord reasonably satisfactory evidence that the
individuals executing this Lease on behalf of Tenant are authorized to bind
Tenant and to enter into 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 the individual or individuals authorized to execute this
Lease on behalf of Partnership Tenant under Subparagraph (p) above.
(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.
-30-
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) Intentionally Omitted.
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 FINANCE V, L.L.C.,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
Its: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Senior Vice President
Leasing and Operations
"TENANT" ▇▇▇▇▇▇▇.▇▇▇, INC.,
a Delaware corporation dba Delaware
▇▇▇▇▇▇▇.▇▇▇, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Title: CFO
-------------------------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Title: President
-------------------------------------
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EXHIBIT "A"
PREMISES
[Floor Plan]
-1-
[Suite 300 Floor Plan]
-2-
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, 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. Under no circumstances is trash
to be stored in the corridors. Notice must be given to Landlord for any large
deliveries. Furniture, freight and other large or heavy articles, and all other
deliveries may be brought into the Project only at times and in the manner
designated by Landlord, and always at Tenant's sole responsibility and risk.
Landlord may impose reasonable charges for use of freight elevators after or
before normal business hours. All damage done to the Project by moving or
maintaining such furniture, freight or articles shall be repaired by Landlord at
Tenant's expense. Tenant shall not take or permit to be taken in or out of
entrances or passenger elevators of the Project, any item normally taken, or
which Landlord otherwise reasonably requires to be taken, in or out through
service doors or on freight elevators. Tenant shall move all supplies, furniture
and equipment as soon as received directly to the Premises, and shall move all
waste that is at any time being taken from the Premises directly to the areas
designated for disposal.
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. Tenant shall not place typed, handwritten or computer
generated signs in the corridors or any other common areas. Should there be a
need for signage additional to the Project standard tenant placard, a written
request shall be made to Landlord to obtain approval prior to any installation.
All costs for said signage shall be Tenant's responsibility.
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
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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, at Tenant's cost, 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. 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.
10. Tenant shall cooperate with Landlord in obtaining maximum
effectiveness of the cooling system by closing window coverings 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. The foregoing
notwithstanding, Tenant shall have the right to use a microwave and to heat
microwavable items typically heated in an office. No hot plates, toasters,
toaster ovens or similar open element cooking apparatus shall be permitted in
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 ▇▇▇▇▇.
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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 and key cards 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. If more than two keys for one lock are desired, Landlord will
provide them upon payment therefor by Tenant. Tenant shall not key or re-key any
locks. All locks shall be keyed by Landlord's locksmith only.
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 and may at all times control access to the
equipment areas of the Project outside the Premises. 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. Landlord may
also establish from time to time reasonable rules and charges for accessing the
equipment areas of the Project, including the risers, rooftops and telephone
closets.
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 or its designated representative such
as security personnel (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. Tenant shall cooperate and comply with
any reasonable safety or security programs, including fire drills and air raid
drills, and the appointment of "fire wardens" developed by Landlord for the
Project, or required by law. Before leaving the Premises unattended, Tenant
shall close and securely lock all doors or other means of entry to the Premises
and shut off all lights and water faucets in the Premises.
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
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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'h ▇▇▇▇▇ 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'/z ▇▇▇▇▇ 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) Project parking facility hours shall be 7:00 a.m. to 7:00 p.m.,
Monday through Friday, and closed on weekends, state and federal holidays
excepted, as such hours may be revised from time to time by Landlord.
(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 $10.00 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 the 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 Project parking facility, and any
violation of the rules shall subject the automobile to removal from the Project
parking facility 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).
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(j) Project parking facility managers or attendants are not
authorized to make or allow any exceptions to these Rules and Regulations.
(k) All responsibility for any loss or damage to automobiles or any
personal property therein is assumed by the ▇▇▇▇▇▇.
(1) Loss or theft of parking identification devices from automobiles
must be reported to the Project parking facility 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 Project parking facility for a
period of more than one (1) week.
27. The Project is a non-smoking Project. Smoking or carrying lighted
cigars o: cigarettes in the Premises or the Project, including the elevators in
the Project, is prohibited.
28. Tenant shall not, without Landlord's prior written consent (which
consent may be granted or withheld in Landlord's absolute discretion), allow any
employee or agent to carry any type of gun or other firearm in or about any of
the Premises or Project.
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EXHIBIT "C"
NOTICE OF TERM DATES
AND TENANT'S PROPORTIONATE SHARE
TO:_________________________________ DATE:______________________________
____________________________________
____________________________________
RE: Lease dated __________, 20__, 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 the 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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