TWO TOWN CENTER
LEASE
between
TWO TOWN CENTER ASSOCIATES,
A Joint Venture
and
IMGIS CORPORATION,
A California corporation
LEASE
THIS LEASE (the "Lease") is made this 20th day of December, 1996,
between TWO TOWN CENTER ASSOCIATES, a joint venture of Anton Street
Associates, a California Partnership, and The Prudential Insurance Company of
America, a New Jersey corporation, (hereinafter called "Landlord"), and IMGIS
CORPORATION, a California corporation (hereinafter called "Tenant").
LEASE OF PREMISES
Landlord hereby ]eases to Tenant and Tenant hereby hires from Landlord,
subject to all of the terms and conditions hereinafter set forth, those
certain premises (hereinafter called the "Premises") shown in the floor
plan(s) attached hereto as Exhibit "A-1" and located or to be located on the
floor(s) and in the suite(s) of that certain office building (the "Building")
shown on Exhibit "A-2," all as constructed on certain land of approximately
14.5 acres situated in the City of Costa Mesa, County of Orange, State of
California, and as more particularly identified in Item 1 of the Basic Lease
Provisions. Such land is improved as an office and commercial project
including certain "common facilities" described in Paragraph 32 all known as
Two Town Center. Two Town Center is referred to herein as "the Project" and
is depicted on Exhibit "A-3." The following Basic Lease provisions are an
integral part of this Lease. In the event of any conflict between any Basic
Lease Provision and any provision of this Lease, the Lease provision shall
control.
BASIC LEASE PROVISIONS
1. Building Name: Comerica Bank Tower Floor: 4th
Address: 611 Anton Boulevard Suite: 400
Costa Mesa, CA 92626
2. Rentable Area: 10,219 square feet (See Exhibit "A-4")
3. A. Building Expense Percentage: 3.7949%
B. Project Expense Percentage: 1.5658%
4. Initial Basic Annual Rent: $132,847.00 ($13.00 per square foot)
5. Initial Monthly Basic Rent Installments: $11,070.58 (approximately $1.08
per square foot)
6. Basic Annual Rent Increase: None.
7. Term: 2 years and -0- months.
8. Commencement Date: March 1, 1997
9. Security Deposit: None
10. Broker(s): U.S. Net Commercial Real Estate Services, Inc.
11. Permitted Use: Operation, installation, maintenance, repair and replacement
of equipment and general office use, all related to an Internet business.
12. Basic Annual Rent Paid Upon Execution: $100,000.00, as Basic Annual
Rent for the first nine (9) months of the term of the Lease plus a portion
of the tenth (10th) month of the term. The foregoing amount shall be paid
in two (2) installments with the first installment of $66,000.00 to be
paid concurrent with Tenant's execution and delivery of this Lease and the
balance of $34,000.00, to be paid in full not later than January 20, 1997.
13. Addresses for Notices:
If to Landlord:
TWO TOWN CENTER ASSOCIATES
3315 Fairview Road
Costa Mesa, California 92626
Attn: Managing Partner
and
(i)
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THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
One Ravina Drive
Suite 1400
Atlanta, Georgia 30346
Attn: Regional Counsel
If to Tenant:
IMGIS CORPORATION
611 Anton Boulevard, Suite 400
Costa Mesa, CA 92626
Attn: /s/ Wendy Sander
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14. All payments payable under this Lease shall be sent to Landlord at the
first address specified in Item 13 above or such other address as Landlord
may designate.
IN WITNESS WHEREOF, the parties hereto have executed this Lease,
consisting of the foregoing provisions and Paragraphs 1 through 48 which
follow, together with Exhibits "A-1" through "A-4" and "B" through "E"
incorporated herein by this reference, as of the date firs above written.
TWO TOWN CENTER ASSOCIATES, IMGIS CORPORATION,
a joint venture a California corporation
By: ANTON STREET ASSOCIATES
By: /s/ Illegible
---------------------------
By: South Coast Plaza
Title: President
------------------------
By: /s/ Jeanette E. Segerstrom
--------------------------------
Title: Managing Partner
----------------------------- By: /s/ Illegible
---------------------------
Title: Secretary
------------------------
By: /s/ Illegible
-----------------------------
Title: Managing Partner
--------------------------
By: THE PRUDENTIAL INSURANCE "TENNANT"
COMPANY OF AMERICA
By: /s/ Marcia A. Diaz
-----------------------------
Title: Vice President
--------------------------
"LANDLORD"
Approved as to Form
Pillsbury Madison & Sutro LLP
By: /s/ Illegible
-----------------------------
(ii)
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TABLE OF CONTENTS
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PARAGRAPH PAGE
1 TERM ............................................................ 1
2. BASIC ANNUAL RENT................................................ 1
3. ADDITIONAL RENT ................................................. 1
4. SECURITY DEPOSIT ................................................ 2
5. REPAIRS ......................................................... 3
6. IMPROVEMENTS AND ALTERATIONS .................................... 3
7. LIENS ........................................................... 5
8. USE OF PREMISES ................................................. 5
9. HAZARDOUS MATERIALS ............................................. 6
10. UTILITIES AND SERVICES .......................................... 8
11. RULES AND REGULATIONS............................................ 10
12. TAXES ON TENANT'S PROPERTY...................................... 10
13. INTENTIONALLY OMITTED........................................... 10
14. FIRE OR CASUALTY................................................ 10
15. EMINENT DOMAIN.................................................. 11
16. ASSIGNMENT AND SUBLETTING....................................... 11
17. ACCESS.......................................................... 14
18. SUBORDINATION; ATTORNMENT; ESTOPPEL CERTIFICATES; FINANCIAL
STATEMENTS...................................................... 14
19. SALE BY LANDLORD................................................ 15
20. NONLIABILITY AND INDEMNIFICATION OF LANDLORD; INSURANCE......... 15
21. WAIVER OF SUBROGATION........................................... 18
22. ATTORNEYS' FEES................................................. 18
23. WAIVER.......................................................... 19
24. NOTICES......................................................... 19
25. INSOLVENCY OR BANKRUPTCY ....................................... 19
26. DEFAULTS AND REMEDIES........................................... 19
27. HOLDOVER........................................................ 22
28. CONDITION OF PREMISES........................................... 22
29. QUIET POSSESSION................................................ 22
30. TENANT'S SIGNS.................................................. 22
31. CONFLICT OF LAWS ............................................... 23
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32. COMMON FACILITIES; PARKING...................................... 23
33. SUCCESSORS AND ASSIGNS.......................................... 23
34. BROKERS......................................................... 23
35. NAME............................................................ 24
36. EXAMINATION OF LEASE ........................................... 24
37. INTEREST ON TENANT'S OBLIGATIONS; LATE CHARGE................... 24
38. TIME............................................................ 24
39. DEFINED TERMS AND MARGINAL HEADINGS............................. 24
40. PRIOR AGREEMENTS; SEPARABILITY.................................. 25
41. TRAFFIC AND ENERGY MANAGEMENT................................... 25
42. CORPORATE/PARTNERSHIP/TRUST AUTHORITY........................... 25
43. NO LIGHT, AIR OR VIEW EASEMENT.................................. 25
44. NON-DISCLOSURE OF LEASE TERMS................................... 25
45. FORCE MAJEURE................................................... 26
46. MISCELLANEOUS................................................... 26
47. INTENTIONALLY OMITTED........................................... 27
48. ADDENDA......................................................... 27
Exhibit "A-1" Floor Plan(s) of Premises
Exhibit "A-2" Plot Plan of Building
Exhibit "A-3" Plot Plan of Project
Exhibit "A-4" Rentable Area
Exhibit "B" Work Letter
Exhibit "C" Rules and Regulations
Exhibit "D" Tenant's Certificate
Exhibit "E" Parking Agreement
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1. TERM
The term of this Lease shall be as shown in Item 7 of the Basic Lease
Provisions and shall commence on the Commencement Date set forth in Item 8
of the Basic Lease Provisions. Landlord shall deliver possession of the
Premises to Tenant upon execution of this Lease and Landlord's receipt of
Basic Annual Rental Upon Execution (set forth in Item 12 of the Basic Lease
Provisions), after which Tenant shall promptly commence and complete
Tenant's Work as provided in tile Work Letter attached as Exhibit "B" (the
"Possession Date"). From and after the Possession Date, Tenant shall
observe all obligations of the tenant pursuant to this Lease, except those
requiring the payment of Basic Annual Rent and Additional Rent. From and
after the Commencement Date, all provisions of the Lease shall be observed,
including those requiring the payment of Basic Annual Rent and Additional
Rent.
2. BASIC ANNUAL RENT
Tenant shall pay as Basic Annual Rent for the Premises the initial sum
shown in Item 4 of the Basic Lease Provisions, subject to adjustment as set
forth in Item 6 of the Basic Lease Provisions. The Basic Annual Rent shall
be payable in advance in equal monthly installments as shown in Item 5 of
the Basic Lease Provisions without deduction or offset, commencing on the
Commencement Date and continuing on the first day of each calendar month
thereafter. In the event the term of this Lease commences or ends on a day
other than the First or last day of a calendar month, or in the event
Basic Annual Rent Upon Execution covers only a portion of such Basic Annual
Rent for a calendar month, then the Basic Annual Rent for such partial
month shall be prorated in the proportion that the number of days this
Lease is in effect during such partial month bears to the number of days in
that calendar month, and such Basic Annual Rent shall be paid at tile
commencement or such partial month. The Basic Annual Rent Upon Execution
(set forth in Item 12 of the Basic Lease Provisions) shall be paid to
Landlord as provided in the Basic Lease Provisions.
3. ADDITIONAL RENT
(a) Tenant agrees to pay as Additional Rent for the Premises Tenant's
proportionate share of all "Building Operating Expenses" (as hereinafter
defined) and "Project Operating Expenses" (as hereinafter defined) incurred
by Landlord in the operation of the Building and the Project. Tenant's
proportionate share thereof (hereinafter, respectively, "Building Expense
Percentage" and "Project Expense Percentage") shall be the percentage
obtained by dividing the average Rentable Area of the Premises for such
year or portion thereof by ninety-five percent (95%) of the total Rentable
Area of the Building or the Project, as the case may be, for the same
period, and, subject to Exhibit "A-4," shall initially be as set forth in
Items 3.A. and 3.B. of the Basic Lease Provisions.
(b) Prior to commencement of the Lease term and of each calendar year
thereafter, Landlord shall give Tenant a written estimate of Building
Operating Expenses and Project Operating Expenses and Tenant's proportionate
shares thereof for the ensuing year or portion thereof. Tenant shall pay such
estimated amount to Landlord in equal monthly installments, in advance.
Within ninety (90) days after the end of each calendar year, Landlord shall
furnish to Tenant a statement showing in reasonable detail the actual
Building and Project Operating Expenses for such period in accordance with
subparagraph (d) below, and the parties shall make any payment or allowance
necessary to adjust Tenant's estimated payment to Tenant's proportionate
share as shown by such annual statement. Any amount due from Tenant shall be
paid within ten (10) days after receipt of such statement. Any amount due to
Tenant shall be credited against installments of Additional Rent next comning
due under this Paragraph 3 or if the Lease has terminated, such amount shall
be paid by Landlord to Tenant within thirty (30) days of Tenant's receipt of
the statement.
(c) If at any time during any calendar year of the Lease term the
amount(s) and/or the rates for any item(s) of Operating Expenses for the
Building or the Project are increased to a rate(s) or amount(s) in excess
of the rate(s) or amount(s) used in calculating the estimated Building or
Project Operating Expenses for such calendar year, Tenant's estimated share
of such Building or Project Operating Expenses shall be increased for the
month in which such increase becomes effective and for succeeding months
by Tenant's Building Expense Percentage or Project Expense Percentage of
such increase, as applicable. In the event of such an increase in rate or
amount, Landlord shall give Tenant written notice (the "Adjustment
Notice") of the amount or estimated amount of increase, the month in
which effective, and Tenant's monthly share thereof. Commencing with
the first monthly payment of estimated Building Operating Expenses or
Project Operating Expenses, as applicable, required to be made by Tenant
after receipt of the Adjustment Notice (the "First Adjustment Payment"),
Tenant shall pay such increase to Landlord as part of Tenant's monthly
payments of estimated Building Operating Expenses or Project Operating
Expenses, as applicable, as provided in subparagraph (b) above. If the
effective date of the increase is prior in time to the date of the
Adjustment Notice, the First Adjustment Payment shall be increased to
include the amount of the monthly payments, if any, which would have been
made had the Adjustment Notice been received prior to the effective date of
the increase.
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(d) The term "Operating Expenses" as used herein shall include all costs
of operation and maintenance of the Building and the Project, as determined
by generally accepted accounting practices consistently applied and
determined as if the Building were ninety five percent (95%) occupied for an
entire calendar year, and shall include the following costs by way of
illustration but not limitation: real and personal property taxes and vehicle
taxes and fees; general and special assessments; costs and expenses incurred
in contesting the amount of validity of any property tax by appropriate
proceedings; water and sewer charges; insurance premiums, including the cost
of rental insurance; the amount of any deductible payable by Landlord as set
forth in the policy with respect to damage or destruction to all or any
portion of the Project; license, permit and inspection fees; heat; light;
power; intrabuilding network cable including service contract fees;
janitorial and courtesy officer services (if any); fire protection; labor;
salaries; air conditioning; gardening and landscaping; maintenance and repair
(including repairs pursuant to Paragraph 5); painting; trash removal;
depreciation of operational equipment for the Project; supplies; materials;
equipment; tools; property management costs and fees; all fees, assessments
and other amounts paid by Landlord of the type described in Paragraph 41; the
cost of any capital improvements made to the Project by Landlord which are
reasonably calculated to reduce Operating Expenses and/or are required under
any governmental law or regulation not applicable to the Project or not in
effect at the time it was constructed, such cost to be amortized over such
reasonable period as Landlord shall determine and to include a return on
capital at the rate of ten percent (10%) per annum on the unamortized balance
or at such higher rate as may have been paid by Landlord on funds borrowed
for the purpose of constructing such capital improvements; the cost of
providing a management office at the Project; the cost of providing a manager
and support staff to operate such office and the Project. The term "property
taxes" as used herein shall include (i) all real estate taxes and personal
property taxes and other taxes, charges and assessments, unforeseen as well
as foreseen, which are levied with respect to the Project, and any
improvements, fixtures and equipment and other property of Landlord, real or
personal, located in the Project and used in connection with the operation of
the Project and the land upon which situated, (ii) any tax, surcharge or
assessment which shall be levied in addition to or in lieu of real estate or
personal property taxes, other than taxes covered by Paragraph 12, and (iii)
any service or other fees collected by governmental agencies in addition to
or in lieu of property taxes for services provided by such agencies. The term
"property taxes" as used herein shall also include any rental, excise, sales,
transaction privilege, or other tax or levy, however denominated, imposed
upon or measured by the rental reserved hereunder or on Landlord's business
of leasing the Premises, excepting only net income taxes.
"Building Operating Expenses" shall include all Operating Expenses
directly and separately identifiable to the operation and maintenance of the
Building. "Project Operating Expenses" shall include all Operating Expenses
incurred in the operation and maintenance of the Project which are not (A)
Building Operating Expenses or (B) Operating Expenses directly and separately
identifiable to the operation and maintenance of other buildings in the
Project.
(e) Notwithstanding anything to the contrary contained in subparagraph (d)
immediately above, as to each specific category of expense which one or
more tenants of the Building or the Project either pays directly to third
parties or actually reimburses to Landlord (for example, separately metered
utilities, property taxes directly reimbursed to Landlord, etc.) then each
such expense which is actually paid or reimbursed shall not be included in
"Operating Expenses" for purposes of this Paragraph 3. Tenant's Building
and Project Operating Expense Percentages, as appropriate, for each such
category of expense shall be adjusted by excluding from the denominator
thereof the Rentable Area of all such tenants paying such category of
expense directly to third parties or actually reimbursing same directly to
Landlord. Moreover, if Tenant directly pays a third party or actually
reimburses Landlord for any such category of expense, each such category of
expenses which is paid or actually reimbursed by Tenant shall be excluded
from the determination of "Building Operating Expenses" or "Project
Operating Expenses," as applicable, for Tenant to the extent such expense
(after deduction of that portion paid or directly reimbursed by Tenant) was
incurred with respect to space in the Building or Project, respectively,
actually leased to other tenants.
(f) The annual determination of Building Operating Expenses and Project
Operating Expenses shall be made by Landlord and the fact that such Operating
Expenses have in fact been incurred by Landlord shall be certified by a
nationally recognized firm of certified public accountants designated by
Landlord. A copy of Landlord's determination and such certification shall be
made available to Tenant upon request. Landlord's determination and such
certification shall be final and binding upon Landlord and Tenant.
(g) The Basic Annual Rent, as adjusted pursuant to Paragraph 2, the
Additional Rent and all other amounts required to be paid by Tenant
hereunder, are sometimes herein collectively referred to as, and shall
constitute, "rent" within the meaning of California Civil Code Section
1951(a).
4. SECURITY DEPOSIT
Tenant has paid or will pay Landlord such sum(s) at such time(s) as are set
forth in Item 9 of the Basic Lease Provisions as security for the full and
faithful performance of the terms hereof by Tenant. Landlord shall not be
required to keep this security deposit separate from its general funds and
Tenant shall not be entitled to interest thereon. Each time, if any, Basic
Annual Rent increases pursuant to the provisions of
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this Lease, within five (5) business days thereafter, Tenant shall pay to
Landlord as an additional security deposit an amount equal to one twelfth
(1/12) of the difference between the new Basic Annual Rent and the Basic
Annual Rent in effect immediately prior to such increase. If Tenant defaults
with respect to any provision of this Lease, including but not limited to the
provisions relating to the payment of rent, Landlord may, but shall not be
required to, use, apply or retain all or any part of this security deposit
for the payment of any rent of any other sum in default, or for the payment
of any other amount which Landlord may spend or become obligated to spend by
reason of Tenant's default or to compensate Landlord for any other loss or
damage which Landlord may suffer by reason of Tenant's default, including
without limitation, costs and attorneys' fees incurred by Landlord to recover
possession of the Premises upon a default by Tenant hereunder. If any portion
of said deposit is so used or applied, Tenant shall, within five (5) days
after receipt of written demand therefor, 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 hereunder by Tenant. If
Tenant shall fully and faithfully perform every provision of this Lease to be
performed by it, the security deposit shall be applied against any amounts
owed by Tenant to Landlord at the expiration or termination of this Lease and
any balance thereof shall be returned to Tenant (or, at Landlord's option, to
the last assignee of Tenant's interest hereunder) within the time specified
in Civil Code Section 1950.7.
5. REPAIRS
(a) Subject to Paragraph 5(b), Landlord shall make all necessary repairs
to the exterior walls, exterior doors, windows, corridors and other common
areas of the Building and the Project and Landlord shall keep the Building
and the Project in a safe, clean and neat condition, and use reasonable
efforts to keep all equipment used in common with other tenants, such as
elevators, plumbing, heating, air conditioning, intrabuilding network cabling
and similar equipment, in good condition and repair. Except as provided in
Paragraphs 14 and 15 hereof, there shall be no abatement of rent and no
liability of Landlord by reason of any injury to or interference with or
interruption of Tenant's business arising from the failure of any such
equipment, the making of any repairs, alterations or improvements in or to
any portion of the Building or Project or in or to fixtures, appurtenances
and equipment therein. Tenant waives the right to make repairs at Landlord's
expense under Section 1942 of the California Civil Code, or under any law,
statute or ordinance now or hereafter in effect. Landlord shall have no
obligation to repair until a reasonable time after receipt of notice or
knowledge of the need for repair. The cost of all such work by Landlord shall
be included in Operating Expenses pursuant to Paragraph 3.
(b) Tenant agrees that it will make all repairs to the Premises and
fixtures therein not required above to be made by Landlord and shall do all
decorating, remodeling, alteration and painting required by Tenant during the
term of this Lease. Tenant will pay for any repairs to the Premises, the
Building or the Project made necessary by any negligence or carelessness of
Tenant or its assignees, subtenants, employees of their respective agents or
other persons permitted in the Building or on the Project by Tenant, or any
of them, and will maintain the Premises, and will leave the Premises upon
termination of this Lease in a safe, clean, neat and sanitary condition.
(c) Tenant's repair and maintenance obligations pursuant to Paragraph
5(b) shall extend to any non-Building standard equipment which is either (a)
in place in or to serve solely the Premises upon execution of this Lease or
(b) is installed by or for Tenant (whether by Landlord or Tenant) to serve
solely the Premises. Such non-standard equipment includes, but is not limited
to, any supplemental heating, ventilating and air conditioning equipment
(whether or not located in the Premises), water heaters, dish washers and
refrigerators. Moreover, Tenant's insurance and indemnification obligations
pursuant to Paragraph 20 shall extend to all such non-standard equipment and
to the use and malfunctioning of such equipment. If Landlord undertakes any
repair or maintenance obligation of Tenant pursuant to Paragraph 5(b) (such
as equipment located outside of but serving only the Premises), the cost of
such repair or maintenance shall be reimbursed by Tenant to Landlord, as
Additional Rent, within ten (10) days after Tenant's receipt of Landlord's
invoice therefor.
6. IMPROVEMENTS AND ALTERATIONS
(a) Landlord shall have no construction obligation pursuant to this Lease
and Tenant shall take the Premises in its current "as-is" condition
without warranty or representation.
(b) Landlord shall have the right, at any time, and without any liability
to Tenant, to change the arrangement and/or location of entrances or
passageways, doors and doorways, and corridors, elevators, stairs, toilets,
and other public parts of the Building or the Project and upon giving
Tenant reasonable notice thereof, to change the name, number or
designation by which the Building or the Project is commonly known.
(c) After the initial tenant improvements have been completed, Tenant
shall not make any alterations, additions or improvements without the prior
written consent of Landlord. All such alterations, additions and improvements
shall be made in conformity with plans therefor approved by Landlord in
writing prior to the commencement of such work and shall be performed by a
tenant improvements contractor designated by
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Landlord. All such alterations, additions and improvements (except movable
furniture, furnishings and trade fixtures) shall become the property of
Landlord and shall be surrendered with the Premises, as a part thereof, at
the expiration or earlier termination of the term hereof. All such
alterations, additions or improvements shall, however, be made by Tenant at
Tenant's sole expense. Upon termination of the Lease, or, at Landlord's
option, within thirty (30) days prior to the expiration of the Lease term,
Tenant shall, upon demand by Landlord, at Tenant's sole cost and expense,
forthwith remove any alterations, additions or improvements (except those
made initially at the commencement of Tenant's possession of the Premises)
made by Tenant and designated by Landlord to be removed, and repair and
restore the Premises to their original condition, reasonable wear and tear
excepted. If, at the termination of this Lease, Landlord is unable to
reasonably provide the amount of space required for Tenant's ongoing
operation, then Tenant may remove from the Premises the Liebert UPS System
and the Airflow air conditioning unit which are currently located in the
Premises for Tenant's use at its new location. Any personal property left on
or in the Premises at the expiration or earlier termination of this Lease
shall be disposed of by Landlord in the manner provided by law, including,
without limitation, California Civil Code Section 1980 ET SEQ. Tenant
releases Landlord of and from any and all claims and liability for damage to
or destruction or loss of property left by Tenant upon the Premises at the
expiration or other termination of this Lease and Tenant hereby indemnifies
Landlord against any and all claims and liability with respect thereto. Tenant
further waives all claims to all property (and the proceeds thereof)
abandoned by Tenant and retained or disposed of by Landlord.
(d) Tenant shall not commence work on any alteration, addition or
improvement until and unless Landlord has received at least ten (10) days
notice that such work is to commence. Tenant shall immediately reimburse
Landlord for any expense incurred by Landlord in reviewing and approving the
plans and specifications for such work or by reason of any faulty work done
by Tenant or Tenant's contractors, or by reason of delays caused by such
work, or by reason of inadequate cleanup, or which is otherwise incurred by
Landlord to review the plans and specifications, and monitor and inspect the
progress of such work. Tenant or its contractors will in no event be allowed
to make any improvements to the Premises which could possibly affect any of
the Building systems or to make any structural modification to the Building
without first obtaining Landlord's consent, which Landlord can withhold in
its sole and absolute discretion. All work by Tenant shall be scheduled
through Landlord and shall be diligently and continuously pursued from the
date of its commencement through its completion. In addition to the
foregoing, and at Landlord's option, Tenant shall obtain a completion and/or
performance bond in a form and by a surety acceptable to Landlord and in an
amount not less than one and one-half (1 1/2) times the estimated cost of
such alterations, additions or improvements.
(e) All alterations, additions and improvements to the Premises made by
Tenant shall comply with the plans therefor approved in advance by Landlord;
provided, however, Landlord's approval or consent to any such work shall not
impose any liability upon Landlord nor shall such approval infer that
Landlord has expressed any opinion or made any warranty regarding the
adequacy, sufficiency or legality of any such improvements. Such plans and
any specifications associated therewith shall be prepared by an architect or
interior designer approved in advance by Landlord. No such work shall proceed
without Landlord's prior approval of (i) Tenant's contractor(s); (ii)
certificates of insurance from a company or companies approved by Landlord,
furnished to Landlord by Tenant's contractor, for combined single limit
bodily injury and property damage insurance covering comprehensive general
liability and automobile liability, in an amount not less than One Million
Dollars ($1,000,000) per occurrence and endorsed to show Landlord as an
additional named insured, and for workers' compensation as required by law
(provided, however, nothing in this subparagraph shall release Tenant of its
other insurance obligations hereunder); and (iii) detailed plans and
specifications for such work. All such work by Tenant shall be done in a
first-class workmanlike manner and in conformity with all applicable
governmental requirements, with valid building permit(s) and/or all other
permits or licenses when and where required, copies of which shall be
furnished to Landlord before the work is commenced, and any work not
acceptable to any governmental authority or agency having or exercising
jurisdiction over such work, or not reasonably satisfactory to Landlord,
shall be promptly replaced and corrected at Tenant's expense. All such work
shall comply with all rules and regulations established by Landlord to ensure
the safety, cleanliness and good order of the Building and the Project and
its occupants, including but not limited to those relating to usage of
elevators and loading docks, establishment of off-Premises staging areas,
disposal of refuse and the hours of performing operations which result in the
creation of noise, dust and odors. No such alterations, additions or
improvements by Tenant shall incorporate therein any hazardous materials, as
defined in Paragraph 9.
(f) No antenna, satellite dish, microwave receiver or other receiving or
transmission equipment shall be installed by Tenant in or on the roof of
the Building or elsewhere in the Project except with the prior written
consent of Landlord which consent may be given or withheld by Landlord in
its sole and absolute discretion. Any such installation which may be
approved, shall be subject to such terms and conditions as are provided by
Landlord to Tenant at the time Landlord approves such installation.
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7. LIENS
Tenant shall keep the Premises and the Building and Project free from
any liens arising out of any work performed, materials furnished, or
obligations incurred by or for Tenant. In the event that Tenant shall not,
within thirty (30) days following the imposition of any such lien, cause the
same to be released of record by payment or posting of a proper lien release
bond, Landlord shall have, in addition to all other remedies provided herein
and by law, the right, but not the obligation, to cause the same to be
released by such means as it shall deem proper, including payment of or
defense against the claim giving rise to such lien. All sums paid by Landlord
and all expenses incurred by it in connection therewith shall create
automatically an obligation of Tenant to pay an equivalent amount as
additional rent, which additional rent shall be payable by Tenant within five
(5) days after Tenant's receipt of Landlord's demand therefor with interest
at the rate per annum determined pursuant to Paragraph 37 from date of
payment by Landlord until paid by Tenant. Tenant agrees to indemnify and hold
Landlord harmless from and against any and all claims for mechanics',
materialmen's or other liens in connection with any alterations, repairs or
any work performed, materials furnished or obligations incurred by or for
Tenant. Nothing herein shall imply any consent by Landlord to subject
Landlord's estate to liability under any mechanics' or other lien law. Tenant
shall give Landlord adequate opportunity and Landlord shall have the right to
post in or on the Premises such notices of nonresponsibility as are provided
for in the mechanics lien laws of the state of California.
8. USE OF PREMISES
Tenant and any of its permitted assignees, sublessees or other occupants
(collectively "Tenant Parties") shall use the Premises only for the
purpose(s) set forth in Item 11 of the Basic Lease Provisions and shall not
use or permit the Premises to be used for any other purpose without the prior
written consent of Landlord. Without limiting the foregoing, Tenant and the
Tenant Parties shall not use the Premises, nor permit the Premises to be
used, for retail purposes nor shall Tenant or the Tenant Parties permit the
Premises to be used by a governmental or quasi-governmental entity or
agency (it being understood, however, that Landlord may lease to such an
entity or agency if Landlord recaptures all or any portion of the Premises
pursuant to Paragraph 16 below). Tenant shall not use or occupy the Premises
in violation of law or of the certificate of occupancy issued for the
Building, and shall, upon five (5) days' written notice from Landlord,
discontinue any use of the Premises which is declared by any governmental
authority having jurisdiction to be a violation of law or of such certificate
of occupancy. Tenant shall comply promptly with any direction of any
governmental authority having jurisdiction which shall, by reason of the
nature of Tenant's use or occupancy of the Premises, impose any duty upon
Tenant or Landlord with respect to the Premises or with respect to the use or
occupancy thereof. Tenant shall not do or permit to be done anything which
will invalidate or increase the cost of any fire, extended coverage or any
other insurance policy covering the Building, the Project and/or property
located therein and shall comply with all rules, orders, regulations and
requirements of the Pacific Fire Rating Bureau or any other organization
performing a similar function. Notwithstanding Paragraph 3, Tenant shall
promptly upon demand reimburse Landlord, as additional rent, for the full
amount of any additional premium charged for such policy by reason of
Tenant's failure to comply with the provisions of this Paragraph, together
with interest thereon from date of payment by Landlord to date of
reimbursement by Tenant at the rate per annum determined pursuant to
Paragraph 37. Such demand for reimbursement shall not be Landlord's exclusive
remedy. Tenant shall not do or permit anything to be done in or about the
Premises which will in any way obstruct or interfere with the rights of other
tenants or occupants of the Building or the Project, or injure or annoy them,
or use or allow the Premises to be used for any improper, immoral, unlawful
or objectionable purpose, nor shall Tenant cause, maintain or permit any
nuisance in, or about the Premises. Tenant shall not commit or suffer to be
committed any waste in or upon the Premises. Landlord shall not be liable to
Tenant for any other occupant's or tenant's failure to conduct itself in
accordance with the provisions of this Paragraph 8, and Tenant shall not be
released or excused from the performance of any of its obligations under the
Lease in the event of any such failure.
Without limiting any of its other obligations pursuant to this Paragraph
8 or Paragraph 9, Tenant covenants and agrees to comply with all laws, rules,
regulations and guidelines now or hereafter applicable to the Premises with
respect to the disposal of water, trash, garbage and other matter (liquid or
solid) generated by Tenant, the disposal of which is not otherwise the
express obligation of Landlord under this Lease, including, but not limited
to, laws, rules, regulations and guidelines with respect to recycling and
other forms of reclamation (all of which are herein collectively referred to
as "Waste Management Requirements"). Tenant shall comply with all rules and
regulations established by Landlord from time to time to comply with Waste
Management Requirements applicable to Landlord (i) as owner of the Premises
and (ii) in performing Landlord's obligations under this Lease, if any.
Tenant's obligations under this Paragraph 8 shall survive the expiration or
termination of this Lease.
Tenant shall indemnify, defend, protect and hold Landlord harmless from
and against all liability (including costs, expenses and attorneys' fees)
that Landlord may sustain by reason of Tenant's breach of its obligations
under this Paragraph 8.
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9. HAZARDOUS MATERIALS
(a) As used in this Lease, the following words or phrases shall have the
following meanings:
(i) "AGENTS" means Tenant's partners, officers, directors,
shareholders, employees, agents, contractors and any other third parties
entering upon the Project at the request or invitation of Tenant.
(ii) "CLAIMS" means claims, liabilities, losses, actions,
environmental suits, causes of action, legal or administrative proceedings,
damages, fines, penalties, loss of rents, liens, judgments, costs and
expenses (including, without limitation, attorneys' fees and costs of
defense, and consultants', engineers' and other professionals' fees and
costs).
(iii) "HAZARDOUS" means: (A) hazardous; (B) toxic; (C) reactive;
(D) corrosive; (E) ignitible; (F) carcinogenic; (G) reproductive toxic; (H)
any other attribute of a Substance now or in the future referred to in, or
regulated by, any Hazardous Materials Laws; and (I) potentially injurious to
health, safety or welfare, the environment, the Premises, the Building or the
Project.
(iv) "HAZARDOUS MATERIALS" means any: (A) Substance which is
Hazardous, regardless of whether that Substance is Hazardous by itself or in
combination with any other Substance; (B) Substance which is regulated by any
Hazardous Materials Laws; (C) asbestos and asbestos-containing materials; (D)
urea formaldehyde; (E) radioactive substance; (F) flammable explosives; (G)
petroleum, including crude oil or any fraction thereof; (H) polychlorinated
biphenyls; and (I) "hazardous substances," "hazardous materials" or
"hazardous wastes" under any Hazardous Materials Laws.
(v) "HAZARDOUS MATERIALS LAWS" means: (A) any existing or future
federal, state or local law, ordinance, regulation or code which protects
health, safety or welfare, or the environment; (B) any existing or future
administrative or legal decision interpreting any such law, ordinance,
regulation or code; and (C) any common law theory which may result in Claims
against Landlord, the Premises, the Building or the Project.
(vi) "PERMITS" means any permit, authorization, license or approval
required by any applicable governmental agency.
(vii) "PROJECT" for purposes of this Paragraph 9 only, shall mean
the Project, the air about the Project and the soil, surface water and ground
water under the surface of the Project.
(viii) "SUBSTANCE" means any substance, material, product,
chemical, waste, contaminant or pollutant.
(ix) "USE" means use, generate, manufacture, produce, store,
release and discharge.
(b) (i) Without limiting the generality of Paragraph 8 of this Lease,
and except as provided in Paragraphs 9(b)(ii) and 9(b)(iii), Tenant covenants
and agrees that Tenant and its Agents shall not bring into, maintain upon,
engage in any activity involving the Use of, or Use in or about the Project,
or transport to or from the Project, any Hazardous Materials. Notwithstanding
the provisions of Paragraphs 9(b)(ii) or 9(b)(iii), in no event shall Tenant
or its Agents release of dispose or any Hazardous Materials in, on, under or
about the Project.
(ii) Notwithstanding the provisions of Paragraph 9(b)(i), if Tenant
or its Agents proposes to Use any Hazardous Materials, or to install or
operate any equipment which will or may Use Hazardous Materials
("Equipment"), then Tenant shall first obtain Landlord's prior written
consent, which consent may be given or withheld by Landlord in its
subjective, good faith judgment, within thirty (30) days of Landlord's
receipt of the last of documents or information requested by Landlord as set
forth in this Paragraph. Tenant's failure to receive Landlord's consent
within such thirty (30) day period shall be conclusively deemed Landlord's
withholding of consent. Tenant's request for Landlord's consent shall include
the following documents or information: (A) a Hazardous Materials list
pursuant to Paragraph 9(c) regarding the Hazardous Materials Tenant proposes
to Use and/or Equipment Tenant proposes to install and operate; (B)
reasonably satisfactory evidence that Tenant has obtained all necessary
Permits to Use those Hazardous Materials and/or to install and operate the
proposed Equipment; (C) reasonably satisfactory evidence that Tenant's Use of
the Hazardous Materials and/or installation and operation of the Equipment
shall comply with all applicable Hazardous Materials Laws, Tenant's permitted
use under this Lease and all restrictive covenants encumbering the Project;
(D) reasonably satisfactory evidence of Tenant's financial capability and
responsibility for potential Claims associated with the Use of the Hazardous
Materials and/or installation and operation of the Equipment; and (E) such
other documents or information as Landlord may reasonably request. Landlord
may, at its option, condition its consent upon any terms that Landlord, in
its subjective, good faith judgment, deems necessary to protect itself, the
public and the Project against potential problems, Claims arising out of
Tenant's Use of Hazardous Materials and/or installation and operation of
Equipment including, without limitation, (i) changes in the insurance
provisions of the Lease, (ii) installation of equipment, fixtures and/or
personal property and/or
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alteration of the Premises (all at Tenant's sole cost) to minimize the
likelihood of a violation of Hazardous Materials Laws as a result of Tenant's
Use of the Hazardous Materials and/or installation and operation of
Equipment, and/or (iii) increasing the amount of the security deposit.
Neither Landlord's consent nor Tenant's obtaining any Permits shall relieve
Tenant of any of its obligations pursuant to this Paragraph 9. Landlord's
granting of consent to one request to Use Hazardous Materials and/or install
and operate Equipment shall not be deemed Landlord's consent to any other
such request. If Landlord grants its consent to Tenant's request, no
subtenant, assignee or successor of Tenant shall have the right to Use those
Hazardous Materials or install or operate that Equipment without again
complying with the provisions of this Paragraph 9(b)(ii).
(iii) Notwithstanding the provisions of Paragraphs 9(b)(i) and
9(b)(ii), Tenant may Use any Substance typically found or used in
applications of the type permitted by this Lease so long as: (A) any such
Substance is typically found only in such quantity as is reasonably necessary
for Tenant's permitted use under Paragraph 8 of this Lease; (B) any such
Substance and all equipment necessary in connection with the Substance are
Used strictly in accordance with the manufacturers' instructions therefor;
(C) no such Substance is released or disposed of in or about the Project; (D)
any such Substance and all equipment necessary in connection with the
Substance are removed from the Project and transported for Use or disposal by
Tenant in compliance with any applicable Hazardous Materials Laws upon the
expiration or earlier termination of this Lease; and (E) Tenant and its
Agents comply with all applicable Hazardous Materials Laws.
(iv) Tenant shall not use or install in or about the Premises any
asbestos or asbestos-containing materials.
(c) Tenant shall deliver to Landlord, within thirty (30) days after
Tenant's receipt of Landlord's written request, a written list identifying
any Hazardous Materials that Tenant or its Agents then Uses or has Used
within the last twelve (12) month period in the Project. Each such list shall
state: (i) the use or purpose of each such Hazardous Material; (ii) the
approximate quantity of each such Hazardous Material Used by Tenant; (iii)
such other information as Landlord may reasonably require; and (iv) Tenant's
written certification that neither Tenant nor its Agents have released,
discharged or disposed of any Hazardous Materials in or about the Project, or
transported any Hazardous Materials to or from the Project, in violation of
any applicable Hazardous Materials Laws. Landlord shall not request Tenant to
deliver a Hazardous Materials list more often than once during each twelve
(12) month period, unless Landlord reasonably believes that Tenant or its
Agents have violated the provisions of this Paragraph 9 (in which case (A)
Landlord may request such lists as often as Landlord determines is necessary
until such violation is cured, and (B) Tenant shall provide such lists within
ten (10) days of each of Landlord's requests, or if an emergency exists, such
lists shall be immediately provided).
(d) Tenant shall furnish to Landlord copies of all notices, claims,
reports, complaints, warnings, asserted violations, documents or other
communications received or delivered by Tenant, as soon as possible and in
any event within five (5) days of such receipt or delivery, with respect to
any actual or alleged Use, disposal or transportation of Hazardous Materials
in or about the Premises, the Building or the Project. Whether or not Tenant
receives any such notice, claim, report, complaint, warning, asserted
violation, document or communication, Tenant shall immediately notify
Landlord, orally and in writing, if Tenant or any of its Agents knows or has
reasonable cause to believe that any Hazardous Materials, or a condition
involving or resulting from the same, is present, in Use, has been disposed
of, or transported to or from the Premises, the Building or the Project other
than is previously consented to by Landlord in strict accordance with
Paragraph 9(b).
(e) Tenant acknowledges that it, and not Landlord, is in possession and
control of the Premises for purposes of all reporting requirements under any
Hazardous Materials Laws. If Tenant or its Agents violate any provision of
this Paragraph 9, then Tenant shall immediately notify Landlord in writing
and shall be obligated, at Tenant's sole cost, to abate, remediate, clean-up
and/or remove from the Project, and dispose of, all in compliance with all
applicable Hazardous Materials Laws, all Hazardous Materials Used by Tenant
or its Agents. Such work shall include, but not be limited to, all testing
and investigation required by Landlord, Landlord's lender and/or ground
lessor, if any, and any governmental authorities having jurisdiction, and
preparation and implementation of any remedial action plan required by any
governmental authorities having jurisdiction. All such work shall, in each
instance, be conducted to the satisfaction of Landlord and all governmental
authorities having jurisdiction. If at any time Landlord determines that
Tenant is not complying with the provisions of this Paragraph 9(e), then
Landlord may, without prejudicing, limiting, releasing or waiving Landlord's
rights under this Paragraph 9, separately undertake such work, and Tenant
shall reimburse all costs incurred by Landlord upon demand.
(f) Landlord's right of entry pursuant to Paragraph 17 shall include the
right to enter and inspect the Premises, and the right to inspect Tenant's
books and records, to verify Tenant's compliance with, or violations of, the
provisions of this Paragraph 9. Furthermore, Landlord may conduct such
investigations and tests as Landlord or Landlord's lender or ground lessor
may require. If Landlord determines that Tenant has violated the provisions
of this Paragraph 9, or if any applicable governmental agency requires any
such inspection, investigation or testing, then Tenant, in addition to its
other obligations set forth in this Paragraph 9, shall immediately reimburse
Landlord for all costs incurred therewith.
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(g) (i) Tenant shall indemnify, protect, defend (with legal counsel
acceptable to Landlord in its subjective, good faith judgment) and hold
harmless Landlord, its partners and its and their respective successors,
assigns, partners, directors, officers, shareholders, employees, agents,
lenders, ground lessors and attorneys, and the Project, from and against any
and all Claims incurred by such indemnified persons, or any of them, in
connection with, or as the result of: (A) the presence, Use or disposal of
any Hazardous Materials into or about the Project, or the transportation of
any Hazardous Materials to or from the Project, by Tenant or its Agents; (B)
any injury to or death of persons or damage to or destruction of property
resulting from the presence, Use or disposal of any Hazardous Materials into
or about the Project, or the transportation of any Hazardous Materials to or
from the Project, by Tenant or its Agents; (C) any violation of any Hazardous
Materials Laws; and (D) any failure of Tenant or its Agents to observe the
provisions of this Paragraph 9. Payment shall not be a condition precedent to
enforcement of the foregoing indemnification provision. Tenant's obligations
hereunder shall include, without limitation, and whether foreseeable or
unforeseeable, all costs of any required or necessary testing, investigation,
studies, reports, repair, clean-up, detoxification or decontamination of the
Project, and the preparation and implementation of any closure, removal,
remedial action or other required plans in connection therewith, and shall
survive the expiration or earlier termination of the term of this Lease. For
purposes of these indemnity provisions, any acts or omissions of Tenant, its
assignees, sublessees, Agents or others acting for or on behalf of Tenant
(regardless of whether they are negligent, intentional, willful, or unlawful)
shall be strictly attributable to Tenant.
(ii) If at any time after the initiation of any suit, action,
investigation or other proceeding which could create a right of
indemnification under Paragraph 9(g)(i) Landlord determines that Tenant is
not complying with the provisions of Paragraph 9(g)(i), then Landlord may,
without prejudicing, limiting, releasing or waiving the right of
indemnification provided herein, separately defend or retain separate counsel
to represent and control the defense as to Landlord's interest in such suit,
action, investigation or other proceeding. Tenant shall pay all costs of
Landlord's separate defense or counsel upon demand.
(h) Upon any violation of the provisions of this Paragraph 9, Landlord
shall be entitled to exercise any or all remedies available to a landlord
against a defaulting tenant including, but not limited to, those set forth in
Paragraph 26.
(i) By its signature to this Lease, Tenant confirms that: (i) Landlord
has not made any representation or warranty regarding the environmental
condition of the Premises, the Building or the Project; and (ii) Tenant has
conducted its own examination of the Premises, the Building and the Project
with respect to Hazardous Materials and accepts the same "AS IS" and with no
Hazardous Materials present thereon.
(j) No termination, cancellation or release agreement entered into by
Landlord and Tenant shall release Tenant from its obligations under this
Paragraph 9 unless specifically agreed to by Landlord in writing at the time
of such agreement.
(k) Tenant's covenants and obligations under this Paragraph 9 shall also
apply to any assignee or sublessee of Tenant, and to any such assignee's or
sublessee's partners, officers, directors, shareholders, employees, agents,
contractors and any other third parties entering upon the Project at the
request or invitation of such assignee or sublessee.
10. UTILITIES AND SERVICES
(a) Provided that Tenant is not in default hereunder, Landlord agrees to
furnish or cause to be furnished to the Premises, the utilities and services
described, subject to the conditions and in accordance with the standards set
forth below:
(i) Landlord shall provide automatic elevator facilities to the
Building Monday through Friday, excepting therefrom all holidays
recognized by Landlord, hereinafter collectively referred to as
"generally accepted business days," from 8:00 a.m. to 6:00 p.m.,
and on Saturdays from 8:00 a.m. to 12:00 noon, and have at least
one elevator available for use at all other times.
(ii) On generally accepted business days from 8:00 a.m.
to 6:00 p.m. and on Saturdays from 8:00 a.m. to 12:00 noon (and at
other times for a reasonable additional charge to be fixed by
Landlord), Landlord shall ventilate the Premises and furnish air
conditioning when in the judgment of Landlord it is required for
the comfortable occupancy of the Premises during such days and
hours, subject to any requirements or standards relating to, among
other things, energy conservation, imposed or established by
governmental agencies or cooperative organizations. Landlord shall
make available at Tenant's expense after-hours power, including
light, and air conditioning to each floor of the Building which
shall be controlled by a digital control or other central control
system selected by Landlord. Minimum use of after-hours power and
air conditioning, the costs thereof and the prior notice required
for such services shall be determined from time to time by Landlord
and confirmed in writing to Tenant, as the same may change from
time to time.
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(iii) Landlord shall furnish to the Premises at all times,
subject to interruptions beyond Landlord's control, electric
current as required by the building standard office lighting
(approximately two (2) watts per square foot at 277 volts) and
receptacles (approximately one (1) watt per square foot at 110
volts). At all times Tenant's use of electric current shall never
exceed the capacity of the feeders to the Building or the risers or
wiring installation.
(iv) Landlord shall furnish water for drinking, cleaning and
lavatory purposes only.
(v) Landlord shall provide janitorial services to the Premises
comparable to those provided in other first-class office buildings
in the vicinity of the Building, provided the same are used
exclusively as offices and are kept reasonably in order by Tenant.
Landlord shall not be responsible or liable for any act or omission
or commission on the part of the persons employed to perform said
janitorial services, which shall be performed at Landlord's
direction without interference by Tenant or Tenant's employees,
agents, contractors, licensees, directors, officers, partners,
trustees, visitors or invitees (collectively, "Tenant Parties"). If
the Premises are not used exclusively as offices, Tenant or persons
approved by Landlord shall keep the Premises clean and in order to
the satisfaction of Landlord, but at Tenant's sole expense. No
persons other than Tenant and those persons approved by Landlord
shall be permitted to enter the Building for the purpose of keeping
the Premises clean and in order. Tenant shall 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.
(vi) Landlord shall replace, as necessary, the fluorescent
tubes in the building standard lighting fixtures installed by
Landlord. Tenant shall replace, as necessary, all bulbs and
fluorescent tubes in non building standard lighting fixtures, if
any, installed in the Premises. If Tenant shall fail to make any
such replacement within five (5) days after written notice from
Landlord, Landlord may make such replacement and charge the cost of
labor and materials involved therein to Tenant, as additional rent.
(vii) Landlord shall provide at all times, subject to
interruption due to equipment failures, maintenance and/or repairs,
intrabuilding network cabling to permit connection of telephone
services from the Minimum Point of Entry as designated by Pacific
Bell to the telephone closet located on the floor of the Building
on which the Premises is located.
(b) Landlord may impose a reasonable charge for any utilities and
services, including without limitation, air conditioning, electric
current and water, required to be provided by Landlord by reason of any
use of the Premises at any time other than the hours from 8:00 a.m. to
6:00 p.m. on generally accepted business days or the hours from 8:00
a.m. to 12:00 noon on Saturdays or any use beyond what Landlord agrees
to furnish as described above, or special electrical, cooling and
ventilating needs created in certain areas by hybrid telephone
equipment, computers and other similar equipment or uses. At Landlord's
option, separate meters for such utilities and services may be installed
for the Premises and Tenant, upon demand therefor, shall immediately pay
Landlord for the installation, maintenance and repair of such meters.
(c) Tenant agrees to cooperate fully at all times with Landlord and
to abide by all regulations and requirements which Landlord may
prescribe for the use of the above utilities and services. Any failure
to pay any excess costs as described above shall constitute a breach of
the obligation to pay rent under this Lease and shall entitle Landlord
to the rights herein granted for such breach.
(d) Landlord reserves the right in its sole and absolute discretion
to reduce, interrupt or cease service of the heating, air conditioning,
ventilation, elevator, plumbing, electrical systems, telephone systems
(to the extent provided by Landlord) and/or utilities services of the
Premises, the Building or the Project, for (i) the making of any
repairs, additions, alterations or improvements to the Premises,
Building or Project until said repairs, additions, alterations or
improvements shall have been completed or (ii) any accident, breakage,
strikes, lockouts or other labor disturbance or labor dispute of any
character, governmental regulation, moratorium or other governmental
action, inability by exercise of reasonable diligence to obtain
electricity, water or fuel, or by any other cause beyond Landlord's
reasonable control. In such event, Landlord shall not be liable for, and
Tenant shall not be entitled to, any abatement or reduction of rent by
reason of Landlord's failure to furnish any of the foregoing. Landlord
shall not be in breach of this Lease and shall not be liable in damages
(including but not limited to any damages, compensation or claims
arising from any interruption or cessation of Tenant's business) or
otherwise for failure, stoppage or interruption of any such service, nor
shall the same be construed either as an eviction of Tenant, or work an
abatement of rent, or relieve Tenant from the operation of any covenant
or agreement. In the event of any failure, stoppage or interruption
thereof, however, Landlord shall use reasonable diligence to resume
service promptly where it is within Landlord's reasonable control to do
so.
(e) Landlord, in its sole and absolute discretion, may elect to
contract for the services of individuals that will monitor the systems
and operations of the Building and Project. In this connection, Landlord
may also elect to station some of these individuals in the lobby of the
Building. Such individuals are not security personnel and will not
provide protective services to any of the tenants of the Building,
including Tenant.
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(f) Notwithstanding anything hereinabove to the contrary, Landlord
reserves the right from time to time to make reasonable and nondiscriminatory
modifications to the above standards for utilities and services.
(g) Tenant shall pay for all telephone service to the Premises and shall
contract directly with the providing company for such service, and Landlord
shall have no responsibilities thereto.
11. RULES AND REGULATIONS
Tenant agrees to abide by all rules and regulations of the Building and
the Project imposed by Landlord as set forth in Exhibit "C" attached hereto,
as the same may be changed from time to time upon reasonable notice to
Tenant. Any such change shall be effective upon delivery of a copy thereof to
Tenant. These rules and regulations are imposed for the cleanliness, good
appearance, proper maintenance, good order and reasonable use of the
Premises, the Building and the Project, and as may be necessary for the
enjoyment of the Building and the Project by all tenants and their clients,
customers and employees. A breach of the rules and regulations shall not be
grounds for termination of this Lease unless Tenant continues to breach the
same after ten (10) days' written notice by Landlord; provided, however, that
any such notice shall be in lieu of, and not in addition to, any notice
required under Paragraph 26, below, or Section 1161, ET SEQ., of the
California Code of Civil Procedure, as amended. Landlord shall not be liable
to Tenant for the failure of any other tenant, its agents or employees, to
conform to the rules and regulations.
12. TAXES ON TENANT'S PROPERTY
(a) Tenant shall be liable for and pay ten (10) days before delinquency,
all taxes, levies and assessments levied against any personal property or
trade fixtures placed by Tenant in or about the Premises, and, when possible,
Tenant shall cause such personal property and trade fixtures to be assessed
and billed separately from the Building and the Premises. If any such taxes,
levies and assessments on Tenant's personal property or trade fixtures are
levied against Landlord or Landlord's property or if the assessed value of
the Building or the Project is increased by the inclusion therein of a value
placed upon such personal property or trade fixtures of Tenant and if
Landlord pays the taxes, levies and assessments based upon such increased
assessment, which Landlord shall have the right to do regardless of the
validity thereof, but only under proper protest if requested by Tenant,
Tenant shall upon demand repay to Landlord, as additional rent, the taxes,
levies and assessments so levied against Landlord, or the proportion of such
taxes, levies and assessments resulting from such increase in the assessment,
together with interest thereon from the date of payment by Landlord to the
date of reimbursement by Tenant at the rate determined pursuant to Paragraph
37. It is provided, however, that in any such event Tenant shall have the
right, in the name of Landlord and with Landlord's full cooperation but
without any cost to Landlord, to bring suit in any court of competent
jurisdiction to recover the amount of any such taxes, levies and assessments
so paid under protest, any amount so recovered to belong to Tenant.
(b) If the tenant improvements in the Premises, whether installed and/or
paid for by Landlord or Tenant and whether or not affixed to the real
property so as to become a part thereof, are assessed for real property tax
purposes at a valuation higher than the valuation at which tenant
improvements conforming to Landlord's "building standard" in other space in
the Building are assessed, then the real property taxes and assessments
levied against Landlord or the Building or the Project by reason of such
excess assessed valuation shall be deemed to be taxes levied against personal
property of Tenant and shall be governed by the provisions of subparagraph
(a) above. If the records of the County Assessor are available and
sufficiently detailed to serve as a basis for determining whether said tenant
improvements are assessed at a higher valuation than Landlord's "building
standard," such records shall be binding on both Landlord and Tenant;
otherwise the actual cost of construction shall be the basis for such
determination.
13. INTENTIONALLY OMITTED
14. FIRE OR CASUALTY
(a) In the event the Premises, or access to them, are wholly or
partially destroyed by fire or other casualty covered by the form of fire and
extended coverage insurance maintained by Landlord, Landlord shall rebuild,
repair or restore the Premises and access thereto to substantially the same
condition as when the same were furnished to Tenant, excluding any
improvements installed by Tenant and any of Tenant's personal property, and
this Lease shall continue in full force and effect. In the event, however,
that the Building is so damaged or destroyed to the extent of more than
one-third (1/3) of its replacement cost, or to any substantial extent by a
casualty not so covered, Landlord may elect by written notice to Tenant given
within twenty (20) days after the occurrence of the casualty to terminate
this Lease in lieu of so restoring the Premises, in which event this Lease
shall terminate as of the date of the occurrence of the casualty. Landlord
shall in no event be obligated to make any repairs or replacement of any
items other than those items installed by or at the
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expense of Landlord. If the Premises are rendered totally or partially
untenantable, rent shall abate during the period of reconstruction in the
same proportion to the total rent as the portion of the Premises rendered
untenantable bears to the entire Premises. Any such rental abatement shall
not defeat or diminish Landlord's rights to recover upon any rental
interruption insurance maintained by Landlord pursuant to Paragraph 20. In no
event shall Tenant be entitled to any compensation or damages for loss of use
of the whole or any part of the Premises or for any inconvenience occasioned
by any such destruction, rebuilding or restoration of the Premises, the
Building or access thereto. Tenant waives the provisions of California Civil
Code Sections 1932(2) and 1933(4) and any present and future laws and case
decisions to the same effect.
(b) Notwithstanding anything to the contrary contained in Paragraph
14(a) above, if the Premises or the Building or the Project is wholly or
partially damaged or destroyed within the final twelve (12) months of the
Term of this Lease, Landlord may, at its option, by giving Tenant notice
within sixty (60) days after notice to Landlord of the occurrence of such
damage or destruction, elect to terminate the Lease. Furthermore, upon
termination of this Lease pursuant to this Paragraph 14(b), Tenant and
Landlord hereby agree (except as expressly provided for otherwise in this
Lease) to release each other from any and all obligations and liabilities
with respect to the Lease except such obligations and liabilities which arise
or accrue prior to such termination.
15. EMINENT DOMAIN
(a) In case the whole of the Premises, or such part thereof as shall
substantially interfere with Tenant's use and occupancy thereof, shall be
taken by any lawful power or authority by exercise of the right of eminent
domain, or sold to prevent such taking or threat of such taking, either
Tenant or Landlord may terminate this Lease effective as of the date
possession is required to be surrendered to said authority. Except as
provided herein, Tenant shall not because of such taking assert any claim
against Landlord or the taking authority for any compensation because of such
taking, and Landlord shall be entitled to receive the entire amount of any
award without deduction for any estate or interest of Tenant. In the event
the amount of property or the type of estate taken shall not substantially
interfere with Tenant's use of the Premises, Landlord shall be entitled to
the entire amount of the award without deduction for any estate or interest
of Tenant. In such event, Landlord shall promptly proceed to restore the
Premises to substantially their condition prior to such partial taking, and a
proportionate allowance shall be made to Tenant for the rent corresponding to
the time during which, and to the part of the Premises of which, Tenant shall
be so deprived on account of such taking and restoration. Any such rental
abatement shall not defeat or diminish Landlord's rights to recover upon any
rental interruption insurance maintained by Landlord pursuant to Paragraph
20. Nothing contained in this Paragraph 15(a) shall be deemed to give
Landlord any interest in, or prevent Tenant from seeking any award against
the taking authority for, the taking of personal property and fixtures
belonging to Tenant or for relocation or business interruption expenses
recoverable from the taking authority. Landlord may, without any obligation
to Tenant, agree to sell and/or convey to any taking authority the Premises,
the Building, the Project or any portion thereof sought by such taking
authority, free from this Lease and the rights of Tenant hereunder, without
first requiring that any action or proceeding be instituted or pursued to
judgment.
(b) In the event of a temporary taking of the Premises or any part of
the Premises and/or of Tenant's rights to the Premises or under this Lease,
this Lease shall not terminate, nor shall Tenant have the right to any
abatement of rent or of any other payments owed to Landlord pursuant to this
Lease. Any award made to Tenant by reason of such temporary taking shall
belong entirely to Tenant.
(c) This Paragraph 15 shall be Tenant's sole and exclusive remedy in the
event of a taking or condemnation. Tenant hereby waives the benefit of
California Code of Civil Procedure Section 1265.130. Upon termination of the
Lease pursuant to this Paragraph 15, Tenant and Landlord hereby agree (except
as expressly provided for otherwise in this Lease) to release each other from
any and all obligations and liabilities with respect to the Lease except such
obligations and liabilities which arise or accrue prior to such termination.
16. ASSIGNMENT AND SUBLETTING
(a) Tenant shall not, either voluntarily or involuntarily or by
operation of law, assign, sublet, mortgage or otherwise encumber all or any
portion of its interest in this Lease or in the Premises or permit the
Premises to be occupied by anyone other than Tenant or Tenant's employees
without obtaining the prior written consent of Landlord, which consent shall
be subject to the provisions of subsections (b) through (j) below. Any such
attempted assignment, subletting, mortgage or other encumbrance without such
consent shall be null and void and of no effect.
(b) No assignment, subletting, mortgage or other encumbrance of Tenant's
interest in this Lease shall relieve Tenant of its obligation to pay the rent
and to perform all of the other obligations to be performed by Tenant
hereunder. In this connection, any such assignment, sublease or encumbrance
shall expressly provide that it is subject to the terms and provisions of
this Lease. Moreover, any subletting by Tenant of any portion of the Premises
shall be at a market rental rate and upon market terms and, if Landlord so
requests, shall require that the assignee or sublessee remit directly to
Landlord, on a monthly basis, all rent due to Tenant by
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said assignee or sublessee. For this purpose, "market" shall mean a rental
rate and terms comparable to the rental rate and terms then being offered by
other landlords leasing comparable space in comparable commercial high-rise
office buildings that are located within a one (1) mile radius of the
Building. The acceptance of rent by Landlord from any other person shall not
be deemed to be a waiver by Landlord of any provision of this Lease or to be
a consent to any subletting, assignment, mortgage or other encumbrance.
Consent to one sublease, assignment, mortgage or other encumbrance shall not
be deemed to constitute consent to any subsequent attempted subletting,
assignment, mortgage or other encumbrance.
(c) If Tenant desires at any time to assign this Lease or to sublet the
Premises or any portion thereof, it shall first notify Landlord of its desire
to do so and shall submit in writing to Landlord (i) the name of the proposed
subtenant or assignee; (ii) the nature of the proposed subtenant's or
assignee's business to be carried on in the Premises, (iii) the terms and
provisions of the proposed sublease or assignment and the proposed effective
date thereof; and (iv) such financial information as Landlord may reasonably
request concerning the proposed subtenant or assignee. The submission
pursuant to clause (iii) shall include a copy of any agreement, escrow
instructions or other document which contains or memorializes the terms and
provisions of the transaction for which Landlord's consent is required.
Similarly, if Tenant desires to mortgage or encumber its interest in this
Lease, Tenant shall first supply to Landlord in writing such information as
to such transaction as may be reasonably requested by Landlord.
(d) As a condition to Landlord's consent to such assignment or
subletting, Landlord shall be entitled to receive, in the case of a
subletting, all rent (however denominated and paid) payable by the subtenant
to Tenant in excess of that payable by Tenant to Landlord pursuant to the
other provisions of this Lease and, in the case of an assignment, all
consideration given, directly or indirectly, by the assignee to Tenant in
connection with such assignment, less normal and usual costs incurred by
Tenant in connection with such subletting or assignment amortized over the
length of the term of such assignment or sublease. For the purposes of this
subparagraph, the term "rent" shall mean all consideration paid or given,
directly or indirectly, for the use of the Premises or any portion thereof.
The term "consideration" shall mean and include money, services, property or
any other thing of value such as payment of costs, cancellation of
indebtedness, discounts, rebates and the like. "Normal and usual costs" shall
only mean the following: broker's commission paid by Tenant to a broker
independent of Tenant in connection with such assignment or subletting; legal
fees incurred by Tenant in processing such assignment or subletting;
out-of-pocket costs incurred by Tenant in advertising for an assignee or
subtenant; and out-of-pocket costs incurred by Tenant to remodel or renovate
the area subject to such subletting or assignment (which costs shall not
exceed the cost of providing "Building Standard Improvements" in the
quantities specified in Exhibit "B" for such assignee or subtenant). "Sublet"
and "sublease" shall include a sublease as to which Tenant is sublessor and
any sub-sublease or other sub-subtenancy, irrespective of the number of
tenancies and tenancy levels between the ultimate occupant and Landlord, as
to which Tenant receives any consideration, as defined in this subparagraph,
and Tenant shall require on any sublease which it executes that Tenant
receive the profit from all sub-subtenancies, irrespective of the number of
levels thereof. Any rent or other consideration which is to be passed through
to Landlord by Tenant pursuant to this subparagraph shall be paid to Landlord
promptly upon receipt by Tenant and shall be paid in cash, irrespective of
the form in which received by Tenant from any subtenant or assignee. In the
event that any rent or other consideration received by Tenant from a
subtenant or assignee is in a form other than cash, Tenant shall pay to
Landlord in cash the fair value of such consideration.
(e) At any time within thirty (30) days after Landlord's receipt of the
last of the information specified in subparagraph (c) above, Landlord may by
written notice to Tenant elect (i) to disapprove of such assignment or
sublease, (ii) to sublease the Premises or the portion thereof so proposed to
be subleased by Tenant, or to take an assignment of Tenant's leasehold
estate hereunder, or such part thereof as shall be specified in said notice,
on the same terms as those stated in this Lease and in turn sublease or
assign to the proposed subtenant or assignee on the same terms as those
offered by Tenant to the proposed subtenant or assignee, as the case may be;
or (iii) to terminate this Lease as to the portion (including all) of the
Premises so proposed to be subleased or assigned, with a proportionate
abatement in the rent payable hereunder. It is provided, however, that if the
proposed sublease will cover less than one half (1/2) of the area of the
Premises covered by this Lease and will have a term (including all options to
renew or extend the same) of less than two (2) years and will terminate more
than two (2) years prior to the expiration date of this Lease, Landlord shall
not be entitled to exercise option (ii) above, but may exercise option (i).
Tenant shall, at Tenant's own cost and expense, discharge in full any
commissions which may be due and owing as the result of any proposed
assignment or subletting, whether or not the Premises are recaptured pursuant
hereto and rented by Landlord to the proposed subtenant or assignee or any
other tenant. If Landlord does not disapprove the proposed subletting or
assignment in writing and does not exercise any option set forth in this
subparagraph (e) within said thirty (30) day period, Tenant may within ninety
(90) days after the expiration of said thirty (30) day period enter into a
valid assignment or sublease of the Premises or portion thereof, upon the
terms and conditions set forth in the information furnished by Tenant to
Landlord pursuant to subparagraph (c) above. It is provided, however, that
any material change in such terms shall be subject to Landlord's consent and
rights of
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termination and recapture as provided in this Paragraph and, provided
further, that any amount to be paid by Tenant in connection with such
subletting or assignment pursuant to subparagraph (d) above shall be paid to
Landlord upon consummation of such transaction.
(f) Landlord shall have the right to approve or disapprove any proposed
assignee or subtenant. In exercising such right of approval or disapproval,
Landlord shall be entitled to take into account any fact or factor which
Landlord reasonably deems relevant to such decision, including but not
necessarily limited to the following, all of which are agreed to be
reasonable factors for Landlord's consideration:
(i) The financial strength of the proposed assignee or
subtenant, including the adequacy of its working capital to pay all
expenses anticipated in connection with any proposed remodeling of
the Premises.
(ii) The proposed use of the Premises by such proposed
assignee or subtenant and the compatibility of such proposed use
within the quality and nature of the other uses in the Building.
(iii) Any violation which the proposed use by such proposed
assignee or subtenant would cause of any other rights granted by
Landlord to other tenants of the Building or the Project.
(iv) Any adverse impact of the proposed use of the Premises by
such proposed assignee or subtenant upon the parking or other
services provided for Building or Project tenants generally.
(v) Whether there then exists any default by Tenant pursuant to
this Lease or any non-payment or non-performance by Tenant under
this Lease which, with the passage of time and/or the giving of
notice, would constitute a default under this Lease.
(vi) The business reputation, character, history and nature of
the business of the proposed assignee or subtenant.
(vii) Whether the proposed assignee or subtenant is a person
with whom Landlord has negotiated for space in the Project during
the twelve (12) month period ending with the date Landlord receives
notice of such proposed assignment or subletting.
(viii) Whether the proposed assignee or subtenant is a
governmental entity or agency.
Moreover, Landlord shall be entitled to be reasonably satisfied that each and
every covenant, condition or obligation imposed upon Tenant by this Lease and
each and every right, remedy or benefit afforded Landlord by this Lease is
not impaired or diminished by such assignment or subletting. Landlord and
Tenant acknowledge that the express standards and provisions set forth in
this Lease dealing with assignment and subletting, including those set forth
in this subparagraph (f) have been freely negotiated and are reasonable at
the date hereof taking into account Tenant's proposed use of the Premises and
the nature and quality of the Building and Project. No withholding of consent
by Landlord for any reason deemed sufficient by Landlord shall give rise to
any claim by Tenant or any proposed assignee or subtenant or entitle Tenant
to terminate this Lease, to recover contract damages or to any abatement of
rent. In this connection, Tenant hereby expressly waives its rights under
California Civil Code Section 1995.310. Moreover, approval of any assignment
of Tenant's interest shall, whether or not expressly so stated, be
conditioned upon such assignee assuming in writing all obligations of Tenant
hereunder.
(g) All options to extend, renew or expand, all exterior sign rights and
all reserved, reduced cost or free parking rights, in each case if any,
contained in this Lease are personal to Tenant. Consent by Landlord to any
assignment or subletting shall not include consent to the assignment or
transfer of any such rights or options with respect to the Premises or any
other special privileges or extra services granted to Tenant by this Lease,
any addendum or amendment hereto or any letter agreement. All such options,
rights, privileges and extra services shall terminate upon such subletting or
assignment unless Landlord specifically grants the same in writing to such
assignee or subtenant.
(h) The voluntary or other surrender of this Lease by Tenant or a mutual
cancellation hereof shall not work a merger, and shall, at the option of
Landlord, terminate all or any existing subleases or subtenancies or shall
operate as an assignment to Landlord of such subleases or subtenancies.
Tenant agrees to reimburse Landlord for Landlord's reasonable costs and
attorneys' fees incurred in connection with the processing and documentation
of any such requested assignment, subletting, transfer, change of ownership
or hypothecation of this Lease or Tenant's interest in and to the Premises.
(i) Landlord shall be permitted to hire outside contractors to review
all assignment and subletting documents and information and Tenant shall
reimburse Landlord for the cost thereof, including reasonable attorneys'
fees, on demand.
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(j) The foregoing notwithstanding, Tenant may assign this Lease at any
time, or sublease all or part of the Premises, without receipt of Landlord's
consent, to any entity which acquires all or part of Tenant, or which is
acquired in whole or in part by Tenant, or which is controlled by Tenant, or
which entity controls, Tenant (any such party hereinafter referred to as an
"affiliate") so long as such transaction was not entered into as a subterfuge
to avoid the obligations and restrictions of this Lease. In connection with
any transaction of the type described in this subparagraph (j):
(A) Any sublease shall be subject to all of the terms and
provisions of this Lease and shall be terminable by Landlord upon the
expiration or any earlier termination of this Lease, including a termination
by mutual agreement of Landlord and Tenant.
(B) In connection with any assignment, the assignee shall, within
ten (10) days after receipt of written request from Landlord, execute and
deliver to Landlord a written assumption of the obligations of Tenant
pursuant to this Lease accruing from and after the effective date of the
assignment and in form and substance reasonably satisfactory to Landlord.
(C) No such assignment or subletting shall release Tenant from any
of the obligations of Tenant hereunder, whether accruing prior to or
subsequent to the effective date of such transaction.
(D) No such transaction shall be accompanied by a change in use
from that permitted pursuant to Paragraph 11 of the Basic Lease Provisions.
(E) Within ten (10) days after the effective date of such
transaction, Tenant shall notify Landlord in writing of such occurrence, the
effective date thereof, the name of the assignee or subtenant, any change in
the addresses for notice pursuant to this Lease and the facts which bring
such transaction within the scope of this subparagraph (j).
17. ACCESS
Landlord reserves and shall at any time and all 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 submit said
Premises to prospective purchasers, tenants or actual or prospective lenders,
to post notices of non-responsibility, to use and maintain pipes and conduits
in and through the Premises, and to alter, improve or repair the Premises or
any other portion of the Building, all without being deemed guilty of an
eviction of Tenant and without abatement of rent, and may for that purpose
erect scaffolding and other necessary structures where reasonably required by
the character of the work to be performed, provided that the business of
Tenant shall be interfered with as little as is reasonably practicable.
Landlord may enter by means of a master key without liability to Tenant for
any damage caused by Landlord entering the Premises, except for damage to
Tenant's personal property caused by any failure of Landlord to exercise due
care. Tenant shall not disturb any notices or other items placed by Landlord
in the Premises. Tenant hereby waives any claim for damages for any injury or
inconvenience to or interference with Tenant's business, any loss of
occupancy or quiet enjoyment of the Premises, and any other loss occasioned
thereby. For each of the aforesaid purposes, Landlord shall at all times have
and retain a key with which to unlock all of the doors in, upon and about the
Premises, excluding Tenant's vaults and safes, and Landlord shall have the
right to use any and all means which Landlord may deem proper to open said
doors in an emergency in order to obtain entry to the Premises. Any lock
installed by Tenant shall be of a type and style designated by Landlord
concurrently with such installation. Any entry to the Premises obtained by
Landlord by any of said means shall not under any circumstances be construed
or deemed to be a forcible or unlawful entry into, or a detainer of, the
Premises, or any eviction of Tenant from the Premises or any portion thereof.
No provision of this Lease shall be construed as obligating Landlord to
perform any repairs, alterations or decorations except as otherwise expressly
agreed to be performed by Landlord.
18. SUBORDINATION; ATTORNMENT; ESTOPPEL CERTIFICATES; FINANCIAL STATEMENTS
(a) This Lease and the rights of Tenant hereunder, at Landlord's
election, shall be junior, subject, and subordinate to the lien of any ground
or underlying lease, mortgage, deed of trust, and other security instrument
of any kind now or hereafter covering the Premises, the Building or the
Project, or any portion of any thereof, and to any and all advances made
thereunder, interest thereon or costs incurred pursuant thereto (with respect
to mortgages or deeds of trust) and any amendments, modifications, renewals,
supplements, consolidations, replacements or extensions thereto. Such
priority shall be established without the necessity of the execution and
delivery of any further instruments on the part of Tenant to effect such
subordination. Landlord or any ground lessor, mortgagee or beneficiary under
a deed of trust may at any time cause such subordination by giving notice
thereof to Tenant at least sixty (60) days before the subordination is to
become effective. Notwithstanding the foregoing, Tenant covenants and agrees
to (a) execute and deliver upon demand such further instruments evidencing
such subordination of this Lease or subordination of such mortgage, deed of
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trust or ground lease as may be requested by Landlord and (b) supply such
financial information concerning Tenant as may be requested by any ground
lessor or lender, prospective purchaser or Landlord, in connection with such
subordination, within ten (10) business days after demand. If Tenant fails to
execute such further instruments within ten (10) business days after demand,
Landlord may execute such documents on behalf of Tenant as Tenant's
attorney-in-fact. Tenant does hereby make, constitute and irrevocably appoint
Landlord as Tenant's attorney-in-fact and in Tenant's name, place and stead,
to execute such instruments in accordance with this subparagraph. In
addition, Tenant's failure to execute such further instruments within ten
(10) business days after demand shall constitute a material breach of this
Lease. Notwithstanding subordination by Tenant to any existing or future
lienholder, Tenant's right to quiet possession of the Premises shall not be
disturbed so long as Tenant shall pay the rent and observe and perform all of
the provisions of this Lease to be observed and performed by Tenant, unless
this Lease is terminated pursuant to specific provisions relating thereto
contained herein. In the event of the foreclosure of any such lien or
encumbrance, Tenant shall attorn to the then owner who owns or acquires title
to the Building or Project and will recognize such owner a Landlord under
this Lease. Tenant hereby waives any right to terminate this Lease because of
any such foreclosure.
(b) Notwithstanding the foregoing, and without the consent of Tenant,
the holder of any mortgage or deed of trust or the beneficiary thereunder
shall have the right to elect to be subject and subordinate to this Lease,
with such subordination to be effective upon such terms and conditions as
such holder or beneficiary may direct and which are not inconsistent with the
provisions of this Paragraph 18.
(c) Tenant shall at any time and from time to time upon not less than
twenty (20) days prior notice by Landlord, execute, acknowledge and deliver
to Landlord a statement in writing (i) certifying that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications), and the dates to which the Basic Annual Rent, Additional Rent
and other charges have been paid in advance, if any, (ii) stating whether or
not to the best knowledge of Tenant, Landlord is in default in the
performance of any covenant, agreement or condition contained in this Lease
and, if so, specifying each such default of which Tenant may have knowledge
and (iii) acknowledging (if true) the accuracy of such other facts as are
included in such statement by Landlord. Any such statement delivered pursuant
to this subparagraph may be relied upon by any prospective purchaser of the
fee of the Building or the Project or any mortgagee, ground lessor or other
like encumbrancer thereof or any assignee of any such encumbrancer upon the
Building or the Project. If Tenant fails to deliver such statement within
such time, such failure shall, at Landlord's option, be deemed to be Tenant's
irrevocable appointment of Landlord as Tenant's special attorney-in-fact in
connection with the preparation and execution of any such statement and such
execution by Landlord as Tenant's attorney-in-fact shall be conclusive upon
Tenant that (A) this Lease is in full force and effect, without modification
except as may be represented by Landlord, (B) that there are no uncured
defaults in Landlord's performance, (C) that with the exception of the amount
indicated in Item 12 of the Basic Lease Provisions, not more than one month's
Basic Annual Rent has been paid in advance and (D) that any other statements
of fact included by Landlord in the statement are correct. Tenant shall be
liable for all loss, cost or expense resulting from the failure of any ground
lease, sale or funding of any loan caused by any material misstatement
contained in any estoppel certificate supplied by Tenant or resulting from
failure of Tenant to deliver any such statement.
(d) In addition, and not in lieu of the foregoing, within ten (10) days
after the Commencement Date, Tenant shall execute and deliver to Landlord a
certificate substantially in the form of Exhibit "D" attached hereto,
indicating thereon any exceptions thereto which Tenant claims to exist at
that time. Failure of Tenant to execute and deliver such certificate within
such time period shall constitute an acceptance of the Premises and the
acknowledgment and agreement by Tenant that the statements included in
Exhibit "D" are true and correct without exception.
19. SALE BY LANDLORD
In the event of a sale, transfer or conveyance by Landlord of the
Building, the same shall operate to release Landlord from any and all
liability under this Lease. Tenant's right to quiet possession of the
Premises shall not be disturbed so long as Tenant shall pay the rent and
observe and perform all of the provisions of this Lease to be observed and
performed by Tenant, unless this Lease is terminated pursuant to specific
provisions relating thereto contained herein. If any security deposit has
been made by Tenant, Landlord may transfer the balance of such security
deposit (after lawful deductions and in accordance with California Civil Code
Section 1950.7), after notice to Tenant, to the purchaser, and thereupon
Landlord shall be discharged from any further liability with respect thereto.
20. NONLIABILITY AND INDEMNIFICATION OF LANDLORD; INSURANCE
(a) LANDLORD'S NONLIABILITY. Subject to Paragraphs 20('s) and 21 below,
Landlord and its partners, and their respective partners, officers, agents
and employees shall not be liable for Tenant's loss of income or extra
expense or for any damage to Tenant's property, nor for loss of damage to
property by theft or otherwise, nor
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for any injury or damage which may be sustained by the person, goods, wares,
merchandise or property of Tenant, its employees, invitees or customers or
any other person in or about the Premises caused by or resulting from any
peril which may affect the Premises, including without limitation fire,
explosion, falling plaster, steam, electricity, gas, water or rain, which may
leak or flow from or into any part of the Premises, or from the breakage,
leakage, obstruction or other defects of the pipes, sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures of the same,
whether such damage or injury results from conditions arising upon the
Premises or upon other portions of the Building, or from other sources.
Landlord shall not be liable for any damages arising from any act or neglect
of any other tenant or occupant of the Project or any of their officers,
employees, agents, representatives, customers and invitees and Tenant hereby
waives any such right it may have against Landlord. Tenant shall give prompt
notice to Landlord in case of fire or accidents in the Premises or of defects
therein or in the fixtures or equipment. Any claim, defense, or other right
of Tenant arising in connection with this Lease or with negotiations before
this Lease was signed shall be barred unless Tenant files an action or
interposes a defense based thereon within one hundred eighty (180) days after
the date of the alleged event on which Tenant is basing its claim, defense or
right.
(b) INDEMNIFICATION. Subject to Paragraphs 20('s) and 21 below, and to
the fullest extent permitted by law, Tenant shall indemnify, hold Landlord
harmless from and defend Landlord, its agents and employees against any and
all claims, losses, costs, damages, expenses or liabilities, including
without limitation reasonable attorney's fees and costs of defense, for death
of or any injury or damage to any person or property whatsoever, when such
death, injury or damage has been caused in part or in whole by the act,
neglect, fault, or omission of Tenant, its assignees, sublessees, agents,
servants, employees or invitees or which arises from Tenant's use of the
Premises or the conduct of Tenant's business. Tenant shall further indemnify,
hold Landlord harmless from and defend Landlord, it's agents and employees
against and from any and all claims arising from any breach or default in the
performance of any obligation on Tenant's part to be performed under the
terms of this Lease. This indemnification provision shall not require payment
as a condition precedent to recovery, and Tenant's defense obligation
hereunder shall include the obligation, upon demand, to defend Landlord
against any claim or action of the type herein specified by counsel
reasonably satisfactory to Landlord. In addition, if any person not a party
to this Lease shall institute any other type of action against Tenant in
which Landlord, involuntarily and without cause, shall be made a party
defendant and which is related to this Lease, Tenant shall indemnify, hold
Landlord harmless from and defend Landlord from all liabilities by reason
thereof.
(c) TENANT'S INSURANCE. Tenant hereby agrees to maintain in full force
and effect at all times during the term of this Lease, at its own expense,
for the protection of Tenant and Landlord, as their interests may appear,
policies of insurance which afford the following coverages:
(i) Workers' Compensation coverage as required by law, including
United States Longshoremen and Harborworkers Act (if applicable),
together with Employer's Liability coverage with a limit of not less
than $1,000,000 per occurrence.
(ii) Comprehensive General Liability or Commercial General
Liability Insurance with respect to the Premises and the operations on
or on behalf of Tenant in, on or about the Premises, including but not
limited to Blanket Contractual Liability, Owners Protective, Broad Form
Property Damage Liability Coverage, Personal Injury, Completed
Operations, Products Liability (if applicable), Fire Legal Liability,
Host Liquor Liability (or Liquor Liability, if applicable), protection
and indemnity (if applicable) and Owned and Non-Owned Automobile
Coverage in an amount not less than $1,000,000 per occurrence. The
policy for such insurance shall contain the following provisions: (A)
severability of interest; (B) cross liability; (C) an endorsement naming
Landlord and any other parties in interest designated by Landlord as an
additional insured; (D) an endorsement stating, in substance, "such
insurance as is afforded by this policy for the benefit of the Landlord
and any other additional insured shall be primary as respects to any
liability or claims arising out of the occupancy of the Premises by the
Tenant, or Tenant's operations and any insurance carried by Landlord, or
any other additional insured shall be non-contributory;" (E) with
respect to improvements or alterations permitted under this Lease,
contingent liability and builder's risk insurance; (F) an endorsement
allocating to the Premises the full amount of liability limits required
by this Lease; (G) coverage must be on an "occurrence basis;" "Claims
Made" forms are not acceptable; and (H) an aggregate limit of no less
than $3,000,000 per annum available for occurrences at the Premises, if
such policy has an aggregate limit.
(iii) Insurance providing protection against "All Risks" of
physical loss, including without limitation insurance against fire,
theft, burglary, structural collapse, sprinkler leakage, earthquake and
flood (if required by a lender holding a security interest in the
Project), vandalism and malicious mischief, in all amount sufficient to
cover the full cost of replacement (with no deductible for depreciation
and with the understanding that such amount shall be adjusted not more
frequently than on an annual basis) of all improvements and betterments
to the Premises, all of Tenant's fixtures, furnishings, equipment,
furniture, trade fixtures and other personal property located or used in
the Premises and loss of income or extra expense including losses
resulting from an interruption in or a failure of the Intrabuilding
Network Cabling. All policies of such insurance shall contain no
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coinsurance or contribution provisions and shall name Landlord and
the lending institution(s), if any, as additional insured's and/or loss
payable in accordance with such lender's or lenders' requirements. For
the purposes of this subparagraph (iii), the Premises shall consist of
the Rentable Area shown in the floor plan attached hereto as Exhibit
"A-1," and consist of the cubic space spanning from the floor slab to
the bottom surface of the floor slab of the floor immediately above the
Premises (the "upper slab"), without any offsets or deductions for
columns and other structural portions of the Building or vertical
penetrations that are included for the special use of Tenant. Such cubic
space shall include the plenum space which is bounded by the lower
surface of the upper slab and the suspended ceiling of the Premises. The
proceeds of such insurance, so long as this Lease remains in effect,
shall be used to repair or replace the improvements, trade fixtures and
personal property in the Premises so insured. Upon any termination of
this Lease pursuant to Paragraph 14(a) above, the proceeds of such
insurance relating to improvements to the Premises shall be the property
of Landlord.
(iv) Loss of income or business interruption insurance providing
protection against any peril included within the classification "All
Risk," including but not limited to insurance against sprinkler leakage.
The minimum limit of the coverage provided in division (ii) above shall
be adjusted upward only at the expiration of each third (3rd) full calendar
year as follows: Not less than sixty (60) days prior to the relevant
adjustment date, Landlord shall request such insurance brokerage firm as is
then placing insurance for Landlord (the "Reviewing Broker") to review
Tenant's then existing liability insurance coverage, to review the then use
of the Premises and the claims history with respect thereto and to recommend,
in writing, the amount of coverage to be carried by Tenant pursuant to
division (ii). Such recommendation shall be based upon the then use of the
Premises and the liability claims history with respect to the Premises and
shall be certified by the Reviewing Broker to be consistent with amounts of
coverage generally recommended by such Reviewing Broker for similar types of
tenants or users of property with uses similar to that of the Premises in the
geographical area which includes the Premises. If the Reviewing Broker shall
recommend an increase(s) in the amount of coverage then provided by Tenant
under division (ii), Tenant shall promptly increase its coverage to the
recommended amount(s). In no event shall there by any reduction in the amount
of coverage provided by Tenant under division (ii) below the initial amounts
set forth herein, notwithstanding any recommendation by the Reviewing Broker.
The failure of the Reviewing Broker to require any additional insurance
coverage shall not be deemed to relieve Tenant from any obligations under
this Lease.
(d) DEDUCTIBLES. Tenant may, with the written consent of Landlord, elect
to have reasonable deductibles in connection with the policies of insurance
required to be maintained by Tenant under subparagraph (c)(iii).
(e) CERTIFICATES OF INSURANCE. Tenant shall deliver to Landlord at least
thirty (30) days prior to the time such insurance is first required to be
carried by Tenant, and thereafter at least thirty (30) days prior to the
renewal date or expiration of each such policy, Certificates of Insurance
evidencing the above coverage with limits not less than those specified
above. Such Certificates, with the exception of Workers' Compensation, shall
add Landlord and each of its partners, and its and their subsidiaries,
affiliates, partners, officers, directors, agents, employees, lenders and
other persons or entities designated by Landlord and having an insurable
interest in the Premises as additional insured and shall expressly provide
that the interest or same therein shall not be affected by any breach by
Tenant of any policy provision for which such Certificates evidence coverage.
Neither Landlord nor any other person or entity named as an additional
insured pursuant to this subparagraph shall have any obligation under such
policies, such as payment of premiums, giving of notices and the like.
Further, all Certificates shall expressly provide that not less than thirty
(30) days prior unqualified written notice shall be given to Landlord or
Landlord's lender in the event of material alteration to, non-renewal of, or
cancellation of the coverages evidenced by such Certificates. Notwithstanding
the foregoing, Landlord may, at any time, from time to time, inspect and/or
copy and approve any and all insurance policies required hereunder.
(f) LANDLORD'S INSURANCE. Landlord shall at all times during the term of
this Lease maintain in effect a policy or policies of (i) "All Risk"
insurance, together with sprinkler leakage and vandalism and malicious
mischief coverage, covering the Building and the Project, including
Landlord's interest in all tenant improvements in the Premises, and (ii)
Lessor's "Risk Only" Liability Insurance. Landlord may also, but shall not be
required to, maintain flood and earthquake insurance with respect to the
Project, rental interruption insurance assuring that the rent under this
Lease will be paid to Landlord for a period of not less than twelve (12)
months if the Premises are destroyed or rendered inaccessible by a risk
insured against under the foregoing coverage, and any other types of
insurance that Landlord, in its business judgment, may determine is necessary
or desirable to obtain. The cost of all such insurance shall be included in
the Operating Expenses to be reimbursed by Tenant to Landlord pursuant to
Paragraph 3.
(g) INCREASE IN COVERAGE. Upon demand, Tenant shall provide Landlord, at
Tenant's expense, with such increased amount of existing insurance, and such
other insurance in such limits, as Landlord may require and such other hazard
insurance as the nature and condition of the Premises may require in the sole
judgment of Landlord to afford Landlord adequate protection for risks of
Tenant to be insured hereunder.
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(h) NO CO-INSURANCE. If on account of the failure of Tenant to comply
with the provisions of this Paragraph, Landlord or any additional insured is
adjudged a coinsurer by its insurance carrier, then any loss or damage
Landlord or such additional insured shall sustain by reason thereof shall be
borne by Tenant and shall be immediately paid by Tenant upon receipt of a
bill therefor and evidence of such loss.
(i) INSURANCE LIMITS. Landlord makes no representation that the limits
of liability specified to be carried by Tenant under the terms of this Lease
are adequate to protect Tenant against Tenant's undertakings under this
Lease. In the event Tenant believes that any such insurance coverage called
for under this Lease is insufficient, Tenant shall provide, at its own
expense, such additional insurance as Tenant deems adequate. In no event
shall the limits of any coverage maintained by Tenant pursuant to this
Paragraph 20 be considered as limiting Tenant's liability under this Lease.
(j) LANDLORD'S NEGLIGENCE. Nothing contained herein shall operate to
relieve Landlord from any loss, damage, injury, liability, claim, cost or
expense which it is determined by a court of competent jurisdiction was
proximately caused by its willful misconduct or its own sole negligence or
the sole negligence of its agents or employees.
(k) GENERAL REQUIREMENTS. All insurance required to be carried by Tenant
hereunder shall be with companies rated A:X, or better, in the then most
recent edition of Best's Insurance Guide and licensed to provide the relevant
insurance in the State of California. Such insurance shall be primary
insurance (and not "excess over") as respects Landlord and any other
additional insured(s) designated by Landlord and not contributory with any
other available insurance. All policies or such insurance shall each contain
an unqualified provision that the insurer will not cancel, deny renewal or
materially amend the coverage provided by such policy without first giving
Landlord and any additional insured(s) thirty (30) days' prior written
notice. All policies and certificates delivered by Tenant pursuant to this
Paragraph shall contain liability limits not less than those set forth
herein, shall list the additional insured(s) and shall specify all
endorsements and special coverages required by this Paragraph. Any insurance
required to be maintained by Tenant may be maintained by Tenant pursuant to
so-called "blanket" policies of insurance so long as (i) the Premises is
specifically identified therein (by rider, endorsement or otherwise) as
included in the coverage provided, (ii) the limits of the policy arc
applicable on a "per location" basis to the Premises and (iii) such policies
otherwise comply with the provision of this Lease. The term "term of this
Lease" shall mean, for the purposes of this Paragraph, the period commencing
on the date Tenant is given access to the Premises for any purpose through
the later of the expiration or termination of the Lease term or the date
Tenant surrenders physical possession of the Premises to Landlord. With
respect to the Comprehensive General Liability insurance required to be
obtained by Tenant under this Lease, the foregoing general requirements are
Subject to the specific requirements set forth in subparagraph (c)(ii),
above.
(l) In the event that Tenant fails to procure, maintain and/or pay for
at the times and for the durations specified in this Lease, any insurance
required by this Paragraph, or fails to carry insurance required by any
governmental requirement, Landlord may (but without obligation to do so) at
any time or from time to time, and without notice, procure such insurance and
Tenant agrees to pay the sums so paid by Landlord together with interest
thereon at the interest rate set forth in Paragraph 37(a) below, and any
costs or expenses incurred by Landlord in connection therewith, within ten
(10) days following Landlord's written demand to Tenant for such payment.
21. WAIVER OF SUBROGATION
Landlord and Tenant each hereby waives any and all rights of recovery
against the other, and against any other tenant or occupant of the Building
and the Project and against the officers, employees, agents,
representatives, customers and invitees of such other party and of such other
tenant or occupant of the Building and the Project for loss of or damage to
such waiving party or its property or the property of others under its
control, to the extent that such loss or damage is insured against under any
policy of insurance required to be carried by such waiving party pursuant to
(the provisions of this Lease (or any other policy of insurance carried by
such waiving party in lieu thereof) at the time of such loss or damage. The
foregoing waiver shall be effective whether or not a waiving party shall
actually obtain and maintain the insurance which such waiving party is
required to obtain and maintain pursuant to this Lease (or any substitute
therefor). The policies of insurance which Landlord and Tenant are required
to maintain under this Lease shall provide that the insurance company shall
waive all right of recovery by way of subrogation against either Landlord or
Tenant in connection with any damage covered by the subject policy.
22. ATTORNEYS' FEES
In the event of any legal action or proceeding brought by either party
against the other arising out of this Lease or in which this Lease is
asserted as a defense, the prevailing party shall be entitled to recover
from the other party reasonable attorneys' fees incurred in such action in an
amount determined by the court, in addition to its costs incurred in such
action, and such amounts shall be included in any judgment rendered in
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such action or proceeding. For purposes of this provision, in any unlawful
detainer or other action or proceeding instituted by Landlord based upon any
default or alleged default of Tenant hereunder, Landlord shall be deemed the
prevailing party if (a) judgment is entered in favor of Landlord or (b) prior
to trial or judgment Tenant shall pay all or any portion of the rent claimed
by Landlord, eliminate the condition(s), cease the act(s) or otherwise cure
the omission(s) claimed by Landlord to constitute a default by Tenant
hereunder. If Landlord becomes involved in any litigation or dispute,
threatened or actual, by or against anyone not a party to the Lease, but
arising by reason of or related to any act of omission of Tenant or any of
the Tenant Parties, Tenant agrees to pay Landlord's reasonable attorneys'
fees and other costs incurred in connection with the litigation or dispute
regardless of whether a lawsuit is actually filed.
23. WAIVER
No waiver by Landlord of any provision of this Lease or of any breach by
Tenant hereunder shall be deemed to be a waiver of any other provision
hereof, or of any subsequent breach by Tenant of the same or any other
provision. Landlord's consent to or approval of any act by Tenant requiring
Landlord's consent or approval shall not be deemed to render unnecessary the
obtaining of Landlord's consent to or approval of any subsequent act of
Tenant. Furthermore, any custom or practice which may develop between the
parties in the administration of this Lease shall not be construed to waive
or lessen the right of Landlord to insist upon the performance by Tenant in
strict accordance with all of the terms, covenants, agreements, conditions,
and provisions of this Lease. No act or thing done by Landlord or Landlord's
agents during the term of this Lease shall be deemed an acceptance of a
surrender of the Premises, unless done in a writing signed by Landlord.
Tenant's delivery of keys to any employee or agent of Landlord shall not
operate as a termination of this Lease or a surrender of the Premises unless
done pursuant to a written agreement to such effect executed by Landlord. The
acceptance of any rent by Landlord following a breach of this Lease by Tenant
shall not constitute a waiver by Landlord of such breach (other than the
failure to pay the particular rent so accepted) or any other breach unless
such waiver is expressly stated in a writing signed by Landlord. The
acceptance of any payment from a debtor in possession, a trustee, a receiver
or any other person acting on behalf of Tenant or Tenant's estate shall
not waive or cure a default under Paragraph 26(A)(vi) or waive the
provisions of Paragraphs 16 or 25.
24. NOTICES
All notices, requests, payments, consents or approvals ("notices") which
Landlord or Tenant may be required, or may desire, to serve on the other
shall be in writing and may be served, by personal service or as an
alternative to personal service, by mailing the same by registered or
certified mail, postage prepaid and return receipt requested, addressed as
set forth in Item 13 of the Basic Lease Provisions, or addressed to such
other address or addresses as either Landlord or Tenant may from time to time
designate to the other in the manner provided for herein. All notices shall
be deemed effective upon receipt. If personally delivered, notices shall be
deemed received at the time of delivery. If any notice is sent by mail, the
same shall be deemed delivered and received on the date of receipt or refusal
indicated on the return receipt. Any notice provided for herein may also be
sent by facsimile transmission or by any reputable overnight courier so long
as written confirmation of delivery of such notice is obtained by the
sender. In either of these cases, a confirmation copy of such notice shall be
sent by registered or certified mail, return receipt requested, and such
notice shall be deemed to be received one day after it is sent.
25. INSOLVENCY OR BANKRUPTCY
In no event shall this Lease be assigned or assignable by operation of
law and in no event shall this Lease be an asset or Tenant in any
receivership, bankruptcy, insolvency, or reorganization proceeding.
26. DEFAULTS AND REMEDIES
(a) The occurrence of any of the following shall constitute a material
default and breach of this Lease by Tenant:
(i) Any failure by Tenant to pay the rent or to make any other
payment required to be made by Tenant hereunder at the time specified for
payment. Landlord shall give Tenant three (3) days' written notice of any
such default, which notice shall be in lieu of, and not in addition to,
any notice required under Section 1161, ET SEQ., of the California Code
of Civil Procedure, as amended;
(ii) The abandonment of the Premises by Tenant. Abandonment is
herein defined to include, but is not limited to, any absence by Tenant
from the Premises for five (5) days or longer, without notice from
Landlord being required and regardless of whether Tenant is otherwise
in default under this Lease;
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(iii) Any failure by Tenant to observe and perform any other
provision of this Lease to be observed or performed by Tenant, where such
failure continues for ten (10) days (except where a different period of
time is specified in this Lease) after written notice by Landlord to
Tenant; provided, however, that any such notice shall be in lieu of, and
not in addition to, any notice required under Section 1161, ET SEQ., of
the California Code of Civil Procedure, as amended. If the nature of such
default is such that the same cannot reasonably be cured within such ten
(10) day period, Tenant shall not be deemed to be in default if Tenant
shall within such period commence such cure and thereafter diligently
prosecute the same to completion;
(iv) Tenant makes or has made or furnishes or has furnished any
warranty, representation or statement to Landlord in connection with this
Lease, or any other agreement to which Tenant and Landlord are parties,
which is or was false or misleading in any material respect when made or
furnished;
(v) Subject to the provisions of Paragraph 16(h) above, any
substantial portion of the assets of Tenant is transferred, or any
material obligation is incurred by Tenant, unless such transfer or
obligation is incurred in the ordinary course of Tenant's business,
or in good faith for fair equivalent consideration, or with Landlord's
consent; and/or
(vi) The making by Tenant of any general assignment for the benefit
of creditors; the filing by or against Tenant of a petition to have
Tenant adjudged a bankrupt or of 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); 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 sixty (60) days; 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 sixty (60) days; or Tenant's convening of a meeting of
its creditors or any class thereof for the purpose of effecting a
moratorium upon or composition of its debts.
(b) In the event of any such default by Tenant, then in addition to any
other remedies available to Landlord at law or in equity, Landlord shall have
the immediate option to terminate this Lease and all rights of Tenant
hereunder by giving written notice of such intention to terminate. In the
event that Landlord shall elect to so terminate this Lease then 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 rental loss which Tenant
proves reasonably could have been avoided; plus
(iii) the worth at the time of award of the amount by which the
unpaid rent for the balance of the term of this Lease after the time of
award exceeds the amount of such rental loss that Tenant proves
reasonably could have been avoided; plus
(iv) any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its obligations
under this Lease or which in the ordinary course of things would be likely
to result therefrom including any amount expended by Landlord to mitigate
damages; plus
(v) the unamortized value of the Building Standard Work (as
described in Exhibit "B") made to the Premises, calculated by reference
to the length of the term of the Lease that would have remained had the
Lease not been terminated; plus
(vi) the amount of rent, if any, that is postponed or abated, as
well as the amount of any other rent or operating concession, any lease
take over obligation assumed by Landlord, any lease subsidy paid by
Landlord or any other bonus, lease cancellation payment, inducement or
concession for Tenant's entering into this Lease; and
(vii) at Landlord's election, such other amounts in addition to or
in lieu of the foregoing as may be permitted from time to time by
applicable California law.
(c) As used in subparagraphs (b)(i) and (b)(ii) above, the "worth at the
time of award" is computed by allowing interest at the rate determined
pursuant to Paragraph 37 below. As used in subparagraph (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%).
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(d) In the event of any default by Tenant, Landlord shall 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 at the cost of and for
the account of Tenant, all in accordance with applicable California law.
(e) In the event of the abandonment of the Premises by Tenant or in the
event that Landlord shall elect to re-enter as provided above or shall take
possession of the Premises pursuant to legal proceedings or pursuant to any
notice provided by law, then if Landlord does not elect to terminate this
Lease as provided in this Paragraph 26, Landlord may from time to time,
without terminating this Lease, either recover all rental as it becomes due
or relet the Premises or any part thereof for such term or terms and at such
rental or rentals and upon such other terms and conditions as Landlord in its
sole discretion may deem advisable, with the right to make alterations and
repairs to the Premises. Election by Landlord to proceed pursuant to this
subparagraph shall be made upon written notice to Tenant and shall be deemed
an election of the remedy described in California Civil Code Section
1951.4 and, unless Landlord relets the Premises, Tenant shall have the right
to sublet or assign subject to the prior written consent of Landlord. Such
consent shall not be unreasonably withheld and shall be subject to all of
the terms and provisions of Paragraph 16.
(f) In the event that Landlord shall elect to so relet, then rentals
received by Landlord from such reletting shall 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; fourth,
to the payment of rent due and unpaid hereunder; and the residue, if any,
shall be held by Landlord and applied in payment of future amounts as the
same may become due and payable hereunder. Should the rent for such
reletting, during any month for which the payment of rent is required
hereunder, be less than the rent payable during that month by Tenant
hereunder, then Tenant shall pay such deficiency to Landlord immediately upon
demand therefor by Landlord. Such deficiency shall be calculated and paid
monthly. Tenant shall also pay to Landlord, as soon as ascertained, any costs
and expenses incurred by Landlord in such reletting or in making such
alterations and repairs not covered by the rentals received from such
reletting.
(g) No re-entry, removal of property or taking possession of the
Premises by Landlord pursuant to this Paragraph 26 shall be construed as an
election to terminate this Lease unless a written notice of such intention be
given to Tenant or unless the termination thereof be decreed by a court of
competent jurisdiction. Furthermore, neither Landlord's acts of maintenance
or preservation NOR its efforts to relet NOR the appointment of a receiver to
collect rents shall constitute a termination of Tenant's right to possession
unless a written notice of such intention is provided by Landlord to Tenant.
Notwithstanding any reletting without termination by Landlord because of any
default by Tenant, Landlord may at any time after such reletting elect to
terminate this Lease for any such default.
(h) In any action for unlawful detainer commenced by Landlord against
Tenant by reason of any default hereunder, the reasonable rental value of the
Premises for the period of the unlawful detainer shall be the amount of rent
reserved in this Lease for such period, unless Landlord or Tenant shall prove
to the contrary by competent evidence. The rights and remedies reserved to
Landlord herein, including those not specifically described, shall be
cumulative and, except as otherwise provided by California statutory law in
effect at the time, Landlord may pursue any or all of such rights and
remedies, or any other right available at law or equity, at the same time or
otherwise. Without limitation, Tenant acknowledges that Tenant's failure to
timely comply with the requirements of Paragraph 18(a) may result in a
lender refusing to loan Landlord funds or a buyer refusing to purchase the
Building or Project on favorable terms (or at all), causing Landlord
substantial monetary damages.
(i) All covenants and agreements to be performed by Tenant under this
Lease shall 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, other
than rent, required to be paid by it or fails to perform any other act on its
part to be performed, and such failure continues beyond any applicable grace
period set forth in the Paragraph providing for such obligation (or if no
grace period is set forth in such Paragraph, then the applicable grace
period pursuant to this Paragraph 26), then in addition to any other remedies
provided herein Landlord may but shall not be obligated so to do, without
curing such default or waiving or releasing Tenant from any of its
obligations, make any such payment or perform any such other act on Tenant's
part, including the removal of any offending signs. Landlord's election to
make any such payment or perform any such act on Tenant's part shall not give
rise to any responsibility of Landlord to continue making the same or similar
payments or performing the same or similar acts. Tenant shall, within ten
(10) days after written demand therefor by Landlord, reimburse Landlord for
all sums so paid by Landlord and all necessary incidental costs, together
with interest thereon at the rate determined under Paragraph 37, accruing
from the date of such payment by Landlord; and Landlord shall have the same
rights and remedies in the event of failure by Tenant to pay such amounts as
Landlord would have in the event of a default by Tenant in payment of rent.
(j) Tenant hereby waives, for itself and all persons claiming by and
under Tenant, all rights and privileges which it might have had under any
present or future law, to redeem the Premises or to continue the Lease after
being dispossessed or ejected from the Premises.
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27. HOLDOVER
Tenant shall surrender possession of the Premises immediately after
the expiration of the Lease term or termination of the Lease. If Tenant or
anyone claiming under Tenant holds over after the expiration or earlier
termination of the term hereof without the express written consent of
Landlord, Tenant shall (a) become a tenant at sufferance only at the greater
of (i) two hundred percent (200%) of the Basic Annual Rent then in effect, or
(ii) two hundred percent (200%) of the then prevailing market rent then in
effect upon the date of such expiration or earlier termination (subject to
adjustment as is provided in Paragraphs 2 and 3 hereof and prorated on a
daily basis), and otherwise upon the terms, covenants and conditions herein
specified, (including, without limitation, the payment of Additional Rent) so
fir as applicable, (b) pay all damages sustained by Landlord by reason of
such holding over and (c) indemnify, defend and hold Landlord harmless from and
against any loss or liability resulting from such holding over, including,
but not limited to, any amounts required to be paid to any tenant or
prospective tenant who was to have occupied the Premises after said
termination or expiration and any related attorneys' fees and brokerage
commissions. Acceptance by Landlord of rent after such expiration or earlier
termination shall not constitute a consent to a holdover hereunder, but shall
create only a month-to-month tenancy terminable at the end of any calendar
month by not less than ten (10) days written notice given by either party to
the other party. Further, no payment of money by Tenant to Landlord after the
etrmination of this Lease by Landlord, or after the giving of any notice of
termination to Tenant by Landlord which Landlord is entitled to give Tenant
under this Lease, shall reinstate, continue or extend the term of this Lease
or shall affect any such notice given to Tenant prior to the payment of such
money, it being agreed that after the service of such notice or the
commencement of any suit by Landlord to obtain possession of the Premises,
Landlord may receive and collect when due any and all payments owed by Tenant
under the Lease, and otherwise exercise its rights and remedies. The making
of any such payments by Tenant shall not waive such notice, or in any manner
affect any pending suit or judgment obtained. The foregoing provisions of
this Paragraph are in addition to and do not affect Landlord's right of
re-entry or any other rights of Landlord hereunder or as otherwise provided
by law.
28. CONDITION OF PREMISES
Tenant acknowledges that neither Landlord nor any agent of Landlord has
made any representation or warranty with respect to the Premises, the
Building or the Project or with respect to the suitability of any part of the
Project for the conduct of Tenant's business. The taking of possession of the
Premises by Tenant shall conclusively establish that the Premises and the
Building were at such time in good and sanitary order, condition and repair.
Landlord and its agents shall not be liable for any latent defect in the
Premises or in the Building. Tenant shall give prompt notice to Landlord in
case of fire or accidents in the Premises or in the Building, or of defects
therein or in the fixtures and equipment.
29. QUIET POSSESSION
Upon Tenant's paying the rent hereunder and observing and performing all
of the covenants, conditions and provisions on Tenant's part to be observed
and performed hereunder, Tenant shall have quiet possession of the Premises
for the entire term hereof, subject to all the provisions of this Lease.
30. TENANT'S SIGNS
(a) Tenant may, at its sole cost and expense, place its signs displaying
its logo and graphics on the entrance doors to the Premises and in hallways
or elevator lobbies on floors wholly leased by Tenant. On partial floors
leased by Tenant, Tenant, at its sole cost and expense, may place its signs
on entrance doors to the Premises provided the number, size, color, style,
material and location of such signs conform to Landlord's graphics program
for the Building and Landlord shall place directional signs to the Premises,
at Tenant's expense, at a location determined by Landlord.
(b) Landlord at its own cost and expense shall place a directory board
in the Building lobby. Landlord shall cause Tenant's name to be affixed
thereto, at Tenant's cost.
(c) Unless specifically set forth to the contrary in an addendum to
this Lease, Tenant shall not place any sign on the exterior of the Building,
or within the Building if such sign may be seen from outside of (he Building
or on any Building sign monument or other device constructed for the
placement of tenant signs.
(d) All Tenant signs installed by Landlord or Tenant shall comply with
all applicable requirements of all governmental authorities having
jurisdiction and shall be installed in a good and workmanlike manner. Such
signs shall be maintained and kept in good repair at Tenant's sole cost and
expense.
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31. CONFLICT OF LAWS
This Lease shall be governed by and construed pursuant to the laws of
the State of California, and the venue of any action or proceeding under
this Lease shall be Orange County, California.
32. COMMON FACILITIES; PARKING
Tenant shall have the non-exclusive right, in common with Landlord and
other tenants and occupants of the Project and their employees, agents and
business visitors, to the use of all common facilities which constitute a
part of the Project, subject to such reasonable rules and regulations
relating to such use as Landlord may from time to time establish. Common
facilities located within the Building include any building lobby, elevators,
rest rooms, stairways and stairwells, elevator lobbies and all common
entrances, corridors, passageways and serviceways which are not located
within the Premises of Tenant or the premises of another tenant of the
Building. Common facilities located outside of the Building include
landscaping, hardscaping, a parking structure (the "Project Parking
Structure"), all sidewalks, driveways, vehicle and pedestrian entrances and
accessways, loading docks, truck tunnels, truck parking and truck turn-around
areas, vehicle and pedestrian ramps serving the Project, and any pedestrian
walkway connecting the Building and the Project Parking Structure. The common
facilities located outside of the Building but included within the
definition of the Project are those areas which are depicted on Exhibit
"A-3" attached hereto. Landlord may make changes at any time and from time to
time to the common facilities, without any liability to Tenant, and no such
change shall entitle Tenant to any abatement of rent. Landlord shall at all
times have the sole and exclusive control of the common facilities.
Tenant shall keep all common facilities free and clear of any
obstructions created or permitted by Tenant or resulting from Tenant's
operations and shall not conduct an assembly on the common facilities without
Landlord's prior consent. Nothing herein shall affect the right of Landlord
at any time to remove any persons not authorized to use the common facilities
or to prevent the use of such facilities by unauthorized persons. Landlord
reserves the right, from time to time, to (A) make alterations in or
additions to file common facilities, including without limitation,
constructing new structures or changing the location, size, shape and/or
number of the driveways, entrances, parking spaces, parking areas, loading
and unloading areas, landscape areas and walkways, (B) close temporarily any
of the common facilities of the Project for maintenance purposes as long as
reasonable access to the Premises remains available, (C) designate property
to be included in or eliminate property from the common facilities of the
Project, and (D) use the common facilities of the Project while engaged in
making alterations in or additions or repairs to the Project.
Tenant shall have such parking rights in and to parking contracts for
spaces located in the Project Parking Structure as are set forth in the
Parking Agreement attached hereto as Exhibit "E." All agreements by Tenant
and Tenant's employees for monthly usage of spaces shall be made directly
with the operator of the Project Parking Structure.
33. 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.
34. BROKERS
Tenant warrants that it has had no dealings with any real estate broker
or agent in connection with the negotiation of this Lease, excepting only
the broker named in Item 10 of the Basic Lease Provisions ("Broker"), and
that it knows of no other real estate broker or agent who is or might be
entitled to a commission in connection with this Lease. Landlord covenants
and agrees to pay all real estate commissions due in connection with this
Lease to Broker as follows: (i) Landlord shall pay to Broker an amount equal
to four percent (4%) of Basic Annual Rent and Additional Rent for the first
twelve (12) months of the term of this Lease within ten (10) days of full
execution and delivery or this Lease, and (ii) provided Tenant has not been
in default of the Lease, Landlord shall pay to Broker an amount equal to
four percent (4%) of Basic Annual Rent and Additional Rent for the second
twelve (12) months of the term of this Lease within ten (10) days of the
end of the seventeenth (17th) month of the term. Tenant agrees to pay and
hold Landlord harmless from and defend Landlord against any cost, expense or
liability for any compensation claimed by any broker, finder or agent other
than Broker employed or claiming to have been employed by Tenant in
connection with this Lease or with the negotiation of this Lease. Landlord
and Tenant acknowledge that payment shall not be a condition precedent to
recovery upon the foregoing indemnification provision.
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35. NAME
Tenant shall not, without the written consent of Landlord, use the
name, insignia or logotype of the Building or the Project for any purpose
other than as the address of the business to be conducted by Tenant in the
Premises, and in no event shall Tenant acquire any rights in or to such name,
insignia and/or logotype. Furthermore, Tenant shall not use any picture of
the Building or Project in its advertising, stationery or in any other
manner. Tenant shall, when referring to the Building, refer to the Building
by the name or address assigned thereto, from time to time, by Landlord and
shall refer to its location as the "the Offices at South Coast Plaza."
References to the Building and its location shall not be made by Tenant in
any other manner. Landlord expressly reserves the right, in its sole and
absolute discretion, at any time to change the name, insignia, logotype or
street address of the Building or the Project without in any manner being
liable to Tenant.
36. EXAMINATION OF LEASE
Submission of this instrument for examination, negotiation or signature
by Tenant does not constitute an offer to lease or a reservation of the
Premises for Tenant or an option for Tenant to lease the Premises, and it is
not effective as a Lease or otherwise until at least one counterpart, duly
executed by authorized persons of Landlord and Tenant, has been delivered to
each party thereto. Without limiting the generality of the foregoing, Tenant
acknowledges that this Lease and any material amendments hereto are subject
to the approval of Landlord's lender with respect to the Project. Promptly
upon execution of this Lease by Tenant, Landlord shall submit the same to its
lender for approval. Delivery by Landlord to Tenant of a copy of this Lease
or of any amendment hereto fully executed by Landlord and Tenant shall
constitute notice to Tenant that Landlord has obtained the approval of its
lender with respect to this Lease or such amendment.
37. INTEREST ON TENANT'S OBLIGATIONS; LATE CHARGE
(a) Any amount due from Tenant to Landlord which is not paid when due
shall bear interest at the maximum rate per annum which Landlord is permitted
by law to charge, from the date such payment is due until paid, but the
payment of such interest shall not excuse or cure any default by Tenant under
this Lease. Such rate shall remain in effect after the occurrence of any
breach or default hereunder by Tenant to and until payment of the entire
amount due.
(b) In the event Tenant is more than ten (10) days late in paying any
installment of rent due under this Lease, Tenant shall pay Landlord a late
charge equal to five percent (5%) of the delinquent installment of rent,
provided that in no event shall the amount of such late charge be less than
One Hundred Dollars ($100.00). The parties agree that it would be impractical
or extremely difficult to fix Landlord's actual damages due to a late payment
by Tenant and that the amount of such late charge represents a reasonable
estimate of the cost and expense that would be incurred by Landlord in
processing each delinquent payment of rent by Tenant and that such late
charge shall be paid to Landlord as liquidated damages for each delinquent
payment pursuant to California Civil Code Section 1671. The parties further
agree that the payment of late charges and the payment of interest provided
for in subparagraph (a) above are distinct and separate from one another in
that the payment of interest is to compensate Landlord for the use of
Landlord's money by Tenant, while the payment of a late charge is to
compensate Landlord for the additional administrative expense incurred by
Landlord in handling and processing delinquent payments. It is understood
that the payment of any late charge by Tenant and the acceptance thereof by
Landlord shall not be deemed a waiver by Landlord of its rights regarding any
default by Tenant under this Lease.
38. TIME
Time is of the essence of this Lease with respect to the performance of
every provision of this Lease in which time of performance is a factor.
39. DEFINED TERMS AND MARGINAL HEADINGS
The words "Landlord" and "Tenant" as used herein shall each include the
plural as well as the singular and, when applicable, shall refer to actions
taken by their respective representatives. If more than one person is named
as Tenant the obligations of such persons are joint and several. The headings
to the Paragraphs of this Lease are not a part of this Lease and shall have
no effect upon the construction or interpretations of any part hereof.
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40. PRIOR AGREEMENTS; SEPARABILITY
This Lease and the exhibits and any addenda hereto contain all of the
agreements of the parties hereto with respect to any matter covered or
mentioned in this Lease, and no prior agreement, understanding or
representation pertaining to any such matter shall be effective for any
purpose. No provision of this Lease may be amended or added to except by an
agreement in writing signed by the parties hereto or their respective
successors in interest. No verbal agreement or implied covenant shall be held
to vary the terms hereof, any statute, law or custom to the contrary
notwithstanding. No employee or agent of Landlord shall have authority, by
letter, memorandum or other written communication, to amend, vary or delete
any provision of this Lease or any exhibit hereto, unless such written
instrument bears the signature of Landlord. If any term or provision of this
Lease the deletion of which would not adversely affect the receipt of any
material benefit by either party hereunder shall be held invalid, illegal or
unenforceable to any extent, the remainder of this Lease shall not be
affected thereby and each term and provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
41. TRAFFIC AND ENERGY MANAGEMENT
(a) Tenant and its employees shall comply with South Coast Air Quality
Management District Regulation 15 and any other environmental regulation
and/or program now or hereafter applicable to the Project. Landlord and
Tenant agree to cooperate and use their best efforts to participate in
governmentally mandated and voluntary traffic management programs generally
applicable to businesses located in Costa Mesa, California or to the Project
and, initially, shall encourage and support van and car pooling by office
workers and service employees and shall encourage and support staggered and
flexible working hours for employees to the fullest extent permitted by the
requirements of Tenant's business. Neither this Paragraph nor any other
provision in this Lease, however, is intended to or shall create any rights
or benefits in any other person, firm, company, governmental entity or the
public.
(b) Landlord and Tenant agree to cooperate and use their best efforts to
comply with any and all guidelines or controls imposed upon either Landlord
or Tenant by federal or state governmental organizations or by any energy
conservation association to which Landlord is a party concerning energy
management.
(c) All costs, fees and assessments and other charges paid by Landlord
to any governmental authority or voluntary association in connection with any
program of the types described in this Paragraph, and all costs and fees paid
by Landlord to any governmental authority, voluntary association or third
party pursuant to or to implement any such program, shall be included in
Operating Expenses for the purpose of Paragraph 3, whether or not
specifically listed in such Paragraph. Any breach by Tenant of any of its
covenants in this Paragraph 41 may result in penalties or fees being assessed
against Landlord or the Project. These penalties or fees shall not be part of
Building Operating Expenses or Project Operating Expenses but instead shall
be payable by Tenant on demand of Landlord.
42. CORPORATE/PARTNERSHIP/TRUST AUTHORITY
Each individual executing this Lease on behalf of Landlord and Tenant
represents and warrants that the execution and delivery of this Lease on
behalf of the party for whom such person is executing is duly authorized,
that the or she is authorized to execute and deliver this Lease and that this
Lease is binding upon such party in accordance with its terms. If Tenant is a
corporation, Tenant shall, within ten (10) days after execution of this
Lease, deliver to Landlord a certified copy of a resolution of the Board of
Directors of Tenant or any executive committee thereof authorizing or
ratifying the execution of this Lease. Failure of Tenant to provide such
resolution shall not, however, relieve Tenant of its obligations pursuant to
this Lease. If Tenant is a partnership or trust, Tenant shall deliver those
certificates or written assurances from the partnership or trust as Landlord
may reasonably request.
43. NO LIGHT, AIR OR VIEW EASEMENT
Any diminution or shutting off of light, air or view by any structure
which may be erected on lands adjacent to the Project shall in no way affect
this Lease, abate any payment owed by Tenant under the Lease, or otherwise
impose any liability on Landlord.
44. NON-DISCLOSURE OF LEASE TERMS
Landlord and Tenant agree that the terms of this Lease are confidential
and constitute proprietary information of the parties hereto. Disclosure of
the terms hereof could adversely affect the ability of Landlord to negotiate
with other tenants. Each of the parties hereto agrees that such party, and
its respective partners, officers, directors, employees, agents, real estate
brokers and sales persons and attorneys, shall not disclose any
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H.T.S.
-25-
of the material terms and conditions of this Lease to any other person
without the prior written consent of the other party hereto except pursuant
to an order of a court of competent jurisdiction. Provided, however, that
Landlord may disclose the terms hereof to any lender now or hereafter having
a lien on Landlord's interest in the Project or any portion thereof, and
either party may disclose the terms hereof to its respective independent
accountants who review its respective financial statements or prepare its
respective tax returns, to any prospective transferee of all or any portions
of their respective interests hereunder (including a prospective sublessee or
assignee of Tenant), to any lender or prospective lender to such party, to
any governmental entity, agency or person to whom disclosure is required by
applicable law, regulation or duty of diligent inquiry and in connection with
any action brought to enforce the terms of this Lease, on account of the
breach or alleged breach hereof or to seek a judicial determination of the
rights or obligations of the parties hereunder.
45. FORCE MAJEURE
Any covenants, conditions, provisions or agreements on the part of
Landlord to perform any act or thing for the benefit of Tenant shall not be
deemed breached if Landlord is unable to furnish or perform the same by
virtue of a strike, lockout, laws, rules, orders, ordinances, directions,
regulations or requirements of any federal, state, county or municipal
authority, labor trouble or any other cause whatsoever beyond Landlord's
control, nor shall Tenant's rent be abated by reason of such inability on the
part of Landlord. Whenever under the provisions of this Lease, Landlord is
required or agrees to take certain actions, Landlord's obligation shall be
deemed fulfilled if Landlord causes such action to be taken by any other
person.
46. MISCELLANEOUS
(a) At the expiration or earlier termination of this Lease, Tenant shall
execute, acknowledge and deliver to Landlord, within five (5) days after
written demand from Landlord to Tenant, any quitclaim deed or other document
which may be reasonably requested by any reputable title insurance company to
remove this Lease as a matter affecting title to the Premises on a
preliminary title report or title policy issued with respect to the Project.
(b) Tenant acknowledges that the exterior demising walls of the Premises
and the area between the finished ceiling of the Premises and the slab of
the Building floor thereabove have not been leased to Tenant and the use
thereof together with the right to install, maintain, use, repair and replace
pipes, ducts, conduits and wires leading through, under or above the Premises
in locations which will not materially interfere with Tenant's use of the
Premises are hereby reserved by Landlord.
(c) All amounts payable hereunder shall be paid in lawful money of the
United States which shall be legal tender at the time of payment. When no
other time is stated herein for payment, payment of any amount due from
Tenant to Landlord hereunder shall be made within ten (10) days after
Tenant's receipt of Landlord's invoice or statement therefor.
(d) Tenant shall, upon written request by Landlord, amend this Lease in
any manner reasonably requested by any actual or prospective ground lessor of
or lender to Landlord, provided that any such amendment shall not materially
impair any rights or remedies of Tenant hereunder.
(e) LANDLORD AND TENANT EACH ACKNOWLEDGES THAT IT HAS HAD THE ADVICE OF
COUNSEL OF ITS CHOICE WITH RESPECT TO ITS RIGHTS TO TRIAL BY JURY UNDER THE
CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF CALIFORNIA. EACH PARTY
EXPRESSLY AND KNOWINGLY WAIVES AND RELEASES ALL SUCH RIGHTS TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE
OTHER ON ANY MATTERS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE,
TENANT'S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM FOR INJURY OR
DAMAGE.
M.D. H.T.S. J.E.S CS
------------------- -----------------
Landlord's INITIALS Tenant's INITIALS
(f) This Lease may be executed in several counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the
same instrument.
(g) This Lease shall be strictly construed neither against Landlord nor
Tenant.
(h) Neither this Lease nor any memorandum hereof shall be recorded by
either Landlord or Tenant.
(i) The obligations of the indemnifying party under each and every
indemnification and hold harmless provision in this Lease shall survive the
expiration or earlier termination of this Lease to and until the last to
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H.T.S.
-26-
occur of (i) the last date permitted by law for the bringing of any claim or
action with respect to which indemnification may be claimed by the
indemnified party against the indemnifying party under such provisions or
(ii) the date on which any claim or action for which indemnification may be
claimed under such provision is fully and finally resolved and, if
applicable, any compromise thereof or judgment or award thereon is paid in
full by the indemnifying party and the indemnified party is reimbursed by
the indemnifying party for any amounts paid by the indemnified party in
compromise thereof or upon a judgment or award thereon and in defense of such
action or claim, including reasonable attorneys' fees incurred.
(j) In no event shall the review, approval, inspection or examination by
Landlord of any item to be reviewed, approved, inspected or examined by
Landlord under the terms of this Lease be deemed to be an approval of, or
representation or warranty as to, the adequacy, accuracy, sufficiency or
soundness of any such item or the quality or suitability of such item for
its intended use. Any such review, approval, inspection or examination by
Landlord shall be for the sole purpose of protecting Landlord's interests in
the Building and the Project under this Lease, and no third parties shall
have any rights pursuant thereto.
(k) The obligations of Landlord herein are intended to be binding only
on the property of the entity acting as Landlord and shall not be personally
binding, nor shall any resort be had to the private properties of the general
partners thereof or any employee or agent of Landlord. Subject to the
provisions of Paragraph 18 to the contrary, any lien obtained to enforce any
judgment obtained by Tenant against Landlord and any levy of execution
thereon shall be subject and subordinate to any lien, mortgage or deed of
trust to which Paragraph 18 applies or may apply.
47. INTENTIONALLY OMITTED
48. ADDENDA
The provisions in this Paragraph 48 shall supersede and override any
other provision in this Lease to the extent the same are inconsistent.
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H.T.S.
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EXHIBIT "A-1" Exhibit 10.9
FLOOR PLAN(S) OF PREMISES
[Rectangular Floor Plan with shaded area representing the rented premises.]
PRELIMINARY FLOOR 4
PLEASE REVIEW LOCATION
OF DEMISING WALLS
SQUARE FOOTAGES HAVE Comerica Bank Tower
NOT BEEN FINALIZED 511 Anton Blvd.
Costa Mesa, CA
- ------------------------------------------------------------------------------
Suite #: 4xx Tenant: IMGIS Corporation Suite Usable: 8,731 STEVEN ??
10#: 4-12 Corridor Ext: 0 SYSTEMS
Usable: 8,731
Date: 12/17/96 Rentable: 10,219
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J.E.S. CS
H.T.S.
EXHIBIT "A-2" Exhibit 10.9
PLOT PLAN OF BUILDING
[Plot Plan Graphic showing L-shaped Parking Structure for 2,200 cars in
Southeast corner, TGI Friday's in the Northeast corner, Bank of America (5
story) in the Northwest corner, Edwards Cinema 4-plex in the Southwest corner
and Great Western S&L (15 story) and Restaurant in the center, all with Anton
Boulevard running on the North.]
TWO TOWN CENTER COMPLEX
South Coast Plaza Town Center Costa Mesa, California
LANDLORD'S TENANT'S
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H.T.S.
EXHIBIT "A-3" Exhibit 10.9
PLOT PLAN OF PROJECT
[Plot Plan Graphic showing L-shaped Parking Structure for 2,200 cars in
Southeast corner, TGI Friday's in the Northeast corner, Bank of America (5
story) in the Northwest corner, Edwards Cinema 4-plex in the Southwest corner
and Great Western S&L (15 story) and Restaurant in the center, all with Anton
Boulevard running on the North.]
TWO TOWN CENTER COMPLEX
South Coast Plaza Town Center Costa Mesa, California
LANDLORD'S TENANT'S
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H.T.S.
EXHIBIT "A-4"
RENTABLE AREA
The term "Rentable Area" as used in the lease to which this exhibit is
attached the "Lease") shall mean:
(a) As to each floor of the Building on which the entire space
rentable to tenants is or will be leased to one tenant (hereinafter referred
to as a "Single Tenant Floor"), Rentable Area attributable to such lease
shall be determined by the Standard Method for Measuring Floor Area in
Office Buildings ANSI Z65.1-1980 ("BOMA") provided that the Rentable Area or
the Building shall include all of (and the Rentable Area of the Premises
therefore shall include a portion of) (i) the Building lobby and (ii) any
covered or enclosed common facilities which constitute a part of the
Building and which are maintained by Landlord for the common benefit of all
tenants of the Building and the area occupied by any mechanical, heating,
ventilating and air conditioning equipment which serves the Building but
Which is located outside thereof.
(b) As to each floor of the Building on which space is or will be
leased to more than one tenant, Rentable Area attributable to each such lease
shall be determined by BOMA provided that the Rentable Area of the Premises
shall be measured from the exterior of all walls separating such premises
from any public corridors or other public areas on such floor, and the
centerline of all walls separating such premises from other areas leased or
to be leased to other tenants on such floor, and provided further that the
Rentable Area of the Building shall include all of (and the Rentable Area of
the Premises therefore shall include a portion of) (i) the area covered by
the elevator lobbies, corridors, rest rooms, mechanical rooms, electrical
rooms and telephone closets situated on the floor on which the Premises is
located; (ii) the Building lobby, and (iii) that portion of the covered or
enclosed common facilities which constitute a part of the Building and which
are maintained by Landlord for the common benefit of all tenants of the
Building and the area occupied by any mechanical, heating, ventilating and
air conditioning equipment which serves the Building but which is located
outside thereof.
(c) The Rentable Area of the Building and the Project shall be deemed
to be 283,453 square feet and 686,979 square feet, respectively, for purposes
of the Lease. The Rentable Area contained within the Premises let pursuant
to the Lease initially shall be the number of square feet set forth in Item
2 of the Basic Lease Provisions.
(d) Prior to the Commencement Date, and from time to time thereafter at
Landlord's option, Landlord shall determine the actual Rentable Area of the
Premises, the Building and the Project, respectively, which such
determinations shall be conclusive, and thereon Tenant's Building Expense
Percentage, Tenant's Project Expense Percentage and Basic Annual Rent under
the Lease shall be adjusted accordingly.
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H.T.S.
EXHIBIT "B"
WORK LETTER AGREEMENT
[TENANT CONSTRUCTS]
In connection with the lease to which this Work Letter is attached (the
"Lease"), Landlord and Tenant hereby agree to the terms and conditions set
forth in this Work Letter relating to the construction of the tenant
improvements in the Premises ("Tenant's Work"). This Work Letter is
essentially organized chronologically and addresses the issues of the
construction of the Premises, in sequence, as such issues will arise during
the actual construction of the Premises. All capitalized terms used but not
defined herein shall have the meanings given such terms in the Lease.
1. GENERAL.
(a) The purpose of this Agreement is to set forth how Tenant's Work
(as defined in Paragraph 5 below) in the Premises is to be constructed, who
will undertake the construction of Tenant's Work, who will pay for the
construction of Tenant's Work, and the time schedule for completion of the
construction of Tenant's Work.
(b) Except as defined in this Agreement to the contrary, all terms
utilized in this Agreement shall have the same meanings ascribed to them in
the Lease. When services, consents or approvals are to be provided by or on
behalf of Landlord, the term "Landlord" shall include Landlord's agents,
contractors, employees and affiliates.
(c) The provisions of the Lease, except where clearly inconsistent or
inapplicable to this Agreement, are incorporated into this Agreement.
(d) Tenant's Work shall be constructed pursuant to this Agreement by
Tenant and at Tenant's sole expense.
2. COMMENCEMENT DATE. The "Commencement Date" of the Lease shall be as
determined pursuant to Item 8 of the Basic Lease Provisions of the Lease
and this Paragraph 2. That date has been determined based upon the
following:
(a) DESIGN PERIOD. As provided in Paragraph 3(b) below, Landlord
shall provide to Tenant (i) the Base Building Plans (as defined in Paragraph
3.B. below) for the Building and the Premises sufficient to allow Tenant to
prepare the Working Drawings (as defined in Paragraph 3(d) below) and (ii)
all rules, regulations, instructions and procedures promulgated by Landlord
with respect to tenant design and/or construction in the Building (the
"Building Requirements"). Tenant shall submit for Landlord's approval the
Space Plan for Tenant's Work in accordance with Paragraph 3(c) below.
Subsequent to approval of the Space Plan for Tenant's Work and pursuant to
the terms of Paragraph 3 below, Tenant shall prepare and submit for
Landlord's approval the Working Drawings, the Engineering Drawings (as
defined in Paragraph 3(e) below), and the Final Plans (as defined in
Paragraph 3(f) below), and shall also prepare and submit for Landlord's
approval a schedule of special finishes required by Tenant. Tenant shall
thereafter obtain all governmental approvals and permits required for Tenant
to commence Tenant's Work.
(b) CONSTRUCTION AND MOVE-IN PERIOD. Landlord shall deliver to
Tenant and its Contractor (as defined below) access to the Premises (and any
other required portions of the Building and the Project) commencing as set
forth in Paragraph 1 of the Lease Tenant shall complete all Tenant's Work in
Compliance with all applicable laws, statutes, codes, rules and regulations
(collectively, "Laws"). Tenant shall also obtain the appropriate permits
necessary to allow Tenant to commence to construct Tenant's Work continuously
and without interruption. Such period includes the time for Tenant, as a part
of Tenant's Work, to install in the Premises Tenant's freestanding work
stations, fixtures, furniture, equipment and telecommunication and computer
cabling systems, and also includes the time for Tenant to move into the
Premises.
(c) DELAY OF COMMENCEMENT DATE. Notwithstanding anything to the
contrary contained in the Lease or this Agreement, the date stated in Item 8
of the Basic Lease Provisions for commencement of the Lease term (i.e., March 1,
1997) shall be deferred (i.e., pushed later in time) by a number of days
equal to the number of days of delay in Substantial Completion (as defined
below) of Tenant's Work that is caused by any Landlord Delay, as defined
below.
(d) CERTAIN DEFINITIONS. The following terms shall have the following
meanings:
(i) The term "Landlord Delay" as used in the Lease or this
Agreement shall mean any delay in the completion of Tenant's Work which is
due to any act or omission of Landlord (wrongful, negligent or otherwise),
its agents or contractors (including acts or omissions while acting as agent
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or contractor for Tenant). The term Landlord Delay shall include, but shall
not be limited to any delay in the giving of authorizations or approvals by
Landlord beyond the time periods therefor set forth herein.
(ii) The term "Substantial Completion" shall mean: (A) Tenant
has sufficiently completed all the work required to be performed by Tenant in
accordance with this Agreement (except for minor punch list items which
Tenant shall thereafter promptly complete), and (B) Tenant has obtained a
certificate of, occupancy for the premises OR has obtained a temporary
certificate of occupancy for the Premises and has made an affirmative
covenant to Landlord that it will satisfy the conditions of such temporary
certificate of occupancy with due diligence.
(iii) The term "Lease" shall mean the entire lease document
referred to in the first paragraph of this Agreement, including the printed
lease form, the typed addenda paragraphs thereto and all exhibits thereto.
If Tenant believes that any act or omission by Landlord or any
employee or agent of Landlord is or will constitute a Landlord Delay
resulting in a delay in completion of Tenant's Work, Tenant shall
hand-deliver to Landlord a notice so stating and identifying in reasonable
detail the act or omission alleged to constitute a Landlord Delay. If
Landlord eliminates such alleged problem within forty-eight (48) hours after
receipt of such notice, then such act or omission shall not be deemed to
constitute a Landlord Delay. Nothing contained in clause (i) above shall be
deemed or construed to constitute any permitted and timely disapproval by
Landlord pursuant to this Agreement as a Landlord Delay or be deemed to
interfere with or limit Landlord's rights to schedule construction activities
at the Project for other tenants.
3. DESIGN OF TENANT'S WORK. Tenant shall arrange for design of
Tenant's Work in accordance with the following:
(a) SELECTION OF DESIGNER AND ENGINEER. In connection with the design
of Tenant's Work, Tenant shall select an architect or designer ("Designer")
and shall use an engineer designated by Landlord ("Engineer") who will
perform the work required of it hereunder at competitive rates. The Designer
and the Engineer shall each be familiar with all applicable Laws and Building
Requirements to the extent such Building Requirements are provided to Tenant
within the time specified in Paragraph 3(b) below. The Designer shall be
selected by Tenant subject to Landlord's consent, which consent shall not be
unreasonably withheld so long as each person or firm has all required state
and local licenses and reasonable experience with projects of the size and
scope of Tenant's Work. Such required approval shall be deemed given unless
Landlord shall disapprove such person or firm by written notice to Tenant
given within five (5) business days after Landlord's receipt of written
notice from Tenant to Landlord identifying such person of firm and
accompanied by a written statement as to the experience or such person or
firm. This procedure shall be repeated until the Designer is finally
approved, or deemed approved by Landlord.
(b) BASE BUILDING PLANS. Landlord shall deliver to Tenant (i)
instructions and Building plans and specifications (the "Base Building
Plans") covering the Premises and such other portions of the Building as
necessary for Tenant to design and construct Tenant's Work pursuant to this
Agreement and (ii) the Building Requirements.
(c) PREPARATION AND APPROVAL OF SPACE PLAN. Tenant shall submit to the
Designer all additional information including occupancy requirements for
the Premises ("Information") necessary to enable the Designer to prepare a
space plan showing all demising walls, corridors, entrances, exits, doors,
interior partitions, and the locations of all offices, conference rooms,
computer rooms, the reception area, file room and other support areas (the
"Space Plan") and the Working Drawings. The Designer shall incorporate
into the Working Drawings those items described in Exhibit "B" to the
Lease which Tenant is required to utilize in the construction of Tenant's
Work.
Tenant shall cause the Designer to submit to Landlord the Space
Plan for Landlord's review and approval. Landlord's approval of such
Space Plan shall not be unreasonably withheld or delayed by Landlord, and
shall be deemed given unless Landlord shall disapprove the same by written
notice to Tenant within five (5) business days after Landlord's receipt of
the same. Landlord's disapproval shall be based only upon reasonable and
material reasons (which are defined to be (i) adverse effect on the
structural integrity of the Building; (ii) possible damage to the Building
Systems; (iii) non-compliance with applicable codes and other Laws; (iv)
adverse effect on the exterior appearance of the Building; or (v)
incompatibility with the Project including its design standards and standard
materials (each, a "Design Problem")) and upon disapproval Landlord shall
return the revised Space Plan to Tenant. In such event, Landlord shall
require, and Tenant shall make, the changes necessary in order to correct the
Design Problems and shall return the revised Space Plan to Landlord, which
Landlord shall approve or disapprove within five (5) business days after
Landlord receives the revised Space Plan. This procedure shall be repeated
until the Space Plan is finally approved by Landlord and written approval has
been delivered to and received by Tenant. The Space Plan as finally approved
pursuant to this Paragraph 3(c) is herein referred to as the "Approved Space
Plan."
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(d) PREPARATION AND APPROVAL OF WORKING DRAWINGS. Promptly after
the Space Plan is finally approved by Landlord, Tenant shall submit to
Landlord drawings prepared by the Designer ("Working Drawings") which shall
be consistent with the Approved Space Plan, shall be compatible with the
design, construction and equipment of the Building, shall comply with all
Laws, shall be capable of logical measurement and construction, shall contain
all such information as may be required for the construction of Tenant's
Work, and the preparation of the Engineering Drawings, and shall contain all
partition locations, plumbing locations, air conditioning system and duct
work, special air conditioning requirements, reflected ceiling plans, office
equipment locations, and special security systems. Subject to Paragraph 14
below, such Working Drawings must incorporate the items required by Landlord
for use in the Building, as set forth in Exhibit "B" attached to the Lease.
The Working Drawings may be submitted in one or more stages and at one or
more times.
Landlord's approval of such Working Drawings shall not be
unreasonably withheld or delayed by Landlord so long as the same are
consistent with the Approved Space Plan, and shall be deemed given unless
Landlord shall disapprove the same by written notice to Tenant given within
five (5) business days after Landlord's receipt of a complete set of the
Working Drawings. Landlord's disapproval shall be based only upon Design
Problems(s) disclosed by such Working Drawings. If Landlord disapproves such
Working Drawings in the manner and within the time provided in this Paragraph
3(d), Landlord's notice of disapproval shall designate the specific changes
reasonably required to be made to the Working Drawings in order to correct
any Design Problem. Tenant shall make the changes necessary in order to
correct any such Design Problem and shall return the revised Working Drawings
to Landlord, which Landlord shall approve or disapprove within five (5)
business days after Landlord receives the revised Working Drawings. This
procedure shall be repeated until all of the Working Drawings are finally
approved by Landlord and written approval has been delivered to and received
by Tenant. The Working Drawings as finally approved pursuant to this
Paragraph 3(d) are herein referred to as the "Approved Working Drawings."
(e) PREPARATION AND APPROVAL OF ENGINEERING DRAWINGS. After the
Working Drawings are finally approved by Landlord, Tenant shall submit to
Landlord for Landlord's review and approval engineering drawings prepared by
the Engineer, showing complete mechanical, electrical, plumbing, HVAC,
telecommunication, and computer cabling plans ("Engineering Drawings"). The
Engineering Drawings may be submitted in one or more stages and at one or
more times.
Landlord shall approve the Engineering Drawings within five (5)
business days after receipt of a complete set of the same or designate by
notice given within such time period to Tenant the specific changes
reasonably required to be made to the Engineering Drawings in order to
correct any Design Problem, and shall return the Engineering Drawings to
Tenant. Tenant shall make the minimum changes necessary in order to correct
any such Design Problem and shall return the revised Engineering Drawings to
Landlord, which Landlord shall approve or disapprove within five (5) business
days after Landlord receives the revised Engineering Drawings. This procedure
shall be repeated until the Engineering Drawings are finally approved by
Landlord and written approval has been delivered to and received by Tenant.
The Engineering Drawings as finally approved pursuant to this Paragraph 3(e)
are herein referred to as the "Approved Engineering Drawings."
(f) INTEGRATION OF APPROVED WORKING DRAWINGS AND APPROVED
ENGINEERING DRAWINGS INTO FINAL PLANS. Promptly after Landlord has approved
the Approved Engineering Drawings, Tenant shall cause the Designer to
integrate the Approved Working Drawings with the Approved Engineering
Drawings (collectively, "Final Plans") and deliver the Final Plans to
Landlord. Landlord shall approve the Final Plans within three (3) business
days after receipt of a complete set of the same or designate by notice given
within such time period to Tenant the specific changes reasonably required to
be made to the Final Plans in order to correct any Design Problems and shall
return the Final Plans to Tenant. Tenant shall make the minimum changes
necessary in order to correct any such Design Problem and shall return the
revised Final Plan to Landlord, which Landlord shall approve or disapprove
within three (3) business days after Landlord receives the revised Final
Plans. This procedure shall be repeated until the Final Plans are finally
approved by Landlord and written approval has been delivered to and received
by Tenant. The Final Plans as finally approved pursuant to this Paragraph
3(f) are herein referred to as the "Approved Final Plans."
(g) GOVERNMENTAL APPROVALS. Promptly following approval of the
Approved Final Plans, Tenant shall apply for and obtain all governmental
approvals and permits required for Tenant to commence Tenants, Work.
Similarly, as and when required, Tenant shall obtain all additional
governmental permits and approvals necessary to continuation and completion
of Tenant's Work. All applications and other steps necessary to obtain such
approvals and permits shall be the sole responsibility of Tenant. However,
Landlord shall cooperate as reasonably requested from time to time without
requirement that Landlord incur any out of pocket costs or assume any
liabilities as a part of such cooperation.
4. CONTRACTOR, REVIEW OF PLANS AND CONSTRUCTION OF TENANT'S WORK.
(a) SELECTION OF CONTRACTOR. Tenant shall select a contractor
("Contractor"), subject to the approval of Landlord in writing. Such
approval shall not be unreasonably withheld so long as such
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Contractor has all required state and local licenses and has reasonable
experience with projects of the size and scope of Tenant's Work. For the
purposes of this provision, Tenant may submit for approval by Landlord up
to five (5) general contractors so that Tenant may obtain from such general
contractors competitive bids for Tenant's Work. Each such Contractor shall
be subject to approval in accordance with the standards set forth in this
Paragraph 4(a). All subcontractors shall be as selected by Tenant and its
Contractor, and as reasonably approved by Landlord.
Tenant may enter into a construction contract with the Contractor
at a mutually agreed upon price, or, at Tenant's election, in the exercise of
its sole discretion, Contractor shall be selected by Tenant pursuant to
competitive bidding. In either case, the construction contract shall provide
for progress payments.
(b) LANDLORD'S REVIEW RESPONSIBILITIES. Tenant agrees and
understands that the review of all plans pursuant to this Agreement by
Landlord is solely to protect the interests of Landlord in the Building and
the Premises, and Landlord shall not be responsible for the correctness or
accuracy of any such plans or compliance of such plans with applicable Laws.
(c) ACTUAL REVIEW COSTS. Tenant shall reimburse to Landlord
Landlord's actual and documented costs incurred in approving the Space Plan,
the Working Drawings and the Engineering Drawings. Tenant shall not pay to
Landlord any fee for profit, overhead or general conditions in connection
with the construction of Tenant's Work.
(d) CONSTRUCTION OF TENANT'S WORK. Promptly following the issuance
of all governmental approvals of Tenant's Work required for Tenant to
commence the same, Tenant shall commence Tenant's Work and shall thereafter
diligently pursue Tenant's Work to completion. Tenant's Work shall
substantially comply with the Approved Final Plans, all applicable
requirements for all governmental authorities having jurisdiction of Tenant's
Work and all applicable provisions of the Lease.
In performing Tenant's Work, Tenant, its Contractor and all
subcontractors shall access the Building and Premises from the doors and
entrances designated by Landlord. In no event shall there be any construction
traffic relating to the performance of Tenant's Work through the ground floor
lobby of the Building.
All Tenant's Work shall comply with all rules and regulations
adopted by Landlord for the safety of persons and property in and about the
Project, for the care and cleanliness of the Project and for the preservation
of the normal operations of the Project and its occupants, including but not
limited to rules and regulations regulating the usage of the Building
elevators and loading docks, the usage of staging areas outside of the
Premises and the hours during which operations involving noise, dust and
odors may be performed. Will respect to all such matters, Tenant and its
Contractor shall comply with all directions of Landlord's construction
manager.
Within three (3) business days following Substantial Completion of
Tenant's Work, Tenant's Contractor and Landlord's construction manager shall
conduct a walk-through of the Premises and compile a "punch-list" of items to
be completed, corrected or replaced. Within twenty (20) days after such
walk-through, Tenant shall cause all matters on such punch-list to be
completed, corrected or replaced as applicable.
5. TENANT'S WORK. The term "Tenant's Work" shall mean all improvements
shown in the approved Final Plans as integrated by the Designer, and, to the
extent specified in the Approved Final Plans, all signage, freestanding
workstations, built-ins, related cabinets, reception desks, conference room
tables to the extent specified in the mill work or comparable contracts, all
telecommunication equipment and related wiring, and all carpets and floor
coverings, but, except as provided above, Tenant's Work shall not include any
personal property of Tenant. In connection with the foregoing, it is
understood and agreed that Landlord shall have no construction obligation
whatsoever with respect to the Premises.
6. DELIVERY. Promptly after execution and delivery of the Lease by
Landlord and by Tenant, Landlord shall deliver to Tenant possession of the
Premises in its "as-is" condition.
7. PAYMENT FOR TENANT'S WORK. Tenant shall be solely responsible to
pay for all costs of design and construction of Tenant's Work.
8. CHANGE ORDERS. In the event that Tenant requests any changes to the
Approved Space Plan, Approved Working Drawings, Approved Engineering
Drawings or Approved Final Plans, Landlord shall not unreasonably withhold
its consent to any such changes, and shall grant its consent to such
changes within five (5) business days after Landlord's receipt of a set
thereof or portion thereof clearly indicating the changes requested,
provided the changes do not create a Design Problem. If such changes
increase the cost of constructing the Tenant's Work, Tenant shall pay
Contractor the increased costs, on a monthly basis according to the
invoices for the items relating to the changes provided by Contractor.
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9. BUILDING STANDARD ITEMS. Tenant shall integrate Landlord's Building
Standard items in the Tenant Work. Tenant may substitute for such Building
Standard items of equal or higher quality at Tenant's election. All such
items shall be subject to the approval process provided for in this
Agreement.
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EXHIBIT "C"
RULES AND REGULATIONS
1. The sidewalks, entrances, lobby, passages, courts, elevators,
vestibules, stairways, corridors and halls of the Building and Project
shall not be obstructed or used for any purpose other than ingress and
egress. The halls, passages, entrances, lobby, elevators, stairways,
balconies and roof are not for the use of the general public, and Landlord
shall in all cases retain the right to control and prevent access thereto
by all persons whose presence, in the judgment of Landlord, shall be
prejudicial to the safety, character, reputation and interests of the
Project and its tenants, provided that nothing herein contained shall be
construed to prevent such access to persons with whom Tenant normally deals
only for the purpose of conducting its business on the Premises (such as
clients, customers, office suppliers and equipment vendors, and the like)
unless such persons are engaged in illegal activities in the Project.
Neither Tenant nor any employee of Tenant shall go upon the roof of the
Building without the prior written consent of Landlord.
2. No awnings or other projections shall be attached to the outside
walls of the Building. No curtains, blinds, shades or screens shall be
attached to or hung in, or used in connection with, any window or door of the
Premises other than Landlord's standard drapes. All electric ceiling fixtures
hung in offices or spaces along the perimeter of the Building must be
fluorescent, of a quality, type, design and bulb color approved by Landlord.
Neither the interior nor the exterior of any windows shall be coated or
otherwise sunscreened without the written consent of Landlord. No hanging
planters, television sets or other objects shall be attached to or suspended
from the ceiling by any tenant without the prior written consent of Landlord.
3. Except as provided in Paragraph 30 of the Lease, no sign,
advertisement, notice or handbill shall be exhibited, distributed, painted
or affixed by Tenant on, about or from any part of the Premises, the
Building or the Project without the prior written consent of Landlord. If
Landlord shall have given such consent at the time, whether before or
after the execution of the Lease, such consent shall in no way operate as a
waiver or release of any of the provisions hereof or of the Lease, and
shall be deemed to relate only to the particular sign, advertisement or
notice so consented to by Landlord and shall not be construed as dispensing
with the necessity of obtaining the specific written consent of Landlord
with respect to each and every such sign, advertisement or notice other
than the particular sign, advertisement or notice, as the case may be, so
consented to Landlord. In the event of the violation of the foregoing by
Tenant, Landlord may remove or stop same without any liability, and may
charge the expense incurred in such removal or stoppage to Tenant. Interior
signs on doors and directory tablets shall be inscribed, painted or
affixed for Tenant by Landlord at Tenant's expense, and shall be of a size,
color, material and style acceptable to Landlord. The directory tablet will
be provided exclusively for the display of the names and locations of
tenants only and Landlord reserves the right to exclude any other names
therefrom. Nothing may be placed on the exterior of corridor walls or
corridor doors other than Landlord's standard lettering.
4. The sashes, sash doors, skylights, windows and doors that reflect or
admit light and air into hills, passageways or other public places in the
Building shall not be covered or obstructed by Tenant, nor shall any bottles,
parcels or other articles be placed on the windowsills. Tenant shall see that
the windows, transoms and doors of the Premises are closed and securely
locked before leaving the Building and must observe strict care not to leave
windows open when it rains. Tenant shall exercise extraordinary care and
caution that all water faucets or water apparatus are entirely shut off
before Tenant or Tenant's employees leave the Building, and that all
electricity, gas or air shall likewise be carefully shut off, so as to
prevent waste or damage. Tenant shall cooperate with Landlord in obtaining
maximum effectiveness or the cooling system by closing blinds when the sun's
rays fall directly on the windows of the Premises. Tenant shall not tamper
with or change the setting of any thermostats or temperature control valves
installed by Landlord. All lights in Tenant's premises shall be turned off at
night and on weekends and holidays when such premises are not in use.
5. The toilet rooms, water and wash closets and other plumbing fixtures
shall not be used for any purpose other than those for which they were
constructed, and no sweepings, rubbish, rags, or other substances shall be
thrown therein. All damages resulting from any misuse of the fixtures shall
be borne by the tenant who, or whose subtenants, assignees or any of whose
servants, employees, agents, visitors or licensees shall have caused the same.
6. Tenant shall not mark, paint, drill into, or in any way deface any
part of the Premises, the Building or the Project. No boring, cutting or
stringing of wires or laying of linoleum or other similar floor coverings or
painting or wood staining of fixtures or equipment shall be permitted, except
with the prior written consent of Landlord and only as Landlord may direct.
The location of telephone boxes, call boxes and other equipment affixed to
any premises shall be subject to Landlord's approval.
7. No bicycles, vehicles, birds or animals of any kind, other than those
assisting handicapped persons, shall be brought into or kept in or about
the Premises, and no cooking shall be done or permitted by Tenant in the
Premises, except that the preparation of coffee, tea, hot chocolate and
similar items for Tenant and its employees shall be permitted provided
power shall not exceed that amount which can be provided by a 30 amp
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circuit. Tenant shall not cause or permit any unusual or objectionable
odors to be produced or permeate from its Premises.
8. The premises shall not be used for manufacturing or for the storage of
merchandise except as such storage may be incidental to the permitted use of
the Premises. Tenant shall not occupy or permit any portion of the Premises
to be occupied as an office for a public stenographer or typist, or for the
manufacture or sale of liquor, narcotics, or tobacco (including a cigarette
vending machine for use by Tenant's employees) in any form, or as a medical
office, or as a barber or manicure shop, or as an employment bureau without
the express prior written consent of Landlord. Tenant shall not engage or pay
any employees on the Premises except those actually working for Tenant on
the Premises nor advertise for laborers giving an address at the Premises.
The Premises shall not be used for lodging or sleeping or for any immoral or
illegal purposes.
9. Tenant shall not make, or permit to be made any unseemly or disturbing
noises or disturb or interfere with occupants of this or neighboring
buildings or premises or those having business with them, whether by the use
of any musical instrument, radio, phonograph, unusual noise, or in any other
way. Tenant shall not throw anything out of doors, windows or skylights or
down the passageways.
10. No Tenant, or subtenant or assignee of Tenant, if any, nor any of
their servants, employees, agents, visitors or licensees shall at any time
bring or keep upon any premises any inflammable, combustible or explosive
fluid, chemical or substance.
11. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by Tenant, nor shall any changes be made in existing
locks or the mechanisms thereof. Tenant must, upon the termination of its
tenancy, restore to Landlord all keys to stores, offices, and toilet rooms,
either furnished to or otherwise procured by Tenant, and in the event of the
loss of keys so furnished, Tenant shall pay to Landlord the cost of replacing
the same or of changing the lock or locks opened by any lost key if Landlord
shall deem it necessary to make such changes.
12. All removals, and the carrying in or out of any safes, freight,
furniture, and bulky matter of any description must take place during the
hours which Landlord shall determine from time to time, and shall not be done
without the express written consent of Landlord. The moving of safes and
other fixtures and bulky matter of any kind must be done upon previous notice
to the manager of the Building and under such person's supervision, and the
persons employed by Tenant for such work must be acceptable to Landlord.
Landlord reserves the right to inspect all safes, freight and other bulky
articles to be brought into the Building and to exclude from the Building all
safes, freight and other bulky articles which violated any of these Rules and
Regulations or the Lease. Landlord reserves the right to prescribe the weight
and position of all safes, which must be placed upon supports approved by
Landlord to distribute the weight. No tenant shall place a load upon any
floor which exceeds the load per square foot which such floor was designed to
carry and which is allowed by law. Tenant shall be responsible for all
damages occasioned by its movement into or out of the Building of any item
described in this paragraph. All safes, freight and other bulky articles
shall be taken into and removed from the Premises solely on the freight
elevator of the Building and the freight loading and unloading areas adjacent
thereto.
13. Tenant shall not purchase spring water, ice, towels, janitorial or
maintenance or other like services from any person or persons not approved by
Landlord and only at hours and under regulations fixed by Landlord.
14. Landlord shall have the right to prohibit any advertising by Tenant
which, in Landlord's opinion, tends to impair the reputation of the Building
or the Project or the desirability of the Project as an office location.
Upon written notice from Landlord, Tenant shall refrain from or discontinue
such advertising.
15. Landlord reserves the right to exclude from the Building from 6:00
p.m. to 8:00 a.m. on weekdays, after 12:00 noon on Saturdays and at all hours
on Sunday and legal holidays all persons who are not known to the Building
personnel and who do not present a pass to the Building approved by Landlord.
Landlord will furnish passes to persons for whom Tenant requests the same in
writing. Tenant shall be responsible for all persons for whom it requests
passes and shall be liable to Landlord for all acts of such persons. Landlord
shall in no case be liable for damages for any error with regard to the
admission to or exclusion from the Building of any person. In case of an
invasion, mob riot, public excitement or other circumstances rendering such
action advisable in Landlord's opinion, Landlord reserves the right without
any abatement of rent to require all persons to vacate the Building and to
prevent access to the Building during the continuance of the same for the
safety of Tenant and the protection of the Building and the property in the
Building, and no such action by Landlord shall entitle Tenant to any
abatement of rent. Tenant shall observe all security regulations issued by
Landlord and shall comply with all instructions and/or directions of Building
personnel.
16. Any persons employed by any tenant to do janitorial work shall, while
in the Building and outside of the Premises, be subject to and under the
control and direction of the manager of the Building (but not as an
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agent or servant of such manager or of Landlord), and such tenant shall be
responsible for all acts of such persons.
17. All doors opening onto public corridors shall be kept closed, except
when in use for ingress and egress. Tenant shall not prop open or block open
entrance doors to the Building, service doors to the Building or elevator
doors.
18. The requirements of tenants will be attended to only upon application
to the Office of the Building. Employees of Landlord shall not perform any
work outside of their regular duties except under special instructions from
Landlord.
19. Canvassing, soliciting and peddling in the Building and Project are
prohibited and Tenant shall report any such activity to Landlord and
otherwise cooperate to prevent the same.
20. All office equipment of any electrical or mechanical nature shall be
placed by Tenant in the Premises in settings approved by Landlord to absorb
or prevent any vibration, noise and annoyance.
21. No air conditioning unit or other similar apparatus shall be
installed or used by Tenant without the written consent of Landlord.
22. There shall not be used in any space, or in the elevators and public
halls of the Building, either by Tenant or others, any hand trucks except
those equipped with rubber tires and rubber side guards.
23. No vending machine or machines of any description shall be
installed, maintained or operated upon the Premises without the prior written
consent of Landlord.
24. The scheduling of any tenant move-ins shall be subject to the
reasonable discretion of Landlord.
25. If Tenant desires fiber optic, telephone or telegraph connections,
Landlord will direct electricians as to where and how the wires are to be
introduced. No boring or cutting for wires or otherwise shall be made without
directions from Landlord.
26. The term "personal goods or services vendors" as used herein means
persons who periodically enter the Building for the purpose of selling
goods or services to Tenant, other than goods or services which are used
by Tenant only for the purpose of conducting its business on the Premises.
"Personal goods or services" include, but are not limited to, food items,
drinking water and other beverages, food, barbering services and
shoeshining services. Landlord reserves the right to prohibit personal
goods and services vendors from access to the Building except upon such
reasonable terms and conditions, including but not limited to the payment
of a reasonable fee and provision for insurance coverage, as are related to
the safety, care and cleanliness of the Building, the preservation of good
order therein, and the relief of any financial or other burden on Landlord
occasioned by the presence of such vendors or the sale by them of personal
goods or services to Tenant or its employees. If necessary for the
accomplishment of these purposes, Landlord may exclude a particular vendor
entirely or limit the number of vendors who may be present at any one time
in the Building.
27. It shall be the responsibility of each tenant to provide its
employees with keys to its premises. Landlord will under no circumstances
open any premises for any tenant or its employees.
28. Smoking or carrying a lighted cigar, cigarette or pipe anywhere in
the interior of the Building is prohibited. Smoking is also prohibited in the
common areas of the Project, except for those specific areas designated in
writing by Landlord. The location of such areas shall be determined by
Landlord in its sole discretion. Landlord hereby reserves the right from time
to time to designate substitute smoking areas within the common areas in its
sole discretion.
29. No waiver of any rule or regulation by Landlord shall be effective
unless expressed in writing and signed by Landlord. Landlord may waive any
one or more of these rules for the benefit of a particular tenant or tenants,
but no such waiver by Landlord shall be construed as a waiver of such rules
in favor of any other tenant or tenants, nor prevent Landlord from thereafter
enforcing any such rules against any or all tenants of the Building.
3
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EXHIBIT "D"
TENANT'S CERTIFICATE
Two Town Center Associates
3315 Fairview Road
Costa Mesa, CA 92626
Attn: General Partner
Gentlemen:
The undersigned does hereby state, declare, represent and warrant as
follows:
1. The undersigned tenant ("Tenant") has entered into a certain lease
dated ________________________, 19__ (the "Lease") with Two Town Center
Associates, a joint venture ("Landlord"). The Lease covers certain premises
commonly known as Suite __, ________________________, Costa Mesa, CA 92626
(the "Building") and more particularly described in the Lease (the
"Premises").
2. The Lease is in full force and effect and has not been modified,
amended, supplemented or changed, except as set forth, if at all, on Exhibit
"A" attached hereto and all provisions of the Lease and the modifications,
amendments, supplements or changes set forth on Exhibit "A" attached hereto,
if any, are hereby ratified by Tenant. If no amendments are described on
Exhibit "A," then Tenant certifies that there are no amendments,
modifications, supplements or changes to the Lease. Such Lease and any
amendments described on Exhibit "A" constitute the entire agreement between
Landlord and Tenant as to the leasing of the Premises.
3. The commencement date of the Lease was ___________________, 19___
(the "Commencement Date"). Basic Annual Rent and Additional Rent in the full
amounts required by the Lease are payable from the Commencement Date except
as set forth, if at all, on Exhibit "A." Basic Annual Rent and Additional
Rent have been paid through ________________.
4. Tenant has accepted possession of the Premises and is now in
occupancy thereof.
5. The terms of the Lease to be performed by Landlord through the date
hereof have been fully satisfied, including without limitation, all
improvement work to be performed by Landlord with respect to the Premises.
Tenant acknowledges that such work has been completed in all respects.
Landlord has fulfilled all of its duties of an inducement nature, and all
required contributions by Landlord to Tenant on account of improvements by
Tenant to the Premises have been paid and received.
6. As of this date there are no defaults by Landlord pursuant to the
Lease. Tenant has no defenses with respect to its obligations under the
Lease and claims no setoff or counterclaim against Landlord except as set
forth in Exhibit "B" if any.
7. Basic Annual Rent and Additional Rent have not been paid in advance
of the due dates therefor except as set forth, if at all, on Exhibit "A." A
security deposit in the amount of $____________ is required by the Lease and
has been deposited with Landlord. Basic Annual Rent and Additional Rent due
through the date hereof have been paid in full except as set forth, if at
all, on Exhibit "A."
8. Tenant has not assigned its interest in the Lease or sublet the
Premises or any portion thereof except as set forth, if at all, on Exhibit
"A."
9. Tenant is not in violation of any of its obligations nor in breach of
any of its covenants concerning the use of hazardous substances as provided
for in the Lease.
10. Tenant acknowledges that the Lease is now subject to or may in the
future become subject to an assignment of Landlord's interest therein to
Landlord's lender with respect to the Building ("Lender"). In connection
with such assignment, Tenant acknowledges and agrees that:
(a) Lender may rely upon the statements contained in this
Certificate to the same extent as if this Certificate were addressed to
such Lender.
(b) No amendments, modifications, supplements or changes to the
Lease shall be effective without the written consent of such Lender.
(c) Upon receipt of written notice from the Lender, Tenant agrees
to make all payments of Basic Annual Rent and Additional Rent thereafter
coming due to Lender.
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(d) Tenant shall, in writing, notify Lender of any defaults by
Landlord pursuant to the Lease which would entitle Tenant to cancel the
Lease or to abate the rent payable thereunder. Such notice to Lender
shall be given at the same time as notice is given to Landlord.
Dated: _______, 199__
TENANT:
------------------------------------
By
---------------------------------
Title
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By
--------------------------------
Title
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2
EXHIBIT "A"
1. Amendments, modifications, supplements to Lease:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(If None, so state)
2. Rent Abatement:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(If None, so state)
3. Prepaid Rent:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(If None, so state)
4. Rent in Default:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(If None, so state)
5. Assignments and sublettings:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(If None, so state)
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EXHIBIT "E"
PARKING AGREEMENT
Subject to the parking entitlements, if any, set forth in the lease to
which this Parking Agreement is attached (the "Lease") and subject to
availability, and further subject to compliance with the following Rules and
Regulations, so long as the Lease remains in effect and subject to
availability, Tenant or employees of Tenant shall be entitled to purchase up
to thirty-four (34) parking contracts for spaces in the Project Parking
Structure in an amount as determined by Landlord. The Project Parking
Structure is depicted on Exhibit "A-3." All or part of any unreserved or
unassigned parking spaces may be assigned to, made available to, or reserved
by Landlord for other tenants or users of the Project, if Landlord determines
that such action is necessary for orderly and efficient parking. Tenant shall
pay a charge for the use of such parking contracts at the monthly rental
rates of $100.00 for reserved parking contracts and $60.00 per month for
unreserved parking contracts. Tenant may validate visitor parking by such
method(s) as Landlord or Landlord's parking operator may approve, at the
validation rate from time to time generally applicable to visitor parking.
Landlord expressly reserves the right to redesignate or modify any portion of
the Project Parking Structure for other uses or to any extent.
The parking spaces hereunder shall be provided on an unreserved
"first-come, first-served" basis. Tenant acknowledges that Landlord has or
may arrange for the Project Parking Structure to be operated by an
independent contractor, not affiliated with Landlord. In such event, Tenant
acknowledges that Landlord shall have no liability for claims arising through
acts or omissions of such independent contractor. Landlord shall have no
liability whatsoever for any damage to property or any other items located in
the Project Parking Structure, nor for any personal injuries or death arising
out of any matter relating to the Project Parking Structure, and in all
events, Tenant agrees to look first to its insurance carrier and to require
that Tenant's employees look to their respective insurance carriers for
payment of any losses sustained in connection with any use of the Project
Parking Structure. Tenant hereby waives on behalf of its insurance carriers
all rights of subrogation against Landlord or Landlord's agents.
All persons utilizing the Project Parking Structure shall comply with this
Parking Agreement, including any parker identification system(s) established
by Landlord's parking operator. The following Rules and Regulations are in
effect until Landlord notifies Tenant of any change. Landlord reserves the
right to modify and/or adopt such other reasonable and non-discriminatory
rules and regulations for the Project Parking Structure as it deems
necessary. Landlord may refuse to permit any person who violates this Parking
Agreement to park in the Project Parking Structure. Any violation of this
Parking Agreement shall subject the violator's car to removal from the
Project Parking Structure at the violator's expense. Upon the termination of
any person's parking privileges under this Parking Agreement, Tenant shall
cause all parker identification devices supplied to such person by Landlord
to be returned to Landlord.
RULES AND REGULATIONS
1. Project Parking Structure hours will be from 6:00 a.m. to 2:30 a.m.
2. Cars must be parked entirely within the stall lines painted on the
floor.
3. All directional signs and arrows must be observed.
4. The speed limit shall be 5 miles per hour.
5. Parking is prohibited:
(a) in areas not striped for parking,
(b) in aisles,
(c) where "no parking" signs are posted,
(d) on ramps,
(e) in parking spaces marked as "reserved" for tenants other than Tenant,
(f) in cross hatched areas, or
(g) in such other areas as may be designated by Landlord or Landlord's
parking operator.
6. Parking stickers or any other device or form of identification supplied
by Landlord shall remain the property of Landlord. Such parking
identification devices must be displayed as requested and may not be
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H.T.S.
mutilated in any manner. The serial number of the parking identification
device may not be obliterated. Devices are not transferable and any device
in the possession of an unauthorized holder will be void. There will be a
replacement charge payable by Tenant or a person designated by Tenant equal
to the amount posted from time to time by Landlord for loss of any parking
sticker.
7. The monthly charge for rental of a parking space shall be payable in
advance on or prior to the first day of each month. Failure to do so will
automatically cancel parking privileges and a late charge at the rate
charged by Landlord from time to time shall be due. No deductions or
allowances from the monthly charge will be made for days a parker does not
use the parking space rented by him or her.
8. Landlord's parking operator and its employees are not authorized to make
or allow any exceptions to these Rules and Regulations.
9. Every parker is required to park and lock his or her own car. All
responsibility for damage to cars or persons is assumed by the parker.
10. Loss or theft of parking identification devices from automobiles shall
be reported to the Landlord's parking operator immediately, and a lost or
stolen report must be filed by the customer at that time. Any parking
identification device reported lost or stolen found on any unauthorized car
will be confiscated and the illegal holder will be subject to prosecution.
Lost or stolen devices found by a parker must be reported to Landlord's
parking operator immediately to avoid confusion.
11. No more than one vehicle may be parked in any one parking space.
Washing, waxing, cleaning or servicing of any vehicle by a parker and/or
his or her agents is prohibited.
12. Landlord and Landlord's parking operator reserve the right to refuse
the sale of monthly stickers or other parking identification devices to
any person who willfully refuses to comply with these Rules and Regulations
and all applicable city, state or federal ordinances, laws or agreements.
13. Tenant shall acquaint all persons to whom Tenant assigns parking spaces
with these Rules and Regulations.
14. Notwithstanding anything in this Parking Agreement to the contrary,
persons who desire to rent parking spaces in the Project Parking Structure
shall be required to pay a $25.00 deposit for each magnetic parking card
issued to them by Landlord. Such deposit shall be paid at the time the
parking card is issued. Such deposit shall be forfeited if the parking
card is lost. Such deposit shall be returned, without interest, at the
time each such person ceases utilizing the parking space provided by
Landlord upon surrender of such person's parking card. Landlord reserves
the right to charge an amount in excess of the $25.00 deposit to replace
lost parking cards, if such increase becomes necessary in Landlord's
reasonable judgment to prevent creation of a so-called "black market" in
parking cards. Landlord shall post notices of any such increase(s).
15. Handicapped and visitor stalls shall be used only by handicapped
persons or visitors, as applicable.
16. In the event that, from time to time, the Project Parking Structure is
renovated or replaced, in whole or in part, Landlord shall have the right
to reasonably relocate Tenant's parking privileges to other parking
facilities within the vicinity of the Project on a temporary basis.
17. Parking on any driveways, access roads, turn-arounds and curbsides
located throughout the Project and the common areas is strictly prohibited.
Landlord shall have the right to cause any vehicles which are parked or
otherwise left unattended in such areas to be towed away at the vehicle
owner's expense.
2
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THE OFFICES OF SOUTH COAST PLAZA
ORANGE COUNTY'S CENTRAL BUSINESS DISTRICT
May 6, 1997
COSTA MESA MASTER LEASE AGREEMENT
Mr. Chad Steelberg
IMGIS Corporation
611 Anton Boulevard, Suite 400
Costa Mesa, Ca 92626
RE: RENT COMMENCEMENT
Dear Mr. Steelberg:
In accordance with Paragraph 1 of your Lease with Two Town Center Associates,
we would like to confirm your premises were tendered to you on January 6,
1997. Your Rent Commencement Date is March 1, 1997, and your Lease
Commencement Date is March 1, 1997. This letter will also confirm the initial
Lease Expiration Date of February 28, 1999.
The rentable area of your suite premises for purposes of the Lease is 10,219
square feet as actually measured. The initial annual minimum rent at the rate
of $13.00 per square foot and all other appropriate charges will be based on
that rentable area. Landlord acknowledges receipt of $100,000.00 in prepaid
Basic Annual Rent.
In accordance with Paragraph 3; ADDITIONAL RENT, of your Lease we hereby
provide you with a written estimate of the operating expenses and your
proportionate share thereof for the calendar year 1997.
In accordance with Paragraph 17 (c); ESTOPPEL CERTIFICATES, please indicate
your agreement by executing and returning a copy of the accompanying Tenant's
Certificate and copy of this letter within ten (10) days from this date.
Very truly yours,
/s/ Stanley D. Taeger
Stanley D. Taeger
Director, Office Property Management
ACCEPTED BY:
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IMGIS, Corporation
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Title
-------------------------------
Date
/mb
Enclosure
cc: N. Sherman, Ranch/Master File
C. Hernandez, Ranch/Lease Administrator
Tenant File
695 Town Center Drive - Suite 600 - Costa Mesa, California 92626
(714) 435-2100 - Fax (714) 668-0972