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EXHIBIT 10.17
OFFICE BUILDING LEASE
BETWEEN
KOLL CENTER IRVINE NUMBER TWO
LANDLORD
AND
PRO BUSINESS, INC.
TENANT
2
STANDARD LEASE
[SHORT FORM]
TABLE OF CONTENTS
Page
----
1. BASIC LEASE TERMS................................................... 1
2. PREMISES AND COMMON AREAS........................................... 2
3. TERM................................................................ 2
4. POSSESSION.......................................................... 2
5. RENT................................................................ 2
6. OPERATING EXPENSES.................................................. 2
7. SECURITY DEPOSIT.................................................... 3
8. USE................................................................. 3
9. NOTICES............................................................. 4
10. BROKERS............................................................. 4
11. SURRENDER, HOLDING OVER............................................. 4
12. TAXES ON TENANT'S PROPERTY.......................................... 4
13. ALTERATIONS......................................................... 4
14. REPAIRS............................................................. 4
15. LIENS............................................................... 5
16. ENTRY BY LANDLORD................................................... 5
17. UTILITIES AND SERVICES.............................................. 5
18. ASSUMPTION OF RISK AND INDEMNIFICATION.............................. 5
19. INSURANCE........................................................... 6
20. DAMAGE OR DESTRUCTION............................................... 7
21. EMINENT DOMAIN...................................................... 7
22. DEFAULTS AND REMEDIES............................................... 8
23. LANDLORD'S DEFAULT.................................................. 9
24. ASSIGNMENT AND SUBLETTING........................................... 9
25. SUBORDINATION....................................................... 9
26. ESTOPPEL CERTIFICATE................................................ 10
27. BUILDING PLANNING................................................... 10
28. RULES AND REGULATIONS............................................... 10
29. MODIFICATION AND CURE RIGHTS OF LANDLORD'S MORTGAGEES AND LESSORS... 10
30. DEFINITION OF LANDLORD.............................................. 10
31. WAIVER ............................................................. 10
32. PARKING............................................................. 11
33. FORCE MAJEURE....................................................... 11
34. SIGNS............................................................... 11
35. LIMITATION ON LIABILITY............................................. 11
36. FINANCIAL STATEMENTS................................................ 11
37. QUIET ENJOYMENT..................................................... 11
38. MISCELLANEOUS....................................................... 12
39. EXECUTION OF LEASE.................................................. 12
EXHIBITS:
A-I Floor Plan
A-II Site Plan
B (Section deleted and initialed by ME)
C Description of Landlord's Work
D Tenant's Insurance Requirements
E Definition of Operating Expenses
F Standards For Utilities and Services
G Estoppel Certificate
H Rules and Regulations
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STANDARD LEASE
[Short Form]
This STANDARD LEASE ("Lease") is entered into as of the 7th day of November,
1994, by and between KOLL CENTER IRVINE NUMBER TWO, a California limited
partnership ("Landlord"), and PRO BUSINESS, INC., a California corporation
("Tenant").
1. BASIC LEASE TERMS. For purposes of this Lease, the following terms have
the following definitions and meanings:
(a) LANDLORD'S ADDRESS (FOR NOTICES):
18500 Von Karman Avenue, Suite 150
Irvine, CA 92715 Attention: Asset Manager
or such other place as Landlord may from time to time designate by notice to
Tenant.
(b) TENANT'S ADDRESS (PREMISES):
18400 Von Karman Avenue, Suite 340
Irvine, CA 92715 Attention: Mitch Everton
(c) PREMISES: Suite(s) 340 of the building located at 18400 Von Karman
Avenue as shown on Exhibit "A-I" (the "Building"), which Premises contains
approximately 2,721 rentable square feet and which Building contains
approximately 218,922 rentable square feet. The Premises are located within the
development commonly known as Koll Center Irvine ("Development") shown on
Exhibit "A-II" in the City of Irvine ("City"), County of Orange ("County"),
State of California ("State").
(d) TENANT'S PERCENTAGE: 1.2429 %
(e) TERM: three (3) Lease Years and Zero (0) Months.
(f) COMMENCEMENT DATE: November 15, 1994.
(g) EXPIRATION DATE: November 14, 1997.
(h) MONTHLY BASE RENT: $ 4,081.50, subject to adjustment as otherwise
provided in this Lease. (Portion deleted and initialed by ME)
(i) OPERATING EXPENSE ALLOWANCE: That portion of Tenant's Percentage of
Operating Expenses as described in paragraph 6 below which Landlord has
included in Monthly Base Rent, which, for purposes of this Lease, will be an
amount equal to Tenant's Percentage of Operating Expenses for the 1995 calendar
year.
(j) SECURITY DEPOSIT: $4,489.65
(k) PERMITTED USE: General office use consistent with other Class "A"
office tenants located within Koll Center Irvine and no other use without the
express written consent of Landlord, which consent Landlord may withhold in its
sole and absolute discretion.
(l) PARKING: Subject to the terms and conditions of Paragraph 32 below and
the Rules and Regulations regarding parking contained in Exhibit "H" attached
hereto, Tenant shall be entitled to four (4) unreserved employee parking spaces
at $30.00 per space per month, four (4) additional unreserved parking spaces at
$30.00 per space per month commencing February 1, 1995, and an additional two
(2) unreserved parking spaces at $30.00 per space per month commencing May 1,
1995.
(m) BROKER(S): Lee & Associates Commercial Real Estate Services, Inc.
(n) GUARANTOR(S): N/A
(o) INTEREST RATE: The greater of ten percent (10%) per annum or two
percent (2%) in excess of the prime lending or reference rate of Wells Fargo
Bank N.A. or any successor bank in effect on the twenty-fifth (25th) day of the
calendar month immediately prior to the event giving rise to the Interest Rate
imposition; provided, however, the Interest Rate will in no event exceed the
maximum interest rate permitted to be charged by applicable law.
(p) EXHIBITS: "A-1" through "H-3", inclusive (excluding Exhibit "B") which
Exhibits are attached to this Lease and incorporated herein by this reference.
This Paragraph 1 represents a summary of the basic terms and definitions of
this Lease. In the event of any inconsistency between the terms contained in
this Paragraph 1 and any specific provision of this Lease, the terms of the more
specific provision shall prevail.
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2. PREMISES AND COMMON AREAS.
(a) PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Premises upon and subject to the terms, covenants and conditions
contained in this Lease to be performed by each party.
(b) TENANT'S USE OF COMMON AREAS. During the Term of this Lease, Tenant shall
have the non-exclusive right to use in common with Landlord and all parties
conducting business in the Development, subject to the terms of this Lease, the
Rules and Regulations referenced in Paragraph 28 below and all covenants,
conditions and restrictions now or hereafter affecting the Development, the
following "Common Areas": all common entrances, hallways, lobbies, public
restrooms, elevators, stairways and accessways, if any, loading docks, ramps,
drives and platforms and any passageways and serviceways thereto, and the common
pipes, conduits, wires and appurtenant equipment within the Building which serve
the Premises, the parking facilities of the Development, loading and unloading
areas, trash areas, roadways, sidewalks, walkways, parkways, driveways,
landscaped areas, plaza areas, fountains and similar areas and facilities
situated within the Development which are not reserved for the exclusive use of
any other parties.
(c) LANDLORD'S RESERVATION OF RIGHTS. Provided Tenant's use of and access to the
Premises is not interfered with in an unreasonable manner, Landlord reserves for
itself and for all other owner(s) and operator(s) of the Common Areas and the
balance of the Development, the right from time to time to: (i) install, use,
maintain, repair, replace and relocate pipes, ducts, conduits, wires and
appurtenant meters and equipment above the ceiling surfaces, below the floor
surfaces, within the walls and in the central core areas of the Building; (ii)
make changes to the design and layout of the Development, including, without
limitation, changes to buildings, driveways, entrances, loading and unloading
areas, direction of traffic, landscaped areas and walkways, parking spaces and
parking areas; and (iii) use or close temporarily the Common Areas, and/or
other portions of the Development while engaged in making improvements, repairs
or alterations to the Building, the Development, or any portion thereof.
3. TERM. The term of this Lease ("Term") will be for the period designated in
Subparagraph 1(e), commencing on the Commencement Date, and ending on the
Expiration Date. Each consecutive twelve (12) month period of the Term of this
Lease, commencing on the Commencement Date, will be referred to herein as a
"Lease Year".
4. POSSESSION.
(a) DELIVERY OF POSSESSION. Landlord will deliver possession of the Premises to
Tenant in its current "as-is" condition with the addition of only those items of
work, if any, described on Exhibit "C" to be completed by Landlord at Landlord's
cost on or before the Commencement Date. If, for any reason, Landlord cannot
deliver possession of the Premises to Tenant on the Commencement Date, this
Lease will not be void or voidable, nor will Landlord be liable to Tenant for
any loss or damage resulting from such delay, but in such event, the
Commencement Date and Tenant's obligation to pay rent will not commence until
Landlord delivers possession to Tenant. If the delay in possession is caused by
Tenant, then the Term and Tenant's obligation to pay rent will commence as of
the Commencement Date even though Tenant does not yet have possession.
Notwithstanding the foregoing, Landlord will not be obligated to deliver
possession of the Premises to Tenant until Landlord has received from Tenant all
of the following: (i) a copy of this Lease fully executed by Tenant and the
guaranty of Tenant's obligations under this Lease, if any, executed by the
Guarantor(s); (ii) the Security Deposit and the first installment of Monthly
Base Rent; and (iii) copies of policies of insurance or certificates thereof as
required under Paragraph 19 of this Lease.
(b) CONDITION OF PREMISES. By taking possession of the Premises, Tenant will be
deemed to have acknowledged that there are no additional items needing work or
repair by Landlord. Tenant acknowledges that neither Landlord nor any agent of
Landlord has made any representation or warranty with respect to the Premises,
the Building, the Development or any portions thereof or with respect to the
suitability of same for the conduct of Tenant's business and Tenant further
acknowledges that Landlord will have no obligation to construct or complete any
additional buildings or improvements within the Development.
5. RENT.
(a) MONTHLY BASE RENT. Tenant agrees to pay Landlord the Monthly Base Rent for
the Premises (subject to adjustment as hereinafter provided) in advance on the
first day of each calendar month during the Term without prior notice or demand,
except that Tenant agrees to pay the Monthly Base Rent for the first month of
the Term directly to Landlord concurrently with Tenant's delivery of the
executed Lease to Landlord. All rent must be paid to Landlord, without any
deduction or offset, in lawful money of the United States of America, at the
address designated by Landlord or to such other person or at such other place as
Landlord may from time to time designate in writing. Monthly Base Rent will be
adjusted during the Term of this Lease as provided in Exhibit "B".
(b) ADDITIONAL RENT. All amounts and charges to be paid by Tenant hereunder,
including, without limitation, payments for Operating Expenses, insurance,
repairs and parking, will be considered additional rent for purposes of this
Lease, and "rent" as used in this Lease will include all such additional rent
unless the context specifically or clearly implies that only Monthly Base Rent
is intended.
(c) LATE PAYMENTS. Late payments of Monthly Base Rent and/or any item of
additional rent will be subject to interest and a late charge as provided in
Subparagraph 22(f) below.
6. OPERATING EXPENSES.
(a) OPERATING EXPENSES. In addition to Monthly Base Rent, throughout the Term of
this Lease, Tenant agrees to pay Landlord as additional rent in accordance with
the terms of this Paragraph 6, Tenant's Percentage of Operating Expenses as
defined in Exhibit "E" attached hereto to the extent Tenant's Percentage of
Operating Expenses exceeds Tenant's Operating Expense Allowance.
(b) ESTIMATE STATEMENT. Prior to the Commencement Date and on or about March 1st
of each subsequent calendar year during the Term of this Lease, Landlord will
endeavor to deliver to Tenant a statement ("Estimate Statement") wherein
Landlord will estimate Tenant's Percentage of Operating Expenses for the then
current calendar year. If the estimate of Tenant's Percentage of Operating
Expenses in the Estimate Statement exceeds Tenant's Operating Expense Allowance,
Tenant agrees to pay Landlord, as "additional rent", one-twelfth (1/12th) of
such excess each month thereafter, beginning with the next installment of rent
due, until such time as Landlord issues a revised Estimate Statement or the
Estimate Statement for the succeeding calendar year; except that, concurrently
with the regular monthly rent payment next due following the receipt of each
such Estimate Statement, Tenant agrees to pay Landlord an amount equal to one
monthly installment of such excess (less any applicable Operating Expenses
already paid) multiplied by the number of months from January, in the current
calendar year, to the month of such rent payment next due, all months inclusive.
If at any time during the Term of this Lease, but not more often than quarterly,
Landlord reasonably determines that Tenant's Percentage of Operating Expenses
for the
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current calendar year will be greater than the amount set forth in the then
current Estimate Statement, Landlord may issue a revised Estimate Statement and
Tenant agrees to pay Landlord, within ten (10) days of receipt of the revised
Estimate Statement, the difference between the amount owed by Tenant under such
revised Estimate Statement and the amount owed by Tenant under the original
Estimate Statement for the portion of the then current calendar year which has
expired. Thereafter Tenant agrees to pay Tenant's Percentage of Operating
Expenses based on such revised Estimate Statement until Tenant receives the next
calendar year's Estimate Statement or a new revised Estimate Statement for the
current calendar year. In the event Tenant's Percentage of Operating Expenses
for any calendar year is less than Tenant's Operating Expense Allowance, Tenant
will not be entitled to a credit against any rent, additional rent or Tenant's
Percentage of future Operating Expenses payable hereunder.
(c) ACTUAL STATEMENT. By March 1st of each calendar year during the Term of this
Lease, Landlord will also endeavor to deliver to Tenant a statement ("Actual
Statement") which states the actual Operating Expenses for the preceding
calendar year. If the Actual Statement reveals that Tenant's Percentage of the
actual Operating Expenses is more than the total Additional Rent paid by Tenant
for Operating Expenses on account of the preceding calendar year, Tenant agrees
to pay Landlord the difference in a lump sum within ten (10) days of receipt of
the Actual Statement. If the Actual Statement reveals that Tenant's Percentage
of the actual Operating Expenses is less than the Additional Rent paid by Tenant
for Operating Expenses on account of the preceding calendar year, Landlord will
credit any overpayment toward the next monthly installment(s) of Tenant's
Percentage of the Operating Expenses due under this Lease.
(d) MISCELLANEOUS. Any delay or failure by Landlord in delivering any Estimate
Statement or Actual Statement pursuant to this Paragraph 6 will not constitute a
waiver of its right to require an increase in rent nor will it relieve Tenant
of its obligations pursuant to this Paragraph 6, except that Tenant will not be
obligated to make any payments based on such Estimate Statement or Actual
Statement until ten (10) days after receipt of such Estimate Statement or Actual
Statement. Even though the Term has expired and Tenant has vacated the Premises,
when the final determination is made of Tenant's Percentage of the actual
Operating Expenses for the year in which this Lease terminates, Tenant agrees to
promptly pay any increase due over the estimated expenses paid and, conversely,
any overpayment made in the event said expenses decrease shall promptly be
rebated by Landlord to Tenant. Such obligation shall be a continuing one which
will survive the expiration or earlier termination of this Lease. Prior to the
expiration or sooner termination of the Lease Term and Landlord's acceptance of
Tenant's surrender of the Premises, Landlord will have the right to estimate the
actual Operating Expenses for the then current Lease Year and to collect from
Tenant prior to Tenant's surrender of the Premises, Tenant's Percentage of any
excess of such actual Operating Expenses over the estimated Operating Expenses
paid by Tenant in such Lease Year.
7. SECURITY DEPOSIT. Concurrently with Tenant's execution of this Lease, Tenant
will deposit with Landlord the Security Deposit designated in Subparagraph 1(j).
The Security Deposit will be held by Landlord as security for the full and
faithful performance by Tenant of all of the terms, covenants, and conditions of
this Lease to be kept and performed by Tenant during the Term hereof. The
Security Deposit is not, and may not be construed by Tenant to constitute, rent
for the last month or any portion thereof. If Tenant defaults with respect to
any provisions of this Lease including, but not limited to, the provisions
relating to the payment of rent or additional rent, Landlord may (but will not
be required to) use, apply or retain all or any part of the Security Deposit for
the payment of any rent or any other sum in default, or for the payment of any
other amount which Landlord may spend by reason of Tenant's default or to
compensate Landlord for any loss or damage which Landlord may suffer by reason
of Tenant's default. If any portion of the Security Deposit is so used or
applied, Tenant agrees, within ten (10) days after Landlord's written demand
therefor, to deposit cash with Landlord in an amount sufficient to restore the
Security Deposit to its original amount and Tenant's failure to do so shall
constitute a default under this Lease. Landlord is not required to keep Tenant's
Security Deposit separate from its general funds, and Tenant is not entitled to
interest on such Security Deposit.
8. USE.
(a) TENANT'S USE OF THE PREMISES. The Premises may be used for the use or uses
set forth in Subparagraph 1(k) only, and Tenant will not use or permit the
Premises to be used for any other purpose without the prior written consent of
Landlord, which consent Landlord may withhold in its sole and absolute
discretion. Nothing in this Lease will be deemed to give Tenant any exclusive
right to such use in the Building or the Development.
(b) COMPLIANCE. At Tenant's sole cost and expense, Tenant agrees to procure,
maintain and hold available for Landlord's inspection, all governmental licenses
and permits required for the proper and lawful conduct of Tenant's business from
the Premises, if any. Tenant agrees not to use, alter or occupy the Premises or
allow the Premises to be used, altered or occupied in violation of, and Tenant,
at its sole cost and expense, agrees to use and occupy the Premises and cause
the Premises to be used and occupied in compliance with: (i) any and all laws,
statutes, zoning restrictions, ordinances, rules, regulations, orders and
rulings now or hereafter in force and any requirements of any insurer, insurance
authority or duly constituted public authority having jurisdiction over the
Premises, the Building or the Development now or hereafter in force, (ii) the
requirements of the Board of Fire Underwriters and any other similar body (iii)
the Certificate of Occupancy issued for the Building, and (iv) any recorded
covenants, conditions and restrictions and similar regulatory agreements, if
any, which affect the use, occupation or alteration of the Premises, the
Building and/or the Development. Tenant agrees to comply with the Rules and
Regulations referenced in Paragraph 28 below. Tenant agrees not to do or permit
anything to be done in or about the Premises which will in any manner obstruct
or interfere with the rights of other tenants or occupants of the Development,
or injure or unreasonably annoy them, or use or allow the Premises to be used
for any unlawful or unreasonably objectionable purpose. Tenant agrees not to
cause, maintain or permit any nuisance or waste in, on, under or about the
Premises or elsewhere within the Development.
(c) HAZARDOUS MATERIALS. Except for ordinary and general office supplies, such
as copier toner, liquid paper, glue, ink and common household cleaning materials
(some or all of which may constitute "Hazardous Materials" as defined in this
Lease), Tenant agrees not to cause or permit any Hazardous Materials to be
brought upon, stored, used, handled, generated, released or disposed of on, in,
under or about the Premises, the Building, the Common Areas or any other portion
of the Development by Tenant, its agents, employees, subtenants, assignees,
licensees, contractors or invitees (collectively, "Tenant's Parties"), without
the prior written consent of Landlord, which consent Landlord may withhold in
its sole and absolute discretion. Upon the expiration or sooner termination of
this Lease, Tenant agrees to promptly remove from the Premises, the Building and
the Development, at its sole cost and expense, any and all Hazardous Materials,
including any equipment or systems containing Hazardous Materials which are
installed, brought upon, stored, used, generated or released upon, in, under or
about the Premises, the Building and/or the Development or any portion thereof
by Tenant or any of Tenant's Parties. To the fullest extent permitted by law,
Tenant agrees to promptly indemnify, protect, defend and hold harmless Landlord
and Landlord's partners, officers, directors, employees, agents, successors and
assigns (collectively, "Landlord Indemnified Parties") from and against any and
all claims, damages, judgments, suits, causes of action, losses, liabilities,
penalties, fines, expenses and costs (including, without limitation, clean-up,
removal, remediation and restoration costs, sums paid in settlement of claims,
attorneys' fees, consultant fees and expert fees and court costs) which arise or
result from the presence of Hazardous Materials on, in, under or about the
Premises, the Building or any other portion of the Development and which are
caused or permitted by Tenant or
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any of Tenant's Parties. Tenant agrees to promptly notify Landlord of any
release of Hazardous Materials at the Premises, the Building or any other
portion of the Development which Tenant becomes aware of during the Term of this
Lease, whether caused by Tenant or any other persons or entities. In the event
of any release of Hazardous Materials caused or permitted by Tenant or any of
Tenant's Parties, Landlord shall have the right, but not the obligation, to
cause Tenant to immediately take all steps Landlord deems necessary or
appropriate to remediate such release and prevent any similar future release to
the satisfaction of Landlord and Landlord's mortgagee(s). As used in this Lease,
the term "Hazardous Materials" shall mean and include any hazardous or toxic
materials, substances or wastes as now or hereafter designated under any law,
statute, ordinance, rule, regulation, order or ruling of any agency of the
State, the United States Government or any local governmental authority,
including, without limitation, asbestos, petroleum, petroleum hydrocarbons and
petroleum based products, urea formaldehyde foam insulation, polychlorinated
biphenyls ("PCBs"), and freon and other chlorofluorocarbons. The provisions of
this Subparagraph 8(c) will survive the expiration or earlier termination of
this Lease.
9. NOTICES. Any notice required or permitted to be given hereunder must be in
writing and may be given by personal delivery (including delivery by overnight
courier or an express mailing service) or by mail, if sent by registered or
certified mail. Notices to Tenant shall be sufficient if delivered to Tenant at
the Premises and notices to Landlord shall be sufficient if delivered to
Landlord at the address designated in Subparagraph l(a). Either party may
specify a different address for notice purposes by written notice to the other,
except that the Landlord may in any event use the Premises as Tenant's address
for notice purposes.
10. BROKERS. The parties acknowledge that the broker(s) who negotiated this
Lease are stated in Subparagraph 1(m). Landlord and Tenant each agree to
promptly indemnify, protect, defend and hold harmless the other from and against
any and all claims, damages, judgments, suits, causes of action, losses,
liabilities, penalties, fines, expenses and costs (including attorneys' fees and
court costs) resulting from any breach by the indemnifying party of the
foregoing representation, including, without limitation, any claims that may be
asserted by any broker, agent or finder undisclosed by the indemnifying party.
The foregoing mutual indemnity shall survive the expiration or earlier
termination of this Lease.
11. SURRENDER; HOLDING OVER.
(a) SURRENDER. The voluntary or other surrender of this Lease by Tenant, or a
mutual cancellation thereof, shall not constitute a merger, and shall, at the
option of Landlord, operate as an assignment to Landlord of any or all subleases
or subtenancies. Upon the expiration or earlier termination of this Lease,
Tenant agrees to peaceably surrender the Premises to Landlord broom clean and in
a state of good order, repair and condition, ordinary wear and tear and casualty
damage excepted, with all of Tenant's personal property and alterations removed
from the Premises to the extent required under Paragraph 13 and all damage
caused by such removal repaired as required by Paragraph 13. The delivery of
keys to any employee of Landlord or to Landlord's agent or any employee thereof
alone will not be sufficient to constitute a termination of this Lease or a
surrender of the Premises.
(b) HOLDING OVER. If Tenant holds over after the expiration or earlier
termination of the Term, Landlord may, at its option, treat Tenant as a tenant
at sufferance only, and such continued occupancy by Tenant shall be subject to
all of the terms, covenants and conditions of this Lease, so far as applicable,
except that the Monthly Base Rent for any such holdover period shall be equal to
one hundred fifty percent (150%) of the Monthly Base Rent in effect under this
Lease immediately prior to such holdover. Acceptance by Landlord of rent after
such expiration or earlier termination will not result in a renewal of this
Lease. If Tenant fails to surrender the Premises upon the expiration of this
Lease in accordance with the terms of this Paragraph 11 despite demand to do so
by Landlord, Tenant agrees to promptly indemnify, protect, defend and hold
Landlord harmless from all claims, damages, judgments, suits, causes of action,
losses, liabilities, penalties, fines, expenses and costs (including attorneys'
fees and costs), including, without limitation, costs and expenses incurred by
Landlord in returning the Premises to the condition in which Tenant was to
surrender it and claims made by any succeeding tenant founded on or resulting
from Tenant's failure to surrender the Premises. The provisions of this
Subparagraph 11(b) will survive the expiration or earlier termination of this
Lease.
12. TAXES ON TENANT'S PROPERTY. Tenant agrees to pay before delinquency, all
taxes and assessments (real and personal) levied against Tenant's business
operations or any personal property, improvements, alterations, trade fixtures
or merchandise placed by Tenant in or about the Premises.
13. ALTERATIONS. Tenant shall not make any alterations to the Premises or any
other aspect of the Development, without Landlord's prior written consent, which
consent Landlord may withhold in its reasonable but subjective discretion. All
permitted alterations must be performed in compliance with Landlord's standard
rules and regulations regarding alterations. All alterations will become the
property of Landlord and will remain upon and be surrendered with the Premises
at the end of the Term of this Lease; provided, however, Landlord may require
Tenant to remove any or all alterations at the expiration or earlier termination
of this Lease. If Tenant fails to remove by the expiration or earlier
termination of this Lease all of its personal property, or any alterations
identified by Landlord for removal, Landlord may, at its option, treat such
failure as a hold-over pursuant to Subparagraph 11 (b) above, and/or Landlord
may (without liability to Tenant for loss thereof) treat such personal property
and/or alterations as abandoned and, at Tenant's sole cost and in addition to
Landlord's other rights and remedies under this Lease, at law or in equity: (a)
remove and store such items; and/or (b) upon ten (10) days' prior notice to
Tenant, sell, discard or otherwise dispose of all or any such items at private
or public sale for such price as Landlord may obtain or by other commercially
reasonable means. Tenant shall be liable for all costs of disposition of
Tenant's abandoned property and Landlord shall have no liability to Tenant with
respect to any such abandoned property. Landlord agrees to apply the proceeds of
any sale of any such property to any amounts due to Landlord under this Lease
from Tenant (including Landlord's attorneys' fees and other costs incurred in
the removal, storage and/or sale of such items), with any remainder to be paid
to Tenant.
14. REPAIRS.
(a) LANDLORD'S OBLIGATIONS. Landlord agrees to repair and maintain the
structural portions of the Building and the plumbing, heating, ventilating, air
conditioning, elevator and electrical systems installed or furnished by
Landlord, unless such maintenance and repairs are (i) attributable to items
installed in Tenant's Premises which are above standard interior improvements
(such as, for example, custom lighting, special HVAC and/or electrical panels or
systems, kitchen or restroom facilities and appliances constructed or installed
within Tenant's Premises) or (ii) caused in part or in whole by the act, neglect
or omission of any duty by Tenant, its agents, servants, employees or invitees,
in which case Tenant will pay to Landlord, as additional rent, the reasonable
cost of such maintenance and repairs. Except as provided in this Subparagraph
14(a), Landlord has no obligation to alter, remodel, improve, repair, decorate
or paint the Premises or any part thereof. Landlord will not be liable for any
failure to make any such repairs or to perform any maintenance unless such
failure shall persist for an unreasonable time after written notice of the need
of such repairs or maintenance is given to Landlord by Tenant. Except as
provided in Paragraph 20, Tenant will not be entitled to any abatement of rent
and Landlord will not have any liability by reason of any injury to or
interference with Tenant's business arising from the making of any repairs,
alterations or improvements in or to any
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portion of the Building or the Premises or in or to fixtures, appurtenances and
equipment therein. Tenant waives the right to make repairs at Landlord's expense
under any law, statute, ordinance, rule, regulation, order or ruling (including,
without limitation, to the extent the Premises are located in California, the
provisions of California Civil Code Sections 1941 and 1942 and any successor
statutes or laws of a similar nature).
(b) TENANT'S OBLIGATIONS. Tenant agrees to keep, maintain and preserve the
Premises in a state of condition and repair consistent with the Building and,
when and if needed, at Tenant's sole cost and expense, to make all repairs to
the Premises and every part thereof. Any such maintenance and repairs will be
performed by Landlord's contractor, or at Landlord's option, by such contractor
or contractors as Tenant may choose from an approved list to be submitted by
Landlord. Tenant agrees to pay all costs and expenses incurred in such
maintenance and repair within seven (7) days after billing by Landlord or such
contractor or contractors. Tenant agrees to cause any mechanics' liens or other
liens arising as a result of work performed by Tenant or at Tenant's direction
to be eliminated as provided in Paragraph 15 below. If Tenant refuses or
neglects to repair and maintain the Premises properly as required hereunder to
the reasonable satisfaction of Landlord, Landlord, at any time following ten
(10) days from the date on which Landlord makes a written demand on Tenant to
effect such repair and maintenance, may enter upon the Premises and make such
repairs and/or maintenance, and upon completion thereof, Tenant agrees to pay
to Landlord as additional rent, Landlord's costs for making such repairs plus an
amount not to exceed ten percent (10%) of such costs for overhead, within ten
(10) days of receipt from Landlord of a written itemized bill therefor. Any
amounts not reimbursed by Tenant within such ten (10) day period will bear
interest at the Interest Rate until paid by Tenant.
15. LIENS. Tenant agrees not to permit any mechanic's, materialmen's or other
liens to be filed against all or any part of the Development, the Building or
the Premises, nor against Tenant's leasehold interest in the Premises, by reason
of or in connection with any repairs, alterations, improvements or other work
contracted for or undertaken by Tenant or any other act or omission of Tenant or
Tenant's agents, employees, contractors, licensees or invitees. At Landlord's
request, Tenant agrees to provide Landlord with enforceable, conditional and
final lien releases (or other evidence reasonably requested by Landlord to
demonstrate protection from liens) from all persons furnishing labor and/or
materials at the Premises. Landlord will have the right at all reasonable times
to post on the Premises and record any notices of non-responsibility which it
deems necessary for protection from such liens. If any such liens are filed,
Tenant will, at its sole cost and expense, promptly cause such liens to be
released of record or bonded so that it no longer affects title to the
Development, the Building or the Premises. If Tenant fails to cause any such
liens to be so released or bonded within ten (10) days after filing thereof,
such failure will be deemed a material breach by Tenant under this Lease without
the benefit of any additional notice or cure period described in Paragraph 22
below, and Landlord may, without waiving its rights and remedies based on such
breach, and without releasing Tenant from any of its obligations, cause such
liens to be released by any means it shall deem proper, including payment in
satisfaction of the claims giving rise to such liens. Tenant agrees to pay to
Landlord within ten (10) days after receipt of invoice from Landlord, any sum
paid by Landlord to remove such liens, together with interest at the Interest
Rate from the date of such payment by Landlord.
16. ENTRY BY LANDLORD. Landlord and its employees and agents will at all
reasonable times have the right to enter the Premises to inspect the same, to
supply janitorial service and any other service to be provided by Landlord to
Tenant hereunder, to show the Premises to prospective purchasers or tenants, to
post notices of nonresponsibility, and/or to repair the Premises as permitted or
required by this Lease. In exercising such entry rights, Landlord will endeavor
to minimize, as reasonably practicable, the interference with Tenant's business,
and will provide Tenant with reasonable advance notice of any such entry (except
in emergency situations). Landlord will at all times have and retain a key with
which to unlock all doors in the Premises, excluding Tenant's vaults and safes.
Except in the case of the gross negligence or willful misconduct of Landlord,
any entry to the Premises obtained by Landlord will not be construed or deemed
to be a forcible or unlawful entry into the Premises, or an eviction of Tenant
from the Premises and Landlord will not be liable to Tenant for any damages or
losses resulting from any such entry.
17. UTILITIES AND SERVICES. Throughout the Term of the Lease so long as the
Premises are occupied, Landlord agrees to furnish or cause to be furnished to
the Premises the utilities and services described in the Standards for Utilities
and Services attached hereto as Exhibit "F". Landlord will not be liable to
Tenant for any failure to furnish any of the foregoing utilities and services if
such failure is caused by all or any of the following: (i) accident, breakage or
repairs; (ii) strikes, lockouts or other labor disturbance or labor dispute of
any character; (iii) governmental regulation, moratorium or other governmental
action or inaction; (iv) inability despite the exercise of reasonable diligence
to obtain electricity, water or fuel; or (v) any other cause beyond Landlord's
reasonable control. In addition, in the event of any stoppage or interruption of
services or utilities, Tenant shall not be entitled to any abatement or
reduction of rent (except as expressly provided in Subparagraphs 20(f) or 21
(b) if such failure results from a damage or taking described therein), no
eviction of Tenant will result from such failure and Tenant will not be relieved
from the performance of any covenant or agreement in this Lease because of such
failure. In the event of any failure, stoppage or interruption thereof, Landlord
agrees to diligently attempt to resume service promptly. If Tenant requires or
utilizes more water or electrical power than is considered reasonable or normal
by Landlord, Landlord may at its option require Tenant to pay, as additional
rent, the cost, as fairly determined by Landlord, incurred by such extraordinary
usage and/or Landlord may install separate meter(s) for the Premises, at
Tenant's sole expense, and Tenant agrees thereafter to pay all charges of the
utility providing service and Landlord will make an appropriate adjustment to
Tenant's Operating Expenses calculation to account for the fact Tenant is
directly paying such metered charges, provided Tenant will remain obligated to
pay its proportionate share of Operating Expenses subject to such adjustment.
18. ASSUMPTION OF RISK AND INDEMNIFICATION.
(a) ASSUMPTION OF RISK. Tenant, as a material part of the consideration to
Landlord, agrees that neither Landlord nor any Landlord Indemnified Parties (as
defined in Subparagraph 8(c) above) will be liable to Tenant for, and Tenant
expressly assumes the risk of and waives any and all claims it may have against
Landlord or any Landlord Indemnified Parties with respect to, (i) any and all
damage to property or injury to persons in, upon or about the Premises, the
Building or the Development resulting from any act or omission (except for the
grossly negligent or intentionally willful act or omission of Landlord or its
agent or employees), (ii) any such damage caused by other tenants or persons in
or about the Building or the Development, or caused by quasi-public work, (iii)
any damage to property entrusted to employees of the Building, (iv) any loss of
or damage to property by theft or otherwise, or (v) any injury or damage to
persons or property resulting from any casualty, explosion, falling plaster or
other masonry or glass, steam, gas, electricity, water or rain which may leak
from any part of the Building or any other portion of the Development or from
the pipes, appliances or plumbing works therein or from the roof, street or
subsurface or from any other place, or resulting from dampness. Neither Landlord
nor any Landlord Indemnified Parties will be liable for consequential damages
arising out of any loss of the use of the Premises or any equipment or
facilities therein by Tenant or any Tenant Parties or for interference with
light. Tenant agrees to give prompt notice to Landlord in case of fire or
accidents in the Premises or the Building, or of defects therein or in the
fixtures or equipment.
(b) INDEMNIFICATION. Tenant will be liable for, and agrees to the maximum extent
permissible under applicable law, to promptly indemnify, protect, defend and
hold harmless Landlord and all Landlord Indemnified Parties from and against,
any and all claims,
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damages, judgments, suits, causes of action, losses, liabilities, penalties,
fines, expenses and costs, including attorneys' fees and court costs
(collectively, "Indemnified Claims"), arising or resulting from (i) any act or
omission of Tenant or any Tenant Parties (as defined in Subparagraph 8(c)
above); (ii) the use of the Premises and Common Areas and conduct of Tenant's
business by Tenant or any Tenant Parties, or any other activity, work or thing
done, permitted or suffered by Tenant or any Tenant Parties, in or about the
Premises, the Building or elsewhere within the Development; and/or (iii) any
default by Tenant of any obligations on Tenant's part to be performed under the
terms of this Lease. In case any action or proceeding is brought against
Landlord or any Landlord Indemnified Parties by reason of any such Indemnified
Claims, Tenant, upon notice from Landlord, agrees to promptly defend the same at
Tenant's sole cost and expense by counsel approved in writing by Landlord, which
approval Landlord will not unreasonably withhold.
(c) SURVIVAL; NO RELEASE OF INSURERS. Tenant's indemnification obligations under
Subparagraph 18(b) will survive the expiration or earlier termination of this
Lease. Tenant's covenants, agreements and indemnification obligation in
Subparagraphs 18(a) and 18(b) above, are not intended to and will not relieve
any insurance carrier of its obligations under policies required to be carried
by Tenant pursuant to the provisions of this Lease.
19. INSURANCE.
(a) TENANT'S INSURANCE. On or before the earlier to occur of (i) the
Commencement Date, or (ii) the date Tenant commences any work of any type in the
Premises pursuant to this Lease (which may be prior to the Commencement Date),
and continuing throughout the entire Term hereof and any other period of
occupancy, Tenant agrees to keep in full force and effect, at its sole cost and
expense, the insurance specified on Exhibit "D" attached hereto. Landlord
reserves the right to require any other form or forms of insurance as Tenant or
Landlord or any mortgagees of Landlord may reasonably require from time to time
in form, in amounts, and for insurance risks against which, a prudent tenant
would protect itself, but only to the extent coverage for such risks and amounts
are available in the insurance market at commercially acceptable rates. Landlord
makes no representation that the limits of liability required to be carried by
Tenant under the terms of this Lease are adequate to protect Tenant's interests
and Tenant should obtain such additional insurance or increased liability limits
as Tenant deems appropriate.
(b) SUPPLEMENTAL TENANT INSURANCE REQUIREMENTS. All policies must be in a form
reasonably satisfactory to Landlord and issued by an insurer admitted to do
business in the state in which the Building is located. All policies must be
issued by insurers with a policyholder rating of "A" and a financial rating of
"X" in the most recent version of Best's Key Rating Guide. All policies must
contain a requirement to notify Landlord (and Landlord's property manager and
any mortgagees or ground lessors of Landlord who are named as additional
insureds, if any) in writing not less than thirty (30) days prior to any
material change, reduction in coverage, cancellation or other termination
thereof. Tenant agrees to deliver to Landlord, as soon as practicable after
placing the required insurance, but in any event within the time frame specified
in Subparagraph 19(a) above, certificate(s) of insurance and/or if required by
Landlord, certified copies of each policy evidencing the existence of such
insurance and Tenant's compliance with the provisions of this Paragraph 19.
Tenant agrees to cause replacement policies or certificates to be delivered to
Landlord not less than thirty (30) days prior to the expiration of any such
policy or policies. If any such initial or replacement policies or certificates
are not furnished within the time(s) specified herein, Landlord will have the
right, but not the obligation, to obtain such insurance as Landlord deems
necessary to protect Landlord's interests at Tenant's expense. If Landlord
obtains any insurance that is the responsibility of Tenant under this Paragraph
19, Landlord agrees to deliver to Tenant a written statement setting forth the
cost of any such insurance and showing in reasonable detail the manner in which
it has been computed and Tenant agrees to promptly reimburse Landlord for such
costs as additional rent. General Liability and Automobile Liability policies
under Paragraphs 1 and 5 of Exhibit "D" attached hereto must name Landlord and
Landlord's property manager (and at Landlord's request, Landlord's mortgagees
and ground lessors of which Tenant has been informed in writing) as additional
insureds and must also contain a provision that the insurance afforded by such
policy is primary insurance and any insurance carried by Landlord and Landlord's
property manager or Landlord's mortgagees or ground lessors, if any, will be
excess over and non-contributing with Tenant's insurance.
(c) TENANT'S USE. Tenant will not keep, use, sell or offer for sale in or upon
the Premises any article which may be prohibited by any insurance policy
periodically in force covering the Building or the Development Common Areas. If
Tenant's occupancy or business in, or on, the Premises, whether or not Landlord
has consented to the same, results in any increase in premiums for the insurance
periodically carried by Landlord with respect to the Building or the Development
or results in the need for Landlord to maintain special or additional insurance,
Tenant agrees to pay Landlord the cost of any such increase in premiums or
special or additional coverage as additional rent within ten (10) days after
being billed therefor by Landlord. Tenant agrees to promptly comply with all
reasonable requirements of the insurance authority or any present or future
insurer relating to the Premises.
(d) CANCELLATION OF LANDLORD'S POLICIES. If any of Landlord's insurance policies
are canceled or cancellation is threatened or the coverage reduced or threatened
to be reduced in any way because of the use of the Premises or any part thereof
by Tenant or any assignee or subtenant of Tenant or by anyone Tenant permits on
the Premises and, if Tenant fails to remedy the condition giving rise to such
cancellation, threatened cancellation, reduction of coverage, threatened
reduction of coverage, increase in premiums, or threatened increase in premiums,
within forty-eight (48) hours after notice thereof, Tenant will be deemed to be
in material default of this Lease and Landlord may, at its option, either
terminate this Lease or enter upon the Premises and attempt to remedy such
condition, and Tenant shall promptly pay Landlord the reasonable costs of such
remedy as additional rent. If Landlord is unable, or elects not to remedy such
condition, then Landlord will have all of the remedies provided for in this
Lease in the event of a default by Tenant.
(e) WAIVER OF SUBROGATION. Tenant's property insurance shall contain a clause
whereby the insurer waives all rights of recovery by way of subrogation against
Landlord. Tenant shall also obtain and furnish evidence to Landlord of the
waiver by Tenant's worker's compensation insurance carrier of all rights of
recovery by way of subrogation against Landlord.
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20. DAMAGE OR DESTRUCTION
(a) PARTIAL DESTRUCTION. If the Premises or the Building are damaged by fire or
other casualty to an extent not exceeding twenty-five percent (25%) of the full
replacement cost thereof, and Landlord's contractor reasonably estimates in a
writing delivered to Landlord and Tenant that the damage thereto may be
repaired, reconstructed or restored to substantially its condition immediately
prior to such damage within one hundred eighty (180) days from the date of such
casualty, and Landlord will receive insurance proceeds sufficient to cover the
costs of such repairs, reconstruction and restoration (including proceeds from
Tenant and/or Tenant's insurance which Tenant is required to deliver to Landlord
pursuant to Subparagraph 20(e) below to cover Tenant's obligation for the costs
of repair, reconstruction and restoration of any portion of the tenant
improvements and any alterations for which Tenant is responsible under this
Lease), then Landlord agrees to commence and proceed diligently with the work of
repair, reconstruction and restoration and this Lease will continue in full
force and effect.
(b) SUBSTANTIAL DESTRUCTION. Any damage or destruction to the Premises or the
Building which Landlord is not obligated to repair pursuant to Subparagraph
20(a) above will be deemed a substantial destruction. In the event of a
substantial destruction, Landlord may elect to either: (i) repair, reconstruct
and restore the portion of the Building or the Premises damaged by such
casualty, in which case this Lease will continue in full force and effect,
subject to Tenant's termination right contained in Subparagraph 20(d) below; or
(ii) terminate this Lease effective as of the date which is thirty (30) days
after Tenant's receipt of Landlord's election to so terminate.
(c) NOTICE. Under any of the conditions of Subparagraph 20(a) or (b) above,
Landlord agrees to give written notice to Tenant of its intention to repair or
terminate, as permitted in such paragraphs, within the earlier of sixty (60)
days after the occurrence of such casualty, or fifteen (15) days after
Landlord's receipt of the estimate from Landlord's contractor (the applicable
time period to be referred to herein as the "Notice Period").
(d) TERMINATION RIGHTS. If Landlord elects to repair, reconstruct and restore
pursuant to Subparagraph 20(b)(i) hereinabove, and if Landlord's contractor
estimates that as a result of such damage, Tenant cannot be given reasonable use
of and access to the Premises within three hundred sixty-five (365) days after
the date of such damage, then either Landlord or Tenant may terminate this Lease
effective upon delivery of written notice to the other within ten (10) days
after Landlord delivers notice to Tenant of its election to so repair,
reconstruct or restore.
(e) TENANT'S COSTS AND INSURANCE PROCEEDS. In the event of any damage or
destruction of all or any part of the Premises, Tenant agrees to immediately (i)
notify Landlord thereof, and (ii) deliver to Landlord all property insurance
proceeds received by Tenant with respect to any tenant improvements installed by
or at the cost of Tenant and any alterations, but excluding proceeds for
Tenant's furniture, fixtures, equipment and other personal property, whether or
not this Lease is terminated as permitted in this Paragraph 20, and Tenant
hereby assigns to Landlord all rights to receive such insurance proceeds. If,
for any reason (including Tenant's failure to obtain insurance for the full
replacement cost of any Tenant Improvements installed by or at the cost of
Tenant and any alterations from any and all casualties), Tenant fails to receive
insurance proceeds covering the full replacement cost of any such tenant
improvements and any alterations which are damaged, Tenant will be deemed to
have self-insured the replacement cost of such items, and upon any damage or
destruction thereto, Tenant agrees to immediately pay to Landlord the full
replacement cost of such items, less any insurance proceeds actually received by
Landlord from Landlord's or Tenant's insurance with respect to such items.
(f) ABATEMENT OF RENT. In the event of any damage, repair, reconstruction and/or
restoration described in this Paragraph 20, rent will be abated or reduced, as
the case may be, from the date of such casualty, in proportion to the degree to
which Tenant's use of the Premises is impaired during such period of repair
until such use is restored. Except for abatement of rent as provided
hereinabove, Tenant will not be entitled to any compensation or damages for loss
of, or interference with, Tenant's business or use or access of all or any part
of the Premises or for lost profits or any other consequential damages of any
kind or nature, which result from any such damage, repair, reconstruction or
restoration.
(g) DAMAGE NEAR END OF TERM. Landlord and Tenant shall each have the right to
terminate this Lease if any damage to the Premises or the Building occurs during
the last twelve (12) months of the Term of this Lease where Landlord's
contractor estimates in a writing delivered to Landlord and Tenant that the
repair, reconstruction or restoration of such damage cannot be completed within
sixty (60) days after the date of such casualty. If either party desires to
terminate this Lease under this Subparagraph (h), it shall provide written
notice to the other party of such election within ten (10) days after receipt of
Landlord's contractor's repair estimates.
(h) WAIVER OF TERMINATION RIGHT. Landlord and Tenant agree that the foregoing
provisions of this Paragraph 20 are to govern their respective rights and
obligations in the event of any damage or destruction and supersede and are in
lieu of the provisions of any applicable law, statute, ordinance, rule,
regulation, order or ruling now or hereafter in force which provide remedies for
damage or destruction of leased premises (including, without limitation, to the
extent the Premises are located in California, the provisions of California
Civil Code Section 1932, Subsection 2, and Section 1933, Subsection 4 and any
successor statute or laws of a similar nature).
21. EMINENT DOMAIN.
(a) SUBSTANTIAL TAKING. If the whole of the Premises, or such part thereof as
shall substantially interfere with Tenant's use and occupancy of the Premises,
as contemplated by this Lease, is taken for any public or quasi-public purpose
by any lawful power or authority by exercise of the right of appropriation,
condemnation or eminent domain, or sold to prevent such taking, either party
will have the right to terminate this Lease effective as of the date possession
is required to be surrendered to such authority.
(b) PARTIAL TAKING; ABATEMENT OF RENT. In the event of a taking of a portion of
the Premises which does not substantially interfere with Tenant's use and
occupancy of the Premises, then, neither party will have the right to terminate
this Lease and Landlord will thereafter proceed to make a functional unit of the
remaining portion of the Premises (but only to the extent Landlord receives
proceeds therefor from the condemning authority), and rent will be abated with
respect to the part of the Premises which Tenant is deprived of on account of
such taking. Notwithstanding the immediately preceding sentence to the contrary,
if any part of the Building or the Development is taken (whether or not such
taking substantially interferes with Tenant's use of the Premises), Landlord may
terminate this Lease upon thirty (30) days' prior written notice to Tenant if
Landlord also terminates the leases of the other tenants of the Building which
are leasing comparably sized space for comparable lease terms.
(c) CONDEMNATION AWARD. In connection with any taking of the Premises or the
Building, Landlord will be entitled to receive the entire amount of any award
which may be made or given in such taking or condemnation, without deduction or
apportionment for any estate or interest of Tenant, it being expressly
understood and agreed by Tenant that no portion of any such award will be
allowed or paid to Tenant for any so-called bonus or excess value of this Lease,
and such bonus or excess value will be the sole property of Landlord.
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Tenant agrees not to assert any claim against Landlord or the taking authority
for any compensation because of such taking (including any claim for bonus or
excess value of this Lease); provided, however, if any portion of the Premises
is taken, Tenant will have the right to recover from the condemning authority
(but not from Landlord) any compensation as may be separately awarded or
recoverable by Tenant for the taking of Tenant's furniture, fixtures, equipment
and other personal property within the Premises, for Tenant's relocation
expenses, and for any loss of goodwill or other damage to Tenant's business by
reason of such taking.
(d) TEMPORARY TAKING. In the event of taking of the Premises or any part thereof
for temporary use, (i) this Lease will remain unaffected thereby and rent will
not abate, and (ii) Tenant will be entitled to receive such portion or portions
of any award made for such use with respect to the period of the taking which is
within the Term, provided that if such taking remains in force at the expiration
or earlier termination of this Lease, Tenant will then pay to Landlord a sum
equal to the reasonable cost of performing Tenant's obligations under Paragraph
11 with respect to surrender of the Premises and upon such payment Tenant will
be excused from such obligations. For purpose of this Subparagraph 2l(d), a
temporary taking shall be defined as a taking for a period of ninety (90) days
or less.
22. DEFAULTS AND REMEDIES.
(a) DEFAULTS. The occurrence of any one or more of the following events will be
deemed a default by Tenant:
(i) The abandonment or vacation of the Premises by Tenant.
(ii) The failure by Tenant to make any payment of rent or additional rent or any
other payment required to be made by Tenant hereunder, as and when due, where
such failure continues for a period of three (3) days after written notice
thereof from Landlord to Tenant; provided, however, that any such notice will be
in lieu of, and not in addition to, any notice required under applicable law
(including, without limitation, to the extent the Premises are located in
California, the provisions of California Code of Civil Procedure Section 1161
regarding unlawful detainer actions or any successor statute or law of a similar
nature).
(iii) The failure by Tenant to observe or perform any of the express or implied
covenants or provisions of this Lease to be observed or performed by Tenant,
other than as specified in Subparagraph 22(a)(i) or (ii) above, where such
failure continues for a period of five (5) days after written notice thereof
from Landlord to Tenant. The provisions of any such notice will be in lieu of,
and not in addition to, any notice required under applicable law (including,
without limitation, to the extent the Premises are located in California,
California Code of Civil Procedure Section 1161 regarding unlawful detainer
actions and any successor statute or similar law). If the nature of Tenant's
default is such that more than five (5) days are reasonably required for its
cure, then Tenant will not be deemed to be in default if Tenant, with Landlord's
concurrence, commences such cure within such five (5) day period and thereafter
diligently prosecutes such cure to completion.
(iv) (A) The making by Tenant of any general assignment for the benefit of
creditors; (B) the filing by or against Tenant of a petition to have Tenant
adjudged a bankrupt or a petition for reorganization or arrangement under any
law relating to bankruptcy (unless, in the case of a petition filed against
Tenant, the same is dismissed within sixty (60) days); (C) the appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where possession
is not restored to Tenant within thirty (30) days; or (D) the attachment,
execution or other judicial seizure of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease where such seizure
is not discharged within thirty (30) days.
(b) LANDLORD'S REMEDIES; TERMINATION. In the event of any default by Tenant, in
addition to any other remedies available to Landlord at law or in equity under
applicable law (including, without limitation, to the extent the Premises arc
located in California, the remedies of Civil Code Section 1951.4 and any
successor statute or similar law), Landlord will have the immediate right and
option to terminate this Lease and all rights of Tenant hereunder. If Landlord
elects to terminate this Lease then, to the extent permitted under applicable
law, Landlord may recover from Tenant: (i) the worth at the time of award of any
unpaid rent which had been earned at the time of such termination; plus (ii) the
worth at the time of award of the amount by which the unpaid rent which would
have been earned after termination until the time of award exceeds the amount of
such rent 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 rent loss
that Tenant proves could be reasonably avoided; plus (iv) any other amount
necessary to compensate Landlord for all the detriment proximately caused by
Tenant's failure to perform its obligations under this Lease or which, in the
ordinary course of things, results therefrom including, but not limited to:
attorneys' fees and costs; brokers' commissions; the costs of refurbishment,
alterations, renovation and repair of the Premises, and removal (including the
repair of any damage caused by such removal) and storage (or disposal) of
Tenant's personal property, equipment, fixtures, alterations, the tenant
improvements and any other items which Tenant is required under this Lease to
remove but does not remove, as well as the unamortized value of any free rent,
reduced rent, free parking, reduced rate parking and any tenant improvement
allowance or other costs or economic concessions provided, paid, granted or
incurred by Landlord pursuant to this Lease. The unamortized value of such
concessions shall be determined by taking the total value of such concessions
and multiplying such value by a fraction, the numerator of which is the number
of months of the Lease Term not yet elapsed as of the date on which the Lease is
terminated, and the denominator of which is the total number of months of the
Lease Term. As used in Subparagraphs 22(b)(i) and (ii) above, the "worth at the
time of award" is computed by allowing interest at the Interest Rate. As used in
Subparagraph 22(b)(iii) above, the "worth at the time of award" is computed by
discounting such amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of award plus one percent (1%).
(c) LANDLORD'S REMEDIES; RE-ENTRY RIGHTS. In the event of any default by Tenant,
in addition to any other remedies available to Landlord under this Lease, at law
or in equity, Landlord will also have the right, with or without terminating
this Lease, to re-enter the Premises and remove all persons and property from
the Premises; such property may be removed and stored in a public warehouse or
elsewhere and/or disposed of at the sole cost and expense of and for the account
of Tenant in accordance with the provisions of Paragraph 13 of this Lease or any
other procedures permitted by applicable law. No re-entry or taking possession
of the Premises by Landlord pursuant to this Subparagraph 22(c) will be
construed as an election to terminate this Lease unless a written notice of such
intention is given to Tenant or unless the termination thereof is decreed by a
court of competent jurisdiction.
(d) LANDLORD'S REMEDIES; RE-LETTING. If Landlord does not elect to terminate
this Lease, Landlord may from time to time, without terminating this Lease,
either recover all rent as it becomes due or relet the Premises or any part
thereof on terms and conditions as Landlord in its sole and absolute discretion
may deem advisable with the right to make alterations and repairs to the
Premises in connection with such reletting. If Landlord elects to relet the
Premises, then rents received by Landlord from such reletting will be applied:
first, to the payment of any indebtedness other than rent due hereunder from
Tenant to Landlord; second, to the payment of any cost of such reletting; third,
to the payment of the cost of any alterations and repairs to the Premises
incurred in connection with such reletting; fourth, to the payment of rent due
and unpaid hereunder and the residue, if any, will be held by Landlord and
applied to payment of future rent as the same may become due and payable
hereunder. Should that portion of such rents received from such
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reletting during any month, which is applied to the payment of rent hereunder,
be less than the rent payable during that month by Tenant hereunder, then Tenant
agrees to pay such deficiency to Landlord immediately upon demand therefor by
Landlord. Such deficiency will be calculated and paid monthly.
(e) LANDLORD'S REMEDIES; PERFORMANCE FOR TENANT. All covenants and agreements to
be performed by Tenant under any of the terms of this Lease are to be performed
by Tenant at Tenant's sole cost and expense and without any abatement of rent.
If Tenant fails to pay any sum of money owed to any party other than Landlord,
for which it is liable under this Lease, or if Tenant fails to perform any other
act on its part to be performed hereunder, and such failure continues for ten
(10) days after notice thereof by Landlord, Landlord may, without waiving or
releasing Tenant from its obligations, but shall not be obligated to, make any
such payment or perform any such other act to be made or performed by Tenant.
Tenant agrees to reimburse Landlord upon demand for all sums so paid by Landlord
and all necessary incidental costs, together with interest thereon at the
Interest Rate, from the date of such payment by Landlord until reimbursed by
Tenant. This remedy shall be in addition to any other right or remedy of
Landlord set forth in this Paragraph 22.
(f) LATE PAYMENT. If Tenant fails to pay any installment of rent within five (5)
days of when due or if Tenant fails to make any other payment for which Tenant
is obligated under this Lease within five (5) days of when due, such late amount
will accrue interest at the Interest Rate and Tenant agrees to pay Landlord as
additional rent such interest on such amount from the date such amount becomes
due until such amount is paid. In addition, Tenant agrees to pay to Landlord
concurrently with such late payment amount, as additional rent, a late charge
equal to five percent (5%) of the amount due to compensate Landlord for the
extra costs Landlord will incur as a result of such late payment. Acceptance of
any such interest and late charge will not constitute a waiver of the Tenant's
default with respect to the overdue amount, or prevent Landlord from exercising
any of the other rights and remedies available to Landlord. If Tenant incurs a
late charge more than three (3) times in any period of twelve (12) months during
the Lease Term, then, notwithstanding that Tenant cures the late payments for
which such late charges are imposed, Landlord will have the right to require
Tenant thereafter to pay all installments of Monthly Base Rent quarterly in
advance throughout the remainder of the Lease Term.
(g) RIGHTS AND REMEDIES CUMULATIVE. All rights, options and remedies of Landlord
contained in this Lease will be construed and held to be cumulative, and no one
of them will be exclusive of the other, and Landlord shall have the right to
pursue any one or all of such remedies or any other remedy or relief which may
be provided by law or in equity, whether or not stated in this Lease. Nothing in
this Paragraph 22 will be deemed to limit or otherwise affect Tenant's
indemnification of Landlord pursuant to any provision of this Lease.
23. LANDLORD'S DEFAULT. Landlord will not be in default in the performance of
any obligation required to be performed by Landlord under this Lease unless
Landlord fails to perform such obligation within thirty (30) days after the
receipt of written notice from Tenant specifying in detail Landlord's failure to
perform; provided however, that if the nature of Landlord's obligation is such
that more than thirty (30) days are required for performance, then Landlord will
not be deemed in default if it commences such performance within such thirty
(30) day period and thereafter diligently pursues the same to completion. Upon
any default by Landlord, Tenant may exercise any of its rights provided at law
or in equity, subject to the limitations on liability set forth in Paragraph 35
of this Lease.
24. ASSIGNMENT AND SUBLETTING.
(a) RESTRICTION ON TRANSFER. Except as expressly provided in this Paragraph 24,
Tenant will not, either voluntarily or by operation of law, assign or encumber
this Lease or any interest herein or sublet the Premises or any part thereof, or
permit the use or occupancy of the Premises by any party other than Tenant (any
such assignment, encumbrance, sublease or the like will sometimes be referred to
as a "Transfer"), without the prior written consent of Landlord, which consent
Landlord will not unreasonably withhold. For purposes of this Paragraph 24, if
Tenant is a corporation, partnership or other entity, any transfer, assignment,
encumbrance or hypothecation of twenty-five percent (25%) or more (individually
or in the aggregate) of any stock or other ownership interest in such entity,
and/or any transfer, assignment, hypothecation or encumbrance of any controlling
ownership or voting interest in such entity, will be deemed a Transfer and will
be subject to all of the restrictions and provisions contained in this Paragraph
24.
(b) TRANSFER NOTICE. If Tenant desires to effect a Transfer, then at least
thirty (30) days prior to the date when Tenant desires the Transfer to be
effective (the "Transfer Date"), Tenant agrees to give Landlord a notice (the
"Transfer Notice"), stating the name, address and business of the proposed
assignee, sublessee or other transferee (sometimes referred to hereinafter as
"Transferee"), reasonable information (including references) concerning the
character, ownership, and financial condition of the proposed Transferee, the
Transfer Date, any ownership or commercial relationship between Tenant and the
proposed Transferee, and the consideration and all other material terms and
conditions of the proposed Transfer, all in such detail as Landlord may
reasonably require.
(c) LANDLORD'S OPTIONS. Within fifteen (15) days of Landlord's receipt of any
Transfer Notice, and any additional information requested by Landlord concerning
the proposed Transferee's financial responsibility, Landlord will notify Tenant
of its election to do one of the following: (i) consent to the proposed Transfer
subject to such reasonable conditions as Landlord may impose in providing such
consent; (ii) refuse such consent, which refusal shall be on reasonable grounds;
or (iii) terminate this Lease as to all or such portion of the Premises which is
proposed to be sublet or assigned and recapture all or such portion of the
Premises for reletting by Landlord.
(d) ADDITIONAL CONDITIONS. A condition to Landlord's consent to any Transfer of
this Lease will be the delivery to Landlord of a true copy of the fully executed
instrument of assignment, sublease, transfer or hypothecation, in form and
substance reasonably satisfactory to Landlord. Tenant agrees to pay to Landlord,
as additional rent, all sums and other consideration payable to and for the
benefit of Tenant by the assignee or sublessee in excess of the rent payable
under this Lease for the same period and portion of the Premises. In calculating
excess rent or other consideration which may be payable to Landlord under this
paragraph, Tenant will be entitled to deduct commercially reasonable third party
brokerage commissions and attorneys' fees and other amounts reasonably and
actually expended by Tenant in connection with such assignment or subletting if
acceptable written evidence of such expenditures is provided to Landlord. No
Transfer will release Tenant of Tenant's obligations under this Lease or alter
the primary liability of Tenant to pay the rent and to perform all other
obligations to be performed by Tenant hereunder. Landlord may require that any
Transferee remit directly to Landlord on a monthly basis, all monies due Tenant
by said Transferee. Consent by Landlord to one Transfer will not be deemed
consent to any subsequent Transfer. In the event of default by any Transferee of
Tenant or any successor of Tenant in the performance of any of the terms hereof,
Landlord may proceed directly against Tenant without the necessity of exhausting
remedies against such Transferee or successor. If Tenant effects a Transfer or
requests the consent of Landlord to any Transfer (whether or not such Transfer
is consummated), then, upon demand, Tenant agrees to pay Landlord a
non-refundable administrative fee of Two Hundred Fifty Dollars ($250.00), plus
Landlord's reasonable attorneys' fees.
25. SUBORDINATION. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, and at the
election of Landlord or any mortgagee or beneficiary with a deed of trust
encumbering the Building and/or the
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Development, or any lessor of a ground or underlying lease with respect to the
Building, this Lease will be subject and subordinate at all times to: (i) all
ground leases or underlying leases which may now exist or hereafter be executed
affecting the Building, and (ii) the lien of any mortgage or deed of trust
which may now exist or hereafter be executed for which the Building, the
Development or any leases thereof, or Landlord's interest and estate in any of
said items, is specified as security. Notwithstanding the foregoing, Landlord
reserves the right to subordinate any such ground leases or underlying leases or
any such liens to this Lease. If any such ground lease or underlying lease
terminates for any reason or any such mortgage or deed of trust is foreclosed or
a conveyance in lieu of foreclosure is made for any reason, at the election of
Landlord's successor in interest, Tenant agrees to attorn to and become the
tenant of such successor in which event Tenant's right to possession of the
Premises will not be disturbed as long as Tenant is not in default under this
Lease. Tenant hereby waives its rights under any law which gives or purports to
give Tenant any right to terminate or otherwise adversely affect this Lease and
the obligations of Tenant hereunder in the event of any such foreclosure
proceeding or sale. Tenant covenants and agrees to execute and deliver, upon
demand by Landlord and in the form reasonably required by Landlord, any
additional documents evidencing the priority or subordination of this Lease and
Tenant's attornment agreement with respect to any such ground lease or
underlying leases or the lien of any such mortgage or deed of trust. If Tenant
fails to sign and return any such documents within ten (10) days of receipt,
Tenant will be in default hereunder.
26. ESTOPPEL CERTIFICATE. Within ten (10) days following any written request
which Landlord may make from time to time, Tenant agrees to execute and deliver
to Landlord an estoppel certificate, in a form substantially similar to the form
of Exhibit "G" attached hereto or as may reasonably be required by Landlord's
lender. Landlord and Tenant intend that any statement delivered pursuant to this
Paragraph 26 may be relied upon by any mortgagee, beneficiary, purchaser or
prospective purchaser of the Building or any interest therein. Tenant's failure
to deliver such statement within such time will be conclusive upon Tenant (i)
that this Lease is in full force and effect, without modification except as may
be represented by Landlord, (ii) that there are no uncured defaults in
Landlord's performance, and (iii) that not more than one (1) month's rent has
been paid in advance. Without limiting the foregoing, if Tenant fails to deliver
any such statement within such ten (10) day period, Landlord may deliver to
Tenant an additional request for such statement and Tenant's failure to deliver
such statement to Landlord within ten (10) days after delivery of such
additional request will constitute a default under this Lease. Tenant agrees to
indemnify and protect Landlord from and against any and all claims, damages,
losses, liabilities and expenses (including attorneys' fees and costs)
attributable to any failure by Tenant to timely deliver any such estoppel
certificate to Landlord as required by this Paragraph 26.
27. BUILDING PLANNING. If Landlord requires the Premises for use in conjunction
with another suite or for other reasons connected with the planning program for
the Building or the Development, Landlord will have the right, upon sixty (60)
days' prior written notice to Tenant, to move Tenant to other space in the
Building of substantially similar size as the Premises, and with tenant
improvements of substantially similar age, quality and layout as then existing
in the Premises. Any such relocation will be at Landlord's cost and expense,
including the cost of providing such substantially similar tenant improvements
(but not any furniture or personal property) and Tenant's reasonable moving,
telephone installation and stationary reprinting costs. If Landlord so relocates
Tenant, the terms and conditions of this Lease will remain in full force and
effect and apply to the new space, except that (a) a revised Exhibit "A-I" will
become part of this Lease and will reflect the location of the new space, (b)
Paragraph 1 of this Lease will be amended to include and state all correct data
as to the new space, (c) the new space will thereafter be deemed to be the
"Premises", and (d) all economic terms and conditions (e.g. rent, total
Operating Expense Allowance, etc.) will be adjusted on a per square foot basis
based on the total number of rentable square feet of area contained in the new
space. Landlord and Tenant agree to cooperate fully with one another in order to
minimize the inconvenience to Tenant resulting from any such relocation.
28. RULES AND REGULATIONS. Tenant agrees to faithfully observe and comply with
the "Rules and Regulations," a copy of which is attached hereto and incorporated
herein by this reference as Exhibit "H", and all reasonable and
nondiscriminatory modifications thereof and additions thereto from time to time
put into effect by Landlord. Landlord will not be responsible to Tenant for the
violation or non-performance by any other tenant or occupant of the Building of
any of the Rules and Regulations.
29. MODIFICATION AND CURE RIGHTS OF LANDLORD'S MORTGAGEES AND LESSORS. If, in
connection with Landlord's obtaining or entering into any financing or ground
lease for any portion of the Building or the Development, the lender or ground
lessor requests modifications to this Lease, Tenant, within ten (10) days after
request therefor, agrees to execute an amendment to this Lease incorporating
such modifications, provided such modifications are reasonable and do not
increase the obligations of Tenant under this Lease or adversely affect the
leasehold estate created by this Lease. In the event of any default on the part
of Landlord, Tenant will give notice by registered or certified mail to any
beneficiary of a deed of trust or mortgage covering the Premises or ground
lessor of Landlord whose address has been furnished to Tenant, and Tenant agrees
to offer such beneficiary, mortgagee or ground lessor a reasonable opportunity
to cure the default (including with respect to any such beneficiary or
mortgagee, time to obtain possession of the Premises, subject to this Lease and
Tenant's rights hereunder, by power of sale or a judicial foreclosure, if such
should prove necessary to effect a cure).
30. DEFINITION OF LANDLORD. The term "Landlord," as used in this Lease, so far
as covenants or obligations on the part of Landlord are concerned, means and
includes only the owner or owners, at the time in question, of the fee title of
the Premises or the lessees under any ground lease, if any. In the event of any
transfer, assignment or other conveyance or transfers of any such title (other
than a transfer for security purposes only), Landlord herein named (and in case
of any subsequent transfers or conveyances, the then grantor) will be
automatically relieved from and after the date of such transfer, assignment or
conveyance of all liability as respects the performance of any covenants or
obligations on the part of Landlord contained in this Lease thereafter to be
performed, so long as the transferee assumes in writing all such covenants and
obligations of Landlord arising after the date of such transfer. Landlord and
Landlord's transferees and assignees have the absolute right to transfer all or
any portion of their respective title and interest in the Development, the
Building, the Premises and/or this Lease without the consent of Tenant, and such
transfer or subsequent transfer will not be deemed a violation on Landlord's
part of any of the terms and conditions of this Lease.
31. WAIVER. The waiver by either party of any breach of any term, covenant or
condition herein contained will not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition herein contained,
nor will any custom or practice which may develop between the parties in the
administration of the terms hereof be deemed a waiver of or in any way affect
the right of either party to insist upon performance in strict accordance with
said terms. The subsequent acceptance of rent or any other payment hereunder by
Landlord will 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. No acceptance by
Landlord of a lesser sum than the basic rent and additional rent or other sum
then due will be deemed to be other than on account of the earliest installment
of such rent or other amount due, nor will am endorsement or statement on any
check or any letter accompanying any check be deemed an accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of such installment or other amount or pursue any
other remedy provided in this Lease. The consent or approval of Landlord to or
of any act by Tenant requiring Landlord's consent or
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approval will not be deemed to waive or render unnecessary Landlord's consent or
approval to or of any subsequent similar acts by Tenant.
32. PARKING. So long as this Lease is in effect and provided Tenant is not in
default hereunder, Landlord grants to Tenant a license to use the number and
type of parking spaces designated in Subparagraph 1(l) subject to the terms and
conditions of this Paragraph 32 and the Rules and Regulations regarding parking
contained in Exhibit "H" attached hereto. So long as this Lease is in effect,
Tenant's visitors and guests will be entitled to use those specific parking
areas which are designated for short term visitor parking and which are located
within the surface parking area(s), if any, and/or within the parking
structure(s) which serve the Building. Tenant will not use or allow any of
Tenant's employees or guests to use any parking spaces which have been
specifically assigned by Landlord to other tenants or occupants or for other
uses such as visitor parking or which have been designated by any governmental
entity as being restricted to certain uses. As consideration for the use of
Tenant's parking spaces, Tenant agrees to pay to Landlord or, at Landlord's
election, directly to Landlord's parking operator, as additional rent under
this Lease, the prevailing parking rate for each such parking space as
established by Landlord in its discretion from time to time. Tenant agrees that
all parking charges will be payable on a monthly basis concurrently with each
monthly payment of Monthly Base Rent. Except as provided in Subparagraph 1(l),
Landlord reserves the right to set and increase monthly fees and/or daily and
hourly rates for parking privileges from time to time during the Term of the
Lease. For the duration of the Term, Tenant is obligated to pay for all of the
parking stalls allocated to Tenant, whether or not Tenant actually uses such
stalls. Landlord may assign any unreserved and unassigned parking spaces and/or
make all or any portion of such spaces reserved, if Landlord reasonably
determines that it is necessary for orderly and efficient parking or for any
other reasonable reason. Except in connection with an assignment or sublease
which is expressly permitted under this Lease, Tenant's parking rights and
privileges described herein are personal to Tenant and may not be assigned or
transferred, or otherwise conveyed, without Landlord's prior written consent,
which consent Landlord may withhold in its sole and absolute discretion. In any
event, under no circumstances may Tenant's parking rights and privileges be
transferred, assigned or otherwise conveyed separate and apart from Tenant's
interest in this Lease. Tenant shall comply with all rules and regulations
regarding parking set forth in Exhibit "H" attached hereto and Tenant agrees to
cause its employees, subtenants, assignees, contractors, suppliers, customers
and invitees to comply with such rules and regulations. Landlord reserves the
right from time to time to modify and/or adopt such other reasonable and
non-discriminatory rules and regulations for the parking facilities as it deems
reasonably necessary for the operation of the parking facilities.
33. FORCE MAJEURE. If either Landlord or Tenant is delayed, hindered in or
prevented from the performance of any act required under this Lease by reason of
strikes, lock-outs, labor troubles, inability to procure standard materials,
failure of power, restrictive governmental laws, regulations or orders or
governmental action or inaction (including failure, refusal or delay in issuing
permits, approvals and/or authorizations which is not the result of the action
or inaction of the party claiming such delay), riots, civil unrest or
insurrection, war, fire, earthquake, flood or other natural disaster, unusual
and unforeseeable delay which results from an interruption of any public
utilities (e.g., electricity, gas, water, telephone) or other unusual and
unforeseeable delay not within the reasonable control of the party delayed in
performing work or doing acts required under the provisions of this Lease, then
performance of such act will be excused for the period of the delay and the
period for the performance of any such act will be extended for a period
equivalent to the period of such delay. The provisions of this Paragraph 33 will
not operate to excuse Tenant from prompt payment of rent or any other payments
required under the provisions of this Lease.
34. SIGNS. Landlord will designate the location on the Premises, if any, for one
or more Tenant identification sign(s). Tenant agrees to have Landlord install
and maintain Tenant's identification sign(s) in such designated location in
accordance with this Paragraph 34 at Tenant's sole cost and expense. Tenant has
no right to install Tenant identification signs in any other location in, on or
about the Premises or the Development and will not display or erect any other
signs, displays or other advertising materials that are visible from the
exterior of the Building or from within the Building in any interior or
exterior common areas. The size, design, color and other physical aspects of any
and all permitted sign(s) will be subject to (i) Landlord's written approval
prior to installation, which approval may be withheld in Landlord's discretion,
(ii) any covenants, conditions or restrictions governing the Premises, and (iii)
any applicable municipal or governmental permits and approvals. Tenant will be
solely responsible for all costs for installation, maintenance, repair and
removal of any Tenant identification sign(s). If Tenant fails to remove Tenant's
sign(s) upon termination of this Lease and repair any damage caused by such
removal, Landlord may do so at Tenant's sole cost and expense. Tenant agrees to
reimburse Landlord for all costs incurred by Landlord to effect any
installation, maintenance or removal on Tenant's account, which amount will be
deemed additional rent, and may include, without limitation, all sums disbursed,
incurred or deposited by Landlord including Landlord's costs, expenses and
actual attorneys' fees with interest thereon at the Interest Rate from the date
of Landlord's demand until paid by Tenant. Any sign rights granted to Tenant
under this Lease are personal to Tenant and may not be assigned, transferred or
otherwise conveyed to any assignee or subtenant of Tenant without Landlord's
prior written consent, which consent Landlord may withhold in its sole and
absolute discretion.
35. LIMITATION ON LIABILITY. In consideration of the benefits accruing
hereunder, Tenant on behalf of itself and all successors and assigns of Tenant
covenants and agrees that, in the event of any actual or alleged failure, breach
or default hereunder by Landlord: (a) Tenant's recourse against Landlord for
monetary damages will be limited to Landlord's interest in the Building
including, subject to the prior rights of any Mortgagee, Landlord's interest in
the rents of the Building and any insurance proceeds payable to Landlord; (b)
except as may be necessary to secure jurisdiction of the partnership, no partner
of Landlord shall be sued or named as a party in any suit or action and no
service of process shall be made against any partner of Landlord; (c) no
partner of Landlord shall be required to answer or otherwise plead to any
service of process; (d) no judgment will be taken against any partner of
Landlord and any judgment taken against any partner of Landlord may be vacated
and set aside at any time after the fact; (e) no writ of execution will be
levied against the assets of any partner of Landlord; (f) the obligations under
this Lease do not constitute personal obligations of the individual partners,
directors, officers or shareholders of Landlord, and Tenant shall not seek
recourse against the individual partners, directors, officers or shareholders of
Landlord or any of their personal assets for satisfaction of any liability in
respect to this Lease; and (g) these covenants and agreements are enforceable
both by Landlord and also by any partner of Landlord.
36. FINANCIAL STATEMENTS. Prior to the execution of this Lease by Landlord and
at any time during the Term of this Lease upon ten (10) days prior written
notice from Landlord, Tenant agrees to provide Landlord with a current
financial statement for Tenant and any guarantors of Tenant and financial
statements for the two (2) years prior to the current financial statement year
for Tenant and any guarantors of Tenant. Such statements are to be prepared in
accordance with generally accepted accounting principles and, if such is the
normal practice of Tenant, audited by an independent certified public
accountant.
37. QUIET ENJOYMENT. Landlord covenants and agrees with Tenant that upon Tenant
paying the rent required under this Lease and paying all other charges and
performing all of the covenants and provisions on Tenant's part to be observed
and performed under this Lease, Tenant may peaceably and quietly have, hold and
enjoy the Premises in accordance with this Lease.
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38. MISCELLANEOUS
(a) CONFLICT OF LAWS. This Lease shall be governed by and construed solely
pursuant to the laws of the State, without giving effect to choice of law
principles thereunder.
(b) SUCCESSORS AND ASSIGNS. Except as otherwise provided in this Lease, all of
the covenants, conditions and provisions of this Lease shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns.
(c) PROFESSIONAL FEES AND COSTS. If either Landlord or Tenant should bring suit
against the other with respect to this Lease, then all costs and expenses,
including without limitation, actual professional fees and costs such as
appraisers', accountants' and attorneys' fees and costs, incurred by the party
which prevails in such action, whether by final judgment or out of court
settlement, shall be paid by the other party, which obligation on the part of
the other party shall be deemed to have accrued on the date of the commencement
of such action and shall be enforceable whether or not the action is prosecuted
to judgment. As used herein, attorneys' fees and costs shall include, without
limitation, attorneys' fees, costs and expenses incurred in connection with any
(i) postjudgment motions; (ii) contempt proceedings; (iii) garnishment, levy,
and debtor and third party examination; (iv) discovery; and (v) bankruptcy
litigation.
(d) TERMS AND HEADINGS. The words "Landlord" and "Tenant" as used herein shall
include the plural as well as the singular. Words used in any gender include
other genders. The paragraph headings of this Lease are not a part of this Lease
and shall have no effect upon the construction or interpretation of any part
hereof.
(e) TIME. Time is of the essence with respect to the performance of every
provision of this Lease in which time of performance is a factor.
(f) PRIOR AGREEMENT; AMENDMENTS. This Lease constitutes and is intended by the
parties to be a final, complete and exclusive statement of their entire
agreement with respect to the subject matter of this Lease. This Lease
supersedes any and all prior and contemporaneous agreements and understandings
of any kind relating to the subject matter of this Lease. There are no other
agreements, understandings, representations, warranties, or statements, either
oral or in written form, concerning the subject matter of this Lease. No
alteration, modification, amendment or interpretation of this Lease shall be
binding on the parties unless contained in a writing which is signed by both
parties.
(g) SEPARABILITY. The provisions of this Lease shall be considered separable
such that if any provision or part of this Lease is ever held to be invalid,
void or illegal under any law or ruling, all remaining provisions of this Lease
shall remain in full force and effect to the maximum extent permitted by law.
(h) RECORDING. Neither Landlord nor Tenant shall record this Lease nor a short
form memorandum thereof without the consent of the other.
(i) COUNTERPARTS. This Lease may be executed in one or more counterparts, each
of which shall constitute an original and all of which shall be one and the same
agreement.
(j) NONDISCLOSURE OF LEASE TERMS. Tenant acknowledges and agrees that the terms
of this Lease are confidential and constitute proprietary information of
Landlord. Disclosure of the terms could adversely affect the ability of Landlord
to negotiate other leases and impair Landlord's relationship with other tenants.
Accordingly, Tenant agrees that it, and its partners, officers, directors,
employees, agents and attorneys, shall not intentionally and voluntarily
disclose the terms and conditions of this Lease to any newspaper or other
publication or any other tenant or apparent prospective tenant of the Building
or other portion of the Development, or real estate agent, either directly or
indirectly, without the prior written consent of Landlord, provided, however,
that Tenant may disclose the terms to prospective subtenants or assignees under
this Lease.
(k) NON-DISCRIMINATION. Tenant acknowledges and agrees that there shall be no
discrimination against, or segregation of, any person, group of persons, or
entity on the basis of race, color, creed, religion, age, sex, marital status,
national origin, or ancestry in the leasing, subleasing, transferring,
assignment, occupancy, tenure, use, or enjoyment of the Premises, or any portion
thereof.
39. EXECUTION OF LEASE.
(a) JOINT AND SEVERAL OBLIGATIONS. If more than one person or entity executes
this Lease as Tenant, their execution of this Lease will constitute their
covenant and agreement that (i) each of them is jointly and severally liable for
the keeping, observing and performing of all of the terms, covenants,
conditions, provisions and agreements of this Lease to be kept, observed and
performed by Tenant, and (ii) the term "Tenant" as used in this Lease means and
includes each of them jointly and severally. 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, will be
binding upon each and all of the persons executing this Lease as Tenant with the
same force and effect as if each and all of them had so acted or so given or
received such notice or refund or so signed.
(b) TENANT AS CORPORATION OR PARTNERSHIP. If Tenant executes this Lease as a
corporation or partnership, then Tenant and the persons executing this Lease on
behalf of Tenant represent and warrant that such entity is duly qualified and in
good standing to do business in California and that the individuals executing
this Lease on Tenant's behalf are duly authorized to execute and deliver this
Lease on its behalf, and in the case of a corporation, in accordance with a duly
adopted resolution of the board of directors of Tenant, a copy of which is to be
delivered to Landlord on execution hereof, if requested by Landlord, and in
accordance with the by-laws of Tenant, and, in the case of a partnership, in
accordance with the partnership agreement and the most current amendments
thereto, if any, copies of which are to be delivered to Landlord on execution
hereof, if requested by Landlord, and that this Lease is binding upon Tenant in
accordance with its terms.
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(c) EXAMINATION OF LEASE. Submission of this instrument by Landlord to Tenant
for examination or signature by Tenant does not constitute a reservation of or
option for lease, and it is not effective as a lease or otherwise until
execution by and delivery to both Landlord and Tenant.
IN WITNESS WHEREOF, the parties have caused this Lease to be duly executed by
their duly authorized representatives as of the date first above written.
TENANT:
PRO BUSINESS, INC.,
a California corporation
By: /s/ Mitch Everton
------------------------------------------
Print Name: Mitch Everton
-----------------------------
Print Title: EVP - OPERATIONS &
ASST SECRETARY
-----------------------------
By:
------------------------------------------
Print Name:
------------------------------
Print Title:
-----------------------------
LANDLORD:
KOLL CENTER IRVINE NUMBER TWO,
a California limited partnership
By: Connecticut General Life
Insurance Company,
General Partner
By: Cigna Investments, Inc.
Its Authorized Agent
By: /s/ STEPHEN J. OLSTEIN
----------------------------------
Print Name: /s/ STEPHEN J. OLSTEIN
----------------------
Print Title: MANAGING DIRECTOR
---------------------
16
DESCRIPTION OF LANDLORD'S WORK
Tenant shall lease the Premises from Landlord on an "AS-IS"
basis with the exception that Landlord shall shampoo the carpeting to the best
of Landlord's ability.
17
TENANT'S INSURANCE REQUIREMENTS
This outlines the insurance requirements of your Lease. To assure
compliance with these terms, we suggest you send a copy of this Exhibit to your
insurer or agent. Initial Certificates must be provided to Landlord prior to
occupancy of the Premises
,renewals ten (10) days before expiration.
1. Comprehensive or Commercial General Liability Insurance:
$1,000,000 Combined Single Limit, each occurrence
$1,000,000 Aggregate (minimum) this location
$1,000,000 Products/Completed Operations Aggregate
$ 50,000 Fire Legal Liability Limit, per fire
Bodily Injury, Property Damage, Personal Injury and
Advertising Injury; Blanket Contractual Liability-Covering
Indemnity Section 18(b); Products and Completed Operations
Liability; Landlord as an Additional Insured; Severability of
Interest, permitting Cross liability among insureds; provision
stating that tenant's insurance is primary and
non-contributing with any insurance carried by Landlord.
2. Tenant's Property Insurance:
All Risks coverage of Property owned by Tenant or for which the
Tenant is legally liable; full replacement cost basis.
3. Tenant's Business Interruption Insurance:
All Risks coverage of operations at leased premises; covering
one-year's business interruption due to insured peril.
4. Tenant's Workers' Compensation and Employer's Liability Insurance:
Statutory Limits and terms required by State; $1,000,000 Employer's
Liability Limit.
5. Tenant's Automobile Insurance:
$1,000,000 Combined Limit per accident; covering all owned,
non-owned, hired autos (Symbol 1 - any auto).
All insurance is to be with licensed insurers having a Best's rating of "A X"
or better, and must include the following:
Waiver of Subrogation in favor of Landlord
Thirty (30) day pre-notice of cancellation/non renewal to Landlord
SEND CERTIFICATE TO:
(Name of Landlord from project file)
KMS Risk Management Services
c/o Johnson & Higgins
695 Town Center Drive, Suite 700
Costa Mesa, California 92626
PLEASE INCLUDE ADDRESS OF PREMISES.
18
DEFINITION OF OPERATING EXPENSES
1. ITEMS INCLUDED IN OPERATING EXPENSES. The term "Operating Expenses"
as used in the Lease to which this Exhibit "E" is attached means: all costs and
expenses of operation and maintenance of the Building and the Common Areas (as
such terms are defined in the Lease), as determined by standard accounting
practices, calculated assuming the Building is ninety-five percent (95%)
occupied, including the following costs by way of illustration but not
limitation, but excluding those items specifically set forth in Paragraph 3
below: (a) Real Property Taxes and Assessments (as defined in PARAGRAPH 2 below)
and any taxes or assessments imposed in lieu thereof; (b) any and all
assessments imposed with respect to the Building pursuant to any covenants,
conditions and restrictions affecting the Development, the Common Areas or the
Building; (c) water and sewer charges and the costs of electricity, heating,
ventilating, air conditioning and other utilities; (d) utilities surcharges and
any other costs, levies or assessments resulting from statutes or regulations
promulgated by any government or quasi-government authority in connection with
the use, occupancy or alteration of the Building or the Premises or the parking
facilities serving the Building or the Premises; (e) costs of insurance obtained
by Landlord pursuant to PARAGRAPH 19 of the Lease; (f) waste disposal and
janitorial services; (g) security; (h) labor; (i) costs incurred in the
management of the Building, including, without limitation: (i) supplies, (ii)
wages and salaries (and payroll taxes and similar governmental charges related
thereto) of employees used in the management, operation and maintenance of the
Building, (iii) Building management office rental, supplies, equipment and
related operating expenses, and (iv) a management/administrative fee determined
as a percentage of the annual gross revenues of the Building exclusive of the
proceeds of financing or a sale of the Building and an administrative fee for
the management of the Development Common Area determined as a percentage of
Development Common Area Operating Expenses; (j) supplies, materials, equipment
and tools including rental of personal property used for maintenance; (k) repair
and maintenance of the elevators and the structural portions of the Building,
including the plumbing, heating, ventilating, air-conditioning and electrical
systems installed or furnished by Landlord; (l) maintenance, costs and upkeep of
all parking and Development Common Areas; (m) depreciation on a straight line
basis and rental of personal property used in maintenance; (n) amortization on a
straight line basis over the useful life [together with interest at the Interest
Rate on the unamortized balance] of all capitalized expenditures which are: (i)
reasonably intended to produce a reduction in operating charges or energy
consumption; or (ii) required under any governmental law or regulation that was
not applicable to the Building at the time it was originally constructed; or
(iii) for replacement of any Building equipment needed to operate the Building
at the same quality levels as prior to the replacement; (o) costs and expenses
of gardening and landscaping; (p) maintenance of signs (other than signs of
tenants of the Building); (q) personal property taxes levied on or attributable
to personal property used in connection with the Building or the Common Areas;
(r) reasonable accounting, audit, verification, legal and other consulting fees;
and (s) costs and expenses of repairs, resurfacing, repairing, maintenance,
painting, lighting, cleaning, refuse removal, security and similar items,
including appropriate reserves. When calculating Operating Expenses for purposes
of establishing Tenant's Operating Expense Allowance, Operating Expenses shall
not include Real Property Taxes and Assessments attributable to special
assessments, charges, costs, or fees or due to modifications or changes in
governmental laws or regulations including, but not limited to, the institution
of a split tax roll, and shall exclude market-wide labor-rate increases due to
extraordinary circumstances including, but not limited to, boycotts and strikes
and utility increases due to extraordinary circumstances including, but not
limited to, conservation surcharges, boycotts, embargoes or other shortages.
2. REAL PROPERTY TAXES AND ASSESSMENTS. The term "Real Property Taxes
and Assessments", as used in this Exhibit "E", means: any form of assessment,
license fee, license tax, business license fee, commercial rental tax, levy,
charge, improvement bond, tax or similar imposition imposed by any authority
having the direct power to tax, including any city, county, state or federal
government, or any school, agricultural, lighting, drainage or other improvement
or special assessment district thereof, as against any legal or equitable
interest of Landlord in the Premises, Building, Common Areas or the Development
(as such terms are defined in the Lease), adjusted to reflect an assumption that
the Building is fully assessed for real property tax purposes as a completed
building ready for occupancy, including the following by way of illustration but
not limitation: (a) any tax on Landlord's "right" to rent or "right" to other
income from the Premises or as against Landlord's business of leasing the
Premises; (b) any assessment, tax, fee, levy or charge in substitution,
partially or totally, of any assessment, tax, fee, levy or charge previously
included within the definition of real property tax, it being acknowledged by
Tenant and Landlord that Proposition 13 was adopted by the voters of the State
of California in the June, 1978 election and that assessments, taxes, fees,
levies and charges may be imposed by governmental agencies for such services as
fire protection, street, sidewalk and road maintenance, refuse removal and for
other governmental services formerly provided without charge to property owners
or occupants. It is the intention of Tenant and Landlord that all such new and
increased assessments, taxes, fees, levies and charges be included within the
definition of "real property taxes" for the purposes of this Lease; (c) any
assessment, tax, fee, levy or charge allocable to or measured by the area of the
Premises or other premises in the Building or the rent payable by Tenant
hereunder or other tenants of the Building, including, without limitation, any
gross receipts tax or excise tax levied by state, city or federal government, or
any political subdivision thereof, with respect to the receipt of such rent, or
upon or with respect to the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy by Tenant of the Premises, or
any portion thereof but not on Landlord's other operations; (d) any assessment,
tax, fee, levy or charge upon this transaction or any document to which Tenant
is a party, creating or transferring an interest or an estate in the Premises;
and/or (e) any assessment, tax, fee, levy or charge by any governmental agency
related to any transportation plan, fund or system (including assessment
districts) instituted within the geographic area of which the Building is a
part.
Notwithstanding the foregoing, if at any time after the Commencement Date, the
amount of Real Property Taxes and Assessments decreases, then for purposes of
all subsequent Lease Years, including the Lease Year in which such decrease in
Real Property Taxes and Assessments occurs, Tenant's Operating Expense Allowance
shall be decreased by an amount equal to such decrease in Real Property Taxes
and Assessments.
3. ITEMS EXCLUDED FROM OPERATING EXPENSES. Notwithstanding the
provisions of PARAGRAPHS 1 AND 2 above to the contrary, "Operating Expenses"
will not include: (a) Landlord's federal or state income, franchise, inheritance
or estate taxes; (b) any ground lease rental; (c) costs incurred by Landlord for
the repair of damage to the Building to the extent that Landlord is reimbursed
by insurance or condemnation proceeds or by tenants, warrantors or other third
persons; (d) depreciation, amortization and interest payments, except as
specifically provided herein, 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 standard accounting practices; (e) brokerage commissions,
finders' fees, attorneys' fees, space planning costs and other costs incurred by
Landlord in leasing or attempting to lease space in the Building; (f) costs of a
capital nature, including, without limitation, capital improvements, capital
replacements, capital repairs, capital equipment and capital tools, all as
determined in accordance with standard accounting practices; provided, however,
the capital expenditures set forth in Subparagraph l(n) above will in any event
be included in the definition of Operating Expenses; (g) interest, principal,
points and fees on debt or amortization on any mortgage, deed of trust or other
debt encumbering the Building or the Development; (h) costs, including permit,
license and inspection costs, incurred with respect to the installation of
tenant improvements for tenants in the Building (including the original Tenant
Improvements for the Premises), or incurred in renovating or otherwise
improving, decorating, painting or redecorating space for tenants
19
or other occupants of the Building, including space planning and interior design
costs and fees; (i) attorneys' fees and other costs and expenses incurred in
connection with negotiations or disputes with present or prospective tenants or
other occupants of the Building; provided, however, that Operating Expenses will
include those attorneys' fees and other costs and expenses incurred in
connection with negotiations, disputes or claims relating to items of Operating
Expenses, enforcement of rules and regulations of the Building, and such other
matters relating to the maintenance of standards required of Landlord under the
Lease; (j) except for the administrative/management fees described in
SUBPARAGRAPH 1(i) above, costs of Landlord's general corporate overhead; (k) all
items and services for which Tenant or any other tenant in the Building
reimburses Landlord (other than through operating expense pass-through
provisions); (l) electric power costs for which any tenant directly contracts
with the local public service company; and (m) costs arising from Landlord's
charitable or political contributions.
E-2
20
STANDARDS FOR UTILITIES AND SERVICES
The following standards for utilities and services are in effect.
Landlord reserves the right to adopt nondiscriminatory modifications and
additions hereto.
Subject to the terms and conditions of the Lease and provided Tenant
remains in occupancy of the Premises, Landlord will provide or make available
the following utilities and services:
1. Provide non-attended automatic elevator facilities Monday through
Friday, except holidays, from 8 a.m. to 6 p.m., and have one elevator available
for Tenant's use at all other times.
2. On Monday through Friday, except holidays, from 8 a.m. to 6 p.m. and
on Saturday from 8 a.m. to 12 Noon (and other times for a reasonable additional
charge to be fixed by Landlord), ventilate the Premises and furnish air
conditioning or heating on such days and hours, when in the reasonable judgment
of Landlord it may be required for the comfortable occupancy of the Premises.
The air conditioning system achieves maximum cooling when the window coverings
are extended to the full length of the window opening and adjusted to a 45
degrees angle upwards. Landlord will not be responsible for room temperatures if
Tenant does not keep all window coverings in the Premises extended to the full
length of the window opening and adjusted to a 45 degrees angle upwards whenever
the system is in operation. Tenant agrees to cooperate fully at all times with
Landlord, and to abide by all reasonable regulations and requirements which
Landlord may prescribe for the proper function and protection of said air
conditioning system. Tenant agrees not to connect any apparatus, device, conduit
or pipe to the chilled and hot water air conditioning supply lines of the
Building. Tenant further agrees that neither Tenant nor its servants, employees,
agents, visitors, licensees or contractors shall at any time enter the
mechanical installations or facilities of the Building or the Development or
adjust, tamper with, touch or otherwise in any manner affect said installations
or facilities. The cost of maintenance and service calls to adjust and regulate
the air conditioning system will be charged to Tenant if the need for
maintenance work results from either Tenant's adjustment of room thermostats or
Tenant's failure to comply with its obligations under this Exhibit, including
keeping window coverings extended to the full length of the window opening and
adjusted to a 45 degrees angle upwards. Such work will be charged at hourly
rates equal to then-current journeyman's wages for air conditioning mechanics.
3. Landlord will make available to the Premises, 24 hours per day,
seven days a week, electric current as required by the Building standard office
lighting and fractional horsepower office business machines including copiers,
personal computers and word processing equipment in an amount not to exceed six
(6) watts per square foot per normal business day. Tenant agrees, should its
electrical installation or electrical consumption be in excess of the aforesaid
quantity or extend beyond normal business hours, to reimburse Landlord monthly
for the measured consumption at the average cost per kilowatt hour charged to
the Building during the period. If a separate meter is not installed at Tenant's
cost, such excess cost will be established by an estimate agreed upon by
Landlord and Tenant, and if the parties fail to agree, such cost will be
established by an independent licensed engineer selected in Landlord's
reasonable discretion, whose fee shall be shared equally by Landlord and Tenant.
Tenant agrees not to use any apparatus or device in, upon or about the Premises
(other than standard office business machines, personal computers and word
processing equipment) which may in any way increase the amount of such services
usually furnished or supplied to said Premises, and Tenant further agrees not to
connect any apparatus or device with wires, conduits or pipes, or other means by
which such services are supplied, for the purpose of using additional or unusual
amounts of such services without the written consent of Landlord. Should Tenant
use the same to excess, the refusal on the part of Tenant to pay upon demand of
Landlord the amount established by Landlord for such excess charge will
constitute a breach of the obligation to pay rent under this Lease and will
entitle Landlord to the rights therein granted for such breach. Tenant's use of
electric current will never exceed the capacity of the feeders to the Building,
or the risers or wiring installation and Tenants will not install or use or
permit the installation or use of any computer or electronic data processing
equipment in the Premises (except standard office business machines, personal
computers and word processing equipment) without the prior written consent of
Landlord.
4. Water will be available in public areas for drinking and lavatory
purposes only, but if Tenant requires, uses or consumes water for any purpose in
addition to ordinary drinking and lavatory purposes, of which fact Tenant
constitutes Landlord to be the sole judge, Landlord may install a water meter
and thereby measure Tenant's water consumption for all purposes. Tenant agrees
to pay Landlord for the cost of the meter and the cost of the installation
thereof and throughout the duration of Tenant's occupancy Tenant will keep said
meter and installation equipment in good working order and repair at Tenant's
own cost and expense, in default of which Landlord may cause such meter and
equipment to be replaced or repaired and collect the cost thereof from Tenant.
Tenant agrees to pay for water consumed, as shown on such meter, as and when
bills are rendered, and on default in making such payment, Landlord may pay such
charges and collect the same from Tenant. Any such costs or expenses incurred,
or payments made by Landlord for any of the reasons or purposes hereinabove
stated will be deemed to be additional rent payable by Tenant and collectible by
Landlord as such.
5. Landlord will provide janitor service to the Premises, provided the
same are used exclusively as offices, and are kept reasonably in order by
Tenant, and unless otherwise agreed to by Landlord and Tenant no one other than
persons approved by Landlord shall be permitted to enter the Premises for such
purposes. If the Premises are not used exclusively as offices, they will be kept
clean and in order by Tenant, at Tenant's expense, and to the satisfaction of
Landlord, and by persons approved by Landlord. Tenant agrees to pay to Landlord
the cost of removal of any of Tenant's refuse and rubbish to the extent that the
same exceeds the refuse and rubbish usually attendant upon the use of the
Premises as offices.
6. Landlord reserves the right to stop service of the elevator,
plumbing, ventilation, air conditioning and electrical systems, when necessary,
by reason of accident or emergency or for repairs, alterations or improvements,
when in the judgment of Landlord such actions are desirable or necessary to be
made, until said repairs, alterations or improvements shall have been completed,
and Landlord will have no responsibility or liability for failure to supply
elevator facilities, plumbing, ventilating, air conditioning or electric
service, when prevented from so doing by strike or accident or by any cause
beyond Landlord's reasonable control, or by laws, rules, orders, ordinances,
directions, regulations or by reason of the requirements of any federal, state,
county or municipal authority or failure of gas, oil or other suitable fuel
supply or inability by exercise of reasonable diligence to obtain gas, oil or
other suitable fuel supply. It is expressly understood and agreed that any
covenants on Landlord's part to furnish any services pursuant to any of the
terms, covenants, conditions, provisions or agreements of this Lease, or to
perform any act or thing for the benefit of Tenant, will not be deemed
breached if Landlord is unable to furnish or perform the same by virtue of a
strike or labor trouble or any other cause whatsoever beyond Landlord's control.
21
ESTOPPEL CERTIFICATE
The undersigned,____________________________________________________
("Tenant"), hereby certifies to ____________________________________, as
follows:
1. Attached hereto is a true, correct and complete copy of that certain
lease dated _______________ ,19__, between_________________________________ ,
a _____________________________ ("Landlord") and Tenant (the "Lease"), regarding
the premises located at _______________________________________________________
(the "Premises"). The Lease is now in full force and effect and has not been
amended, modified or supplemented, except as set forth in Paragraph 4 below.
2. The Term of the Lease commenced on _________________, 19__ .
3. The Term of the Lease shall expire on ___________________ 19,__ .
4. The Lease has: (Initial one)
(_______) not been amended, modified, supplemented, extended, renewed
or assigned.
(_______) been amended, modified, supplemented, extended, renewed or
assigned by the following described terms or agreements, copies of which are
attached hereto:
_______________________________________________________________________
_______________________________________________________________________
5. Tenant has accepted and is now in possession of the Premises.
6. Tenant and Landlord acknowledge that Landlord's interest in the
Lease will be assigned to ______________________________ and that no
modification, adjustment, revision or cancellation of the Lease or amendments
thereto shall be effective unless written consent of___________________________
_______________________________ is obtained, and that until further notice,
payments under the Lease may continue as heretofore.
7. The amount of Monthly Base Rent is $___________ .
8. The amount of security deposits (if any) is $______________ .
No other security deposits have been made except as follows: _________
______________________________________________________________________________ .
9. Tenant is paying the full lease rental which has been paid in full
as of the date hereof. No rent or other charges under the Lease have been paid
for more than thirty (30) days in advance of its due date except as follows:
______________________________________________________________________________ .
10. All work required to be performed by Landlord under the Lease has
been completed except as follows: _____________________________________________
______________________________________________________________________________ .
11. There are no defaults on the part of the Landlord or Tenant under
the Lease except as follows: __________________________________________________
______________________________________________________________________________ .
12. Neither Landlord nor Tenant has any defense as to its obligations
under the Lease and claims no set-off or counterclaim against the other party
except as follows: _____________________________________________________________
______________________________________________________________________________ .
13. Tenant has no right to any concession (rental or otherwise) or
similar compensation in connection with renting the space it occupies other than
as provided in the Lease except as follows: ___________________________________
______________________________________________________________________________ .
All provisions of the Lease and the amendments thereto (if any) referred to
above are hereby ratified.
The foregoing certification is made with the knowledge that
_________________________________is about to fund a loan to Landlord or
____________________ is about to purchase the Building from Landlord and that
___________________ is relying upon the representations herein made in funding
such loan or in purchasing the Building.
IN WITNESS WHEREOF, this certificate has been duly executed and
delivered by the authorized officers of the undersigned as of _________, l9__ .
TENANT:
_______________________________________,
a______________________________________
By:____________________________________
Print Name:____________________________
Title:_________________________________
SAMPLE ONLY
[NOT FOR EXECUTION]
EXHIBIT "G"
22
RULES AND REGULATIONS
A. GENERAL RULES AND REGULATIONS. The following rules and regulations
govern the use of the Building and the Development Common Areas. Tenant will be
bound by such rules and regulations and agrees to cause Tenant's Authorized
Users, its employees, subtenants, assignees, contractors, suppliers, customers
and invitees to observe the same.
1.Except as specifically provided in the Lease to which these Rules and
Regulations are attached, no sign, placard, picture, advertisement, name or
notice may be installed or displayed on any part of the outside or inside of the
Building or the Development without the prior written consent of Landlord.
Landlord will have the right to remove, at Tenant's expense and without notice,
any sign installed or displayed in violation of this rule. All approved signs or
lettering on doors and walls are to be printed, painted, affixed or inscribed at
the expense of Tenant and under the direction of Landlord by a person or company
designated or approved by Landlord.
2. If Landlord objects in writing to any curtains, blinds, shades,
screens or hanging plants or other similar objects attached to or used in
connection with any window or door of the Premises, or placed on any windowsill,
which is visible from the exterior of the Premises, Tenant will immediately
discontinue such use. Tenant agrees not to place anything against or near glass
partitions or doors or windows which may appear unsightly from outside the
Premises including from within any interior common areas.
3. Tenant will not obstruct any sidewalks, halls, passages, exits,
entrances, elevators, escalators, or stairways of the Development. The halls,
passages, exits, entrances, elevators and stairways are not open to the general
public, but are open, subject to reasonable regulations, to Tenant's business
invitees. Landlord will in all cases retain the right to control and prevent
access thereto of all persons whose presence in the reasonable judgment of
Landlord would be prejudicial to the safety, character, reputation and interest
of the Development and its tenants, provided that nothing herein contained will
be construed to prevent such access to persons with whom any tenant normally
deals in the ordinary course of its business, unless such persons are engaged in
illegal or unlawful activities. No tenant and no employee or invitee of any
tenant will go upon the roof of the Building.
4. Tenant will not obtain for use on the Premises ice, drinking water,
food, food vendors, beverage, towel or other similar services or accept
barbering or bootblacking service upon the Premises, except at such reasonable
hours and under such reasonable regulations as may be fixed by Landlord.
Landlord expressly reserves the right to absolutely prohibit solicitation,
canvassing, distribution of handbills or any other written material, peddling,
sales and displays of products, goods and wares in all portions of the
Development except as may be expressly permitted under the Lease. Landlord
reserves the right to restrict and regulate the use of the common areas of the
Development and Building by invitees of tenants providing services to tenants on
a periodic or daily basis including food and beverage vendors. Such restrictions
may include limitations on time, place, manner and duration of access to a
tenant's premises for such purposes. Without limiting the foregoing, Landlord
may require that such parties use service elevators, halls, passageways and
stairways for such purposes to preserve access within the Building for tenants
and the general public.
5. Landlord reserves the right to require tenants to periodically
provide Landlord with a written list of any and all business invitees which
periodically or regularly provide goods and services to such tenants at the
premises. Landlord reserves the right to preclude all vendors from entering or
conducting business within the Building and the Development if such vendors are
not listed on a tenant's list of requested vendors
6. Landlord reserves the right to exclude from the Building between the
hours of 6 p.m. and 8 a.m. the following business day, or such other hours as
may be established from time to time by Landlord, and on Sundays and legal
holidays, any person unless that person is known to the person or employee in
charge of the Building or has a pass or is properly identified. Tenant will be
responsible for all persons for whom it requests passes and will be liable to
Landlord for all acts of such persons. Landlord will not be liable for damages
for any error with regard to the admission to or exclusion from the Building of
any person. Landlord reserves the right to prevent access to the Building in
case of invasion, mob, riot, public excitement or other commotion by closing the
doors or by other appropriate action.
7. The directory of the Building or the Development will be provided
exclusively for the display of the name and location of tenants only and
Landlord reserves the right to exclude any other names therefrom.
8. All cleaning and janitorial services for the Development and the
Premises will be provided exclusively through Landlord, and except with the
written consent of Landlord, no person or persons other than those approved by
Landlord will be employed by Tenant or permitted to enter the Development for
the purpose of cleaning the same. Tenant will not cause any unnecessary labor by
carelessness or indifference to the good order and cleanliness of the Premises.
9. Landlord will furnish Tenant, free of charge, with two keys to each
door lock in the Premises. Landlord may make a reasonable charge for any
additional keys. Tenant shall not make or have made additional keys, and Tenant
shall not alter any lock or install any new additional lock or bolt on any door
of the Premises. Tenant, upon the termination of its tenancy, will deliver to
Landlord the keys to all doors which have been furnished to Tenant, and in the
event of loss of any keys so furnished, will pay Landlord therefor.
10. If Tenant requires telegraphic, telephonic, burglar alarm,
satellite dishes, antennae or similar services, it will first obtain Landlord's
approval, and comply with, Landlord's reasonable rules and requirements
applicable to such services, which may include separate licensing by, and fees
paid to, Landlord.
11. Freight elevator(s) will be available for use by all tenants in the
Building, subject to such reasonable scheduling as Landlord, in its discretion,
deems appropriate. No equipment, materials, furniture, packages, supplies,
merchandise or other property will be received in the Building or carried in the
elevators except between such hours and in such elevators as may be designated
by Landlord. Tenant's initial move in and subsequent deliveries of bulky items,
such as furniture, safes and similar items will, unless otherwise agreed in
writing by Landlord, be made during the hours of 6:00 p.m. to 6:00 a.m. or on
Saturday or Sunday. Deliveries during normal office hours shall be limited to
normal office supplies and other small items. No deliveries will be made which
impede or interfere with other tenants or the operation of the Building.
12. Tenant will not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to carry and
which is allowed by law. Landlord will have the right to reasonably prescribe
the weight, size and position of all safes, heavy equipment, files, materials,
furniture or other property brought into the Building. Heavy objects will, if
considered necessary by Landlord, stand on such platforms as determined by
Landlord to be necessary to properly distribute the weight, which platforms will
be provided at Tenant's expense. Business machines and mechanical equipment
belonging to Tenant, which cause noise or vibration that may be transmitted to
the structure of the Building or to any space therein to such a degree as to be
objectionable to any tenants in the Building or Landlord, are to be placed and
maintained by Tenant, at Tenant's expense, on vibration eliminators or other
devises sufficient to eliminate noise or vibration. Tenant will be responsible
for all structural engineering required to determine structural load, as well as
the expense thereof. The persons employed to move such equipment in or out of
the Building must be reasonably acceptable to Landlord. Landlord will not be
responsible for loss of, or damage to, any such equipment or other property from
any cause, and all damage done to the Building by maintaining or moving such
equipment or other property will be repaired at the expense of Tenant.
EXHIBIT "H"
23
13. Tenant will not use or keep in the Premises any kerosene, gasoline
or inflammable or combustible fluid or material other than those limited
quantities necessary for the operation or maintenance of office equipment.
Tenant will not use or permit to be used in the Premises any foul or noxious gas
or substance, or permit or allow the Premises to be occupied or used in a manner
offensive or objectionable to Landlord or other occupants of the Building by
reason of noise, odors or vibrations, nor will Tenant bring into or keep in or
about the Premises any birds or animals.
14. Tenant will not use any method of heating or air conditioning other
than that supplied by Landlord without Landlord's prior written consent.
15. Tenant will not waste electricity, water or air conditioning and
agrees to cooperate fully with Landlord to assure the most effective operation
of the Building's heating and air conditioning and to comply with any
governmental energy-saving rules, laws or regulations of which Tenant has actual
notice, and will refrain from attempting to adjust controls. Tenant will keep
corridor doors closed, and shall keep all window coverings pulled down.
16. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the Building.
Without the written consent of Landlord, Tenant will not use the name of the
Building or the Development in connection with or in promoting or advertising
the business of Tenant except as Tenant's address.
17. Tenant will close and lock the doors of its Premises and entirely
shut off all water faucets or other water apparatus, and lighting or gas before
Tenant and its employees leave the Premises. Tenant will be responsible for any
damage or injuries sustained by other tenants or occupants of the Building or by
Landlord for noncompliance with this rule.
18. The toilet rooms, toilets, urinals, wash bowls and other apparatus
will not be used for any purpose other than that for which they were constructed
and no foreign substance of any kind whatsoever shall be thrown therein. The
expense of any breakage, stoppage or damage resulting from any violation of this
rule will be borne by the tenant who, or whose employees or invitees, break this
rule. Cleaning of equipment of any type is prohibited. Shaving is prohibited.
19. Tenant will not sell, or permit the sale at retail of newspapers,
magazines, periodicals, theater tickets or any other goods or merchandise to the
general public in or on the Premises. Tenant will not use the Premises for any
business or activity other than that specifically provided for in this Lease.
Tenant will not conduct, nor permit to be conducted, either voluntarily or
involuntarily, any auction upon the Premises without first having obtained
Landlord's prior written consent, which consent Landlord may withhold in its
sole and absolute discretion.
20. Tenant will not install any radio or television antenna,
loudspeaker, satellite dishes or other devices on the roof(s) or exterior walls
of the Building or the Development. Tenant will not interfere with radio or
television broadcasting or reception from or in the Development or elsewhere.
21. Except for the ordinary hanging of pictures and wall decorations,
Tenant will not mark, drive nails, screw or drill into the partitions, woodwork
or plaster or in any way deface the Premises or any part thereof, except in
accordance with the provisions of the Lease pertaining to alterations. Landlord
reserves the right to direct electricians as to where and how telephone and
telegraph wires are to be introduced to the Premises. Tenant will not cut or
bore holes for wires. Tenant will not affix any floor covering to the floor of
the Premises in any manner except as approved by Landlord. Tenant shall repair
any damage resulting from noncompliance with this rule.
22. Tenant will not install, maintain or operate upon the Premises any
vending machines without the written consent of Landlord.
23. Landlord reserves the right to exclude or expel from the
Development any person who, in Landlord's judgment, is intoxicated or under the
influence of liquor or drugs or who is in violation of any of the Rules and
Regulations of the Building.
24. Tenant will store all its trash and garbage within its Premises or
in other facilities provided by Landlord. Tenant will not place in any trash box
or receptacle any material which cannot be disposed of in the ordinary and
customary manner of trash and garbage disposal. All garbage and refuse disposal
is to be made in accordance with directions issued from time to time by
Landlord.
25. The Premises will not be used for lodging or for the storage of
merchandise held for sale to the general public, or for lodging or for
manufacturing of any kind, nor shall the Premises be used for any improper,
immoral or objectionable purpose. No cooking will be done or permitted on the
Premises without Landlord's consent, except the use by Tenant of Underwriters'
Laboratory approved equipment for brewing coffee, tea, hot chocolate and similar
beverages shall be permitted, and the use of a microwave oven for employees use
will be permitted, provided that such equipment and use is in accordance with
all applicable federal, state, county and city laws, codes, ordinances, rules
and regulations.
26. Neither Tenant nor any of its employees, agents, customers and
invitees may use in any space or in the public halls of the Building or the
Development any hand truck except those equipped with rubber tires and side
guards or such other material-handling equipment as Landlord may approve. Tenant
will not bring any other vehicles of any kind into the Building.
27. Tenant agrees to comply with all safety, fire protection and
evacuation procedures and regulations established by Landlord or any
governmental agency.
28. Tenant assumes any and all responsibility for protecting its
Premises from theft, robbery and pilferage, which includes keeping doors
locked and other means of entry to the Premises closed.
29. To the extent Landlord reasonably deems it necessary to exercise
exclusive control over any portions of the Common Areas for the mutual benefit
of the tenants in the Building or the Development, Landlord may do so subject to
reasonable, non-discriminatory additional rules and regulations.
30. Landlord may prohibit smoking in the Building and may require
Tenant and any of its employees, agents, clients, customers, invitees and guests
who desire to smoke, to smoke within designated smoking areas within the
Development.
31. Tenant's requirements will be attended to only upon appropriate
application to Landlord's asset management office for the Development by an
authorized individual of Tenant. Employees of Landlord will not perform any work
or do anything outside of their regular duties unless under special
instructions from Landlord, and no employee of Landlord will admit any person
(Tenant or otherwise) to any office without specific instructions from Landlord.
32. These Rules and Regulations are in addition to, and will not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of the Lease. Landlord may waive any one or
more of these Rules and Regulations for the benefit of Tenant or any other
tenant, but no such waiver by Landlord will be construed as a waiver of such
Rules and Regulations in favor of Tenant or any other tenant, nor prevent
Landlord from thereafter enforcing any such Rules and Regulations against any
or all of the tenants of the Development.
H-2
24
33. Landlord reserves the right to make such other and reasonable and
non-discriminatory Rules and Regulations as, in its judgment, may from time to
time be needed for safety and security, for care and cleanliness of the
Development and for the preservation of good order therein. Tenant agrees to
abide by all such Rules and Regulations herein above stated and any additional
reasonable and non-discriminatory rules and regulations which are adopted.
Tenant is responsible for the observance of all of the foregoing rules by
Tenant's employees, agents, clients, customers, invitees and guests.
B. PARKING RULES AND REGULATIONS. The following rules and regulations
govern the use of the parking facilities which serve the Building. Tenant will
be bound by such rules and regulations and agrees to cause its employees,
subtenants, assignees, contractors, suppliers, customers and invitees to observe
the same:
1. Tenant will not permit or allow any vehicles that belong to or are
controlled by Tenant or Tenant's employees, subtenants, customers or invitees to
be loaded, unloaded or parked in areas other than those designated by Landlord
for such activities. No vehicles are to be left in the parking areas overnight
and no vehicles are to be parked in the parking areas other than normally sized
passenger automobiles, motorcycles and pick-up trucks. No extended term storage
of vehicles is permitted.
2. Vehicles must be parked entirely within painted stall lines of a
single parking stall.
3. All directional signs and arrows must be observed.
4. The speed limit within all parking areas shall be five (5) miles per
hour.
5. Parking is prohibited: (a) in areas not striped for parking; (b) in
aisles or on ramps; (c) where "no parking" signs are posted; (d) in
cross-hatched areas; and (e) in such other areas as may be designated from time
to time by Landlord or Landlord's parking operator.
6. Landlord reserves the right, without cost or liability to Landlord,
to tow any vehicle if such vehicle's audio theft alarm system remains engaged
for an unreasonable period of time.
7. Washing, waxing, cleaning or servicing of any vehicle in any area
not specifically reserved for such purpose is prohibited.
8. Landlord may refuse to permit any person to park in the parking
facilities who violates these rules with unreasonable frequency, and any
violation of these rules shall subject the violator's car to removal, at such
car owner's expense. Tenant agrees to use its best efforts to acquaint its
employees, subtenants, assignees, contractors, suppliers, customers and invitees
with these parking provisions, rules and regulations.
9. Parking stickers, access cards, or any other device or form of
identification supplied by Landlord as a condition of use of the parking
facilities shall remain the property of Landlord. Parking identification
devices, if utilized by Landlord, 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. Parking identification devices, if any, are not
transferable and any device in the possession of an unauthorized holder will be
void. Landlord reserves the right to refuse the sale of monthly stickers or
other parking identification devices to Tenant or any of its agents, Employees
or representatives who willfully refuse to comply with these rules and
regulations and all unposted city, state or federal ordinances, laws or
agreements.
10. Loss or theft of parking identification devices or access cards
must be reported to the management office in the Development immediately, and a
lost or stolen report must be filed by the Tenant or user of such parking
identification device or access card at the time. Landlord has the right to
exclude any vehicle from the parking facilities that does not have a parking
identification device or valid access card. Any parking identification device or
access card which is reported lost or stolen and which is subsequently found in
the possession of an unauthorized person will be confiscated and the illegal
holder will be subject to prosecution.
11. All damage or loss claimed to be the responsibility of Landlord
must be reported, itemized in writing and delivered to the management office
located within the Development within ten (10) business days after any claimed
damage or loss occurs. Any claim not so made is waived. Landlord is not
responsible for damage by water or fire, or for the acts or omissions of others,
or for articles left in vehicles. In any event, the total liability of Landlord,
if any, is limited to Two Hundred Fifty Dollars ($250.00) for all damages or
loss to any car. Landlord is not responsible for loss of use.
12. The parking operators, managers or attendants are not authorized to
make or allow any exceptions to these rules and regulations, without the express
written consent of Landlord. Any exceptions to these rules and regulations made
by the parking operators, managers or attendants without the express written
consent of Landlord will not be deemed to have been approved by Landlord.
13. Landlord reserves the right, without cost or liability to Landlord,
to tow any vehicles which are used or parked in violation of these rules and
regulations.
14. Landlord reserves the right from time to time to modify and/or
adopt such other reasonable and non-discriminatory rules and regulations for the
parking facilities as it deems reasonably necessary for the operation of the
parking facilities.
H-3
25
DEVELOPMENT
SITE PLAN
[MAP OF KOLL CENTER IRVINE]
EXHIBIT "A-II"
26
PREMISES
FLOORPLAN
[FLOORPLAN KOLL CENTER IRVINE NATIONAL EDUCATION BLDG.]
EXHIBIT "A-1"
27
[KOLL CENTER IRVINE LETTER HEAD]
March 13, 1996
Mr. Mitch Everton
PRO BUSINESS, INC.
5934 Gibraltar, Suite 201
Pleasanton, California 94588
Re: Fully Executed Amendment No. #1 by and between Koll Center Irvine
Number Two, Landlord, and Pro Business, Inc., Tenant.
Dear Mitch:
Please find enclosed one (1) fully executed copy of the above-referenced
Amendment No. 1 for Suite 340 in the building located at 18400 Von Karman
Avenue, Irvine, California.
If I can be of any further assistance, please contact me at (714) 474-1800.
Sincerely yours,
KOLL MARKETING GROUP
/s/ John D. Weiner
- -----------------------------------
John D. Weiner
Senior Marketing Consultant
JDW:jek
Enclosure
cc: Brad Schweitzer, Esq.
Craig Ersek
28
AMENDMENT NO. 2 TO OFFICE BUILDING LEASE
This AMENDMENT NO. 2 TO OFFICE BUILDING LEASE ("Amendment") is
made as of the ___ day of April, 1996, by and between KOLL CENTER IRVINE NUMBER
TWO, a California limited partnership ("Landlord"), and PRO BUSINESS, INC., a
California corporation ("Tenant"), with reference to the facts set forth in the
Recitals below.
RECITALS
A. Landlord and Tenant are parties to that certain Office
Building Lease dated November 7, 1994 (the "Original Lease"), and Amendment No.
I thereto dated March 8, 1996 (the "First Amendment"), pursuant to which
Landlord currently leases to Tenant certain space in the building commonly known
as 18400 Von Karman Avenue, Irvine, California (the "Premises"). The Premises
presently consists of approximately 4,471 Rentable Square Feet of space on the
3rd floor of the Building, commonly known as Suites 340 and 350.
B. The Original Lease as amended by the First Amendment is
collectively referred to in this Amendment as the "Lease". Capitalized terms not
defined in this Amendment have the meanings given to them in the Lease.
C. Landlord and Tenant desire to further amend the Lease in
order to memorialize certain terms concerning demolishing a wall in the
Premises.
AGREEMENT
NOW THEREFORE, in consideration of the above Recitals and
other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
1. Upon execution of this Amendment by Tenant, Tenant shall pay to
Landlord the sum of $2,730.00 toward the costs incurred by Landlord in
demolishing a wall in the Premises Upon expiration or the earlier
termination of the Additional Space Term (as defined in the First
Amendment), Tenant shall pay to Landlord, as additional rent under the
Lease as amended hereby, an amount equal to $1,654.80 to compensate
Landlord for the cost of reinstalling the demolished wall following
Tenant's vacation of the Additional Space.
2. Except as modified in this Amendment, all other terms and conditions of
the Lease shall remain unchanged and in full force and effect. To the
extent of a conflict between the terms of the Lease and the terms of
this Amendment, the terms of this Amendment shall prevail.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first written above.
TENANT: LANDLORD:
PRO BUSINESS, INC., KOLL CENTER IRVINE NUMBER TWO,
a California corporation a California limited partnership
By: Connecticut General Life Insurance
By: /s/ Mitch Everton Company, General Partner
__________________________
Name: Mitch Everton
_____________________
Title: EVP - OPERATIONS
________________________ By: Cigna Investments, Inc.
Its Authorized Agent
By:______________________________
Name:________________________ By: /s/ Chuel D. Hwang
____________________________
Title:_______________________ Name: Chuel D. Hwang
_______________________
Title: Vice President
______________________
29
AMENDMENT NO. I TO OFFICE BUILDING LEASE
This AMENDMENT NO. I TO OFFICE BUILDING LEASE ("Amendment") is
made as of the 8th day of March, 1996, by and between KOLL CENTER IRVINE NUMBER
TWO, a California limited partnership ("Landlord"), and PRO BUSINESS, INC., a
California corporation ("Tenant"), with reference to the facts set forth in the
Recitals below.
RECITALS
A. Landlord and Tenant are parties to that certain Office
Building Lease dated November 7, 1994 (the "Lease"), pursuant to which Landlord
leased to Tenant certain space in the building (the "Building") commonly known
as 18400 Von Karman Avenue, Irvine, California (the "Original Premises"). The
Original Premises presently consists of approximately 2,721 Rentable Square Feet
of space on the 3rd floor of the Building, commonly known as Suite 340.
B. Capitalized terms not defined in this Amendment have the
meanings given to them in tile Lease.
C. Landlord and Tenant desire to amend the Lease in order to
expand the Original Premises by approximately 1,750 Rentable Square Feet on the
terms hereinafter provided.
AGREEMENT.
NOW THEREFORE, in consideration of the above Recitals and
other good and valuable consideration, THE receipt of which is hereby
acknowledged, the parties agree as follows.-
1. Additional Premises. Landlord hereby leases to Tenant, and Tenant
hereby leases from Landlord, as of the date hereof, the approximately
1,750 Rentable Square Feet adjacent to the Original Premises depicted
on Exhibit "A" attached hereto (the "Additional Space"). Tenant's
leasing of the Additional Space shall be on all of the terms and
conditions of the Lease as relate to the Original Premises, except as
expressly set forth in this Amendment. The Additional Space together
with the Original Premises shall sometimes be referred to in this
Amendment as the "New Premises," and the New Premises shall consist of
a total of approximately 4,471 Rentable Square Feet. From and after the
date hereof, except as expressly set forth in this Amendment, the
defined term "Premises" as used in the Lease shall mean and refer to
the New Premises. The term of Tenant's leasing of the Additional Space
(the "Additional Space Term") shall commence on March 1, 1996 and shall
expire on February 28, 1997. Monthly Base Rent on the Additional Space
during the Additional Space Term shall be $1.55/RSF/mo. or $2,712.50
per month.
2. Operating Expenses and Tenant's Percentage. The Operating Expense
Allowance for the Additional Space shall be Tenant's Percentage of
Operating Expenses for the 1996 calendar year. Tenant's Percentage for
the Additional Space shall be .7994%.
3. Condition of Additional Space. Tenant shall accept the Additional Space
in its "AS IS" existing condition and acknowledges that Landlord shall
not be obligated to improve or pet-form any work in the Additional
Space.
4. Parking. In accordance with the terms of the Lease, Tenant shall be
entitled to use, and shall pay for whether or not it uses, two (2)
unreserved employee parking stalls for the Additional Space at the rate
of $30.00 per space per month during the Additional Space Term.
5. Brokers Landlord and Tenant each represent and warrant to the other
that it is not aware of any brokers or finders, other than Lee &
Associates, who may claim a fee or commission in connection with tile
consummation of the transactions contemplated by this Amendment. If
any other claims for brokers' or finders' fees in connection with the
transactions contemplated by this Amendment arise, then Tenant agrees
to indemnify, protect, hold harmless and defend Landlord (with counsel
satisfactory to Landlord) from
30
and against any such claims if they shall be based upon any statement,
representation or agreement made by Tenant, and Landlord agrees to
indemnify, protect, hold harmless and defend Tenant (with counsel
satisfactory to Tenant) if such claims are based upon any statement,
representation or agreement made by Landlord.
6. No Other Modifications. Except as modified in this Amendment, all other
terms and conditions of the Lease shall remain unchanged and in full
force and effect. To the extent of a conflict between the terms of the
Lease and the terms of this Amendment, the terms of this Amendment
shall prevail.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first written above.
TENANT: LANDLORD:
PRO BUSINESS, INC., a California KOLL CENTER IRVINE NUMBER TWO,
corporation a California limited partnership
By: /s/ Mitch Everton
_____________________________ By: Connecticut General Life Insurance
Name: Mitch Everton Company, General Partner
_______________________
Title: EVP - OPERATIONS By: Cigna Investments, Inc.
_______________________ Its Authorized Agent
By:______________________________
Name:_______________________
Title:______________________ By: /s/ Leon Pouncy
______________________________
Name: ________________________
Title: LEON POUNCY
________________________
MANAGING DIRECTOR
31
DEPICTION OF ADDITIONAL SPACE
[FLOOR PLAN - FLOOR 3 KOLL CENTER IRVINE]
32
[KOLL LETTERHEAD]
November 29, 1994
Mr. Mitch Everton
Pro-Business, Inc.
18400 Von Karman Ave, Inc.
Suite 340
Irvine, CA 92715
Dear Mitch:
This letter confirms that Pro-Business, Inc. is ready to begin occupancy
of Suite 340, in the 18400 Building at Koll Center Irvine.
Upon execution of this letter, by yourself or representatives of your
firm, acknowledging Pro-Business's acceptance of the leased premises, we
will tender possession to you so that you may take occupancy on November
29, 1994. Your lease will commence effective November 29, 1994.
Sincerely,
/s/ Craig T. Ersek
_________________________
Craig T. Ersek
Manager
Koll Center Irvine
Accepted this 29th day of November, 1994
PRO-BUSINESS, INC.
By: /s/ Terri Berg
____________________________________
Its:____________________________________