California-Woodland Hills-20931 Warner Center Lane Lease - Infogrames North America and CarrAmerica Realty Corp.
Lease
WARNER CENTER CORPORATE PARK
Between
INFOGRAMES NORTH AMERICA
(Tenant)
and
CARRAMERICA REALTY CORPORATION
(Landlord)
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Lease
PAGE
1. LEASE AGREEMENT ................................................................................................ 4
2. RENT ........................................................................................................... 4
A. Types of Rent ....................................................................................... 4
(1) Base Rent ................................................................................ 4
(2) Operating Cost Share Rent ................................................................ 4
(3) Tax Share Rent ........................................................................... 4
(4) Parking Rent ............................................................................. 5
(5) Additional Rent .......................................................................... 5
(6) Rent ..................................................................................... 5
B. Payment of Operating Cost Share Rent and Tax Share Rent ............................................. 5
(1) Payment of Estimated Operating Cost Share Rent and Tax Share Rent ........................ 5
(2) Correction of Operating Cost Share Rent .................................................. 6
(3) Correction of Tax Share Rent ............................................................. 6
C. Definitions ......................................................................................... 6
(1) Included Operating Costs ................................................................. 6
(2) Excluded Operating Costs ................................................................. 7
(3) Taxes .................................................................................... 8
(4) Lease Year ............................................................................... 8
(5) Fiscal Year .............................................................................. 8
D. Computation of Base Rent and Rent Adjustments ....................................................... 8
(1) Prorations ............................................................................... 8
(2) Default Interest ......................................................................... 9
(3) Rent Adjustments ......................................................................... 9
(4) Books and Records ........................................................................ 9
(5) Miscellaneous ............................................................................ 9
3. PREPARATION AND CONDITION OF PREMISES; POSSESSION AND SURRENDER OF PREMISES .................................... 10
A. Condition of Premises ............................................................................... 10
B. Tenant's Possession ................................................................................. 10
C. Maintenance ......................................................................................... 10
4. PROJECT SERVICES ............................................................................................... 10
A. Heating and Air Conditioning ........................................................................ 10
B. Elevators ........................................................................................... 11
C. Electricity ......................................................................................... 11
D. Water ............................................................................................... 11
E. Janitorial Service .................................................................................. 11
F. Interruption of Services ............................................................................ 11
G. Parking ............................................................................................. 11
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5. ALTERATIONS AND REPAIRS ........................................................................................ 12
A. Landlord's Consent and Conditions ................................................................... 12
B. Damage to Systems ................................................................................... 13
C. No Liens ............................................................................................ 13
D. Ownership of Improvements ........................................................................... 13
E. Removal at Termination .............................................................................. 14
F. Landlord's Work ..................................................................................... 14
6. USE OF PREMISES ................................................................................................ 14
7. GOVERNMENTAL REQUIREMENTS AND PROJECT RULES .................................................................... 15
8. WAIVER OF CLAIMS; INDEMNIFICATION; INSURANCE ................................................................... 15
A. Waiver of Claims .................................................................................... 15
B. Indemnification ..................................................................................... 15
C. Tenant's Insurance .................................................................................. 16
D. Insurance Certificates .............................................................................. 17
E. Landlord's Insurance ................................................................................ 17
9. FIRE AND OTHER CASUALTY ........................................................................................ 17
A. Termination ......................................................................................... 17
B. Restoration ......................................................................................... 18
10. EMINENT DOMAIN ................................................................................................ 18
11. RIGHTS RESERVED TO LANDLORD ................................................................................... 18
A. Name ................................................................................................ 18
B. Signs ............................................................................................... 18
C. Window Treatments ................................................................................... 18
D. Keys ................................................................................................ 19
E. Access .............................................................................................. 19
F. Preparation for Reoccupancy ......................................................................... 19
G. Heavy Articles ...................................................................................... 19
H. Show Premises ....................................................................................... 19
I. Relocation of Tenant ................................................................................ 19
J. Use of Lockbox ...................................................................................... 19
K. Repairs and Alterations ............................................................................. 19
L. Landlord's Agents ................................................................................... 20
M. Building Services ................................................................................... 20
N. Other Actions ....................................................................................... 20
12. TENANT'S DEFAULT .............................................................................................. 20
A. Rent Default ........................................................................................ 20
B. Assignment/Sublease or Hazardous Substances Default ................................................. 20
C. Other Performance Default ........................................................................... 20
D. Credit Default ...................................................................................... 20
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E. Vacation or Abandonment Default ..................................................................... 21
13. LANDLORD REMEDIES ............................................................................................. 21
A. Termination of Lease or Possession .................................................................. 21
B. Lease Termination Damages ........................................................................... 21
C. Continuation of Lease ............................................................................... 21
D. Possession Termination Damages ...................................................................... 22
E. Landlord's Remedies Cumulative ...................................................................... 22
F. Waiver of Trial by Jury ............................................................................. 23
G. Litigation Costs .................................................................................... 23
14. SURRENDER ..................................................................................................... 23
15. HOLDOVER ...................................................................................................... 23
16. SUBORDINATION TO GROUND LEASES AND MORTGAGES .................................................................. 23
A. Subordination ....................................................................................... 23
B. Termination of Ground Lease or Foreclosure of Mortgage .............................................. 23
C. Security Deposit .................................................................................... 24
D. Notice and Right to Cure ............................................................................ 24
E. Definitions ......................................................................................... 24
17. ASSIGNMENT AND SUBLEASE ....................................................................................... 24
A. In General .......................................................................................... 24
B. Landlord's Consent .................................................................................. 25
C. Procedure ........................................................................................... 25
D. Change of Management or Ownership ................................................................... 25
E. Excess Payments ..................................................................................... 25
F. Recapture ........................................................................................... 26
18. CONVEYANCE BY LANDLORD ........................................................................................ 26
19. ESTOPPEL CERTIFICATE .......................................................................................... 26
20. SECURITY DEPOSIT .............................................................................................. 26
21. FORCE MAJEURE ................................................................................................. 27
22. TENANT'S PERSONAL PROPERTY AND FIXTURES ....................................................................... 27
23. NOTICES ....................................................................................................... 27
A. Landlord ............................................................................................ 28
B. Tenant .............................................................................................. 28
24. QUIET POSSESSION .............................................................................................. 28
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25. REAL ESTATE BROKER ............................................................................................ 28
26. MISCELLANEOUS ................................................................................................. 28
A. Successors and Assigns .............................................................................. 29
B. Date Payments Are Due ............................................................................... 29
C. Meaning of "Landlord", "Re-Entry", "including" and "Affiliate" ...................................... 29
D. Time of the Essence ................................................................................. 29
E. No Option ........................................................................................... 29
F. Severability ........................................................................................ 29
G. Governing Law ....................................................................................... 29
H. Lease Modification .................................................................................. 29
I. No Oral Modification ................................................................................ 29
J. Landlords Right to Cure ............................................................................. 29
K. Captions ............................................................................................ 30
L. Authority ........................................................................................... 30
M. Landlord's Enforcement of Remedies .................................................................. 30
N. Entire Agreement .................................................................................... 30
O. Landlord's Title .................................................................................... 30
P. Light and Air Rights ................................................................................ 30
Q. Singular and Plural ................................................................................. 30
R. No Recording by Tenant .............................................................................. 30
S. Exclusivity ......................................................................................... 30
T. No Construction Against Drafting Party .............................................................. 30
U. Survival ............................................................................................ 30
V. Rent Not Based on Income ............................................................................ 31
W. Building Manager and Service Providers .............................................................. 31
X. Late Charge and Interest on Late Payments ........................................................... 31
27. SLATED BUSINESS INCOME ........................................................................................ 31
28. HAZARDOUS SUBSTANCES .......................................................................................... 31
29. EXCULPATION ................................................................................................... 34
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APPENDIX A - PLAN OF THE PREMISES
APPENDIX B - RULES AND REGULATIONS
APPENDIX C - TENANT IMPROVEMENT AGREEMENT
APPENDIX D - MORTGAGES CURRENTLY AFFECTING THE PROJECT
APPENDIX E - COMMENCEMENT DATE CONFIRMATION
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LEASE
THIS LEASE (the "Lease") is made as of February 17, 2000 between
CARRAMERICA REALTY CORPORATION, a Maryland corporation (the "Landlord") and the
Tenant as named in the Schedule below. The term "Project" means the building(s)
(collectively, the "Building") known as "WARNER CENTER CORPORATE PARK" and the
land (the "Land") located at 20931 Warner Center Lane, Woodland Hills, CA 91367.
"Premises" means that part of the Project leased to Tenant described in the
Schedule and outlined on Appendix A.
The following schedule (the "Schedule") is an integral part of this
Lease. Terms defined in this Schedule shall have the same meaning throughout the
Lease.
SCHEDULE
1. TENANT: Infogrames North America, a California corporation
2. PREMISES: 20931 Warner Center Lane, Suite D
3. RENTABLE SQUARE FEET OF THE PREMISES: Approximately 1,334
rentable square feet ("Rentable Area"), subject to
remeasurement by Landlord in accordance with BOMA standards.
The Rentable Area shall be confirmed by and shall be deemed to
be the rentable area specified by Landlord and Tenant in the
Certificate Affirming the Lease, in the form of Exhibit "E"
attached hereto (the "Lease Certificate"), to be executed by
Landlord and Tenant upon commencement of this Lease.
4. TENANT'S PROPORTIONATE SHARE OF BUILDING: 6.1%
TENANT'S PROPORTIONATE SHARE OF PROJECT: .04%
5. SECURITY DEPOSIT: None
6. TENANT'S REAL ESTATE BROKER FOR THIS LEASE: Colliers - Seeley
7. LANDLORD'S REAL ESTATE BROKER FOR THIS LEASE: CB Richard Ellis
8. TENANT IMPROVEMENTS, IF ANY: SEE THE TENANT IMPROVEMENT
AGREEMENT ATTACHED HERETO AS APPENDIX C.
9. COMMENCEMENT DATE: April 1, 2000, but if the Premises are
subject to new construction pursuant to Appendix C, then the
Completion Date, as defined therein, if it is later; Landlord
and Tenant shall execute a Commencement Date Confirmation
substantially in the form of Appendix E promptly following the
Commencement Date.
10. TERMINATION DATE/TERM: October 31, 2003 (3) years and (6)
months after the Commencement Date, or if the Commencement
Date is not the first day of a month, then after the first day
of the following month.
11. GUARANTOR: None
12. BASE YEAR: 2000
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13. BASE RENT:
Annual Monthly
Period Base Rent Base Rent
Months 1 - 12 $34,417.20 $2,868.10
Months 13 - 24 $35,217.60 $2,934.80
Months 25 - 36 $36,018.00 $3,001.50
Months 37 - 43 $36,818.40 $3,068.20
14. SOLE PERMITTED USE: General office purposes; however, in no
event in violation of any provision of the Rules and
Regulations attached as Appendix B hereto.
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1. LEASE AGREEMENT. On the terms stated in this Lease, Landlord leases
the Premises to Tenant, and Tenant leases the Premises from Landlord, for the
Term beginning on the Commencement Date and ending on the Termination Date
unless extended or sooner terminated pursuant to this Lease.
2. RENT.
A. Types of Rent. Tenant shall pay the following Rent in the form of a
check to Landlord at the following address:
CARRAMERICA REALTY CORPORATION
t/a Warner Center
P.O. Box 277954
Atlanta, GA 30384-7954
or by wire transfer as follows:
NationsBank, N.A. (South)
ABA Number 061-000-052
Account Number 3253025821
or in such other manner as Landlord may notify Tenant:
(1) Base Rent in monthly installments, without deduction or
offset, in advance, the first monthly installment payable concurrently
with the execution of this Lease and thereafter on or before the first
day of each month of the Term in the amount set forth on the Schedule.
(2) Operating Cost Share Rent in an amount equal to the
Tenant's Proportionate Share of the excess of Operating Costs for the
applicable fiscal year of the Lease (the "Excess Operating Costs") over
the Operating Costs for the Base Year (the "Base Operating Costs"),
paid monthly in advance in an estimated amount. Definitions of
Operating Costs and Tenant's Proportionate Share, and the method for
billing and payment of Operating Cost Share Rent are set forth in
Sections 2B, 2C and 2D.
(3) Tax Share Rent in an amount equal to the Tenant's
Proportionate Share of the excess of Taxes for the applicable fiscal
year of this Lease (the "Excess Taxes") over the Taxes for the Base
Year (the "Base Taxes"), paid monthly in advance in an estimated
amount. A definition of Taxes and the method for billing and payment of
Tax Share Rent are set forth in Sections 2B, 2C and 2D.
(4) Parking Rent in monthly installments in advance for each
of the parking spaces allocated to Tenant pursuant to Section 4G, the
first monthly installment payable
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concurrently with the execution of this Lease and thereafter on or before the
first day of each month of the Term in the amount set forth on the Schedule.
(5) Additional Rent in the amount of all costs, expenses, liabilities,
and amounts which Tenant is required to pay under this Lease, excluding Base
Rent, Operating Cost Share Rent, and Tax Share Rent, but including any interest
for late payment of any item of Rent.
(6) Rent as used in this Lease means Base Rent, Operating Cost Share
Rent, Tax Share Rent, and Additional Rent. Tenant's agreement to pay Rent is an
independent covenant, with no right of setoff, deduction or counterclaim of any
kind.
B. Payment of Operating Cost Share Rent aced Tax Share Rent.
(1) Payment of Estimated Operating Cost Share Rent and Tax Share Rent.
Landlord shall estimate the Operating Costs and Taxes of the Project by April 1
of each fiscal year, or as soon as reasonably possible thereafter. Landlord may
revise these estimates whenever it obtains more accurate information, such as
the final real estate tax assessment or tax rate for the Project.
Within ten (10) days after receiving the original or revised estimate
from Landlord setting forth (a) an estimate of Operating Costs for a particular
fiscal year, (b) the Base Operating Costs, and (c) the resulting estimate of
Excess Operating Costs for such fiscal year, Tenant shall pay Landlord
one-twelfth (1/12th) of Tenant's Proportionate Share of the estimated Excess
Operating Costs, multiplied by the number of months that have elapsed in the
applicable fiscal year to the date of such payment including the current month,
minus payments previously made by Tenant for the months elapsed. On the first
day of each month thereafter, Tenant shall pay Landlord one-twelfth (1/12th) of
Tenant's Proportionate Share of this estimate, until a new estimate becomes
applicable.
Within ten (10) days after receiving the original or revised estimate
from Landlord setting forth (a) an estimate of Taxes for a particular fiscal
year, (b) the Base Taxes, and (c) the resulting estimate of Excess Taxes for
such fiscal year, Tenant shall pay Landlord one-twelfth (1/12th) of Tenant's
Proportionate Share of the estimated Excess Taxes, multiplied by the number of
months that have elapsed in the applicable fiscal year to the date of such
payment including the current month, minus payments previously made by Tenant
for the months elapsed. On the first day of each month thereafter, Tenant shall
pay Landlord one-twelfth (1/12th) of Tenant's Proportionate Share of this
estimate, until a new estimate becomes applicable.
(2) Correction of Operating Cost Share Rent. Landlord shall deliver to
Tenant a report for the previous fiscal year (the "Operating Cost Report") by
May 15 of each year, or as soon as reasonably possible thereafter, settling
forth (a) the actual Operating
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Costs incurred, (b) the Base Operating Costs, (c) the amount of Operating Cost
Share Rent due from Tenant, and (d) the amount of Operating Cost Share Rent paid
by Tenant. Within twenty (20) days after such delivery, Tenant shall pay to
Landlord the amount due minus the amount paid. If the amount paid exceeds the
amount due, Landlord shall apply the excess to Tenant's payments of Operating
Cost Share Rent next coming due.
(3) Correction of Tax Share Rent. Landlord shall deliver to Tenant a
report for the previous fiscal year (the "Tax Report") by May 15 of each year,
or as soon as reasonably possible thereafter, setting forth (a) the actual
Taxes, (b) the Base Taxes, (c) the amount of Tax Share Rent due from Tenant, and
(d) the amount of Tax Share Rent paid by Tenant. Within twenty (20) days after
such delivery, Tenant shall pay to Landlord the amount due from Tenant minus the
amount paid by Tenant. If the amount paid exceeds the amount due, Landlord shall
apply any excess as a credit against Tenant's payments of Tax Share Rent next
coming due.
C. Definitions.
(1) Included Operating Costs. "Operating Costs" means any expenses,
costs and disbursements of any kind other than Taxes, paid or incurred by
Landlord in connection with the management, maintenance, operation, insurance,
repair and other related activities in connection with any part of the Project
and of the personal property, fixtures, machinery, equipment, systems and
apparatus used in connection therewith, including the cost of providing those
services required to be furnished by Landlord under this Lease. Operating Costs
shall also include the costs of any capital improvements which are intended to
reduce Operating Costs or improve safety, and those made to keep the Project in
compliance with governmental requirements applicable from time to time
(collectively, "Included Capital Items"); provided, that the costs of any
Included Capital Item shall be amortized by Landlord, together with an amount
equal to interest at ten percent (10%) per annum, over the estimated useful life
of such item and such amortized costs are only included in Operating Costs for
that portion of the useful life of the Included Capital Item which falls within
the Term.
If the Project is not fully occupied during any portion of any fiscal
year, Landlord may adjust (an "Equitable Adjustment") Operating Costs to equal
what would have been incurred by Landlord had the Project been fully occupied.
This Equitable Adjustment shall apply only to Operating Costs which are variable
and therefore increase as occupancy of the Project increases. Landlord may
incorporate the Equitable Adjustment in its estimates of Operating Costs.
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(2) Excluded Operating Costs. Operating Costs shall not include:
(a) costs of alterations of tenant premises;
(b) costs of capital improvements other than Included Capital
Items;
(c) interest and principal payments on mortgages or any other debt
costs, or rental payments on any ground lease of the Project;
(d) real estate brokers' leasing commissions;
(e) legal fees, space planner fees and advertising expenses
incurred with regard to leasing the Building or portions
thereof;
(f) any cost or expenditure for which Landlord is reimbursed, by
insurance proceeds or otherwise, except by Operating Cost
Share Rent;
(g) the cost of any service furnished to any office tenant of the
Project which Landlord does not make available to Tenant;
(h) depreciation (except on any Included Capital Items);
(i) franchise or income taxes imposed upon Landlord;
(j) costs of correcting defects in construction of the Building
(as opposed to the cost of normal repair, maintenance and
replacement expected with the construction materials and
equipment installed in the Building in light of their
specifications);
(k) legal and auditing fees which are for the benefit of Landlord
such as collecting delinquent rents, preparing tax returns and
other financial statements, and audits other than those
incurred in connection with the preparation of reports
required pursuant to Section 2B above;
(l) the wages of any employee for services not related directly to
the management, maintenance, operation and repair of the
Building; and
(m) fines, penalties and interest.
(3) Taxes. "Taxes" means any and all taxes, assessments and charges of
any kind, general or special, ordinary or extraordinary, levied against the
Project, which Landlord shall pay or become obligated to pay in connection with
the ownership, leasing, renting, management, use, occupancy, control or
operation of the Project or of the
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personal property, fixtures, machinery, equipment, systems and apparatus used in
connection therewith. Taxes shall include real estate taxes, personal property
taxes, sewer rents, water rents, special or general assessments, transit taxes,
ad valorem taxes, and any tax levied on the rents hereunder or the interest of
Landlord under this Lease (the "Rent Tax"). Taxes shall also include all fees
and other costs and expenses paid by Landlord in reviewing any tax and in
seeking a refund or reduction of any Taxes, whether or not the Landlord is
ultimately successful.
For any year, the amount to be included in Taxes (a) from taxes or
assessments payable in installments, shall be the amount of the installments
(with any interest) due and payable during such year, and (b) from all other
Taxes, shall at Landlord's election be the amount accrued, assessed, or
otherwise imposed for such year or the amount due and payable in such year. Any
refund or other adjustment to any Taxes by the taxing authority, shall apply
during the year in which the adjustment is made.
Taxes shall not include any net income (except Rent Tax), capital,
stock, succession, transfer, franchise, gift, estate or inheritance tax, except
to the extent that such tax shall be imposed in lieu of any portion of Taxes.
(4) Lease Year. "Lease Year" means each consecutive twelve-month period
beginning with the Commencement Date, except that if the Commencement Date is
not the first day of a calendar month, then the first Lease Year shall be the
period from the Commencement Date through the final day of the twelve months
after the first day of the following month, and each subsequent Lease Year shall
be the twelve months following the prior Lease Year.
(5) Fiscal Year. "Fiscal Year" means the calendar year, except that the
first fiscal year and the last fiscal year of the Term may be a partial calendar
year.
D. Computation of Base Rent and Rent Adjustments.
(1) Prorations. If this Lease begins on a day other than the first day
of a month, the Base Rent, Operating Cost Share Rent, [Parking Rent] and Tax
Share Rent shall be prorated for such partial month based on the actual number
of days in such month. If this Lease begins on a day other than the first day,
or ends on a day other than the last day, of the fiscal year, Operating Cost
Share Rent and Tax Share Rent shall be prorated for the applicable fiscal year.
(2) Default Interest. Any sum due from Tenant to Landlord not paid
when due shall bear interest from the date due until paid at the lesser of
eighteen percent (18%) per annum or the maximum rate permitted by law.
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(3) Rent Adjustments. The square footage of the Premises and
the Building set forth in the Schedule are conclusively deemed to be
the actual square footage thereof, without regard to any subsequent
remeasurement of the Premises or the Building. If any Operating Cost
paid in one fiscal year relates to more than one fiscal year, Landlord
may proportionately allocate such Operating Cost among the related
fiscal years.
(4) Books and Records. Landlord shall maintain books and
records reflecting the Operating Costs and Taxes in accordance with
sound accounting and management practices. Tenant and its certified
public accountant shall have the right to inspect Landlord's records at
Landlord's office upon at least seventy-two (72) hours' prior notice
during normal business hours during the one hundred and eighty (180)
days following the respective delivery of the Operating Cost Report or
the Tax Report. The results of any such inspection shall be kept
strictly confidential by Tenant and its agents, and Tenant and its
certified public accountant must agree, in their contract for such
services, to such confidentiality restrictions and shall specifically
agree that the results shall not be made available to any other tenant
of the Building. Unless Tenant sends to Landlord any written exception
to either such report within said ninety (90) day period, such report
shall be deemed final and accepted by Tenant. Tenant shall pay the
amount shown on both reports in the manner prescribed in this Lease,
whether or not Tenant takes any such written exception, without any
prejudice to such exception. If Tenant makes a timely exception,
Landlord shall cause its independent certified public accountant or
shall select and cause another firm with at least five (5) years of
experience in auditing the books and records of commercial office
projects to issue a final and conclusive resolution of Tenant's
exception. Tenant shall pay the cost of such certification unless
Landlord's original determination of annual Operating Costs or Taxes
overstated the amounts thereof by more than five percent (5%).
(5) Miscellaneous. So long as Tenant is in default of any
obligation under this Lease, Tenant shall not be entitled to any refund
of any amount from Landlord. If this Lease is terminated for any reason
prior to the annual determination of Operating Cost Share Rent or Tax
Share Rent, either party shall pay the full amount due to the other
within fifteen (15) days after Landlord's notice to Tenant of the
amount when it is determined. Landlord may commingle any payments made
with respect to Operating Cost Share Rent or Tax Share Rent, without
payment of interest.
3. PREPARATION AND CONDITION OF PREMISES; POSSESSION AND
SURRENDER OF PREMISES.
A. Condition of Premises. Except to the extent of the Tenant
Improvements item on the Schedule, Landlord is leasing the Premises to Tenant
absolutely "as is", without any obligation to alter, remodel, improve, repair or
decorate any part of the Premises. Landlord shall cause the Premises to be
completed in accordance with the Tenant Improvement Agreement attached as
Appendix C. Landlord expressly disclaims any warranty or representation, express
or
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implied, with respect to the Project or any portion thereof, including, without
limitation, any warranty or representation as to fitness, condition, the
existence of any defect, patent or latent, merchantability, quality or
durability.
B. Tenant's Possession. Tenant's taking possession of any portion of
the Premises shall be conclusive evidence that the Premises was in good order,
repair and condition. If Landlord authorizes Tenant to take possession of any
part of the Premises prior to the Commencement Date for purposes of doing
business, all terms of this Lease shall apply to such pre-Term possession,
including Base Rent at the rate set forth for the First Lease Year in the
Schedule prorated for any partial month.
C. Maintenance. Throughout the Term, Tenant shall maintain the Premises
in good order, repair and condition, loss or damage caused by the elements,
ordinary wear, and fire and other casualty excepted, and at the termination of
this Lease, or Tenant's right to possession, Tenant shall return the Premises to
Landlord in broom-clean, safe, neat and sanitary condition. To the extent Tenant
fails to perform either obligation, Landlord may, but need not, restore the
Premises to such condition and Tenant shall pay the cost thereof.
4. PROJECT SERVICES.
Landlord shall furnish services as follows:
A. Heating and Air Conditioning. During the normal business hours of
8:00 a.m. to 6:00 p.m., Monday through Friday, and 9:00 a.m. to 1:00 p.m. on
Saturday, Landlord shall furnish heating and air conditioning to provide a
comfortable temperature, in Landlord's judgment, for normal business operations,
except to the extent Tenant installs equipment which adversely affects the
temperature maintained by the air conditioning system. If Tenant installs such
equipment, Landlord may install supplementary air conditioning units in the
Premises, and Tenant shall pay to Landlord upon demand as Additional Rent the
cost of installation, operation and maintenance thereof.
Landlord shall furnish heating and air conditioning after business
hours if Tenant provides Landlord reasonable prior notice, and pays Landlord all
then current charges for such additional heating or air conditioning.
B. Elevators. Landlord shall provide passenger elevator service during
normal business hours to Tenant in common with Landlord and all other tenants.
Landlord shall provide limited passenger service at other times, except in case
of an emergency.
C. Electricity. Landlord shall provide sufficient electricity to
operate normal office lighting and equipment. Tenant shall not install or
operate in the Premises any electrically operated equipment or other machinery,
other than business machines and equipment normally employed for general once
use which do not require high electricity consumption for operation,
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without obtaining the prior written consent of Landlord. If any or all of
Tenant's equipment requires electricity consumption in excess of that which is
necessary to operate normal office equipment, such consumption (including
consumption for computer or telephone rooms and special HVAC equipment) shall be
submetered by Landlord at Tenant's expense, and Tenant shall reimburse Landlord
as Additional Rent for the cost of its submetered consumption based upon
Landlord's average cost of electricity. Such additional rent shall be in
addition to Tenant's obligations pursuant to Section 2A(2) to pay its
Proportionate Share of Operating Costs.
D. Water. Landlord shall furnish hot and cold tap water for drinking
and toilet purposes. Tenant shall pay Landlord for water furnished for any other
purpose as Additional Rent at rates fixed by Landlord. Tenant shall not permit
water to be wasted.
E. Janitorial Service. Landlord shall furnish janitorial service as
generally provided to other tenants in the Building.
F. Interruption of Services. If any of the Building equipment or
machinery ceases to function properly for any cause Landlord shall use
reasonable diligence to repair the same promptly. Landlord's inability to
furnish, to any extent, the Project services set forth in this Section 4, or any
cessation thereof resulting from any causes, including without limitation any
entry for repairs pursuant to this Lease, and any renovation, redecoration or
rehabilitation of any area of the Building shall not render Landlord liable for
damages to either person or property or for interruption or loss to Tenant's
business, nor be construed as an eviction of Tenant, nor work an abatement of
any portion of rent, nor relieve Tenant from fulfillment of any covenant or
agreement hereof. However, in the event that an interruption of the Project
services set forth in this Section 4 is within Landlord's reasonable control and
such interruption causes the Premises to be untenantable for a period of at
least three (3) consecutive business days, monthly Rent shall be abated
proportionately.
G. Parking. During the Term, Tenant and its employees shall be entitled
to use within the Project's parking area (excluding, however, those areas
thereof designated by Landlord from time to time for the exclusive use of
certain occupants of the Project or for no parking) an aggregate of Four (4)
parking stalls, free for the initial term of the Lease. Landlord reserves the
right to designate reserved parking stalls for other occupants of the Project
over any part of the Project's parking area.
H. Common Areas and General Building Maintenance. Landlord shall
maintain the Common Areas of the project including building systems (plumbing,
HVAC, etc.), landscaping, etc.
I. Structural Fixes. Landlord shall maintain the structure of the
Building in good working order.
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5. ALTERATIONS AND REPAIRS.
A. Landlord's Consent and Conditions.
Tenant shall not make any improvements or alterations to the Premises
(the "Work") without in each instance submitting plans and specifications for
the Work to Landlord and obtaining Landlord's prior written consent unless (a)
the cost thereof is less than $5,000.00, (b) such Work does not impact the base
structural components or systems of the Building, (c) such Work will not impact
any other tenant's premises, and (d) such Work is not visible from outside the
Premises. Tenant shall pay Landlord's standard charge for review of the plans
and all other items submitted by Tenant. Landlord will be deemed to be acting
reasonably in withholding its consent for any Work which (a) impacts the base
structural components or systems of the Building, (b) impacts any other tenant's
premises, or (c) is visible from outside the Premises.
Tenant shall reimburse Landlord for actual costs incurred for review of
the plans and all other items submitted by Tenant. Tenant shall pay for the cost
of all Work. All Work shall become the property of Landlord upon its
installation, except for Tenant's trade fixtures and for items which Landlord
requires Tenant to remove at Tenant's cost at the termination of the Lease
pursuant to Section 5E.
The following requirements shall apply to all Work:
(1) Prior to commencement, Tenant shall furnish to Landlord
building permits, certificates of insurance satisfactory to Landlord
(including, without limitation, certificates evidencing the insurance
Tenant, its contractors and subcontractors are required to maintain
under Section 8(C), and, at Landlord's request, security for payment of
all costs.
(2) Tenant shall perform all Work so as to maintain peace and
harmony among other contractors serving the Project and shall avoid
interference with other work to be performed or services to be rendered
in the Project.
(3) The Work shall be performed in a good and workmanlike
manner, meeting the standard for construction and quality of materials
in the Building, and shall comply with all insurance requirements and
all applicable governmental laws, ordinances and regulations
("Governmental Requirements").
(4) Tenant shall perform all Work so as to minimize or prevent
disruption to other tenants, and Tenant shall comply with all
reasonable requests of Landlord in response to complaints from other
tenants.
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(5) Tenant shall perform all Work in compliance with
Landlord's "Policies, Rules and Procedures for Construction Projects"
in effect at the time the Work is performed.
(6) Tenant shall permit Landlord to supervise all Work.
Landlord may charge a supervisory fee not to exceed five percent (5%)
of labor, material, and all other costs of the Work, if Landlord's
employees or contractors perform the Work.
(7) Upon completion, Tenant shall furnish Landlord with
contractor's affidavits and full and final statutory waivers of liens,
as-built plans and specifications, and receipted bills covering all
labor and materials, and all other close-out documentation required in
Landlord's "Policies, Rules and Procedures for Construction Projects".
B. Damage to Systems. If any part of the mechanical, electrical or
other systems in the Premises shall be damaged, Tenant shall promptly notify
Landlord, and Landlord shall repair such damage. Landlord may also at any
reasonable time make any repairs or alterations which Landlord deems necessary
for the safety or protection of the Project, or which Landlord is required to
make by any court or pursuant to any Governmental Requirement. Tenant shall at
its expense make all other repairs necessary to keep the Premises, and Tenant's
fixtures and personal property, in good order, condition and repair; to the
extent Tenant fails to do so, Landlord may make such repairs itself. The cost of
any repairs made by Landlord on account of Tenant's default, or on account of
the mis-use or neglect by Tenant or its invitees, contractors or agents anywhere
in the Project, shall become Additional Rent payable by Tenant on demand.
C. No Liens. Tenant has no authority to cause or permit any lien or
encumbrance of any kind to affect Landlord's interest in the Project; any such
lien or encumbrance shall attach to Tenant's interest only. If any mechanic's
lien shall be filed or claim of lien made for work or materials furnished to
Tenant, then Tenant shall at its expense within ten (10) days thereafter either
discharge or contest the lien or claim. If Tenant contests the lien or claim,
then Tenant shall (i) within such ten (10) day period, provide Landlord adequate
security for the lien or claim, (ii) contest the lien or claim in good faith by
appropriate proceedings that operate to stay its enforcement, and (iii) pay
promptly any final adverse judgment entered in any such proceeding. If Tenant
does not comply with these requirements, Landlord may discharge the lien or
claim, and the amount paid, as well as attorney's fees and other expenses
incurred by Landlord, shall become Additional Rent payable by Tenant on demand.
Nothing contained in this Lease shall constitute 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 at all times, to post such notices of nonresponsibility as may be allowed
under California law.
D. Ownership of Improvements. All Work as defined in this Section 5,
partitions, hardware, equipment, machinery and all other improvements and all
fixtures except trade fixtures, constructed in the Premises by either Landlord
or Tenant, (i) shall become Landlord's
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property upon installation without compensation to Tenant, unless Landlord
consents otherwise in writing, and (ii) shall at Landlord's option either (a) be
surrendered to Landlord with the Premises at the termination of the Lease or of
Tenant's right to possession, or (b) be removed in accordance with Subsection 5E
below (unless Landlord at the time it gives its consent to the performance of
such construction expressly waives in writing the right to require such
removal).
E. Removal at Termination. Upon the termination of this Lease or
Tenant's right of possession Tenant shall remove from the Project its trade
fixtures, furniture, moveable equipment and other personal property, any
improvements which Landlord elects shall be removed by Tenant pursuant to
Section 5D, and any improvements to any portion of the Project other than the
Premises. If Tenant does not timely remove such property, then Tenant shall be
conclusively presumed to have, at Landlord's election (i) conveyed such property
to Landlord without compensation or (ii) abandoned such property, and Landlord
may dispose of or store any part thereof in any manner at Tenant's sole cost,
without waiving Landlord's right to claim from Tenant all expenses arising out
of Tenant's failure to remove the property, and without liability to Tenant or
any other person. Landlord shall have no duty to be a bailee of any such
personal property. If Landlord elects abandonment, Tenant shall pay to Landlord,
upon demand, any expenses incurred for disposition. Tenant expressly 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, to the extent permitted by
then applicable law, Tenant shall protect, indemnify, defend and hold Landlord
harmless from and against any and all claims and liability with respect thereto.
F. Landlord's Work. Landlord shall have the right at any time to change
the arrangement and location of all entrances, passageways, doors, doorways,
corridors, stairs, toilets and other public parts of the Project and, upon
giving Tenant reasonable notice thereof, to change any name, number or
designation by which the Premises or the Project is commonly known.
6. USE OF PREMISES. Tenant shall use the Premises only for general
office purposes. Tenant shall not allow any use of the Premises which will
negatively affect the cost of coverage of Landlord's insurance on the Project.
Tenant shall not allow any inflammable or explosive liquids or materials to be
kept on the Premises. Tenant shall not allow any use of the Premises which would
cause the value or utility of any part of the Premises to diminish or would
interfere with any other Tenant or with the operation of the Project by
Landlord. Tenant shall not cause or permit any nuisance or waste upon the
Premises, or allow any offensive noise or odor in or around the Premises or in
any way obstruct or interfere with the rights of other tenants or occupants of
the Project.
Tenant acknowledges that the Americans With Disabilities Act of 1990
(as amended and as supplemented by further laws from time to time, the "ADA")
imposes certain requirements upon the owners, lessees and operators of
commercial facilities and places of public accommodation, including, without
limitation, prohibitions on discrimination against any individual on the basis
of disability. Notwithstanding any other provision of this Lease, Tenant
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agrees, at Tenant's expense, to take all proper and necessary action to cause
the Premises, any repairs, replacements, alterations and improvements thereto to
be maintained, used and occupied in compliance with the ADA requirements,
whether or not those requirements are based upon the Tenant's use of the
Premises and, further, to otherwise assume all responsibility to ensure the
Premises' continued compliance with all provisions of the ADA throughout the
Term. Tenant shall, at its expense, make any alterations or modifications, with
or without the Premises, to bring Tenant's use and occupancy of the Premises
into compliance with the ADA. Tenant shall pay, as additional rent, its
proportional share of expenses incurred by Landlord in bringing common areas of
the Project into compliance with provisions of the ADA. The Premises shall not
be used as a "place of public accommodation" under the ADA or similar laws,
regulations, statutes and/or ordinances; provided, that if any governmental
authority shall deem the Premises to be a "place of public accommodation" as a
result of Tenant's use, Tenant shall either modify its use to cause such
authority to rescind its designation or be responsible for any alterations,
structural or otherwise, required to be made to the Project or the Premises
under such laws.
7. GOVERNMENTAL REQUIREMENTS AND PROJECT RULES. Tenant shall comply
with all Governmental Requirements applying to its use of the Premises. Tenant
shall also comply with all reasonable rules established for the Project,
including, without limitation, the parking area, from time to time by Landlord.
The present rules and regulations are contained in Appendix B. Failure by
another tenant to comply with the rules or failure by Landlord to enforce them
shall not relieve Tenant of its obligation to comply with the rules or make
Landlord responsible to Tenant in any way. Landlord shall use reasonable efforts
to apply the rules and regulations uniformly with respect to Tenant and tenants
in the Building under leases containing rules and regulations similar to this
Lease. In the event of alterations and repairs performed by Tenant, Tenant shall
comply with the provisions of Section 5 of this Lease and also Landlord's
"Policies, Rules and Regulations for Construction Projects".
8. WAIVER OF CLAIMS; INDEMNIFICATION; INSURANCE.
A. Waiver of Claims. To the extent permitted by law, Tenant waives any
claims it may have against Landlord or its officers, directors, employees or
agents for business interruption or damage to property sustained by Tenant as
the result of any act or omission of Landlord, except for Landlord's willful
misconduct or intentional breach.
To the extent permitted by law, Landlord waives any claims it may have
against Tenant or its officers, directors, employees or agents for loss of rents
or damage to property sustained by Landlord as the result of any act or omission
of Tenant.
B. Indemnification. Tenant shall indemnify, defend and hold harmless
Landlord and its officers, directors, employees and agents against any claim by
any third party for injury to any person or damage to or loss of any property
occurring in the Project to the extent caused by any act or omission or
negligence of Tenant or any of Tenant's employees or agents. Tenant's
obligations under this section shall survive the termination of this Lease.
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Landlord shall indemnify, defend and hold harmless Tenant, and its
officers, directors, employees and agents against any claim by any third party
for injury to any person or damage to or loss of any property occurring in the
Project and arising from any act or omission or negligence of Landlord or any of
Landlord's employees or agents. Landlord's obligations under this section shall
survive the termination of this Lease.
C. Tenant's Insurance. Tenant shall maintain insurance as follows,
with such other terms, coverages and insurers, as Landlord shall reasonably
require from time to time:
(1) Commercial General Liability Insurance, with (a)
Contractual Liability including the indemnification provisions
contained in this Lease, (b) a severability of interest endorsement,
(c) limits of not less than Two Million Dollars ($2,000,000) combined
single limit per occurrence and not less than Two Million Dollars
($2,000,000) in the aggregate for bodily injury, sickness or death, and
property damage, and umbrella coverage of not less than Five Million
Dollars ($5,000,000).
(2) Property Insurance against "All Risks" of physical loss
covering the replacement cost of all improvements, fixtures and
personal property. Tenant waives all rights of subrogation, and
Tenant's property insurance shall include a waiver of subrogation in
favor of Landlord.
(3) Workers' compensation or similar insurance in form and
amounts required by law, and Employer's Liability with not less than
the following limits:
Each Accident $500,000
Disease--Policy Limit $500,000
Disease--Each Employee $500,000
Such insurance shall contain a waiver of subrogation provision
in favor of Landlord and its agents.
Tenant's insurance shall be primary and not contributory to that
carried by Landlord, its agents, or mortgagee. Landlord, and if any, Landlord's
building manager or agent and ground lessor shall be named as additional
insureds as respects to insurance required of the Tenant in Section 8C(1). The
company or companies writing any insurance which Tenant is required to maintain
under this Lease, as well as the form of such insurance, shall at all times be
subject to Landlord's approval, and any such company shall be licensed to do
business in the state in which the Project is located. Such insurance companies
shall have a A.M. Best rating of A VI or better.
Tenant shall cause any contractor of Tenant performing work on the
Premises to maintain insurance as follows, with such other terms, coverages and
insurers, as Landlord shall reasonably require from time to time:
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(1) Commercial General Liability Insurance, including
contractor's liability coverage, contractual liability coverage,
completed operations coverage, broad form property damage endorsement,
and contractor's protective liability coverage, to afford protection
with limits, for each occurrence, of not less than One Million Dollars
($1,000,000) with respect to personal injury, death or property damage.
(2) Workers' compensation or similar insurance in form and
amounts required by law, and Employer's Liability with not less than
the following limits:
Each Accident $500,000
Disease--Policy Limit $500,000
Disease--Each Employee $500,000
Such insurance shall contain a waiver of subrogation provision
in favor of Landlord and its agents.
Tenant's contractor's insurance shall be primary and not contributory
to that carried by Tenant, Landlord, their agents or mortgagees. Tenant and
Landlord, and if any, Landlord's building manager or agent, mortgagee or ground
lessor shall be named as additional insured on Tenant's contractor's insurance
policies.
D. Insurance Certificates. Tenant shall deliver to Landlord
certificates evidencing all required insurance no later than five (5) days
prior to the Commencement Date and each renewal date. Each certificate will
provide for thirty (30) days prior written notice of cancellation to Landlord
and Tenant.
E. Landlord's Insurance. Landlord shall maintain "All-Risk" property
insurance at replacement cost, including loss of rents, on the Building, and
Commercial General Liability insurance policies covering the common areas of the
Project, each with such terms, coverages and conditions as are normally carried
by reasonably prudent owners of properties similar to the Project. With respect
to property insurance, Landlord and Tenant mutually waive all rights of
subrogation, and the respective "All-Risk" coverage property insurance policies
carried by Landlord and Tenant shall contain enforceable waiver of subrogation
endorsements.
9. FIRE AND OTHER CASUALTY.
A. Termination. If a fire or other casualty causes substantial damage
to the Building or the Premises, Landlord shall engage a registered architect to
certify within one (1) month of the casualty to both Landlord and Tenant the
amount of time needed to restore the Building and the Premises to tenantability,
using standard working methods. If the time needed exceeds twelve (12) months
from the beginning of the restoration, or two (2) months therefrom if the
restoration would begin during the last twelve (12) months of the Lease, then in
the case of the Premises, either Landlord or Tenant may terminate this lease,
and in the case of the Building,
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Landlord may terminate this Lease, by notice to the other party within ten (10)
days after the notifying party's receipt of the architect's certificate. The
termination shall be effective thirty (30) days from the date of the notice and
Rent shall be paid by Tenant to that date, with an abatement for any portion of
the space which has been untenantable after the casualty.
B. Restoration. If a city causes damage to the Building or the Premises
but this Lease is not terminated for any reason, then subject to the rights of
any mortgagees or ground lessors, Landlord shall obtain the applicable insurance
proceeds and diligently restore the Building and the Premises subject to current
Governmental Requirements. Tenant shall replace its damaged improvements,
personal property and fixtures. Rent shall be abated on a per diem basis during
the restoration for any portion of the Premises which is untenantable, except to
the extent that Tenant's negligence caused the casualty.
10. EMINENT DOMAIN. If a part of the Project is taken by eminent domain
or deed in lieu thereof which is so substantial that the Premises cannot
reasonably be used by Tenant for the operation of its business, then either
party may terminate this Lease effective as of the date of the taking. If any
substantial portion of the Project is taken without affecting the Premises, then
Landlord may terminate this Lease as of the date of such taking. Rent shall
abate from the date of the taking in proportion to any part of the Premises
taken. The entire award for a taking of any kind shall be paid to Landlord, and
Tenant shall have no right to share in the award. All obligations accrued to the
date of the taking shall be performed by each party.
11. RIGHTS RESERVED TO LANDLORD.
Landlord may exercise at any time any of the following rights
respecting the operation of the Project without liability to the Tenant of any
kind:
A. Name. To change the name or street address of the Building or the
suite number(s) of the Premises.
B. Signs. To install, remove and maintain any signs on the exterior and
in the interior of the Building, and to approve at its sole discretion, prior to
installation, any of Tenant's signs in the Premises visible from the common
areas or the exterior of the Building.
C. Window Treatments. To approve, at its discretion, prior to
installation, any shades, blinds, ventilators or window treatments of any kind,
as well as any lighting within the Premises that may be visible from the
exterior of the Building or any interior common area.
D. Keys. To retain and use at any time passkeys to enter the Premises
or any door within the Premises. Tenant shall not alter or add any lock or bolt.
E. Access. To have access to inspect the Premises, and to perform its
obligations, or make repairs, alterations, additions or improvements, as
permitted by this Lease.
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F. Preparation for Reoccupancy. To decorate, remodel, repair, alter or
otherwise prepare the Premises for reoccupancy at any time after Tenant abandons
the Premises, without relieving Tenant of any obligation to pay Rent.
G. Heavy Articles. To approve the weight, size, placement and time and
manner of movement within the Building of any safe, central filing system or
other heavy article of Tenant's property. Tenant shall move its property
entirely at its own risk.
H. Show Premises. To show the Premises to prospective purchasers,
tenants, brokers, lenders, investors, rating agencies or others at any
reasonable time, provided that Landlord gives prior notice to Tenant and does
not materially interfere with Tenant's use of the Premises.
I. Relocation of Tenant. To relocate the Tenant, upon thirty days'
prior written notice, from all or part of the Premises (the "Old Premises") to
another area in the Project (the "new premises"), provided that:
(1) the size of the new premises is at least equal to the size
of the Old Premises;
(2) Landlord pays the cost of moving the Tenant and improving
the new premises to the standard of the Old Premises. Tenant shall
cooperate with Landlord in all reasonable ways to facilitate the move,
including supervising the movement of files or fragile equipment,
designating new locations for furniture, equipment and new telephone
and electrical outlets, and determining the color of paint in the new
premises.
J. Use of Lockbox. To designate a lockbox collection agent for
collections of amounts due Landlord. In that case, the date of payment of Rent
or other sums shall be the date of the agent's receipt of such payment or the
date of actual collection if payment is made in the form of a negotiable
instrument thereafter dishonored upon presentment. However, Landlord may reject
any payment for all purposes as of the date of receipt or actual collection by
mailing to Tenant within 21 days after such receipt or collection a check equal
to the amount sent by Tenant.
K. Repairs and Alterations. To make repairs or alterations to the
Project and in doing so transport any required material through the Premises, to
close entrances, doors, corridors, elevators and other facilities in the
Project, to open any ceiling in the Premises, or to temporarily suspend services
or use of common areas in the Project. Landlord may perform any such repairs or
alterations during ordinary business hours, except that Tenant may require any
Work in the Premises to be done after business hours if Tenant pays Landlord for
overtime and any other expenses incurred. Landlord may do or permit any work on
any nearby building, land, street, alley or way.
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L. Landlord's Agents. If Tenant is in default under this Lease,
possession of Tenant's funds or negotiation of Tenant's negotiable instrument by
any of Landlord's agents shall not waive any breach by Tenant or any remedies of
Landlord under this Lease.
M. Building Services. To install, use and maintain through the
Premises, pipes, conduits, wires and ducts serving the Building, provided that
such installation, use and maintenance does not unreasonably interfere with
Tenant's use of the Premises.
N. Other Actions. To take any other action which Landlord deems
reasonable in connection with the operation, maintenance or preservation of the
Project.
12. TENANT'S DEFAULT.
Any of the following shall constitute a default by Tenant:
A. Rent Default. Tenant fails to pay any Rent when due;
B. Assignment/Sublease or Hazardous Substances Default. Tenant defaults
in its obligations under Section 17 Assignment and Sublease or Section 28
Hazardous Substances;
C. Other Performance Default. Tenant fails to perform any other
obligation to Landlord under this Lease, and, in the case of only the first ten
(10) such failures during the Term of this Lease, this failure continues for ten
(10) days after written notice from Landlord (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), except that if
Tenant begins to cure its failure within the ten (10) day period but cannot
reasonably complete its cure within such period, then, so long as Tenant
continues to diligently attempt to cure its failure, the ten (10) day period
shall be extended to sixty (60) days, or such lesser period as is reasonably
necessary to complete the cure;
D. Credit Default. One of the following credit defaults occurs:
(1) Tenant commences any proceeding under any law relating to
bankruptcy, insolvency, reorganization or relief of debts, or seeks
appointment of a receiver, trustee, custodian or other similar official
for the Tenant or for any substantial part of its property, or any such
proceeding is commenced against Tenant and either remains undismissed
for a period of thirty days or results in the entry of an order for
relief against Tenant which is not fully stayed within seven days after
entry;
(2) Tenant becomes insolvent or bankrupt, does not generally
pay its debts as they become due, or admits in writing its inability to
pay its debts, or makes a general assignment for the benefit of
creditors;
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(3) Any third party obtains a levy or attachment under
process of law against Tenant's leasehold interest.
E. Abandonment Default. Tenant abandons the Premises and fails to pay
rent.
13. LANDLORD REMEDIES.
A. Termination of Lease or Possession. If Tenant defaults, Landlord may
elect by notice to Tenant either to terminate this Lease or to terminate
Tenant's possession of the Premises without terminating this Lease. In either
case, Tenant shall immediately vacate the Premises and deliver possession to
Landlord, and Landlord may repossess the Premises and may, at Tenant's sole
cost, remove any of Tenant's signs and any of its other property, without
relinquishing its right to receive Rent or any other right against Tenant.
Without limiting the generality of the foregoing, upon the termination of this
Lease or the termination of Tenant's right of possession, it shall be lawful for
the Landlord, without formal demand or notice of any kind, to re-enter the
Premises by summary dispossession proceedings or any other action or proceeding
authorized by law and to remove Tenant and all persons and property therefrom.
B. Lease Termination Damages. Except as otherwise provided in Section
13C, if Tenant abandons the Premises prior to the end of the term hereof, or if
Tenant's right to possession is terminated by Landlord because of a default by
Tenant under this Lease, this Lease shall terminate. Upon such termination,
Landlord may recover from Tenant the following, as provided in Section 1951.2 of
the California Civil Code: (i) the worth at the time of award of the unpaid Rent
and other charges under this Lease that had been earned at the time of
termination; (ii) the worth at the time of award of the amount by which the
unpaid Rent and other charges under this Lease which would have been earned
after termination until the time of award exceeds the amount of such rental loss
that Tenant proves could have been reasonably avoided; (iii) the worth at the
time of award of the amount by which the unpaid Rent and other charges under
this Lease for the balance of the term of this Lease after the time of award
exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided; and (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 that in the ordinary course of things would be
likely to result therefrom. As used herein, the following terms are defined:
(a) The "worth at the time of award" of the amounts referred to in Sections (i)
and (ii) is computed by allowing interest at the lesser of 15% per annum or the
maximum lawful rate. The "worth at the time of award" of the amount referred to
in Section (iii) is computed by discounting such amount at the discount rate of
the Federal Reserve Bank of San Francisco at the time of award plus 1%.
C. Continuation of Lease. Even if Tenant has abandoned the Premises,
this Lease shall continue in effect for so long as Landlord does not terminate
Tenant's right to possession, and Landlord may enforce all its rights and
remedies under this Lease, including the right to recover rent as it becomes
due. This remedy is intended to be the remedy described in California Civil Code
Section 1951.4, and the following provision from such Civil Code Section is
hereby
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repeated: "The Lessor has the remedy described in California Civil Code Section
1951.4 (lessor may continue lease in effect after lessee's breach and
abandonment and recover rent as it becomes due, if lessee has right to sublet or
assign, subject only to reasonable limitations). "Any such payments due Landlord
shall be made upon demand therefor from time to time and Tenant agrees that
Landlord may file suit to recover any sums falling due from time to time.
Notwithstanding any such reletting without termination, Landlord may at any time
thereafter elect in writing to terminate this Lease for such previous breach.
D. Possession Termination Damages. If Landlord terminates Tenant's
right to possession without terminating the Lease and Landlord takes possession
of the Premises itself, Landlord may relet any part of the Premises for such
Rent so long as rents are at the current market rates, for such time, and upon
such terms as Landlord in its sole discretion shall determine, without any
obligation to do so prior to renting other vacant areas in the Building. Any
proceeds from reletting the Premises shall first be applied to the expenses of
reletting, including redecoration, repair, alteration, advertising, brokerage,
legal, and other reasonably necessary expenses. If the reletting proceeds after
payment of expenses are insufficient to pay the full amount of Rent under this
Lease, Tenant shall pay such deficiency to Landlord monthly upon demand as it
becomes due. Any excess proceeds shall be retained by Landlord.
E. Landlord's Remedies Cumulative. All of Landlord's remedies under
this Lease shall be in addition to all other remedies Landlord may have at law
or in equity. Waiver by Landlord of any breach of any obligation by Tenant shall
be effective only if it is in writing, and shall not be deemed a waiver of any
other breach, or any subsequent breach of the same obligation. Landlord's
acceptance of payment by Tenant shall not constitute a waiver of any breach by
Tenant, and if the acceptance occurs after Landlord's notice to Tenant, or
termination of the Lease or of Tenant's right to possession, the acceptance
shall not affect such notice or termination. Acceptance of payment by Landlord
after commencement of a legal proceeding or final judgment shall not affect such
proceeding or judgment. Landlord may advance such monies and take such other
actions for Tenant's account as reasonably may be required to cure or mitigate
any default by Tenant. Tenant shall immediately reimburse Landlord for any such
advance, and such sums shall bear interest at the default interest rate until
paid.
F. WAIVER OF TRIAL BY JURY. EACH PARTY WAIVES TRIAL BY JURY IN THE
EVENT OF ANY LEGAL PROCEEDING BROUGHT BY THE OTHER IN CONNECTION WITH THIS
LEASE. EACH PARTY SHALL BRING ANY ACTION AGAINST THE OTHER IN CONNECTION WITH
THIS LEASE IN A FEDERAL OR STATE COURT LOCATED IN CALIFORNIA, CONSENTS TO THE
JURISDICTION OF SUCH COURTS, AND WAIVES ANY RIGHT TO HAVE ANY PROCEEDING
TRANSFERRED FROM SUCH COURTS ON THE GROUND OF IMPROPER VENUE OR INCONVENIENT
FORUM.
G. Litigation Costs: Tenant shall pay Landlord's reasonable attorneys'
fees and other costs in enforcing this Lease, whether or not suit is filed.
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14. SURRENDER. Upon termination of this Lease or Tenant's right to
possession, Tenant shall return the Premises to Landlord in good order and
condition, ordinary wear and casualty damage excepted. If Landlord requires
Tenant to remove any alterations, then Tenant shall remove the alterations in a
good and workmanlike manner and restore the Premises to its condition prior to
their installation.
15. HOLDOVER. If Tenant red possession of any part of the Premises
after the Term, Tenant shall become a month-to-month tenant for the entire
Premises upon all of the terms of this Lease as might be applicable to such
month-to-month tenancy, except that Tenant shall pay all of Base Rent, at 150%
the rate in effect immediately prior to such holdover, Tenant remains in
possession. Tenant shall also pay Landlord all of Landlord's. No acceptance of
Rent or other payments by Landlord under these holdover provisions shall operate
as a waiver of Landlord's right to regain possession or any other of Landlord's
remedies.
16. SUBORDINATION TO GROUND LEASES AND MORTGAGES.
A. Subordination. This Lease shall be subordinate to any present or
future ground lease or mortgage respecting the Project, and any amendments to
such ground lease or mortgage, at the election of the ground lessor or mortgagee
as the case may be, effected by notice to Tenant in the manner provided in this
Lease. The subordination shall be effective upon such notice, but at the request
of Landlord or ground lessor or mortgagee, Tenant shall within ten (10) days of
the request, execute and deliver to the requesting party any reasonable
documents provided to evidence the subordination.
B. Termination of Ground Lease or Foreclosure of Mortgage. If any
ground lease is terminated or mortgage foreclosed or deed in lieu of foreclosure
given and the ground lessor, mortgagee, or purchaser at a foreclosure sale shall
thereby become the owner of the Project, Tenant shall attorn to such ground
lessor or mortgagee or purchaser without any deduction or setoff by Tenant, and
this Lease shall continue in effect as a direct lease between Tenant and such
ground lessor, mortgagee or purchaser. The ground lessor or mortgagee or
purchaser shall be liable as Landlord only during the time such ground lessor or
mortgagee or purchaser is the owner of the Project. At the request of Landlord,
ground lessor or mortgagee, Tenant shall execute and deliver within ten (10)
days of the request any document furnished by the requesting party to evidence
Tenant's agreement to attorn.
C. Security Deposit. Any ground lessor or mortgagee shall be
responsible for the return of any security deposit by Tenant only to the extent
the security deposit is received by such ground lessor or mortgagee.
D. Notice and Right to Cure. The Project is subject to any ground lease
and mortgage identified with name and address of ground lessor or mortgagee in
Appendix D to this
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Lease (as the same may be amended from time to time by written notice to
Tenant). Tenant agrees to send by registered or certified mail to any ground
lessor or mortgagee identified either in such Appendix or in any later notice
from Landlord to Tenant a copy of any notice of default sent by Tenant to
Landlord. If Landlord fails to cure such default within the required time period
under this Lease, but ground lessor or mortgagee begins to cure within ten (10)
days after such period and proceeds diligently to complete such cure, then
ground lessor or mortgagee shall have such additional time as is necessary to
complete such cure, including any time necessary to obtain possession if
possession is necessary to cure, and Tenant shall not begin to enforce its
remedies so long as the cure is being diligently pursued.
E. Definitions. As used in this Section 16, "mortgage" shall include
"trust deed" and "mortgagee" shall include "trustee", "mortgagee" shall include
the mortgagee of any ground lessee, and "ground lessor", "mortgagee", and
"purchaser at a foreclosure sale" shall include, in each case, all of its
successors and assigns, however remote.
17. ASSIGNMENT AND SUBLEASE.
A. In General. Tenant shall not, without the prior consent of Landlord
in each case, (i) make or allow any assignment or transfer, by operation of law
or otherwise, of any part of Tenant's interest in this Lease, (ii) grant or
allow any lien or encumbrance, by operation of law or otherwise, upon any part
of Tenant's interest in this Lease, (iii) sublet any part of the Premises, or
(iv) permit anyone other than Tenant and its employees to occupy any part of the
Premises. Tenant shall remain primarily liable for all of its obligations under
this Lease, notwithstanding any assignment or transfer. Without limiting the
foregoing, if no default on the part of Tenant has occurred, Tenant may assign
this Lease (a "Permitted Assignment") to an entity into which Tenant is merged
or consolidated or to an entity to which substantially all of Tenant's assets
are transferred, without first obtaining Landlord's written consent, if Tenant
notifies Landlord at least ten (10) business days prior to the proposed
transaction, providing information satisfactory to Landlord in order to
determine the net worth both of the successor entity and of Tenant immediately
prior to such assignment, and showing the net worth of the successor to be at
least equal to the net worth of Tenant. No consent granted by Landlord shall be
deemed to be a consent to any subsequent assignment or transfer, lien or
encumbrance, sublease or occupancy. Tenant shall pay all of Landlord's
attorneys' fees and other expenses incurred in connection with any consent
requested by Tenant or in reviewing any proposed assignment or subletting. Any
assignment or transfer, grant of lien or encumbrance, or sublease or occupancy
without Landlord's prior written consent shall be void. If Tenant shall assign
this Lease or sublet the Premises in its entirety any rights of Tenant to renew
this Lease, extend the Term or to lease additional space in the Project shall be
extinguished thereby and will not be transferred to the assignee or subtenant,
all such rights being personal to the Tenant named herein.
B. Landlord's Consent. Landlord will not unreasonably withhold its
consent to any proposed assignment or subletting. It shall be reasonable for
Landlord to withhold its consent to any assignment or sublease if (i) Tenant is
in default under this Lease, (ii) the proposed assignee
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or sublessee is a tenant in the Project or an a affiliate of such a tenant or a
party that Landlord has identified as a prospective tenant in the Project, (iii)
the financial responsibility, nature of business, and character of the proposed
assignee or subtenant are not all reasonably satisfactory to Landlord, (iv) in
the reasonable judgment of Landlord the purpose for which the assignee or
subtenant intends to use the Premises (or a portion thereof) is not in keeping
with Landlord's standards for the Building or are in violation of the terms of
this Lease or any other leases in the Project, (v) the proposed assignee or
subtenant is a government entity, or (vi) the proposed assignment is for less
than the entire Premises or for less than the remaining Term of the Lease. The
foregoing shall not exclude any other reasonable basis for Landlord to withhold
its consent.
C. Procedure. Tenant shall notify Landlord of any proposed assignment
or sublease at least thirty (30) days prior to its proposed effective date. The
notice shall include the name and address of the proposed assignee or subtenant,
its corporate affiliates in the case of a corporation and its partners in a case
of a partnership, an execution copy of the proposed assignment or sublease, and
sufficient information to permit Landlord to determine the financial
responsibility and character of the proposed assignee or subtenant. As a
condition to any effective assignment of this Lease, the assignee shall execute
and deliver in form satisfactory to Landlord at least fifteen (15) days prior to
the effective date of the assignment, an assumption of all of the obligations of
Tenant under this Lease. As a condition to any effective sublease, subtenant
shall execute and deliver in form satisfactory to Landlord at least fifteen (15)
days prior to the effective date of the sublease, an agreement to comply with
all of Tenant's obligations under this Lease, and at Landlord's option, an
agreement (except for the economic obligations which subtenant will undertake
directly to Tenant) to attorn to Landlord under the terms of the sublease in the
event this Lease terminates before the sublease expires.
D. Change of Management or Ownership. Any transfer of the direct or
indirect power to affect the management or policies of Tenant or direct or
indirect change in 25% or more in the aggregate of the ownership interest in
Tenant shall constitute an assignment of this Lease.
E. Excess Payments. If Tenant shall assign this Lease or sublet any
part of the Premises for consideration in excess of the pro-rata portion of Rent
applicable to the space subject to the assignment or sublet, then Tenant shall
pay to Landlord as Additional Rent 50% of any such excess immediately upon
receipt.
F. Recapture. Landlord may, by giving written notice to Tenant within
thirty (30) days after receipt of Tenant's notice of assignment or subletting,
terminate this Lease with respect to the space described in Tenant's notice, as
of the effective date of the proposed assignment or sublease and all obligations
under this Lease as to such space shall expire except as to any obligations
that expressly survive any termination of this Lease.
18. CONVEYANCE BY LANDLORD. If Landlord shall at any time transfer its
interest in the Project or this Lease, Landlord shall be released of any
obligations occurring after such transfer, except the obligation to return to
Tenant any security deposit not delivered to its
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transferee, and Tenant shall look solely to Landlord's successors for
performance of such obligations. Subject to the provisions of Section 16, this
Lease shall not be affected by any such transfer.
19. ESTOPPEL CERTIFICATE. Each party shall, within ten (10) days of
receiving a request from the other party, execute, acknowledge in recordable
form, and deliver to the other party or its designee a certificate stating,
subject to a specific statement of any applicable exceptions, that the Lease as
amended to date is in full force and effect, that the Tenant is paying Rent and
other charges on a current basis, and that to the best of the knowledge of the
certifying party, the other party has committed no uncured defaults and has no
offsets or claims. The ceding party may also be required to state the date of
commencement of payment of Rent, the Commencement Date, the Termination Date,
the Base Rent, the current Operating Cost Share Rent and Tax Share Rent
estimates, the status of any improvements required to be completed by Landlord,
the amount of any security deposit, and such other matters as may be reasonably
requested. Failure to deliver such statement within the time required shall be
conclusive evidence against the non-certifying party that this Lease, with any
amendments identified by the requesting party, is in full force and effect, that
there are no uncured defaults by the requesting party, that not more than one
month's Rent has been paid in advance, that the non-certifying party has not
paid any security deposit, and that the non-certifying party has no claims or
offsets against the requesting party.
20. SECURITY DEPOSIT. Tenant shall deposit with Landlord on the date of
this Lease, security for the performance of all of its obligations in the amount
set forth on the Schedule. If Tenant defaults under this Lease, Landlord may use
any part of the Security Deposit to make any defaulted payment, to pay for
Landlord's cure of any defaulted obligation, or to compensate Landlord for any
loss or damage resulting from any default. To the extent any portion of the
deposit is used, Tenant shall within five (5) days after demand from Landlord
restore the deposit to its full amount. Landlord may keep the Security Deposit
in its general funds and shall not be required to pay interest to Tenant on the
deposit amount. If Tenant shall perform all of its obligations under this Lease
and return the Premises to Landlord at the end of the Term, Landlord shall
return all of the remaining Security Deposit to Tenant not later than thirty
(30) days after the delivery of possession of the Premises to Landlord. The
Security Deposit shall not serve as an advance payment of Rent or a measure of
Landlord's damages for any default under this Lease. If the Basic Rent shall,
from time to time, increase during the term of this Lease (as extended from time
to time), Tenant shall, upon Landlord's election, deposit with Landlord
additional money as a Security Deposit so that the total amount of Security
Deposit held by Landlord shall at all times bear the same proportion to the then
current Basic Rent as the initial Security Deposit bears to the initial Basic
Rent set forth in the Schedule.
If Landlord transfers its interest in the Project or this Lease,
Landlord shall either (a) transfer the portion of the Security Deposit then held
by Landlord to its transferee or (b) return to Tenant the portion of the
Security Deposit then held by Landlord and remaining after the deductions
permitted herein. Upon such transfer to such transferee or the return of the
Security
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Deposit to Tenant, Landlord shall have no further obligation with respect to the
Security Deposit, and Tenant's right to the return of the Security Deposit shall
apply solely against Landlord's transferee.
21. FORCE MAJEURE. Landlord shall not be in default under this Lease to
the extent Landlord is unable to perform any of its obligations on account of
any strike or labor problem, energy shortage, governmental pre-emption or
prescription, flood, earthquake, national emergency, or any other cause of any
kind beyond the reasonable control of Landlord ("Force Majeure").
22.
23. NOTICES. All notices, consents, approvals and similar
communications to be given by one party to the other under this Lease
(including, without limitation, any notice required by law to be given by
Landlord to Tenant as a condition to the filing of an action alleging an
unlawful detainer of the Premises and any three (3) day notice under Section
1161(2) or (3) of the California Code of Civil Procedure), shall be given in
writing, mailed or personally delivered as follows:
A. Landlord. To Landlord as follows:
CarrAmerica Realty Corporation
3150 S. Bristol Street, Suite 350
Costa Mesa, CA 92626
Attn: Managing Director
with a copy to:
CarrAmerica Realty Corporation
1850 K Street, N.W., Suite 500
Washington, D.C. 20006
Attn: Lease Administration
or to such other person at such other address as Landlord may designate by
notice to Tenant.
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B. Tenant. To Tenant as follows:
Infogrames North America
5300 Stevens Creek Blvd., Suite 500
San Jose, CA 95129
Attn: Ronald A. Rudolph
with a copy to:
Infogrames North America
5300 Stevens Creek Blvd., Suite 500
San Jose, CA 95129
Attn: Legal Department - General Counsel
or to such other person at such other address as Tenant may designate by notice
to Landlord.
Mailed notices shall be sent by United States certified or registered
mail, or by a reputable national overnight courier service, postage prepaid.
Mailed notices shall be deemed to have been given on the earlier of actual
delivery or three (3) business days after posting in the United States mail in
the case of registered or certified mail, and one business day in the case of
overnight courier.
24. QUIET POSSESSION. Subject to the provisions of Section 16, so long
as Tenant shall perform all of its obligations under this Lease, Tenant shall
enjoy peaceful and quiet possession of the Premises against any party claiming
through the Landlord.
25. REAL ESTATE BROKER. Tenant represents to Landlord that Tenant has
not dealt with any real estate broker with respect to this Lease except for any
broker(s) listed in the Schedule, and no other broker is in any way entitled to
any broker's fee or other payment in connection with this Lease. Tenant shall
indemnify and defend Landlord against any claims by any other broker claiming
broker through tenant or third party for any payment of any kind in connection
with this Lease.
26. MISCELLANEOUS.
A. Successors and Assigns. Subject to the limits on Tenant's assignment
contained in Section 17, the provisions of this Lease shall be binding upon and
inure to the benefit of all successors and assigns of Landlord and Tenant.
B. Date Payments Are Due. Except for payments to be made by Tenant
under this Lease which are due upon demand, Tenant shall pay to Landlord any
amount for which Landlord renders a statement of account within ten days of
Tenant's receipt of Landlord's statement.
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C. Meaning of "Landlord", "Re-Entry", "including" and "Affiliate". The
term "Landlord" means only the owner of the Project and the lessor's interest in
this Lease from time to time. The words "re-entry" and "re-enter" are not
restricted to their technical legal meaning. The words "including" and similar
words shall mean "without limitation." The word "affiliate" shall mean a person
or entity controlling, controlled by or under common control with the applicable
entity. "Control" shall mean the power directly or indirectly, by contract or
otherwise, to direct the management and policies of the applicable entity.
D. Time of the Essence. Time is of the essence of each provision of
this Lease.
E. No Option. This document shall not be effective for any purpose
until it has been executed and delivered by both parties; execution and delivery
by one party shall not create any option or other right in the other party.
F. Severability. The unenforceability of any provision of this Lease
shall not affect any other provision.
G. Governing Law. This Lease shall be governed in all respects by the
laws of the state in which the Project is located, without regard to the
principles of conflicts of laws.
H. Lease Modification. Tenant agrees to modify this Lease in any way
requested by a mortgagee which does not cause increased expense to Tenant or
otherwise materially adversely affect Tenant's interests under this Lease.
I. No Oral Modification. No modification of this Lease shall be
effective unless it is a written modification signed by both parties.
J. Landlord's Right to Cure. If Landlord breaches any of its
obligations under this Lease, Tenant shall notify Landlord in writing and shall
take no action respecting such breach so long as Landlord immediately begins to
cure the breach and diligently pursues such cure to its completion. Landlord may
cure any default by Tenant; any expenses incurred shall become Additional Rent
due from Tenant on demand by Landlord.
K. Captions. The captions used in this Lease shall have no effect on
the construction of this Lease.
L. Authority. Landlord and Tenant each represents to the other that it
has full power and authority to execute and perform this Lease.
M. Landlord's Enforcement of Remedies. Landlord may enforce any of its
remedies under this Lease either in its own name or through an agent.
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N. Entire Agreement. This Lease, together with all Appendices,
constitutes the entire agreement between the parties. No representations or
agreements of any kind have been made by either party which are not contained in
this Lease.
O. Landlord's Title. Landlord's title shall always be paramount to the
interest of the Tenant, and nothing in this Lease shall empower Tenant to do
anything which might in any way impair Landlord's title.
P. Light and Air Rights. Landlord does not grant in this Lease any
rights to light and air in connection with Project. Landlord reserves to itself,
the Land, the Building below the improved floor of each floor of the Premises,
the Building above the ceiling of each floor of the Premises, the exterior of
the Premises and the areas on the same floor outside the Premises, along with
the areas within the Premises required for the installation and repair of
utility lines and other items required to serve other tenants of the Building.
Q. Singular and Plural. Wherever appropriate in this Lease, a singular
term shall be construed to mean the plural where necessary, and a plural term
the singular. For example, if at any time two parties shall constitute Landlord
or Tenant, then the relevant term shall refer to both parties together.
R. No Recording by Tenant. Tenant shall not record in any public
records any memorandum or any portion of this Lease.
S. Exclusivity. Landlord does not grant to Tenant in this Lease any
exclusive right except the right to occupy its Premises.
T. No Construction Against Drafting Party. The rule of construction
that ambiguities are resolved against the drafting party shall not apply to this
Lease.
U. Survival. All obligations of Landlord and Tenant under this Lease
shall survive the termination of this Lease.
V. Rent Not Based on Income. No rent or other payment in respect of the
Premises shall be based in any way upon net income or profits from the Premises.
Tenant may not enter into or permit any sublease or license or other agreement
in connection with the Premises which provides for a rental or other payment
based on net income or profit.
W. Building Manager and Service Providers. Landlord may perform any of
its obligations under this Lease through its employees or third parties hired by
the Landlord.
X. Late Charge and Interest on Late Payments. Without limiting the
provisions of Section 12A, if Tenant fails to pay any installment of Rent or
other charge to be paid by Tenant pursuant to this Lease within five (5)
business days after the same becomes due and payable, then
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Tenant shall pay a late charge equal to the greater of five percent (5%) of the
amount of such payment or $250. In addition, interest shall be paid by Tenant to
Landlord on any late payments of Rent from the date due until paid at the rate
provided in Section 2D(2). Such late charge and interest shall constitute
additional Rent due and payable by Tenant to Landlord upon the date of payment
of the delinquent payment referenced above.
27. UNRELATED BUSINESS INCOME. If Landlord is advised by its counsel at
any time that any part of the payments by Tenant to Landlord under this Lease
may be characterized as unrelated business income under the United States
Internal Revenue Code and its regulations, then Tenant shall enter into any
amendment proposed by Landlord to avoid such income, so long as the amendment
does not require Tenant to make more payments or accept fewer services from
Landlord, than this Lease provides.
28. HAZARDOUS SUBSTANCES.
A. Tenant shall not cause or permit any Hazardous Substances to be
brought upon, produced, stored, used, discharged or disposed of in or near the
Project unless Landlord has consented to such storage or use in its sole
discretion. If any lender or governmental agency shall require testing for
Hazardous Substances in the Premises, Tenant shall pay for such testing.
B. "Hazardous Substances" means (a) any chemical, compound, material,
mixture or substance that is now or hereafter defined or listed in, or otherwise
classified pursuant to, any Environmental Laws as a "hazardous substance",
"hazardous material", "hazardous waste", "extremely hazardous waste", "acutely
hazardous waste", "radioactive waste", "infectious waste", "biohazardous waste",
"toxic substance", "pollutant", "toxic pollutant", "contaminant" as well as any
formulation not mentioned herein intended to define, list, or classify
substances by reason of deleterious properties such as ignitability,
corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity, "EP
toxicity", or "TCLP toxicity"; (b) petroleum, natural gas, natural gas liquids,
liquefied natural gas, synthetic gas usable for fuel (or mixtures of natural gas
and such synthetic gas) and ash produced by a resource recovery facility
utilizing a municipal solid waste stream, and drilling fluids, produced waters
and other wastes associated with the exploration, development or production of
crude oil, natural gas, or geothermal resources; (c) "hazardous substance" as
defined in Section 25281(f) of the California Health and Safety Code; (d)
"waste" as defined in Section 13050(d) of the California Water Code; (e)
asbestos in any form; (f) urea formaldehyde foam insulation; (g) polychlorinated
biphenyls (PCBs); (h) radon; and (i) any other chemical, material, or substance
exposure to which is limited or regulated by any Governmental Agency because of
its quantity, concentration, or physical or chemical characteristics, or which
poses a significant present or potential had to human health or safety or to the
environment if released into the workplace or the environment. "Hazardous
Substances" shall not include ordinary once supplies and repair, maintenance and
clearing supplies maintained in reasonable and necessary quantities and used in
accordance with all Environmental Laws. "Environmental Laws" means any and all
present and future federal, state and local laws, ordinances, regulations,
policies and any other requirements of any Governmental Agency relating to
health, safety, the
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environment or to any Hazardous Substances, including without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980
(CERCLA), the Resource Conservation Recovery Act (RCRA), the Hazardous Materials
Transportation Act, the Toxic Substance Control Act, the Endangered Species Act,
the Clean Water Act, the Occupational Safety and Health Act, the California
Environmental Quality Act and the applicable provisions of the California Health
and Safety Code, California Labor Code and the California Water Code, each as
hereafter amended from time to time, and the present and future rules,
regulations and guidance documents promulgated under any of the foregoing.
C. Without limiting Tenant's liability and obligations under Sections
28(D), (E), (F) and (G), the foregoing covenant set forth in Section 28(A) shall
not extend to insignificant amounts of substances typically found or used in
general office applications so long as (i) such substances are maintained only
in such quantities as are reasonably necessary for Tenant's operations in the
Premises, (ii) such substances are used strictly in accordance with the
manufacturers' instructions therefor and all applicable Environmental Laws,
(iii) such substances are not disposed of in or about the Project in a manner
which would constitute a release or discharge thereof, and (iv) all such
substances are removed from the Project by Tenant upon the expiration or earlier
termination of this Lease. Tenant shall, within thirty (30) days after demand
therefor, provide to Landlord a written list identifying any Hazardous Materials
then maintained by Tenant in the Building, the use of each such Hazardous
Material so maintained by Tenant together with written certification by Tenant
stating, in substance, that neither Tenant nor any person for whom Tenant is
responsible has released or discharged any Hazardous Materials in or about the
Project.
D. In order to obtain Landlord's consent under this Section 28 with
respect to any Hazardous Material other than as specified in Section 28(C)
above, Tenant shall first submit a detailed hazardous material management plan
describing all relevant aspects of the same to Landlord for approval, which
approval may be withheld by Landlord in its sole and absolute discretion. No
approval by Landlord shall relieve Tenant of any obligation of Tenant pursuant
to this Section 28, including all removal, clean-up and indemnification
obligations. Tenant shall, within five (5) days after receipt thereof, furnish
to Landlord copies of all notices or other communications received by Tenant
with respect to any actual or alleged release or discharge of any Hazardous
Material in or about the Premises or the Project and shall, whether or not
Tenant receives any such notice or communication, notify Landlord in writing of
any discharge or release of Hazardous Material by Tenant or anyone for whom
Tenant is responsible in or about the Premises or the Project. In the event
Tenant is required to maintain any hazardous materials license or permit in
connection with any use conducted by Tenant or any equipment operated by Tenant
in the Premises, copies of each such license or permit, each renewal thereof,
and any communication relating to suspension, renewal or revocation thereof
shall be furnished to Landlord within five (5) days after receipt thereof by
Tenant. Compliance by Tenant with this Section 28(C) shall not relieve Tenant of
any other obligation of Tenant pursuant to this Section 28.
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E. Upon any violation of the foregoing covenants and in all events upon
an expiration of the Term, Tenant shall be obligated, at Tenants sole cost, to
clean up and remove from the Project all Hazardous Materials introduced into the
Project by Tenant or any third party for whom Tenant is responsible. Such
clean-up and removal shall include all testing and investigation required by any
governmental authorities having jurisdiction and preparation and implementation
of any remedial action plan required by any governmental authorities having
jurisdiction. All such clean-up and removal activities of Tenant shall, in each
instance, be conducted to the satisfaction of Landlord and all governmental
authorities having jurisdiction. Landlord's right of entry pursuant to Section
11 of this Lease shall include the right (but not the obligation) to enter and
inspect the Premises for violations of Tenant's covenant herein and to supervise
any of Tenant's cleanup and removal activities.
F. To the extent permitted by then applicable law, Tenant shall
protect, indemnify, defend and hold harmless Landlord, the partners of any
entity constituting Landlord and Landlord's partners, officers, employees,
agents, lenders and attorneys from and against any and all claims, liabilities,
losses, actions, costs and expenses (including attorneys' fees and costs of
defense) incurred by such indemnified persons, or any of them, as the result of
(i) the introduction into the Project by Tenant, its employees, agents,
licensees, invitees, contractors or any other person or entity for whom Tenant
is responsible of any Hazardous Material, (ii) the usage by Tenant or anyone for
whom Tenant is responsible of Hazardous Materials in or about the Project, (iii)
the discharge or release in or about the Project by Tenant or anyone for whom
Tenant is responsible of any Hazardous Material, (iv) any injury to or death of
persons or damage to or destruction of property resulting from the use by Tenant
or anyone for whom Tenant is responsible of Hazardous Materials in or about the
Project, and (v) any failure of Tenant or anyone for whom Tenant is responsible
to observe the foregoing covenants. Payment shall not be a condition precedent
to enforcement of the foregoing indemnification provision.
G. Upon any violation of any of the foregoing covenants, Landlord shall
be entitled to exercise all remedies available to a landlord against the
defaulting tenant, including but not limited to those set forth in Section 13 of
this Lease. Without limiting the generality of the foregoing, Tenant expressly
agrees that upon any such violation Landlord may, at its option (i) immediately
terminate this Lease, or (ii) continue this Lease in effect until compliance by
Tenant with its clean-up and removal covenant (notwithstanding the expiration of
the tern of this Lease). No action by Landlord hereunder shall impair the
obligations of Tenant pursuant to this Section 28.
29. EXCULPATION. Landlord shall have no personal liability under this
Lease; its liability shall be limited to its interest in the Project, and shall
not extend to any other property or assets of the Landlord. In no event shall
any officer, director, employee, agent, shareholder, partner, member or
beneficiary of Landlord be personally liable for any of Landlord's obligations
hereunder.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease.
LANDLORD:
CARRAMERICA REALTY CORPORATION
a Maryland corporation
By: /s/ Philip L. Hawkins
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Print Name: Philip L. Hawkins
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Print Title: Chief Operating Officer
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TENANT:
INFOGRAMES NORTH AMERICA
By: /s/ R A Rudolph
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Print Name: R A Rudolph
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Print Title: SVP, Admin.
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APPENDIX A
PLAN OF THE PREMISES
[MAP]
APPENDIX A
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APPENDIX B
RULES AND REGULATIONS
1. Tenant shall not place anything, or allow anything to be placed near
the glass of any window, door, partition or wall which may, in Landlord's
judgment, appear unsightly from outside of the Project.
2. The Project directory shall be available to Tenant solely to display
names and their location in the Project, which display shall be as directed by
Landlord.
3. The sidewalks, halls, passages, exits, entrances, elevators and
stairways shall not be obstructed by Tenant or used by Tenant for any purposes
other than for ingress to and egress from the Premises. Tenant shall lend its
full cooperation to keep such areas free from all obstruction and in a clean and
sightly condition and shall move all supplies, furniture and equipment as soon
as received directly to the Premises and move all such items and waste being
taken from the Premises (other than waste customarily removed by employees of
the Building) directly to the shipping platform at or about the time arranged
for removal therefrom. The halls, passages, exits, entrances, 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, reasonably
exercised, shall be prejudicial to the safety, character, reputation and
interests of the Project. Neither Tenant nor any employee or invitee of Tenant
shall go upon the roof of the Project.
4. The toilet rooms, urinals, wash bowls and other apparatuses shall
not be used for any purposes other than that for which they were constructed,
and no foreign substance of any kind whatsoever shall be thrown therein, and to
the extent caused by Tenant or its employees or invitees, the expense of any
breakage, stoppage or damage resulting from the violation of this rule shall be
borne by Tenant.
5. Tenant shall not cause any unnecessary janitorial labor or services
by reason of Tenant's carelessness or indifference in the preservation of good
order and cleanliness.
6. Tenant shall not install or operate any refrigerating, heating or
air conditioning apparatus, or carry on any mechanical business without the
prior written consent of Landlord; use the Premises for housing, lodging or
sleeping purposes; or permit preparation or warming of food in the Premises
(microwave warming of coffee and individual meals with employees and guests
excepted). Tenant shall not occupy or use the Premises or permit the Premises to
be occupied or used for any purpose, act or thing which is in violation of any
Governmental Requirement or which may be dangerous to persons or property.
APPENDIX B
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7. Tenant shall not bring upon, use or keep in the Premises or the
Project any kerosene, gasoline or inflammable or combustible fluid or material,
or any other articles deemed hazardous to persons or property, or use any method
of heating or air conditioning other than that supplied by Landlord.
8. Landlord shall have sole power to direct electricians as to where
and how telephone and other wires are to be introduced. No boring or cutting for
wires is to be allowed without the consent of Landlord. The location of
telephones, call boxes and other office equipment affixed to the Premises shall
be subject to the approval of Landlord.
9. No additional locks shall be placed upon any doors, windows or
transoms in or to the Premises. Tenant, shall not change existing locks or the
mechanism thereof. Upon termination of the lease, Tenant shall deliver to
Landlord all keys and passes for offices, rooms, parking lot and toilet rooms
which shall have been furnished Tenant.
In the event of the loss of keys so furnished, Tenant shall
pay Landlord therefor. Tenant shall not make, or cause to be made, any such keys
and shall order all such keys solely from Landlord and shall pay Landlord for
any keys in addition to the two sets of keys originally furnished by Landlord
for each lock.
10. Tenant shall not install linoleum, tile, carpet or other floor
covering so that the same shall be affixed to the floor of the Premises in any
manner except as approved by Landlord.
11. No furniture, packages, supplies, equipment or merchandise will be
received in the Project or carried up or down in the freight elevator, except
between such hours and in such freight elevator as shall be designated by
Landlord. Tenant shall not take or permit to be taken in or out of other
entrances of the Building, or take or permit on other elevators, any item
normally taken in or out through the trucking concourse or service doors or in
or on freight elevators.
12. Tenant shall cause all doors to the Premises to be closed and
securely locked and shall turn off all utilities, lights and machines before
leaving the Project at the end of the day.
13. Without the prior written consent of Landlord, Tenant shall not use
the name of the Project or any picture of the Project in connection with, or in
promoting or advertising the business of, Tenant, except Tenant may use the
address of the Project as the address of its business.
14. Tenant shall cooperate fully with Landlord to assure the most
effective operation of the Premises' or the Project's heating and air
conditioning, and shall refrain from attempting to adjust any controls, other
than room thermostats installed for Tenant's use. Tenant shall keep corridor
doors closed.
APPENDIX B
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15. Tenant assumes full responsibility for protecting the Premises from
theft, robbery and pilferage, which may arise from a cause other than Landlord's
negligence, which includes keeping doors locked and other means of entry to the
Premises closed and secured.
16. Peddlers, solicitors and beggars shall be reported to the office of
the Project or as Landlord otherwise requests.
17.
18. No bicycle or other vehicle and no animals or pets shall be allowed
in the Premises, halls, freight docks, or any other parts of the Building except
that blind persons may be accompanied by "seeing eye" dogs. Tenant shall not
make or permit any noise, vibration or odor to emanate from the Premises, or do
anything therein tending to create, or maintain, a nuisance, or do any act
tending to injure the reputation of the Building.
19. Tenant acknowledges that Building security problems may occur which
may require the employment of extreme security measures in the day-to-day
operation of the Project.
Accordingly:
(a) Landlord may, at any time, or from time to time, or for
regularly scheduled time periods, as deemed advisable by Landlord and/or its
agents, in their sole discretion, require that persons entering or leaving the
Project or the Property identify themselves to watchmen or other employees
designated by Landlord, by registration, identification or otherwise.
(b) Tenant agrees that it and its employees will cooperate
fully with Project employees in the implementation of any and all security
procedures.
(c) Such security measures shall be the sole responsibility of
Landlord, and Tenant shall have no liability for any action taken by Landlord in
connection therewith, it being understood that Landlord is not required to
provide any security procedures and shall have no liability for such security
procedures or the lack thereof.
20. Tenant shall not do or permit the manufacture, sale, purchase, use
or gift of any fermented, intoxicating or alcoholic beverages without obtaining
written consent of Landlord.
21. Tenant shall not disturb the quiet enjoyment of any other tenant.
APPENDIX B
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22. Tenant shall not provide any janitorial services or cleaning
without Landlord's written consent and then only subject to supervision of
Landlord and at Tenant's sole responsibility and by janitor or cleaning
contractor or employees at all times satisfactory to Landlord.
23. Landlord may retain a pass key to the Premises and be allowed
admittance thereto at all times to enable its representatives to examine the
Premises from time to time and to exhibit the same and Landlord may place and
keep on the windows and doors of the Premises at any time signs advertising the
Premises for Rent.
24. No equipment, mechanical ventilators, awnings, special shades or
other forms of window covering shall be permitted either inside or outside the
windows of the Premises without the prior written consent of Landlord, and then
only at the expense and risk of Tenant, and they shall be of such shape, color,
material, quality, design and make as may be approved by Landlord.
25. Tenant shall not during the term of this Lease canvas or solicit
other tenants of the Building for any purpose.
26. Tenant shall not install or operate any phonograph, musical or
sound- producing instrument or device, radio receiver or transmitter, TV
receiver or transmitter, or similar device in the Building, nor install or
operate any antenna, aerial, wires or other equipment inside or outside the
Building, nor operate any electrical device from which may emanate electrical
waves which nay interfere with or impair radio or television broadcasting or
reception from or in the Building or elsewhere, without in each instance the
prior written approval of Landlord. The use thereof, if permitted, shall be
subject to control by Landlord to the end that others shall not be disturbed.
27. Tenant shall promptly remove all rubbish and waste from the
Premises.
28. Tenant shall not exhibit, sell or offer for sale, Rent or exchange
in the Premises or at the Project any article, thing or service, except those
ordinarily embraced within the use of the Premises specified in Section 6 of
this Lease, without the prior written consent of Landlord.
29. Tenant shall list all furniture, equipment and similar articles
Tenant desires to remove from the Premises or the Building and deliver a copy of
such list to Landlord and procure a removal permit from the Office of the
Building authorizing Building employees to permit such articles to be removed.
30. Tenant shall not overload any floors in the Premises or any public
corridors or elevators in the Building.
APPENDIX B
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31. Tenant shall not do any painting in the Premises, or mark, paint,
cut or drill into, drive nails or screws into, or in an way deface any part of
the Premises or the Building, outside or inside, without the prior written
consent of Landlord.
32. Whenever Landlord's consent, approval or satisfaction is required
under these Rules, then unless otherwise stated, any such consent, approval or
satisfaction must be obtained in advance, such consent or approval may be
granted or withheld in Landlord's sole discretion, and Landlord's satisfaction
shall be determined in its sole judgment.
33. Tenant and its employees shall cooperate in all fire drills
conducted by Landlord in the Building.
APPENDIX B
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APPENDIX C
TENANT IMPROVEMENT AGREEMENT
1. INITIAL IMPROVEMENTS. Landlord shall cause to be performed the
improvements (the "Initial Improvements") in the Premises in accordance with
plans and specifications approved by Tenant and Landlord (the "Plans"), which
approvals shall not be unreasonably withheld. The Initial Improvements shall be
performed at the Tenant's cost, subject to the Landlord's Contribution
(hereinafter defined).
Landlord shall cause the Plans to be prepared, at Tenant's cost, by a
registered professional architect and mechanical and electrical engineer(s).
Such engineer(s) shall be approved, in advance, by the Landlord. Prior to
close-of-business on May 1, 2000, Tenant shall furnish the initial draft of the
Plans to Landlord for Landlord's review and approval. Landlord shall within two
(2) weeks after receipt either provide comments to such Plans or approve the
same. Landlord shall be deemed to have approved such Plans if it does not timely
provide comments on such Plans. If Landlord provides Tenant with comments to the
initial draft of the Plans, Tenant shall provide revised Plans to Landlord
incorporating Landlord's comments within one week after receipt of Landlord's
comments. Landlord shall within one week after receipt then either provide
comments to such revised Plans or approve such Plans. Landlord shall be deemed
to have approved such revised Plans if Landlord does not timely provide comments
on such Plans. The process described above shall be repeated, if necessary,
until the Plans have been finally approved by Landlord. Tenant hereby agrees
that the Plans for the Initial Improvements shall comply with all applicable
Governmental Requirements. Landlord's approval of any of the Plans (or any
modifications or changes thereto) shall not impose upon Landlord or its agents
or representatives any obligation with respect to the design of the Initial
Improvements or the compliance of such Initial Improvements or the Plans with
applicable Governmental Requirements.
Landlord, with consultation of Tenant, shall select a contractor to
perform the construction of the Initial Improvements. Landlord shall use
commercially reasonable efforts to cause the Initial Improvements to be
substantially completed, except for minor "Punch List" items, on or before the
Commencement Date specified in the Schedule to the Lease, subject to Tenant
Delay (as defined in Section 4 hereof) and Force Majeure.
Landlord, or an agent of Landlord, shall provide project management
services in connection with the construction of the Initial Improvements and the
Change Orders (hereinafter defined). Such project management services shall be
performed, at Tenant's cost, for a fee of five percent (5%) of all costs
related to the preparation of the Plans and the construction of the Initial
Improvements and the Change Orders.
APPENDIX C
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2. CHANGE ORDERS. If, prior to the Commencement Date, Tenant shall
require improvements or changes (individually or collectively, "Change Orders")
to the Premises in addition to, revision of or substitution for the Initial
Improvements, Tenant shall deliver to Landlord for its approval plans and
specifications for such Change Orders. If Landlord does not approve of the plans
for Change Orders, Landlord shall advise Tenant of the revisions required.
Tenant shall revise and redeliver the plans and specifications to Landlord
within five (5) business days of Landlord's advice or Tenant shall be deemed to
have abandoned its request for such Change Orders. Tenant shall pay for all
preparations and revisions of plans and specifications, and the construction of
all Change Orders, subject to Landlord's Contribution.
3. LANDLORD'S CONTRIBUTION. Landlord shall contribute an amount up to
$6,670.00 ("Landlord's Contribution") toward the costs incurred for the Initial
Improvements and Change Orders. Landlord has no obligation to pay for costs of
the Initial Improvements or Change Orders in excess of Landlord's Contribution.
If the cost of the Initial Improvements and/or Change Orders exceeds the
Landlord's Contribution, Tenant shall pay such overage to Landlord prior to
commencement of construction of the Initial Improvements and/or Change orders.
4. COMMENCEMENT DATE DELAY. Commencement Date shall be delayed until
the Initial Improvements have been substantially completed (the "Completion
Date"), except to the extent that the delay shall be caused by any one or more
of the following (a "Tenant Delay"):
(a) Tenant's request for Change Orders whether or not any such
Change Orders are actually performed; or
(b) Contractor's performance of any Change Orders; or
(c) Tenant's request for materials, finishes or installations
requiring unusually long lead times; or
(d) Tenant's delay in reviewing, revising or approving plans
and specifications beyond the periods set forth herein; or
(e) Tenant's delay in providing information critical to the
normal progression of the project. Tenant shall provide such information as soon
as reasonably possible, but in no event longer than one week after receipt of
such request for information from the Landlord; or
(f) Tenant's delay in making payments to Landlord for costs of
the Initial Improvements and/or Change orders in excess of the Landlord's
Contribution; or
APPENDIX C
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(g) Any other act or omission by Tenant, its agents,
contractors or persons employed by any of such persons.
If the Commencement Date is delayed for any reason, then Landlord shall
cause Landlord's Architect to certify the date on which the Initial Improvements
would have been completed but for such Tenant Delay, or were in fact completed
without any Tenant Delay.
5. ACCESS BY TENANT PRIOR TO COMMENCEMENT OF TERM. Landlord at its
discretion may permit Tenant and its agents to enter the Premises prior to the
Commencement Date to prepare the Premises for Tenant's use and occupancy. Any
such permission shall constitute a license only, conditioned upon Tenant's:
(a) working in harmony with Landlord and Landlord's agents,
contractors, workmen, mechanics and suppliers and with other tenants and
occupants of the Building;
(b) obtaining in advance Landlord's approval of the
contractors proposed to be used by Tenant and depositing with Landlord in
advance of any work (i) security satisfactory to Landlord for the completion
thereof, and (ii) the contractor's affidavit for the proposed work and the
waivers of lien from the contractor and all subcontractors and suppliers of
material; and
(c) furnishing Landlord with such insurance as Landlord may
require against liabilities which may arise out of such entry.
Landlord shall have the right to withdraw such license for any reason
upon twenty-four (24) hours' written notice to Tenant. Landlord shall not be
liable in any way for any injury, loss or damage which may occur to any of
Tenant's property or installations in the Premises prior to the Commencement
Date. Tenant shall protect, defend, indemnify and save harmless Landlord from
all liabilities, costs, damages, fees and expenses arising out of the activities
of Tenant or its agents, contractors, suppliers or workmen in the Premises or
the Building. Any entry and occupation permitted under this Section shall be
governed by Section 5 and all other terms of the Lease.
6. MISCELLANEOUS.
Terms used in this Appendix C shall have the meanings assigned to them
in the Lease. The terms of this Appendix C are subject to the terms of the
Lease.
APPENDIX C
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APPENDIX D
MORTGAGES CURRENTLY AFFECTING THE PROJECT
CIGNA
APPENDIX D
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APPENDIX E
COMMENCEMENT DATE CONFIRMATION
Landlord: CARRAMERICA REALTY CORPORATION, a Maryland corporation
Tenant: INFOGRAMES NORTH AMERICA, a California corporation
This Commencement Date Confirmation is made by Landlord and Tenant
pursuant to that certain Lease dated as of February 17, 2000 (the "Lease") for
certain premises known as 20931 Warner Center Lane, Suite D in the building
commonly known as "WARNER CENTER CORPORATE PARK" (the "Premises"). This
Confirmation is made pursuant to Item 9 of the Schedule to the Lease.
1. Lease Commencement Date, Termination Date. Landlord and Tenant
hereby agree that the Commencement Date of the Lease is
________________________, 2000, and the Termination Date of the Lease is
____________________,_______.
2. Acceptance of Premises. Tenant has inspected the Premises and
affirms that the Premises is acceptable in all respects in its current "as is"
condition.
3. Incorporation. This Confirmation is incorporated into the Lease, and
forms an integral part thereof. This Confirmation shall be construed and
interpreted in accordance with the terms of the Lease for all purposes.
TENANT:
INFOGRAMES NORTH AMERICA
By:
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Name:
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Title:
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LANDLORD:
CARRAMERICA REALTY CORPORATION,
a Maryland corporation
By:
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Name:
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Title:
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APPENDIX D
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